The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.2417 of 2024 Dewadutta Dhal …. Petitioner Ms. Pami Rath, Sr. Advocate -versus- State of Odisha and others …. Opp. Parties Mr. N.K. Praharaj, A.G.A. CORAM: JUSTICE A.K. MOHAPATRA Order No. ORDER 05.02.2024 01. 1. This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode).
Legal Reasoning
there is no dispute with regard to the applicability of the catch up principle for fixing the inter se seniority among the officers while preparing the gradation list. The applicability of the catch up principle is governed and guided by the G.A. & P.G. Department Notification dated 11.03.2020. It is also not disputed by the parties that the same has to be taken into consideration and applied while preparing the gradation list/disposition list. // 7 // The only question that remains to be decided in the present case is as to whether the Notification dated 11.03.2020 of the G.A. & P.G. Department has been applied before preparing the final disposition list, by which, the Petitioner is aggrieved and, according to the learned Senior Counsel appearing for the Petitioner, the Petitioner has been kept below the juniors in the final disposition list. It appears that the representation filed by the Petitioner under Annexure-12 to the writ petition has not been considered by the Opposite Parties. 9. Considering the facts and circumstances of the present case and further keeping in view the fact that the Petitioner has already approached the Opposite Party No.1 by filing a detailed
Arguments
2. Heard Ms. Pami Rath, learned Senior Counsel appearing for the Petitioner as well as Mr. N.K. Praharaj, learned Additional Government Advocate appearing for the State- Opposite Parties. Perused the writ petition as well as the documents annexed thereto. 3. The present writ petition has been filed by the Petitioner with the following prayers:- “It is therefore prayed that this Hon’ble Court may graciously be pleased to admit this writ petition and issue Rule NISI calling upon the Opp. Parties to show cause and if they fail to show cause or show insufficient cause, then issue appropriate writ, order // 2 // or direction directing the Opp. Parties to: a) the order dated 21.12.2023 at Quash Annexure-13; b) c) d) Direct the Opp. Party to redraw OFS I (JB)’s seniority/disposition list by following catch-up principle and showing the Petitioner’s name above private Opp. Party No.4 and 5; Direct the Ops to consider the petitioner by giving the same relaxation as has been granted under the dated 21.12.2023 for the residency period by ignoring the shortfall of 5 days; Giving all consequential financial benefit to the said the Petitioner arising out of promotion. And pass such other/further order(s) as this Hon’ble Court may deem fit and necessary in the interest of justice.” 4. Ms. Pami Rath, learned Senior Counsel appearing for the Petitioner submitted that the present Petitioner along with the private Opposite Parties were selected for the post of Inspector of Commercial Taxes vide order dated 20.02.2003 passed by the Odisha Staff Selection Commission, Bhubaneswar. Accordingly, on 17.06.2003, the Petitioner as well as the private Opposite Parties joined against the above noted post. In the year 2005, the post of Inspector of Commercial Taxes was redesignated as Assistant Commercial Tax Officer (ACTO). While the matter stood thus, on 03.01.2012, a tentative gradation list was published. In the said gradation list, the Petitioner’s name find place at Serial No.124 as against UR Category and so far the private Opposite Parties No.4 and 5 are concerned, their names // 3 // appear against Serial No.139 and 140 respectively as against S.T. Category post. On 07.02.2014, the Petitioner as well as the private Opposite Parties No.4 and 5 were given promotion under the OTAS Rules, 2011 to the OTAS Class-II Service. 5. Learned Senior Counsel appearing for the Petitioner at this juncture submitted that the State Government under the Finance Department had restructured the Odisha Finance Service in the year 2009 and, accordingly, OTAS Service Cadre was created w.e.f. 28.02.2009. A final gradation list in respect of OTAS Officers was published on 21.08.2018 wherein the private Opposite Parties No.4 and 5 are placed at Serial No.182 and 183 respectively. She further contended that since the Opposite Parties No.4 and 5 belong to the reserved category and posts in the reserved category were available to be filled up, therefore, the Opposite Parties No.4 and 5 got promotion earlier than the Petitioner against such reserved category post for S.T. Category candidates on 30.04.2019. Learned Senior Counsel appearing for the Petitioner further referring to the notice of the G.A. & P.G. Department Notification, Government of Odisha, submitted before this Court that said department of the Government has issued a notice to all the departments instructing that before giving any promotion from any gradation list, it is incumbent upon that department to examine whether the gradation list has been correctly prepared following the catch up principle and by taking into consideration the inter se seniority that has been fixed by strictly following the catch up principle. She further submitted that the previous writ petition bearing W.P.(C) // 4 // No.32769 of 2020 filed by the Petitioner was in a different context and is not connected with the prayer in the present writ petition. While the matter stood thus, on 05.01.2021, the Petitioner was given promotion to OFS Group-A (JB). The name of the Petitioner finds place at Serial No.14. After the Petitioner got promotion, the Opposite Parties published the first disposition list on 29.04.2023 under Annexure-11 to the writ petition wherein the private Opposite Parties No.4 and 5 were placed at Serial No.162 and 163 and the Petitioner was placed at Serial No.222. Being aggrieved by such disposition list wherein the Opposite Parties have not followed the catch up principle while fixing the seniority of the Petitioner, the Petitioner submitted a representation on 16.05.2023 under Annexure-12 to the writ petition. Learned Senior Counsel appearing for the Petitioner submitted that in his representation, the Petitioner has specifically referred to the Notification/Resolution of the G.A. & P.G. Department wherein it has been prescribed to follow and apply the catch up principle while preparing the gradation list/disposition list by all the departments of the Government of Odisha. She further contended that admittedly the Petitioner being senior to the private Opposite Party No.4 and 5, by applying the catch up principle, the Petitioner should have been placed above the Opposite Parties No.4 and 5 while preparing the disposition list under Annexure-11 to the writ petition. The representation submitted by the Petitioner on 16.05.2023 under Annexure-12 was never considered. However, in the meantime the Opposite Parties took a decision on 21.12.2023 under // 5 // Annexure-13 to grant certain relaxation in exercise of power under Rule-7(1) of Odisha Finance Service Rules, 2011, thereby, as one time measure, a relaxation has been granted with regard to residency period from 6 years to 3 years to fill up the vacancies in OFS-I(SB) Grade by way of promotion. Accordingly, a list of officers was also prepared and attached to the letter dated 21.12.2023 under Annexure-13 and in the said list, although the name of the Petitioner does find place, however, he has been placed below the private Opposite Parties No.4 and 5. 6. In course of her argument, learned Senior Counsel appearing for the Petitioner, referring to the applicability of the catch up principle and the related resolutions/notifications of the Government, emphatically submitted before this Court that the authorities are duty bound to apply the catch up principle while preparing the gradation list. She further contended that so far the case of the Petitioner is concerned, although the catch up principle applies to the case of the Petitioner. However, such principle has not been made applicable while preparing the gradation list, as a result of which, the Petitioner is seriously prejudiced and he has been placed below his juniors in the gradation list which is under consideration for further promotion. 7. Learned Additional Government Advocate appearing for the State-Opposite Parties, on the other hand, contended that the Petitioner has filed a detailed representation taking therein all the grounds. It appears that after considering such representation, // 6 // the Opposite Parties have prepared the final disposition list. He further contended that there are notifications/circulars of the G.A. Department which govern the field with regard to the preparation of gradation list as well as fixation of inter se seniority. So far the present Petitioner is concerned, the Opposite Parties before publishing the final disposition list have considered the case of the Petitioner and, accordingly, the Petitioner has been placed in the final disposition list. Further, referring to the letter under Annexure-13 to the writ petition, learned Additional Government Advocate submitted that the gradation list has been prepared by taking into consideration the G.A. & P.G. Department letter dated 11.03.2020. In such view of the matter, learned Additional Government Advocate submitted that the Opposite Parties have not committed any illegality in the matter which would call for interference by this Court in exercise of its writ jurisdiction under Article 226 of the Constitution of India. 8. Having heard the learned Senior Counsel appearing for the Petitioner and learned Additional Government Advocate appearing for the State-Opposite Parties, this Court finds that
Decision
representation under Annexure-12 to the writ petition, this Court deems it proper to dispose of the writ petition at this stage by directing the Opposite Party No.1 to consider the representation of the Petitioner under Annexure-12 keeping in view the G.A. & P.G. Department letter dated 11.03.2020 and take a final decision within a period of six weeks from the date of communication of a certified copy of this order, in the event the representation has not been disposed of in the meantime. It is further directed that the Opposite Party No.1 shall make every endeavour to dispose of the representation of the Petitioner under Annexure-12 as has been directed hereinabove before the issue of promotion to the next higher post is taken up pursuant to the final disposition list under Annexure-13 to the writ petition. 10. Before parting with this order, this Court would like to // 8 // further clarify that the Opposite Parties are bound to follow the G.A. & P.G. Department Circular on applicability of catch up principle vide letter No.8543/Gen. dated 11.03.2020 as has been stated by the Opposite Party No.1 in letter dated 21.12.2023 under Annexure-13 to the writ petition. The final decision so taken be communicated to the Petitioner within ten days from the date of taking such decision. 11. With the aforesaid observation and direction, the writ petition is disposed of. Debasis ( A.K. Mohapatra) Judge Signature Not Verified Digitally Signed Signed by: DEBASIS AECH Designation: Secretary Reason: Authentication Location: OHC, CUTTACK. Date: 08-Feb-2024 19:45:42