The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.37476 of 2023 Jitendra Prasad Swain Petitioner Ms. Babita Kumari Pattanaik, Advocate …. -versus- State of Odisha and others …. Opposite Parties Mr. Tarun Pattnaik, Additional Standing Counsel Mr. Anurag Pati, Advocate for Interveners CORAM: HON’BLE MR. JUSTICE MURAHARI SRI RAMAN ORDER 05.08.2024 Order No. 05. W.P.(C) No.37476 of 2023 & I.A. No.8155 of 2024 This matter is taken up through Hybrid Mode. 2. Challenging an order dated 06.11.2023 passed by the Director General of Police, Odisha, Cuttack in pursuance to direction contained in order dated 27.03.2023 in W.P.(C) Nos.8961 & 8963 of 2023 and order dated 21.08.2023 in W.P.(C) Nos.25718/25720 and 25722 of 2023, the petitioner has approached this Court by filing this writ petition invoking provisions under Article 226/227 of the Constitution of India with the following prayer(s):- “It is therefore humbly prayed that this Hon’ble Court may graciously be pleased to admit the case, call for the records and after hearing both the parties pass the following reliefs: i) ii) To quash the order dtd.6.11.2023 under Annexure-6. To quash the VHF message dtd.1.11.2023 under Annexure-8 W.P.(C) No.37476 of 2023 Page 1 of 13 iii) iv) v) To direct the opposite parties to promote the petitioner to the rank of Havildar against existing vacancies before conducting the District drill test. To direct the opposite parties to grant all financial and consequential benefits flowing from the order of promotion. And pass such other order/orders as may be deemed fit and proper for the interest of justice. And for this act of kindness, the petitioner as in duty bound shall ever pray.” 3. The petitioner, appointed as Constable on 24.11.2011, exercised option to appear in the District Drill Test (DDT) scheduled to be held on 20.01.2020 pursuant to Message No.77/RO dated 10.01.2020 circulated by the Superintendent of Police, Jagatsinghpur. 4. Out of Nineteen applicants, eighteen candidates appeared in the said DDT including the petitioner and all the candidates passed in the said DDT. The Board of DDT for promotion of the Constable to the Rank of Lance Naik prepared the following list of selected out of eighteen candidates:- Sl No. 1 2 3 4 5 6 7 Name of the Constables C/46 Nageswari Tudu C/155 Rashmi Ranjan Palai C/238 Rashmi Ranjan Acharya C/259 Nihar Ranjan Prusty C/310 Jitendra Kumar Biswal C/321 Trilochana Swain C/493 Dambarudhar Hembram Total Mark Secured 100 123 102 148 139 103 100 Category ST UR UR UR UR UR ST 5. The petitioner contended that in terms of Police Order No.266/81, the said list so drawn up would remain valid till it is exhausted or reviewed by the next Board on the basis of record. W.P.(C) No.37476 of 2023 Page 2 of 13 However, a name could be removed from the select list for physical incapacity, serious misconduct, moral turpitude or for earning a number of punishments by him, which is subject matter of review by the next Board. All vacancies in the rank of Lance Naik would be filled up from the select list in strict order of selection. Ad hoc promotion can be given only when there is none waiting on the select list and while allowing such ad hoc promotion, seniority and merit of the Constables should be taken into consideration. 5.1. It is submitted that the total Cadre strength in Lance Naik in Jagatsinghpur District was thirteen, which were stated to be abolished by a Policy decision of the Government of Odisha in Home Department vide Notification No.25722/D&A/PTI-DP-PERI- PROM-0002-2021, Bhubaneswar dated 23.07.2021 read with Office Order No.904/Policy dated 21.08.2021 issued by the Director General of Police, Odisha, Cuttack. 6.
Legal Reasoning
8.1. He submitted that there is no dispute that the petitioner has secured 103 marks in Outdoor and Indoor subjects but he could not be found eligible as he was Junior to other Constables, who were declared eligible. He further submitted that as is apparent from the proceeding of the Board for DDT of Constable in the Rank of Lance Naik held on 20.01.2020 vide Annexure-1, eighteen candidates appeared against five vacant posts in response to Message No.77/RO dated 10.01.2020. As against these total five vacancies in the post of Lance Naik, there were three existing vacancies and two anticipated vacancies. 8.2. As per the Odisha Reservation of Vacancies in Posts & Services (for Scheduled Castes and Scheduled Tribes) Act, 1975, two posts out of five vacant posts were reserved for Scheduled Tribe candidates and remaining three vacancy were meant for candidates of unreserved category. Five candidates are selected in the order of seniority in view of P.M.R.660-A vide Police Order No.266/81, which requires that “A list of those who pass the test should be prepared as per their original seniority and this select list should not be more than one and half times of the total probable vacancies in those ranks up to January next year”. Therefore, learned Additional Standing Counsel submitted that the apprehension of the petitioner is without comprehension. W.P.(C) No.37476 of 2023 Page 6 of 13 9. To countenance her submissions and object to what has been stated by the learned Additional Standing Counsel, learned counsel for the petitioner submitted that this Court vide judgment dated 07.12.2022 in Trilochan Naik Vrss. State of Odisha and others, W.P.(C) No.26046 of 2022 held as follows: “*** 13. A close scrutiny of Police Order No.266/81 reveals that under the category(C) for promotion from Naik to Havildar five critarias have been laid down. The most important criteria is that the candidate must have passed the DIC and further a close scrutiny of the very same clause would reveal that Naik or if the Naik is not available, Lance Naik is eligible for promotion to the rank of Havildar. Therefore, this Court is of the considered view that there is no bar for considering the case of the petitioners for promotion to the rank of Havildar subject to the petitioners fulfilling the eligibility criteria. In the present case, the petitioners require the DIC certificate to be eligible for promotion to the post of Havildar. It is understood that such a course is imparted by the Police Department, therefore, there is no difficulty in providing such training to the petitioners to consider their cases for promotion, if the petitioners are otherwise eligible and suitable to be promoted to the rank of Havildar. 14. Additionally, the conduct of the Opposite Parties in the present case, is viewed seriously by this Court. Although the petitioners were selected for promotion to the rank of Havildar along with two others especially the petitioners, namely, Trilochan Naik, who was at the top of the merit list, the authorities have acted in an arbitrary manner by giving promotion to two UR category candidates while ignoring the case of the present petitioner. Such conduct on part of the Opposite Parties clearly violates the principle laid down in Articles 14 and 16 of the Constitution of India. W.P.(C) No.37476 of 2023 Page 7 of 13 15. 16. This Court also perused the letter of I.G. (Personnel), Odisha, Cuttack dated 16.09.2021, which has been issued to all the Superintendents of Police and other police functionaries of the State. The said letter discloses that the rank of Lance Naik has been used as an alternative to a Havildar by using the word ‘or’. In view of the Police Order No.266/81 as well as Letter dated 16.09.2021, this Court has no hesitation to come to a conclusion that the Lance Naik and Havildar are in the same rank and further to be appointed as Havildar, a person is required to undergo DIC training course. In view of the aforesaid analysis and further considering the submissions made by learned counsel for the respective parties, this Court has no hesitation to hold that the petitioner is eligible to be promoted to the rank of Havildar subject to petitioner acquiring the DIC certificate since the DIC training is basically in house training of the Police Department and as such, the same could be imparted to the petitioners to remove any deficiency in giving promotion to the petitioners to the rank of Havildar. Further taking into consideration, the fact that the petitioners were selected and their names finds place in the select list which shall remain valid till the list is exhausted or varied by next board, the petitioners deserves to be promoted to the next higher posts subject to availability of vacancy. Accordingly, the impugned order of rejection dated 25.08.2022 under Annexure-7 is hereby quashed, the Opposite Party No.3 is directed to consider the case of the petitioners for promotion to the rank of Havildar and in the process, if it is found that the petitioners do not have DIC certificate, then necessary arrangements be made for the petitioners to undergo such training immediately.” 9.1. She urged that after abolition of posts of Lance Naik, the promotional post for the Constable has been widened and the eligible candidates are required to be promoted to the rank of Havildar. W.P.(C) No.37476 of 2023 Page 8 of 13 10. Learned Additional Standing Counsel replied to the aforesaid contention by submitting that the petitioner was found ineligible inasmuch as he was found junior to the five selected Constables, even though the petitioner secured more marks in the DDT. Marks secured in the Outdoor and Indoor subjects are only qualifying marks as Police Order No.266/81 [PMR 660A] fixed the pass mark on Outdoor and Indoor subjects at 50%, i.e., 80 marks. Hence, the argument of the learned counsel for the petitioner has no substance and bereft of material particulars. 11. This Court having perused the record finds that the authority concerned has considered the representation of the petitioner pursuant to direction contained in order dated 27.03.2023 passed in W.P.(C) No.8961 of 2023, which reads as follows: “*** 3. *** The present writ petition has been filed by the Petitioner with the following prayers: “It is therefore humbly prayed that this Hon’ble Court may graciously be pleased to admit the case, call for the records and after hearing both the parties pass the following reliefs; i) ii) To direct the Opposite Parties to promote the petitioners to the rank of Havildar against existing vacancies before conducting the District drill test. To direct the Opposite Parties to grant all financial and the order of flowing consequential benefits promotion. from iii) And pass such other order/orders as may be deemed fit and proper for the interest of justice.” W.P.(C) No.37476 of 2023 Page 9 of 13 6.
Arguments
Heard Ms. Babita Kumari Pattanaik, learned counsel for the petitioner; Mr. Tarun Pattnaik, learned Additional Standing Counsel for the State-opposite parties and Mr. Anurag Pati, learned counsel for the Interveners. 7. Ms. Babita Kumari Pattanaik, learned counsel for the petitioner submitted that the DDT being held in terms of Police Order No.266/81 [PMR 660A], the petitioner had taken part in the DDT and secured 75 marks in Outdoor and 28 marks in Indoor subjects, thereby he secured 103 marks. Glance at the select list of candidates (as given in the table above) it is manifest that the Constable C/238 in unreserved category having secured less marks W.P.(C) No.37476 of 2023 Page 3 of 13 than the petitioner, he was selected and placed at serial No.3. It is complained that the case of the petitioner for promotion to the post of Lance Naik/Havildar was ignored. Therefore, he has insisted for quashing of order dated 06.11.2023 passed by the Director General of Police, Odisha, Cuttack vide Annexure-6 read with VHF Message dated 01.11.2023 of Superintendent of Police, Jagatsinghpur vide Annexure-8. 8. Per contra, Mr. Tarun Pattnaik, learned Additional Standing Counsel appearing for the State-opposite parties vehemently contended that the DDT was conducted in strict compliance of Police Order No.266/81 (P.M.R. 660-A). The said PMR is quoted hereunder: Police Order No.266/81 “ P.M.R.660-A-Procedure for promotion of (a) Constables to the rank of Lance Naik, (b) Lance Naik to the rank of Naik, (c) Naik to the rank of Havildar and (d) Constables and L/Naik to the rank of Crime Intelligence Havildar. Deals with the procedure for promotion to Constables to the rank of Havildars. There is no provision in the Police Manual for promotion of Constables to the rank of Lance Naik, Lance Naik to Naik and Naik to Havildars. The executive order issued on the subject from time to time to not maintain uniformity of procedure in the matter of promotion of Constables to the rank of Lance Naik. Lance Naik to Naik and Naik to Havildar. Hence the following order is issued to regulate such promotion in the district in supersession of all previous instructions/orders issued in the matter. (a)Constables to Lance Naik A Constable can be promoted to the rank of Lance Naik provided (i) he has put in 3 years of service after recruits training, (ii) is below 35 years of age, (iii) has passed the district drill test and (iv) has a good record of service. The drill test will be held in January/February every year at the District Headquarter. The S.P. of the district along with one Assistant Commandant and another C.O. of the W.P.(C) No.37476 of 2023 Page 4 of 13 to apply, district will constitute a Board to hold the test. While all the eligible candidates will before the Consideration Zone to allow Constables to appear in this test will be six times of the total numbers of existing and anticipate vacancies in the rank of Lance Naik, Naik and Havildars till January next year strictly according to the seniority of the applicants. A list of those who pass the test should be prepared as per their original seniority and this select list should not be more than one and half times of the total probable vacancies in those ranks up to January next year. The list so drawn up shall remain valid till it is exhausted or reviewed by the next Board on the basis of records. A name can be removed from the select list for physical incapacity, serious misconduct, moral turpitude or for a number of punishment earned by him, which can be reviewed by the next Board. All vacancies in the rank of Lance Naik will be filled up from the select list in strict order of selection. Ad hoc promotion may be given only when there is none waiting on the select list and while allowing such ad hoc promotion seniority and merit of the Constables should be taken into consideration. The District Drill Test will be held in the following subjects:- Outdoor Subject Squad Drill Arms Drill Weapon Training Field Craft P.T. Turn Out 1. 2. 3. 4. 5. 6. Total Pass mark Full Mark 20 .. 20 .. 30 .. 20 .. 20 .. .. 10 _________________________ .. __________________________ 10 10 15 10 10 5 120 60 Indoor A simple essay or a report or a letter be written in Oriya 1. Service Records (The over all record should be 40 40 20 .. Examined and marks given on the basis of Rewards and punishments). 2. Sports and other extra-curricular activities 20 .. (give reasons) W.P.(C) No.37476 of 2023 Page 5 of 13 3. Courses passed (i.e. P.T. Course, W.T. 20 .. Course, UAC Course). ____________ 240 Marks _____________ The pass mark on Outdoor and Indoor subjects would be 50%, i.e., 80 marks.” Grand Total ..
Decision
Considering the submissions made by the respective parties and without expressing any opinion on the merits of the case, this Court disposes of the writ petition at the stage of admission with a direction to the Opposite Party No.2 to consider the representation of the Petitioner under Annexure-3 taking into consideration Annexure-4 in accordance with law within a period of two months from the date of production of certified copy of this order. It is needless to mention here that the representation of the Petitioner shall be considered and disposed of by passing a speaking and reasoned order. Any decision so taken on the said representation shall be communicated to the Petitioner within a period of two weeks thereafter.” 12. The authority, while considering the said representation, vide order dated 06.11.2023 observed as follows: “*** Perused Hon’ble High Court Orders passed in individual WPCs, report of the Supdt. of Police, Jagatsinghpur and relevant records. Records reveal that a Selection Board was held on 20.01.2020 for conducting District Drill Test in order to fill up 3 existing and 2 anticipated vacancies (UR-03 and ST-02) in the rank of Lance Naik as per provisions of Police Order No.266/81. All the petitioners appeared in the Test. The Selection Board selected 7 Constables as per their original seniority. The petitioners being juniors as per original seniority could not be selected by the Selection Board keeping in view of the category wise vacancy advertised for conducting DDT. Since, none of the above named petitioners have been declared as qualificed in the DDT held on 20.01.2020, their claim vide their individual representations in WPCs for promotion to the rank of Havildar against the vacancies arising subsequently has no merit for consideration. Merely appearing in the DDT does not confer any right for promotion against subsequent vacancies. Under the above facts and circumstance, prayer of the petitioners for promotion to the rank of Havildar is hereby rejected. Their representations in individual WPCs stands disposed of accordingly.” W.P.(C) No.37476 of 2023 Page 10 of 13 13. Bare perusal of aforesaid order reveals that the Selection Board selected seven Constables as per their original seniority as supplemented by the Additional Standing Counsel based on record. Out of these seven selected Constables, five Constables were selected in the order of seniority; two being reserved to be filled up under Scheduled Tribe category, rest three vacancies under unreserved. As per P.M.R.660-A (Police Order No.266/81), the select list should not be more than one and half times of the total probable vacancies in the Rank of Lance Naik. 14. Glance at select list of the candidates as per original seniority as culled out in the proceeding of the Board of the DDT vide Annexure-1, it is revealed that five candidates under unreserved category were selected in the year 2020. As Ms. Babita Kumari Pattnaik, learned counsel for the petitioner fairly conceded that there is no dispute with regard to the fact that the petitioner is junior to the candidates, whose names found place in the select list in the proceeding of the Board of DDT for promotion of Constables to the rank of Lance Naik held on 20.01.2020. The grievance of the petitioner was that having secured higher marks in the Outdoor and Indoor subjects, his case should have been considered by taking into consideration the marks awarded in service record, sports and other extra curriculum activities and courses passed. It is also submitted that the opposite parties should have added more vacancies as the disclosed vacancies were not “up to January next year”. She further submitted that had the Board considered by taking into account correct position with respect to vacancy position in terms of Police Order No.266/81 [PMR 660A], the petitioner could have been W.P.(C) No.37476 of 2023 Page 11 of 13 accommodated for promotion to the post of Havildar (as Lance Naik post has been abolished and equated with Havildar in view of Trilochan Naik Vrs. State of Odisha, W.P.(C) No.26046 of 2022, vide Judgment dated 07.12.2022). This Court finds no foundation in the argument of learned counsel for the petitioner, hence the same is repelled. As the marks obtained in the Outdoor subjects and Indoor subjects are only qualifying marks, in terms of Police Order No.266/81 [PMR 660A], the select list is prepared “strictly according to the seniority of the applicants” and “all vacancies in the rank of Lance Naik will be filled up from the select list in strict order of selection”. Learned Additional Standing Counsel has asserted that the Board has taken correct figures and without any error while completing the selection process by preparing list of five candidates in unreserved category and two in Scheduled Tribe category in strict adherence to the requirement per aforesaid Police Order. 15. In view of the aforesaid judgment dated 07.12.2022 passed by this Court in W.P.(C) No.26046 of 2022, it is observed that the Lance Naik and the Havildar being in the same rank, the petitioner has misconstrued the position with respect to promotion to the post of Havildar. Under the aforesaid premises, this Court finds no merit in the writ petition and finds no infirmity in order dated 06.11.2023 passed by the Director General of Police, Odisha, Cuttack, who has correctly decided that mere appearance in the DDT would not confer any right for promotion and the petitioner being junior as per original seniority was not selected by the Board keeping in view the category-wise vacancies. W.P.(C) No.37476 of 2023 Page 12 of 13 16. Mr. Anurag Pati, learned counsel appearing for the interveners by filing Interlocutory Application No.8153 of 2024 brought to the notice of this Court that in pursuance of the VHF Message dated 01.11.2023, the interveners-Constables appeared in DDT held on 13.11.2023 and vide order dated 18.11.2023, a select list of candidates who have passed DDT is prepared for allowing the Constables to undergo Drill Instructors’ Course Training which was scheduled to commence on and from 19.06.2024. However, in view of interim Order dated 16.11.2023 passed in the present writ petition, the Superintendent of Police, Jagatsinghpur has kept the select list in abeyance and has not allowed these selected Constables of 2023 DDT to undergo Drill Instructors’ Course Training. 17. Be that as it may. In view of the above discussions, and it remained undisputed that the petitioner is junior to the eligible Constables as per select list prepared by the Board of District Drill Test for promotion to the rank of Lance Naik held on 20.01.2020, this Court does not find merit in the writ petition. Accordingly, the order dated 06.11.2023 of the Director General of Police vide Annexure-6 does not call for intervention. 18. In view of the above, the writ petition stands dismissed being devoid of merit. The interim order dated 16.11.2023 as extended from time to time passed by this Court stands vacated. Signature Not Verified Digitally Signed Signed by: LAXMIKANT MOHAPATRA Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 06-Aug-2024 19:49:49 Laxmikant (M.S. Raman) Judge W.P.(C) No.37476 of 2023 Page 13 of 13