The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK WP(C) No.31866 of 2023 Arabinda Pradhan ..... Petitioner Mr. R.K. Acharya, Advocate State of Odisha & Ors. -versus- ..... Opposite Parties Mr. S.K. Samal, AGA Mr. D.N. Rath, Advocate (Opp. Party No. 5) THE HON'BLE MR. JUSTICE BIRAJA PRASANNA SATAPATHY CORAM: ORDER 15.07.2024 Order No. 11 1. This matter is taken up through hybrid mode.
Legal Reasoning
2. Heard Mr. R.K. Acharya, learned counsel appearing for the Petitioner, Mr. S.K. Samal, learned Addl. Govt. Advocate appearing for the State and Mr. D.N. Rath, learned counsel appearing for Opp. Party No. 5. 3. Petitioner has filed the present writ petition inter alia challenging order dtd.08.08.2023 so passed by Opp. Party No. 4 under Annexure-6. Vide the said order claim of the Petitioner to get the benefit of promotion to the rank of Sr. Clerk was rejected on the ground that Petitioner even though was appointed originally as against the post of Junior Clerk vide order of appointment issued on 19.08.1994 by the Directorate for Teacher Education & SCERT, Odisha, Bhubaneswar, but since Petitioner has been adjusted as against the post of Demonstrator in terms of office order dtd.20.10.2006 of Opp. Party No. 3 vide Annexure-F/4 to the Page 1 of 5. counter, Petitioner is not eligible to get the benefit of promotion to the rank of Senior Clerk. 4. Learned counsel appearing for the Petitioner contended that Petitioner was appointed as against the post of Junior Clerk vide order of appointment issued on 19.08.1994 by Opp. Party No. 3 under Annexure-A/4 to the counter affidavit. Pursuant to the said order, Petitioner joined as against the post of Junior Clerk. 4.1. It is contended that Petitioner while continuing as against the post of Junior Clerk, vide office order dtd.31.08.2006 under Annexure-D/4 of Opp. Party No. 3, he was placed under transfer as such to D.P.IASE, Berhampur. In terms of office order dtd.31.08.2006, Petitioner was relieved from his duty on 04.09.2006 vide Annexure-E/4. 4.2. It is contended that while keeping the order of transfer in abeyance vide office order dtd.20.10.2006 under Annexure-F/4, Petitioner was adjusted as against the post of Demonstrator in the establishment of Opp. Party No. 4. It is contended that since Petitioner was appointed as against the post of Junior Clerk vide order of appointment issued on 19.08.1994 under Annexure-A/4 and he joined accordingly, claim of the Petitioner could not have been rejected on the ground that Petitioner since has been adjusted as against the post of Demonstrator, his claim to get the benefit of promotion as against the post of Sr. Clerk is not entertainable. 4.3. Learned counsel for the Petitioner contended that since Petitioner was originally appointed as against the post of Junior Clerk and by virtue of the order issued by Opp. Party No. 3 on 20.10.2006, he was only adjusted as against the post of Page 2 of 5. Demonstrator, that cannot take away the right of Petitioner to get the benefit of promotion to the next higher rank i.e. to the post of Sr. Clerk taking into account his original appointment as against the post of Junior Clerk. It is accordingly contended that the ground on which claim of the Petitioner has been rejected vide impugned order dtd.08.08.2023 of Opp. Party No. 4 is not sustainable in the eye of law. 5. Mr. S.K. Samal, learned Addl. Govt. Advocate in support of the impugned order contended that even though Petitioner vide order dtd.19.08.1994 under Annexure-A/4 was appointed as against the post of Junior Clerk and he joined accordingly, but vide order dtd.20.10.2006 while keeping the order of transfer in abeyance, Petitioner was adjusted as against the vacant post of Demonstrator in the establishment of Opp. Party No. 4. 5.1. It is contended that since Petitioner was adjusted as against the vacant post of Demonstrator vide office order dtd.20.10.2006 and he is continuing in that capacity, Petitioner is not eligible to get the benefit of promotion to the post of Sr. Clerk and his claim has been rightly rejected while extending the benefit in favour of Opp. Party No. 5 vide order dt.17.08.2023 under Annexure-7. It is accordingly contended that no illegality or irregularity can be found with regard to the impugned order passed under Annexure-6. 6. Mr. D.N. Rath, learned counsel appearing for the Private Opp. Party on the other hand contended that since Private Opp. Party is working as against the post of Junior Clerk, and only one post of Senior Clerk is available in the establishment of Opp. Party No. 4, considering his continuance as against the post of Junior Clerk, he Page 3 of 5. got the benefit of promotion to the rank of Senior Clerk vide order dtd.17.08.2023 under Annexure-7. 6.1. It is contended that since Opp. Party No. 5 is continuing as against the post of Junior Clerk and Petitioner is continuing as against the post of Demonstrator in the establishment of Opp. Party No. 4, taking into account the availability of one (1) vacancy in the rank of Senior Clerk, Opp. Party No. 5 was rightly extended with the benefit of promotion. 7. Having heard learned counsel appearing for the Parties and considering the submission made, this Court finds that vide order dtd.19.08.1994 under Annexure-A/4, Petitioner was appointed as against the post of Junior Clerk. While putting the Petitioner under transfer vide order dtd.31.08.2016 under Annexure-D/4 to the counter, he was transferred as such to D.P.IASE, Berhampur. Petitioner accordingly was relieved by the College vide office order dtd.04.09.2006 under Annexure-E/4. But, subsequently while keeping the order of transfer in abeyance vide office order dtd.20.06.2006 under Annexure-F/4, Petitioner was adjusted as against the vacant post of Demonstrator in A.A.T.C., Fakirpur-Opp. Party No. 4. 7.1. Since Petitioner was originally appointed as against the post of Junior Clerk and he joined accordingly, as per the considered view of this Court, because of his adjustment as against the post of Demonstrator vide office order dtd.20.10.2006 under Annexure-F/4, it cannot be said that Petitioner was originally appointed as against the post of Demonstrator. No document has been enclosed to the counter affidavit showing any fresh order of appointment issued in favour of the Petitioner appointing him as against the post of Page 4 of 5. Demonstrator. Mere adjustment of the Petitioner as against the post of Demonstrator vide office order dtd.20.10.2006, cannot be held that Petitioner was appointed as against the said post. Not only that original order of appointment issued on 19.08.1994 was never modified with issuance of any fresh order appointing the Petitioner as against the post of Demonstrator. 7.2. In that view of the matter this Court is of the view that the ground on which claim of the Petitioner has been rejected by Opp. Party No. 4 is not sustainable in the eye of law. While quashing the same, this Court directs Opp. Party No. 3 to treat the Petitioner to have been appointed as against the post of Junior Clerk and consider his eligibility to get the benefit of promotion as against any available vacancy coming within the jurisdiction of Opp. Party No. 3. Such a fresh decision be taken as directed within a period of two (2) months from the date of receipt of this order. Consequential follow up action shall also be taken after extending such benefit in favour of the Petitioner.
Decision
8. The writ petition is disposed of accordingly. Sneha (BIRAJA PRASANNA SATAPATHY) Judge Signature Not Verified Digitally Signed Signed by: SNEHANJALI PARIDA Reason: Authentication Location: High Court of Orissa, Cuttack Date: 18-Jul-2024 19:34:06 Page 5 of 5.