The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C)(OA) No.2213 of 2017 In the matter of an application under Section 19 of the Administrative Tribunal’s Act, 1985. ……………… Abhimanyu Pradhan …. Petitioner -versus- State of Odisha & Ors. …. Opposite Parties For Petitioners : Mr. S.Sk. Subudhi, Advocate For Opp. Parties : Mr. M.K. Balabantaray Addl. Govt. Advocate Mr. S.P. Pati, Advocate (Opp. Party No. 2) PRESENT: THE HON’BLE JUSTICE BIRAJA PRASANNA SATAPATHY --------------------------------------------------------------------------------------- Date of Hearing: 16.08.2024 and Date of Judgment: 16.08.2024 --------------------------------------------------------------------------------------- Biraja Prasanna Satapathy, J. 1. This matter is taken up through hybrid mode. 2. Heard Mr. S.Sk. Subudhi, learned counsel appearing for the Petitioner and Mr. M.K. Balabantaray, learned Addl. Govt. Advocate appearing for the Opp. Parties. // 2 // 3. Petitioner has filed the present writ petition inter alia challenging office order dtd.06.11.2017 so issued by the Govt.-Opp. Party No. 1 under Annexure-9. Vide the said order claim of the Petitioner to get the benefit of promotion to the rank of Executive Engineer w.e.f.26.12.1995 was rejected. 4. It is the case of the Petitioner that Petitioner while continuing as an Asst. Engineer, he was promoted to the rank of Asst. Executive Engineer w.e.f.18.01.1989. But while so continuing in the said rank vide order dtd.26.06.1989, he was reverted to the post of Asst. Engineer. The matter was thereafter carried to the Tribunal in O.A. No. 1231 of 1995 and the Tribunal vide order dtd.03.08.1995 disposed of the Original Application inter alia with the following direction:- “In that view of the matter, I direct the State Government (Opposite party No. 1) to dispose of the representations of the petitioners in the light of the two earlier decisions of this Tribunal. Petitioners may file fresh representations with copies of the decisions of the Tribunal For consideration of the question if the
Decision
earlier representations are not disposed of. Since petitioners have suffered reversion from the year 1989, I direct that the representations shall be disposed of within four months from the date of receipt of a copy of this order. Necessary instruction shall be issued to the Lift Irrigation Corporation in that light so that the promotions of the petitioners may be considered in the light t of the instructions of the Tribunal.” Page 2 of 19 // 3 // 5. It is contended that while complying the direction so issued by the Tribunal in its order dtd.03.08.1995, Petitioner was promoted to the rank of Asst. Executive Engineer retrospectively w.e.f.11.12.1989 vide order dtd.10.01.1996. 5.1. It is contended that during continuance of the Petitioner in the reverted post, a DPC was held on 31.07.1995 and basing on the recommendation of the DPC some of his juniors got the benefit of promotion to the rank of Executive Engineer vide order dtd.26.12.1995, Petitioner again approached the Tribunal in O.A. No. 2607 of 2000 claiming the benefit of promotion to the rank of Executive Engineer w.e.f.26.12.1995 with all service and financial benefits retrospectively. The Tribunal vide order dtd.25.01.2001 disposed of the O.A. with a direction on the Opp. Party No. 1 to consider the claim of the Petitioner and pass appropriate order therein. 5.2. Learned counsel for the Petitioner contended that order passed by the Tribunal in O.A. No. 2607 of 2000 was never complied and in the meantime Petitioner on attaining the age of superannuation retired from his service on 30.06.2001. However, Petitioner claiming retrospective promotion to the rank of Executive Engineer from the date his juniors got the said benefit vide office order dtd.26.12.1995, again approached the Page 3 of 19 // 4 // Tribunal by filing O.A. No. 189 of 2003. The Tribunal vide order dtd.22.04.2009 under Annexure-1 disposed of the matter with the following direction:- “3. We therefore dispose of this application with a direction that a review DPC be convened to assess the suitability of the applicant as on 26.12.95 and if he is found suitable then all the benefits of promotion be made available to him from the date his junior received the benefits. Apart from the benefit of promotional fixation in real monetary terms the applicant would also be entitled to his last pay fixed on the basis of this fixation and would be entitled to pension to be calculated on that basis. As the applicant has already retired on 30.6.01 and has been receiving his pension (probably provisional as the learned counsel for the applicant contents) it is nec215essary that the refixation and recalculation …………………for a period of six months would be adequate for the purpose. The review DPC be convened within a period of one month from the date of receipt of a copy of this order and the payment due to the applicant including the revised pensionary benefits be made available within the time frame fixed.” 5.3. It is contended that basing on the order passed by the Tribunal under Annexure-1, claim of the Petitioner for consideration of his grievance to get the benefit of promotion to the rank of Executive Engineer (Civil) as on 26.12.1995 was not considered on the ground that one disciplinary proceeding under Rule 15 of OCS (CCA) Rules, 1962 so drawn up by Odisha Lift Irrigation Corporation vide Memorandum No. 31230 Page 4 of 19 // 5 // dtd.09.11.1983 is pending against him. Accordingly, the Review DPC convened on 24.12.2011 in terms of the order passed by the Tribunal on 22.04.2009 decided to keep its finding in the sealed cover as per G.O. No. 3298 dtd.28.02.1994 and G.O. No. 1598 dtd.15.01.1999. It is also indicated that further follow up action shall be taken at Govt. level after finalization of the Departmental Proceeding by OLIC. 5.4. Learned counsel for the Petitioner contended that the proceeding initiated by OLIC vide Memorandum dtd.09.11.1983 was disposed of vide office order dtd.28.04.2012 under Annexure-3 inter alia with the following punishment:- “1. The charges against him are partially proved. 2. He is hereby censured and warned for the lapses. 3. He has to deposit Rs. 575/- for the lapses towards earth work at Salpa-II L.I. Project, failing which the above amount will be deducted from his pension and deposited in OLIC.” 5.5. However, after disposal of the said proceeding when no further action was taken to consider the grievance of the Petitioner to get the benefit of promotion to the rank of Executive Engineer w.e.f.26.12.1995, Petitioner again approached the Tribunal by filing O.A. No. 477 of 2012. In terms of the observation contained in letter dtd.26.03.2012 so issued by the Govt.- Page 5 of 19 // 6 // Opp. Party No. 1 under Annexure-2, the Tribunal while allowing the Original Application so filed in O.A. No. 477/2012 vide order dtd.10.02.2014 under Annexure-6 issued the following direction:- “In the result the O.A. is allowed. Respondents are directed to open the sealed cover containing the recommendation of the review DPC regarding suitability of the applicant for promotion to the rank of Executive Engineer. In case the recommendation of the review DPC is in favour of the applicant, he be promoted to the rank of Executive Engineer from the date from which his juniors were promoted to that rank i.e. 26.12.1995. In such an event the applicant's salary in the rank of Executive Engineer be fixed from that date and his last pay drawn at the time of the retirement, shall also be refixed accordingly. His regular pension and other retirement dues should accordingly be reassessed and the consequent arrears towards salary and pension and other retiral dues be paid to him within a period of six months from the date of receipt of a copy of this order.” 5.6. It is contended that in terms of the order passed by the Tribunal on 10.02.2014 under Annexure-6, sealed cover containing the finding of the Review DPC held on 24.12.2011, was opened and Petitioner was not extended with the benefit of promotion, on the ground that the Review DPC has found him unfit for promotion to the rank of Executive Engineer. Accordingly, Petitioner was intimated so vide office order dtd.21.05.2014 under Annexure-7. Page 6 of 19 // 7 // 5.7. It is contended that Petitioner challenging office order dtd.21.05.2014 under Annexure-7 again approached the Tribunal by filing O.A. No. 1375 of 2014. The Tribunal vide order dtd.13.07.2017 under Annexure-8 while disposing the matter quashed the recommendation of the Review DPC dtd.24.12.2011 and directed the Opp. Parties to convene a fresh review DPC and pass a reasoned order taking all relevant service records into account regarding suitability of the Petitioner for promotion to the post of Executive Engineer as on 26.12.1995. The direction contained in Para 8 of order dtd.13.07.2017 reads as follows:- “In view of such submission, it is seen that the D.P.C. has not been conducted with due diligence and the conclusion is not based on any facts or reasons brought out. Hence the review D.P.C. dtd.24.12.2011 stands quashed. O.A. is disposed of with a direction to respondents to convene a fresh review D.P.C. and pass a reasoned order taking all relevant service records into account regarding suitability of the applicant for promotion to the post of Executive Engineer as on 26.12.1995. In case he is found suitable he will be entitled to all the benefits ordered In O.A. No. 477/2012 dtd.10.02.2014.” 5.8. Learned counsel for the Petitioner contended that on the face of the order passed by the Tribunal on 10.02.2014 in O.A. No. 477 of 2012 and further order passed by the self-same Tribunal on 13.07.2017 in O.A. No. 1375/2014 under Annexure-8, claim of the Petitioner was again rejected Page 7 of 19 // 8 // vide the impugned order dtd.06.11.2017 under Annexure-9 on self-same ground. 5.9. It is contended that pursuant to the order passed by the Tribunal on 13.07.2017 under Annexure-8, a further review DPC was held on 24.10.2017 to assess the suitability of the Petitioner for his promotion to the rank of Executive Engineer retrospectively w.e.f.26.12.1995. But on the ground that Petitioner has exhibited gross misconduct, dereliction in duty and caused loss of Govt. property, temporary misappropriation of Govt. fund, the review DPC held the Petitioner unfit for promotion and accordingly, the impugned office order was issued on 06.11.2017 under Annexure-9, rejecting the claim of the Petitioner to get the benefit of promotion to the rank of Executive Engineer w.e.f.26.12.1995. 5.10. Learned counsel appearing for the Petitioner contended that by the time the original DPC was held on 31.07.1995, Petitioner’s claim was not considered as he was continuing against the reverted post by then. But vide office order dtd.10.01.1996, Petitioner was extended with the benefit of retrospective promotion to the rank of Asst. Executive Engineer w.e.f.11.12.1989. In spite of being extended with the benefit of promotion to the rank of Asst. Executive Engineer w.e.f.11.12.1989, when his claim was not considered to get the benefit of promotion to the rank of Page 8 of 19 // 9 // Executive Engineer on the face of his juniors having got the benefit of promotion basing on the recommendation of the DPC dtd.31.07.1995, vide order dtd.26.12.1995, Petitioner approached the Tribunal in O.A. No. 2607/2000. 5.11. The Tribunal though directed for consideration of the claim of the Petitioner vide order dtd.25.01.2001, but the same was never considered and in the meantime Petitioner retired from service on attaining the age of superannuation on 30.06.2001. Thereafter, Petitioner when approached the Tribunal seeking such extension of the benefit of promotion w.e.f.26.12.1995 to the rank of Executive Engineer in O.A. No. 189 of 2003, the Tribunal vide its order dt.22.04.2009 under Annexure-1 directed Opp. Party No. 1 to conduct a review DPC and to consider the claim of the Petitioner. In terms of the said order the Review DPC on 24.12.2011 kept its finding in the sealed cover on the ground that the proceeding initiated against the Petitioner by OLIC on 09.11.1983 is pending. 5.12. Even though the said proceeding was disposed of by OLIC vide order dtd.28.04.2012 under Annexure-3, claim of the Petitioner when was not considered with opening of the sealed cover, Petitioner approached the Tribunal by filing O.A. No. 477/2012. The Tribunal when directed Opp. Party No. 1 to open the sealed cover containing the recommendation Page 9 of 19 // 10 // of review DPC, Petitioner’s claim was rejected on the ground that the review DPC held on 24.12.2011 has declared him unfit to get the benefit of promotion. The matter when was challenged again before the Tribunal in O.A. No. 1375/2014, the Tribunal while quashing the recommendation of the DPC dtd.24.12.2011, directed Opp. Party No. 1 to take a fresh decision. In terms of the said direction of the Tribunal, Review DPC held on 24.10.2017 once again declared the Petitioner unfit to get the benefit of promotion w.e.f.26.12.1995 on the ground that Petitioner during the service career has exhibited gross misconduct, dereliction in duty etc.. 5.13. It is further contended that since CCRs for the relevant period was never made available by the Department; the Review DPC while considering the service particulars of the Petitioner, could not have come to a finding that Petitioner has exhibited gross misconduct etc. and the said finding is not based on record. 5.14. Learned counsel for the Petitioner contended that till his superannuation on 30.06.2001 Petitioner was never communicated with any adverse CCR and he has got an unblemished service career. But in absence of the CCRs for the relevant period, the DPC held on 24.12.2011 and on 24.10.2017 held him unfit to get the benefit simply by saying that Page 10 of 19 // 11 // Petitioner is not eligible because of his gross misconduct and dereliction of duty etc.. 5.15. It is contended that in absence of any document in support of such view, claim of the Petitioner could not have been rejected by the review DPC held on 24.12.2011 and so also on 24.10.2017 with passing of the impugned order on 06.11.2007. It is accordingly contended that the impugned order is not sustainable in the eye of law and requires interference of this Court. 6. Mr. S.P. Pati, learned counsel appearing for the OLIC on the other hand contended that by the time the DPC was originally held on 31.07.1995, Petitioner was continuing against the reverted post of Asst. Engineer and his claim was not considered by the D.P.C.. However, in the meantime Petitioner pursuant to the order passed by the Tribunal in O.A. No. 1230/1995, was given retrospective promotion to the rank of Asst. Engineer w.e.f.11.12.1989 vide order dtd.10.01.1996. Even though Petitioner got the benefit of retrospective promotion to the rank of Asst. Executive Engineer w.e.f.11.12.1989 vide order dtd.10.01.1996, but his claim to get the benefit of promotion from the date his juniors got the said benefit vide order dtd.26.12.1995 was never considered by conducting a review DPC. Page 11 of 19 // 12 // 6.1. Pursuant to the order passed by the Tribunal in O.A. No. 189/2003, the review DPC was conducted on 24.12.2011 and by that time Petitioner had already retired from service having attained the age of superannuation on 30.06.2001. It is also contended that after his retirement on 30.06.2001 all the service particulars of the Petitioner were sent back to the Department in question and OLIC has no further role to play after 30.06.2001. 7. Mr. M.K. Balabantaray, learned Addl. Govt. Advocate on the other hand made his submission basing on the stand taken in the counter affidavit. It is contended that pursuant to the order passed by the Tribunal on 22.04.2009 in O.A. No. 189/2023, a review DPC was convened on 24.12.2011 and the said review DPC kept the Petitioner’s claim in a sealed cover taking into account the fact that the proceeding initiated by OLIC vide Memorandum dtd.09.11.1983 is pending against him. 7.1. Even though the proceeding was disposed of by the OLIC vide office order dtd.28.04.2012 under Annexure-3, but by that time Petitioner had already retired from the Govt. service w.e.f.30.06.2001. However, pursuant to the further order passed by the Tribunal in O.A. No. 477/2012, recommendation of the DPC held on 24.12.2011 was opened and Petitioner’s claim was rejected on the ground that the DPC has found him unfit for promotion. Page 12 of 19 // 13 // 7.2. It is further contended that decision of the review DPC dtd.24.12.2011 when was quashed by the Tribunal in its order dtd.13.07.2017 in O.A. No. 1375/2014 under Annexure-8, a further review DPC was held on 24.10.2017. But in absence of the CCRs, claim of the Petitioner was considered by the review DPC dtd.24.10.2017 and the said DPC taking into account the conduct of the employee and other available materials held him unfit to get the benefit of promotion. Accordingly, the impugned order dtd.06.11.2017 under Annexure-9 was issued. It is contended that since the review DPC held on 24.12.2011 and 24.10.2017 held the Petitioner unfit to get the benefit of promotion, no illegality or irregularity can be found with the impugned order so issued by the Govt.-Opp. Party No. 1 under Annexure-9. It is accordingly contended that Petitioner is not entitled to get any relief. 8. This Court taking into account the stand taken in the counter affidavit passed the following order on 16.05.2024 and 20.06.2024:- “2. Heard learned counsel appearing for the Parties. 3. This Court taking into account the stand taken in Para 10 of the counter affidavit so filed by Opp. Party No. 2 directs learned counsel appearing for Opp. Party No. 2 to justify the finding of the DPC that Petitioner is not suitable to get the benefit, even though admittedly CCRs of the relevant years were not available with the DPC. Page 13 of 19 // 14 // 4. Learned counsel appearing for Opp. Party No. 2 contended that he will satisfy this Court with regard to the stand taken in Para 10 of the counter affidavit on the next date. 5. As requested, list this matter on 20th June, 2024.” xxx xxx xxx “2. Pursuant to the order passed by this Court on 16.05.2024, learned counsel appearing for Opp. Party No. 2 produced copy of letter dtd.19.06.2024 so issued by the State-Opp. Party. The same be kept in record. 3. Basing on the instruction, Mr. Pati, learned counsel appearing for Opp. Party No. 2 contended that the Review DPC to consider the claim of the Petitioner to get the benefit of promotion was conducted by the Govt. in the Department of Water Resources and Opp. Party No. 2 has nothing to do with the same. 4. Considering the submission made by Mr. Pati and the stand taken in the impugned order dtd.06.11.2017 under Annexure-9, this Court directs learned Addl. Govt. Advocate to produce the documents relied on by the Review DPC, wherein it was found that Petitioner is involved in gross misconduct, dereliction of duty and loss of Government property and temporary misappropriation of Govt. money etc. 5. As requested by Mr. M.K. Balabantaray, learned AGA, list this matter on 5th July, 2024.” Page 14 of 19 // 15 // 9. Pursuant to the order passed by this Court, learned Addl. Govt. Advocate made further submission after receipt of the proceeding file in question. Learned Addl. Govt. Advocate after going through the proceeding file contended that after being allowed retrospective promotion to the rank of Asst. Executive Engineer w.e.f.11.12.1989 vide order dtd.10.01.1996, Govt.-Opp. Party No. 1 vide letter dtd.22.02.1996 though requested OLIC to convene a review DPC to consider the claim of the Petitioner and another to the post of Executive Engineer, but the same was never acted upon by OLIC. But in the meantime Petitioner since retired from service on attaining the age of superannuation on 30.06.2001 in terms of the order passed by the Tribunal in O.A. No. 189/2003 and 477/2012 as well as 1375/2014, the review DPC held on 24.12.2011 and 24.10.2017 held the Petitioner unfit to get the benefit of promotion. Since the DPC never recommended the claim of the Petitioner, his claim has been rightly rejected and it requires no interference. 10. Having heard learned counsel appearing for the Parties and considering the submissions made, this Court finds that Petitioner while continuing on deputation in OLIC, he was reverted from the post of Asst. Executive Engineer vide office order dtd.26.06.1989. However, in terms of the order passed by the Tribunal on 03.08.1995 in O.A. No. 1231/1995, Petitioner Page 15 of 19 // 16 // was allowed with retrospective promotion to the rank of Asst. Executive Engineer w.e.f.11.12.1989 vide order dtd.10.01.1996. Even though Petitioner was allowed retrospective promotion to the post of Asst. Executive Engineer w.e.f.11.12.1989 and in the meantime basing on the recommendation of the DPC dtd.31.07.1995, his juniors have got the benefit of promotion to the rank of Executive Engineer vide order dtd.26.12.1995, claim of the Petitioner was not considered by convening a review DPC in terms of the direction issued by the Govt. vide letter dtd.22.02.1996 to OLIC. 10.1. Petitioner though claiming such benefit of promotion w.e.f.26.12.1995 approached the Tribunal by filing O.A. No. 2607/2000 and the Tribunal vide order dtd.25.01.2001 directed Opp. Party No. 1 to consider Petitioner’s grievance, but the same was never considered till the Petitioner attained the age of superannuation on 30.06.2001. After his retirement when Petitioner approached the Tribunal once again seeking such benefit of promotion by filing O.A. No. 189/2003, the Tribunal vide order dtd.22.04.2009 under Annexure-1 directed the Opp. Parties to convene a review DPC and to consider the claim of the Petitioner to get the benefit of promotion from the date his juniors got such benefit vide office order dtd.26.12.1995 in terms of the DPC recommendation dtd.31.07.1995. Page 16 of 19 // 17 // 10.2. Basing on such direction of the Tribunal in its order under Annexure- 1, a review DPC was held on 24.12.2011 and finding of the DPC was kept in the sealed cover on the ground that the proceeding initiated against by the Petitioner by OLIC on 09.11.1983 is pending. As found the said proceeding was disposed of vide office order dtd.28.04.2012 under Annexure-3 and after such disposal of the proceeding when the sealed cover was not opened, Petitioner approached the Tribunal by filing O.A. No. 477/2012. The Tribunal vide order dtd.10.02.2014 under Annexure-6 when directed Opp. Party No. 1 to open the sealed cover, office order dtd.21.05.2014 under Annexure-7 was issued with rejection of the claim of the Petitioner on the ground that the review DPC held on 24.12.2011 has found him unfit for promotion to the rank of Executive Engineer. 10.3. Order dtd.21.05.2014 so issued under Annexure-7 when was challenged in O.A. No. 1375/2014, the Tribunal vide order dtd.13.07.2017 while quashing the recommendation of the review DPC dtd.24.12.2011 directed Opp. Party No. 1 to conduct a fresh review DPC. In terms of the said direction, the review DPC was held on 24.10.2017. But as found from the impugned order dtd.06.11.2017, claim of the Petitioner was again rejected on the ground that the review DPC held on 24.10.2017 found the Petitioner unfit for promotion on the ground that the Petitioner has Page 17 of 19 // 18 // exhibited gross misconduct, dereliction in duty, cause loss of Govt. property and temporary misappropriation of Govt. money etc.. But it is not disputed that CCRs for the relevant years were never produced either before the review DPC held on 24.12.2011 or in the review DPC held on 24.10.2017. 10.4. Since the CCRs of the Petitioner for the relevant years were never produced, this Court after going through the proceeding file finds no document showing such conduct of the Petitioner, basing on which his claim was not recommended by the review DPC held on 24.12.2011 and 24.10.2017. This Court is of the view that in absence of any material showing that Petitioner has exhibited such misconduct etc. during his service career, his claim could not have been rejected in the review DPC held on 24.10.2017. Therefore, this Court is inclined to quash the recommendation of the review DPC held on 24.10.2017 and so also the impugned office order dtd.06.11.2017 issued by the Govt.-Opp. Party No. 1 under Annexure-9. While quashing the same, this Court directs opp. Party No. 1 to extend the benefit of promotion in favour of the Petitioner w.e.f.26.12.1995 to the rank of Executive Engineer, but on notional basis, as the Petitioner has admittedly attained the age of superannuation on 30.06.2001. On such extension of benefit of notional basis, pension and Page 18 of 19 // 19 // other pensionary benefits as due and admissible be revised and differential entitle may be released. The entire exercise as directed be undertaken and completed by Opp. Party No. 1 within a period of three (3) months from the date of receipt of this order. 11. The writ petition is accordingly allowed. (BIRAJA PRASANNA SATAPATHY) Judge Orissa High Court, Cuttack Dated the 16th of August, 2024/Sneha Signature Not Verified Digitally Signed Signed by: SNEHANJALI PARIDA Reason: Authentication Location: High Court of Orissa, Cuttack Date: 23-Aug-2024 16:10:52 Page 19 of 19