The High Court
Case Details
Order No. 01. IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.6436 of 2024 Manoj Kumar Majhi State of Odisha & others -versus- …. Petitioner Dr.J.K.Lenka, Advocate
Legal Reasoning
…. Opposite Parties Mr. D. Mohapatra, A.S.C. CORAM: JUSTICE A.K. MOHAPATRA
Decision
ORDER 21.03.2024 1. This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode). 2. Heard learned counsel for the Petitioner as well as learned Additional Standing Counsel for the State-Opposite Parties. Perused the writ application as well as the documents annexed thereto. 3. The Petitioner has filed the present writ application with the following prayer: “The Petitioner, therefore, most humbly prays that Your Lordship would be graciously pleased to issue rule nisi calling upon the opp. Parties to show cause as to why the State Opp. Parties should not be directed to promote the Petitioner to the rank of OAS, Group-A (JB) from 31.03.2018 by modifing the promotion order dated 09.01.2024 at Annexure-6 and seniority of the Petitioner be fixed below Pramod Kumar Dalabehera at Serial No. 554 and above Victoria Ekka (Op. No-4) in the rank of OAS, Group-A (JB). And further pleased to declare that, the petitioner who is senior in ORS Cadre than O.P Nos. 4 & 5 is entitled to get promotion on notional basis in the Cadre of OAS Group-A (JB) w.e.f. 31/03/2018 in the Cadre of OAS Group- A (SB) w.e.f. 01/10/2022 with all consequential and financial benefits and also entitled seniority over the said Opp. Parties 4 & 5. And if the Opp. Parties fail to show cause or sufficient // 2 // cause, the rule be made absolute. And further be pleased to issue any other appropriate writ or order/orders, as may be deemed fit and proper in the interest of justice.” 4. It is submitted by learned counsel for the Petitioner that earlier the Petitioner approached this Court by filing WPC (OAC) No.3119 of 2014 by challenging the order dated 21.09.2014 under Annexure- 9, further, for a direction to the Opposite Parties to restore the seniority of the Petitioner by giving him notional promotion and to appoint the Petitioner to the post of ORS Group-B by holding a special DPC/ review DPC and to recommend the name to Govt. for such promotion against recruitment of year 2011. This Court vide order dated 07.12.2022 disposed of the writ application, by a detailed order. The relevant portion of the order is quoted hereinbelow:- “Non-consideration of Petitioner's case for promotion amounts to discrimination. Having heard learned counsel for the respective parties and upon careful consideration of the rival contentions, further in view of the analysis made herein above, this Court is of the considered view that the Petitioner should have been promoted to ORS Group-B post with effect from the recruitment year 2011 along with other similarly situated candidates. Hence, the Opposite Parties are directed to give promotion to the Petitioner to the post of ORS Group- B service in the manner it has been done in the case of Prasanta Kumar Panda and accordingly the seniority of the Petitioner be refixed in the gradation list. Further, it is directed that pursuant to the aforesaid direction for promotion all consequential service and financial benefits be calculated and disbursed in favour of the Petitioner within a period of three months from the date of communication of this order. It is however made clear that for the purpose of seniority the Petitioner shall be given promotion notionally from the recruitment year 2011. However all financial benefit shall be calculated and paid to the Petitioner with effect from the date he actually joins in the promotional post.” // 3 // 5. On perusal of the aforesaid operative portion of the order it appears that the Opposite Parties were directed to give promotion to the Petitioner to post of ORS (Group-B) service in the manner it has been done in case of Prasanta Kumar Panda and accordingly the seniority of the petitioner be re-fixed in the gradation list. A further direction was also given to grant all consequential, service and financial benefits to the Petitioner upon such promotion within a period of three months. This Court further clarified that for the purpose of the seniority, the Petitioner shall be given promotion notionally from the recruitment in the year, 2011. However all financial benefits shall be calculated and paid to the Petitioner with effect from the date he actually joins in the promotional post. 6. Pursuant to the aforesaid order, the Opposite Parties considered the case of the Petitioner and vide order dated 08.09.2023 under Annexure-3 on the recommendation of the Review selection committee and subsequent concurrence of the OPSC, the Petitioner was appointed to ORS Group-B cadre against the vacancies of the year 2011 notionally w.e.f. 20.10.2023 i.e. the date of joining of his junior, Sri Ratnakar Kandi in ORS cadre and consequent upon such appointment, his inter-se-seniority in ORS cadre was fixed above Sri Ratnakar Kandi (Sl. No.137) and below Sri Pramod Kumar Dalabehera (Sl. No.136). In the tentative gradation list published vide Revenue & D.M. Dept. on 13.11.2017. 7. The sole grievance of the Petitioner in the present writ application is that, although the order passed by this Court has been worked out, the Petitioner has not been considered for further promotion while considering the case of one, Victoria Ekka and Pramod Kumar Nayak whose names find places at Sl. No.138 and 143 respectively in the gradation list. It was contended that the above named two persons were given promotion pursuant to notification // 4 // dated 31.03.2018 under Annexure-5 to the writ application against Sl. No.39 and 40 of the list attached to the notification dated 31.03.2018. In the aforesaid context, learned counsel for the Petitioner submitted that although, the order passed by this Court was implemented, however, the Petitioner should have been given promotion w.e.f. 31.03.2018 instead of 02.11.2019 under Annexure-6 vide notification dated 09.01.2024. Being aggrieved by such conduct of the Opposite Parties, the Petitioner has approached this Court by filing the present writ application. 8. Learned Additional Standing Counsel on the other hand contended that after disposal of the earlier writ application, the case of the Petitioner was duly considered and he has been given promotion vide notification dated 09.01.2024 under Annexure-6 pursuant to the recommendation of the review selection committee with the concurrence of the OPSC. Therefore, the order passed by this Court has been carried out in letter and spirit. Further, contended that in the event Petitioner has any grievance, he should have approached the Opposite Parties before approaching this Court. Since the petitioner has not approached the Opposite Parties, learned Additional Standing Counsel that he will have no objection in the event this Court directs the Petitioner to approach the Opposite Party No.1 by filing a detailed representation taking therein all the grounds. In such eventuality the Opposite Party No.1 be directed to consider the same strictly in accordance with law within a stipulated period of time. 9. Considering the submissions made by learned counsels appearing for the respective parties, on a careful examination of the background facts as well as materials on record and further keeping in view the limited nature of the grievance, this Court deems it proper to dispose of the writ application at the stage of admission by // 5 // granting liberty to the Petitioner to approach the Opposite Party No.1 for redressal of his grievance, if any, within a period of two weeks from today. In such eventually, the Opposite Party No.1 shall do well to consider the representation of the Petitioner in accordance with law keeping in view the inter-se-seniority of the persons involved in the present case and after providing an opportunity of hearing to all. The final decision be taken by passing a speaking and reasoned order within two months from the date of communication of a certified copy of this order. The final decision so taken be communicated to the Petitioner within ten days from the date of taking such a decision. 10. With the aforesaid observation/ direction, the writ application stands disposed of. 11. Issue urgent certified copy of this order as per Rules. Anil ( A.K. Mohapatra ) Judge Signature Not Verified Digitally Signed Signed by: ANIL KUMAR SAHOO Reason: Authentication Location: High Court of Orissa Date: 27-Mar-2024 11:05:04