The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.33378 of 2023 Bijan Kumar Jena State of Odisha -versus- …. Mr.P.K.Mishra, Advocate Petitioner …. Opposite Party Mr.Iswar Mohanty, A.S.C. CORAM: JUSTICE A.K. MOHAPATRA
Decision
ORDER 13.10.2023 Order No. 01. 1. This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode). 2. Heard learned counsel for the Petitioner as well as learned Additional Standing Counsel for the State. Perused the Writ Petition as well as the documents annexed thereto. 3. The present Writ Petition has been filed by the Petitioner with a prayer to open the sealed cover in which the findings of the D.P.C. held in the year 2020 in respect of the Petitioner has been kept and further to grant the promotion to the Petitioner to the post of Executive Engineer (Civil) with effect from 04.09.2020 i.e. the date on which his immediate junior namely Shantanu Kumar Naik, Deputy Executive Engineer © was promoted to the post of Executive Engineer (Civil) under Annexure-4 to the Writ Petition with notional service and financial benefit as has been prescribed by the G.A. department O.M.dated 04.03.2020 under Annexure-11 to the Writ Petition. A further prayer has also been made with regard to grant of actual financial benefits attached to the post of Executive Engineer // 2 // (Civil) with effect from 01.11.2022 to the Petitioner within a stipulated period of time. 4. It is submitted by the learned counsel for the Petitioner that while the Petitioner was working as Deputy Executive Engineer (Civil) he was entangled in Sambalpur Vigilance P.S.Case No.72 of 2018 corresponding to VGR Case No.16 of 2018 pending in the Court of the learned Special Judge(Vigilance), Bolangir. It is further contended by the learned counsel for the Petitioner that in the said Vigilance case no final Charge Sheet has been submitted by the prosecution as of now. During pendency of the aforesaid vigilance proceeding a Disciplinary Proceeding was also initiated against the Petitioner on the self same allegation on 22.08.2019. The Disciplinary Proceeding continued and the same ended in imposing a minor penalty on the Petitioner of stoppage of two increments without cumulative effect. Therefore, it was contended by the learned counsel for the Petitioner that there is no pending Disciplinary Proceeding so far the present Petitioner is concerned. 5. In course of his argument, drawing the attention of this Court the G.A. Department Office Memorandum dated 04.03.2020 under Annexurre-11 it is submitted by the learned counsel for the Petitioner that the above noted Office Memorandum of the G.A. department specifically provides that after completion of the Disciplinary Proceeding if it is found that the Officer has been imposed with a minor penalty of fine, censure, withholding of increments without cumulative effect and recovery of pecuniary loss caused, he shall be given promotion from the date his immediate junior has been given promotion and his pay will be notionally fixed in the time scale of the higher grade with effect from that date. In view of the aforesaid Office Memorandum under Annexure-11, learned counsel for the // 3 // Petitioner submitted that the case of the Petitioner is squarely covered by the aforesaid Office Memorandum of the G.A. department. In such view of the matter, learned counsel for the Petitioner submitted that the Opposite Parties be directed to open the sealed cover kept in the D.P.C. in the year 2020 and give promotion to the Petitioner as has been prayed in the Writ Petition. 6. Learned Additional Standing counsel for the State on the other hand submitted that the Departmental Authority has not committed any illegality at all. Since the Petitioner was entangled in a vigilance case as well as a Disciplinary Proceeding was initiated the case of the Petitioner for promotion was considered by the D.P.C. and recommendation of such D.P.C. has been kept in a sealed cover. He further contended that due to pendency of the vigilance case, the aforesaid sealed cover has not been opened and the Petitioner has not been given promotion. In such view of the matter, learned Additional Standing Counsel submitted that the Opposite Parties have not committed any illegality and the Writ Petition is devoid of merit and the Writ Petition be dismissed. 7. On a careful examination of the submissions of the learned counsel for the respective parties and keeping in view the Office Memorandum of the G.A. Department in Annexure-11 dated 04.03.2020, this Court is of the considered view that after disposal of the Disciplinary Proceeding imposing minor penalty, there is no bar in law in giving promotion to the Petitioner from the date of his immediate juniors have been given promotion along with the consequential benefit as has been reflected in Annexure-11 to the Writ Petition. With regard to the vigilance case pending before the competent court, this Court observes that no final form has been filed in the Vigilance case. Therefore, it cannot be said that prima facie // 4 // opinion can be drawn that the Petitioner is guilty of the aforesaid offence. In view of the aforesaid legal position, this Court disposes of the Writ Petition at the stage of admission giving liberty to the Petitioner to approach Opposite Party No.1 along with the certified copy of this order. In the event the Petitioner approaches Opposite Party No.1 as has been directed herein above, the Opposite Party No.1 shall consider the case of the Petitioner by taking into consideration the representation of the Petitioner and pass necessary final order strictly in terms of the Office Memorandum dated 04.03.2020 under Annexure-11 to the Writ Petition. It is further clarified that since the Disciplinary Proceeding is culminated in imposition of minor penalty on the Petitioner, there is no bar in giving promotion to the Petitioner with notional benefit up to the date of actual promotion, the Petitioner shall be paid the actual benefit attached to the promotional post. The aforesaid exercise shall be concluded within a period of six weeks. 8. With the aforesaid observation, the Writ Petition is disposed of. 9. Issue urgent certified copy of this order as per Rules. RKS ( A.K. Mohapatra ) Judge Signature Not Verified Digitally Signed Signed by: RAMESH KUMAR SINGH Designation: Ex-A.R.-cum-Sr. Secretary Reason: Authentication Location: High Court of Orissa Date: 25-Oct-2023 16:59:06