The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.29000 of 2021 Basanta Kumar Nayak …. Petitioner Mr. Bijaya Kumar Dash, Advocate along with Mr. Smruti Ranjan Dash, Advocate State of Odisha and another -versus- …. Opposite Parties Mr. Arnav Behera, ASC CORAM: HON’BLE MR. JUSTICE MURAHARI SRI RAMAN Order No. 06. ORDER 18.09.2024 This matter is taken up through Hybrid Mode. 2. Invoking extraordinary jurisdiction of this Court under Articles 226 & 227 of the Constitution of India, the petitioner has filed this writ petition with the following prayer(s): “Under the above circumstances it is therefore humbly prayed that the Hon’ble Court be graciously pleased to direct the Opposite Party to give promotion to the petitioner to the post of Superintending Engineer and Additional Chief Engineer from the date his immediate juniors got such promotions i.e. from 29.09.2018 and 22.04.2021 respectively with actual financial benefit and to grant him all consequential service and financial benefits including further promotion if any within a stipulated period as deem fit and proper; And/or issue any other appropriate writ/writs, order/orders, direction/directions as deem fit and proper in the fitness of the case; And for this act of this kindness as in duty bound the petitioner shall ever pray.” Page 1 of 9 3. Facts as adumbrated in the writ petition reveal that the petitioner was initially appointed as Assistant Engineer on 11.01.1990, on being promoted, joined as Executive Engineer on 14.06.2006. 3.1. While the petitioner was working as Executive Engineer, three vigilance cases were instituted against him vide Koraput Vigilance P.S. Case Nos.3 of 2011, 5 of 2011 and 6 of 2011, corresponding to G.R Case Nos.3 of 2011, 5 of 2011 and 6 of 2011, pending in the court of the learned Special Judge (Vigilance), Koraput. 4.
Legal Reasoning
Memorandum, which has been declined by this Court in respect of similarly situated employees in Joseph Barik (supra). 6. Considering the aforesaid submissions of the learned counsel for the parties, this Court disposes of this writ petition with a direction to the Principal Secretary in Housing and Urban Development Department, Government of Odisha, opposite party no.1, to consider and dispose of the representation filed by the petitioner under Annexure-6 in accordance with law. The authority concerned may also consider the applicability of legal position as enunciated in Nihar Ranjan Nayak Vrs. State of Odisha, W.P.(C) No.21793 of 2021 vide Judgment dated 06.11.2023, wherein this Court on the factual basis that the case of Nihar Ranjan Nayak had Page 8 of 9 already been recommended by the DPC notwithstanding pendency of criminal case. The authority is also at liberty to have regard to State of Odisha and another Vrs. Joseph Barik, 2023 (II) ILR-CUT 361 for adjudicating as to whether there is similitude of facts with that of the instant case so as to decide the applicability of the principles as expounded in both the above judgments as referred to. 7. It is made clear that this Court has expressed no opinion on the merits of the case and expects the opposite party No.1-authority concerned shall do the needful preferably not later than three months hence and communicate the decision to the petitioner. 8. With the aforesaid observation and direction, this writ
Arguments
Sri Bijaya Kumar Dash, learned counsel appearing for the petitioner submitted that though the name of the petitioner found place at Serial No.33 of the Gradation List vide Annexure-1, the petitioner was denied promotion to the rank of Superintending Engineer. 4.1. He continued to submit that on a plain reading of the F.I.R. and the memorandum of charges levelled against the petitioner, no prima facie case is established against him. Though the vigilance cases were instituted against the petitioner in the year 2011, till date charge sheets in those cases have not yet been filed. The petitioner has no role in delay in disposal of the criminal case as well as the disciplinary proceedings instituted against him. 4.2. He further submitted that law is well settled that a person cannot be put to unnecessary harassment for such a long period. But, keeping the matter hanging for more than thirteen years, the petitioner has already been penalized. Page 2 of 9 4.3. He also submitted that there is no legal impediment on the part of the authorities to promote the petitioner to the post of Superintending Engineer and Additional Chief Engineer from the date his immediate juniors got such promotions with full financial benefits. 4.4. He further submitted that law is well settled that mere pendency of a criminal case for a long time an employee cannot be put to harassment and debar him the rightful claim for promotion. Alternative argument has been advanced by learned counsel for the petitioner that if no regular promotion is permissible, ad hoc promotion could be given to him/her. In this regard, he has also drawn notice of this Court to the Office Memorandum dated 17.06.2021 issued by the Government of Odisha in General Administration and Public Grievance Department, relevant portion of which reads as thus:- “No.GAD-SC-GCS-0035-2020— 15643/Gen. Government of Odisha General Administration and Public Grievance Department Office Memorandum Bhubaneswar, dated the 17th June, 2021 Subject:- Promotion of Government servants against whom Disciplinary Proceedings are pending procedure to be followed. The Procedure to be adopted by the Departmental for Promotion Committee while selecting employees promotion to the next higher grade when any Disciplinary Proceeding is pending has been prescribed in G.A. & P.G. Department Office Memorandum No.3928/Gen., dated 18.02.1994 r/w Office Memorandum No.29699/Gen., dated 01.11.1997. Besides, in order to ensure expeditious disposal of proceedings to facilitate timely promotion of Government Page 3 of 9 Servants, a quarterly review of the Disciplinary Proceeding has been prescribed in G.A. & P.G. Department Office Memorandum No.9162/Gen., dated 29.04.2017. Instances have come to the notice of the Government that in spite of the afore-stated instructions, the Disciplinary Proceedings against the Government Servants are pending for long period, which unfairly results in depriving Government Servants of getting promotions. 2. After careful consideration of the above aspects, it has been decided by the Government to prescribe the following principles for consideration of ad hoc promotion of Government employees against whom Disciplinary proceedings are pending for more than two years:- (i) In cases where Disciplinary Proceedings are pending under Rule 15 of O.C.S. (CC&A) Rules, 1962, the sealed cover procedure as envisaged in G.A. & P.G. Department Office Memorandum No.3928/Gen., dated the 18th February 1994 should be adopted. (ii) In cases where Disciplinary Proceedings against the delinquent Government employees have not come to an end even after the expiry of two years from the date of the meeting of the Departmental Promotion Committee in which the sealed cover procedure in his/her respect was the adopted, promotion cases subsequently (provided the delinquent Government employee is not under suspension) to consider the desirability of allowing ad hoc promotion, if the delinquent officer has not defaulted in expeditious disposal of Disciplinary Proceedings keeping in view the following aspects: the Appointing Authority may review (a) Whether the promotion of the employee will be against the public interest; (b) Whether the charges are grave enough to warrant continued denial of promotion; (c) Whether there is likelihood of the case coming to a conclusion in the near future; Page 4 of 9 (d) Whether the delay the proceedings is not directly or indirectly attributable to the employee concerned; finalization of the in (e) Whether there is any likelihood of misuse of the Official position that the employee may occupy after ad hoc promotion, which may adversely affect the conduct of the departmental case. In case the Appointing Authority considers that it 3. would not be against the public interest to allow ad hoc promotion to the employee concerned, his/her case should be placed before the next Departmental Promotion Committee to be held in the normal course to decide whether the employee is suitable for promotion on ad hoc basis. If the employee is considered suitable, on the basis of the totality of his/her record of service, without taking into account the pending disciplinary case against him/her, an order of ad hoc promotion may be issued in his/her favour from the due date of his/her promotion on notional basis and financial benefits from the actual date of joining against promotional post. In case the Disciplinary Proceeding continues till the regular promotion of his/her earlier junior officer to the subsequent promotional rank, the officer concerned shall be considered for further ad hoc promotion on the basis of totality of his/her record of service without taking into account the pending Disciplinary Proceeding against him. The order of ad hoc promotion shall make it clear that:- (I) (II) the ad hoc promotion is being made purely on ad hoc basis to ensure that the Officer concerned does not suffer due to lingering Disciplinary Proceeding and thus the ad hoc promotion will not confer any right for regular promotion; and in the event the employee were to be denied promotion consequent upon the decision of the Page 5 of 9 on the pending Government disciplinary proceeding then the case of the employee would be decided as per the decision on the Disciplinary Proceeding and extant Government rules. the Government reserves the right to cancel the ad hoc promotion at any time and revert the employee to the post from which he/she was promoted without assigning any reason there for the name of the officer promoted on ad hoc basis shall not be placed in the gradation list which is meant for the regular employees. (III) (IV) (V) An employee after his/her ad hoc promotion, if awarded with major punishment, shall be reverted to the post from which he/she was promoted on ad hoc basis and his/her case shall be considered for promotion afresh on regular basis as per the stipulations prescribed at paragraph 7 of GA & PG Department OM No.3928 dt.18.02.1994 read with OM No.29699, dated 01.11.1997 and he/she shall not be entitled for any service/incremental benefit on the basis of the service rendered during the period of his/her ad hoc promotion. This Department Office Memorandum No.9162/Gen., dated 29.04.2017 stands modified to the above effect. All other conditions contained in the aforesaid Office Memorandum remain unchanged. By order of Governor Sd/- Additional Chief Secretary to Government” 4.5. Mr. Bijaya Kumar Dash, learned counsel appearing for the petitioner distinguishing the Division Bench decision of this Court rendered in State of Odisha and another Vrs. Joseph Barik, 2023 (II) ILR-CUT 361, cited a judgment dated 06.11.2023 rendered by a Page 6 of 9 co-ordinate Bench of this Court in W.P.(C) No.21793 of 2021 (Nihar Ranjan Nayak Vrs. State of Odisha and another) and submitted that since there is inordinate delay in disposal of the vigilance cases and disciplinary proceedings, the petitioner deserves to be considered for promotion to the higher rank by the authorities. Thus, being the factual matrix, he submitted that the petitioner should not have been deprived of enjoying the fruits of promotional post in the rank of Superintendent Engineer. 4.6. His alternative submission before this Court is that since the petitioner has already approached the Principal Secretary in Housing and Urban Development Department, Government of Odisha, Bhubaneswar, opposite party no.1 by a representation dated 30.07.2021 under Annexure-6, the authority concerned can consider the same and take an appropriate decision on the same within a stipulated period. 5. Sri Arnav Behera, learned Additional Standing Counsel strongly opposed the contention raised by Sri Bijaya Kumar Dash, learned counsel for the petitioner and urged to dismiss the writ petition. He submitted that as long as criminal case is pending, there is little scope for grant of relief to the petitioner as sought for. He submitted that in view of ratio of judgment laid down in the case of Joseph Barik (supra) the petitioner is not entitled for any relief. However, he has no objection, if a direction is given to opposite party no.1 to consider the representation of the petitioner at Annexure-6 and dispose of the same. 5.1. Sri Arnav Behera, learned Additional Standing Counsel has made the submission that the Office Memorandum dated Page 7 of 9 17.06.2021 on which the learned counsel for the petitioner placed heavy reliance has been considered in the case of Joseph Barik (supra) at paragraph 8 of the judgment, which is to the following effect: “8. The Court has been shown a compilation of Office Memoranda (OMs) and Notifications issued by the Government of Odisha from time to time. These include OM dated 18th February 1994, 4th July 1995, 1st November 1997, 28th January 1999, 28th May 2012, 29th April 2017 and 17th June 2021issued by the General Administration Department. None of them envisages or permits grant of promotion to a government servant either on regular or on ad hoc basis during the pendency of a criminal case involving such government servant.” 5.2. He went on to submit that in the instant case, the petitioner does seek for consideration of promotion in terms of said Office
Decision
petition stands disposed of. (M.S. Raman) Judge Aswini/MRS Signature Not Verified Digitally Signed Signed by: MANORANJAN SAMAL Designation: PERSONAL ASSISTANT Reason: Authentication Location: Orissa High Court, Cuttack Date: 18-Sep-2024 18:52:56 Page 9 of 9