Afr Jagannath Aich vs State Of Odisha And Others
2021 Latest Caselaw 8345 Ori

                    ORISSA HIGH COURT: CUTTACK


                       WPC (OAC) NO. 1380 OF 2013

          In the matter of an application under Articles 226 and 227
          of the Constitution of India.
                                  ---------------

 AFR      Jagannath Aich                          .....      Petitioner


                                       -Versus-

          State of Odisha and others              .....     Opp. Parties

For Petitioner : Ms. Saswati Mohapatra, Advocate

For Opp. Parties : Mr. H.K. Panigrahi, Addl. Standing Counsel

P R E S E N T:

THE HONOURABLE DR. JUSTICE B.R.SARANGI

Date of hearing and judgment : 10.08.2021

DR. B.R. SARANGI, J. The petitioner, by means of this writ

petition, seeks to issue direction to opposite parties no.1

and 2 to consider the case of the petitioner, upon

recommendation made by opposite party no.4, for

appointment in the post of Odisha Revenue Service // 2 //

(Group-B) cadre as per the Odisha Revenue Service

Group-B (Recruitment) Rules, 2011 for the Recruitment

Year, 2011 with all consequential monetary and service

benefits, within a stipulated period.

2. The factual matrix of the case, in precise, is

that while the petitioner was continuing as Head Clerk in

Boden Tahasil under the administrative control of

Collector-cum-District Magistrate, Nuapada, the

Government of Odisha formulated Odisha Revenue

Service Group-B (Recruitment) Rules, 2011 (for short

"Rules, 2011") for facilitating the eligible persons for

appointment into different posts under the cadre of

Odisha Revenue Service (ORS). In the said Rules, 30% of

the total anticipated vacancies of a financial year is

marked for promotion of the in-service candidates from

among the Consolidator Grade-I, Kanungo, Revenue

Inspector, Revenue Supervisor or Ministerial Officers

under the Board of Revenue, Revenue Divisional

Commissioner (s), Collectorates and other Revenue

Offices. The candidates, having the eligibility criteria of // 3 //

outstanding merit and ability are eligible for consideration

for the post of Asst. Collector, Assistant Settlement

Officer, Asst. Consolidation Officer, Additional Tahasildar

and Sub-Registrar under the cadre of ORS (Group-B). In

pursuance thereof, the Secretary, Board of Revenue,

Odisha, Cuttack, vide its letter no.607 dated 23.08.2012,

directed all the Revenue Divisional Commissioners;

Collectors; I.G.R.; Director, Land Records and Survey; and

Director, Consolidation for recommending the names of

the eligible officers working under their administrative

control for considering their case for appointment in

different posts under the ORS (Group-B) cadre for the

recruitment year 2011, as per the eligibility criteria fixed

in Rules, 2011.

2.1 In response thereto, names of eligible

candidates, who were found suitable as per the criteria

fixed under Rule-6 of the Rules, 2011, were sponsored to

opposite party no.2. The selection committee, on

20.04.2013, issued a notification selecting 87 officers for

different posts under the ORS (Group-B) cadre for the year // 4 //

2011. Thereby, the candidates, who were similarly placed

with the petitioner, were promoted against their respective

posts under the ORS (Group-B) cadre. But the petitioner

was denied such benefit on the ground that as five years

CCRs from the year 2006-2007 to 2010-2011 were not

available, his case was not recommended for promotion.

Hence, this writ petition.

3. Ms. Saswati Mohapatra, learned counsel for the

petitioner contended that CCRs are maintained by the

authority under whose administrative control the

petitioner works, therefore, the plea taken that due to

non-availability of his CCRs for the year 2006-2007 to

2010-2011, the petitioner has been deprived of promotion,

cannot sustain in the eye of law. It is further contended

that due to illegal and arbitrary action of the opposite

parties, the petitioner has been deprived of getting

promotion to the ORS (Group-B) cadre as per Rules, 2011.

Therefore, he has filed the present petition.

4. Mr. H.K. Panigrahi, learned Addl. Standing

Counsel appearing for the State contended that there is a // 5 //

procedure adopted for grant of promotion under Rules,

2011. Unless the candidates fulfill the eligibility criteria,

as mentioned in Rule-6 of the Rules, 2011, his case

cannot be taken into consideration for promotion. As the

CCRs of the petitioner for the period 2006-2007 to 2010-

2011 were not available, his case could not be considered.

Thereby, no illegality or irregularity has been committed

by the authority in not considering the case of the

petitioner for promotion in the year 2011.

5. This Court heard Ms. Saswati Mohapatra,

learned counsel for the petitioner and Mr. H.K. Panigrahi,

learned Addl. Standing Counsel appearing for the State

opposite parties by hybrid mode and perused the record.

Pleadings having been exchanged between the parties and

with the consent of the learned counsels, this writ petition

is being disposed of finally at the stage of admission.

6. On the basis of the undisputed facts and rival

contentions raised by learned counsel for the parties, the

only question that cropped up for consideration by this

Court is whether due to non-availability of CCRs for the // 6 //

year 2006-2007 to 2010-2011 the petitioner can be denied

promotion to ORS (Group-B) cadre for the year 2011, as

per Rules, 2011.

7. For just and proper adjudication of the case,

Rule-6 of Odisha Revenue Service Group-B (Recruitment)

Rules, 2011, being relevant, is extracted hereunder:-

"6. Eligibility Criteria for Promotion:-

(1) No person shall be considered for appointment by promotion under clause (b) of rule 4 to the service unless:

1. (a) He/She is a graduate; and has worked for at least ten years in any one or more than one post taken together as Consolidator Grade-I Kanungo, Revenue Supervisor, Revenue Inspector or Ministerial Officer under Board of Revenue/RDCs/Collectors/and other Revenue Offices on the 1st day of January of the year in which the Committee meets; and

(b) He/She has passed departmental examination, if any; and

(2) He/She is not more than 53 years of age as on 1st day of January in which the Committee meets."

8. In view of the aforesaid criteria fixed for

promotion to ORS (Group-B) cadre, as per Rules, 2011,

once the essential qualification required that there must

be availability of good CCR of the candidates for last five // 7 //

years, as the CCRs of the petitioner for the year 2006-

2007 to 2010-2011 were not available, his case was not

considered by the authority.

9. On being noticed, the opposite parties have

filed their counter affidavit, in para-2 thereof at the end it

is specifically mentioned as follows:-

"(2). ......Therefore, as the C.C.Rs for the period from 2006-2007 to 2010-2011 were not availability during the time of recommendation and his service record was not outstanding level, his name was not recommended to the concerned authority."

In para-4 of the counter affidavit, the opposite parties have

further stated as follows:

"(4) That, in reply to the Para 6.7, it is humbly submitted that, the Applicant's name was not recommended for the following reasons:

(a) He had not five years' C.C.Rs. i.e. from 2006-2007 to 2010-2011 which is one of the criteria for recommendation for promotion of an Officer to the cadre of O.R.S. (Group-B). It is pertinent to mention that, Outstanding merit and ability are the important factor which can be assessed basing on the remarks of the CCRs of an Officer as stipulated in the L.No.709 dated 29.09.2012 of Board of Revenue Odisha, Cuttack as enclosed in (ANNEXURE-D)."

// 8 //

10. In view of the pleadings available on record, it is

made clear that the petitioner had not five years of CCR

from the year 2006-2007 to 2010-2011, which is one of

the criteria for recommendation for promotion to an officer

cadre of ORS (Group-B) and the CCR must contain

outstanding merit and ability. This is an important factor

which can be assessed basing on the remarks in the CCR

of an officer, as stipulated in letter dated 29.09.2012 of

the Board of Revenue Odisha, Cuttack. The crux of the

matter has been indicated in the counter affidavit that

since the CCRs of the petitioner for year 2006-2007 to

2010-2011 were not available, the case of the petitioner

has not been considered for promotion.

11. In the rejoinder affidavit filed by the petitioner

it has been pointed out that under the Right to

Information Act, 2005 the petitioner had asked for CCRs

for the year 2008-2009, 2009-2010 and 2010-2011. For

the said years, though he has got outstanding CCRs, but

the same were not placed before the authority. To obtain // 9 //

the aforesaid information under the Right to Information

Act, 2005, the matter had to travel from 1st appellate

authority to 2nd appellate authority and in Second Appeal

No. 362 of 2014, vide order dated 12th January, 2015,

direction was given to provide the information.

Accordingly, information was provided by the authority

vide Annexure-9 dated 11.02.2015, as per which the

petitioner has got outstanding CCRs for the year 2006-

2007, 2007-2008 and 2008-2009. So far as CCRs for the

year 2009-2010 and 2010-2011 are concerned, he has got

outstanding. Therefore, if last five years CCRs of the

petitioner are computed, it would be seen that he has got

outstanding CCRs.

12. According to Section 58 of the Indian Evidence

Act, 1972, 'pleading' means the plaint or written

statement containing in a concise form, the material facts

on which the party pleading relies for his claim or defence.

Similarly, taking into consideration Section 3(vi) of Debts

Recovery Tribunal Regulations of Practice, 1997,

"pleading" shall include original applications, reply // 10 //

statements, rejoinders and additional statements

supplementing the original applications and reply

statements as may be permitted by the tribunal.

13. In Vidyawati Gupta v. Bhakti Hari Nayak,

(2006) 2 SCC 777, the apex Court held that the word

'pleadings' under Order VI Rule 1 and Order VII of the

Code means 'plaint' or written statement.

14. In K. Laxmanan v. Thekkayil Padmini,

(2009) 1 SCC 354, the apex Court held that pleadings

consist only of a plaint and a written statement. A

replication if filed by plaintiff and allowed by the Court

would be a part of 'pleadings'.

15. Keeping in view the meaning of 'pleadings', as

stated above, the contention raised in the writ application,

counter filed by the opposite parties and consequential

rejoinder filed by the petitioner, if taken into

consideration, so far as last five years CCRs of the

petitioner for the period 2006-2007, 2007-2008, 2008-

2009, 2009-2010 and 2010-2011 are concerned, he has

got outstanding. When there was availability of // 11 //

outstanding CCRs of the petitioner for the last five years,

if the authority could not produce the same at the time of

recommendation, the petitioner should not be debarred

from getting promotion due to laches on the party of the

authority.

16. In the above premises, the opposite parties are

directed to take into consideration the last five years

CCRs of the petitioner, as referred to above, which are

outstanding, and pass appropriate order in accordance

with law so as to enable the petitioner to get promotion to

ORS (Group-B) cadre for the year 2011 against the

existing vacancy. The entire exercise shall be done within

a period of three months from the date of communication

of the judgment.

17. With the above observation and direction, the

writ petition stands disposed of. However, there shall be

no order as to costs.

..............................

DR. B.R. SARANGI, JUDGE Orissa High Court, Cuttack The 10th August, 2021, GDS