The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK I.A. No. 128 of 2021 in W.P.C. (OA) No.761 of 2012 Sarat Kumar Pattanayak …. Petitioner None -versus- State of Odisha & Others
Legal Reasoning
…. Opposite Parties Mr. P.K. Mohanty, ASC CORAM: JUSTICE M.S. RAMAN
Decision
ORDER 19.10.2022 I.A. No. 128 of 2021 Order No. 02. 1. The Original Application No. 761 of 2012 was filed before the State Administrative Tribunal, Bhubaneswar. After its abolition, the same has been transferred to this Court which is renumbered as WPC (OA) No. 761 of 2012. 2. M.P. No. 62 of 2016 converted to I.A. No. 128 of 2021 has been filed by the petitioner for implementation of order dated 31st July, 2013 passed in OA NO. 761 of 2012.The learned Tribunal had passed the following order on the said date:- “In the result, the impugned order dated 18th June, 2012 at Annexure-8 is quashed. The respondents are directed to convene a review DPC to consider the case of all eligible candidates for promotion to the rank of Head Clerk solely on the basis of merit and seniority without taking recourse to the law of reservation. In case the applicant is found suitable for promotion he shall be promoted to the rank of Head Clerk and such promotion shall take place w.e.f. 18.6.2012 with notional financial benefits till he actually joins the promotional post. // 2 // The O.A. and the M.P. are accordingly disposed of. The entire exercise be completed within a period of two months from the date of receipt of a copy of this Order.” 3. It is alleged that though review DPC was convened to consider the promotion of the Petitioner to the Rank of Head Clerk till the date of filing of aforesaid M.P. bearing No. 62 of 2016 before the learned Tribunal the outcome of the review DPC was not given effect to. 4. It is noticed that aforesaid order passed by the learned Tribunal in OA No.761 of 2012 vide order dated 31.07.2013 has been under challenge before this Court in W.P.(C) No.19296 of 2013 and said writ petition came to be disposed of on 07.11.2019. This Court in Division Bench has passed the following order: “Heard learned counsel for the parties. 2. By way of this writ petition, the petitioner has challenged the order dated 31.07.2013 passed by the Odisha Administrative Tribunal, Cuttack Bench, Cuttack in O.A. No.761 of 2012, whereby learned Tribunal allowed the Original Application preferred by the applicant (opposite party no.4 herein). 3. The case of the petitioner is that he joined as a junior clerk in the office of C.D.M.O., Jharsuguda on 10.12.1992 and continued as such till 05.10.2004. However, on 06.10.2004, the petitioner was promoted to the post of Senior Clerk and continued as such in the office of C.D.M.O., Jharsuguda, whereas the opposite party no.4 joined the post of Senior Clerk on 09.10.2004, i.e. later to him. On 23.08.2007, the Health & Family Welfare Department had issued a circular to fill up all the remaining vacant promotional posts as per the guidelines time. On issued by the Government from time to 01.09.2008, a resolution came to be passed referring to the resolution dated 19.01.1989 wherein it has been stated Page 2 of 5 // 3 // in the general category was considered that promotion from Senior Clerk to Head Clerk, a person has to be in the post of Senior Clerk for at least four years. As no steps were taken by the C.D.M.Os. and Principals of Medical Colleges for filling up promotional posts lying vacant, a reminder was sent on 27.09.2008. However, on 27.11.2008, a Departmental Promotion Committee (DPC) was held for filling up of two posts of Head Clerks by way of promotion, one for General/OBC category and and other for reserved category. One Sri Rajendra Kumar Kar for being promotion and accordingly, he was promoted to the post of Head Clerk, but, one Sri Santosh Kumar Behera being in the S.C. category did not get promotion as he had not completed four years as Senior Clerk. In the DPC held on 27.11.2008, four persons were considered among whom Sri Rajendra Kumar Kar and Sri Sarat Kumar Pattnaik were from general category and Sri Anit Kumar Guru and Sri Santosh Kumar Behera were from reserved category. On 19.12.2008, Sri Rajendra Kumar Kar being promoted to the post of Head Clerk, the petitioner was directed to take over complete charge of PH Wing and has been carrying out the work that of the Head Clerk. On 01.06.2009, the petitioner made a representation to the Collector for not being promoted as per the DPC held on 27.11.2008. Subsequently, on 30.05.2012, the DPC was held for the post of Head Clerk as there was a vacancy under the reserved category. Accordingly, the petitioner was considered for such promotion. On 18.06.2012, the petitioner was promoted to the post of Head Clerk against the vacancy in the medical wing. 4. In the year 2012, being aggrieved by the promotional order of petitioner, the opposite party no. 4 approached the Odisha Administrative Tribunal by filing O.A. No. 761 of 2012. Learned Tribunal vide its order dated 31.07.2013 allowed the Original Application by quashing the order of promotion given to the petitioner and directed the respondents to convene a review DPC to consider the cases of all eligible candidates for promotion to the rank of Head Clerk solely on the basis of merit and seniority. On 12.08.2013, the petitioner was reverted back from the post of Head Clerk to Senior Clerk. Hence, this writ petition has been filed. Page 3 of 5 // 4 // 5. We have gone through the impugned order of learned Tribunal. 6. Taking into consideration the materials on record and submissions made by learned counsel for the parties, learned Tribunal has observed the basic principles of ‘no reservation for single post’ and passed the impugned order, relevant portion of which reads as under: “On hearing the learned counsel for the application and the learned Govt. Advocate, I am of the opinion that the stand taken by the respondents in their counter does not at all stand to reasons. There is no doubt that where a cadre consists of a single post, the provisions of ORV Act and Rules made thereunder are not applicable to fill up that post. Merely because injustice was done to respondent no.4 in the year 2008 such injustice cannot be corrected by doing another injustice to be applicant in the year 2012. The respondent no.4 could have approached this Tribunal in the year 2008 while being denied promotion on the ground of reservation. Admittedly, he did not do so. Since there was only one post in the cadre of Head Clerk in the year 2012 the respondent no.3 was not justified in ignoring the seniority of the applicant and promoting respondent no.4 to the said post on the ground of past injustice. In the result, the impugned promotion order dated 18.06.2012 at Annx.8 is quashed. The respondents are directed to convene a review DPC to consider the case of all the eligible candidates for promotion to the rank of Head Clerk solely on the basis of merit and seniority without taking recourse to the law of reservation. In case the applicant is found suitable for promotion he shall be promoted to the rank of Head Clerk and such promotion shall take place w.e.f.18.06.2012 with notional financial benefits till he actually joins the promotional post.” 7. In that view of the matter, we are in complete agreement with the view taken by learned Tribunal. No case is made out to interfere with the impugned order. 8. Learned counsel for the petitioner states that the petitioner has been given notice of recovery of the differential salary Page 4 of 5 // 5 // of the higher post, which he has discharged in the promotional post. In our considered opinion, since he has worked in the promotional post, no recovery shall be made from him. 9. Accordingly, the writ petition is disposed of” 5. Mr. Prasanna Kumar Mohanty, Additional Standing Counsel submitted that the M.P./I.A. being filed in 2016 before the learned Administrative Tribunal for implementation of order dated 31.07.2013 is not maintainable in view of the fact that the petitioner had been pursuing the matter before this Court by way of filing writ petition being W.P.(C) No.19296 of 2013. Further, the present M.P./I.A. has been rendered infructuous as the order dated 31.07.2013 has been merged in the order dated 07.11.2019. It is stressed that while filing such a petition, the petitioner has never brought the fact of pendency of writ petition before this Court. Hence he prayed to dismiss the I.A. 5. In view of such submission of Sri Mohanty, learned Additional Standing Counsel and in absence of the counsel for the petitioner to press the I.A., it is construed that the petitioner is not interested to pursue the matter any further. Hence, the I.A. stands dismissed. Laxmikant (M.S. Raman) Judge Page 5 of 5