The High Court
Case Details
Order No. 01. IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.27973 of 2023 Prabhat Kumar Mishra State of Odisha and others -versus- …. …. Petitioner Mr.G.R.Sethi,Advocate
Legal Reasoning
Opposite Parties Mr.A.P.Das, A.S.C. CORAM: JUSTICE A.K. MOHAPATRA
Decision
ORDER 30.08.2023 1. This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode). 2. Heard learned counsel for the Petitioner as well as the learned Additional Standing Counsel appearing for the State. Perused the Writ Petition as well as the documents annexed thereto. 3. The present Writ Petition has been filed with the following prayer: To quash the order dated 20.07.2023 under Annexure- “ It is therefore prayed that the Hon’ble Court may graciously be pleased to admit the case and call for the records and after hearing both the parties pass the following reliefs: i) 9. ii) To direct the Opposite Parties to consider the case of the Petitioner for promotion against the posts available under OSCS cadre up to 03.08.2011 by holding a DPC issuing a fresh requisition strictly in compliance to the order of the learned Tribunal dated 15.11.2013 in O.A.No.1872(C) of 2012 and O.A.No.1873(C) of 2012 within a stipulated period. iii) To direct the opposite parties to grant all financial and consequential service benefits retrospectively w.e.f. the date juniors have got promotion to the cadre of OSCS vide Notification dated 02.07.2014; To pass such other order/orders as would be deemed fit and proper.” // 2 // 4. Being aggrieved by the order dated 20.07.2023 passed by the Member, Board of Revenue rejecting the representation of the Petitioner, the Petitioner has approached this Court by filing the present Writ petition. Learned counsel for the Petitioner at the outset submitted that earlier the Petitioner has approached the Tribunal by filing O.A. No.1477(C) of 2015 with a prayer for a direction to the Opposite Parties to consider the case of the petitioner for promotion to the post of O.S.C.S. cadre. After abolition of the Tribunal, the matter was transferred to this Court and was re-registered as WPC(OAC) No.1477 of 2015. A coordinate bench of this Court disposed of the said Writ Petition vide order dated 27.03.2023 by directing the Opposite Party No.2 to consider the representation filed by the Petitioner under Annexure-7 to the Writ Petition by taking into consideration the order under Annexure-5 and 6 within two months. Accordingly, Opposite Party No.2, Member, Board of Revenue considered and rejected the representation of the Petitioner. 5. Learned counsel for the Petitioner further contended that in the impugned rejection order dated 20.07.2023 the Member, Board of Revenue has categorically stated that since the name of the Petitioner has not been recommended by the Collector, Mayurbhanj, Opposite Party No.5, the case of the Petitioner has not been considered by the D.P.C. This Court on a careful examination of the impugned order under Annexure-9 to the Writ Petition also observed that several DPCs were convened to consider the promotion to the post of OSCS cadre, however the name of the Petitioner has not been recommended by the Opposite Party no.5, the same has not been considered by the DPC. 6. Learned counsel for the petitioner referring to the order passed by the Tribunal in O.A.No.1872(C) of 2012 and O.A.No.1873(C) of 2012 holding that as the OSCS (Recruitment and Civil Service ) Rules, 1980 continued to remain operative till 03.08.2011, the candidates, who // 3 // have completed requisite period of service, are eligible for consideration till 03.08.2011. Till that date promotion be considered in a fresh DPC as per 1980 Rules and in case they are found suitable, they may be promoted with a condition that such promotion under 1980 Rules and shall be deemed to have with the new cadre as per the new Rules. Further, it was directed that if any applicant has already been retired in the meantime, he may be given promotion on notional basis and accordingly financial benefits to such employee be also paid within a stipulated period of time. In view of the aforesaid legal position, learned counsel for the Petitioner submitted that the case of the Petitioner should have been considered by Opposite Party No.5. Further, the same should have been considered by a fresh DPC as has been directed by the Tribunal in his order dated 05.11.2013 under Annexure-5 to the Writ Petition which has been referred to herein above. 7. Learned Additional Standing Counsel on the other hand submitted that the Member, Board of Revenue in its order dated 20.07.2023 has taken note of all the facts and thereafter it was found that the Petitioner’s name has not been recommended by the recommending authority i.e., Collector, Mayurbhanj, Opposite Party No.5. In such view of the matter, the case of the Petitioner has not been taken up by the fresh DPC as directed by the Tribunal. Therefore, the learned Additional Standing Counsel submitted that the order passed by the Opposite Party No.2 cannot be improved on any ground. Accordingly, the Writ Petition is devoid of merit and the same be dismissed. 8. Having heard learned counsel for the parties, upon a careful examination of the background facts of the present case and the materials on record as well as upon careful examination of the impugned order dated 20.07.2023, this Court observes that the case of // 4 // the Petitioner has not been considered for promotion to the OSCS cadre only on the ground that his name has not been recommended by the recommending authority i.e. the Collector, Mayurbhanj, Opposite party No.5. There is no denying to the fact that similarly situated persons have been given promotion upon merger of the cadre pursuant to the order passed by the Tribunal under Annexure-5 to the Writ Petition. Therefore, this Court is of the considered view that in the event the case of the Petitioner is covered by the direction of the Tribunal under Annexure-5, then the case of the Petitioner should have been considered by the fresh DPC as was directed by the Tribunal in the order under Annexure-5. Since the Opposite Party No.5 has not recommended the case of the Petitioner, the D.P.C. could not consider the case of the Petitioner and keeping in view the aforesaid legal position this Court disposes of the Writ Petition by directing the Opposite Party No.5 to reconsider the case of the Petitioner keeping in view the 1980 Rules and the order of the Tribunal under Annexure-5 to the Writ Petition. Further, in the event the Opposite Party No.5 comes to a conclusion that the Petitioner is otherwise eligible and is similarly situated with the employees who have been given promotion pursuant to the order passed by the Tribunal under Annexure-5 to the Writ Petition, the case of the Petitioner be recommended to the D.P.C. for promotion to the post of OSCS cadre within a period of two months from the date of communication of the order by the Petitioner to the Opposite party No.2. Further, in the event the Opposite Party No.2 is of the view that the Petitioner is eligible for such promotion and his name has been recommended accordingly by Opposite Party No.5 a fresh DPC shall consider the case of the Petitioner within a period of six weeks from the date of such recommendation. It is needless to mention here that in the event fresh DPC gives promotion to the Petitioner, the authorities shall also grant all consequential service and financial benefits to the // 5 // Petitioner as has been given in the case of similarly situated other employees. 9. With the aforesaid observation the Writ Petition stands disposed of. 10. 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: 01-Sep-2023 17:06:04