In the matter of an application under Articles 226 and 227 of the Constitution v. State of Odisha and Others
Case Details
HIGH COURT OF ORISSA: CUTTACK W.P.(C) No.2444 of 2022 In the matter of an application under Articles 226 and 227 of the Constitution of India. ----------- Narayan Mahali … Petitioner - Versus - State of Odisha and Others … Opposite parties For Petitioner … M/s. Sidharth Mishra, B.R. Barik, S.K. Parida & B.B. Pradhan For Opposite Parties … Mr. Tarun Pattnaik, Additional Standing Counsel -------------- PRESENT: THE HONOURABLE SHRI JUSTICE A.K. MOHAPATRA Date of hearing & judgment : 19.04.2023 A.K. Mohapatra, J. Heard Mr. S. Mishra, learned counsel appearing for the Petitioner as well as Mr. T. Pattnaik, learned Additional Standing Counsel appearing for the State-Opposite // 2 // Parties. Perused the writ petition as well as the documents annexed there to. 2. The present writ petition has been filed with a prayer to quash the rejection order under Annexure-8 and further for a direction to the Opposite Parties to consider his case for promotion to the rank of ORS, Group-B in accordance with the relevant rules and such promotion be given to him w.e.f. the date his juniors were promoted vide Notification dated 20.04.2013. Further It has been prayed that on the basis of such promotion, the pay of the Petitioner be fixed in the promotional cadre and the consequential financial benefits be released in favour of the Petitioner.
Legal Reasoning
3. Mr. S. Mishra, learned counsel appearing for the Petitioner at the outset submitted that the Petitioner, who belonged to the SC community, who was initially appointed as a Junior Clerk vide Officer Order No.10801 dated 25.11.1989 of the Collector, Cuttack and posted to Establishment Section of Collectorate, Cuttack. He further contended that at the time of entry into service although the Petitioner was having Intermediate in Arts. // 3 // Thereafter, he has done his graduation from the Utkal University, as evident from the Certificate issued by the Utkal University through the Directorate of Correspondence Courses, Utkal University indicating that the Petitioner has passed a Bachelor Degree in Arts in 1993. The Graduation Certificate issued by the Utkal University has been annexed to the writ petition as Annexure-9. 4. While working as such, the Petitioner was promoted to the post of Senior Clerk on 15.5.1994 in the office of Collector, Cuttack. Thereafter, he was further promoted to the post of Head Clerk vide order dated 13.02.2009. He further submitted at the moment that the Petitioner was working as Head Clerk in Sadar Tahasil Office, Cuttack in the scale of pay of Rs.9,300-34,000/-. In the process, he has rendered more than 25 years of service as on 01.01.2011. The Government of Odisha through Revenue and Disaster Management Department has framed a set of rules which is known as Orissa Revenue Service (Recruitment) Rules, 2011. 5. The Rule-4 of the aforesaid rules provides the Method of Recruitment and Rule-6 thereof provides the Eligibility Criteria // 4 // for promotion. Rule-6 further provides that no person shall be considered for promotion unless he or she is a graduate and has worked for at least 10 years in any one or more than one post taken together against the post indicated in the said rules and further such employee is also required to pass the departmental examination and he should not be more than 53 years for his consideration for promotion to the higher level. Learned counsel for the Petitioner referring to the aforesaid rule submitted that the Petitioner is eligible as per the conditions laid down in the recruitment rules of the Year, 2011 and was having outstanding CCRs for the previous 5 years. 6. At the relevant time, his batchmates were given promotion to the higher level. It is also contended that some of the employees, who are having no good CCRs have been given promotion ignoring the case of the Petitioner. Mr. Mishra also contended that some officers who are junior to the Petitioner have been given promotion in the meantime ignoring the legitimate claim of the Petitioner for promotion to the next higher rank. // 5 // 7. Learned counsel for the Petitioner also contended that since the Petitioner belonged to the SC Category, therefore, his case should have been considered against the reserved vacnay of the SC Category. Accordingly, the Selection Committee which was held on 04.02.2013 to consider promotion to the next higher post under the 2011 Rules, although the batchmates of the Petitioner and junior to him were given promotion, the case of the Petitioner was not recommended and considered. 8. Being aggrieved by such non-consideration, the Petitioner submitted a representation before the authorities on 07.11.2014 to consider his case for promotion to ORS, Group-B post as his juniors have been given promotion ignoring the case of the Petitioner. Since the representation dated 07.11.2014 was not considered, the Petitioner again submitted another representation 29.08.2016 by Registered Post with A.D. Since the representation were not considered, the Petitioner was compelled to approach the Odisha Administrative Tribunal by filing O.A. No.4170(C)/2016. The said O.A. was transferred to this Court after abolition of the Tribunal and renumbered as WPC(OAC) // 6 // No.4170 of 2016. A coordinate Bench of this Court vide order
Decision
dated 02.07.2021 disposed of the said O.A. directing the Opposite Party No.1 to consider the representation filed by the Petitioner taking into consideration the judgment dated 1.12.2016 passed by the Tribunal in O.A. No.2953(C) of 2013 and to pass appropriate orders in accordance with law. 9. Since the order passed by this Court was not complied with, the Petitioner was compelled to file a contempt petition bearing CONTC No.6518 of 2021, which was disposed of vide order dated 9.1.2021 granting three months’ time to comply with the order dated 02.07.2021 passed in WPC(OAC) No.4170 of 2016. 10. While the matter stood thus, the Opposite Party No.1 passed the impugned order dated 16.09.2021 rejecting the claim of the Petitioner. Mr. Mishra, learned counsel for the Petitioner further contended that in the rejection order, the authorities have taken two grounds. First, the name of the Petitioner was not recommended by the RDC (CD), Cuttack for consideration of his case for promotion to ORS, Group-B for the recruitment Year, 2011. Second, on verification from the RDC (CD), Cuttack, it // 7 // was found that the Petitioner does not possessed the requisite qualification, i.e., Graduation, which is a basic eligibility criteria in terms and conditions of Rule-6(1) of the Recruitment Rules, 2011. Further, it has been stated in the impugned rejection order that in the Service Book of the Petitioner, his educational qualification has been recorded as “Intermediate Arts”. 11. Mr. Mishra while challenging the impugned rejection order submitted that the ground on which the claim of the Petitioner has rejected are all vague and baseless. He further contended that on the basis of wrong recording in the Service Book, the Petitioner has been found not eligible for promotion, although the Petitioner has passed Graduation in the meantime and the certificate issued by the Utkal University through the Directorate of Correspondence Courses has been filed as Annexure-9 to the writ petition. 12. So far other ground with regard to non-recommendation of the case of the Petitioner is concerned, it is submitted that right to be considered for promotion has been held to be fundamental right by many landmark pronouncements of this Court as well as // 8 // the Hon’ble Supreme Court. Therefore, once it is found that the Petitioner having the eligibility of being considered the next higher rank, the authorities bound to recommend the case for consideration. It is further argued that non-consideration or non- recommendation would affect the Petitioner’s fundamental rights under Article 14 and 16 of the Constitution of India. In view of the aforesaid submission, Mr. Mishra submitted that the impugned rejection order under Annexure-8 is unsustainable in law and, therefore, the same should be quashed. 13. Mr. T. Pattnaik, learned Additional Standing Counsel referring to the counter affidavit submitted that the Petitioner was not having requisite qualification for promotion as provided under Rule-6 of the recruitment rules, 2011. He further submitted that there was a Disciplinary Proceeding against the Petitioner bearing Disciplinary Proceeding No.1506 of 2013. Further, on perusal of the counter affidavit filed by Opposite Parties No.3 and 4, it appears that they have not disputed the graduation certificate submitted by the Petitioner under Annexure-9, rather they have stated that the Petitioner had acquired such qualification after // 9 // joining in service in the year 1989 and, as such, the authorities had no scope to know about the Petitioner’s qualification and, accordingly, his case was not recommended on the ground that he has not having the requisite qualification for consideration of such promotional post. In addition to the above grounds, one ground has been taken by the Opposite Parties No.3 and 4 with regard to pendency of Disciplinary Proceeding against the Petitioner. Finally, it has been stated that such Disciplinary Proceeding No.1506 of 2013 is still pending for finalization. 14. Having heard the learned counsels for the respective parties and upon a careful consideration of the pleadings of the parties as well as the contentions raised by the learned counsels appearing for both the sides, the question that is required to be adjudicated by this Court is as to whether the Petitioner is eligible to be considered for promotion to ORS, Group-B post under the recruitment rule, 2011. In reply to the said question, this Court has no hesitation to hold that the Petitioner is/was otherwise eligible as he was having the required experience and the educational qualification although he had acquired the graduation // 10 // degree subsequently, but by the time, his case was being considered for promotion, he had the requisites eligibility for being considered for promotion to the post of ORS, Group-B. 15. With regard to non-recommendation of the name of the Petitioner by the RDC (CD), Cuttack, this Court is of the considered view that the same cannot be a ground to deprive the Petitioner of his legitimate right to be considered for promotion to the next higher post. Therefore, such a ground cannot be used against the Petitioner for non-considering his case for promotion while considering the case of promotion to ORS, Group-B post of other employees, who are either batchmates or juniors of the Petitioner. Such conduct amounts to clear discrimination of the Petitioner, according to this Court. 16. With regard to the pendency of the Disciplinary Proceeding, this Court is of the prima facie view that although the proceeding was initiated in the year 2013, however, the same is pending even till today, as it appears from the counter affidavit filed by the Opposite Parties No.3 and 4 on 15.03.2023. It is // 11 // shocking to learn that a Disciplinary Proceeding which was initiated against an employee, who is working in the Collector, Cuttack in the year 2013, is pending as of now, i.e., almost for a decade. In the said context, this Court is of the considered view that the Departmental Proceeding should have been concluded within a reasonable period of time. However, even assuming that such Disciplinary Proceeding is still pending, then the authorities cannot take a stand that the claim of the Petitioner cannot be recommended or considered for promotion to the next higher rank. 17. This Court by applying the principle of law laid down by the Hon’ble Supreme Court in the case of Union of India and others -v.- K.V. Jankiraman and Others, reported in (1991) 4 SCC 109, observed that the name of the Petitioner should have been recommended by the RDC (CD), Cuttack to the DPC concerned and the DPC should have followed the sealed cover procedure which is well established practice where there is a Disciplinary Proceeding pending against the Government employee. In such view of the matter, this Court is of the // 12 // considered view that the impugned order rejecting the representation of the Petitioner dated 16th September, 2021 under Annexure-8 is unsustainable in law. Accordingly, the same is hereby quashed. 18. Further, the Opposite Parties are directed to recommend the case of the Petitioner to the DPC for consideration as expeditiously as possible. The Opposite Parties shall do well to convene a review DPC as expeditiously as possible, preferably within one week from the date of communication of this order. The Petitioner is going to retire by the end of this month. However, the decision of the DPC shall be kept in a sealed cover subject to finalization of the Disciplinary Proceeding. The Departmental Authority, however, is also directed to expedite the Disciplinary Proceeding pending against the Petitioner and conclude the same as expeditiously as possible, preferably within ten days from today, failing which it would be presumed that the Disciplinary Proceeding has come to an end and, accordingly, it is open to the authorities to open the sealed cover and on the basis // 13 // of the recommendation of the DPC, the Petitioner may be given promotion to the next higher post. 19. Let the Petitioner approach the Opposite Parties along with a certified copy of this judgment. In the event the Petitioner approaches the Opposite Parties as directed hereinabove, the Opposite Parties shall do well to consider the case of the Petitioner keeping in view the fact that the Petitioner is going to retire by end of this month and accordingly carry out the direction given hereinabove. 20. With the aforesaid observations and directions, this writ petition stands disposed of. (A.K. Mohapatra) Judge Orissa High Court, Cuttack The 19th April, 2023/D. Aech, P.A.