The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK WPC(OA) Nos.878 & 879 of 2015 In the matter of an application under Section 19 of the Administrative Tribunals’ Act, 1985. ……………… …. Petitioner Muralidhar Pal -versus- State of Odisha & Others …. Opposite Parties For Petitioner :M/s. S.K. Pattanaik, Sr.Adv. P.K. Pattanaik, S.Das, Advocate For Opp. Parties :M/s. M.K. Balabantaray, Additional Government Advocate PRESENT: THE HONBLE JUSTICE BIRAJA PRASANNA SATAPATHY -------------------------------------------------------------------------------------------------- Date of Hearing: 16.01.2023 and Date of Order: 31.01.2023 ------------------------------------------------------------------------------------------------- Biraja Prasanna Satapathy, J. Since common question is involved in both the writ petitions and the claim is also same, both the matters were heard analogously and disposed of by the present common order. 1 2. The factual matrix giving rise to filing the present writ petitions is that both the Petitioners were appointed as Assistant Law Officers in the Agriculture & Cooperation Department of the Government, where they joined on 28.06.1989. The Petitioners while continuing as such were promoted as Law Officer w.e.f 16.11.1999 and 05.01.2000 respectively. Even though the petitioners were eligible for consideration of their promotion to the next rank of Under- Secretary, but the D.P.C held on 27.04.2000, by wrongly applying the provision of Rule 10 (3)(a) of the Orissa Secretariat Service Rules, 1980 did not consider the claim of the Petitioners for such promotion to the rank of Under Secretary. 2.1. Challenging such action of the Opposite Parties in denying promotion to the petitioners to the post of Under- Secretary, both the petitioners approached the Orissa Administrative Tribunal in O.A. No.429 of 2001. The Tribunal
Decision
vide order dated 29.08.2001 under Annexure-1 disposed of the matter in O.A. No.429 of 2001 along with a batch inter alia with the following direction. “10. Having heard the applicants learned Govt. Advocate, and learned Counsel for Respondent 6 to 9 in O.A.815/2000 learned counsel for / 2 / we are of the view that Rule 10(3) is not applicable in the case of appointment to post of Under Secretary for the following reasons. (i) When Rule 10(2) has given clear directions regarding preparation of the eligibility list for the post of Under Secretary that Rule has to be followed. (ii) Rule 10(3) (a) only stipulates that the zone of consideration Rule 1988 should be followed. This the zone of cannot be questioned because consideration Rules apply to all cases of promotions filling up posts of Under Secretary is a case of appointment and not promotion. The proviso to Rule 10(3) (a) is applicable only in case of promotion to higher posts in the service which means cases of promotions from under-Secretary to Joint Secretary and so on. Rule 5 also makes it clear that filling up the posts of Deputy Secretary onwards would be a case of promotion. (iii) In addition to what is stated above the proviso to Rule 10(3) (a) is to be read with Rule 14(2) to which it refers. Rule 14(2) refers to ad hoc appointment to the service and service has been defined i Rule 2(d) as Orissa Secretariat Service which consists of post of Under Secretary and other posts listed in Rule 3. Neither the post of S.O Level- I or Law Officer is included in the O.S.S Learned Govt. Advocate made a submission that S.Os, Level-I are to treated as belonging to O.S.S. It will not be possible to do so because they belong to a different service namely Orissa Secretariat Service Class-II and even if the argument put forth by learned Govt. Advocate is accepted the conclusion which follows would be that the stipulation in the proviso to Rule 10(3)(a) is applicable to Section Officers, Level_I but it cannot include Law Officers. is IV. Read with Rule 5 and Rule 14(2) abundantly clearly that the proviso to Rule 10(3)(a) is not applicable in the case of appointment to post of Under Secretary and the eligibility list for filling up those posts has to be prepared in accordance with Rule 7 and Rule 10(2). it therefore 11. The Original Applications are allowed. ON 21.6.2000 an interim order had been passed granting liberty to the State Respondents to keep five posts of Under Secretary vacant and fill up the remaining posts subject to the result of the case. All vacant posts for which the selection / 3 / process was initiated in 2000 may now be filled up on regular basis in accordance with the directions given above. We make no order as to costs.” 2.2. Instead of complying the direction so issued by the Tribunal in its order dated 29.08.2001, the Opposite Parties challenged the same before this Court in W.P.(C ) No.4698 of 2002 and 4697 of 2002 respectively. While the petitioner in W.P.C(OA) No.878 of 2015 retired from service on 31.10.2006, Petitioner in the other Writ Petition in W.P.C(OA) No.879 of 2015 retired on 28.02.2006. 2.3. The Writ Petition filed by the State before this Court in W.P.(C ) No.4697 & 4698 of 2002 were dismissed vide order dated 27.08.2009 under Annexure-2. After such dismissal of the matter by this Court, vide order dated 16.12.2010 under Annexure-4, while the petitioner in W.P.C(OA) No.878 of 2015 was promoted notionally as Under-Secretary w.e.f 15.08.2000, vide Order dated 14.03.2011, the Petitioner in W.P.C ( O.A.) No.879 of 2015 was promoted w.e.f 15.08.2000. Subsequently both the petitioners were promoted as Deputy Secretary w.e.f 27.10.2003 vide order dated 11.03.2013 under Annexure-6 and as Joint Secretary w.e.f 26.07.2005 vide order dated 11.03.2013 under Annexure-7, but all on notional basis. / 4 / 2.4. Since both the Petitioners were given promotion to the post of Under-Secretary w.e.f 15.08.2000, Deputy Secretary w.e.f 27.10.2003 and Joint Secretary w.e.f 26.07.2005, but on notional basis, the petitioner in W.P.C(OA) No.878 of 2015 moved an application on 29.09.2014 under Annexure-10 and the petitioner in the other Writ Petition moved a representation on 30.09.2014 under Annexure-10 praying therein to grant actual financial benefits in the promotional post. As no action was taken, the petitioners again filed representation under Annexure-11. Thereafter as no consideration was made to such claim of the petitioners to grant the financial benefit from the date of promotion, the Petitioners moved the Tribunal, inter alia, with the following prayer. “That it may be declared that the applicant is entitled to get actual financial benefit of the promotional posts to which promotion was illegally denied by the State Government. The Respondents may be directed to pay the actual financial benefits for the post of Under Secretary, Deputy Secretary and Joint Secretary to which the applicant was given retrospective promotions w.e.f 15.8.2000, 27.10.2003 and 26.7.2005 respectively with interest @ 12% from the due date and Pass any appropriate order/direction as per deem fit and proper for which the applicant shall ever pray”. / 5 / 3. Mr. S.K. Pattanaik, learned Senior Counsel along with Mr. P.K. Pattanaik vehemently contended that the Petitioners though were eligible for their promotion to the rank of Under- Secretary, but the D.P.C held on 27.04.2000, because of wrong application of the Rule contained under Rule 10(3) (a) of the Orissa Secretariat Service Rules, 1980, the case of the Petitioners were not considered for their promotion to the rank of Under Secretary. Both the Petitioners challenging such action of the Opposite parties in denying the benefit of promotion to the rank of Under Secretary, moved the Tribunal in O.A. No.429 of 2001. Learned Tribunal while disposing a batch of O.As along with O.A. No.429 of 2001 vide order dated 29.08.2001 under Annexure-1 held that Rule 10 (3)(a) of the Rules is not applicable to the case of the petitioners and accordingly directed the Opp. Parties to fill up the posts of Under Secretary on regular basis for which an interim order was in existence from 21.04.2000. But the Opposite Parties instead of complying the same, approached this Court in O.J.C No.4697 and 4698 of 2002 respectively, challenging the order passed by the Tribunal. 3.1. Only after dismissal of the writ petition by this Court vide judgment dated 27.8.2009, both the petitioners were / 6 / promoted to the rank of Under Secretary w.e.f 15.08.2000 vide order under Annexure-4, to the rank of Dy. Secretary w.e.f 27.10.2003 vide order under Annexure-6 and to the rank of Joint Secretary w.e.f 26.07.2005 vide order under Annexure-7. Learned Senior counsel appearing for the Petitioners contended that since the case of the Petitioners were not considered by the DPC held on 27.04.2000 due to wrong application of the relevant rules in spite of the order passed by the Tribunal under Annexure-1 on 29.08.2001, the Petitioners were not extended with the benefit of promotion till the said order was confirmed by this Court vide its judgment dated 27.08.2009 under Annexure-2. Accordingly, no fault lies with the petitioner for not availing the benefit of the promotional posts. 3.2. It is contended that since the petitioners were deprived to avail the benefit of the promotional post from the date of their entitlement, which were subsequently allowed vide order issued under Annexures-4,6 & 7, the Petitioners are eligible and entitled to get the financial benefit for the period they remained in the rank of Under Secretary, Deputy Secretary and Joint Secretary respectively. The Opp. Parties on the face / 7 / of their admitted illegalities, extended such promotion on notional basis, which cannot sustain in the eye of law. 3.3. Mr. S.K. Pattanaik, learned Senior counsel in support of his aforesaid submission relied on the decision of the Hon’ble Apex Court reported in the case of 1. State of Mysore Vs. C.R. Seshadri and Others AIR 1974 S.C 460. 2. P.S. Mahal and Others Vs Union of India and Others, AIR 1984 SC 1291. 3. Vasant Rao Roman Vs. Union of through the Central Railway, Bombay Supp. 2 SCC 324. India (1993) 4. State of Kerala & Others Vs. E.K. Bhaskaran Pillai, AIR 2007 S.C. 2645. 5. Shiv Nandan Mahto Vs. State of Bihar & Others (2013) SCC 626. 6. Shobha Ram Raturi Vs. Haryana Vidyut Prasaran Nigam Limited and Others, AIR 2016 (S.C.W) 157. 4. Mr. M.K. Balabantaray, learned Additional Government Advocate, on the other hand, made his submission basing on the stand taken in the Counter affidavit. 4.1. It is contended that since as provided under Rule 10 (3)(A) of the Orissa Secretariat Service (Amended Rules, 1980), no officer shall be considered for inclusion in the list of officers fit for promotion to the higher posts in the service unless he / 8 / has worked including the period of officiation for a period of one year, the D.P.C in its proceeding dated 27.4.2000 rightly did not take into consideration the case of the petitioners for their promotion to the rank of Under-Secretary. Learned Tribunal in its order under Annexure-10, though held the non- applicability of the Rule, to the case of the petitioners. but since there is no time stipulations for compliance of the said order and the matter was kept pending before this Court in OJC No.4697 & 4698 of 2002 till it was ultimately dismissed on 27.04.2009, no fault can be attributed to the Opp. Parties. The Petitioners in terms of the order have been given the benefit of promotion from the date their juniors were given such promotion. But since the petitioners at no point of time discharged their services in the promotional post of Under Secretary, Deputy Secretary and Joint Secretary, the petitioners are not eligible to get the financial benefit for the period in question and no illegality can be found in giving such promotion on notional basis. 4.2. It is also contended that applying the principle of “No work, No pay”, the petitioners are also not entitled to get the financial benefit for the period they were given such notional promotion vide order under Annexures-4, 6 & 7. Accordingly, / 9 / it is contended that the prayer as made in the writ petitions is misconceived and liable to be rejected by this Court. 05. I have heard Mr. S.K. Pattanaik, learned Senior Advocate appearing for the Petitioners and Mr. M.K. Balabantaray, and learned Additional Government Advocate for the State- Opposite Parties. On the consent of the learned counsel for the parties, the matter is disposed of at the stage of admission by the present common order. 06. Having heard learned counsel for the parties and after going through the materials available on records, this Court finds that placing reliance on Rule 10 (3)(a) of the Orissa Secretariat Service Rules, 1980, the Petitioners were not considered for their promotion to the rank of Under Secretary in the DPC held on 27.04.2000. In view of the same persons similarly situated and juniors to the petitioners were given promotion to the rank of Under Secretary w.e.f 15.08.2000, but the petitioners were not given the benefit of such promotion. It is also found from the records that challenging denial of promotion when the petitioners approached the Tribunal in O.A. No.429 of 2001, the Tribunal Passed an interim order on 21.06.2000 by restraining the Opp. Parties from filling up five posts of Under Secretary and to keep the / 10 / same on vacant. The Tribunal ultimately vide order dated 29.08.2001 under Annexure-1, allowed the claim of the Petitioners by holding therein that Rule 10(3)(a) of the 1980 Rules has no applicability to the case of the Petitioners. 6.1. In spite of such order passed by the Tribunal, the Opp. Parties instead of complying the same by extending the benefit, approached this Court in OJC Nos.4697 and 4698 of 2002. Only after dismissal of the writ petition by this Court vide judgment dated 27.08.2009 under Annexure-2, the petitioners were given the benefit of promotion to the rank of Under Secretary w.e.f 15.8.2000 vide order under Annexure-4, to the rank of Dy. Secretary w.e.f 27.10.2003 vide under Annexure-6 and to the rank of Joint Secretary w.e.f 26.04.2005 vide order dated 11.03.2013 under Annexure-7. 6.2. From the materials available on record, this Court finds that in spite of the order passed by the Tribunal on 29.08.2001, which was subsequently confirmed by this Court vide its judgment dated 27.08.2009, the petitioners were never given promotion and on the ground of pendency of the writ petition before this Court, they were kept waiting. This Court also found that during pendency of the matter before this Court while the petitioner in W.P.C(OA) No.878 of 2015 retired / 11 / from service on 31.10.2006, the petitioner in the other writ petition retired from service on 28.02.2006. By the time the the orders of promotion were issued under Annexures-4,6 & 7 on notional basis, both the petitioners as stated above had already retired from service. 6.3. Therefore it is the view of this Court that in view of the order passed by the Tribunal on 29.08.2001 under Annexure- 1, the petitioners became eligible and entitled to get the benefit of promotion to the rank of Under Secretary, Deputy Secretary and Joint Secretary from the date indicated in the orders under Annexure-4, 6 & 7. Since it is found that the petitioners were denied the benefit of promotion due to the inaction of the opp. Parties and in spite of the order passed by the Tribunal on 29.08.2001, this Court placing reliance on the decisions as cited supra by the learned Senior Counsel, held that the principle of “no work, no pay” cannot be made applicable to the case in hand. Since due to the admitted latches of the Opp. Parties, the petitioners were deprived to discharge the duties in the promotional post of under Secretary, Deputy Secretary and Joint Secretary from the date of their entitlement as indicated in Annexures-4,6 & 7, the Petitioners are eligible and entitled to get the financial benefit / 12 / for the period in question. However, since the petitioners during pendency of the matter before this Court retired from Government Services on 31.10.2006 and 28.10.2006 respectively, this Court taking into account the nature of claim vis-a-vis the stand taken by the Opp. Parties, is of the view that the petitioners are entitled to get 50% of the financial benefit for the period of their entitlement indicated in the order under Annexures- 4,6 & 7. This Court while holding so, directs the Opp. Parties to calculate the entitlements of the petitioners for the period in question and release 50% of the same within a period of three months from the date of receipt of this order. This Court further directs the Opp. Parties to revise the pension accordingly and release the arrear differential pension also within the aforesaid time period. 07. The Writ Petitions are disposed of with the aforesaid observation and directions. Photocopy of this order be placed in the connected case. (Biraja Prasanna Satapathy) Judge Orissa High Court, Cuttack Dated the 31st January, 2023/sangita / 13 /