In the matter of the application under Articles 226 and 227 of the Constitution v. State of Odisha and others
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.22705 of 2024 In the matter of the application under Articles 226 and 227 of the Constitution of India. Suprava Nayak … Petitioner - Versus - State of Odisha and others … Opposite Parties Advocate(s) appeared in this case:- --------------------------------------------------------------------------------------- For Petitioner … M/s. Rabinarayan Nayak, N.K. Sen, S. Sahani, S. Nayak & C. Sethy For Opposite Parties … Mr. Samresh Jena, Additional Standing Counsel. --------------------------------------------------------------------------------------- PRESENT: THE HONOURABLE SHRI JUSTICE ADITYA KUMAR MOHAPATRA Date of hearing- 21.03.2025 :: Date of judgment : 02.04.2025 Aditya Kumar Mohapatra, J. By filing the present writ petition, the Petitioner has prayed for issuance of writ of mandamus to the Opposite Party No.2 with a direction to correct her surname from “Supravanalini Rout” to “Suprava Nayak” in the seniority list under Annexure-1. A further prayer has also been made for a direction to the Opposite Parties to consider the prayer of the Petitioner for Page 1 of 17. promotion to the post of Assistant Nursing Superintendent keeping in view her seniority in the gradation list and to give her promotion w.e.f. the date her immediate junior, namely, Smt. Baijayantimala Sahoo (Serial No.93 in the common gradation list of Nursing Officers as on 01.11.2022 under Annexure-6) was given such appointment with effect from 21.01.2023 under Annexure-4 to the writ petition. Accordingly, the Opposite Parties be further directed to grant notional promotion w.e.f. 21.01.2023 along with all consequential service and financial benefits as is due and admissible to the Petitioner in terms of the Odisha Nursing Service (Method of Recruitment and Conditions of Service) Amendment Rules, 2020. Petitioner has also prayed for a direction to the Opposite Parties to consider the case of the Petitioner for further promotion after giving promotion to the post of Assistant Nursing Superintendent as per the rules. 2. The factual backdrop of the Petitioner’s case, in short, is that the Petitioner was initially appointed in service on 04.01.1991 by the Director of Health Services and she was posted at S.C.B. Medical College and Hospital, Cuttack. While working as such, the surname of the Petitioner was changed from “Suprava Nalini Page 2 of 17. Rout” to “Suprave Nayak” by order of the Superintendent, S.C.B. Medical College & Hospital on 20.08.2005. While the matter stood thus, on 04.11.2020, the Orissa Nursing Service (Method of Recruitment & Conditions of Service) Rules was amended thereby prescribing a fresh criteria for promotion. On 25.11.2022, a final common gradation list of the Nursing Officers was prepared and published by the Opposite Party No.2. 3. While this was the position, on 29.12.2022, a DPC meeting was convened and held to consider the case of the Nursing Officers for promotion to 381 posts of Assistant Nursing Superintendent. It appears that the Petitioner, along with other candidates in the gradation list, were eligible to be considered for such promotion as they were satisfying the eligibility criteria as has been laid down in the amended rules of the year 2020. Finally, vide order dated 21.01.2023 promotion orders in respect of 77 Nursing Officers to the post of Assistant Nursing Superintendent was issued without considering the case of the Petitioner for promotion to the post of Assistant Nursing Superintendent. Thereafter, the Petitioner submitted a representation on 26.01.2023 before the Opposite Party No.2. Such representation was duly forwarded to the office of the Page 3 of 17. Opposite Party No.5 for carrying out necessary correction of the name of the Petitioner as has been reflected in the final gradation list. 4. The pleadings further reveal that another restructuring of Nursing Cadre took place in the year 2023. Accordingly, a restructured gradation list was published by the Health & Family Welfare Department on 04.12.2023. On 18.04.2024, the Health & Family Welfare Department, Government of Odisha vide Resolution No.9661 created extra promotional posts of Nursing personnel. On 04.06.2024, the Petitioner again submitted another representation before the Opposite Party No.2 through the Opposite Party No.5 to consider her case for promotion to the next higher post. Since no action was taken, the Petitioner was compelled to approach this Court by filing W.P.(C) No.15277 of 2024. 5. A coordinate Bench of this Court vide order dated 05.07.2024 disposed of the above noted writ petition with a direction to the Opposite Party No.2 to consider the representation of the Petitioner within a period of six weeks. Although the order passed by the coordinate Bench in the above noted writ petition was communicated to the competent authority, it is alleged by the Page 4 of 17. Petitioner that no decision was taken on the said representation of the Petitioner under Annexure-9 dated 04.06.2024. Learned counsel for the Petitioner, at this juncture, contended that since the Petitioner is going to retire from service on attaining the age of superannuation w.e.f. 30.04.2025 and the Petitioner has no other alternative, she has approached this Court by filing the present writ petition. 6. Learned counsel for the Petitioner, at the outset, contended that the Petitioner has rendered continuous service for more than three decades as a Nursing Officer. He further contended that although the Petitioner is eligible to be promoted to the post of Assistant Nursing Superintendent in view of the amended rule of the year 2020 and the Petitioner satisfies all the eligibility criteria, the Opposite Parties have committed an illegality by not considering her case along with all eligible candidates. He further contended that vide order dated 21.01.2023, although 77 Nursing Officers were given promotion to the post of Assistant Nursing Superintendent, however, out of the aforesaid 77 officers, 46 Nursing Officers are junior to the present Petitioner and they have been given promotion ignoring the just and fair case of the present Page 5 of 17. Petitioner. In such view of the matter, learned counsel for the Petitioner contended that the Opposite Parties have grossly violated the provisions contained in Article 14 and 16 of the Constitution of India to the effect that the case of the Petitioner has not been considered for promotion while giving promotion to his juniors although no judicial or criminal proceeding is pending against the
Legal Reasoning
present Petitioner. In the aforesaid context, learned counsel for the Petitioner finally contended that the Opposite Parties be directed to give promotion to the Petitioner to the post of Assistant Nursing Superintendent along with all consequential service and financial benefits as expeditiously as possible, preferably before the Petitioner takes retirement from service. 7. Learned counsel for the State, on the other hand, referring to the counter affidavit dated 11.03.2025 admitted the fact that the Petitioner has been working as a Nursing Officer at SVP PG Institute of Pediatrics (Sishu Bhawan), Cuttack on being deployed from the S.C.B. Medical College & Hospital, Cuttack. Further, referring to paragraph-5 of the counter affidavit, learned counsel for the State contended that Opposite Parties No.1 and 2 have categorically stated that the case of the Petitioner could not be Page 6 of 17. considered by the DPC held on 29.12.2022 due to non-availability of documents like CCRs, Non-pendency of Departmental Proceeding, Vigilance Clearance Certificate and Property Statement etc. 8. Similarly, in Paragraph-6 of the counter affidavit, it has been stated that the name of the Petitioner has already been changed in the meantime and her surname has been replaced as ‘Nayak’ in place of ‘Rout’ vide order No.13127 dated 20.08.2005 of the Superintendent, S.C.B. MCH, Cuttack. Since such order had not been communicated to the office of the Directorate of Nursing, Odisha, no follow up steps were taken by the Directorate of Nursing. It has also been stated that no representation/objection has been received by the Opposite Party No.1 and 2 with a prayer for correction of the surname. As such, name of the Petitioner has been continued to be shown as “Suprva Nalini Rout” instead of “Suprava Nayak” in the gradation list published on 25.11.2022. 9. Learned counsel for the State further contended that due to non-availability of required documents, as has been indicated in the preceding paragraph, the case of the Petitioner was not considered for promotion to the post of Assistant Nursing Superintendent Page 7 of 17. while considering the case of other eligible candidates and some of them are admittedly junior to the Petitioner. He further contended that since the cadre has been restructured in the meantime, the next promotional post of the Petitioner would be Senior Nursing Officer instead of Assistant Nursing Superintendent. Accordingly, it has been stated that the representation of the Petitioner under Annexure-9 with a prayer for promotion to the post of Assistant Nursing Superintendent is legally unsustainable. 10. Further, referring to the proceeding of the DPC meeting dated 29.12.2022 under Annexure-7 to the writ petition, learned counsel for the State contended that while giving promotion to 77 eligible Nursing Officers to the post of Assistant Nursing Superintendent, the case of the remaining officers, where the service records were not placed before the DPC, have not been considered and the same was deferred to be considered in a review DPC within 30 days from the date of DPC meeting which was held on 29.12.2022. With regard to the convening of review DPC meeting, learned counsel for the State contended that the same could not be convened before issuance of Resolution dated 04.12.2023 of the Government of Odisha in Health & Family Welfare Department due to heavy work Page 8 of 17. load, shortage of experienced employee and the some administrative inconvenience. 11. Furthermore, with regard to the correction of surname, he contended that necessary steps have been taken by the Directorate keeping in view the order dated 20.08.2005 passed by the Superintendent, SCB MCH, Cuttack while publishing the revised gradation list. In reply to the compliance of the order passed by this Court in the previous writ petition on 05.07.2024, learned counsel for the State contended that the representation of the
Decision
Petitioner has been disposed of by passing a speaking and reasoned order on 09.12.2024 under Annexure-A/2 to the counter affidavit. Finally, learned counsel for the State submitted that in view of the restructuring of the cadre pursuant to the Resolution dated 04.12.2023 of the Government of Odisha in Health & Family Welfare Department, the Petitioner cannot be given promotion to the post of Assistant Nursing Superintendent. On such ground, learned counsel for the State submitted that the writ petition is devoid of merit and, as such, the same should be dismissed. Page 9 of 17. 12. Heard learned counsels appearing for both the sides. Perused the pleadings of the respective parties as well as materials placed before this Court for consideration. 13. Having heard the learned counsels appearing for both the parties, on a careful examination of the pleadings of the respective parties, further keeping in view the nature of dispute involved in the present writ petition, this Court observes that the question that is required to be adjudicated in the present writ petition is as to whether the Petitioner is entitled to get promotion to the post of Assistant Nursing Superintendent keeping in view the fact that 46 junior Nursing Officers have been given such promotion, in the meantime, pursuant to the DPC proceeding dated 29.12.2022 under Annexure-7, while deferring the case of the Petitioner due to absence of CCRs and other records of the Petitioner? The second question that also requires adjudication is as to whether after restructuring of the cadre pursuant to the Resolution dated 04.12.2023 of the Government of Odisha in Health & Family Welfare Department the case of the Petitioner can be considered for promotion to the post of Assistant Nursing Superintendent under the unamended cadre rules? Page 10 of 17. 14. On a careful analysis of the factual background of the present case and keeping in view the submissions made by the learned counsels appearing for both the sides, this Court observes that most of the factual aspects are not disputed by either side. The only dispute that remains to be adjudicated is with regard to the applicability of the old cadre rule to the case of the Petitioner and the conduct of the Opposite Parties in not considering the case of the Petitioner in the DPC meeting held on 29.12.2022 under Anexure-7 to the writ petition. In the aforesaid context, this Court, on a careful analysis of the materials on record, observes that the Opposite Parties in their counter affidavit have categorically admitted the fact that although the Petitioner was eligible to be promoted to the post of Assistant Nursing Superintendent, however, her case was not considered due to non-availability of CCRs and departmental proceeding/criminal proceeding/vigilance clearance and property statement. It has already been admitted by the Opposite Parties that some of the candidates, who are junior to the Petitioner have been given promotion to the post of Assistant Nursing Superintendent. Page 11 of 17. 15. In the aforesaid factual backdrop, this Court is of the considered view that conduct of the Opposite Parties in not considering the case of the Petitioner for promotion to the post of Assistant Nursing Superintendent is grossly illegal, arbitrary and discriminatory in nature inasmuch as the juniors to the Petitioner were admittedly given promotion to the post of Assistant Nursing Superintendent in the DPC proceeding held on 29.12.2022 under Annexure-7 to the writ petition prior to amendment of the cadre rules. Further, on perusal of the DPC proceeding under Annexure- 7 to the writ petition, it appears that the case of the Petitioner was deferred to be considered in a special DPC within thirty days from the date of the DPC meeting held on 29.12.2022 under Annexue-7 to the writ petition. However, no such special DPC/review DPC was ever convened by the Opposite Parties, however, in the meanwhile the cadre rules were amended by the Opposite Parties. 16. Additionally, the Opposite Parties have taken a ground that due to non-availability of CCRs/Departmental Proceedings/ clearance, the case of the Petitioner was not considered along with other eligible candidates in the DPC meeting held on 29.12.2022. Nowhere in the counter affidavit the Opposite Parties have taken a Page 12 of 17. stand that the Petitioner was not eligible for consideration for appointment to the post of Assistant Nursing Superintendent. Therefore, the said question rests there and no further discussion is required on the aforesaid issue. As such, this Court would now proceed by accepting the fact that the Petitioner was eligible by the time the DPC meeting was convened on 29.12.2022. 17. Furthermore, it is a settled position of law that the records are to be forwarded by the controlling authority to the DPC for consideration of the case of all the eligible employees/officers for the next higher post that too without any discrimination or bias. In the event such records/documents are not placed before the DPC in respect of any particular employee, the blame cannot put on the concerned employee. It is needless to mention here that the entire responsibility of forwarding the records/documents to the DPC vests entirely on the controlling authority of the concerned office. Therefore, the ground that such documents were not available cannot be taken by the Opposite Parties collectively to deny the legitimate claim of the Petitioner for promotion to the next higher post. Page 13 of 17. 18. It is apt to mention here that law on promotion in service matter has progressed a lot in the meantime by virtue of several judgments of this Court as well as the Hon’ble Supreme Court. The right to be considered for promotion to the higher post has been accepted as a fundamental right guaranteed to the concerned officers/employees under Article 14 and 16 of the Constitution of India, although the same may not be available when a claim is made directly for promotion to a particular post. Definitely non- consideration of a case of an employee/officer for promotion, despite the fact that such employee/officer was eligible for such promotion, is definitely hit by the principle laid down in Articles 14 and 16 of the Constitution of India. By applying the aforesaid principle to the case of the present Petitioner, this Court has no hesitation in arriving at the conclusion that the conduct of the Opposite Parties, in so far as the present Petitioner is concerned, is definitely hit by Article 14 and 16 to the Constitution of India. 19. Next, with regard to applicability of the Resolution dated 04.12.2023 of the Government of Odisha in Health & Family Welfare Department, i.e. restructuring of the cadre, this Court observes that the restructuring took place much after the DPC Page 14 of 17. meeting was held on 29.12.2022. While the case of the Petitioner should have been considered along with other eligible candidates including some of the juniors to the Petitioner, this Court is of the considered view that irrespective of the restructuring of the cadre, the case of the Petitioner should have been considered for the post of Assistant Nursing Superintendent inasmuch as 46 juniors have been given promotion to such post in the DPC meeting that was held on 29.12.2022. Therefore, it is clear that such conduct of the Opposite Parties is grossly discriminatory in nature. 20. In such view of the matter, this Court has no hesitation in coming to a conclusion that the Opposite Parties should have convened the review DPC as has been mentioned in the proceedings meeting of the DPC held on 29.12.2022 under Annexure-7 to the writ petition. The explanation given in the counter affidavit with regard to the non-holding of such review/special DPC appears to be a lame excuse given by the Opposite Parties to defend their own illegal conduct in the shape of their failure to conduct such special review DPC. 21. In view of the aforesaid analysis of the factual position as well as the principle of law involved in the present writ petition, Page 15 of 17. this Court is of the considered view that the Opposite Parties have committed serious illegality by not convening the special/review DPC within thirty days from the date the last DPC was convened on 29.12.2022 under Annexure-7 to the writ petition. 22. In view of the aforesaid analysis, the present writ petition is hereby allowed. The Opposite Parties are directed to convene the special/review DPC within a period of thirty days from today and give promotion to the Petitioner to the post of Assistant Nursing Superintendent. Further, it is directed that such promotion to the post of Assistant Nursing Superintendent shall be given with effect from the date the immediate junior to the Petitioner in the final gradation list was given such promotion. 23. In view of the aforesaid direction, this Court deems it proper to give a further direction that the Petitioner be paid all her service and financial benefits as is due and admissible to her consequent upon her promotion to the post of Assistant Nursing Superintendent, as has been directed hereinabove, by calculating the same within a period of thirty days from the date of giving such promotion to the Petitioner. Page 16 of 17. 24. Accordingly, the writ petition stands allowed. However, there shall be no order as to costs. (Aditya Kumar Mohapatra) Judge Orissa High Court, Cuttack The 2nd April, 2025/Debasis Aech, Secretary Signature Not Verified Digitally Signed Signed by: DEBASIS AECH Reason: Authentication Location: ORISSA HIGH COURT Date: 03-Apr-2025 09:36:43 Page 17 of 17.