The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No. 1941 of 2025 Dr. Raghunath Mishra …. Petitioner Mr. Swapnil Roy, Advocate -versus- State of Odisha and Others …. Opp. Parties Mr. D. Mohanty, AGA
Legal Reasoning
CORAM: THE HON’BLE MR. JUSTICE CHITTARANJAN DASH Order No.
Decision
ORDER 10.02.2025 01. 1. Heard learned counsel for the Petitioner and the State. 2. By means of this Writ Petition, the Petitioner has prayed for the following reliefs:- “It is therefore prayed that this Hon’ble Court may graciously be pleased to admit the writ petition and issue Rule “NISI” to the Opposite Parties to show cause as to; (i) Why the impugned order dated 23.10.2024 passed by the Opposite Party No.1 under Annexure-7 in the facts and circumstances of the case will not be declared as illegal and as such liable to be set aside; and (ii) Why the Opposite Party No.1 will not be directed to promote the petitioner to the rank of Additional Director Level-II w.e.f. 2017 in terms of the directions contained in the order dated 04.08.2023 passed in W.P.(C) No.23631 of 2023 within a stipulated times; and (iii) Why the Opposite Parties will not be directed to extend all consequential service and financial benefits as due and admissible to the petitioner on such promotion within a stipulated time; And if the Opposite Parties do not show cause, then the Rule be made absolute by issuing appropriate writ/writs and any other order as deem fit be passed.” 3. In course of hearing, it is contended by the learned counsel for the Petitioner that pursuant to the rejection of his representation under Annexure-4, he moved this Court in W.P.(C) No. 6271 of 2020, wherein, the coordinate Bench of this Court vide order dated 20.02.2020 directed the authorities to consider his representation under Annexure-2 of the said Writ Petition. It is further contended that in considering the representation while the authority extended the retiral benefit to the Petitioner, it did not consider the promotional aspect of the Petitioner on the ground that PAR was not available before the DPC. Accordingly, the Petitioner once again moved this Court in W.P.(C) No.23631 of 2023 under Annexure-6 wherein the coordinate Bench of this Court vide order dated 04.08.2023 directed the authorities to consider his promotion in the manner observed by the Court. Consequently, the authorities took the Petitioner’s case into consideration and passed the order under Annexure- Page 2 of 7 4. The relevant part of the order passed by the Opposite Party No.1 is reproduced as follows:- to 31.05.2011, “Whereas, after due consideration of service records and PARs of Dr. Raghunath Mishra, the DPC found that, except the PARs for the period 2010-11, 2014-15 and part period (w.e.f. 01.04.2011 31.12.2012, 04.07.2012 to 01.01.2013 to 31.03.2013), rest of the requisite PARs of 5 years for the period from 2009-10 to 2016-17 are not available, as Dr. Mishra has not furnished his PARS. Whereas, the DPC has observed that, as per Para 5 (i) of GA(SE) Department Memorandum No.1199 dated 26.04.2006, PAR is required to be initiated by the appraise. Further, submission of online PARs was introduced from the assessment year 2014-15 onwards as per the GA&PG (SE) Deptt. Letter no. 34337/SE dtd. 26. 12.2014 and it is mandatory from the year 2015-16 onwards vide Circular No. 47/SE dtd. 14.01.2016 of GA & PG(SE) Deptt. As per Rule-3 (2) of OCS Criteria for Promotion Rules, 1992, as amended from time to time, preceding five years available Confidential Character Rolls are the prime requirement to adjudge the suitability of the Officers for promotion. In the instant case, Dr. Mishra has not furnished his PARs. For such non- submission and non-availability of PARs, the petitioner is squarely responsible. Whereas, the DPC has not recommended his case for promotion to the rank of Selection Grade-II (Additional Director Level-II) of Odisha Medical and Health Services Cadre due to non-availability of required offline/online PARs as per rules. In view of the detail position stated above, the prayer of Dr. Mishra to give him promotion to the rank of Selection Grade-II (Additional Director Level-II) of Odisha Medical & Health Services Cadre w.e.f. 2017 when he was within the zone of consideration (Annexure-3) with the direction to pay Page 3 of 7 the arrear pay arising out of such promotion along with D.A.C.P. for his long qualified service as for 36 years deserves no Medical Officer consideration and hence is rejected being devoid of merit.” 5. Needless to mention that the coordinate Bench of this Court while issuing direction to the authorities, had categorically observed the manner in which the representation of the Petitioner was required to be considered, which this Court finds profitable to reproduce as hereunder:- “8. Having heard the learned counsels appearing for the respective parties and on a careful consideration of the contentions raised before this Court and upon a careful examination of the background facts of the present case, this Court is of the considered view that by the time the review DPC was convened, the Disciplinary Proceeding has come to an end as the same was quashed by the learned OAT. Therefore, impediment except non- there was no other availability of the PARs of the Petitioner for consideration of his promotion to the post of Additional Director Level-II in the Selection Grade- II. In fact, on close scrutiny of the proceedings of DPC as well as review DPC, this Court observed that the case of the Petitioner was taken into consideration, however, the same could not be finally considered due to non-availability of the PARs of the Petitioner. In view of the aforesaid factual background, this Court is of the considered view that the department who is the custodian of PARS/APRs of any officer/employee, therefore, the department cannot merely grossly aside the responsibility by saying that the ig that the required PARs were not available at the time of either the DPC or review DPC. Further, this Court is also of Page 4 of 7 to consider the view that there was no other impediment to grant promotion to the Petitioner, which he is entitled to as per law. 9. In view of the factual background and the position of law, this Court deems it proper to dispose of the writ petition at the stage of admission by directing the Opposite Party No.1 the representation of the Petitioner dated 23.10.2019 and 14.11.2022 under Annexure-6 and 7 respectively to the writ petition, if the same has not been disposed in the meantime, be considered and disposed of strictly in accordance with law within a period of two months from the date of communication of a certified copy of this order. While disposing of the representations of the Petitioner, the Opposite Party No.1 shall do well to keep in view the observations made hereinabove by this Court and shall dispose of the representations by passing a speaking and reasoned order within the aforesaid stipulated period of time. The decision so taken be communicated to the Petitioner within two weeks thereafter. Further, it is directed that in the event the Opposite Party No.1 comes to a conclusion that the Petitioner was in fact eligible to be given promotion and due to non- availability of the PARs, he could not be given promotion, then the Opposite Party No.1 shall do well to convene a review DPC to consider the case of the Petitioner for giving him notional promotion to the post of Additional Director Level-II in the Selection Grade-II. Accordingly, all the financial benefits be calculated and paid to the Petitioner within a period of two months from the date of taking such a decision.” 6. In course of hearing, it is contended by the learned counsel for the Petitioner that the PAR in respect to the Petitioner has already been submitted with the employer. But the authority did not take the same for consideration. Page 5 of 7 Learned counsel for the Petitioner also drew the attention of this Court to the different provisions made in the “Guidelines for Recording and Maintenance of PARs of Group-A Officers of the Government”, which contains the different circulars issued by the Government of Odisha, General Administrative (S.E.) Department as furnished under Annexure-8. 7. Mr. D. Mohanty, learned AGA, however, contended that as per Annexure-7, the case of the Petitioner was considered and rejected on the ground that the PAR was not furnished by the Petitioner. 8. It is not in dispute that the Petitioner has retired from the services w.e.f. 31.07.2019 and hence the question of submission of PAR at this stage is not possible. Be that as it may, having regard to the guidelines submitted under Annexure-8, the employer is not debarred from considering the promotional aspect of the Petitioner keeping in view his past credentials. As such, while disposing this Writ Petition, it is directed that the order under Annexure-7 passed by the Opposite Party No.1 being not in consonance with the guidelines and the observation made by the coordinate Bench of this Court in W.P.(C) No.23631 of 2023, the same is hereby set aside and quashed. Page 6 of 7 The Opposite Party No.1 is directed to consider the promotional aspect of the Petitioner in view of the past credentials in accordance with the guidelines under Annexure-8 by the DPC/Review DPC and communicate the result within a period of three months. Since the promotion in question will be notional, the question of further benefits in respect to the Petitioner does not arise except the pensionary benefits in view of the same. The consequential benefit, if any, shall proceed in furtherance to such notional promotion. Accordingly, the Writ Petition is disposed of. Judge (Chittaranjan Dash) AKPradhan Signature Not Verified Digitally Signed Signed by: BIJAY KETAN SAHOO Reason: Authentication Location: HIGH COURT OF ORISSA Date: 11-Feb-2025 16:40:49 Page 7 of 7