The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.168 of 2023 Tushar Ranjan Mishra …. Petitioner State of Odisha & others …. Opp. Parties Mr. S.K. Das, Advocate -versus- Mr. Arnav Behera, ASC CORAM: JUSTICE A.K. MOHAPATRA Order No.
Decision
ORDER 20.01.2023 02. 1. This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode). 2. Heard Mr. S.K. Das, learned counsel appearing for the Petitioner as well as Mr. A. Behera, learned Additional Standing Counsel appearing for the State-Opposite Parties. 3. This writ petition has been filed by the Petitioner with a prayer to direct the Opposite Party No.1 to give him promotion to the post of Establishment Officer w.e.f. 02.11.2021, i.e., from the date his immediate juniors have got such promotion and to grant him all consequential service and financial benefits as there is no adverse CCR entry against him with a further direction to the Opposite Parties to make the CCR available before the DPC to consider him case for promotion within a stipulated period of time. 4. The case of the Petitioner, in short, is that the Petitioner // 2 // joined as Junior Assistant under the administrative control of the Principal Chief Conservator of Forests & Head of Forest Force (PCCF & HOFF), Bhubaneswar on 21.08.1991 and was posted in the office of the PCCF, Odisha, Bhubaneswar. Thereafter, he was promoted to the post of Senior Assistant and joined in his promotional post on 23.04.1999 and further promoted to the post of Section Officer w.e.f. 24.09.2020. 5. In course of his employment, the Petitioner acquired eligibility and further he was having unblemished carrier thereby he became eligible for promotion to the post of Establishment Officer. On the basis of his seniority, he was placed at Serial No.76 of the gradation list whereas one Manjushree Mohanty and Tusar Kumar Panda in UR Category was placed at Serial No.77 and 78 respectively. A DPC was convened on 11.04.2022 to consider the case of the promotion to the post of Establishment Officer. Although the name of the Petitioner was recommended along with others, but the name of the Petitioner was not considered by the DPC for want of CCRs. However, it has also been pleaded in the writ petition that Manjushree Mohanty and others, who are juniors to the Petitioner, have been given promotion vide Office Order No.14281 dated 30.04.2022. 6. Mr. Das, learned counsel appearing for the Petitioner emphatically submitted that preparation and maintenance of CCRs and other service related records are the sole responsibility of the employer. Moreover, right to get promotion is although not a right recognized under the law, however, the law has evolved over the years and the right to be considered for promotion has been // 3 // recognized to be a fundamental right under Article 14 and 16 of the Constitution of India. Additionally, the authorities could not have taken a ground that the case of the Petitioner for promotion was not considered due to non-availability of the CCRs. It is further contended by Mr. Das that merely because the authorities did not forward the CCRs pertaining to the relevant period of the Petitioner, she cannot be denied promotion on such ground. Moreover, it is a matter of record that there is no adverse CCR against the present Petitioner or at least the same has never been communicated to the Petitioner as of now. 7. Mr. Das further contended that giving promotion to the juniors while not considering the case of promotion of senior employees on the ground that the CCRs were not available is illegal, unsustainable and the same also violates the underline principle contained in Article 14 and 16 of the Constitution of India. 8. In the said context, Mr. Das has relied upon a judgment of the Hon’ble Supreme Court in the case of Sh. V. Kashyap and another v. Indian Airlines and others, reported in AIR 1994 SC 2128 and the order of this Court in the case of Kausalya Behera (W.P.(C) No.34949 of 2022). With reference to the aforesaid judgment, it was contended by Mr. Das that non-availability of the Annual Performance Appraisal (APR) report in respect of two years cannot be a ground to deny the promotion which he/she is otherwise entitled to. Further, it was held by the Hon’ble Supreme Court that considering the APRs of three preceding available years, the case of promotion of an employee can very well be // 4 // considered. Further, while setting aside the order passed by the High Court, the Hon’ble Supreme Court has also observed that the High Court took an unreasonable view by observing that the non- writing of two APRs was due to ‘lapse and fault of respondent No.1’. Therefore, the Hon’ble Supreme Court further directed that in the absence of APRs pertaining to those two periods, the authority should have considered the APRs of the year 2016-17 to 2020-21 which were the APRs of three preceding available years and the same would be in due compliance of guidelines in that regard. 9. Learned Additional Standing Counsel appearing for the State-Opposite Parties, on the other hand, submitted that due to non-availability of the CCRs, the case of the Petitioner was not considered by the DPC for promotion. However, such non- consideration should not be understood in a sense that the DPC has rejected the case of the Petitioner for promotion. Therefore, he further submitted that after the CCRs are made available, the case of the Petitioner for promotion to the post of Establishment Officer can always be considered by the review DPC. 10. Having heard the learned counsel for the respective parties and upon a careful consideration of the rival contentions raised while adjudicating the present writ petition, although the State- Opposite Parties have not filed the counter affidavit, this Court is of the considered view that in view of the admitted position no counter affidavit is necessary and the matter can be disposed of by giving a direction to the authorities. 11. Accordingly, the writ petition is disposed of by directing the // 5 // Opposite Parties, particularly the Opposite Party No.2 to provide the CCRs of the Petitioner for the relevant period and the same be placed before the review DPC for consideration. In the event the CCRs pertaining to immediately preceding three years are not available for some reason or the other, the authorities are directed to consider the CCRs pertaining to three preceding available years and the case of the Petitioner for promotion be considered on such basis and the Petitioner be given promotion to the post of Establishment Officer as has been given to other similarly placed or junior employees. This Court deems it necessary to also direct the Opposite Party No.1 & 2 to restore the seniority of the Petitioner as per the gradation list by giving promotion to the Petitioner w.e.f. the date on which employees junior to the Petitioner was given promotion and, accordingly, all consequential service and financial benefits be calculated against the promotional post and the same be extended in favour of the Petitioner within a period of two months from the date of review DPC take place. 12. Urgent certified copy of this order be granted on proper application. Jagabandhu ( A.K. Mohapatra) Judge