The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.A. No.93 of 2025 State of Odisha and another …. Appellants -versus- Harekrushna Nayak and others …. Respondents Advocates appeared in this case: For Appellants : Mr. Pravakar Behera, Standing Counsel (for Transport Department) For Respondents : Mr. S.R. Pati, Advocate (for Respondent nos.1 to 4) Mr. S.K. Swain, AGA (for Respondent no.5) CORAM: THE HON’BLE MR. JUSTICE ARINDAM SINHA, ACTING CHIEF JUSTICE AND
Legal Reasoning
“17. It cannot be disputed that no employee has a right to get promotion; so the appellant had no right to get promotion to the rank of Lieutenant-General but he had a right to be considered for promotion to the rank of Lieutenant-General and if as per the prevailing policy, he was eligible to be promoted to the said rank, he ought to have been considered. In the instant case, there is no dispute to the fact that the appellant’s case was duly considered by the SSB for his promotion to the rank of Lieutenant-General.” (emphasis supplied) 6. Mr. Pati submits further, his clients seek promotion. Requirement of the department for filling up vacancies in the post will be fulfilled on his clients being considered for promotion against 50% of the vacancies, balance to be filled up by direct recruitment. His clients had challenged said communication dated 12th March, 2024, at a time when they had already become eligible for promotion. In Ajit Singh (supra) the Supreme Court had declared that denial of consideration for being promoted would amount to violation of article 14 in the Constitution of India. He submits, the appeal be dismissed. W.A. no.93 of 2025 Page 6 of 8 7. The learned single Judge while making direction for reservation of 50% of the total vacancies in the post to be filled up on promotion can be said to have referred to only rule 4 in doing so. We have been shown that the committee is mandated by the rules to meet at least once in a year, preferably in the month of January, to prepare list of officers suitable for promotion to next higher grade. There is no dispute that in January, 2024 respondent nos.1 to 4 were not eligible for promotion. It follows, there was no recommendation for them being promoted in that year. It must be seen, as a consequence there was request made by the department for filling up 21 vacancies in post of Sub-Inspector (Traffic) on direct recruitment. Relevant rules have been referred to above. There does not appear to be any violation made on the request, as was challenged before the learned single Judge. 8. Ajit Singh (supra) does not come to aid of respondent nos.1 to 4 because they were not eligible for being considered when the request was made in terms of the rules. In Hardev Singh (supra) the Supreme Court declared the law to be that a person has a right to be considered for promotion and, if as per prevailing policy he is eligible to be promoted, to be considered. W.A. no.93 of 2025 Page 7 of 8 This judgment too does not come to aid of said respondents as the request followed omission of the committee to recommend said respondents for promotion in January, 2024 as they were not yet eligible to be so recommended at that time. 9. Impugned order is reversed in appeal. Request dated 12th March, 2024 is restored. Appellants will take steps to see that OSSC follows through for the recruitments being made. Before parting with the file, we record our reiteration of the mandate in the rules for the committee to meet in January every year, to recommend officers eligible to be promoted.
Arguments
THE HON’BLE MR. JUSTICE M.S. SAHOO J U D G M E N T ------------------------------------------------------------------------------- Date of hearing and judgment:17th March, 2025 -------------------------------------------------------------------------------------- ARINDAM SINHA, ACJ. 1. There are four respondents in the appeal. They were petitioners before the learned single Judge. They had challenged communication dated 12th March, 2024 made by office of the W.A. no.93 of 2025 Page 1 of 8 Transport Commissioner-cum-Chairman, State Transport Authority, Odisha to Secretary, Odisha Staff Selection Commission (OSSC). Respondents’ challenge against the communication was directed at serial no.2 carrying request for filling up 21 vacancies in post of Sub-Inspector (Traffic), by direct recruitment. The learned single Judge, by order dated 27th November, 2024 directed, inter alia, as by paragraph-8 reproduced below. “8. Considering the submissions made on behalf of both the parties and looking to the provisions noted hereinabove, this Court directs the Opposite Parties to reserve 50% of the total posts of sub-Inspector (Traffic) for filling up the said posts through departmental promotion and fill up rest 50% through direct recruitment. The Secretary, Odisha Staff Selection Commission/Opposite Party No.2 is directed to issue necessary corrigendum factoring into the above aspect and proceed accordingly for recruitment.” There was further direction to consider case of respondents for promotion to the post, within three months of communication. State is aggrieved and has come up in appeal, presented in time. 2. Mr. Behera, learned advocate, Standing Counsel (Transport) appears on behalf of appellants and draws attention W.A. no.93 of 2025 Page 2 of 8 to Odisha Transport-Traffic and Enforcement (Method of Recruitment and Conditions of service) Rules, 2013. He submits, clause (b) in rule 4 provides for the post to be filled up by 50% on promotion and remaining 50% by way of direct recruitment to be conducted by OSSC. He relies on the proviso saying, in case adequate numbers of departmental candidates are not available for promotion in any year, the resultant vacancy shall be filled up by direct recruitment. Furthermore, eligibility for promotion to the post is 5 years’ service in the feeder post. Respondent nos.1 to 4 were last promoted on 12th February, 2019. This eligibility criterion is provided by sub-rule (3) in rule 8. Furthermore, sub-rule (2) in rule 9 requires the committee to meet once in a year, preferably in January, to prepare list of officers suitable for promotion to next higher grade. As on 31st January, 2024, said respondents were not eligible for promotion. Thus there was consideration of the vacancies and request for filing up those found, by direct recruitment. 3. There being requirement of personnel, impugned in the writ petition communication was made for filling up 21 vacancies in post of Sub-Inspector (Traffic) by way of direct W.A. no.93 of 2025 Page 3 of 8 recruitment. These vacancies arose in period/year 2022-2023. Respondent nos.1 to 4 may be eligible for promotion against vacancies arising in year 2025 and beyond. However, they by the litigation initiated on filing the writ petition, are trying to obtain promotion in the recruitment, initiated for previous years, when they were not eligible for promotion. He submits, there be interference in appeal for the transport department to go ahead and obtain the recruitment. 4. Mr. Pati, learned advocate appears on behalf of respondent nos.1 to 4 and Mr. Swain, learned advocate, Additional Government Advocate for OSSC (proforma respondent). Mr. Swain submits, his client will carry out directions as may be made in the appeal. 5. Mr. Pati submits, there is no error, factual or in law as appears from impugned order dated 27th November, 2024. The learned single Judge considered relevant rule and made the direction for reserving 50% of the vacancies to be filled up on promotion. He relies on judgments of the Supreme Court. (i) Ajit Singh v. State of Punjab, reported in AIR 1999 SC 3471, paragraph 22 reproduced below. W.A. no.93 of 2025 Page 4 of 8 “22. Article 14 and Article 16(1) are closely connected. They deal with individual rights of the person. Article 14 demands that the “State shall not deny to any person equality before the law or the equal protection of the laws”. Article 16(1) issues a positive command that “there shall be equality of opportunity for all citizens in the matters relating to employment or appointment to any office under the State”. It has been held repeatedly by this Court that sub-clause(1) of Article 16 is a facet of Article 14 and that it takes its roots from Article 14. The said sub-clause particularizes the generality in Article 14 and identifies, in a constitutional sense “equality opportunity” in matters of employment and appointment to any office under the State. The word ‘employment’ being wider, there is no dispute that it takes within its fold, the aspect of promotions to posts above the stage of initial level of recruitment. Article 16(1) provides to every employee otherwise eligible for promotion or who comes within the zone of consideration, a fundamental right to be “considered” for promotion. Equal opportunity here means the right to be “considered” for promotion. If a person satisfies the eligibility and zone criteria but is not considered for promotion, then there will be a clear infraction of his fundamental right to be “considered” for promotion, which is his personal right. “Promotion” based on equal opportunity and ‘seniority’ attached to such promotion are facets of fundamental right under Article 16(1):” W.A. no.93 of 2025 Page 5 of 8 (ii) Hardev Singh v. Union of India, reported in (2011) 10 SCC 121, paragraph 17 reproduced below.
Decision
10. The appeal is disposed of. (Arindam Sinha) Acting Chief Judge (M.S. Sahoo) Judge Jyostn/dutta Signature Not Verified Digitally Signed Signed by: JYOSTNARANI MAJHEE Reason: Authentication Location: OHC Date: 18-Mar-2025 11:27:51 W.A. no.93 of 2025 Page 8 of 8