The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK S. Sudhir W.P.(C) No. 36308 of 2023 …. Petitioner Mr. G.Sinha, Advocate -versus- State of Odisha and others …. Opposite Parties Mr.S.N.Das, ASC CORAM: MR. JUSTICE D.DASH MR. JUSTICE G.SATAPATHY Order No. ORDER 20.11.2023 02. 1. This matter is taken up through hybrid arrangement (virtual/physical) mode. 2. The petitioner in this writ petition has invoked the extra ordinary jurisdiction of this Court under Articles 226 and 227 of the Constitution of India in praying to quash the orders passed by OP-2 on 23.12.2022 (Annexure-8), 31.01.2023 (Annexure-9), 26.04.2023 (Annexure-12), 16.05.2023 (Annexure-13) and the letter No.1766 dated 22.02.2023 of Registrar Civil Court, Kalahandi at Bhawanipatna instructing the Petitioner to deposit excess financial benefits of Rs.3,56,942/- already availed by him with further direction to give him promotion along with all financial benefits by taking into consideration the recommendation of Justice Shetty Commission in terms of letters issued by OP-3 on 21.12.2022 under Annexures-6 & 7 and on 14.08.2023 under Annexure-14. 3. The case of the Petitioner in gist is that on being selected, he joined as Stenographer Grade-III in the judgeship of Kalahandi- Page 1 of 6 Nuapada at Bhawanipatna on 25.03.2010 and, thereafter, he was promoted to Grade-II on 07.09.2015. While continuing as such, OP- 2 by office orders Nos.89 and 88 dated 14.12.2020 granted promotion retrospectively to 19 and 13 Stenographers respectively including the Petitioner to Grade-II w.e.f 31.08.2013 vide Serial No.16 of Annexure-4 and to Grade-I w.e.f 28.02.2020 vide Serial No. 13 of Annexure-3 by relying upon certain letters and recommendations of Justice Shetty Commission accepted by the Apex Court in W.P.(C) No.1022 of 1989 and accordingly, the Petitioner availed financial benefit for a sum of Rs.3,56,942/-. But later, on receipt of communication under Annexure Nos. 6 and 7 issued on 21.12.2022 and finding the aforesaid grant of financial benefits to have been provided on an erroneous interpretation of the recommendations of Justice Shetty Commission, the order passed by the Apex Court in W.P.(C) No.1022 of 1989 and resolutions dated 10.10.2008, 24.12.2010 and 13.09.2012 of the Govt. in the Department of Law, OP-2 issued order No. 188 on 23.12.2022 (Annexure-8) directing the Registrar Civil Court-cum-Judge-in- Charge of Accounts, Bhawanipatna to calculate excess financial benefits already availed by the Petitioner and others consequent upon their retrospective promotions to Grade-II and Grade-I vide Annexure Nos. 3 & 4 which were considered as illegal and
Legal Reasoning
cancelled by High Court of Orissa and to recover the same from the Petitioner and others and accordingly, OP-2 re-fixed the pay of the Petitioner by order No.21 dated 31.01.2023 vide Annexure-9 and directed him to deposit Rs.3,56,942/- vide Annexure-10. The Petitioner then made a representation to OP-2 vide Annexure-11 to allow him to pay the aforesaid financial benefits of Rs.3,56,942/- already availed by him in installments which was allowed vide Annexure-12 and the Petitioner was permitted to pay the aforesaid Page 2 of 6 amount in 35 equal installments. Based on the above averments, the Petitioner prays for the reliefs in asserting that the orders passed by OP Nos. 2 and 3 in cancelling the retrospective promotion and recovery of excess drawl of financial benefits after six years without affording any opportunity to him are illegal, arbitrary and discriminatory. 4.
Legal Reasoning
Heard Mr. G. Sinha, learned counsel for the Petitioner
Decision
highlighting the aforesaid averments prays to allow the writ Petition by quashing Annexures-8, 9, 10, 12 and 13 and direct OP-2 to give promotion along with all financial benefits to the Petitioner as per his entitlement by taking into consideration Annexures-6, 7 and 14. 5. On the other hand, Mr. S.N. Das, learned Additional Standing Counsel, however, submits that since the order granting promotion to the Petitioner retrospectively being not inconsonance with the rule and law, the claim of the Petitioner for the reliefs claimed; merits no consideration. Accordingly, learned ASC prays to dismiss the writ. 6. After having considered the rival submissions and on going through the averments taken in the Writ Petition and the documents annexed thereto, it appears that essentially the challenge of the Petitioner herein is to the order passed by OP-2 on 23.12.2022 vide Annexure-8 directing recovery of excess financial benefits already availed by him from his salary consequent upon his retrospective promotions to Grade-II and Grade-I vide Annexure Nos. 3 & 4 which were considered as illegal and cancelled by the High Court of Orissa. 7. The Petitioner never denies to have received the consequential financial benefit of Rs.3,56,942/-accruing on account Page 3 of 6 of retrospective promotion to the higher grades i.e. Grade-II w.e.f 31.08.2013 and Grade-I w.e.f 28.02.2020 by way of order Nos.89 and 88 passed by OP-2 on 14.12.2020. But the aforesaid retrospective promotions with consequential financial benefit was extended to the Petitioner by OP-2 on erroneous interpretation of the recommendations of Justice Shetty Commission and the resolutions of the Govt. in the Law Department dated 10.10.2008, 24.12.2010 and 13.09.2012. It is also not disputed that the aforesaid recommendation and resolutions of the Govt. in the Law Department never permitted the District Judge to give automatic retrospective promotion to the Ministerial Employees including the Stenographers to the higher grade and such promotion was given to the Petitioner without adhering to the principle of promotion which was subject to passing of departmental examination by the employees concerned as well as on the basis of merit-cum- suitability in all respect with due regard to seniority. 8. In the above context of promotion, the service jurisprudence is very clear that right to promotion is not a vested right of an employee. Additionally, the High Court of Orissa in its administrative side has issued Letter No.19895/2022 dated 21.12.2022 to all the District and Sessions Judges of Orissa for information and necessary action in the matter of implementation of recommendations of Justice Shetty Commission for the employees of District and Sub-ordinate Courts of the State. Besides, the High Court of Orissa vide Letter No.20000 dated 21.12.2022 has communicated by Registrar (Administration) to the District and Sessions Judge, Kalahandi at Bhawanipatna has declared the orders passed by Ex-District Judge, Kalahandi vide order Nos.88 and 89 dated 14.12.2020, order No.94 dated 24.12.2020 and order No.23 Page 4 of 6 dated 14.03.2017 as illegal and therefore, has been cancelled. It was further observed by the aforesaid order (Annexure-7) that the financial benefits already availed by those employees due to such illegal promotion was directed to be recovered from their salary at the earliest, but the Petitioner by virtue of order Nos.89 and 88 dated 14.12.2020 has been given retrospective promotion from Stenographer Grade-III to Grade-II w.e.f 31.08.2013 and from Stenographer Grade-II to Grade-I w.e.f 28.02.2020. It is, therefore, very clear that the Petitioner was neither entitled to the promotion retrospectively nor the consequential financial benefits as availed by him and, therefore, the order of the District Judge, Kalahandi granting retrospective promotion to the employees being declared as illegal and cancelled by the High Court of Orissa, unlawful enrichment as a consequence thereof is not permissible since by no stretch of imagination illegality can be allowed to be perpetuated by way of legalizing the same. Moreover, the Petitioner by way of his representation at Annexure-11 only prays for permission to refund the excess financial benefits availed by him in installment which was allowed to be paid in 35 equal monthly installments by the authority under Annexure-12 and, thereby, the Petitioner in essence accepts the excess financial benefits availed by him consequent upon his retrospective promotions to Grade-II and Grade-I is not as per his entitlement and, therefore, the Petitioner in no circumstance is entitled to retrospective promotions. 9. In the aforesaid situation and circumstance, the grounds advanced by the Petitioner to challenge the cancellation of retrospective promotion and recovery of excess financial benefits extended to him, to which he was not entitled to, merits no consideration. The Petitioner thus cannot escape from his liability to Page 5 of 6 refund the excess amount already availed by him to the Government Exchequer. Consequently, the Petitioner is not entitled to the relief claimed by him in this writ. 10. In the result, the Writ Petition stands dismissed being devoid of merit, but no order as to costs. (D. Dash) Judge (G. Satapathy) Judge Kishore/Subhasmita Signature Not Verified Digitally Signed Signed by: KISHORE KUMAR SAHOO Designation: Secretary Reason: Authentication Location: High Court of Orissa Date: 24-Nov-2023 15:02:16 Page 6 of 6