Orissa High Court
Case Details
Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: AR-CUM-SR. SECRETARY Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 18-Nov-2024 19:08:03 IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.24357 of 2019 (In the matter of an application under Articles 226 and 227 of the Constitution of India, 1950). Bijay Kumar Mallick …. Petitioner(s) -versus- State of Odisha and Ors. …. Opposite Party (s) Advocates appeared in the case through Hybrid Mode: For Petitioner(s) For Opposite Party (s) : :
Legal Reasoning
Mr.Gourimohan Rath, Adv. Mr.Sonak Mishra, ASC CORAM: DR. JUSTICE S.K. PANIGRAHI DATE OF HEARING:-27.08.2024 DATE OF JUDGMENT:-08.11.2024 Dr. S.K. Panigrahi, J. 1. In this Writ Petition, the Petitioner, aggrieved by the authorities’ inaction and the prolonged delay in processing his promotion, now seeks retrospective promotion to the position of Senior Assistant, along with the associated seniority and benefits, including arrears of service benefits, from 24.02.1993—the date on which his juniors were granted promotion. Page 1 of 7 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: AR-CUM-SR. SECRETARY Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 18-Nov-2024 19:08:03 I. 2. (i) FACTUAL MATRIX OF THE CASE: The brief facts of the case are as follows: The petitioner was selected by the Orissa Public Service Commission (OPSC) in 1985 as a Scheduled Caste (“SC”) candidate for the position of Junior Assistant in the Odisha Secretariat. His rank was 1631 on the OPSC select list, and he joined in 1989 against vacancies for the years 1982-83 and 1983-84. (ii) A final gradation list was issued on 24.05.1995, ranking the petitioner at Serial No. 208, while a general category candidate, Sri BiswaBhusan Das, was ranked at Serial No. 239, indicating that the petitioner was senior to Sri Das at the time. (iii) The petitioner was promoted to Senior Assistant on 27.09.1995. However, his junior, Sri Das, was promoted earlier, on 04.09.1993. A tentative gradation list for Senior Assistants (now Assistant Section Officers) was prepared in 2003, ranking the petitioner at Serial No. 1176 and Sri Das at Serial No. 967. A 2010 gradation list, following the merger of cadres, placed the petitioner at Serial No. 397 and Sri Das at Serial No. 195. (iv) In 1996, the petitioner and others filed OA No. 1837(C)/1996 before the Odisha Administrative Tribunal (OAT), challenging their seniority. The tribunal advised each applicant to file individual representations. (v) The petitioner filed a representation on 20.07.1996, seeking seniority from the date his juniors were promoted. However, this request was Page 2 of 7 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: AR-CUM-SR. SECRETARY Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 18-Nov-2024 19:08:03 deferred, as the matter was pending in other cases challenging the gradation list. (vi) Another employee, Narayan Chandra Dalai, raised a similar issue in OA No. 652(C)/2012, which is still pending in related Writ Petitions before this Court. (vii) The petitioner filed further representations in 2012, requesting retrospective promotion. The Law Department recommended awaiting the outcomes of the pending cases. (viii) The 2015 final gradation list for Desk Officers applied the "catch-up" principle, placing Sri Das at Serial No. 45 and the petitioner at Serial No. 197, which impacted the petitioner’s seniority and promotion trajectory. (ix) Aggrieved by the inaction of the authorities and the delay in considering his promotion, the Petitioner now seeks retrospective promotion to the post of Senior Assistant, along with consequential seniority and benefits, including arrears of service benefits, effective from 24.02.1993—the date on which his juniors were promoted. II. SUBMISSIONS ON BEHALF OF THE PETITIONER: 3. Learned counsel for the Petitioner earnestly made the following submissions in support of his contentions: (i) The Petitioner submitted that he has a right to be promoted retrospectively from 24.02.1993, aligning with the promotion dates of his juniors, with consequential seniority and benefits. (ii) He further submitted that the department’s failure to act, despite repeated representations and the approval of the Chief Minister, is arbitrary and discriminatory. Page 3 of 7 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: AR-CUM-SR. SECRETARY Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 18-Nov-2024 19:08:03 (iii) The petitioner contended that the promotion of juniors during the pendency of these litigations is discriminatory and in violation of established rules on seniority and promotion. (iv) He further contended that the delay in considering his case was caused by departmental lapses, including the unavailability of CCRs, which he attributes to negligence by the department. III. SUBMISSIONS ON BEHALF OF THE OPPOSITE PARTIES: 4. The Learned Counsel for the Opposite Parties earnestly made the following submissions in support of his contentions: (i) It is submitted that the petitioner waited over 30 years to challenge his gradation and promotion timeline, far beyond a reasonable period. Revisiting these issues would unsettle long-established positions. (ii) He further submitted that the catch-up principle has been correctly applied, with promotions granted based on the latest rankings in the revised gradation lists. (iii) It is contended that since related cases i.e. W.P.(C) No.18363/2013 and W.P.(C) No.27167/2013 are pending in this Court, any ruling on the petitioner’s request for retrospective promotion should wait until these matters are resolved. (iv) He further contended that the petitioner’s repeated requests and representations for retrospective promotion were examined, and orders were made by competent authorities, but these were not upheld due to unresolved legal standards and pending cases. Page 4 of 7 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: AR-CUM-SR. SECRETARY Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 18-Nov-2024 19:08:03 (v) It is argued that retrospective promotion is only granted in specific cases of legal error, arguing that the petitioner’s situation does not meet this threshold. (vi) He further argued that the petitioner’s delayed challenge to established gradation lists and his promotions aligns with the settled law that limits retrospective promotions and the alteration of settled seniority. IV. COURT’S REASONING AND ANALYSIS: 5. Having heard Learned Counsel for both parties and carefully reviewed the documents presented. 6. It is apparent that the petitioner seeks retrospective promotion from the year 1993, contesting the promotion of his counterparts who were granted advancement over him. The petitioner asserts that his promotion has been repeatedly deferred for various reasons, resulting in an extensive delay. Notably, 29 years have now been passed since the issuance of the initial gradation list that forms the basis of his challenge. 7. The primary question before this Court is whether it is judicious to reopen this matter after a considerable lapse of time. Courts have consistently addressed the implications of revisiting seniority lists at a belated stage, underscoring the potential disruption it may cause to employees whose seniority and rank have since been established. 8. In this connection, reference may be made to Malcom Lawrence Cecil D’Souza v. Union of India and Ors.1 wherein the Apex Court observed in para 9 as below: 1(1976) 1 SCC 599. Page 5 of 7 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: AR-CUM-SR. SECRETARY Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 18-Nov-2024 19:08:03 “9. Although security of service cannot be used as a shield against administrative action for lapses of a public servant, by and large one of the essential requirements of contentment and efficiency in public services is a feeling of security. It is difficult no doubt to guarantee such security in all its varied aspects, it should at least be possible to ensure that matters like one’s position in the seniority list after having been settled for once should not be liable to be reopened after lapse of many years…..Raking up old matters like seniority after a long time is likely to result in administrative complications and difficulties. It would, therefore, appear to be in the interest of smoothness and efficiency of service that such matters should be given a quietus after lapse of some time.” 9. In B.S. Bajwa and Another v. State of Punjab and Others,2 the Supreme Court has held that the seniority list should not be reopened after a lapse of reasonable period as it would disturb the settled position which is unjustifiable. The relevant extract is as follows: “7..It is well settled that in service matters the question of seniority should not be reopened in such situations after the lapse of a reasonable period because that results in disturbing the settled position which is not justifiable.” 10. Applying the abovementioned judicial precedents to the current factual matrix, this Court can see that the petitioner is effectively seeking the re- evaluation of promotions and seniority determinations made nearly three decades ago. Reopening these matters at this juncture would involve reassessing established rankings, a process that might lead to widespread adjustments, potentially displacing or downgrading other 2(1998) 2 SCC 523. Page 6 of 7 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: AR-CUM-SR. SECRETARY Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 18-Nov-2024 19:08:03 employees who have earned promotions and taken on additional responsibilities over the years. 11. Given the time frame and the effect of any retroactive change on the existing seniority, this Court finds that altering the petitioner’s seniority at this stage would go against the principles of judicial prudence and service stability. 12. However, it is also apparent that the petitioner’s situation is a unique one marked by procedural delays and departmental inaction, factors largely outside his control. While the Court cannot justify revisiting seniority rankings from decades past, the petitioner should not be left without relief. 13. Thus, given the prolonged period of unresolved grievance and the impact on his career progression, the Court deems it appropriate to grant the petitioner a compensation of Rs.2,00,000/- as a fair remedy for the challenges he has endured. This measure will address his long- standing grievance while respecting the established seniority structure within the service. The aforesaid compensation shall be paid within three months from the date of presentation of this judgment. 14. Accordingly, this Writ Petition is liable to be dismissed. 15. Interim order, if any, passed earlier stands vacated. Orissa High Court, Cuttack, Dated the 8th Nov. 2024/ (Dr.S.K. Panigrahi) Judge Page 7 of 7