The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK WP(C) No.8500 of 2024 Petitioner Represented By Adv. - Shashi Bhusan Jena Opposite Parties Represented By Adv. – Mr.D.Mohapatra, ASC Manoranjan Sing ..... -versus- ..... 1) State Of Odisha 2) Principal Chief Conservator Of Forest, Odisha 3) Regional Chief Conservator Of Forests, Baripada 4) Divisional Forest Officer, Balasore 5) Jayanta Kumar Pradhan, Forester, Balasore 6) Jyotsna Dutta THE HON'BLE MR. JUSTICE ADITYA KUMAR MOHAPATRA CORAM: ORDER 15.04.2024 Order No. 01. 1. This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode). 2.
Legal Reasoning
Heard learned counsel appearing for the Petitioner as well as learned Additional Standing Counsel appearing for the State- Opposite Parties. Perused the writ petition as well as the documents annexed thereto. 3. The present writ petition has been filed by the Petitioner with the following prayers:- “ Under facts and circumstances of the case, this Hon’ble Court may the abovementioned Page 1 of 7. graciously be pleased to issue a writ of mandamus or any other appropriate writs by quashing the order of rejection under Annexure-8 passed by the Opp.Party No.3. And to direct further be pleased the Opp.Parties more particularly Opp.Party No.3 to grant promotion to the Petitioner to the post of Forester with effect from 30.12.2023 i.e. the date when the persons placed below the Petitioner in seniority list got promotion. And further be pleased the Opp.Parties to grant all consequential and service benefits to Petitioner. to direct Or pass such order(s)/direction(s) as case may be deemed fit and proper in the interest of justice and equity.” 4. The factual background leading to filing of the present writ petition is that the Petitioner and the private Opposite Parties No.5 and 6 were initially appointed as Forest Guard under the Opposite Party No.4 on 08.08.2009. While working as such, a tentative gradation-cum-seniority list of Forest Guards of Baripada Circle was circulated vide letter No.5277 dated 13.12.2023. In the said tentative gradation list, the name of the Petitioner finds place at Serial No.35 and that of the Opposite Parties No. 5 and 6 find place at Sl. No.36 and 38 respectively. A copy of said gradation list has also been annexed to the writ petition as Annexure-3. 5. While the matter stood thus, a D.P.C. was convened on 28.12.2023 to consider the promotion of Forest Guard to the post of Forester in Baripada Circle. The D.P.C. while considering and recommending the names of the private Opposite Parties No.5 Page 2 of 7. and 6 ignored the case of the Petitioner for promotion to the post of Forester. It has been stated that in view of the Circular dated 30.06.2022 of the S.T. & S.C. Development Department,
Decision
Government of Odisha under Annexure-5 to the writ petition, the case of the Petitioner is required to be considered for promotion against the UR vacancy. Although the Petitioner belongs to S.T. Category, however, contrary to such Circular of the S.T. & S.C. Development Department, Government of Odisha, the D.P.C. has not considered the case of the Petitioner for promotion to a post coming under the U.R. Category. 6. Learned counsel for the Petitioner contended that admittedly the Petitioner is senior to the private Opposite Parties No.5 and 6. The aforesaid fact is evident from the gradation list under Annexure-2 to the writ petition. Although the Petitioner’s name has been indicated at Sl. No.35 in the gradation list with a remark that she is suitable for promotion, her case has not been considered on the ground that there is no vacancy in the S.T. Category, whereas the Opposite Party No.5 and 6, who belongs to S.E.B.C. Category, have been considered under UR vacancy ignoring the just and fair claim of the Petitioner. Being aggrieved by such conduct of the Opposite Parties, the Petitioner has approached this Court by filing the present writ petition. 7. In course of his argument, learned counsel for the Petitioner, drawing attention of this Court to the Circular dated 30.06.2022 of the S.T. & S.C. Development Department, Government of Odisha under Annexure-5 to the writ petition, submitted that the Government has issued the aforesaid circular regarding participation of reserved category candidates against unreserved category. The said circular is very clear with regard to Page 3 of 7. promotional prospects of S.C. & S.T. candidates. Under the Point No.1, it has been provided that if unreserved vacancy arises in a cadre and there are SC/ST candidates within the normal zone of consideration in the feeder grade, such SC/ST candidate cannot be denied promotion on the plea that the post is not reserved. Such a candidate will be considered for promotion along with other candidates treating him as if he belongs to general category. Furthermore, in case such SC/ST candidate is selected, he will be appointed to the post and will be adjusted against the UR vacancy. Referring to the aforesaid Point No.1, learned counsel for the Petitioner submitted that the D.P.C., while considering the case of promotion of similarly placed employees and the post of Forest Guard to the Forester have not considered the case of the Petitioner although she belongs to S.T. Category and falls within the normal zone of consideration as is evident from the gradation list under Annexure-2 to the writ petition. 8. Learned counsel for the Petitioner also referred to Point No.2 of the Circular under Annexure-5 to the writ petition. In the said context, it is submitted before this Court that SC/ST candidates appointed on their own merit (by direct recruitment or promotion) and adjusted against reserved points will retain their status of SC/ST and will be eligible to get benefit of reservation in future/further promotions, if any. Thus, by laying emphasis on both the Point No.1 and 2, learned counsel for the Petitioner submitted that the aforesaid Circular squarely applies to the facts of the present case. He further contended that admittedly the Petitioner falls under the normal zone of consideration and belongs to S.T. Category, therefore, her case is required to be considered for promotion against UR vacancy by applying the Page 4 of 7. policy decision under Annexure-8 to the writ petition. In such view of the matter, learned counsel appearing for the Petitioner contended that the Opposite Parties having not followed such a procedure, have violated the policy decision of the Government itself. 9. Learned Additional Standing Counsel appearing for the State-Opposite Parties, on the other hand, contended that the Petitioner belongs to the S.T. Category, however, the vacancy that has arisen falls within the unreserved category. Therefore, the Opposite Parties could not have considered case of the Petitioner against such UR vacancy. He further argued that the case of the Petitioner shall be considered against S.T. vacancy as and when the same arises. Therefore, no prejudice has been caused to the Petitioner as none of the S.T. candidates were given promotion overlooking the case of the Petitioner. He further contended that the Petitioner cannot claim parity with the unreserved category as she does not belong to the same category. In such view of the matter, learned Additional Standing Counsel submitted that the case of the Petitioner is devoid of merit and, accordingly, the writ petition deserves to be dismissed at the threshold. 10. Having heard the learned counsels appearing for the respective parties and on a careful examination of the background facts as well as the materials on record, this Court taking into consideration the policy decision vide Circular dated 30.06.2022 of the S.T. & S.C. Development Department, Government of Odisha under Annexure-5 to the writ petition, is of the considered view that the same clearly provides that SC/ST candidates can be considered against UR vacancy provided they Page 5 of 7. come within the normal zone of consideration in the feeder cadre. 11. On careful analysis of the factual background of the present case and keeping in view the gradation list under Annexure-2, this Court is of the opinion that the Petitioner is senior to the private Opposite Parties No.5 and 6, moreover a remark has been given that she is suitable for promotion to the post of Forester from the post of Forest Guard. Therefore, there is no iota of doubt that the Petitioner comes within the normal zone of consideration in the feeder cadre. 12. In view of the aforesaid analysis of facts as well as the legal position, this Court deems it proper to dispose of the writ petition at the stage of admission by granting liberty to the Petitioner to file a fresh representation before the Opposite Parties taking therein all the grounds along with all supporting documents within two weeks from today. In such eventuality, the Opposite Party No.3 shall do well to consider the same in the light of the aforesaid analysis as well as the Circular dated 30.06.2022 of the S.T. & S.C. Development Department, Government of Odisha under Annexure-5 to the writ petition. In the event it is found that the Petitioner comes within the normal zone of consideration in the feeder cadre, then by applying the principle laid down in the aforesaid circular, the Opposite Party No.3 shall do well to consider the case of the Petitioner and subject to suitability and eligibility of the Petitioner, the Petitioner be given promotion to the post of Forester in any UR vacancy, if there are no other legal impediment, within a period of two months from the date of communication of a certified copy of this order by the Petitioner. The final decision so taken be communicated to the Petitioner within two weeks from the date of Page 6 of 7. taking such decision. It is needless to mention here that in the event the Opposite Party No.3 is of the view that the Petitioner is covered under the Circular dated 30.06.2022 of the S.T. & S.C. Development Department, Government of Odisha under Annexure-8 to the writ petition and she is eligible to be promoted to the post of Forester, then seniority of the Petitioner shall be restored as per the gradation list under Annexure-3. Further, liberty is given to the Opposite Party No.3 to provide an opportunity of hearing to the private Opposite Parties No.5 and 6, if felt necessary by the Opposite Party No.3. Further, it is directed that till disposal of the representation of the Petitioner within the aforesaid stipulated time, no juniors to the Petitioner shall be given promotion. 13. With the aforesaid observation and direction, the writ petition is disposed of. RKS ( A.K. Mohapatra) Judge Page 7 of 7. Signature Not Verified Digitally Signed Signed by: RAMESH KUMAR SINGH Reason: Authentication Location: High Court of Orissa Date: 16-Apr-2024 17:28:30