The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.12694 of 2024 Smt. Bishnupriya Badajena …. Petitioner Ms. Abhijit Patnaik, Advocate Ms. Soma Patnaik, Advocate & Associates -Versus- State of Odisha & others …. Opposite Parties Mr. B.P. Tripathy, AGA CORAM: JUSTICE R.K. PATTANAIK DATE OF JUDGMENT:23.10.2024 1. Instant writ petition is filed by the petitioner seeking promotion to the post Head Typist/Superintendent Level-II in terms of the order dated 10th December, 2012 passed in O.A. No.1058 of 2010 and subsequent order dated 2nd March, 2021 in W.P.(C) No.2197 of 2013 after being promoted as the Senior Typist retrospectively with grant of all consequential service benefits quashing the rejection order published in the department’s website with respect to the representation dated 26th February, 2024 as at Annexure-6 submitted by her on the grounds inter alia that the inaction/decision of the opposite parties in not granting such promotion to be arbitrary and illegal. 2. The brief facts of the case are as follows. The petitioner joined in the post of Junior Typist after a recruitment held in the year 1996 in the Directorate of Agriculture & Food Productions against the available vacancy of Junior Typist, which is a common cadre consisting of Junior Typists of the above Directorate; Directorate W.P.(C) No.12694 of 2024 Page 1 of 14 of Soil Conservation; and Director of Horticulture. As per the petitioner, the Gradation lists as at Annexure-2 series were prepared for the post of Junior Typist on 14th December, 2009 and 13th May, 2022 by the Office of the Directorate of Agriculture & Food Productions and she was placed at serial No.31 and while matters stood thus, all on a sudden, on 10th March, 2010, the department published a revised gradation list dated 14th December, 2009 including other typists and allowing seniority with retrospective effect from the year 1994 placing them above her and being aggrieved, she filed O.A. No.1058 of 2010 and the learned Odisha Administrative Tribunal, Bhubaneswar disposed it of by order dated 10th December, 2012 with a direction that the private respondents therein shall take their seniority on the basis of final absorption in Government service and to be placed at the bottom of the Gradation list of Junior Typist. According to the
Legal Reasoning
petitioner, the order of the Tribunal was challenged in W.P.(C) No.2197 of 2013 but the same was dismissed by order dated 2nd March, 2021. It is further pleaded that after the above orders, the opposite parties did not take any action in giving her promotion to the post of Senior Typist despite she filed a representation on 27th December, 2021, which resulted in approaching this Court once again in W.P.(C) No.9157 of 2022 and the same was disposed of vide Annexure-3 with a direction to opposite party No.2 to take a decision on her said representation. It is further pleaded that by order dated 22nd December, 2022, opposite party No.2 issued the order of promotion to her as the Senior Typist along with others vide Annexure-4. The contention is that the petitioner’s promotion to the post of Senior Typist was long due from the year, 2013 pursuant to the order in O.A. No.1058 of 2010 but it was delayed by 10 years without any fault of her, rather, the same was due to the lapses on the part of the opposite W.P.(C) No.12694 of 2024 Page 2 of 14 parties. It is pleaded by the petitioner that though W.P.(C) No.2197 of 2013 was disposed of on 2nd March, 2021, the opposite parties did not comply the same and it was only after the disposal of W.P.(C) No.9157 of 2022, opposite party No.2 allowed such promotion to her on 22nd December, 2022. The further contention is that the petitioner retired on 30th June, 2024 and as per Rule 14 of the Odisha Typist Service (Recruitment and Conditions of Typist in the Office of the Heads of Department) Rules, 1982 (hereinafter referred to as ‘the Rules’), promotion to the post of Head Typist/Superintendent Level-II is permissible, if a Senior Typist has completed two years of service on the 1st day of January of the year in which the Departmental Promotion Committee meets and the petitioner could only complete one and half years in the said post and needed another six months to be eligible for further promotion but the shortfall with the eligibility years is on account of laches of the opposite parties and such promotion to the post of Senior Typist was a legitimate expectation in anticipation that she would be promoted to the next higher level as her promotion to the post of Senior Typist should have been in the year 2013 and not in 2022 and in the meanwhile, a representation was moved and it was followed by the order of rejection by opposite party No.4 published in the department’s website and against the aforesaid backdrop, the demand is that she is entitled to retrospective promotion with such other service benefits already described hereinabove.
Legal Reasoning
3. Heard Ms. Patnaik, learned counsel for the petitioner and Mr. Tripathy, learned AGA for the State. 4. Opposite party Nos.1, 2 and 4 have filed the counter affidavit. W.P.(C) No.12694 of 2024 Page 3 of 14 5. Ms. Patnaik, learned counsel for the petitioner reiterated the above facts to contend that the petitioner has been deprived of promotion to the post of Head Typist/Superintendent Level-II and it was on account of the laches of the opposite parties. Ms. Patnaik, learned counsel further submits that the petitioner was appointed in the Directorate of Agriculture & Food Productions and joined on 25th June, 1996 as a Junior Typist but after a long battle, she was allowed promotion as the Senior Typist on 22nd December, 2022, which was due as early as from 2013 and in that case, would have had the eligibility for promotion to the post of Head Typist/Superintendent Level-II with the qualifying years necessary for the said purpose and since the promotion to the post of Senior Typist was allowed towards the end of 2022, the criteria for further promotion as per Rule 14 of the Rules could not be fulfilled with a shortfall of six months by the time of her retirement and such delay and laches from the side of the opposite parties is not condonable. The contention of Ms. Patnaik, learned counsel is that the rejection of representation dated 26th February, 2024 (Annexure-6) is unjustified and hence, the denial of promotion of the petitioner to the post of Head Typist/Superintendent Level-II, which could not be achieved despite orders in O.A. No.1058 of 2010 and W.P.(C) No.2197 of 2013,therefore, such promotion should be allowed retrospectively with a direction to the opposite parties in that regard with the order of rejection dated 26th February, 2024 being quashed. 6. Referring to the counter affidavit, Mr. Tripathy, learned AGA for the State would submit that no illegality has been committed as such by the opposite parties. It is submitted that the final Gradation list (Annexure-A/2) was published in the year 2009, wherein, petitioner was placed at serial No.31. As pleaded on W.P.(C) No.12694 of 2024 Page 4 of 14 record, Mr. Tripathy, learned AGA would further submit that after abolition of NWDPRA Scheme funded by the World Bank which was there since 1994 till 2002, in view of the decision of the Government, some Junior Typists (respondent Nos.4 to 7 in O.A. No.1058 of 2010) having worked under the Scheme were absorbed and included in the common Gradation list with the seniority fixed in accordance with the date of their entries into Government service and accordingly, a revised order dated 10th March, 2010 of the Directorate of Agriculture & Food Productions was issued and therein, the petitioner was placed at serial No.35 below them and being aggrieved of it, the OA was filed. Against the plea of the petitioner that no action for promotion was taken by the opposite parties, Mr. Tripathy, learned AGA submits that opposite party No.2 solicited the permission of the Government in Agriculture Department for implementation of the order in W.P.(C) No.2197 of 2013, later to which, the Department of Agriculture and Farmer’s Empowerment, Government of Odisha by order dated 13th May, 2022 finalized the Gradation list based on the absorption in Government service and in the meanwhile, there was a challenge to the same in W.P.(C) No.13257 of 2022, wherein, this Court by order dated 13th May, 2022 in I.A. No.6966 of 2022 passed an interim order restraining opposite party No.2 for taking any further action but thereafter, I.A. No.10899 of 2022 was filed seeking permission to promote six Junior Typists placed at the top of the final Gradation list and the same was allowed by order dated 21st October, 2022. The contention of Mr. Tripathy, learned AGA is that there has been no laches from the side of the opposite parties in giving promotion to the petitioner as the order in W.P.(C) No.2197 of 2013 arrived on 22nd March, 2021, whereafter, it was implemented. The delay in promotion vis-à-vis the petitioner, W.P.(C) No.12694 of 2024 Page 5 of 14 according to Mr. Tripathy, learned AGA, was on account of the litigation pending at her instance, which could be accomplished only upon disposal of W.P.(C) No.2197 of 2013 with the confirmation of the order in O.A. No.1058 of 2010. It is pleaded by Mr. Tripathy, learned AGA that the matter was involved in several court cases challenging the Gradation list and soon after receipt of the order in I.A. No.10899 of 2022 arising out of W.P.(C) No.13257 of 2022, the petitioner and five others were promoted by order dated 22nd December, 2022, hence, therefore, the delay which has occasioned is not at the level of opposite party No.2. The last of the contentions of Mr. Tripathy, learned AGA is that as per the Govt.’s notification dated 19th July, 1982, promotion to the post of Head Typist redesignated as Superintendent Level-II shall be filled up by way of promotion based on merit and suitability in all respect with due regard to seniority from among the Senior Typists of the HOD cadre, who must have completed at least two years of service as on the date of 1st January of the year concerned and since the petitioner joined as Senior Typist on 22nd December, 2022 and as on the date of her retirement, she had not completed the qualifying years of service in that post, hence, was not eligible for further promotion and as such, the opposite parties could not consider the promotion in view of such stipulation. It is summed up by Mr. Tripathy, learned AGA with the contention that the petitioner is not eligible for promotion to the post of Head Typist/Superintendent Level-II due to absence of two years service to the post of Senior Typist and delay in such promotion in 2022 was unavoidable due to the pendency of W.P.(C) No.2197 of 2013 and it was possible only after the order dated 20th April, 2022 in W.P.(C) No.9157 of 2022. W.P.(C) No.12694 of 2024 Page 6 of 14 7. The petitioner was allowed to join in the post of Junior Typist in 1996 after she was successful in the recruitment held. The dispute arose when the revised Gradation list was published in the year 2009 allowing other Junior Typists after being included with their seniority considered retrospectively from 1994 and placed above the petitioner. The said Junior Typists were originally appointed under NWDPRA Scheme funded by the World Bank and was in force till 2002. In fact, as it is made to suggest, the Junior Typists working under the Scheme were found to be surplus after its abolition and hence, adjusted against regular posts and thereafter, the final Gradation list was published on 14th December, 2009 followed by the revised one on 10th March, 2010 including their names and keeping them above the petitioner. Such inclusion of the Junior Typists worked under the Scheme abolished in 2002 was on the basis of their joining in service. It is made to appear that a decision was taken by the Government to absorb the surplus employees working under the said Scheme and since the Junior Typists were initially appointed in 1994, it led to the publication of the revised Gradation list. The inclusion and seniority of the Junior Typists absorbed later on were challenged by the petitioner. The Tribunal in O.A. No.1058 of 2010 held that such Junior Typists appointed under a Scheme funded by the World Bank and not under the regular posts of Government on their subsequent absorption in Government service cannot take seniority above the regular employees. The private respondents therein challenged it in W.P.(C) No.2197 of 2013 ended up being dismissed by order dated 2nd March, 2021. The decision of the Tribunal was affirmed in W.P.(C) No.2197 of 2013 with the conclusion that such seniority of the Junior Typists included in the common Gradation list and placed above the petitioner cannot be allowed. The above facts are not in dispute but the defence of W.P.(C) No.12694 of 2024 Page 7 of 14 the opposite parties is that no illegality has been committed and it is not a case of denial of promotion to the post of Senior Typist by any deliberate act. The Tribunal disposed of the OA in 2012 and as per the petitioner, she was to be immediately promoted to the post of Senior Typist. However, it was intervened by and with the finding of W.P.(C) No.2197 of 2013 which was at the behest of the other Junior Typists, who once worked under the Scheme of the World Bank and subsequently, included in the common Gradation list and placed above her. The contention of Ms. Patnaik, learned counsel for the petitioner is that the promotion was due in 2013 and it was delayed without any decision being taken by the opposite parties. The further contention is that it was further delayed till 2022 and the promotion to the petitioner was allowed only on 22nd December, 2022 when W.P.(C) No.2197 of 2013 was disposed of on 2nd March, 2021 and it was pursuant to the order in W.P.(C) No.9157 of 2022 that the decision to promote her to the post of Senior Typist was taken with the promotion taking place on 22nd December, 2022. Ms. Patnaik, learned counsel for the petitioner contends that had the promotion allowed in 2013, the petitioner would have been promoted to the post of Senior Typist long before and the same did not happen for the reason best known to the opposite parties and in particular, opposite party No.2. Of course, delay has taken place but after disposal of O.A. No.1058 of 2010, the Junior Typist aggrieved by the order filed W.P.(C) No.2197 of 2013 and it was disposed of on 2nd March, 2021. Considering the submission of Mr. Tripathy, learned AGA and the fact that such decision of the Tribunal was challenged shortly thereafter with the filing of W.P.(C) No.2197 of 2013 which was disposed of in 2021, it is not revealed from the record whether there was any interim order therein, nevertheless, the promotion W.P.(C) No.12694 of 2024 Page 8 of 14 of the petitioner was deferred in view of the challenge to the order of the Tribunal in O.A. No.1058 of 2010 and pendency of W.P.(C) No.9157 of 2022. Since the decision of the Tribunal was challenged and the matter was kept pending till 2021 with the disposal of W.P.(C) No.2197 of 2013, in absence of any specific instances of malafide from the side of the opposite parties, according to the Court, it would not be justified to jump to a conclusion that it was on account of any deliberate act to deny promotion to the petitioner. 8. As per Rule 14 of the Rules, promotion to the post of Head Typist designated as Superintended Level-II shall be made on the basis of merit and suitability with due regard to seniority from and amongst the Senior Typists of the cadre, who have completed at least two years of service as on the date of 1st January the year, in which, the DPC is convened provided that the eligibility for promotion may be subject to clearing the departmental examination as prescribed from time to time. As on the time of retirement, the petitioner did not have two years service as a Senior Typist, hence, she was not eligible for further promotion in view of Rule 14 of the Rules. However, the retrospective promotion is demanded by the petitioner with the plea that the promotion to the post of Senior Typist which has happened in 2022 was due in 2013 and was to take place then but did not result, for any fault of her. Of course, she is not responsible and had there been no inclusion of other Junior Typists worked under the Scheme, the petitioner would have been promoted in 2013 itself but under the circumstances with the revised Gradation list published, the same did not materialize. It was true to claim that the petitioner was under expectation that she would be promoted to the post of Head Typist/Superintendent Level-II which required W.P.(C) No.12694 of 2024 Page 9 of 14 minimum two years of qualifying service as Senior Typist which could have been acquired had such promotion taken place in 2013. But to claim that the action of the opposite parties is illegal in not allowing promotion of the petitioner is acceptable only if any malafide is proved and established. The defence of the opposite parties is that with the disposal of W.P.(C) No.2197 of 2013 in 2021 followed by W.P.(C) No.9127 of 2022, the order was implemented by opposite party No.2 and the petitioner and five others were promoted on 22nd December, 2022. What prevailed upon the opposite parties and particularly, opposite party No.2 taking decision to promote the petitioner immediately upon disposal of W.P.(C) No.2197 of 2013 is not discernable from record. In fact, the promotion was allowed in 2022 when W.P.(C) No.2197 of 2013 was disposed of on 2nd March, 2021 and such promotion did happen only after order dated 20th April, 2022 in W.P.(C) No.9157 of 2022. Admittedly, the delay has taken place even after 2nd March, 2021 as the promotion order arrived on 22nd December, 2022. The explanation which is offered by the opposite parties is that necessary permission was sought for from the Government by opposite party No.2 to implement the Court’s order with the final Gradation list published by order dated 13th May, 2022 and the same was again challenged in W.P.(C) No.13257 of 2022. In fact, with the interim order in I.A. No.26966 of 2022 arising out of W.P.(C) No.13257 of 2022, when some more time was consumed, it is difficult to reach at a definite conclusion that the delay in promoting the petitioner to the post of Senior Typist was a deliberate act or laches on the part of opposite party No.2. In other words, due to want of any such evidence to show that opposite party No.2 acted illegally and with an intent to deny promotion to the petitioner, delayed the implementation of the Court’s order in W.P.(C) No.12694 of 2024 Page 10 of 14 W.P.(C) No.2197 of 2013, when it was intervened by other events since the common gradation list dated 13th May, 2022 was again subjected to challenge by the Junior Typists, who were initially placed above the petitioner. The sum and substance of the above discussion is that mere delay in promotion in the facts and circumstances narrated herein before by itself is not sufficient to allege malafide or deliberate laches or lapses on the part of the opposite parties. 9. At this juncture, the Court is to discuss the law on retrospective promotion, which of course survives even after superannuation. It is settled legal position that one cannot claim promotion as a matter of right. If a due process is to follow to consider the case for promotion by the DPC, any such delay in promotion cannot be challenged alleging malafide. A retrospective promotion cannot be permitted on account of administrative reasons, when there is no malice. It has been held in catena of decisions of the Apex Court that the following legal principles, while considering retrospective promotion, are to be borne in mind, such as, service jurisprudence does not recognize any such promotion from a back date; that a decision to grant promotion from an anterior date shall be valid, in case, there exists a rule that authorizes promotion from a retrospective date; promotion from an anterior date shall be granted in case a delay to the promotion is attributable to a malafide like deliberately delaying the DPC to be held depriving the eligible candidates from being promoted and thereby causing severe prejudice. In one such cases, the Delhi High Court in W.P.(C) 8102/2012 and batch of matters (Union of India and another Vrs. K. Taneja and another etc.) decided on 12th April, 2013 held and concluded that mere delay in promotion for certain reasons may be admissible without any malice or malafide W.P.(C) No.12694 of 2024 Page 11 of 14 attributed, where promotion from retrospective date cannot be demanded and allowed. The above legal principles discussed have been taken judicial notice of by the Delhi High Court in the case (supra) to hold that a rule must be in existence allowing retrospective promotion and that promotion and its denial is attributable to a malafide act by the authority concerned. 10. Having considered the facts of the case at hand, the Court does not find any material to conclude that opposite party No.2 either had any deliberate act or malafide to deny promotion to the petitioner. No such specific instances have been brought to the notice of the Court by the petitioner to show and satisfy that opposite party No.2 is guilty of any such illegality. The contention of the petitioner is rather based on the premise that the promotion would have taken place in 2013 and immediately thereafter upon disposal of W.P.(C) No.2197 of 2013 in 2021. It is at the cost of repetition concluded that why and under what circumstances the delay has taken place even after 2nd March, 2021 on disposal of W.P.(C) No.2197 of 2013 is not evident from record against the plea of the opposite parties that steps were taken to implement the order in the year 2022 seeking permission of the Government. Whatever be the reason, admittedly delay has taken place after 2022 but no malafide can be attributed to opposite party No.2 for that matter, which is not case of the petitioner either, as such, promotion was demanded from 2013 but the same could not have taken place in view of the filing of W.P.(C) No.2197 of 2013 with the arrival of the order therein on 2nd March, 2021. In any case, even delay in implementation of the order in W.P.(C) No.2197 of 2013 cannot be alleged to be an act of illegality by opposite party No.2. Unless, malafide is alleged or malice is attributed to the authority and any such instances is W.P.(C) No.12694 of 2024 Page 12 of 14 prima facie proved on record, keeping in view the settled law discussed herein above, the conclusion of the Court is that mere delay in allowing promotion to the petitioner cannot be a ground from such promotion retrospectively. 11. It is no tenebrosity in the settled principles of law that an employee’s right to be considered for promotion, if accrued during the service tenure, does not extinguish upon retirement. In other words, if there is existence of a legitimate claim for promotion, while an employee was in service, the same does not die down after retirement, which may be considered and granted but subject to a rider that the other conditions narrated herein before are fulfilled. It is to be borne in mind that no one has an inherent right to promotion except a right to be considered. If a Court is satisfied that the legitimate right for promotion was lost, notional promotion may be allowed to provide the benefit post- retirement but as earlier stated, the necessary conditions need to be fulfilled with a conclusion that the employee on account of lapses of the employer, who has been guilty of laches and delay in that regard. In Bihar State Electricity Board and others Vrs. Dharamdeo Das in Civil Appeal No. 6977 of 2015 decided on 23rd July, 2024, the Apex Court concluded that the right to be considered for promotion is a part of ‘equality of opportunity’ subject to satisfaction of eligibility criteria and rules applicable. It is observed therein that the spirit behind elevating the right for being considered for promotion to a fundamental right is enshrined in the principle of ‘equality of opportunity’ in relation to matters of employment and failure to consider it would violate the fundamental right guaranteed under Articles 14 and 16(1) of the Constitution of India but such a right cannot translate into a vested right for being necessarily promoted to the promotional W.P.(C) No.12694 of 2024 Page 13 of 14 post unless the rules expressly provide for such a situation. Furthermore, it is also well settled law that no employee can lay claim for being promoted to the next higher level merely on completing the minimum qualifying service. In the case at hand, the petitioner cannot demand promotion with a plea that she would have had the requisite years of qualifying service, had the promotion been allowed in due course but that would not have been sufficient as for such retrospective promotions, merit and suitability with due regard to seniority would have been assessed in view of Rule 14 of the Rules. With the above discussion, the Court reiterates its view that mere delay without any motive would not by itself be sufficient to consider promotion or to grant it notionally from an anterior date and in the present case, no malafide could be attributed and the delay rather is instead found to be primarily on account of litigation vis-à-vis inter se seniority. 12. Hence, it is ordered. 13. In the result, the writ petition stands dismissed, however, in
Decision
the circumstances, there is no order as to costs. 1 . (R.K. Pattanaik) Judge TUDU Signature Not Verified Digitally Signed Signed by: THAKURDAS TUDU Designation: Sr. Stenographer Reason: Authentication Location: OHC,CTC Date: 29-Oct-2024 17:16:02 W.P.(C) No.12694 of 2024 Page 14 of 14