The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.31172 of 2021 Suryakanta Ray …. Petitioner Mr.Asutosh Mishra, Advocate -versus- State of Odisha and another …. Opposite Parties Mr.Nikhil Pratap, A.S.C. CORAM: JUSTICE A.K. MOHAPATRA Order No. ORDER 17.01.2024 05. 1. This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode). 2.
Legal Reasoning
Heard learned counsel for the Petitioner as well as the learned Additional Standing Counsel for the State. Perused the pleadings of the parties as well as the documents annexed thereto. 3. The present Writ Petition has been filed with the following prayer : “ Under the above circumstances, it is therefore humbly prayed that the Hon’ble Court be graciously pleased to direct the Opp.Party to give promotion to the Petitioner to the post of Additional Superintendent of Police from the date his immediate junior got such promotions i.e. from 27.07.2020 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;” // 2 // 4. Learned counsel for the Petitioner at the outset submitted that initially the Petitioner had approached this Court by filing the present Writ Petition for a direction to the Opposite Parties to give him promotion to the post of Additional Superintendent of Police from 27.07.2020 i.e. from the date on which his immediate juniors got such promotion along with all consequential service and financial benefits. The Writ Petition filed by the Petitioner was heard by a
Decision
coordinate Bench vide order dated 05.10.2021. The Writ Petition was disposed of directing the Opposite Party nos.1 & 2 to give promotion to the Petitioner to the rank of Additional Superintendent of Police with effect from 27.07.2020. However, such promotion of the Petitioner pursuant to the order of this Court was directed to be subject to the ultimate outcome in the Vigilance Proceeding. It was also directed by this Court that the promotion given to the Petitioner to different ranks shall not confer any equity in the event the Petitioner looses in the Vigilance Proceeding. 5. The order passed by the coordinate Bench on 05.10.2021 in the aforesaid Writ Petition was assailed by the State-Opposite Parties by filing W.A.No.1019 of 2022. A Division Bench of this Court vide order dated 27.032023 allowed the Writ Appeal on the ground that the appellant in the Writ Appeal were not afforded an opportunity of hearing to file their reply. Accordingly the Division Bench while setting aside the order dated 27.06.2023 remanded the matter to the Single Judge Bench. After the matter was remanded to this Court, the State-Opposite Party Nos. 1 & 2 have filed a Counter Affidavit. In the Counter Affidavit the Opposite Parties have referred to the G.A & P.G.. Department Notification/circular extensively. Referring to the // 3 // Counter Affidavit, learned Additional Standing Counsel submitted that the G.A. & P.G.department Memorandum dated 17.06.2021 to the later circular governs the field. He further contended that at the time of DPC/Review DPC in the year 2020 the aforesaid memorandum was not in existence. Therefore, he further contended that the memorandum dated 17.06.2021 will have neither any prospective nor retrospective operation. In the aforesaid context, learned Additional Standing Counsel also contended that since the DPC/Review DPC took place in the year 2020, the memorandum dated 17.06.2021 of the G.A. & P.G. department could not have been applicable to the facts of the Petitioner’s case. He further contended that the said memorandum is applicable only subject to the satisfaction of the conditions stipulated therein. 6. Learned Additional Standing Counsel further argued that in the Writ Appeal No.805 of 2021, which was disposed of vide order dated 11.05.2023 by a Division Bench of this Court while deciding the issue involving the promotion of a Government servant in view of pendency of either a Disciplinary Proceeding or criminal proceeding or both against the said Government servant, have taken a view that there is no right conferred on the Government servant to be considered for promotion, where the Disciplinary Proceeding or criminal proceeding or both are pending against such Government Servant. Accordingly while allowing the Writ Appeal, learned Division Bench has set aside the judgment of the learned Single Judge on the aforesaid two grounds. In such view of the matter, learned Additional Standing Counsel submitted that the present Writ Petition is devoid of merit and accordingly the same should not have // 4 // been entertained. 7. In reply to the aforesaid contentions, learned counsel for the Petitioner referred to the judgment of this Court in Siba Prasad Mallick decided in /W.P© No.11262 of 2023 on 17.04.2023. By referring to the said judgment, learned counsel for the Petitioner submitted that this Court while deciding an identical issue has taken note of the judgment of the Hon’ble Supreme Court in State of Punjab and Ors v Chiman Lal Goyal reported in (1995) 2 SCC 570 and of this Court in Susanta Nanda v. Union of India (W.P.(C) No.8440 of 2009) as well as State of Odisha & Ors. v Ashok Kumar Hota & Anr. (W.P© No.18500 of 2015 decided by a Division Bench on 06.05.2022) He further contended that inordinate delay in disposal of the Vigilance case is one of the principal ground in considering the case of the Government employee like the Petitioner for promotion. It was also contended that the Petitioner cannot be denied the benefit of promotion indefinitely because of the pendency of the proceeding, be it criminal/departmental against him. More so, when the Petitioner is not responsible for such delay in conclusion of such proceeding. He also submitted that in the event the Petitioner is given ad hoc promotion as has been directed by this Court in the case of Siba Prasad Mallik (supra) the Petitioner should not claim any equity and such promotion would be subject to the outcome of the proceeding pending against the Petitioner. It is also urged before this Court that in the event the Petitioner ultimately succeeds in the aforesaid proceedings then denial or deferment of the promotion will cause a lot of prejudice to the Petitioner, which will be irreparable in nature. In Siba Prasad Mallik’s case (supra) this Court has already taken // 5 // note of the law laid down in the case of Union of India and others v. K.V. Jankiraman and others reported in (1991) 4 SCC 109. While deciding the lis involved in K.V.Jankiraman case, the Hon’ble Supreme court was conscious of the fact that initiation and conclusion of a proceeding against any Government employee is to take a considerable period of time. They were also conscious of the fact that the right to be considered for promotion is a valuable right conferred upon any Government servant. Accordingly, the Hon’ble Supreme Court in K.V,Jankiraman case introduced the mechanism of following the sealed cover method in those cases where the Government servant is eligible for promotion, but due to any Disciplinary Proceeding/criminal proceeding pending against him, he has been kept out of zone of consideration on such ground of pendency of Disciplinary Proceeding/Criminal Proceeding. The ratio laid down in K.V.Jankraman case by the Hon’ble Supreme Court has become the law of the land and the same has been adopted by the State Government either through the Service Rule or by way of circular or Memorandum to the Rule governing the service condition of Government servant. 8. Learned counsel for the petitioner further referring to the Memorandum dated 17.062021 of the G.A. & P.G. department, Government of Odisha submitted that such circular of the Government lays down the procedure to be followed in a case where the Government employee are facing Disciplinary Proceeding. Therefore, it is submitted that it is not a case where giving promotion is completely prohibited owing to pendency of the proceeding against the Government servant. In an appropriate case the appointing // 6 // authority may very well examine and consider the cases depending upon the fact and circumstances of each case. 9. Reverting back to the order in the case of Siba Prasad Malick, (supra), learned counsel for the Petitioner submitted that the order was challenged by the State Opposite Parties by filing a Writ Appeal No.2559 of 2023. A Division Bench of this Court vide order dated 09.11.2023 has been pleased to dismiss the Writ Appeal preferred by the State-Opposite Parties. Further, perusal of the order dated 09.11.2023 passed in the aforesaid Writ Appeal reveals that while the Writ Appeal has been dismissed on limitation the same has also been considered on merit and it has been held by the Division Bench to be not maintainable. 10. Having heard learned counsel appearing for the respective parties, on careful examination of the aforesaid legal position, as well as the factual background of the present case, this Court deems it proper to dispose of the Writ Petition by directing the Opposite Parties to reconsider the case of the Petitioner in the light of the G.A Department circular referred hereinabove. Accordingly the sealed cover in which the fate of the Petitioner has been kept sealed by the D.P.C be opened and the Petitioner be given promotion to the next higher post from the date of his juniors were given such promotion. However, it is made clear that such promotion shall remain ad hoc and the same is being allowed to ensure that the Petitioner does not suffer due to long pendency of the proceeding against him and that such ad hoc promotion will not confer any right or equity in favour of the Petitioner. Further, it is made clear that that the ad hoc promotion shall be subject to the final outcome of the proceeding pending // 7 // against the Petitioner, It is needless to mention here that in the event the Petitioner is found guilty in the Disciplinary Proceeding/convicted in the criminal case, it is open to the Opposite Parties to take action against the Petitioner as per law and the promotion which has been granted on ad hoc basis can be withdrawn. Such promotion shall also be subject to the stipulation in the G.A department circular dated 17.06.2021. The Opposite Parties are directed to carry out the direction of this Court within four weeks from the date of communication of this order. 7. With the aforesaid observation, the writ application stands disposed of. Issue urgent certified copy of this order as per Rules. RKS ( A.K. Mohapatra ) Judge Signature Not Verified Digitally Signed Signed by: RAMESH KUMAR SINGH Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa Date: 20-Jan-2024 12:54:45