The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.10201 of 2021 Bijay Kumar Sahoo …. Petitioner Mr. R.N. Parija, Advocate State of Odisha and Others -versus- …. Opposite Parties Mr. M.R. Mohanty, AGA CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY ORDER 19.08.2025 Order No. 10. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode. 2. Heard learned counsel for the parties. Memo containing various document so produced in Court be kept in record. 3. The present Writ Petition has been filed inter alia challenging order dated 04.03.2021 so passed by O.P. No.2 under Annexure-1. Vide the said order, claim of the petitioner to get further benefit of promotion at par in the cadre of Assistant Section Officer (ASO) with all service and financial benefit was rejected. 4. It is the case of the petitioner that the petitioner was initially engaged as a Lightman which is a group-D post in the I & P.R. department vide order dated 13.03.1991 under Annexure-4. Pursuant to the said order, petitioner joined as against said Group-D post of Lightman on 13.03.1991. // 2 // 4.1. It is contended that such post of Lightman was created by the Govt. in the I & P.R department vide letter dated 08.02.1990 under Annexure-5. It is contended that while so continuing, Govt. in the I & P.R department vide letter dated 05.05.2006, directed the petitioner and another person to furnish their applications for their promotion to the post of Junior Assistant. Petitioner accordingly complied the said request by making an application under Annexure-5 series. 4.2. However, when such claim of the petitioner was rejected by the Govt. in the Home Department vide letter dated 18.10.2006 under Annexure-8, petitioner approached the Tribunal by filing O.A. No.1368 of 2006. The Tribunal disposed of the matter vide order dated 31.10.2006 under Annexure-9 with the following direction:- I deem to dispose of “Since the matter is still pending with the authority, this it proper application with a direction upon the respondent No.1 to treat the present application as the representation of the applicant and to dispose of the same by a speaking order within three months from the date of communication of this order along with the application and to communicate the result to the applicant within three weeks thereafter. It is clarified that if the case of the present applicant is not forwarded to the DPC to be held within the stipulated period one promotional post is to be kept vacant till a decision is taken on the representation.”
Legal Reasoning
4.3. Learned counsel for the petitioner contended that claim of the petitioner to get the benefit of promotion to the rank of Junior Assistant when was rejected vide Page 2 of 12 // 3 // order dated 18.05.2007 under Annexure-10, petitioner challenging the said order, again approached the Tribunal by filing O.A. No.934 of 2007. The said original application was disposed of vide order dated 21.06.2013 under Annexure-12 with the following direction:- “Perusal of the records, particularly the post creation order and clarification received today indicates that such post has been created in the Secretariat cadre, i.e. I &PR department and not under the Directorate of Information and Public Relations. Hence, there can be no cogent reason to deny the applicant the opportunity for consideration for promotion as per Annexure-4 against 5% quota provided in Rule-12 A(1) of the OMS(Method of Recruitment and Conditions of Service of Junior Assistants in offices of Departments and Secretariat) Rules, 1951. Hence a review DPC be convened for considering the case of the applicant for promotion, as per records places before DPC pursuant to which order no.20515/C.C. dated 26.4.1979 was passed promoting juniors of the applicant to the rank of Class-III posts. Such review DPC be held within a period of one month from the date of receipt and in case the applicant is deemed suitable for promotion he may be promoted accordingly notional basis with retrospective effect from the date his juniors were promoted on a notional basis. Actual financial benefits shall, however be extended to the applicant only from the date he assumes higher charge.” 4.4. It is contended that order passed by the tribunal under Annexure-12, though was assailed before this Court in W.P.(C) No.15930 of 2014, but the same was dismissed vide order dated 06.08.2015. 4.5. It is contended that in terms of the order passed under Annexure-12, Review DPC was conducted on 04.05.2016 and 11.05.2016 under Annexure-I/1 and in the said Review DPC, recommendation was made for creation of one Supernumerary post of Junior Assistant Page 3 of 12 // 4 // in the Secretariat in order to extend the benefit of promotion to the petitioner. The finding of the Review DPC so reflected in Para-7 and 8 reads as follows:- “7. It is found that no such Vigilance case or Departmental Proceeding is reported to be pending against Sri Bijay Kumar Sahoo, Lightman, I&PR Deptt by the time of consideration for promotion. The Review DPC considered the case of Sri Sahoo and fond him suitable for promotion to the erstwhile Junior Assistant Post. He has now secured 24 marks out of the total 50 marks and occupied 7th position in the revised select list in order of merit along with Sri Smita Ranjan Pattanayak who was earlier secured 24 marks and at 7th position in the pre-revised merit list and promoted vide O.O No.47273/CC dt.01.10.2007. As such securing 24 marks two persons occupied 7th position in the revised select list as per their merit as follows:- 1. Sri Srikant Kumar Harichandan. 2. Sri Ramesh Chandra Dalai. 3. Sri Niranjan Rana. 4. Sri Braja Kishore Mohanty. 5. Sri Rabindra Kumar Swain. 6. Sri Laxmidhar Mallia. 7. (a) Sri Smita Ranjan Pattanayak (b) Sri Bijay Kumar Sahoo 8. In order to give promotion to Sri B.K. Sahoo in compliance to the courts order, it needs creation of one supernumerary post of Jr. Asst. in the Secretariat since all the induction promotion quota i.e. 7 (seven) posts of Jr. Asst. for the year ending 2005 has already been exhausted.” 4.6. Learned counsel for the petitioner contended that on the face of such recommendation made by the Review DPC in its proceeding dated 04.05.2016 and 11.05.2016 vide Annexure-I/1, Govt. in the I and PR department vide its communication dated 21.06.2016 Page 4 of 12 // 5 // under Annexure-2, created one Ex-cadre post of Junior Assistant and petitioner was promoted to the said post of Junior Assistant (Ex-Cadre) vide office order dated 24.06.2016 under Annexure-3. Subsequently, vide order dated 08.07.2016 under Annexure-16, petitioner was appointed as a Jr. Asst. on promotion retrospectively w.e.f. 01.10.2007 on notional basis and financial benefit was extended from the date of order. 4.7. Learned counsel for the petitioner contended that taking into account the recommendation of the DPC so made in its proceeding dated 04.05.2016 and 11.05.2016 under Annexure-I/1, petitioner should have been promoted to the post of Junior Assistant by creating one Supernumerary post of Jr. Assistant. But in order to deprive the petitioner to get the benefit of promotion to the post of Jr. Asst. and further promotion as due and admissible, an Ex-cadre post of Jr. Asst. was created vide Annexure-2 and petitioner was appointed as such vide order dated 24.06.2016 under Annexure-3. But in the said order, it was clearly indicated that petitioner was given such benefit from the date other similarly situated employee namely Smita Ranjan Pattanayak was so promoted to the post of Junior Assistant on regular basis vide order dated 01.10.2007. 4.8. It is contended that petitioner finding no alternative though accepted such offer and joined on 19.07.2016 vide Annexure-17, but in the said joining Page 5 of 12 // 6 // report, it was clearly indicated that petitioner is joining in the post of Jr. Assistant (Ex-cadre) without prejudice to his claim. Contents of joining letter so available under Annexure-17 reads as follows:- of “In pursuance No.6790 dt.08.07.2016 without prejudice of my claim I beg to joining in my duty i.e. today on 11.07.2016 forenoon in AVP Section of I & PR Deptt. and obliged.” Letter 4.9. Learned counsel for the petitioner contended that since petitioner was found eligible and entitled to get the benefit of promotion to the post of Junior Assistant in the Review DPC, but because of the creation of an Ex-cadre post of Jr. Assistant vide Annexure-2, petitioner was deprived to get the benefit of merger in the cadre of Asst. Section Officer, on merger of the post of Sr. Assistant, Jr. Asst. into the cadre of ASO in the Secretariate. 4.10. Accordingly, petitioner after joining in the Ex- cadre post, raised his claim to extend him with the benefit as has been extended in favour of similarly situated employee namely Smita Ranjan Pattanayak. But claim of the petitioner was rejected vide order dated 04.03.2021 under Annexure-1 on the ground that it is a delayed claim and petitioner without any objection since accepted the offer of appointment issued on 24.06.2016 under Annexure-3, no further claim can be entertained. Page 6 of 12 // 7 // 4.11. Learned counsel for the petitioner contended that since on the face of the recommendation made by the DPC under Annexure-I/1, instead of creating a Supernumerary post of Jr. Assistant, an ex-cadre post was created and petitioner joined without prejudice to his right, it cannot be held that petitioner without raising any objection, accepted the offer of appointment issued on 24.06.2016 under Annexure-3. 4.12. It is also contended that immediately after such joining without prejudice to his claim, petitioner made various applications inter alia with the prayer to extend him the benefit as has been extended in favour of Smita Ranjan Pattanayak. But without proper appreciation of the same, O.P. No.2 rejected the claim vide the impugned order dated 04.03.2021 under Annexure-1. 4.13. It is accordingly contended that on the face of the recommendation made by the DPC in its proceeding under Annexure-I/1 and joining of the petitioner without prejudice to his claim so reflected under Annexure-17, the ground on which petitioner’s claim was rejected is not sustainable in the eye of law and petitioner is eligible to get all such benefit as has been extended in favour of Smita Ranjan Pattanayak. 5. Learned Addl. Govt. Advocate on the other hand placing reliance on the stand taken in the counter affidavit, contended that petitioner while continuing as Page 7 of 12 // 8 // against the post of Light Man, which is a group-D post, raised his claim to get the benefit of promotion to the rank of Jr. Asstistant. The same was rejected by the Govt., on the ground that no such post of Light man is available and petitioner’s very appointment as against the post of Light man is not in accordance with law. 5.1. However, considering the direction issued by the Tribunal in O.A. No.934 of 2007 under Annexure-12 and basing on the recommendation made by the DPC in its proceeding dated 04.05.2016 and 11.05.2016 under Annexure-I/1, Govt. created an Ex-cadre post of Junior Assistant vide Notification dated 21.06.2016 under Annexure-2. Basing on such recommendation of the DPC, petitioner was appointed on promotion to the post of Junior Assistant (Ex-cadre) vide order dated 24.06.2016 under Annexure-3. Since petitioner without raising any objection to such appointment on promotion against an Ex-cadre post of Jr. Assistant joined in the said post on 19.07.2016 under Annexure- 17, petitioner is not permitted to raise any further claim. 5.2. It is also contended that while creating the post vide communication dated 21.06.2016 under Annexure-2, it was clearly indicated that the post will be kept as an Ex-cadre post till retirement of the petitioner and after such retirement, the post will be abolished. Page 8 of 12 // 9 // 5.3. It is accordingly contended that since petitioner without any objection accepted the offer of promotion and appointment as against the post of Jr. Assistant (Ex-cadre) so issued vide office order dated 24.06.2016 under Annexure-3 and further order issued on 08.07.2016 under Annexure-16, no further claim of the petitioner is entertainable. It is accordingly contended that petitioner’s claim has been rightly rejected vide the impugned order under Annexure-1. 6. Having heard learned counsel for the parties and considering the submissions made, this Court finds that petitioner while continuing as against a Group-D post (Light Man), Govt. in the I & PR Department invited applications to promote such Group-D employees as against the post of Junior Assistant vide Annexure-6 communication dated 05.05.2006. 6.1. As further found, post of Light Man was also created by the Govt. in the I & PR Department vide its communication dated 08.02.1990 under Annexure-5. Even though petitioner pursuant to Annexure-6, made his application to get the benefit of promotion to the rank of Junior Assistant and he was recommended vide Annexure-7, but the same was rejected by the Govt. in the Home Department-O.P. No.1 vide Annexure-8. 6.2. Even though the Tribunal vide order dated 31.10.2006 under Annexure-9, directed for consideration of the petitioner’s claim, but the same Page 9 of 12 // 10 // was rejected vide order dated 16.05.2007 under Annexure-10. Challenging such order, when petitioner approached the Tribunal by filing O.A. No.934 of 2007, the Tribunal vide order dated 21.06.2013 under Annexure-12, passed an order to conduct a Review DPC and to consider the eligibility of the petitioner to get the benefit of promotion to the rank of Jr. Assistant with retrospective effect from the date his junior was so promoted on notional basis. 6.3. As found, in terms of the said order so confirmed by this Court in W.P.(C) No.15930 of 2014, a Review DPC was conducted on 04.05.2016 and 11.05.2016 vide Annexure-I/1 and in the said Review DPC, a clear recommendation was made in favour of the petitioner for creation of a Supernumerary post of Junior Assistant in the Secretariat and to accommodate the petitioner as against the said post. 6.4. But as found, on the face of the recommendation made by the DPC, Govt.-O.P.No.3 created an Ex-cadre post of Jr. Assistant vide notification dated 21.06.2016 under Annexure-2. Basing on such notification, petitioner was promoted vide office order dated 24.06.2016 as against the post of Junior Assistant Ex- cadre but on notional basis w.e.f. 01.10.2007. Even though petitioner in terms of the said order and further order passed on 08.07.2016 under Annexure-16, joined on 19.07.2016 as found from Annexure-17, but petitioner joined as such without prejudice to his claim. Page 10 of 12 // 11 // 6.5. In view of the aforesaid analysis, it is the view of this Court that in terms of the order passed by the tribunal under Annexure-12, further confirmed by this Court in W.P.(C) No.15930 of 2014 and the recommendation of the Review DPC under Annexure- I/1 one Supernumerary post of Jr. Assistant should have been created to extend the benefit of promotion in favour of the petitioner. But in clear violation to the order passed by the tribunal, so confirmed by this Court and the recommendation of the Review DPC under Annexure-I/1, one post of Jr. Assistant (Ex- cadre) was created vide notification dated 21.06.2016 under Annexure-2. 6.6. Therefore, it is the view of this Court that the ground on which petitioner’s claim was rejected vide the impugned order dated 04.03.2021 under Annexure- 1 is not sustainable in the eye of law. While quashing the said order, this Court remits the matter to O.P. No.2 to take a fresh decision on the claim of the petitioner taking into account the observation of this Court as made hereinabove. Such a fresh decision be taken within a period of 2 (two) months from the date of receipt of this order. If on such consideration, it will be found that the petitioner is otherwise eligible to get the benefit as prayed for, consequential follow up action be also taken within a further period of 2 (two) months. However, all such benefit be extended on notional basis only. Page 11 of 12 // 12 // 7. The Writ Petition stands disposed of accordingly with the aforesaid observation and direction. (Biraja Prasanna Satapathy) Judge Basudev Signature Not Verified Digitally Signed Signed by: BASUDEV SWAIN Designation: SR. STENO Reason: Authentication Location: High Court of Orissa, Cuttack Date: 22-Aug-2025 18:32:03 Page 12 of 12