The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.13265 of 2023 In the matter of an application under Article 226 & 227 of the Constitution of India, 1950. ……………… Dr. Prafulla Kumar Baral …. Petitioner -versus- State of Odisha & Others …. Opp. Parties For Petitioners Mr. A.K. Dash, Advocate : Mr. G. Mishra, Sr. Adv. along with For Opp. Parties: : Mr. C.K. Pradhan, Addl. Govt. Advocate PRESENT: THE HONBLE JUSTICE BIRAJA PRASANNA SATAPATHY Date of Hearing: 03.09.2025 and Date of Judgment: 03.09.2025 ------------------------------------------------------------------------------ Biraja Prasanna Satapathy, J. 1. This matter is taken up through Hybrid // 2 //
Legal Reasoning
2. Heard learned counsel appearing for the Parties. 3. Petitioner has filed the present Writ Petition inter alia challenging the order dtd.22.09.2022 so passed by Opposite Party No.1 under Annexure-1. Vide the said order, claim of the Petitioner to get the benefit of promotion with all consequential service and financial benefits was rejected. 4. It is the case of the Petitioner that, Petitioner while continuing in service as a Class-1 Senior officer, he was not extended with the benefit of promotion on the ground of pendency of both vigilance and departmental proceeding against him. Not only that because of his implication in the vigilance proceeding, he was placed under suspension vide office order dtd.25.02.2010 under Annexure-3. However, subsequently during pendency of both the proceedings, he was reinstated in his services vide office order this Court dtd.24.12.2010 under Annexure-4, where he joined on 14.01.2011. 4.1. It is contended that during pendency of both the proceedings, Petitioner retired from service on attainting the age of superannuation on 29.02.2012 in terms of the order issued under Annexure-5. However, after his retirement from service, Petitioner was acquitted in the vigilance proceeding vide judgment dtd.31.07.2018. Not only that taking into account the Page 2 of 11 // 3 // acquittal of the Petitioner in the vigilance proceeding, the disciplinary authority- Opposite Party No.1 vide office order dtd.31.01.2019 under Annexure-7, dropped the departmental proceeding initiated against the Petitioner. 4.2. Thereafter, vide another order issued on 02.07.2019 under Annexure-8 the period of suspension from 01.05.2009 to 13.01.2011 was treated as duty.
Legal Reasoning
However, it is contended that on the face of such orders passed under Annexures-7 & 8, when Petitioner was not extended with the benefit of promotion nor the financial benefit, Petitioner approached this Court by filing W.P.(C) No.18067 of 2022. This Court vide order dtd.20.07.2022, when directed Opposite Party No.1 to consider the Petitioner’s grievance with regard to extension of the benefit of promotion and the financial benefits as due and admissible, the same was rejected vide the impugned order dtd.22.09.2022 under Annexure-1. 4.3. It is also contended that in view of the office Memorandum issued by the GA & PG Department on 29.05.2020 under Annexure-10, Petitioner is eligible and entitled to get the benefit of promotion. Stipulation contained in the office Memorandum dtd. 29.05.2020 under Annexure-10 reads as follows:- “Sub: Page 3 of 11 // 4 // Promotion of Government Servants against whom disciplinary/criminal proceeding are pending procedure to be followed. Elaborate provisions have been prescribed under GA. & P.G. Department OM. No. 3926, dated 18.02.1994 read with peragraph 6 of GA. & P.G. Department OM. No. 29699, dated 01.11.1997 for opening of the smaled cover maintained due to pendency of disciplinary the proceedings/cominal Government Servants at the time of consideration of their promotion to the next higher grade in the Departmental Promotion Committee. prosecution against Instances have come to the notice of the Government that different Administrative Departments have raised doubts as to whether the sealed cover maintained in respect of a Government Servant can be opened after his/her retirement/demise, as the case may be, to give him/her retrospective/posthumous notional promotion to the next higher grade if he/she has been exonerated completely from the charges levelled against him/her in the disciplinary proceedings/criminal prosecution instituted against him/her. After careful consideration, it has been decided by the Government that where sealed cover procedures have been adopted in respect of Government servants as per principles prescribed in G.A. & P.G. Department O.M. No. 3928, dated 18.02.1994, the shall opened and acted from Government service on complete exoneration the said charges, or after his/her his/her from retirement same be upon after death as the case may be. In case he/she was recommended for promotion by the Departmental Promotion Committee, he/she may be allowed notional promotion w.e.f the date the junior has been promoted to the promotional rank as per the recommendation the Departmental Promotion Committee.”. of 4.4. It is contended that on the face of the order passed under Annexures-7 & 8 and the stipulation contained in office Memorandum issued under Annexure-10, Petitioner because of his acquittal in the vigilance proceeding as well as dropping of the Page 4 of 11 // 5 // departmental proceeding became eligible and entitled to get the benefit of promotion on notional basis and the financial benefit as due and admissible. Petitioner also became entitled to get all the financial benefit for the period he remained under suspension, as the period of suspension was treated as duty vide order under Annexure-8. But without proper appreciation of the Petitioner’s claim, the same was rejected vide the impugned order dtd.22.09.2022 under Annexure-1. 4.5. It is accordingly contended that the impugned order is not sustainable in the eye of law. In support of his submissions reliance was placed to the decisions in the case of Gopi Chand Vishnoi v. State of U.P. & Anr., reported in (2006) 9 SCC-694; U.O.I. & Anr. vs. Col. A.D. Nargolkar & Ors. reported in (2019) 13 SCC-723 & S.K. Azad Mohammad vs. State of Odisha & Ors. 5. Mr. C.K. Pradhan, learned Addl. Government Advocate for the State on the other hand made his submissions basing on the stand taken in the counter affidavit. Though it is not disputed by the learned AGA that Petitioner was acquitted in the vigilance proceeding vide judgment dtd.31.07.2018 and the departmental proceeding was dropped vide order dtd.31.01.2019 under Annexure-7, but placing reliance on the provisions contained under Rule-56 of the Orissa Service Code, it is contended that Petitioner is Page 5 of 11 // 6 // not eligible and entitled to get the benefit. Rule-56 of the Odisha Service Code reads as follows:- “56. DRAWAL AND CEASE TO DRAWAL OF PAY AND ALLOWANCES: Subject to exceptions specifically provided in these rules, a Government servant shall begin to draw the pay and allowances to his post with effect from the date on which he assumes the duties of that post, and shall cease to draw them as soon as he ceases to discharge those duties. GOVERNMENT OF ODISHA INSTRUCTION (F.D. No. 37031/F., Dt. 04.07.1978) Sub: Rightful claims and admission of arrear, financial benefit to Government servant. According to the provisions contained in Rule 56 of the Odisha Service Code, a Government servant shall begin to draw the pay and allowances attached to his post with effect from the date on which he assumes the duties of that post. The implication of the rule is that pay and allowance attached to a post are admissible to the incumbent only from the date on which he assumes the duties of that post It follows, therefore, that if the Government servant has not discharged the duties attached to a post he is not entitled to the pay and allowances of the post. This is general rule and governs the drawal of pay and allowances by Government servants in normal circumstances. Cases sometimes arise when a Government servant is wrongly deprived of his rightful claim to a post and his claim is subsequently allowed either after a judicial decision or otherwise and he is appointed to that post with retrospective effect. In such cases the judicial verdict is that the Government servant whose rightful claim is subsequently allowed by Government, shall be entitled to the pay and allowances of the said post with effect from the date from which the claim to the post admitted irrespective of whether or not he has performed the duties attached to the said post. The Courts have held that the mistake, if any, in the matter would squarely be borne by the Government and their officers and not by Government servant affected. Page 6 of 11 // 7 // 2. Keeping in view the judicial verdict in the matter, Government are pleased to decide that while the general principle enunciated in Rule 56 of the Odisha Service Code would continue to govern the payment of pay and allowances to Government servants, in cases where a Government servant is found to have been wrongly deprived of his legitimate claim to a post and on the strength of judicial decision or otherwise, his claim to the post is subsequently allowed and he is appointed to the post with retrospective effect, he will be allowed to draw pay and allowances with effect from the date of his claim to the post is admitted. 3. As admission of arrear financial benefit arising out of cases referred to above involves avoidable financial liabilities to the exchequer, it is further decided that while sending proposals for payment of such arrear claims to the Finance Department for concurrence, the the Government should concerned Department of indicate if the financial liability to be met is due to any wrong decision in contravention of the existing rules of practices by any authority and, if so, the nature of the action proposed to be taken against such authority responsible for the wrong decision that has resulted in depriving a Government servant of his rightful claim and as a consequence thereof, making Government liable to make arrear payment to him. It is to be noted that proposals for sanction of such arrear claims will not be entertained the Finance Department unless officer/officers responsible for the wrong decision are identified and action against them taken or proposed to be taken is specifically indicated.” in 5.1. A further submissions was also made that stipulation contained in Office Memorandum dtd. 29.05.2020 under Annexure-10 was not made applicable to the claim of the Petitioner, as GA and PG Department while issuing the clarification, pursuant to the request made by Opposite Party No.1, observes not to extend the benefit in favour of the Petitioner. Stand taken in Para-10 & 11 of the counter reads as follows:- Page 7 of 11 // 8 //
Decision
“10. That, in reply to the averment made by the petitioner in paragraphs 16 to 21 of the writ petition it is submitted that, since the petitioner has already been retired w.e.f. 29.02.2012 and no more in government service, at this belated stage, there is no scope to giving him promotion so as to enable him to join in the promotional post as Rule-56 of Odisha Service Code stipulates that, unless a government servant join or holds a particular post, he is not entitled to get the salary of that post. Further, since he has already retired from Govt. service, there is also no further scope to consider his case for giving retrospective promotion to JD-I and AD in any regular DPC as per clarification issued by GA Department, which stipulates that, the cases of promotion of retired employees cannot be considered in a regular DPC after the date of his retirement since he is no more regulated under the rules applicable to the existing government servants. 11. That, in reply to the averment made by the petitioner in paragraphs 16 to 21 of the writ petition it is submitted that, however the matter was referred to GA & PG Department for their considered views as regards consideration for promotion of the petitioner to the rank of JD Level-II and subsequently to the rank of JD Level EARANCE and Additional Director. The GA & PG Department offered their considered views as follows:- In absence of any enabling provisions of rules there is no scope to consider promotion of retired Government servants at par with their juniors, if any, promoted earlier. Besides, the principles outlined in GA&PG Department OM No12383/Gen.Dt.29.05.2020 can also not be made applicable in this case since the DP initiated against Dr. Prafulla Ku. Baral U/r 15 of the OCS (CC&A) Rules, 1962 was dropped without following in GA&PG Department the Circular No14596/Gen. Dt.03.05.2001, to the effect that acquittal of delinquent employee in a criminal case does not ipso facto put a stop to any disciplinary proceedings initiated against the Government servant." instructions prescribed 5.2. It is accordingly contended that in view of the provisions contained under Rule-56 of the Orissa Service Code and the clarification issued by the GA & Page 8 of 11 // 9 // PG Department , Petitioner’s claim was rejected vide the impugned order dtd.22.09.2022, which requires not interference of this Court. 6. Having heard learned counsel appearing for the Parties and considering the submissions made, this Court finds that Petitioner while in service was placed under suspension vide office order dtd.25.01.2010 under Annexure-3 because of his implication in the vigilance case. Not only that the departmental proceeding was also initiated against him vide memorandum dtd.28.01.2011. 6.1. As found from the record, Petitioner was acquitted in the vigilance proceeding vide judgment dtd.31.05.2018 and vide office order dtd.31.01.2019 under Annexure-7, the departmental proceeding was dropped. Vide another order issued on 02.07.2019 under Annexure-8, the period of suspension from 01.12.2009 to 13.01.2011 was treated as duty. 6.2. But thereafter when the benefit of promotion was not extended with extension of the financial benefits for the period of suspension, Petitioner approached this Court by filing W.P.(C) No.18067 of 2022. Pursuant to the order passed by this Court on 20.07.2022, Petitioner’s claim was considered. As found from the impugned order, the DPC held on 19.11.2009 recommended the Petitioner’s name for his promotion Page 9 of 11 // 10 // to the rank of JD Level-II. But by holding that the GA and PG Department Resolution dtd.29.05.2020, will not be made applicable to the case of the Petitioner, Petitioner’s claim was rejected vide the impugned order dtd.22.09.2022 under Annexure-1. 6.3. This Court taking into account the nature of order passed under Annexures-7 & 8 and the stipulation contained in the office Memorandum under Annexure- 10 is of the view that Petitioner is eligible and entitled to get the benefit of promotion to the rank of JD Level-II and subsequent promotion to the rank of JD Level-I to the rank of AD in OMHS cadre, if any, but on notional basis. This Court taking into account the nature of order passed under Annexure-8, held the Petitioner entitled to get all the service and financial benefits for the period of suspension. 6.4. Accordingly, this Court while quashing the impugned order dtd.22.09.2022 so issued by Opposite Party No.1 under Annexure-1, directs the State- Opposite Parties to extend the benefit of promotion on notional basis in favour of the Petitioner to the rank of JD Level-II and JD Level-I to the rank of AD in OMHS Cadre. This Court further directs Opposite Party No.1 to extend the financial benefit for the period of suspension in terms of the order dtd. 02.07.2019 under Annexure-8. On such extension of the benefit, pensionary benefit of the Petitioner be revised with Page 10 of 11 // 11 // extension of the differential entitlements as due and admissible. 6.5. This Court directs opposite Party No.1 to complete the entire exercise as directed within a period of four (4) months from the date of receipt of this order. 7. With the aforesaid observations and directions, the Writ Petition stands disposed of. (Biraja Prasanna Satapathy) Judge Orissa High Court, Cuttack Dated the 3rd September, 2025/Subrat Signature Not Verified Digitally Signed Signed by: SUBRAT KUMAR BARIK Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 09-Sep-2025 16:09:19 Page 11 of 11