The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK WP(C) No.10229 of 2024 Upendra Kumar Sahoo ..... Petitioner Represented By Adv. - Ipsit Aurobindo Acharya State Of Odisha and others ..... Opposite Parties -versus-
Legal Reasoning
Represented By Adv. – Mr. D. Nayak, AGA CORAM: THE HON'BLE MR. JUSTICE ADITYA KUMAR MOHAPATRA
Decision
ORDER 29.04.2024 This matter is taken up through hybrid mode. Heard learned counsel for the Petitioner as well as learned Order No. 01. 1. 2. counsel for the State-Opposite Parties. Perused the writ petition as well as documents annexed thereto. 3. The present writ petition has been filed by the Petitioner with the following prayers:- “In the facts and circumstances stated above, it is humbly prayed that this Hon’ble Court may be graciously pleased to issue a Rule NISI in the nature of Writ of Mandamus and/or any appropriate Writ/ Writs calling upon the Opp. Parties more specifically the Opp. Party No.2-Addl. Chief Secretary to Government, Home Department representation to dtd.10.04.2024 of the Petitioner under Annexure-10 for notional promotion to the Post of Under Secretary as per the provisions of Rules-5 & 7 of Page 1 of 5. take a decision on the the Odisha Secretariat Rules, 1980 as amended by the Odisha Secretariat Service (Amendment) Rules, 2008 without being influenced by the Orders dtd.10.02.2022 & 05.07.2022 of the Opp. Parties under Annexures - 8 & 9 to the Writ Petition and keeping in view the Notification / Orders under Annexures-5 to 7 of the Writ Petition, within a stipulated period; And if the Opp. Parties fail to show cause or show insufficient / false cause, make the said Rule absolute by directing the Opp. Parties more the Opp. Party No.2-Addl. Chief specifically Secretary to Government, Home Department to give notional promotion to the Petitioner to the Post of Under Secretary as per the provisions of Rules-5 & 7 of the Odisha Secretariat Rules, 1980 as amended by the Odisha Secretariat Service (Amendment) Rules, 2008 on the basis of the representation dtd. 10.04.2024 of the Petitioner under Annexure 10 without the Orders dtd.10.02.2022 & 05.07.2022 of the Opp. Parties under Annexures - 8 & 9 to the Writ Petition and keeping in view the Notification / Orders under Annexures-5 to 7 of the Writ Petition; influenced being by And, pass such other Order/Orders, as this Hon’ble Court may deem fit, just and proper in the facts and circumstances of the present case; And allow this Writ Petition with cost;” 4. It is submitted by learned counsel for the Petitioner that while working under the Govt., the Petitioner was promoted to the rank of Senior Assistant (re-designated as Assistant Section Officer) on 26.09.1998. He further contended in view of Rules-5 & 7 of the OSS Rules, 1980, which was amended on 12.04.2001, a challenge was made before the State Administrative Tribunal by filing O.A. No.1235-C of 2001. Thereafter, the said rule was again amended on 10.09.2008. While the matter stood thus, the above noted O.A. No.1235-C of 2001 Page 2 of 5. was disposed of by the learned OAT vide order dated 12.05.2021 by a common order, thereby, quashing the Amendment Rules of 2001 by holding that the said rules are discriminatory in nature. However, no suitable relief was granted in the aforesaid OA. Thereafter, the Petitioner was selected and appointed to the post of Assistant Law Officer on 07.01.2012 and the Petitioner joined on 17.01.2012. The order passed by the Tribunal in the above noted OA was challenged before this Court by the State-Opposite Parties by filing the writ application. Such writ application was disposed of by this Court vide order dated 01.08.2018, by holding the Amendment Rules to be ultra vires to Article 14 and 16 of the Constitution of India. Accordingly, the same was quashed. Thereafter, the State-Opposite Parties preferred an appeal before the Hon’ble Supreme Court by filing an SLP. The Hon’ble Supreme Court vide order dated 01.10.2020 confirmed the judgment passed by this Court on 01.08.2018. 5. After disposal of the SLP on 01.10.2020, the Petitioner filed a representation on 12.03.2021 and again on 31.12.2021 with a prayer before the Opposite Parties to consider the case of the Petitioner for notional promotion to the post of Under Secretary. Initially the representation of the Petitioner dated 31.12.2021 was rejected vide order dated 10.02.2022. Thereafter, the Petitioner again filed another representation on 09.05.2022 before the Chief Secretary, Govt. of Odisha claiming notional promotion to the post of Under Secretary. Such representation was also rejected on 05.07.2022. Learned counsel for the Petitioner submitted that on both occasions the representation of the Petitioner was rejected without taking into consideration the judgment of the Hon’ble Supreme Court dated 01.10.2020 under Annexure-7 to the writ application and the Amended Rules under Annexure-5 to the writ application. Therefore, the Petitioner once again Page 3 of 5. filed a representation on 10.04.2024 before the Opposite Party No.2 to consider the case of the Petitioner for notional promotion to the post of Under Secretary as per the Odisha Secretariat Rules, 1980 as has been amended in the year 2008. In such view of the matter, learned counsel for the Petitioner submitted that the Opposite parties be directed to consider the representation of the Petitioner dated 10.04.2024 strictly in accordance with the applicable rules and the judgments of Hon’ble Supreme Court on the issue. 6. Learned Additional Government Advocate on the other hand contended that earlier the representation of the Petitioner was rejected by the Opposite parties. Therefore, there is no necessity to direct the Opposite Party No.2 to consider the representation of the Petitioner again. In such view of the matter, learned Additional Government Advocate submitted that the present writ application is devoid on merit. However, it was further contended that in the event this Court is inclined to direct the Opposite Parties to consider the pending representation of the Petitioner dated 10.04.2024 under Annexure-10 to the writ application strictly in accordance with rules and, with a further direction to dispose of the same time within a stipulated period of time, he shall have no objection to the same. 7. Considering the submissions made by the learned counsels appearing for the respective parties, on a careful examination of the background facts as well as materials on record, and further taking into consideration the limited nature of grievance involved in the present writ petition, this Court deems it proper to dispose of the writ application at the stage of admission by directing the Opposite Party No.2 to consider and dispose of the representation of the Petitioner dated 10.04.2024, if the same has not been disposed of in the meantime, within a period of two months from the date of Page 4 of 5. communication of a certified copy of this order by the Petitioner. It is further directed that the representation of the Petitioner shall be disposed of strictly in terms of the rules applicable, the judgments of Hon’ble Supreme Court on the issue and by passing a speaking and reasoned order. The final decision so taken be communicated to the Petitioner within two weeks from the date of taking such decision. 8. With the aforesaid observation/direction, the writ petition is disposed of. Urgent certified copy of this order be granted on proper application. ( A.K. Mohapatra ) Judge S.K. Rout Signature Not Verified Digitally Signed Signed by: SANTANU KUMAR ROUT Reason: Authentication Location: High Court of Orissa, Cuttack Date: 02-May-2024 20:08:05 Page 5 of 5.