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Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.C.(OAC) No.172 of 2019 Laxman Mallik …. Petitioner Mr. R.K. Patnaik, Adv. -versus- State of Odisha & Ors. …. Opposite Parties Mr. S. Jena, AGA CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY Order No 03. 1. This matter is taken up through Hybrid Arrangement
Decision
ORDER 07.08.2024 (Virtual/Physical) Mode. 2. Heard learned counsel for the parties. 3. Petitioner has filed the present Writ Petition inter alia challenging order dated 03.12.2018, so passed by O.P. No.2 under Annexure-6. Vide the said order, claim of the petitioner to get the benefit of promotion to the rank of Deputy Ranger in terms of the recommendation made by the DPC held on 19.06.2010 was rejected. 4. Learned counsel for the petitioner contended that in the DPC held on 19.06.2010 for promotion to the rank of Deputy Ranger, the DPC though found the petitioner eligible to get the benefit, but did not recommend his case only on the ground that the petitioner has been imposed with the punishment vide order dated 06.05.2010 and currency of the punishment has not expired. // 2 // 4.1. Learned counsel for the petitioner contended that challenging such action of the DPC in not recommending his case to get the benefit of promotion, he approached the Tribunal in O.A. No.4195(C) of 2010. The Tribunal vide order dated 31.07.2018 disposed of the Writ Petition inter alia with the following direction:- “9. In view of the above, it is to be held that when the DPC dtd.19.06.2010 was held the penalty order dtd. 6.5.2010 wherein major penalty was awarded was very much in force and the subsequent appellate order has not modified it in any way. From the DPC proceeding a copy of which has been submitted by the applicant it is seen that the DPC has considered his case under the SC category and made the following observations- -"Departmental Proceeding drawn up vide O.O. No. 263 dtd. 6.9.2005 against Sri Mallik has been finalized vide 0.0. No.123 dtd. 6.6.2010 of D.F.O., Khurdha Division, wherein suspension period from 21.02.2005 to 24.10.2005 is treated as such and his one annual increment was withheld with cumulative effect. He has been awarded with major punishment and the same is in currency. The committee scrutinized his records and found him fit for promotion, but decided to keep recommendation of the DPC in sealed cover till period of punishment is over". From this it is not clear what is "currency" of the major punishment, what is the period of punishment and what are recommendations kept in sealed cover. From the facts discussed above it is clear that a major penalty had been awarded to the applicant just a few days before the DPC was held. However in view of observation by the DPC as quoted above O.A. is disposed of with a direction to respondents to open the per the recommendation the applicant is entitled to promotion by the time he retired from service on 31.05.2011 his case for promotion may be considered. He will be only entitled to retiral benefits in case such promotion is considered.” "sealed cover" case as in Page 2 of 7 // 3 // 4.2. Learned counsel for the Petitioner contended that in the proceeding initiated against the petitioner on 06.09.2005, he was imposed with the punishment of stoppage of one annual increment with cumulative effect and suspension period was treated as such vide order dated 06.05.2010 under Annexure-3. Petitioner never assailed the said order by filing any appeal. But the DPC on the ground that currency of the punishment since has not expired, did not recommend his claim to get the benefit even though he was otherwise eligible. Accordingly, the Tribunal while taking note of the view expressed by the DPC, directed the Opp. Parties to consider the claim of the petitioner to get the benefit if he is so entitled by opening sealed cover. The Tribunal also held that petitioner will only be entitled to retiral benefits in such promotion. But without proper appreciation of the order so passed by the Tribunal, claim of the petitioner was rejected vide impugned order dated 03.12.2018 under Annexure-6. 4.3. It is contended that since by the time the DPC was held on 19.06.2010, the proceeding was already disposed of vide order dated 06.05.2010, there was no occasion on the part of the DPC to keep the recommendation in sealed cover by holding that currency of the punishment has not expired. It is also contended that there is no such provision debarring an employee to get the benefit of promotion till expiry of the currency of the punishment. Even if admitting such a provision is there, by the time petitioner retired from his service on attaining the age of superannuation on 31.05.2011, currency of the punishment awarded vide order dtd.06.05.2010 had alreay expired. Page 3 of 7 // 4 // 4.4. It is accordingly contended that claim of the petitioner to get the benefit of promotion has been wrongly rejected with opening of the sealed cover vide the impugned order dated 03.12.2018 under Annexure-6 and petitioner is entitled to get the benefit as directed by the tribunal in its order dated 31.07.2018. 5. Mr. S. Jena, learned Addl. Govt. Advocate on the other hand made his submission basing on the stand taken in the counter affidavit. It is contended that since the petitioner was imposed with the punishment of stoppage of one annual increment with cumulative effect vide order dated 06.05.2010, currency of the punishment was due to expire after one year. Because of that DPC in its proceeding dtd.19.06.2010 recommended to keep the same in sealed cover. Pursuant to the order passed by the tribunal on 31.07.2018, the Review DPC held on 15.11.2018 held the petitioner not eligible to get the benefit of promotion as petitioner has already retired on 31.05.2011 i.e. prior to expiry of the currency of the punishment. Stand taken in Para-11 of the counter affidavit reads as follows:- “11. That in reply to the averments made in Paragraph-6.7, of the Writ Petition, it is humbly submitted that, in obedience to the order of learned OAT, Cuttack, the Principal Chief Conservator of Forests, Odisha convened a special/review Departmental Promotion Committee on 15.11.2018. The DPC opened the sealed cover of Sri Mallik, Forester, (Rtd.) and found that, the following comments are mentioned in the sealed cover. "The Departmental Proceeding drawn up vide Office Order No.263 dated 06.09.2005 against Sri Mallik, Forester has been finalized vide Office Order No. 123 dated 06.06.2010 of Khordha Divisional Officer, Forest Page 4 of 7 // 5 // Division, Khordha wherein suspension period from 21.02.2005 to 24.10.2005 is treated as such and his annual increment is withheld with cumulative effect. He has been awarded with major punishment and in currency. The committee scrutinized his records and found him fit for promotion but decided to keep recommendation of the DPC in sealed cover till pending of punishment is over." the same It is further humbly submitted that Sri Mallik, Forester, retired from Govt. Service on 31.05.2011 on attaining superannuation during the period of this punishment. Under such circumstances his case for promotion to the rank of Dy. Ranger could not consider by the DPC. As per decision of special/review, DPC held on 15.11.2018, the Principal Chief Conservator of Forests, Odisha, Bhubaneswar, inclined to pass the following order:- "The claim of the applicant i.e. Sri Laxman Mallik, Forester, (Rtd.) for promotion to the rank of the Dy. Ranger is hereby rejected 2005 being devoid of merit in view of the decision of the review DPC held on 15.11.2018."” 5.1. It is accordingly contended that claim of the petitioner in terms of the order passed by the Tribunal in O.A. No.4195(C) of 2010 has been rightly rejected. 6. Having heard learned counsel for the parties and considering the submissions made, this Court finds that petitioner was imposed with the punishment in respect of a proceeding initiated on 06.09.2005 vide office order dated 06.05.2010 under Annexure-3. Vide the said order, petitioner was imposed with the punishment of stoppage of one increment with cumulative effect and period of suspension was treated as such. The order passed under Annexure-3 was never assailed by the petitioner. Therefore, it is the view of this Court as on the date of holding of the DPC on 19.06.2010, there Page 5 of 7 // 6 // was no proceeding pending against the petitioner and the DPC having found the petitioner eligible to get the benefit of promotion, should have recommended his claim. But the DPC on the ground that currency of the punishment has not expired kept the same in a sealed cover. 6.1. The Tribunal taking into account the nature of recommendation of the DPC in its order dated 31.07.2018 directed for consideration of the claim of the petitioner to get the benefit of promotion if he is so entitled by the time petitioner retired on 31.05.2011. But O.P. No.2 rejected the claim vide impugned order dated 03.12.2018 under Annexure-6 on the plea that petitioner has retired on 31.05.2011 during the subsistence of the order of punishment. As per the considered view of this Court by the time petitioner retired on 31.05.2011, term of the punishment had already expired w.e.f. 06.05.2011, the order of punishment having been passed on 06.05.2010 under Annexure-3. 6.2. In view of the aforesaid analysis, this Court is inclined to quash office order dated 03.12.2018, so passed by O.P. No.2 under Annexure-6. While quashing the same, this Court directs O.P. No.2 to extend the benefit of promotion in favour of the petitioner basing on the recommendation of the DPC dated 19.06.2010 and from the date such benefit of promotion was extended vide order dated 30.07.2010 under Annexure-4. But in view of the nature of order passed by the Tribunal on 31.07.2018, petitioner will only be entitled for revision of his pension and other pensionary benefits. This Court accordingly directs O.P. No.2 to complete the entire exercise within a period of 3 (three) months from the date of receipt Page 6 of 7 // 7 // of this order. Differential entitlement on such revision of pension and pensionary benefits be also released within the aforesaid time period. 7. The Writ Petition is accordingly disposed of. (Biraja Prasanna Satapathy) Judge Basudev Signature Not Verified Digitally Signed Signed by: BASUDEV SWAIN Designation: SR. STENO Reason: Authentication Location: High Court of Orissa, Cuttack Date: 09-Aug-2024 17:18:31 Page 7 of 7