The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK WP(C) No.17582 of 2022 Sarojakanta Mohapatra State Of Odisha & Ors. ..... ..... -versus- CORAM: Petitioner Mr. S.K. Ojha, Advocate Opposite Parties Mr. M.K. Balabantaray, AGA Mr. L.P. Dwivedy, Advocate (Intervenor) Mr. M. Pratap, Advocate (Intervenor) THE HON'BLE MR. JUSTICE BIRAJA PRASANNA SATAPATHY ORDER 07.05.2024 Order No. 17 1. This matter is taken up through hybrid mode.
Legal Reasoning
2. Heard learned counsel appearing for the Parties. 3. The present writ petition has been filed inter alia with the following prayer:-
Decision
“Under the facts and circumstances, it is most humbly and respectfully prayed that the Hon’ble Court may be graciously pleased to issue a Rule Nisi calling upon the opposite parties to show cause as to why writ in the nature of certiorari order dated.02.02.2022 (Annex.10) and further writ of mandamus shall not be issued directing opp. Parties to go for promotional selection only after publishing fresh gradation list incorporating the name of the petitioner in appropriate place. quashing issued shall not the be If, the Opp. Parties failed show cause or show insufficient cause, rule may be made absolute.” 4. It is contended that vide office order dtd.31.12.2019 so issued under Annexure-4 though Petitioner was regularized from his initial Page 1 of 5. date of appointment, but the final gradation list since had already been published on 19.03.2019 under Annexure-2, Petitioner after such order of regularization issued on 31.12.2019 made a representation to place him at the appropriate place. As the same was not considered, he approached this Court in W.P.(C) No. 28505 of 2021. This Court vide order dtd.16.09.2021 disposed of the writ petition with a direction on Opp. Party No. 2 to take a decision on the Petitioner’s claim as made in Annexure-5. 4.1. It is contended that without proper appreciation of the Petitioner’s claim, the same was rejected vide impugned order dtd.02.02.2022 under Annexure-10. It is also the case of the Petitioner that without considering his position in the gradation list since Opp. Parties were in the process to extend the benefit of promotion, this Court passed an interim order on 25.07.2022 inter alia directing that no promotion to the post of Senior Assistant be made till the next date. It is also contended that on the face of such order passed on 25.07.2022 Opp. Party No. 1 issued the order of promotion on 26.07.2022. 4.2. Learned counsel for the Petitioner contended that since vide order under Annexure-4 Petitioner was regularized from his initial date of appointment, which is 11.01.2016, he should have been placed in his proper place in the gradation list so published by Opp. Party Nos. 1 & 2. But instead of doing that when benefit of promotion was not extended, the present writ petition was filed. 4.3. It is contended that in view of the nature of order passed under Annexure-4, if Petitioner would have been placed in its proper place in the gradation list, he would have got the benefit of promotion when persons similarly situated were so extended vide Page 2 of 5. orderd.26.07.2022. Because of the in action on the part of Opp. Parties in not correcting the gradation list of Junior Assistant, Petitioner was deprived to get the benefit of promotion, when persons similarly situated got the said benefit of 26.07.2022. 5. Mr. Balabantaray, learned Addl. Govt. Advocate on the other hand contended that by the time Petitioner was regularized from his initial date of appointment vide order dtd.31.12.2019 under Annexure-4, the gradation list of Junior Assistant had already published vide Annexure-2 dtd.19.03.2019. Basing on the position of the Junior Assistant in the said final gradation list, a letter was issued by the Govt. on 15.01.2021 to consider the claim of the eligible Junior Assistant to get the benefit of promotion to the rank of Sr. Assistant. 5.1. Even though after getting the benefit of regularization vide order dtd.31.12.2019, Petitioner made a representation on 09.01.2020 under Annexure-5 to place him at appropriate place, but since by that time gradation list was already published, Petitioner’s claim could not be considered while considering the claim of other Jr. Assistants so obtained in Annexure-2 with extension of the benefit of promotion vide order dtd.26.07.2022. It is also contended that in the meantime Petitioner has been appropriately placed in the gradation list so published on 03.08.2022. 6. Mr. L.P. Dwivedy, learned counsel appearing for the Private Opp. Parties on the other hand contended that even though Petitioner was regularized w.e.f.16.01.2016, but he being an UR candidate, he cannot get the benefit of promotion in terms of order dtd.26.07.2022 as the last person so promoted in UR Category had joined on 10.05.2011. It is accordingly contended that though Private Opp. Page 3 of 5. Parties got the benefit of promotion vide order dtd.26.07.2022, but in view of the interim order the same has been kept in abeyance vide order issued on 13.02.2023 and 09.03.2023. 7. Having heard learned counsel appearing for the Parties and considering the submission made, this Court finds that by the time Petitioner was regularized vide order under Annexure-4, gradation list of Jr. Assistant was already published on 19.02.2019. 7.1. Even though Petitioner made an application for correction of the gradation list on 09.01.2020 and 29.05.2020, but without considering the same vide office order dtd.09.07.2020 persons working as Junior Assistant were given the benefit of promotion to the post of Senior Assistant. Thereafter, report was called for to extend the benefit of promotion to Junior Assistant to the rank of Senior Assistant vide letter dtd.15.07.2021 under Annexure-8. Petitioner again made a representation on 02.08.2021 under Annexure-9 to place him at the appropriate place in the gradation list of Junior Assistant. But instead of doing that further order of promotion was issued on 26.07.2022 on the face of the interim order passed by this Court on 25.07.2022. 7.2. Considering the submission made, this Court is of the view that since Petitioner was regularized retrospectively vide office order dtd.31.12.2019 and on the face of his application submitted under Annexure-5, 6 & 9, his position was not corrected by placing him at the appropriate place till 26.07.2022, this Court directs Opp. Party Nos. 1 & 2 to consider the claim of the Petitioner to get the benefit of promotion by conducting a review DPC. This Court directs Opp. Party Nos. 1 & 2 to conduct a review DPC and consider the eligibility of the Petitioner to get the benefit of promotion by taking Page 4 of 5. his initial date of appointment in terms of office order dtd.31.12.2019. Such review DPC be conducted within a period of two (2) months from the date of receipt of this order. On conduct of such review DPC if Petitioner is found otherwise eligible in accordance with the relevant rules governing the field, benefit of promotion be extended in favour of the Petitioner with all consequential service and financial benefits from the date similar Jr. Assistant in UR Category got the benefit in terms of order dt.26.07.2022. 8. The writ petition is disposed of accordingly. Interim order passed on 25.07.2022 stands vacated. Sneha (BIRAJA PRASANNA SATAPATHY) Judge Signature Not Verified Digitally Signed Signed by: SNEHANJALI PARIDA Reason: Authentication Location: High Court of Orissa, Cuttack Date: 09-May-2024 16:33:40 Page 5 of 5.