The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.A. No. 805 of 2024 1. State of Odisha, represented through the Principal Secretary to Government, Home Department, Lok Seva Bhawan, Bhubanswar, Dist-Khurda. 2. D.G. & I.G. of Police, Odisha, Police Head Quarters, Buxi Bazar, Cuttack, Town/Dist-Cuttack. … Appellants Mr. Manoj Kumar Khuntia, Addl. Govt. Advocate -versus- Suryakanta Ray, S/o. Late Sarada Prasad Jena, At-Tulasipur, Police Lower Colony, Siridi Nagar, P.S. Bidanasi, Town/Dist-Cuttack, Retd. DSP, Marine Coastal Security, Office of the ADG Security, Coastal and Railway Bhubaneswar, Dist-Khurda. … Respondent Mr. A. Mishra, Advocate
Decision
CORAM: HON’BLE THE CHIEF JUSTICE HON’BLE MISS JUSTICE SAVITRI RATHO ORDER 04.09.2024 This matter is taken up through Hybrid mode. Order No. 05. 2. An order dated 17.01.2024 passed in W.P.(C) No.31172 of 2021 by a learned Single Judge of this Court has been put to challenge in the present intra-court appeal filed on behalf of the State of Odisha and its officials. By the impugned order, the learned Single Judge has disposed of the writ petition which was filed by the respondent directing the appellants to reconsider the respondent’s case for promotion to the rank of Additional Superintendent of Police by opening the sealed cover, Page 1 of 7 from the date the officers, junior to the respondents, were given such promotion. It is noteworthy that admittedly there is a criminal proceeding and a departmental proceeding pending against the respondent. The learned Single Judge has, therefore, observed in the impugned order that the promotion granted to the respondent upon opening of the sealed cover shall remain adhoc as the respondent’s prayer was being allowed in order to ensure that he had not suffer due to long pendency of the proceeding against him and that such adhoc promotion shall not confer any right or equity in favour of the respondent, and shall be subject to final outcome of the proceedings pending against him. 3. Assailing the impugned order, Mr. M.K. Khuntia, learned Additional Government Advocate has drawn our attention to an office memorandum dated 18.02.1994, with its subsequent amendments made vide Memorandum dated 01.11.1997, that prescribes the procedure for dealing with the promotion cases of the officers against whom the disciplinary proceedings/criminal proceedings are pending, which reads thus: “1. The Screening Committee shall assess the suitability of the officers coming within the purview of the following categories along with the other eligible officers within the zone of consideration without taking into consideration the disciplinary case/criminal prosecution which is pending. The assessment of the Screening Committee including „unfit for promotion‟ and the grading awarded by it in respect of the officers falling in the following categories will be kept in a Sealed Cover:- i) Officers under suspension. Page 2 of 7 (ii) Officers in respect of whom a charge sheet has been issued and disciplinary proceeding are pending; and (iii) Officers in respect of whom prosecution for criminal charge is pending. xxx xxx xxx 2. On the conclusion of the disciplinary cases/criminal prosecution, the sealed cover or covers shall be opened. In case the officer is completely exonerated, the due date of his promotion will be determined with reference to the findings of the Screening Committee kept in the sealed cover/covers and with reference to the date of promotion of his next junior on the basis of such findings. The Government servant may be promoted, if necessary by reverting the junior-most employee who has been allowed officiating promotion. He may be promoted notionally with reference to the date of promotion of his junior.” 4. It is precisely the case of the State of Odisha in the present intra- court appeal that the respondent did not have any right to be considered for promotion during the pendency of the criminal/departmental proceeding particularly in the light of 1994 resolution of the State Government. 5. The facts which are not in dispute are that the respondent was appointed as Inspector of Police in 1986 and was promoted to the rank of Inspector of Police with effect from 09.07.2013, and subsequently to the post of Deputy Superintendent of Police with effect from 10.03.2014. A vigilance case came to be instituted against him in 2016 vide Vigilance P.S. Case No.10 of 2016, which is pending. A departmental proceeding has also been initiated him on the same set of allegations, which is also pending. During pendency of the criminal case and the departmental proceeding, some officers junior to the respondent have been given Page 3 of 7 promotion to the rank of Additional Superintendent of Police, whereas the respondent’s case for promotion as recommended by the Departmental Promotion Committee (DPC) was kept in a sealed cover in view of pendency of the vigilance case. This made the respondent to file a writ petition before this Court giving rise to W.P.(C) No.31172 of 2021 seeking a direction to the appellants to allow him promotion to the post of Addl. Superintendent of Police from the date his immediate juniors were given such promotion i.e. with effect from 27.07.2020 with actual financial benefits and to grant him all consequential and financial benefits. The said writ petition was taken up on 05.10.2021 and disposed of at the stage of admission with a direction to the appellants to grant the respondent promotion to the rank of Additional Superintendent of Police with effect from 27.07.2020, i.e. the date the respondents junior were granted such promotion. The Court had, however, observed that the promotion granted to the respondents shall be subject to ultimate outcome in the vigilance proceeding. The said order passed by a learned Single Judge of this Court dated 05.10.2021 was challenged by the appellants in an intra-court appeal giving rise to W.A. No.1019 of 2022. By an order passed by a Coordinate Bench of this Court dated 27.03.2023, the order dated 05.10.2021 passed in W.P.(C) No.31172 of 2021 was set aside and the writ petition was remitted back to the learned Single Judge for the adjudication. 6. It was in the aforesaid background that the writ petition i.e. W.P.(C) No.31172 of 2021 was again heard by the learned Single Judge on remand and disposed of by the order which is impugned in the present appeal. Page 4 of 7 7. The learned Single Judge after having considered the rival pleadings and contentions on behalf of the parties in the writ proceeding, disposed of the writ petition with the following observation: the Opposite Parties “10. Having heard learned counsel appearing for the respective parties, on careful examination of the aforesaid legal position, as well as the factual background of the present case, this Court deems it proper to dispose of the to Writ Petition by directing reconsider the case of the Petitioner in the light of the G.A Department circular referred hereinabove. Accordingly the sealed cover in which the fate of the Petitioner has been kept sealed by the D.P.C be opened and the Petitioner be given promotion to the next higher post from the date of his juniors were given such promotion. However, it is made clear that such promotion shall remain ad hoc and the same is being allowed to ensure that the Petitioner does not suffer due to long pendency of the proceeding against him and that such ad hoc promotion will not confer any right or equity in favour of the Petitioner. Further, it is made clear that that the ad hoc promotion shall be subject to the final outcome of the proceeding pending against the Petitioner, It is needless to mention here that in the event the Petitioner is found guilty in the Disciplinary Proceeding/convicted in the criminal case, it is open to the Opposite Parties to take action against the Petitioner as per law and the promotion which has been granted on ad hoc basis can be withdrawn. Such promotion shall also be subject to the stipulation in the G.A department circular dated 17.06.2021. The Opposite Parties are directed to carry out the direction of this Court within four weeks from the date of communication of this order.” 8. Mr. M.K. Khuntia, learned Additional Government Advocate appearing on behalf of the appellants has relied on a Division Bench decision of this Court in the case of State of Odisha and Another Vs. Joseph Barik, reported in 2023 (II) ILR CUT 361 to submit that it has Page 5 of 7 been specifically held in the said decision that a government servant has no right to be considered for promotion during pendency of either departmental proceeding or a criminal case. He has submitted that the learned Single Judge has not considered the said Division Bench decision of this Court in case of Joseph Barik (supra), he has also placed reliance on another Coordinate Bench decision of this Court dated 06.03.2024 in W.A. No.16 of 2024 (The Principal Secretary, Panchayat Raj Department, Govt. of Odisha and Others vs. Debi Prasad Nanda) wherein, this Court relying on the decision in the case of Joseph Barik (supra) interfered with an order passed by the learned Single Judge in similar circumstance. He accordingly contends that the impugned order requires interference by this Court. 9. Mr. A. Mishra, learned counsel appearing on behalf of the respondent has submitted that there is no certainty as to within what time the criminal proceeding and the departmental proceeding shall be concluded. He contends that the learned Single Judge, by the impugned order has directed to grant promotion to the respondent after opening the sealed cover on adhoc basis with the clear observation that such promotion shall not create any equity in favour of the respondent. The impugned order in the given facts and circumstances cannot be said to be suffering from any such legal infirmity, as would require this Court’s interference in this intra-court appeal, he argues. 10. After having heard learned counsel on behalf of the parties and perused the pleadings on record, we are of the view that it has been specifically laid down by a Coordinate Bench of this Court in the case of Joseph Barik (supra) that a Government servant has no right to be considered for promotion during pendency, of either the departmental Page 6 of 7 proceeding or a criminal proceeding or of both. The said decision has been followed in the case of Debi Prasad Nanda (supra). The policy of the State Government of adopting sealed cover procedure till conclusion of criminal proceeding or departmental proceeding against a Government servant is not under challenge. The said policy is being uniformly applied to the employees of the State Government. In such view of the matter, the order passed by the learned Single Judge, in our opinion, is in teeth of the Division Bench decision in the case of Joseph Barik (supra). Accordingly, the impugned order passed by the learned Single Judge requires interference. The impugned order passed in W.P.(C) No.31172 of 2021 is set aside. 11. The writ appeal is accordingly allowed. 12. W.P.(C) No.31172 of 2021 is hereby dismissed. 13. It goes without saying that the respondent shall be at liberty to take such steps as may be available to him under the law for expediting the trial. Chief Justice (Chakradhari Sharan Singh) Judge (Savitri Ratho) SK Jena/Secy. Signature Not Verified Digitally Signed Signed by: SANJAY KUMAR JENA Designation: SECRETARY Reason: Authentication Location: High Court of Orissa, Cuttack. Date: 11-Sep-2024 12:09:19 Page 7 of 7