The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.8272 of 2023 An application under Articles 226 and 227 of the Constitution of India. Dr. Debi Shankar Acharya State of Odisha & others -versus- . Petitioner Mr. D. Panda, Advocate . Opp. Parties Mr. T. Pattnaik, A.S.C. CORAM: JUSTICE A.K. MOHAPATRA _____________________________________________________ Date of hearing : 24.03.2023 | Date of Judgment: 31.03.2023 ______________________________________________________ A.K. Mohapatra, J. : 01.
Legal Reasoning
before the review DPC as has been directed by this Court in the matter of Tushar Ranjan Mishra vs. State of Odisha & others in W.P.(C) No.168 of 2023. Further, in the event it is found that the petitioner is otherwise eligible to get promotion then the petitioner be given notional promotion to the next higher post against any available vacancies. On such basis the pay of the petitioner be re-fixed and all consequential as well as financial and retiral as well as pensionary benefits be calculated on such re- fixed scale of pay within a period of three months from the date of taking such a decision. // 7 // 11. With the aforesaid observations/ directions this writ petition is allowed. However, there shall be no order as to cost. Orissa High Court, Cuttack The 31st of March, 2023/ Anil. (A.K. Mohapatra) Judge
Arguments
Heard Mr. D. Panda, learned counsel appearing for the petitioner as well as Mr. T. Pattnaik, learned Addl. Standing Counsel appearing for the State-Opposite Parties. Perused the writ application as well as the documents annexed thereto. 02. The present writ application has been filed by the petitioner with the following prayer:- “It is therefore humbly prayed that this Hon’ble Court may graciously be pleased to allow this writ petition, quash the impugned order dtd.21.10.2022 passed by the Opposite Party No.1 under Annexure-12, and direct the Opposite Parties to give promotion to the petitioner to the rank of Class-I (Senior) Branch Medical Officer in the OMHS Cadre with a retrospective effect from the date his juniors got promotion; And further direct the Opposite Parties to sanction all financial and other benefits pertaining to such retrospective promotion from the date his immediate // 2 // junior Dr. Bhanja Kishore Khandei Opposite Party) got promotion; And further pass any order/orders, direction/directions as this Hon’ble Court may deem fit and proper.” (Proforma 03. It is submitted by learned counsel for the petitioner that the petitioner was initially appointed in the post of Assistant Surgeon in the OMHS Cadre vide notification dtd.16.05.1984. On 04.10.2010, the Opposite Party No.1 convened a DPC Meeting for consideration of promotion of Class-I (Junior) Medical Officer to the rank of Class-I (Senior) OMHS Cadre. Accordingly, the name of the petitioner along with other candidates were sent to the DPC. Names were recommended for consideration for promotion to the rank of Class-I (Senior) of OMHS Cadre. It is further submitted by learned counsel for the petitioner that on 11.02.2021, the Opposite Party No.1 requested the GA Department to furnish the CCR of Medical Officers for consideration of their case for promotion to the rank of Class-I (Senior) Branch. However, due to non-availability of the CCR/PAR of the petitioner, the DPC did not consider the case of the petitioner. However, the Private-Opposite parties got promotion vide Notification No.2/2010. On 18.10.2011 a provisional gradation list was prepared by Opposite Party No.1 by following the catch up principle in which the name of the petitioner finds place at Sl. No.5. 04. While the matter stood thus, the Opposite Party No.4 forwarded the CCR of the petitioner for the year 2008-09 to 2010- 11 to Opposite Party No.2 vide letter dtd.13.12.2011. However, it is further submitted by learned counsel for the petitioner that the same was not received in the confidential section as per the acknowledgement dtd.08.05.2012. On 10.05.2012, the Opposite Party No.4 again forwarded the CCR of the petitioner to Opposite // 3 // Party No.2. The aforesaid letter along with CCR of the petitioner was duly received by the Office of Opposite Party No.2 in the confidential section on 11.05.2012. On 21.05.2012, the Opposite Party No.3 also forwarded the CCR/PAR of the petitioner and other (Junior) Medical Officer to the Opposite Party No.1 for due consideration of the case of the petitioner and others by the DPC. On 24.05.2012, the DPC was convened. However, the DPC did not consider the case of the petitioner. 05. Thereafter, the petitioner filed a representation before the Opposite Party Nos.1 & 2 on 23.07.2012 and again on 21.08.2012. Since the Authorities did not consider the representation of the petitioner, the petitioner was compelled to approach the Odisha Administrative Tribunal by filing O.A. No.3237 (C) of 2012 on 26.09.2012. After abolition of the Tribunal the O.A. was transferred to this Court and was converted and renumbered as WPC(OAC) No.3237 of 2012. This Court vide order dated 18.02.2022 disposed of the writ petition by directing the Opposite Party No.1 to consider the representation of the petitioner in accordance with law. Finally, the Opposite Party No.1 vide order dated 21.10.2022 rejected the petitioner’s prayer on the ground that since the petitioner had already superannuated from service, there is no scope of promotion to the rank of Class-I (Senior) of OMHS Cadre. 06. Learned counsel for the petitioner further contended that although the petitioner was due for promotion since in the year 2010 his case has not been illegally considered by the Opposite Party No.1. He further contended that the persons whose names were recommended along with the name of the petitioner have all been given promotion. However, the petitioner has been grossly discriminated against by the authorities. Learned counsel for the // 4 // petitioner further contended that the Opposite Parties were not justified in not considering the petitioner’s case and rejecting the same on the ground that CCR/PAR of the petitioner was not available. In the said context, learned counsel also submitted that since the GA Department is the custodian of the CCR/PAR, the opposite parties could not have rejected the case of the petitioner for promotion on the ground that CCR/PAR of the petitioner for the relevant period was not available before the DPC for consideration. 07. He further submitted that non-consideration of the petitioner’s case for promotion to the next higher rank and not giving the petitioner promotion seriously affects his right and that the petitioner is also prejudiced as deprived of receiving the service and financial benefits on such promotion, which he was legally entitled to during his service career. Therefore, rejection of the representation of the petitioner on the ground that he has retired in the meantime is not legally sustainable, accordingly, the petitioner has approach this Court by filing the present writ application. 08. Learned Addl. Standing Counsel for the State, on the other hand submitted that the Departmental Promotion Committee has not committed any illegality in not considering the case of the petitioner as the CCR/PAR of the petitioner in respect of the relevant period were not available before them for consideration. Therefore, the case of the petitioner for promotion was deferred. Further when the DPC was convened on the next occasion. The case of the petitioner also could not be considered in the absence of the CCR/PAR. He further submitted that by the time CCR/PAR was made available the petitioner had retired from service by then. In such view of the matter, learned Addl. // 5 // Standing Counsel for the State submitted that the Opposite Parties have not committed any illegality in rejecting the representation of the petitioner vide order 21.10.2022. 09. Having heard the learned counsels for the parties and upon a careful consideration of the contention raised by them and further on a careful analysis of the background facts of the present case, this Court is of the considered view that the opposite parties should have considered the case of the petitioner for promotion along with others. Non-consideration of the petitioner’s case amounts to discrimination and such conduct of the Opposite Parties are contrary to the principles envisage in Article 14 and 16 of the Constitution of India. This Court, at this stage, also considered the order passed in the matter of Tushar Ranjan Mishra vs. State of Odisha & others in W.P.(C) No.168 of 2023 disposed of on 20.01.2023. While considering a similar matter this Court disposed of the said writ application by directing the authorities to provide CCR of the petitioner for the relevant period to be considered by the DPC and further a direction was given to convene a review DPC to consider the case of the petitioner in that case. In the aforesaid case, this Court had also directed to restore the Seniority of the petitioner in the gradation list and all consequential service and financial benefits be calculated against the promotional post and the same be paid to the petitioner within a stipulated period of time. While deciding the aforesaid matter this Court has referred to the Judgment of the Hon’ble Supreme Court in the case of Sh. V. Kashyap and another vs. Indian Airlines and others, reported in AIR 1994 SC 2128 and another order of this Court in the case of Kausalya Behera’s case in W.P.(C) No.34949 of 2022. Further referring to aforesaid judgment this Court has come to a definite conclusion // 6 // that non-availability of CCR/PAR cannot be a ground to deny the promotion which the petitioner is otherwise entitled to. In the event, the CCR/PAR of any particular employee is not available, then by following the law laid down by the Hon’ble Supreme Court, the authorities should have considered the CCR/APR of the previous years immediately preceding the year for which the CCR/APR was not available before the authority. 10. In view of the aforesaid analysis of facts as well as law this Court is of the considered view that the impugned order of rejection dtd.21.10.2022 under Annexure-12 is unsustainable in law. Therefore, the same is hereby set aside. Further, the matter is remanded back to the Opposite Party No.1 to consider the matter afresh by taking into consideration the above noted judgment and orders passed by this Court. Learned counsel for the petitioner is directed to approach the Opposite Party No.1 with a certified copy of this order along with judgment referred to hereinabove. In the event, the petitioner approaches the Opposite Party No.1 within a period of three weeks from today, the Opposite Party No.1 shall do well to convene a review DPC and place the matter