The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C)(OAC) No.3229 of 2016 Jogiram Sahu …. Petitioner -versus- State of Odisha & Ors. …. Opposite Parties CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY Order No 08. 1. This matter is taken up through Hybrid Arrangement
Decision
ORDER 29.03.2023 (Virtual/Physical) Mode. 2. Heard Mr. S.P. Swain, learned counsel for the Petitioner and Mr. YSP Babu, learned Addl. Standing Counsel appearing for the Opp. Parties. None appeared for the Opp. Party No. 6 when the matter was taken up. 3. The Petitioner has filed the present writ petition inter alia with the following prayer:- “In view of the facts mentioned in Paragraph-6 above, the applicants prayed for the following reliefs: a) Allow the original Application. to for promotion b) After hearing the parties direct the respondents to refer the case of the applicant to the District Selection Committee the post of Livestock Inspector by quashing the letter No.2514 dtd.24.08.2016 issued by the Respondent No.3 vide Annexure-3. And quash recommendation of District Selection Committee dtd.30.08.2016 vide Annexure-5 and promote the applicant to the post of Live Stock Inspector by treating the applicant is senior most among the other the // 2 // Group-D employees in the Gradation List within a stipulated period. c) And pass such order(s)/direction(s) as this Hon'ble Tribunal deemed fit and proper in the interest of justice.” 4. Learned counsel for the Petitioner contended that as provided under the Odisha Non-Gazetted Technical Service (Recruitment & Condition of Service) Rules, 1983, a Group D employee with having qualification of matriculation and who has worked for a period of at least 2 years in the treatment of animal, is eligible and entitled for his promotion to the Live Stock Inspector. 4.1. Even though the present Petitioner joined in his service as a Group D employee on 06.01.1990 and he also possesses the qualification of HSC and the senior most in the rank of all Group-D employees working under Opp. Party No. 3, but he was not called to attend the meeting of the selection Committee to be held on 30.08.2016 vide Annexure-3 letter dtd.29.08.2016. But the Selection Committee basing on the gradation list published by the Opp. Party No. 3 under Annexure-6 on 30.08.2016 recommended the case of Opp. Party No. 6 for his promotion to the post of Live Stock Inspector in its proceeding dtd.30.08.2016 under Annexure-5 ignoring the case of the Petitioner. 4.2. It is contended that since as per the aforesaid 1983 rules the Petitioner had the eligibility for his promotion to the post of Live Stock Inspector. But because of the wrong placement in the Page 2 of 8 // 3 // gradation list published by the Opp. Party No. 3 under Annexure-6, he was neither called nor considered by the Selection Committee in its proceeding dtd.30.08.2016. It is accordingly contended that because of the wrong placement of the Petitioner in the gradation list issued under Annexure-6, Petitioner was deprived from being considered in the proceeding of the Selection Committee meeting held on 30.08.2016 under Annexure-5. Accordingly, it is contended that the Petitioner is eligible and entitled to get the benefit of promotion to the post of Live Stock Inspector from the date Opp. Party No. 6 got the said benefit in terms of the recommendation made under Annexure-5. 5. Even though a counter affidavit has been filed by the Opp. Party No. 3, but in the said counter affidavit a stand was taken that prior to holding of the Selection Committee meeting on 30.08.2016 vide letter dtd.29.08.2016 under Annexure-3, all Class IV employees excluding the Petitioner were directed to attend the District Selection Committee meeting to be held on 30.08.2016 for the purpose of verification of certificate and to undergo the physical test. It is also indicated in the said counter that as the name of the Petitioner finds place in the gradation list and the Petitioner is not debarred to get the benefit of promotion to the post of Live Stock Inspector, the Petitioner has got no grievance to challenge the Page 3 of 8 // 4 // Selection Committee meeting held on 30.08.2016 under Annexure-5. 5.1. This Court being not satisfied with the stand taken in the counter affidavit, directed the Opp. Party No. 3 to file the affidavit as to why the Petitioner in spite of being senior to Opp. Party No. 6 was placed below him in the gradation list published under Annexure-6 and consequentially deprived to get the benefit of promotion. Pursuant to such direction issued by this Court an affidavit was filed by the Opp. Party No. 3 on 23.03.2023. In the said affidavit it is contended that since the Petitioner has passed the HSC examination subsequent to Opp. Party No. 6 and other Class IV employees he was placed below all of them in the gradation list and accordingly he was not called to attend the selection committee meeting scheduled to be held on 30.08.2016 nor his case was recommended by the Selection Committee for his promotion to the post of Live Stock Inspector. It is also contended in the said affidavit that in the meantime the Petitioner being found eligible has been promoted to the post of Live Stock Inspector vide office order dtd.16.10.2021 under Annexure-C/3 to the said affidavit. 5.2. Mr. YSP Babu, learned AGA accordingly contended that the Petitioner since has passed the HSC examination subsequent to the other Class IV employees, he was placed at the bottom of the Page 4 of 8 // 5 // gradation list published under Annexure-6 and Opp. Party No. 6 having passed the same much earlier than the Petitioner, he was placed at Sl. No. 1. Accordingly, it is contended that no illegality has been committed by the Opp. Party No. 3 in not asking the Petitioner to attend the Selection Committee meeting vide Annexure-3 nor the Selection Committee committed any wrong in recommending the name of Opp. Party No. 6 basing on his position in the gradation list so published under Annexure-6. 6. Heard learned counsel for the Parties. Perused the materials available on record. It is found from the record that the gradation list under Annexure-6 was issued by the Opp. Party No. 3 on 30.08.2016 and prior to one day of such publication, the persons placed in the gradation list save and except the Petitioner was directed to attend the selection committee meeting scheduled to be held on 30.08.2016 vide Annexure-3 letter dtd.29.08.2016. On 30.08.2016 Selection Committee considered the claim of the candidates so recommended under Annexure-3 and recommended the name of Opp. Party No. 6 as against the post of Live Stock Inspector as he was placed at Sl. No. 1 of the gradation list. 6.1. After going through the affidavit filed by the Opp. Party No. 3 this Court finds that gradation list of Group-D/Class-IV employees was published by the Opp. Party No. 3 on 30.08.2016 by placing Page 5 of 8 // 6 // the Petitioner at the bottom and Opp. Party No. 6 at Sl. No. 1 on the ground that the said Opp. Party and other Group-D employees have passed the HSC examination earlier than the Petitioner. As per the considered view of this Court the stand taken by the Opp. Party No. 3 with regard to placement of the Petitioner vis-à-vis Opp. Party No. 6 is not sustainable in view of the clear provision contained under 1983 Rules. As per the provisions contained under the aforesaid rules, an employee becomes eligible for his promotion to the post of Live Stock Inspector if he has passed the matriculation examination and has completed at least 2 years in treatment of animal. Since the Petitioner possesses both the eligibility criteria by the time the gradation list was published on 30.08.2016 under Annexure-6, the stand taken by the Opp. Party No. 3 that Opp. Party No. 6 was placed above him in the gradation list and accordingly he was selected on the ground that he has passed the HSC examination earlier is not sustainable in the eye of law. The action of the Opp. Party No. 3 in directing other eligible Group-D employees to attend the selection committee meeting vide Annexure-3 and holding of the selection committee meeting on 30.08.2016 basing on the gradation list dt.30.08.2016 is not sustainable as the same runs contrary to the provision contained under the 1983 rules. Page 6 of 8 // 7 // 6.2. Therefore, after going through the materials placed before this Court, this Court is of the opinion that the Opp. Party No. 3 not only published the gradation list of Group D employees under Annexure-6 without following the aforesaid rules but also committed wrong in not allowing the Petitioner to participate in the selection committee meeting vide Annexure-3. Because of such wrong committed by O.P. No. 3, the case of the Petitioner was not considered by the Selection Committee in its proceeding dtd.30.08.2016, wherein Opp. Party No. 6 was selected and recommended for the post of Live Stock Inspector. 6.3. Since the case of the Petitioner was not considered on any other ground save and except on the ground that he has passed the HSC examination at a subsequent date than Opp. Party No. 6, this Court taking into account the fact that the Petitioner has got the benefit of promotion in the meantime vide order dtd.16.10.2021, while disposing the writ petition, directs Opp. Party No. 3 to extend the benefit of promotion in favour of the Petitioner from the date Opp. Party No. 6 was so promoted in terms of the recommendation issued under Annexure-5. Such an order be passed by Opp. Party No. 3 by giving retrospective promotion to the Petitioner within a period of one (1) month from the date of receipt of this order. On being given such promotion the Petitioner be extended with the financial benefit for the period in question on notional basis, but Page 7 of 8 // 8 // will be held eligible to get other service benefit as due and admissible. 7. The writ petition is accordingly disposed of with the aforesaid observation and direction. (Biraja Prasanna Satapathy) Judge Sneha Page 8 of 8