Orissa High Court
Case Details
Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 03-Oct-2024 17:51:26 IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.22650 of 2019 (In the matter of an application under Articles 226 and 227 of the Constitution of India, 1950). Sailendra Kumar Das …. Petitioner(s) -versus- State of Odisha and Others …. Opposite Party (s) Advocates appeared in the case through Hybrid Mode: For Petitioner(s) For Opposite Party (s) : :
Legal Reasoning
Mr. B. K. Mohanty, Adv. Mr. T. K .Pattnaik, ASC Mr. Devasis Mohapatra, ASC CORAM: DR. JUSTICE S.K. PANIGRAHI DATE OF HEARING:-22.07.2024 DATE OF JUDGMENT: -24.09.2024 Dr. S.K. Panigrahi, J. 1. In the present Writ Petition, the Petitioner seeks an order from this Court to quash the impugned order dated 25.09.2019. Additionally, the Petitioner requests that his case for promotion to the post of Electric Mechanic be considered, along with the release of all pending service- related and financial benefits, as he has since retired from service. I. FACTUAL MATRIX OF THE CASE: 2. The brief facts of the case are as follows: Page 1 of 6 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 03-Oct-2024 17:51:26 (i) The petitioner was initially engaged as NMR (Non-Muster Roll) on 01.10.1980 under the Executive Engineer, GED No. IT, Cuttack. The petitioner’s service was regularized/ and he was appointed as a Wireman in Group ‘C’ on 27.05.1999. (ii) Opposite Party No. 4, Brahmananda Swain, was engaged as NMR on 01.09.1975 and regularized as a Helper in Group ‘D’ on 18.09.1996. Following that, the Opposite Party No. 4 was promoted to Wireman on 16.11.2001 and subsequently to Assistant A/C Operator on 24.09.2009. (iii) The petitioner was promoted to the post of Assistant A/C Operator on 26.05.2006, earlier that Opposite Party No. 4, who was promoted on 24.09.2009 (iv) Based on the inter-se seniority in the gradation list, Opposite Party No. 4, being senior to the petitioner in terms of entry into government service, was recommended for promotion to Electric Mechanic via order dated 25.09.2019. (v) Aggrieved by the promotion of Opposite Party No. 4, the petitioner has filed this Writ Petition, seeking a directive from this Court to quash the order dated 25.09.2019. The petitioner further prays for consideration of his promotion to the post of Electric Mechanic, along with the release of all due service and financial benefits, given that he has already retired. II. SUBMISSIONS ON BEHALF OF THE PETITIONER: 3. Learned counsel for the Petitioner earnestly made the following submissions in support of his contentions: Page 2 of 6 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 03-Oct-2024 17:51:26 (i) The petitioner submitted that his three-year seniority over Opposite Party No. 4 as Assistant A/C Operator was wrongfully disregarded when promoting Opposite Party No. 4 to Electric Mechanic. (ii) He further submitted that his superior educational and technical qualifications should be given primacy compared to Opposite Party No. 4, who only possesses a Workman ‘C’ License. (iii) He contended that the promotion of Opposite Party No. 4 to Electric Mechanic, despite being less qualified and junior, constitutes an injustice. (iv) He further contended that the decision of Opposite Party No. 1 to reject the representation of the Petitioner was unjust and ignored relevant seniority and qualifications. III. SUBMISSIONS ON BEHALF OF THE OPPOSITE PARTIES: 4. Per contra, learned counsel for the Opp. Parties earnestly made the (i). (ii). following submissions in support of his contentions: It is submitted that the promotion of Opposite Party No. 4 was done strictly as per the gradation list, where Opposite Party No. 4 was placed above the petitioner based on seniority. It is further submitted that the petitioner accepted his position in the gradation list and did not raise any objections, thereby forfeiting any right to challenge the promotion. (iii). It is argued that the petitioner’s grievance is without merit since the promotion was based on the established gradation list and no illegality occurred. Page 3 of 6 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 03-Oct-2024 17:51:26 (iv). It is further argued that as per the case of S.B. Dogra v. State of Himachal Pradesh and Ors.1 objections to the gradation list must be filed within the prescribed time frame. IV. COURT’S REASONING AND ANALYSIS: 5. Having heard the learned counsel for both parties and upon careful perusal of the documents submitted before this Court, it is evident that a gradation list was duly prepared prior to the convening of the Departmental Promotion Committee, wherein the petitioner was placed at serial No. 07, while Opposite Party No. 4 was ranked at serial No. 03. The pertinent question now before this Court is whether the petitioner, having previously raised no objection to the gradation list, can now validly challenge the promotion granted to Opposite Party No.4. 6. In order to deal with the instant issue this Court can refer to the case of S.B. Dogra (supra) wherein the Supreme Court dealt with a similar issue and held that “..If the employee concerned did not file his representation within the period prescribed after the date of the publication of the provisional gradation list, then his representation should have been rejected outright. It is erroneous to contend that the employee should have waited for filing his representation or objection until the final gradation list was published.” 7. In this regard, the Supreme Court, in Chief Medical Officer v. Khadeer Khadri2, observed that when a petitioner is given an opportunity to raise objections but fails to do so, any subsequent attempt to seek correction of records at a later stage cannot be regarded as bona fide. 1 (1992) 4 SCC 455. 2 1999 SCC OnLine SC 908. Page 4 of 6 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 03-Oct-2024 17:51:26 8. 9. Drawing a parallel from the aforementioned judicial precedents to the present case, it becomes evident that the petitioner ought to have raised an objection at the time the gradation list was prepared. Raising such an objection only after the promotion has been granted is belated and cannot be entertained at this stage. It is a well-settled principle that no government servant can assert a right to promotion, as the Constitution does not lay down specific criteria for filling promotional positions. The method of filling such vacancies is determined by the Legislature or the executive, based on the nature of the employment and the responsibilities associated with the post. Courts are not empowered to review or assess whether the policy for promotion effectively selects the ’best candidates,’ except on the narrow ground of violation of the principle of equal opportunity enshrined in Article 16 of the Constitution. 10. In this regard, the Supreme Court, in the case of Ajit Singh (II) and ors. v. State of Punjab3 observed in para 22 as follows: “22. Article 14 and Article 16(1) are closely connected. They deal with individual rights of the person. Article 14 demands that the "State shall not deny to any person equality before the law or the equal protection of the laws". Article 16(1) issues a positive command that "there shall be equality of opportunity for all citizens in the matters relating to employment or appointment to any office under the State". It has been held repeatedly by this Court that sub-clause (1) of Article 16 is a facet of Article 14 and that it takes its roots from Article 14. The said sub- clause particularizes the generality in Article 14 and identifies, in a constitutional sense "equality opportunity" 3 (1999) 7 SCC 209. Page 5 of 6 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 03-Oct-2024 17:51:26 in matters of employment and appointment to any office under the State. The word ’employment’ being wider, there is no dispute that it takes within its fold, the aspect of promotions to posts above the stage of initial level of recruitment. Article 16(1) provides to every employee otherwise eligible for promotion or who comes within the zone of consideration, a fundamental right to be "considered" for promotion. Equal opportunity here means the right to be "considered" for promotion. If a person satisfies the eligibility and zone criteria but is not considered for promotion, then there will be a clear infraction of his fundamental right to be “considered” for promotion/ which is his personal right.” 11. In the present case, the Petitioner has been duly considered for promotion, having been included in the gradation list. However, the ultimate decision regarding promotion rests within the discretion of the Departmental Promotion Committee, which holds the authority to determine eligibility for promotion. The Petitioner, therefore, cannot assert a claim to promotion as an absolute right.
Decision
12. Accordingly, as the Writ petition is devoid of merit, it stands dismissed 13. Interim order, if any, passed earlier stands vacated. (Dr. S.K. Panigrahi) Judge Orissa High Court, Cuttack, Dated the 24th Sept., 2024/ Page 6 of 6