The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.28690 of 2021 Bishnu Prasad Swain State of Odisha and others -versus- …. Petitioner Mr.B.Manasingh, Advocate …. Opp. Parties Mr. P.C.Das, A.S.C. CORAM: JUSTICE A.K. MOHAPATRA Order No.
Decision
ORDER 13.03.2024 05. 1. This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode). 2. Heard learned counsel for the petitioner as well as learned Additional Standing Counsel appearing for the State-Opposite Parties. Perused the pleadings of the parties as well as documents annexed to the pleadings. 3. The present Writ Petition has been filed by the Petitioner with the following prayer : that “The petitioner most respectfully prays this Hon'ble Court may graciously be pleased to admit / allow this writ petition and after hearing the parties direct the O.P to consider the promotion to the rank of Deputy Secretary with retrospective effect from 27.01.2020 in view of Judgment / order under Annexure-3 forthwith. AND Pass such other order (s) / direction (s) / wit (s) as are deemed just and proper in the bonafide interest of justice.” 4. It is submitted by learned counsel for the Petitioner that earlier this matter was disposed of by a Coordinate Bench of this Court on 21.09.2021 wherein the Coordinate Bench had directed the Opposite Party No.1 to open the sealed cover has been give promotion to the // 2 // Petitioner to rank of Deputy Secretary from the date of his juniors and batch mates, namely, Santosh Kumar Jena got such promotion. However, such promotion shall be subject to the ultimate outcome in the criminal proceeding which is pending against the present Petitioner. However, it was clarified that such promotion given to the Petitioner to different rank shall not confer any equity in the event, he ultimately convicted the criminal proceeding. 5. The order dated 21.09.2021 was challenged before a Division Bench of this Court vide W.A. No.421 of 2022. The Hon’ble Division Bench on 27.03.2023 set aside the order passed by the learned Single Judge on 21.09.2021 and the matter was remanded for rehearing after filing of the counter affidavit. The State-Opposite Parties have given opportunity to filing their counter affidavit and that the matter has again been listed before this Bench. 6. In the counter affidavit filed by the Opposite Party No.1 it appears that the Petitioner was appointed as Jr. Assistant on 30.08.1990. Thereafter, he was promoted to the rank of Section Officer on 14.07.2011 and to the post of Desk Officer on 31.01.2014. It has also been stated that the promotion to the post of rank of Deputy Secretary in OSS Cadre is being considered on the basis of the position in the gradation list of Under Secretary not on the basis of the Desk Officer Gradation list. It has also been stated that the case of the Petitioner has been considered in the DPC held on 09.02.2018 for promotion to the rank of Under Secretary and the recommendation of such DPC has been kept in a sealed cover due to pendency of Disciplinary Proceeding basing on criminal proceeding. Similarly, the case of the Petitioner was also considered for promotion to the post of Deputy Secretary and the recommendation of the DPC has also been kept in a sealed cover due to pendency of the Proceedings against the Petitioner. // 3 // 7. The counter affidavit further reveals that while the Petitioner was working as Jr. Assistant, a criminal case registered against him on 26.07.2014 for commission of offences under Section 147, 148, 452, 323, 354-B, 294, 380, 506, 149 IPC read with Section 3 (i)(x)(xi) of SC & ST (POA) Act. The said criminal case the charge sheet has also been filed indicating the name of the Petitioner, it is stated that the matter is pending for trial. On the basis of such criminal case, the D.P. was initiated on the basis of the Home Dept. Memo No.37025 dt.04.11.2015. In the counter affidavit, a ground has been taken that although in the G.A. & P.G. Dept. O.M. No.15643 dtd.17.06.2021 provides for adhoc promotion to the employees who are facing D.P. and such proceeding is pending for more than two years, similar provision has not been incorporated in case of criminal proceedings pending against the Govt. Servants. 8. In reply to the contention of the State-Opposite Parties in the counter affidavit, learned counsel for the Petitioner submitted that the learned Single Judge Bench earlier taking note of all those facts had directed the Opposite Party No.1 to give promotion to the Petitioner by opening the sealed cover, however, the same shall be subject to the condition mentioned in order dated 21.09.2021. He further contended that in a similar situation a Coordinate Bench of this Court in Mrunmaya Kumar Senapati vs. State of Odisha & anr. in W.P.(C) NO.31749 of 2021 vide order dated 15.09.2023 had directed opening of the sealed cover as the D.P. in that case was quashed. So far the case of the Petitioner is concerned, learned counsel for the Petitioner submitted that the D.P. which was initiated against the Petitioner was assailed before this Court by filing W.P.(C) No.24522 of 2023. This Court vide order dated 10.08.2023 directed the Opposite Parties to conclude the pending D.P. of the year 2015 within a period of six weeks from the date of production of a copy of that order. Further, it was directed that // 4 // the same is not concluded within the aforesaid six weeks, it will be deemed that proceeding is quashed by this Court and accordingly the Opposite Party No.1 shall consider the case of the Petitioner for promotion by convening a review DPC within a period of six weeks thereafter. 9. Having heard the learned counsels appearing for the respective parties and on a careful consideration of the submission made as well as on a careful analysis of the pleadings of the respective parties and materials on record, also keeping in view the order dated 10.08.2023 passed in W.P.(C) No.24522 of 2022, this Court is of the considered view that the order dated 21.09.2021 was rightly passed by the Coordinate Bench of this Court. Although the Opposite Parties have filed a counter affidavit, however, they have not been able to improve upon their case. Further keeping in view the provisions contained in O.A. of the G.A. & P.G. Dept. O.M. No.15643 dtd.17.06.2021 under Annexure-3, this Court is of the considered view that the D.P. has already been quashed, however, the same is not stand in the way of the Petitioner in getting promotion to the next higher rank. Further, there is no bar in law not granted promotion to the Petitioner due to pendency of the Criminal Proceeding against the present Petitioner. In such view of the matter, this Court deems it proper to allow the writ application by directing the Opposite Parties to give promotion to the Petitioner by opening the sealed cover in respect of post of Under Secretary as well as Deputy Secretary from the date of recommendation of the DPC w.e.f. the date his juniors or batch mates were given such promotion and accordingly all consequential and financial benefits be calculated and paid to the Petitioner within a period of two months. It is further made clear that aforesaid promotion of the Petitioner shall be subject to the final outcome of the Criminal case pending against the present // 5 // Petitioner. 10. With the aforesaid observation/direction, the writ petition is disposed of. 11. Urgent certified copy of this order be granted on proper application. Anil ( A.K. Mohapatra) Judge Signature Not Verified Digitally Signed Signed by: ANIL KUMAR SAHOO Reason: Authentication Location: High Court of Orissa Date: 14-Mar-2024 21:20:34