The High Court
Case Details
Order No. 01. IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.2288 of 2023 Sri Tapan Chandra Das …. Petitioner Mr. Lalatendu Samal, Advocate -versus- Commissioner-cum-Secretary to Government of Odisha, Department of Social Security and Empowerment of Persons with Disabilities, Odisha Secretariat, Bhubaneswar. …. Opposite Parties Mr.T.K.Patnaik, A.S.C. CORAM: JUSTICE A.K. MOHAPATRA
Decision
ORDER 31.01.2023 1. This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode). 2. Heard learned counsel for the Petitioner and learned Additional Standing Counsel appearing for the State-Opposite Parties. Perused the wit petition as well as the document annexed thereto. 3. The present writ application has been filed with the following prayer: “In the premises therefore, it is humbly prayed that, the Hon’ble Court may graciously be pleased direct the Opposite Party No.1 to promote the petitioner to the rank of Sub-Divisional Social Security Officer (SSSO) w.e.f. 22.06.2021 with all service and financial benefits at par with Opposite Party No.5 by way of quashing the rejection order dated 17.11.2022 passed by the Opposite Party No.1 under Annexure-7 to the Writ Petition. And pass such other further order/s as appear just.” // 2 // 4. It is submitted by the earned counsel for the Petitioner that the Petitioner was initially appointed as Social Education Organizer on 09.05.1994 under the Panchayati Raj Department and later on the post of Social Education Organizer was redesignated as Blok Social Security Officer (BSSO). While working as BSSO, the Opposite Parties have initiated a process to promote the persons from BSSO to next higher post, i.e., SSSO. Accordingly, the case of persons including the juniors to the Petitioners were considered and they were given promotion. However, the case of the Petitioner was not consider. Thereafter, the Petitioner approached this Court by filing W.P.(C) No.15838 of 2022 which was disposed of on 4.7.2022 with a direction to the Opposite Parties to consider the grievance of the Petitioner and to dispose of his representation dated 8.7.2021 within a period of four weeks. It is further submitted that the authorities although consider the representation, but on vague ground they have rejected the claim of the Petitioner vide order dated 17.11.2022 under Annexure-7. Learned counsel for the Petitioner referred to paragraph-4 of the impugned order under Annexure-7, which read as thus:- “4. Though no vigilance Case/Disciplinary Proceedings was pending against the Petitioner Sri Tapan Chandra Das, the Selection Committee (DPC) decided to defer his case along with the cases of other 40 BSSOs due to want of adequate CCR/PAR.” 5. It is submitted by the learned counsel for the Petitioner that the case of the Petitioner has not been considered by the DPC due to want of CCR/PAR although they have clearly stated no vigilance Case/Disciplinary Case is pending gains the Petitioner. Non- consideration of the Petitioner’s case for promotion violates his rights although he cannot claim promotion as a matter of right. In the present case, although the case of the persons including some juniors // 3 // of the Petitioner were considered and they have promoted ignoring the case of the Petitioner. Moreover, this Court is of the view that delaying the promotion of the Petitioner on the ground of want of CCR/PAR is unsustainable in the eye of law inasmuch as the Opposite Parties are the custodian of CCR/records pertaining to the employees, who are working under them. 6. In the said context, learned counsel for the Petitioner 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. With reference to the aforesaid judgment, it was contended by learned counsel for the Petitioner that non-availability of the CCR and Annual Performance Appraisal (APR) report 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 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 1985-86, 1986-87 and 1987-88 which were the APRs of three preceding available years and the same would be in due compliance of guidelines in that regard. // 4 // 7. Learned Additional Standing Counsel appearing for the State- Opposite Parties submits that pursuant to direction of this Court in the earlier writ petition, the case of the Petitioner was considered and his case has been deferred due to want of CCR/PAR. However, it has also been submitted that the case of the Petitioner has not been rejected. Therefore, the case of the Petitioner is likely to be again considered in the next DPC. In such view of the matter, learned Additional Standing Counsel submitted that the Petitioner is no way prejudice and his case to be considered and, accordingly, it is submitted the present writ petition is not maintainable. 8. Considering the submission made by the learned counsel for the parties and upon a careful consideration of the materials placed before this Court as well as the documents annexed to the writ petition, this Court is of the considered view that want of CCR/PAR is not a valid ground to defer the promotion of the Petitioner. Further, the authorities should have been more careful and should have made the CCR/PAR available to the DPC while DPC was considering the case of promotion of the Petitioner. 9. In such view of the matter, the impugned order dated 17.11.2022 under Annexure-7 is set aside as the same is unsustainable in the eye of law. Further, the Opposite Party No.1 is directed to reconsider the case of the Petitioner by convening a review DPC and in the event the Petitioner is otherwise found suitable, he shall be given promotion with due seniority and all consequential benefits within a period of two months from the date of production of certified copy of this order. Further, the Opposite Party No.1 is directed to act upon production of certified copy of this order. 10. With the aforesaid observation and direction, this writ petition stands disposed of. // 5 // 11. Issue urgent certified copy of this order as per Rules. ( A.K. Mohapatra ) Judge Debasis