Applications under Articles 226 & 227 of Constitution of India. Narayan Prasad Nayak .… v. State of Odisha and others
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No. 21825 of 2011 Applications under Articles 226 & 227 of Constitution of India. Narayan Prasad Nayak .…… Petitioner --------------- - Versus - State of Odisha and others ...…. Opp. Parties Advocate(s) appeared in this case:- _________________________________________________________ For Petitioners Advocates. : M/s. Dr. J.K. Lenka & P.K.Behera,
Legal Reasoning
approached this Court in W.P.(C) No.565 of 2003, which was disposed of on 26.08.2003 directing the Government to consider his case for approval of his promotion to the post of UDC. By order dated 12.03.2004, the Commissioner-cum- Secretary rejected the grievance of the petitioner on the ground that only one post of UDC is admissible to the College and further that the promotion of the senior most LDC, namely, Sri B.C. Biswal to the post of UDC and Head clerk had not yet been approved by the Government. 4. Dr. J.K. Lenka, learned counsel for the petitioner submits that the reason cited for rejection of the petitioner’s grievance no longer holds good in view of the order dated 08.08.2008 passed by the Government, whereby the promotion of B.C. Biswal to the post of Head clerk was approved w.e.f. 13.10.1985. Therefore, according to Dr. Lenka one post of UDC fell vacant as on the said date. Page 3 of 8 5. Being directed by this Court, learned State Counsel has filed the written instructions received by him indicating the admissible staff strength of College, which is as follows: Clerk-1 Senior Clerk-1 Accountant- 1 Junior Clerk-2 Junior Clerk (Block Grant)-1 6. In the additional affidavit filed by the State on 26.04.2024 it has been admitted as follows: “3. That, it is a fact that, in sequence of seniority Sri Baishnab Charan Biswal remains at 1st position Sri Narayan Prasad Nayak remains at 2nd position and Sri Arjun Charan Nayak remains at 3nd position. In view of the kind orders of the Hon’ble Court as reflected in the table above, Sri the benefit of Baishnab Charan Biswal got promotion from 04.09.1985 and Head Clerk from 01.06.1988 and Sri Arjun Charan Nayak to the post of Accountant from 03.12.1998.” the post of U.D. Clerk to 7. Thus, in view of the admitted factual position noted above to the effect that the petitioner is senior to Arjun Charan Nayak, there is no reason as to why his promotion by the Management to the post of Senior Clerk (UDC) shall not be approved at least from the date said post was available i.e. from 13.10.1985. It is further relevant to note Page 4 of 8 that the post of Accountant is at par with the post of Senior Clerk (UDC) carrying the same scale of pay i.e., Rs.1200- 2040/- as per the additional affidavit filed by the State on 16.04.2024. 8. Since this Court finds from the materials on record that one post of Senior Clerk (UDC) was available on 13.10.1985 upon approval of promotion as Head Clerk of B.C. Biswal and further that his immediate junior Arjun Charan Nayak’s promotion as Accountant was approved with effect from 03.12.1998 there is no reason why the petitioner should be discriminated. Discrimination in any form is contrary to the principles underlying Article 14 of the Constitution of India. After examining its earlier precedents, the Hon’ble Supreme Court, in Natural Resource Allocation, In re, Special Reference No 1 of 20121, concluded that: “107. From a scrutiny of the trend of decisions it is clearly perceivable that the action of the State, whether it relates to distribution of largesse, grant of contracts or allotment of land, is to be tested on 1 (2012) 10 SCC 1 Page 5 of 8 the touchstone of Article 14 of the Constitution. A law may not be struck down for being arbitrary without the pointing out of a constitutional infirmity as McDowell case [(1996) 3 SCC 709] has said. Therefore, a State action has to be tested for constitutional infirmities qua Article 14 of the Constitution. The action has to be fair, reasonable, non-discriminatory, transparent, non-capricious, unbiased, without favouritism or nepotism, in pursuit of promotion of healthy competition and equitable treatment. It should conform to the norms which are rational, informed with reasons and guided by public interest, etc. All these principles are inherent in the fundamental conception of Article 14. This is the mandate of Article 14 of the Constitution of “auction” a constitutional mandate” India. Whether Thus every state action must be fair, transparent and always guided by reasons. Any form of whimsical or capricious acts of executive is untenable under the constitutional mandate. Since nothing has been placed on record to show that the petitioner is not otherwise eligible for being promoted to the next higher post or that there exists any materials to distinguish between them, the act of state in not promoting the petitioner is prima facie arbitrary. 9. Furthermore, the seniority of the petitioner, as already explained above, entitles him to its normal incidence, i.e. promotion in service. Apart from the above settled position Page 6 of 8 of law, it was enumerated in the case of R.S. Dass v. Union of India2 that: “Where selection is made on merit alone for promotion to a higher service, selection of an officer though junior in service in preference to his senior does not strictly amount to supersession. Where promotion is made on the basis of seniority, the senior has preferential right to promotion against his juniors but where promotion is made on merit alone, senior officer has no legal right to promotion and if juniors to him are selected for promotion on merit the senior officer is not legally superseded.” Therefore, the present petitioner in the ordinary course would be entitled to such promotion, but for the inaction of the authorities and owing to such inaction he has been bypassed. It is also unfortunate that the matter remained pending with the appropriate authorities for so long resulting in retirement of the petitioner on superannuation w.e.f. 30.09.2013 without his services in the promotional post being approved. 10. Thus, on a conspectus of the analysis of facts and the discussion made thereon, this Court finds the petitioner to
Arguments
For Opp. Parties : Mr. S.N. Pattnaik Addl. Government Advocate _________________________________________________________ CORAM: JUSTICE SASHIKANTA MISHRA JUDGMENT 11th July, 2024 SASHIKANTA MISHRA, J. The petitioner has approached this Court with the following prayer: “The petitioner, therefore, most humbly prays that your Lordships would be graciously pleased to issue a Rule Nisi calling upon the Opp.parties to show cause as to Page 1 of 8 why they should not be directed to approve the promotion of the petitioner to the post of U.D.C./Sr. Clerk w.e.f. 13.10.85 and grant all differential arrear salary as due and admissible to the petitioner in the post of U.D.C./Sr. Clerk within a reasonable period. And issue any other appropriate order/direction which would afford complete relief in the facts and circumstances of the case; And if the Opp.Parties fail to show cause or sufficient cause, the rule be made absolute; And for this act of kindness, the petitioners as in duty bound shall ever pray.” 2. The brief facts of the case are that the petitioner was appointed as a Junior Clerk in H.N.S. Mahavidyalaya, Chandol on 11.03.1983. His services were approved on 08.03.1988 as per order dated 02.12.1989 under the direct payment scheme. The management promoted him to the post of Senior Clerk (U.D.C.) by order dated 13.10.1985. The petitioner’s grievance is that despite availability of the poss from that date, his promotion as Senior Clerk was never approved. Further, persons junior to him namely, Arjun Chandra Nayak was promoted as Accountant, which is a post at par with Senior Clerk (UDC) w.e.f. 03.12.1998. Such promotion was also approved with effect from the said date. Page 2 of 8 3. The petitioner made several representations for consideration of his case. Since no action was taken, he
Decision
have made out a good case for interference. The writ petition 2 1986 Supp. SCC 617 Page 7 of 8 is therefore, allowed. The Secretary to Government in the Higher Education Department is directed to retrospectively approve the promotion of the petitioner to the post of Senior Clerk (UDC) w.e.f. 13.10.1985 and to consider approval of the petitioner’s promotion to the post of Head Clerk from the date his immediate senior B.C. Biswal retired on superannuation. It is made clear that approval of promotion of the petitioner from 13.10.1985 shall be on notional basis but actual financial benefits of the promotional post shall be granted to him only from the date Arjun Charan Nayak (his immediate junior) received the financial benefits i.e., 03.12.1998 of the post of Accountant. 11. The whole exercise should be completed within a period of two months from the date of production of certified copy of this judgment by the petitioner. ……..……………………. Sashikanta Mishra, Judge Orissa High Court, Cuttack. The 11th July, 2024/ A.K. Rana, P.A. Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: PERSONAL ASSISTANT Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 24-Jul-2024 18:27:41 Page 8 of 8