The High Court
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IN THE HIGH COURT OF ORISSA, CUTTACK W.P.(C) No.13715 of 2020 Pramod Kumar Das ....... Petitioner -Versus- State of Odisha & others ....... Opp. Parties Advocates appeared in this case: For Petitioner : Mr. G.R. Sethi, Advocate For Opp. Party Nos.1 to 3 : Mr. G.N. Rout, A.S.C. For Opp. Party No.4 : Mr. A.K. Mahana, Advocate ---------------------------- CORAM: JUSTICE SANJAY KUMAR MISHRA JUDGMENT 25.04.2023 S.K. MISHRA,J. 1. The Petitioner has challenged the Order dated 17th February, 2020 passed by the Opposite Party No.2, vide which his representation to place his name in the gradation list of Senior Clerk above the Opposite Party No.4 (Pravas Kumar Rout) was rejected by passing a detailed order, on being so directed by this Court in W.P.(C) No.28944 of 2019. It has further been prayed to direct the Opposite Party No.3 to ante date the promotion of the Petitioner from the date when his juniors have been promoted and to grant all financial and consequential benefits from the said date. 2. The factual matrix, which leads to filing of the Writ Petition, is that the Petitioner was appointed as Junior Clerk on 20th March, 1990. He discharged his duties to the utmost satisfaction of the authority concerned and was having unblemished service career. While continuing as such, he appeared in the Departmental Examination and passed the second and third paper in the year 1991 and the first paper in the year 2003. In the year 2001, Departmental Proceeding was initiated against him. Finally, the enquiry report was submitted finding the charges to be proved. The Disciplinary Authority passed the order of punishment dated 12th June, 2001 ordering therein that “the promotion of the Petitioner (Junior Clerk) is withheld for one chance only”. 3. On recommendation of the D.P.C. for promotion to the rank of Senior Clerk, as the Petitioner had not passed the Departmental Examination, seven juniors were promoted to the post of Senior Clerk in between 31st January, 2004 to 2nd W.P(C) No.13715 of 2020 Page 2 of 18 June, 2004. The Petitioner was given to understand, as he was imposed with punishment for withholding of promotion for one year, he was not promoted. Again the D.P.C. was convened in the year 2005 to consider eligible Junior Clerks for promotion to the rank of Senior Clerk. Though the Petitioner was eligible and suitable for promotion, but in an illegal and arbitrary manner, D.P.C. did not recommend the case of the Petitioner for promotion. Juniors like Pravash Kumar Rout (present Opposite Party No.4), Asanta Kumar Swain, Prasant Kumar Das, Ramesh Ch. Tripathy, Subash Ch. Sadangi and Ramech Ch. Mallick were recommended for promotion to the post of Senior Clerk. On the basis of such recommendation made by the D.P.C. all of them were promoted to the post of Senior Clerk on 01.10.2005 ignoring the case of the Petitioner. 4. Being aggrieved by such action of the Opposite Party, the Petitioner filed a representation praying therein, inter alia, to consider his case for promotion to the rank of Senior Clerk from the date, when his juniors were promoted. Instead of giving him promotion with retrospective effect i.e. from the date when the juniors were promoted, he was W.P(C) No.13715 of 2020 Page 3 of 18 promoted to the post of Senior Clerk on 15th December, 2006. Since then, the Petitioner has been ventilating his grievances to ante date his promotion from the date when his juniors were promoted to the post of Senior Clerk. But no action has yet been taken by the authority. When the matter stood thus, draft gradation list was prepared on 17.01.2018, wherein the name of the Petitioner was placed at Sl. No.24 and the date of joining in the present cadre was shown as 2003 and juniors were placed above him. Being aggrieved by such action, the Petitioner again filed representation before the Block Development Officer, which was forwarded to the Collector & District Magistrate, Jagatsinghpur, vide letter dated 9th March, 2018. However, without considering the grievance of the Petitioner, the gradation list was finalized on 28th July, 2018 conferring the position, as was in the draft gradation list. In the final gradation list, name of the Petitioner finds place at Sl. No.24 whereas, the name of Opposite Party No.4 finds place at Sl. No.17. Further case of the Petitioner is that, the Opposite Party No.4 was initially appointed as Junior Clerk on 01.11.1995 and passed the Departmental Examination in December, 2003 whereas, the Petitioner was W.P(C) No.13715 of 2020 Page 4 of 18 initially appointed as Junior Clerk on 20.03.1990 and passed Departmental Examination in December, 2003 and is admittedly senior to Opposite Party No.4 in initial grade. But due to deliberate action of the Opposite Party No.3, he was not promoted to the rank of Senior Clerk when the Opposite Party No.4, who is junior to him, was promoted to the post of Senior Clerk. Hence, ventilating his grievances, the Petitioner submitted a representation, but to no result. Being aggrieved by such inaction of the authority, the Petitioner was constrained to approach the State Administrative Tribunal in O.A. No.2786(C) of 2018 challenging the fixation of inter se seniority of Petitioner vis-à-vis the Opposite Party No.4. During pendency of the said O.A., another provisional gradation list was prepared on 04.09.2019, where his name finds place at Sl. No.17 and the name of the present Opposite Party No.4 finds place at Sl. No.10. The Petitioner submitted an objection to the said gradation list praying therein to fix his seniority above Opposite Party No.4, as his date of entry into Government service is 01.11.1995 whereas, the date of entry of the Petitioner is 20.03.1990. Objection of the Petitioner was forwarded on 31.10.2019 for consideration and W.P(C) No.13715 of 2020 Page 5 of 18 fixation of inter se seniority in the post of Senior Revenue Assistant (previously Senior Clerk). However, without considering the objection of the Petitioner on its own prospective, the final gradation list was prepared on 07.12.2019, wherein the name of the Petitioner finds place at Sl. No.17 whereas, the name of Opposite Party No.4 finds place at Sl. No.10. Such fixation of seniority is illegal, arbitrary and is a product of non application of mind. Being aggrieved by such action, the Petitioner approached this Court in W.P.(C) No.28944 of 2019 with the selfsame prayer, as has been prayed in the present Writ Petition. However, the said Writ Petition was disposed of at the stage of admission vide Order dated 08.01.2020 directing the Opposite Party No.2 to dispose of the representation of the Petitioner within period of six weeks from the date of production of the certified
Decision
copy of the said order along with copy of the Writ Petition. 5. In compliance of the said direction of this Court, the Opposite Party No.2, vide order dated 20th February, 2020, rejected the prayer of the Petitioner on the ground that as the Petitioner was imposed with punishment by Order dated 03.01.2001, vide Departmental Proceeding No.09, his W.P(C) No.13715 of 2020 Page 6 of 18 promotion was withheld for one chance only and he was not promoted in the year 2005, when others were promoted. It was further indicated in the said order that since he was promoted to the post of Senior Clerk as per recommendation of the D.P.C. held on 27.03.2006, his inter se seniority was fixed in accordance with Rule 18(2) of the Odisha Ministerial Service (Method of Recruitment and Conditions of Service of Clerks and Assistants in District Office and Officers of the Head of the Department) Rules, 1963, shortly, the Rules, 1963, which is the subject matter of challenge in the present Writ Petition. 6. Being noticed, the Opposite Parties-State have filed Counter Affidavit indicating therein that the Petitioner finally cleared the last paper of Departmental Examination in the year 2003 vide notification dated 2nd December, 2003. Clearance of said examination is a pre-requisite eligibility for promotion to the next higher post as per Rules, 1963. In view of the Departmental Proceeding No.09 dated 03.01.2001 and punishment imposed on the Petitioner, his promotion was withheld for one chance only. He was superseded by his juniors, who are promoted not on the basis of W.P(C) No.13715 of 2020 Page 7 of 18 recommendation of the D.P.C. held in the year 2004 but in the D.P.C. held on 28.06.2003, which remained valid till 31.05.2004 or holding of the next D.P.C., whichever is earlier. The name of the Petitioner was not considered during 2003, as he had not cleared Departmental Examination at that point of time. It has also been stated that the allegation of the Petitioner that his case for promotion was ignored in year 2005 is not true. The Petitioner cleared the last paper of Departmental Examination in December, 2003 whereas, the D.P.C. for 2003 was held in the month of June, 2003 i.e. much before his clearance of the said Departmental Examination. In year 2004, there was no fresh D.P.C. However, in the year 2005, though there was D.P.C., the claim of the Petitioner was not considered because of the punishment awarded in Departmental Proceeding No.09 dated 03.01.2001. Hence, the Petitioner was superseded by his juniors in the year 2005 in view of the order passed in the Departmental Proceeding. It has also been stated that had the D.P.C. sat in the year 2004, then also the Petitioner could not have been promoted, as he was ineligible for one chance as per the punishment order passed by the competent authority. W.P(C) No.13715 of 2020 Page 8 of 18 Though Opposite Party No.4 was Junior to the Petitioner in the feeder cadre of Junior Clerk, he was promoted to the post of Senior Clerk superseding the Petitioner, as he was not eligible for promotion due to punishment awarded in the Departmental Proceeding. It was not due to fault of Opposite Party No.3. Rather, due to his own fault, the Petitioner was debarred from promotion and the Opposite Party No.4 was promoted to the cadre of Senior Clerk on 07.10.2005 whereas, the Petitioner got promotion to the rank of Senior Clerk on 15th December, 2006. Hence, question of antedating his promotion, as prayed for, does not arise in the instant case. 7. On being noticed, private Opposite Party No.4 has also filed a Counter Affidavit taking a similar stand, as has been taken by the Opposite Parties-State. 8. To substantiate his submission, Mr. Mahana, learned Counsel for the Opposite Party No.4 relies on the judgments in State of Uttaranchal and others Vs. Dinesh Kumar Sharma, reported in (2007) 1 SCC 683, in Nani Sha and others Vs. State of Arunachal Pradesh and others, reported in (2007) 1 SCC 406, in Union of India (UOI) and others Vs. Chaman Rana and others, reported in AIR 2018 W.P(C) No.13715 of 2020 Page 9 of 18 SC 1478, in P.S. Sadasivaswamy Vs. State of Tamil Nadu, reported in AIR 1974 SC 2271. 9. Mr. Sethi, learned Counsel for the Petitioner submits, had there been D.P.C. in year 2004, his client would have been promoted to the post of Senior Clerk. He further submits that in terms of Rule 2(d), “year” means the calendar year. Though after the punishment was imposed on his client in the year 2001, the next D.P.C. was held on 28th June, 2003 in order to give promotion against the vacancies existing and anticipated vacancies by 31st December, 2003, but the actual promotion has given in the year 2004. By that time, his client was eligible for promotion to the rank of Senior Clerk. However, to the reason best known to the authority concerned, the Petitioner was not promoted in the year 2004. Hence, it can be said that the promotion of the Petitioner was held up for one chance and the Petitioner could not have been denied promotion in the year 2005, when his junior was promoted taking the plea of punishment imposed on the Petitioner vide Departmental Proceeding No.09 dated 03.01.2001. Hence, such action of the Opposite Party denying promotion to the Petitioner, is without any just and W.P(C) No.13715 of 2020 Page 10 of 18 reasonable ground. Promotion given to his juniors is not sustainable in the eye of law and the rejection order dated 17th February, 2020 as at Annexure-10 is liable to be set aside and quashed. 10. Mr. Rout, learned Additional Sanding Counsel, on behalf of Opposite Party No.3, reiterating the stand taken in the Counter Affidavit draws attention of this Court as to the contents of rejection order dated 17.02.2020. The relevant portions of the said rejection order are extracted below: “The fact of the case is that the Petitioner Sri Pramod Kumar Das has prayed to place him in the gradation list of Senior Clerk above the Opposite Party No.4 Sri Pravas Kumar Rout indicating the ground that he was senior than the OP No.4 in the gradation list of feeder post, i.e. Junior Clerk although he was promoted to the post of Senior Clerk latter than the OP No.4 Sri Pravas Kumar Rout. In this context, Collector, Jagatsinghpur furnished a report along with the connected paper. On verification, it is seen that Sri Pramod Kumar Das (herein after called as the Petitioner) joined as Junior Clerk on 20.03.1990 F.N. and Sri Pravas Kumar Rout (Herein after called as OP No.4) joined as Junior Clerk on 01.11.1995 F.N. When the D.P.C. was held on 28.06.2003, at that time, the Petitioner had not passed the required Papers in Departmental Examination W.P(C) No.13715 of 2020 Page 11 of 18 meant for promotion to the next higher post i.e. Senior Clerk as per the promotion criteria. As such, the Petitioner was not eligible for getting promotion and his juniors (11 nos. of Jr. Clerks under Unreserved Category) were promoted to the post of Sr. Clerk as per the recommendation of D.P.C. held on 28.06.2003. In the meanwhile, the Petitioner passed the required papers in Departmental Examinations meant for promotion to the post of Senior Clerk in December, 2003. When the next D.P.c. was held on 04.02.2005, the Petitioner was eligible for promotion, but his case was not taken into consideration due to the punishment imposed against him in Departmental Proceeding No.09 dt. 03.01.2001 by the Collector, Jagtsinghpur, i.e. “the promotion of Sri Pramod Ku. Dash, Jr. Clerk is withheld for one chance only”. As per orders of Collector, his promotion was deferred and his junior, the OP No.4 and other 08 nos. Jr. Clerks under U.R. category were promoted to the post of Sr. Clerk. However, the petitioner was promoted to the post of Sr. Clerk as per the recommendation of next D.P.C. held on 27.03.2006. In a similar situation, clarification has been received from the Govt. in Revenue & D.M. Department vide their Letter No.35809 dated 16.11.2019. As per the provisions under Rule-18(2) of the OmS (Method of recruitments and condition of service of Clerk and Assistant in the District Offices and Offices of the Head of Department) Rules, 1963, “The seniority inter se W.P(C) No.13715 of 2020 Page 12 of 18 of the Upper Division Grade II Assistants or the Upper Division Grade I Assistants of Head Assistants shall be determined according to the year and date of respective selection. Where the date of selection is same in respect of two or more persons the seniority inter se shall be determined according to the order of selection”. Accordingly, although the Petitioner Sri Pramod Kumar Das was placed above the OP No.4 Sri Pravas Kumar Rout in the gradation list of feeder post i.e. Junior Clerk, the OP No.4 was promoted to the post of Senior Clerk earlier than the petitioner, and as such placed above the Petitioner in the gradation list of Senior Clerk.” (Emphasis supplied) 11. Mr. Rout further submits, had there been D.P.C. in the year 2004, also the case of the Petitioner could not have been considered for promotion to the post of Senior Clerk in view of the punishment imposed by the Disciplinary Authority which attained finality, not being challenged before the appropriate Court of law. He further submits, there is no infirmity in the final gradation list which is under challenge in the Writ Petition. 12. Mr. Mahana, learned Counsel for Opposite Party No.4 submits that his client and similarly placed others, who were juniors to the Petitioners, were promoted to the post of W.P(C) No.13715 of 2020 Page 13 of 18 Senior Clerk on 28.09.2005. The Petitioner neither challenged the punishment order dated 12.06.2001 nor the promotion given to the Opposite Party No.4 and similarly placed others vide order dated 28.09.2005, which is appended to the Counter Affidavit filed by Opposite Party No.4 as Annexure-B/4. He further submits, the present Writ Petition also deserves to be dismissed on the ground of delay and laches on the part of the Petitioner. Though the cause of action arose in the year 2005, promotion of his client and similarly placed others have been challenged in the year 2020 under the grab of challenging the final gradation list dated 28th April, 2020. He further submits that the present Writ Petition is also liable to be dismissed in limine because of non-inclusion of other similarly placed persons, who were also promoted to the post of Senior Clerk namely, Asanta Kumar Swain, Prasant Kumar Das, Ramesh Ch. Tripathy, Subash Ch. Sadangi and Ramesh Ch. Mallick. He further submits, if the Writ Petition is allowed accepting the stand of the Petitioner to be just and proper, the prayer being made in the Writ Petition to fix seniority of the Petitioner above Opposite Party No.4, the said persons (as named above) being below the W.P(C) No.13715 of 2020 Page 14 of 18 Opposite Party No.4 in the gradation list, will be directly affected by any order passed by this Court. Hence, they are necessary and proper parties to the present proceeding. The Writ Petition is also liable to be dismissed on the said ground. 13. In Chaman Rana (supra), the apex Court held as follows: “9. Manifestly, the cause of action first arose to the respondents on the date of initial supersession and again on the date when rejection of their representation was communicated to them, or within reasonable time thereafter. Even if the plea based on Dev Dutt (AIR 2008 SC 2513) (supra) be considered, the cause of action based thereon accrued on 12.05.2008. There has to be a difference between a cause of action and what is perceived as materials in support of the cause of action. In service matters, especially with regard to promotion, there is always an urgency. The aggrieved must approach the Court at the earliest opportunity, or within a reasonable time thereafter as third party rights accrue in the meantime to those who are subsequently promoted. Such persons continue to work on the promotional post, ensconced in their belief of the protection available to them in service with regard to seniority. Any belated interference with the same is bound to have adverse effect on those already promoted affecting their morale in service also. Additionally, any directions at a belated stage to W.P(C) No.13715 of 2020 Page 15 of 18 consider others for promotion with retrospective effect, after considerable time is bound to have serious administrative implications apart from the financial burden on the government that would follow by such orders of promotion.” 14. In P.S. Sadasivaswamy (supra), the apex Court held as follows: “2. The main grievance of the appellant is that the 2nd respondent who was junior to him as Assistant Engineer was promoted as Divisional Engineer in 1957 by relaxing the relevant rules regarding the length of service necessary for promotion as Divisional Engineer and that his claim for a similar relaxation was not considered at that time. The learned Judge of the Madras High Court who heard the writ petition was of the view that the relaxation of the rules in favour of the 2nd respondent without considering the appellant's case was arbitrary. In view of the statement on behalf of the Government that such relaxation was given only in the case of overseas scholars, which statement was not controverted, it is not possible to agree with the view of the learned Judge. Be that as it may, if the appellant was aggrieved by it he should have approached the Court even in the year 1957 after the two representations made by him had failed to produce any result. One cannot sleep over the matter and come to the Court questioning that relaxation in the year 1971. There is the further fact that even after respondents 3 and 4 were W.P(C) No.13715 of 2020 Page 16 of 18 promoted as Divisional Engineers over the head of the appellant he did not come to the Court questioning it. There was a third opportunity for him to have come to the Court when respondents 2 to 4 were again promoted as Superintending Engineers over the head of the appellant. After fourteen long years because of the tempting prospect of the Chief Engineership he has come to the Court. In effect he wants to unscramble a scrambled egg. xxx xxx xxx xxx A person aggrieved by an order of promoting a junior over his bead should approach the Court at least within six months or at the most a year of such promotion. It is not that there is any period of limitation for the Courts to exercise their powers under Article 226 nor is it that there can never be a case where the Courts cannot interfere in a matter after the passage of a certain length of time. But it would be a sound and wise exercise of discretion for the Courts to refuse to exercise their extra-ordinary powers under Article 226 in the case of persons who do not approach it expeditiously for relief and who stand by and allow things to happen and then approach the Court to put forward stale claims and try to unsettle settled matters. The petitioner's petition should, therefore, have been dismissed in limine. Entertaining such petitions is a waste of time of the court. It clogs the work of the Court and impedes the work of the court in considering legitimate W.P(C) No.13715 of 2020 Page 17 of 18 grievances as also its normal work. We consider that the High court was right in dismissing the appellant's petition as well as the appeal.” (Emphasis supplied) 15. In view of such submissions made by the learned Counsel for the parties, documents on record, so also reasons assigned in the impugned order dated 17th February, 2020 (as quoted above) and the settled position of law, this Court is of the view that there is no infirmity in the impugned order. The Writ Petition does not merit for consideration. 16. Accordingly, the Writ Petition stands dismissed. No order as to cost. …….….…………………… S.K. MISHRA, J. Orissa High Court, Cuttack The 25th April, 2023 /Prasant W.P(C) No.13715 of 2020 Page 18 of 18