The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.32838 of 2023 Saroj Kumar Sinha … Petitioner Mr. N. Biswal, Advocate -Versus- State of Odisha & others … Opposite parties Mr. S. Behera, AGA CORAM: MR. JUSTICE R.K. PATTANAIK
Decision
ORDER 20.06.2025 Order No. 07. 1. Heard Mr. Biswal, learned counsel for the petitioner and Mr. Behera, learned AGA for the State. Instant writ petition 2. the petitioner challenging the impugned decision vide order dated 25th filed by is September, 2023 as at Annexure-17 of opposite party No.1, whereby, while considering representation i.e. Annexure-15, his notional promotion to the higher posts from the date of his immediate juniors received such promotion was rejected. 3. Due to the registration of the Vigilance case, the petitioner was placed under suspension vide Annexure-1 and was reinstated in service as per Annexure-2 and thereafter, in the year 2004, the Gradation list of the Drugs Inspector was prepared and therein, he was placed at Serial No.4. From Page 1 of 5 Annexure-4, it is revealed that the juniors were promoted to the post of Assistant Drugs Controller in Junior Class-1 State Service against the vacant posts. Mr. Biswal, learned counsel for the petitioner submits that another batch of officers were promoted to the said post keeping the case of the petitioner in a sealed cover due to the pendency of the Vigilance case. The submission is that the procedure in keeping the case of the petitioner in sealed cover was duly notified as per Annexure-7. The further submission is that the next promotion was held to the post of Deputy Drugs Controller and it was notified as per Annexure-8. Referring to Annexure-9, it is submitted that the next batch of promotion was allowed in the year 2009 and in that regard, notification was issued by the Government dated 28th April, 2009. In the meanwhile, Mr. Biswal, learned counsel for the petitioner submits that the petitioner retired on attaining the age of superannuation w.e.f. 29th September, 2016 (A.N.). After the order of acquittal in Criminal Appeal No.08 of 2008 corresponding to the Vigilance case, the petitioner moved the State Government for promotion in view of the Office Memorandum of the Central Administrative Department, but when it was not considered, W.P.(C) No.23528 of 2020 was filed and it was disposed of with a direction to take into consideration the order of acquittal and a decision with regard to his promotion, however, it was followed by the impugned order dated 25th September, 2023 as at Annexure-17. According to Mr. Biswal, learned counsel, the case of the petitioner kept in sealed cover was opened and notional promotion was allowed w.e.f. 13th December, 2005 vide Office Order dated 2nd January, Page 2 of 5 2024 as at Annexure-18 to the rejoinder affidavit. The contention is that notional promotion should have been allowed with regard to next promotions at par with his immediate juniors to the petitioner, but it has not been allowed and the impugned decision dated 25th September, 2023 was passed instead on the premise that the case for promotion was not kept in sealed cover. 4. On the contrary, Mr. Behera, learned AGA for the State, referring to the counter affidavit of opposite party No.1, submits that the Committee recommended promotion of 10 numbers of Drugs Inspectors including the petitioner on the basis of their service records and performance reports as evaluated from the CCRs only with regard to 1st promotion but for the fact that he was retired from Government service in the year 2016 on attaining the age of superannuation and therefore, at a belated stage, there is no scope to consider further promotions as per Rule 56 of the Odisha Service Code and rightly, therefore, the representation i.e. Annexure-15 was disposed of denying further notional promotions in his favour vide Annexure-17. 5. In reply and response to the above, Mr. Biswal, learned counsel for the petitioner refers to the rejoinder affidavit and submits that when notional promotion was given w.e.f. 13th December, 2005 to the post of Assistant Drugs Controller, which was consequent upon acquittal in the Vigilance case, the next promotions should have been allowed to the posts of Deputy Drugs Controller and Drugs Controller w.e.f. 8th May, 2007 and 28th April, 2009 at par with his juniors and when such an exercise was not undertaken on the premise that he has retired in Page 3 of 5 the meantime, it has led to the miscarriage of justice and therefore, the impugned order at Annexure-17 cannot be sustained. 6. On a reading of the Office Memorandum of General Administration Department, Government of Odisha at Annexure-12, as per Clause-6 therein, on conclusion of the disciplinary action/criminal prosecution, it is stipulated that the sealed cover or covers shall be opened and in case, the officer is completely exonerated, the due date of his promotion shall be determined with reference to the findings of the Screening Committee kept in the sealed cover/covers and also the date of promotion of his next junior on the basis of such finding. In view of the above and since there has been order of acquittal and in fact the sealed cover was opened, single promotion was allowed, the claim is that the further promotions could not have been denied. 7. A copy of the order of acquittal in Criminal Appeal No. 08 of 2008 is at Annexure-11. In fact, upon such acquittal in the Vigilance case, the sealed cover was opened and it was in the year 2024 much after the petitioner retired from service and notional promotion was allowed w.e.f. 13th December, 2005 to the post of Assistant Drugs Controller. If such promotion was allowed in favour of the petitioner with retrospective effect, the Court is of the humble view that further notional promotions could have been considered and ought not to been ignored with the plea that he had retired from service. Admittedly, the promotions have taken place in respect of juniors to the post of Deputy Drugs Controller w.e.f. 8th May, 2007 and Drugs Page 4 of 5 Controller w.e.f. 28th April, 2009 vide Annexure-8 and 9 respectively. The Court, considering the above facts and submission of learned counsel for the respective parties and the stand of Government so revealed from the counter affidavit, is of the conclusion that the petitioner should have been considered for further promotions notionally with effect from the date his juniors received such promotion. On the ground of delay and retirement of the petitioner in the year 2016, such notional promotions should not have been denied and, therefore, he having been acquitted from the Vigilance case with single notional promotion allowed, the impugned decision of the Government as per Annexure-17 cannot be justified and hence, is liable to be set aside. Accordingly, it is ordered. 8. In the result, the writ petition stands allowed. As a necessary corollary, the impugned order dated 25th September, 2023 at Annexure-17 is hereby set aside with the direction to opposite party No.1 to consider and allow notional promotions to the petitioner to the post of Deputy Drugs Controller and Drugs Controller w.e.f. 8th May, 2007 and 28th April, 2009 like his immediate juniors promoted vide Annexure-8 and 9 by taking up necessary exercise as required under law and thereafter, upon such promotions, to disburse the retiral benefits with arrears to him as early as possible preferably within a period of six weeks from the date of receipt of a copy of the order. 9. Issue urgent certified copy as per rules. Signature Not Verified Digitally Signed Signed by: ALOK RANJAN SETHY Reason: Authentication Location: ORISSA HIGH COURT Date: 24-Jun-2025 11:34:05 Alok (R.K. Pattanaik) Judge Page 5 of 5