Orissa High Court

Govt. Of Odisha & Anr vs Sri Pradeep Kumar Mohanty & on 27 October, 2021

               IN THE HIGH COURT OF ORISSA AT CUTTACK
                               W.P.(C) No.29513 of 2021


            Govt. of Odisha & Anr.                  ....        Petitioner(s)
                                                    Mr. Manoj Ku. Khuntia,
                                                                     AGA

                                        -versus-

            Sri Pradeep Kumar Mohanty &             ....      Opposite Party(s)
            Ors.
                                                      Mr. Tapan Ku. Biswal,
                                                      Advocate for the O.P.1


                          CORAM:
                          JUSTICE BISWANATH RATH
                          JUSTICE S.K. PANIGRAHI

                                        ORDER

27.10.2021 Order No.

1. 1. The present writ petition at the instance of the State

Authorities contains the following prayer:-

" PRAYER It is prayed, therefore that this Hon'ble Court may graciously be pleased to:

                          i)     Admit the writ petition.
                          ii)    Call for the L.C.R.

iii) Issue notice to the Opp. Party to show cause as to why the writ petition shall not be allowed and upon his filing show cause or showing insufficient cause, allow the writ petition and issue a writ in the nature of certiorari or an appropriate writ setting aside the judgment / order dtd.15.11.2017 passed in O.A. No.543 of 2016 and order dtd.26.03.2019 passed in CP

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No.70 of 2018 (arising out of OA No.543 of 2016) by the learned Odisha Administrative Tribunal, Bhubaneswar under Annexures-1 &

And pass any other order which will be deemed fit and proper for the end of justice and for this act of kindness the petitioners as in duty bound shall ever pray."

2. During course of submission Mr. Khuntia, learned Additional

Government Advocate appearing on behalf of the Petitioners makes a fair

statement that in fact the State Authorities have no grievance involving

the judgment / order dated 15.11.2017 passed in O.A. No.543 of 2016,

but in advancing his submission Mr. Khuntia, learned Additional

Government Advocate drawing the attention of this Court to the grounds

stated in the writ petition submitted that even though there is no dispute

with regard to the direction part in the final order of the Tribunal in

disposal of the O.A. No.543 of 2016, however, for the compliance of the

order of the Tribunal involved herein no C.P. proceeding was

entertainable. Mr. Khuntia, learned Additional Government Advocate

thus contended that the State Administrative Tribunal not only went

wrong in entertaining the C.P. but also committed wrong in passing the

impugned order dated 26.03.2019, which unless is interfered with and set

aside, will set a bad precedent. This Court also finds, for the order in O.A.

No.543 of 2016 being passed on 25.11.2017 the writ petition involving

such order after 4 years cannot be entertained otherwise.

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3. Heard the submission made by Mr. Khuntia, learned Additional

Government Advocate and going to adjudicate the question raised and

indicated herein above as to the entertainability of the C.P. proceeding

and the order arises therefrom, this Court finds, the Original Application

bearing O.A. No.543 of 2016 involves facts that the applicant therein was

initially appointed in the Office of the Sub-Registrar, Ranpur in the

district of Nayagarh and was subsequently transferred to Puri District on

his personal representation. Upon joining in Puri District the Applicant

therein was given bottom seniority and his name was accordingly placed

at Sl.No.5 in the gradation list prepared for the cadre of Jr. Clerk, where

position of the respondent no.3 therein was at Sl.No.9. A D.P.C. was held

on 07.07.2015 for promotion to the rank of Sr. Clerk. It appears, though

the case of the applicant was considered in the D.P.C. for promotion, his

case was not recommended for promotion on the premises of his

suspension involving the Vigilance P.S. Case No.09/2014 and such

decision was kept in a sealed cover. Being aggrieved with such action the

Applicant therein approached the State Administrative Tribunal in O.A.

No.543 of 2016, it appears, learned Tribunal considering the rival

contentions of the parties came to observe that undisputedly no penal

order involving the Applicant therein was available at the time of

consideration of the case for promotion involved herein by the D.P.C and

accordingly applying the principle decided by the Hon'ble apex Court in

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the case of Union of India Vrs. K.V. Janakiraman : AIR 1991 (SC) 2010

learned Tribunal held that there is no scope for applying the principle of

keeping the promotion of the Applicant therein in a sealed cover. In this

circumstance, the Tribunal while allowing the O.A. directed the State

Authorities to open the sealed cover and consider the promotion of the

applicant therein to the rank of Sr. Clerk with further observation that in

the event the applicant therein is suitable for promotion as per the

recommendation of the D.P.C. he would be given with such promotion

with effect from the date of his immediate juniors i.e. the respondent no.3

therein got such promotion and with all consequential benefits, but

however with further caveat that any such promotion shall be abided by

the ultimate outcome in the disciplinary proceeding pending against the

Applicant therein. It is for non-compliance of the order of the Tribunal

the Applicant therein was forced to file a contempt case in the Tribunal

vide C.P. No.70 of 2018 which matter was again disposed of by the

Tribunal on 26.03.2019 recording the statement that even though the

applicant therein has been given promotion to the rank of Sr. Clerk from

the date the Respondent No.3 therein was promoted as Sr. Clerk, but

however, with notional benefit. As the order of the competent authority

remained contrary to the direction of the Tribunal dated 15.11.2017 in

O.A. No.543 of 2016 so far it relates to consequential financial benefits,

the Tribunal in the C.P. Proceeding accordingly directed for submission

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of the compliance report after coming to hold that decision of the

competent authority remains contrary to the order dated 15.11.2017 in

O.A. No.543 of 2016.

4. Mr. Khutia, learned Additional Government Advocate

referring to the order passed by the competent authority claiming to be

passed in strict compliance of the order of the Tribunal dated 15.11.2017

in O.A. No.543 of 2016, submitted that there is no illegality in the order

at Annexure-6 passed in compliance of the direction of the Tribunal and

thus contended that the direction of the Tribunal dated 26.03.2019 in

CONTC (CP) No.70 of 2018 remains contrary to its own decision.

5. Considering the submission of Mr. Khutia, learned

Additional Government Advocate this Court finds, the background of the

case is, the applicant therein sought for relief through the Original

Application for reopening of the sealed cover and prayed for issuing a

direction to the competent authority to give promotion to the Applicant

with effect from the date of promotion of the Respondent No.3 therein

along with all consequential benefits. This Court further finds, the learned

Tribunal in last but two paragraphs of the order dated 15.11.2017 came to

observe as follows:

"Accordingly, the O.A. is allowed and the State respondents are directed to open the sealed cover and consider promotion of

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the applicant to the rank of senior clerk and if is otherwise suitable for promotion as per the recommendation of the DPC, he may be given promotion with effect from the date his immediate junior respondent No.3 got such promotion with all consequential benefits. However, such promotion will abide by the order passed in the criminal case as well as in the disciplinary proceeding. The entire exercise be completed within two months from the date of receipt of a copy of this order. Send copies."

6. On reading the aforesaid observation and considering the

submission of Mr. Khuntia, learned Additional Government Advocate

this Court finds, the direction of the Tribunal to the competent authority

to open the sealed cover involving the Applicant therein and to give

promotion to the Applicant therein in the post of Sr. Clerk with effect

from the date of promotion of his immediate junior i.e. the Respondent

No.3 therein along with all consequential benefits was not only justified

but also in terms of the decision of the Hon'ble apex Court in AIR 1991

SC 2010. It is, in this view of the matter, this Court examining the

contentions raised by Mr. Khuntia, learned Additional Government

Advocate vis-à-vis the development through the order vide Annexure-6

being passed by the competent authority even though giving promotion to