✦ High Court of India

In the matter of the application under Articles 226 and 227 of the Constitution v. State of Odisha and others

Case Details

IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.6925 of 2024 In the matter of the application under Articles 226 and 227 of the Constitution of India. Ashish Kumar Dash … Petitioner - Versus - State of Odisha and others … Opposite Parties Advocate(s) appeared in this case:- --------------------------------------------------------------------------------------- For Petitioner … M/s.Prasanta Kumar Mishra, K.L. Kar, S. Mishra. For Opposite Parties … Smt. Siva Mohanty, Additional Standing Counsel. (For O.P. Nos.1 to 3) --------------------------------------------------------------------------------------- PRESENT: THE HONOURABLE SHRI JUSTICE ADITYA KUMAR MOHAPATRA Date of hearing -19.03.2025 : Date of judgment - 02.04.2025 Aditya Kumar Mohapatra, J. The above named Petitioner has filed the present writ petition with a prayer to quash the impugned order dated 26.07.2023 passed by the Joint Secretary to Government of Odisha, Home Department, under Annexue-8, and further for a direction to the Opposite Parties to consider and Page 1 of 15. promote him to the post of Administrative Officer w.e.f. 11.07.2022, i.e. the date on which his immediate junior i.e. Opposite Party No.4 got such promotion under Annexure-4 in terms of G.A. & P.G. Department O.M. dated 04.03.2020 under Annexure-11, keeping in view the fact that the Petitioner has already been exonerated from the disciplinary proceeding vide order dated 15.03.2021 under Annexure-2 to the writ petition. Further, the Petitioner has prayed for all consequential service and financial benefits consequent upon his promotion to the post of Administrative Officer. 2. Bereft of all unnecessary details, the case of the Petitioner is a condensed form, is that the Petitioner on being selected through a regular process of selection, was appointed as a Junior Assistant on 27.11.1987. Accordingly, he joined in duty on the very same day. While working as such, the Petitioner got promotion to the post of Senior Assistant and subsequently to the post of Section Officer. While working as a Section Officer, a disciplinary proceeding was initiated against the present Petitioner vide Memorandum dated 04.12.2018. While the Petitioner was facing Disciplinary Proceeding, a D.P.C. was Page 2 of 15. convened to consider promotion of Section Officers to the post of Establishment Officer. Since the Petitioner was entangled in the Disciplinary Proceeding, the case of the Petitioner was considered by the DPC along with other employees, including his junior like Opposite Party No.4, and the fate of the Petitioner was kept in a sealed cover. As a result, due to the pendency of the aforesaid Disciplinary Proceeding, the Petitioner was not given promotion by opening the sealed cover whereas his junior like the Opposite Party No.4 has been given promotion in the meanwhile on the recommendation of the D.P.C. 3. While the matter stood thus, the Disciplinary Proceeding, which was initiated against the Petitioner, was dropped vide order dated 15.03.2021 under Annexure-2 to the writ petition. Thereafter, vide order dated 10.12.2021, the Petitioner was given

Legal Reasoning

promotion to the post of E.O. prospectively. Being aggrieved by such conduct of the Opposite Parties, the Petitioner submitted his representation before the authorities to give him promotion w.e.f. 09.09.2020 when his junior got such promotion. Page 3 of 15. 4.

Legal Reasoning

Learned counsel for the Petitioner, at the outset, contended that while the representation of the Petitioner was pending for consideration, the Opposite Party No.4, who is admittedly junior to the Petitioner, was given promotion to the post of Administrative Officer w.e.f. 11.07.2022 under Annexure-4 to the writ petition. Being aggrieved by such conduct of the Opposite Party No.4, the Petitioner once again submitted another representation before the authorities. He further submitted that after considering the representation of the Petitioner, the Opposite Party No.1 vide Notification dated 20.02.2023 modified the earlier Notification dated 10.12.2021 promoting the Petitioner to the post of Establishment Officer and the promotion of the Petitioner to the post of Establishment Officer was antedated and the same was given effect from 09.09.2020. 5. In course of his argument, learned counsel for the Petitioner referred to the Notification dated 20.02.2023 under Annexure-6

Decision

to the writ petition. He further contended that the Government of Odisha determined the seniority of the Petitioner and the Petitioner was placed above his immediate junior, namely, Sri Jeebanananda Panda, who is Opposite Party No.4 to the present Page 4 of 15. writ petition. Further, the fixation of seniority under Annexure-6 has remained unassailed. Therefore, learned counsel for the Petitioner submitted that the seniority of the Petitioner is not disputed by the Opposite Party No.4 or for that matter by any other employee in that cadre. Learned counsel for the Petitioner, at this juncture, further contended that the grievance of the Petitioner in the present writ petition revolves around the inaction of the Opposite Parties in not giving him promotion to the next promotional post of Administrative Officer. 6. In the aforesaid context, learned counsel for the Petitioner further contended that although the Opposite Party No.4, who is admittedly junior to the Petitioner which is evident from the Notification under Annexure-6 to the writ application, has already been given promotion to the post of Administrative Officer w.e.f. 11.07.2022, however, the case of the Petitioner has not been considered and he has not been given promotion to the post of Administrative Officer. He further contended that being aggrieved by the aforesaid conduct of the Opposite Parties in not given the Petitioner promotion to the post of Administrative Page 5 of 15. Officer, the Petitioner has approached this Court by filing the present writ petition. 7. Learned counsel for the Petitioner further submitted that although the Petitioner, being aggrieved by such inaction, had approached the Opposite Parties to consider the case of the Petitioner for promotion to the post of Administrative Officer, the Opposite Parties rejected his prayer for promotion to the post of Administrative Officer and thereby rejected his representation dated 13.03.2023 with the observation that the promotion of the Petitioner to the post of Administrative Officer is not feasible at present without obtaining leave of the Hon’ble High Court in view of the orders passed in I.A. No.1168 of 2023, arising out of W.P.(C) No.2156 of 2023. With regard to the above noted writ petition, learned counsel for the Petitioner, referring to the order dated 31.01.2023 passed in W.P.(C) No.2156 of 2023 (which has been filed under Annexure-9 to the writ application), contended that the said writ petition was filed by one Sri Jagabandhu Senapati and others and the dispute involved in the said writ petition was with regard to the inter se seniority between a group of officers. Page 6 of 15. 8. Learned counsel for the Petitioner further contended that the Petitioner is neither a party to the aforesaid writ petition nor is he in anyway bound by the order passed in the above noted writ petition. Further, referring to para-6 of the order dated 31.01.2023, he also contended that this Court has categorically observed that the gradation list which reflects the inter se seniority shall remain unaffected and liberty was given to the Opposite Parties to select the candidates for promotion to the post of Establishment Officer. Thus, the dispute involved in the aforesaid writ petition was with regard to the selection and appointment of Establishment Officer. In the previous writ petition, the gradation list in respect of the Establishment Officer was under challenge. However, neither the Petitioner nor the Opposite Party No.4 are parties to the aforesaid writ petition. Thus, they are not bound by the outcome of such writ petition. 9. Moreover, the interim order passed in the above noted writ petition was in respect of the regular DPC for selection and appointment to the post of Administrative Officer. In such view of the matter, learned counsel for the Petitioner submitted that in the absence of any genuine dispute with regard to the seniority of Page 7 of 15. the present Petitioner in the gradation list and the junior to the Petitioner having been given promotion to the post of Administrative Officer, which also remains unassailed, the case of the Petitioner should have been considered for promotion to the post of Administrative Officer by convening a review DPC. There exists no other legal impediment to convene a review DPC meeting to consider the case of the Petitioner for promotion to the post of Administrative Officer as the Petitioner fulfills all the criteria fixed for such promotion including his seniority in the gradation list. 10. Learned counsel for the State, on the other hand, referring to the counter affidavit filed by the Opposite Party No.1, contended that the case of the Petitioner was duly considered after the Disciplinary Proceeding was dropped against him. She further contended that the Petitioner has been given promotion to the post of Establishment Officer from the post of Section Officer w.e.f. the date his immediate junior i.e. Opposite Party No.4 was given such promotion. Therefore, the Opposite Parties tried to justify their action by stating that they have not committed any Page 8 of 15. illegality and that they have not denied the legitimate promotion as is due to the Petitioner. 11. With regard to the promotion of the Petitioner to the post of Administrative Officer, learned counsel for the State raised basically two grounds basing upon the stand taken in the counter affidavit. The first ground is that in view of the interim order dated 31.01.2023 passed in the pending writ application bearing W.P.(C) No.2156 of 2023 dated 31.01.2023, the case of the Petitioner has not been considered as this Court had restrained the Opposite Parties from taking any final decision. The second ground that has been taken in the counter affidavit is that the select list which was prepared in the year 2013 from among the Establishment Officer for promotion to the post of Administrative Officer has expired in the meantime as the same was valid only for a period of one year in view of Rule-11(2) of the Odisha Heads of Department (Method of Recruitment and Condition of Service of Establishment Officer, Administrative Officer and Senior Administrative Officer of Heads of Department) Common Cadre Rules, 2019. By citing the aforesaid two hurdles, learned counsel for the State contended Page 9 of 15. that the Opposite Parties have not committed any illegality in rejecting the prayer of the Petitioner vide order dated 26.07.2023 under Annexure-8 to the writ petition. 12. Heard Mr. P.K. Mishra, learned counsel for the Petitioner as well as Smt. Siva Mohanty, learned Additional Standing Counsel appearing for the State-Opposite Parties No.1 to 3. Perused the pleadings of the respective parties as well as the materials placed on record for consideration by this Court. 13. On a careful analysis of the factual background of the present case on the basis of the pleadings of the respective parties, this Court observes that the pivotal issue that is required to be adjudicated in the present writ petition is as to whether the Petitioner is eligible to be promoted to the post of Administrative Officer?. In the event this Court arrives at a conclusion that the Petitioner was eligible for promotion to the post of Administrative Officer, then this Court is bound to hold that the conduct of the Opposite Parties in rejecting the prayer of the Petitioner vide impugned order under Annexure-8 is illegal and arbitrary. Page 10 of 15. 14. To determine the aforesaid issue, this Court, while examining the factual background of the present case, observes that there is no dispute with regard to the fact that the Petitioner was working as a Section Officer when the disciplinary proceeding was initiated in the year 2018. Although the DPC was convened in the year 2020 and the case of the Petitioner and other eligible candidates were considered, however, since the departmental proceeding was pending against the Petitioner, the Opposite Parties followed the correct procedure of sealed cover method, in so far as the present Petitioner is concerned. However, other eligible officers were given promotion to the post of Establishment Officer. When finally the departmental proceeding against the Petitioner was dropped, the Petitioner was initially given promotion to the post of Establishment Officer, however, such promotion was given with prospective effect. 15. Subsequently, on the representation of the Petitioner, the Opposite Parties corrected the aforesaid error by antedating his promotion to the post of Establishment Officer at par with his immediate junior, i.e. Opposite Party No.4 w.e.f. the date 09.09.2020. While this was the position, the Opposite Parties Page 11 of 15. again gave promotion to the Opposite Party No.4 to the post of Administrative Officer w.e.f. 11.07.2022 under Annexure-4 to the writ petition. Obviously, the grievance of the Petitioner in the present writ petition is with regard to the fact that he was not given promotion to the post of Administrative Officer although his immediate junior i.e. Opposite Party No.4 was given such promotion w.e.f. 11.07.2022. 16. With regard to the eligibility of the present Petitioner, this Court observed that the Opposite Parties have categorically stated in paragraph-5 of the counter affidavit that although the Petitioner was entitled for promotion to the rank of Administrative Officer w.e.f. 15.07.2022, i.e. the date on which his immediate junior was given such promotion, however, the same was not acted upon or was possible in view of the interim order passed in the writ petition bearing W.P.(C) No.2156 of 2023 dated 31.01.2023. 17. In view of the aforesaid stand taken by the State-Opposite Parties in the counter affidavit, this Court has no hesitation in coming to a conclusion that the Petitioner was eligible for Page 12 of 15. promotion to post of Administrative Officer. Therefore, the only hurdle for the Petitioner to be promoted to the post of Administrative Officer was the interim order passed by this Court in the above noted writ petition. 18. On perusal of the record of W.P.(C) No.2156 of 2023, this Court observes that two sets of officers had quarrel over the inter se seniority and, accordingly, a set of officers approached this Court by filing the above noted writ petition arraying the officers over whom they were claiming seniority to the said writ petition. On a careful scrutiny of the said writ petition, it appears that neither the present Petitioner and the present Opposite Party No.4 have been arrayed as parties to the said writ petition, nor any specific prayer has been made against them by the Petitioner in the above noted writ petition. 19. In the aforesaid context, this Court would like to observe that since the Petitioner is not a party to the aforesaid writ petition, he will neither be affected nor be bound by the final outcome of the above noted writ petition. It further implies that the Petitioners in the said writ petition had no grievance against Page 13 of 15. the present Petitioner and that they do not dispute the seniority of the present Petitioner. Moreover, the Notification dated 20.02.2023 under Annexure-6 clearly reveals that the Petitioner has been placed in the gradation list immediately above the Opposite Party No.4 and such placement of the Petitioner in the gradation list having not been assailed by any of the parties, the Notification under Annexure-6 has attained finality. 20. Taking into consideration the aforesaid analysis of the factual position as well as the materials on record, this Court is of the considered view that it is not disputed that the Opposite Party No.4 is the immediate junior of the present Petitioner. Moreover, the seniority of the Petitioner over the Opposite Party No.4 is supported by Notification under Annexure-6 which remains unassailed. The State-Opposite Parties having given promotion to the private Opposite Party No.4 to the post of Administrative Officer w.e.f. 11.7.2022, the Petitioner, having been found eligible in view of the specific admission in the counter affidavit, is also eligible to be promoted to the post of Administrative Officer along with his batchmates and juniors. Page 14 of 15. 21. In such view of the matter, this Court has no hesitation in quashing the impugned rejection order dated 26.07.2023 under Annexure-8 to the writ petition. Accordingly, the same is hereby quashed. Further, the Opposite Party No.1 is directed to give promotion to the Petitioner, by convening a review DPC immediately within a period of six weeks, to the post of Administrative Officer from the date such promotion was given to the private Opposite Party No.4, who is admittedly junior to the present Petitioner. It is needless to mention here that upon such promotion, the Petitioner shall be entitled to all service and consequential benefits as is due and admissible to him. 22. Accordingly, the writ petition stands allowed. However, there shall be no order as to costs. (Aditya Kumar Mohapatra) Judge Signature Not Verified Digitally Signed Signed by: DEBASIS AECH Reason: Authentication Location: ORISSA HIGH COURT Date: 02-Apr-2025 19:49:07 Orissa High Court, Cuttack The 2nd April, 2025/Debasis Aech, Secretary Page 15 of 15.

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