The High Court
Case Details
Order No. 05. IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.12343 of 2022 Kirtan Bihari Jena State of Odisha & others -versus- …. Mr. A.S. Nandy, Advocate Petitioner …. Opposite Parties Mr. S. Das, A.G.A. CORAM: JUSTICE A.K. MOHAPATRA ORDER 17.04.2023 1. This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode). 2.
Legal Reasoning
Heard Mr. A.S. Nandy, learned counsel appearing for the petitioner as well as Mr. S. Das, learned Addl. Government Advocate appearing for the State-Opposite Parties. Perused the pleadings of the respective parties as well as materials placed before this Court. 3. The Petitioner has approached this Court by filing the present writ application for a direction to the Opposite Parties to give promotion to the Petitioner as per the DPC recommendation dated 23.06.2012 and to fix the pay of the Petitioner accordingly along with all consequential, financial benefits and for a further direction to the Opposite Parties to recalculate his pension after fixing his pay in the promotional post. The factual background of the Petitioner’s case leading to filing of the present writ application is that the Petitioner was appointed as an Asst. Jailor on 15.11.1997. Thereafter, the Petitioner appeared in the department examination (Lower Standard on 09.03.1984 and Higher Standard on 07.07.1988). The Petitioner successfully cleared both the departmental examinations. 4. On 30.06.1991, the Petitioner on the recommendation of the // 2 // DPC was given promotion to the rank of jailor. While working as jailor, the case of the Petitioner was considered for further promotion to the rank of Class-II, that is, Senior Superintendent by the order of the Govt. of Odisha and he was given promotion to such post vide order dated 24.12.2009. Accordingly, the Petitioner was posted as Senior Superintendent of Juvenile Jail, Angul which has confirmed by the Home Department and thereafter the Petitioner was posted as Superintendent District Jail (Group-B) on recommendation of the OPSC vide their letter dated 27.06.2011. Accordingly, the Petitioner was posted as such vide order dated 25.07.2021 under Annexure-1 to the writ application. 5. Since the Petitioner was eligible for further promotion as per Rule-243 of the jail manual and the same was being delayed by the authorities, the Petitioner submitted a representation dated 02.02.2012 before the Special Secretary to Home Department for promotion to the next higher post as per the jail manual and to reconsider his seniority by placing him against Srl No.7 instead of 52 in the common gradation list. While the matter stood thus, a final gradation list was published on 25.05.2012 in respect of all Superintendent of District Jails (Group-B). On perusal of the said gradation list it appears that the Petitioner has been placed at Serial No.3 of the said final gradation list of Superintendent District Jail (Group-B). 6. Thereafter, a DPC meeting was convened on 22.06.2012. In the said DPC meeting the case of the Petitioner along with two others were considered. Upon perusal of the minutes of the DPC meeting dated 22.06.2012, it appears that the DPC has recommended the name of the Petitioner along with two others after taking into consideration their seniority and upon a consideration of their CCR // 3 // for preceding five years and other service records for promotion to the rank of Senior Superintendent Circle Jail (Group-A). 7. While the matter stood thus, one Nairanjan Das challenging the gradation list approached the Odisha Administrative Tribunal by filing O.A. No.1752(C) of 2012 wherein an interim order was passed to the effect that the no promotion shall be given to the Respondent Nos.3, 4 & 5 pursuant to Annexure-9 without leave of this Tribunal. Similar order was passed in O.A. No.2772 of 2012. Accordingly, the recommendation of the DPC was not carried out awaiting the final verdict of the Tribunal in the above noted two O.As. 8. Learned Counsel for the Petitioner further referring to the Annexure-7, that is, the minutes of the proceeding of the DPC held on 10.01.2013 submitted before this Court that although the DPC had recommended promotion of the Petitioner along with two others to the post of Senior Superintendent of Circle Jail (Group-A), but, in view of the order dated 22.06.2012 in O.A. No.1752(C) of 2012, and dated 17.09.2022 in O.A. No.7772(C) of 2012 such promotion was not given to the petitioner and the other two persons. Further, it reveals that in the meantime the Petitioner has retired from Government service w.e.f. 30.06.2012. Therefore, the recommendation of the DPC recommending promotion of the Petitioner to the post of Senior Superintendent of Circle Jailor could not be carried out by the Departmental Authorities by the time the Petitioner was in service i.e. upto 30.06.2012. 9. Learned counsel further referring to the order under Annexure- 6, that is, O.A. No.243 of 2013 disposed of vide order dated 12.01.2013, submitted that the gradation list dated 25.05.2012 published by the department in respect of Superintendent District Jail (Group-B) has been prepared correctly showing interse Seniority of // 4 // the Applicant and Respondent Nos.3 & 4. He further contended that Respondent No.3 in O.A. No.234 of 2013 is the petitioner in the present writ application. Therefore, the interse seniority that has been fixed and the gradation list which has been prepared by the Opposite Parties have been upheld by the Tribunal. He further contended that the aforesaid decision of the Tribunal has attained finality as the same has been challenged further. 10. So far, the other two O.A. applications are concerned, there was an interim direction not to give promotion and the same were
Decision
disposed of subsequently by the Tribunal without interfering with the impugned order/ conduct of the authorities. In view of aforesaid submission, learned counsel for the Petitioner submitted that the Petitioner is entitled to get the promotional benefit as recommended by the DPC in its meeting held on 22.06.2012. 11. Learned Addl. Government Advocate, per contra submitted that the State-Opposite Parties have filed a counter affidavit and in the counter affidavit they have denied and disputed the claim made by the Petitioner in relation to his promotion to the Post of Senior Superintendent of Circle Jail (Group-A). Learned Addl. Government Advocate in course of his argument specifically referred to para-7 of the counter affidavit to contend before this Court that seniority is not the only criteria while giving promotion to the Petitioner and that the Petitioner has cleared a Departmental Examination subsequently and in view of the Rule-238 of the jail manual the seniority of the Petitioner in the post of Asst. Jail is to be given from 09.03.1994 instead of the original date of his appointment. 12. Further, learned Addl. Government Advocate also referred to para-17 of the counter affidavit and submitted before this Court that the Odisha Jail manual Rule-243 shall apply to promotion to the rank // 5 // of jailor and not to the Senior Superintendent of Circle Jail. He further contended that by applying the provision of Rule-243 of the Odisha Jail manual, the Petitioner has already been given promotion to the rank of Superintendent of District Jail w.e.f. 24.12.2009 and that in the meantime he has retired from service on attaining the age of superannuation w.e.f. 30.06.2012. 13. Learned Addl. Government Advocate further contended that the since the Petitioner has retired in the meantime and there was an interim order passed by the Tribunal not to give promotion while the petitioner was in service and therefore, no fault can be found with the conduct of the authorities in not giving promotion to the Petitioner while the Petitioner was in service. He further contended that after retirement the question of giving promotion to the petitioner does not arise. In such view of the matter, learned Addl. Government Advocate submitted that the writ application is devoid of merit and accordingly the same is rejected. 14. Having heard the learned counsels for the respective parties and upon a careful consideration of the contentions raised by the learned counsels for the parties and on a careful examination of the pleadings of the respective parties this Court observed that the DPC meeting which was convened on 22.06.2012 had recommended the name of the Petitioner along with two other persons. On perusal of the minutes of DPC meeting dated 22.06.2012 it appears that the DPC had considered the seniority of the petitioner as well as CCR of the preceding of five years and other service records pertaining to the Petitioner and other eligible candidates. After such consideration the DPC found three persons suitable for promotion to the post of Superintendent of District Jail for promotion to the rank of Senior Superintendent of Circle Jail (Group-A) including the present // 6 // petitioner. However, since there was an interim order by the Tribunal not to grant promotion to the Petitioner and other eligible candidates, the Petitioner was not given promotion awaiting the final decision by the Tribunal. 15. Moreover, by the time the matter was finally decided by the Tribunal, the petitioner had retired from service on attaining the age of superannuation w.e.f.30.06.2012. Therefore, the authorities could not give promotion to the Petitioner. This Court also observed that the gradation list that was published in the year 2012 has also been upheld by the Tribunal and further of the two O.As which has been referred to hereinabove have also either been dismissed or withdrawn as a result of which the interim order passed therein has merged with the final order. 16. Upon a conspectus of background facts of the present case, this Court is of the view that the petitioner has become a victim of the circumstance as a result of which he has not been promoted to the next higher rank although his case was recommended by the DPC. 17. Taking into consideration the aforesaid factual analysis as well as keeping in view the question of law this Court has no hesitation in holding that the petitioner was eligible to get promotion and therefore he should have been given promotion to the post of Senior Superintendent of Circle Jail (Group-A) service from the date of recommendation of the DPC. Therefore, it is directed that the petitioner be given notional promotion to the post of District Senior Superintendent of Circle Jail (Group-A) w.e.f. 23.06.2012 as per the DPC recommendation. Since the petitioner has retired in the meantime, therefore, the authorities shall do well to calculate the pensionary benefits payable to the petitioner on the basis of the pay scale to be re-fixed by taking into consideration such notional // 7 // promotion of the Petitioner to the post of Senior Superintendent of Circle Jail (Group-A). The Opposite parties shall do well to carry out the aforesaid exercise within a period of two months from the date of communication of certified copy of this order. 18. With the aforesaid observations/ directions, the writ application stands disposed of. Issue urgent certified copy of this order as per Rules. Anil ( A.K. Mohapatra ) Judge