The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK WP(C) No.7841 of 2024 1) Shrikant Pradhan 1) State Of Odisha 2) Board Of Revenue, Odisha 3) Collector And District Magistrate ..... ..... -versus- CORAM: Petitioner Represented By Adv. - Sameer Kumar Das Opposite Parties Represented By Adv. – D.Mohapatra, A.S.C.
Legal Reasoning
THE HON'BLE MR. JUSTICE ADITYA KUMAR MOHAPATRA Order No.
Decision
ORDER 05.04.2024 01. 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 appearing for the State. Perused the writ petition as well as documents annexed in the Writ Petition. 3. The present Writ Petition has been filed by the Petitioner with the following prayer : “Under the above circumstances it is therefore humbly prayed that the Hon'ble Court be graciously pleased to quash the order dtd: 17.08.2023 of the Opp. Party No.2 under Annexure-8 and direct the Opposite Parties to promote the petitioner to the ORS (Group-B) Cadre against the unfiled vacancies as per the advertisement/notice dtd: 18.11.2020 under Annexure-1 and to grant him all consequential service and financial benefits within a stipulated period as deem fit and proper as his case is squarely covered by the ratio decided in the case of Sh. V. Kashyap Vs. Indian Airline and others, reported in AIR 1994 SC 2128 and in the case of Kausalya Behera Vs. State of Odisha and others (W.P.(C) No.34949 of 2022 disposed of on 02.01.2023); And/or issue any other appropriate writ/writs, order/orders, direction/directions as deem fit and proper in the fitness of the case;” 4. The factual background leading to filing of the writ application in short, is that, the Petitioner has been serving as Revenue Inspector in Jharsuguda district upon being initially appointed on 25.02.2014. On 18.11.2020, the Board of Revenue, Odisha informed all the subordinate offices to recommend all the eligible employees for their promotion to the post of ORS (Group-B) Cadre post. Pursuant to the aforesaid letter dated 18.11.2020, the district office Jharsuguda recommended the name of the Petitioner along with other eligible ministerial officers vide their letter dated 10.12.2020 for consideration of their cases for promotion of ORS (Group-B) Cadre. In the meanwhile, the G.A. & P.G. Dept., Govt. of Odisha formulated and circulated a set of guideline for scrutiny of CCRs of eligible employees for promotion on 30.12.2020. While the matter stood thus, on 16.04.2021, the Board of Revenue, Odisha issued a letter to all Subordinate Offices with regard to the shortcomings in the CCRs of different persons. However, such list does not include the name of the present Petitioner. On 22.12.2021, the OPSC recommended 52 Revenue Field Staffs for promotion to ORS Group-B cadre post for the recruitment year, 2020 as against available and advertised vacancies of 75 posts. On 29.12.2021, the State Govt. vide their notification appointed 153 candidates to ORS Group-B Cadre post. However, such notification does not include the name of the present Petitioner. 5. While the matter stood thus, the Petitioner along with similarly situated other persons through their association moved the State Govt. by filing a memorandum dated 27.12.2021. Thereafter, they approached this Court by filing W.P.(C) No.3125 of 2022. This Court vide order dated 15.12.2022 the said writ application with a direction to the Opposite Party No.1 to take a decision on the representation of the Petitioner by taking into consideration Annexures-2 and 4 to the said writ application. Since this order was not implemented, the Petitioner was compelled to approach this Court by filing CONTC No.6700 of 2022. The said contempt application was disposed of 20.01.2023 by granting further time. After disposal of the aforesaid contempt application, the Secretary, Board of Revenue, Odisha vide letter dated 17.08.2023 has rejected the claim of the Petitioner on the ground that the Petitioner does not have 5 outstanding CCRs as per the selection criteria followed by the Selection Committee for promotion to the post of ORS Group-B Cadre. Being aggrieved by the order dated 17.08.2023 under Annexure-8, the petitioner has approached this Court by filing the present writ application. 6. In course of his argument, he further referring to the impugned rejection order under Annexure-8, learned counsel for the Petitioner further submitted that the Petitioner is having four outstanding CCRs from the year 2014-15 to 2018-19. So far, 2016-17 is concerned, it has been recorded “no remark”. He further contended that the Reporting Authority has not given any opinion in the CCR of the Petitioner. In such view of the matter, learned counsel for the Petitioner submitted that the Petitioner cannot be held responsible for non-recording of any remark (“no remark”) in his CCR, w.e.f. the year 2016-17 by the Reporting Officer. He further contended that in view of the settled position of law, the Opposite Parties should have taken into consideration the immediately Preceding Year in the CCR under consideration i.e. CCR for the year 2013-14 to consider the case of the Petitioner. However, such practice has not been followed in the case of the Petitioner, as a result of which the Opposite Parties have committed an illegality in rejecting the claim of the Petitioner. 7. Learned counsel for the Petitioner further referred to the judgment of the Hon’ble Supreme Court in Sh. V. Kashyap & anr. vs. Indian Airlines & ors. reported in AIR 1994 SC 2128. It was contended that in para-5 of the aforesaid judgment the Hon’ble Supreme Court has categorically expressed that non-writing of two APRs was due to ‘lapse and fault of respondent No.1’. Therefore, the respondent could not have taken any advantage of their own fault & in such circumstances the Hon’ble Apex court has varied from the view of the concerned High Court and allowed the appeal by directing the Opposite Parties to take the immediately preceding year’s APR into consideration while considering the case of the Petitioner in that case for promotion. He also referred to the order of this Court in Smt. Kausalya Behera vs. State of Odisha & ors. in W.P.(C) No.34949 of 2022 disposed of on 02.01.2023 wherein this Court while referring to the judgment in Sh. V.Kashyap’s case (supra) had taken a similar view. 8. Learned Additional Standing Counsel appearing for the State, on the other hand, contended that the Opposite Parties have not committed any illegality in passing the impugned rejection order under Annexure-8 to the writ application. He further contended that one of the criteria fixed by the Selection committee for promotion to ORS Group-B Cadre post was that there should be five years of outstanding CCR. Since the Petitioner did not posses five years of outstanding CCR for consideration, the case of the Petitioner has not been considered by the DPC and as such no fault can be found with the DPC in rejecting the case of the Petitioner. In such view of the matter, learned counsel for the State submitted that the Opposite Parties have not committed any illegality which would call for intervention of this Court in the impugned rejection order dated 17.08.2023 under Annexure-8 to the writ application. 9. Having heard the learned counsels appearing for the respective parties, on a careful consideration of the background facts as well as materials on record, this Court is of the opinion that the only issue that is required to be adjudicated in the present case is as to whether the Opposite Parties have followed the correct procedure while considering the case of the Petitioner for promotion to the next higher rank. It appears from the record that the selection committee had fixed a criteria that five years of outstanding CCRs is an essential requirement to consider the case of the Petitioner and similarly situated persons for promotion to the post of Group-B Cadre. Since the Petitioner was not having five outstanding CCRs within the period which was taken into consideration, his case has not been considered and accordingly the same has been rejected vide the impugned order under Annexur-8. On a close scrutiny of the order under Annexure-8 it appears that the CCRs from the year 2014-15 to 2018-19 of the Petitioner were taken into consideration. Out of which the Petitioner is having four outstanding CCRs. So far the year 2016-17 is concerned, no remark was given by the Reporting Officer. As a result of which, the Petitioner’s record fell short of the required five outstanding CCRs which is the basic criteria for considering his case for promotion to the ORS Group-B Cadre post. 10. On a careful analysis of the factual background of the present case as well as the submissions made by learned counsels for the parties further keeping in view the judgments referred to hereinabove, this Court is of the view that the fault of not giving any opinion on the CCR cannot be attributed to the Petitioner. The Reporting Officer should have given his opinion pursuant to the circular of the G.A. & P.G. Dept. Since the Reporting Officer has not given any comments on the CCRs with regard to Petitioner’s performance, the Petitioner cannot be made to suffer for such inaction on the part of the Reporting Officer. Under such circumstance, the Opposite Parties should have followed the principle laid down by the Hon’ble Supreme Court in Sh. V. Kashyap’s case (supra) which has been followed by this Court in Smt. Kausalya Behera’s case (supra) and by following the aforesaid two judgments the Opposite Parties should have taken into consideration the CCR of the preceding year of the years of CCR under consideration for promotion to the post of Group-B Cadre i.e. in the year 2014-15. In such view of the matter, this Court is of the view that the impugned rejection order dated 17.08.2023 under Annexure-8 is unsustainable in law and accordingly, the same is hereby set aside. Further, the matter is remanded back to the Opposite Party Nos.1 & 2 to consider the case of the Petitioner in the light of the aforesaid analysis as well as the judgments referred to hereinabove. Further, it is directed that in the event the Petitioner approaches the Opposite Party Nos.1 & 2 along with a certified copy of today’s order within two weeks from today, the Opposite Parties shall do well to consider the case of the Petitioner as has been directed hereinabove and dispose of the grievance of the Petitioner within six weeks from the date of communication of a certified copy of this order. Any decision so taken by the Opposite Parties, be communicated to the Petitioner within two weeks from the date of taking such a decision. 11. With the aforesaid observation/direction, the writ petition is disposed of. 12. Urgent certified copy of this order be granted on proper application. Anil ( A.K. Mohapatra) Judge Signature Not Verified Digitally Signed Signed by: ANIL KUMAR SAHOO Reason: Authentication Location: High Court of Orissa Date: 06-Apr-2024 14:35:02