The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.14507 of 2023 Smita Satapathy State of Odisha and others -versus- …. Mr.P.K.Mishra, Advocate Petitioner …. Opp.Parties Mr.T.Patnaik, A.S.C. CORAM: JUSTICE A.K. MOHAPATRA Order No. ORDER 10.05.2023 01. 1. This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode). 2.
Legal Reasoning
Heard learned counsel for the Petitioner as well as the learned
Decision
Additional Standing Counsel for the State. Perused the Writ Petition as well as the documents annexed thereto. 3. The present Writ Petition has been filed with the following prayer: “ It is prayed, therefore that this Hon’ble Court may graciously be pleased i) Admit and allow the writ petition and; the Opposite Parties more specifically ii) Direct the O.P.No.2 to consider and promote the Petitioner to the post of Sr. Assistant w.e.f. the date she has completed 3 years of service as regular Junior Assistant i.e. 01.01.2018 like O.P.Nos.3 to 5 who have promoted retrospectively under annexure-13, with all consequential service and financial benefits within a stipulated period of time. iii) And pass such other orders/directions as this Hon’ble Court may deem fit and proper in the facts and circumstances of the case and bona fide interest of justice.” 4. With regard to factual matrix involved in the present Writ // 2 // Petition Mr. Mishra, learned counsel for the Petitioner at the outset submitted that the Petitioner was initially appointed on 20.09.2014 under the OCS(RA) Rule in the Office of the Engineer-in-Chief (Civil), Odisha, Bhubaneswar. Accordingly, the Petitioner joined in the post of Junior Assistant and continued to discharge her duties. Thereafter, she successfully completed the departmental examination for consideration of her promotion in future. Learned counsel for the Petitioner further submitted that the Opposite Party Nos. 3 & 4 were appointed as Junior Assistants on contractual basis on 27.11.2015 and accordingly they both joined on 04.12.2015 and 05.12.2015 respectively. Similarly, the Opposite Party no.5 joined as Junior Assistant on contractual basis on 05.12.2016. 5. It is further contended by the learned counsel for the Petitioner that on 30.09.2017 a DPC meeting was convened to consider the promotion from the post of Junior Assistant to the post of Senior Assistant. Accordingly, names were sent to the D.P.C. including the name of the Petitioner. The D.P.C. after considering all the five candidates recommended promotion in r3espect of three candidates except the Petitioner to the post of /Senior Assistant out of which four were recommended for promotion excluding the Petitioner. Another person was also given promotion from Senior Progress Clerk. So far as the present Petitioner is concerned, it has been observed in the D.P.C. meeting that she has joined as Junior Assistant on 20.09.2014. As such she has not completed three years of service for such post as on 01.01.2017. Accordingly, she requires eligibility for promotion to the post of Senior Assistant under the existing Rule. Learned counsel for the Petitioner at this juncture submitted that the post of UR category were lying vacant at the relevant point of time. // 3 // 6. Learned counsel for the Petitioner also contended that as on 01.01.2018 the Petitioner had eligibility of three years experience to become eligible to be promoted to the post of Senior Assistant. However, contrary to the provision of the relevant Rules no D.P.C. meeting was convened to consider for promotion from the post of Junior Assistant to the post of Senior Assistant. Accordingly, the case of the Petitioner was not considered in the year 2018 although vacant post of Senior Assistant under UR category was available in that year. Thereafter, the post of Senior Assistant was redesignated as Assistant Section Officer by virtue of the Resolution dated 24.01.2019 after restructuring of the cadre of the post of Senior Assistant. Finally, the case of the Petitioner was considered by the D.P.C. and she was given promotion with effect from 03.06.2020 to the post of Assistant Section Officer (which was earlier Senior Assistant) Learned counsel for the Petitioner contended before this Court that although the Petitioner was eligible with effect from 01.01.2018 and vacant post of Senior Assistant were available at the relevant point of time, however no D.P.C. meeting was convened for the year 2018. Therefore, the case of the Petitioner was not considered for promotion. When in the D.P.C although the case of the Petitioner was considered however she was given promotion with effect from 03.03.2016. Such a decision by the D.P.C has caused serious prejudice to the Petitioner and as a result of the same the Petitioner has lost her seniority against the private Opposite Parties. 7. It is also argued by the learned counsel for the Petitioner that the private Opposite Party No.3 was absorbed in regular establishment with effect from 04.12.2021 and the Opposite party no.4 with effect from 05.12.2021 upon completion of six years of contractual service. Similarly Opposite Party No.5 has been // 4 // absorbed in regular establishment with effect from 05.12.2022 after completion of six years of contractual service. While this was so vide Notification dated 16.10.2022 the Government of Odisha has framed the Rule called the Odisha Group ‘B’, ‘C’ and Group ‘D’ posts (Repeal and Special Provisions) Rules, 2022 and in view of the special provision contained in the said Rule, the service of the private Opposite Party Nos. 3,4 & 5 were regularized with effect from the date of their initial joining in view of the aforesaid Rule, 2022. He further submitted that this was happened as the Opposite Parties did not consider the case of the Petitioner in the year 2018 as the Petitioner was eligible for such promotion with effect from 01.01.2018 upon completion of three years of service. Being aggrieved by such conduct of the Opposite Parties the Petitioner approached the Opposite Party no.2 by filing a representation on 19.12.2022 with a prayer to grant her retrospective promotion with effect from 01.01.2018 that too before effecting the promotion of Opposite Party Nos. 3 to 5 pursuant to Rules, 2022. 8. However, ignoring the case of the Petitioner, the Opposite Party No.2 convened a D.P.C. on 23.12.2022 to consider promotion of Opposite Party Nos. 3 to 5 in terms of Sub-Rule 2 of Rule 13 of Rules, 1994 to grant retrospective promotion with effect from the date they have completed three years of service i.e. 01.01.2019 and 01.01.2020 in view of the special provision contained in 2022 Rule. Further, vide order dated 07.01.2023 the Opposite Party No.2 had given promotion on notional basis with effect from 01.01.2019 so far as Opposite Party Nos. 3 & 4 are concerned and Opposite Party No.5 was given promotion with effect from 01.01.2020 Being aggrieved by such action of the Opposite Parties, the Petitioner approached this Court by filing the present Writ Petition with a // 5 // prayer to antedate her promotion and to give her notional promotion with effect from 01.01.2018 i.e. year in which she is eligible to get such promotion against such Rule. 9. Learned Additional Standing Counsel on the other hand submitted that the seniority of the Petitioner will not be affected in any manner. He further submitted that the final gradation list has not been prepared, therefore, the Petitioner will be no way prejudiced. Therefore, there is no cause of action to file the present Writ Petition. Learned Additional Standing Counsel also submitted that in the event the Petitioner has substantive grievance and in the event she has approached the Opposite Parties by filing representation under Annexue-11 dated 19.12.2022 and as stated by the learned counsel for the Petitioner the same is pending before the Engineer-in-Chief (Civil) Works Department, Odisha, Opposite Party No.2 then he will have no objection if the Opposite Party No.2 is directed to consider the same in accordance with Rule within a stipulated period of time. 10. Having heard learned counsel for the respective parties and upon a careful consideration of the materials placed before this Court as well as the contentions raised by the learned counsel for the parties, this Court deems it proper to dispose of the Writ Petition at the stage of admission by directing the Opposite Party No.2 to consider the representation of the Petitioner under Annexure-11 keeping in view the fact that the Petitioner was eligible for promotion with effect from 01.01.2018 although her case was sent to the D.P.C in the year 2017 and the D.P.C. did not consider her case on the ground that she was not having required three years of service. Accordingly, her case was deferred. Further, while considering the representation of the Petitioner the Opposite Party No.2 shall keep in mind the period of service rendered by the Petitioner and that the // 6 // Petitioner has the eligibility for promotion to the post of Senior Assistant, which was later on redesignated after restructuring of cadre as Assistant Section Officer keeping in view the fact that number of Senior Assistant posts were lying vacant in the year 2018 and that no DPC contrary to the Rules was convened in the year 2018. Accordingly, after taking into consideration the aforesaid fact the opposite party No.2 shall take a decision in accordance with law and the Rules, within a period of six weeks from the date of production of certified copy of this order by the Petitioner. The Opposite Party No.2 shall act on production of certified copy of this order. The decision so taken be communicated to the Petitioner within two weeks thereafter. 11. With the aforesaid observation the Writ Petition stands disposed of. RKS RAMESH KUMAR SINGH Digitally signed by RAMESH KUMAR SINGH Date: 2023.05.12 14:27:48 +05'30' ( A.K. Mohapatra, ) Judge