Orissa High Court
Dr. Malay Kumar Pradhan vs State Of Odisha And Another on 7 December, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No. 33216 of 2021
Dr. Malay Kumar Pradhan .... Petitioner
Mr. A.K. Biswal, Advocate
-versus-
State of Odisha and another .... Opposite Parties
Mr. B.P. Tripathy, AGA
CORAM:
JUSTICE A.K.MOHAPATRA
ORDER
Order No. 07.12.2022
09. 1. Heard Mr. A.K. Biswal, learned counsel appearing for the
Petitioner and B.P. Tripathy, learned Additional Government
Advocate appearing for the State-Opposite Parties.
2. This writ petition has been filed by the Petitioner seeking a
direction to the Opposite Parties to promote him to the rank of Joint
Director of Factories and Boilers Level-II in terms of the DPC
recommendation dated 20.08.2019 on the ground that he is the
senior most suitable candidate available for the post, irrespective of
pendency of vigilance proceeding against him for last twelve years
and further prayer for grant of all consequential service and financial
benefits in the light of the law laid down by this Court vide order
dated 7.7.2021 in W.P.(C) No.17624 of 2021 under Annexure-6
3. It is submitted by the learned counsel for the Petitioner that
on being selected, the Petitioner joined as Inspector of Factories &
Boilers under the Government of Odisha on 29.01.1993. Further,
considering the performance of the Petitioner, he was promoted to
the post of Deputy Director of Factories & Boilers as per
Notification dated 26.08.2009 of the Government of Odisha in
Labour & Employment Department. While the matter stood thus, the
Opposite Party No.1 vide letter No.2014 dated 26.3.2019 circulated
tentative gradation list in the cadre of Deputy Directors of Factories
and Boilers.
4. It is further submitted that in the said tentative gradation list,
the name of the Petitioner was placed at Serial No.1 and that the next
promotion of post for the Petitioner is the Joint Director of Factories
and Boilers Level-II. However, to fill up one vacancy in the post of
Joint Director of Factories and Boilers Level-II, a meeting of
Selection Board was convened on 20.08.2019 to consider the
eligible candidates for promotion to the post of Joint Director of
Factories and Boilers Level-II on the basis of the gradation list
issued by the Department on 26.3.2019. Since the Petitioner's name
appears in the Serial No.1 in the gradation list, learned counsel for
the Petitioner emphatically submits that the Petitioner is ultimately
eligible for consideration and, as such, he should have been
appointed against the said post.
5. It is further contended that the name of the Petitioner along
with two other persons, namely, Satya Narayan Sethi and Abani
Kanta Naik were also considered by the Selection Board. It is
needless to mention here that Satya Narayan Sethi and Abani Kanta
Naik are juniors to the Petitioner. Furthermore, the Selection Board
while recommending the above two persons for promotion to the
post of Joint Director of Factories and Boilers Level-II, kept the
recommendation in respect of the Petitioner in a sealed cover due to
pendency of SBP (Vig.) Case No.13 of 2009 and corresponding
departmental proceeding No.59/ESI dated 3.1.2013. Mr. Biswal
further contends that while the other two persons, who were
admittedly juniors, having been promoted, took charge of their
promotional post whereas the Petitioner is still continuing against
the old post under the Director of Factories and Boilers.
6. In the context of the departmental proceeding No.59 dated
3.1.2019, it is further contended by the learned counsel for the
Petitioner that the same was challenged before the Tribunal in O.A.
No.1234 of 2019 for quashing of the departmental proceeding. In the
said O.A., the Tribunal passed an interim order directing the
Opposite Parties that till the conclusion of the departmental
proceeding, the DPC shall not be held to consider the promotion to
the post of Joint Director of Factories and Boilers Level-II without
leave of the Tribunal. Such order was challenged before this Court
by one S.N. Sethi by filing W.P.(C) No.9005 of 2019 before a
Division Bench and the Division Bench of this Court stayed the
order of Tribunal dated 28.3.2019.
7. Since the interim order passed by the Division Bench of this
Court could not be vacated, the Petitioner approached the Hon'ble
Supreme Court by filing S.L.P. No.19152 of 2019 which was
disposed of on 19.8.2019 by giving liberty to the Petitioner to
approach this Court for early hearing of the matter without merit on
the issue involved in the S.L.P.
8. After disposal of the S.L.P. by the Hon'ble Supreme Court
on 19.8.2019, W.P.(C) No.9005 of 2019 was taken up by this Court
and disposed of by declaring that the writ petition has become
infructuous since the DPC has already taken place on 20.8.2019.
Thereafter, the Petitioner approached before this Court by filing
fresh writ petition bearing W.P.(C) No.14997 of 2019 and this Court
vide order dated 29.4.2019 disposed of the same with a direction to
the Opposite Parties to comply the order as directed by the Tribunal
vide order dated 28.3.2019 within a period of four weeks and to
communicate the result to the Petitioner.
9. It is further submitted by the learned counsel for the
Petitioner that the departmental proceeding was closed pursuant to
direction passed by this Court vide order dated 24.6.2021 in CONTC
No.4804 of 2020.
10. With regard to pendency of vigilance case before the Court
of Special Judge (Vigilance), Sambalpur, which was registered
under the Prevention and Corruption Act, 1988, arising out of
Sambalpur Vigilance P.S. Case No.13 of 2009, corresponding to
G.R. Case No.13 of 2009 and CTR Case No.27 of 2014. It is stated
that same is still pending for trial. However, after filing of the charge
sheet cognizance was taken way back on 21.6.2014. While the trial
was not taking place in the vigilance case initiated against the
Petitioner, the Petitioner again approached this Court by filing
CRLMC No.1407 of 2019 and this Court after hearing the counsels
for the parties vide order dated 1.10.2019 directed for transfer of the
aforesaid Vigilance Case from the Court of the Special Judge
(Vigilance), Sambalpur to the Court of Special Judge (Vigilane),
Dhenkanal and it was further directed to conclude the same
expeditiously, preferably within a period of six months.
11. Learned counsel for the Petitioner at this juncture further
submits that despite such unambiguous order passed by this Court,
the trial in the vigilance case has although started, the progress of the
trial is very slow. It is further contended that out of a total of 95
prosecution witnesses, only 19 witnesses have been examined so far.
Further, in view of the pendency of the aforesaid vigilance case, the
DPC had adopted a procedure of sealed cover while considering the
promotion of the Petitioner to the higher post. Learned counsel for
the Petitioner in this context relied upon the decision of the Hon'ble
Supreme Court in the case of State of Punjab and Ors. -v.- Chaman
Lal Goyal, reported in (1995) 2 SCC 570; State of Odisha and Ors.
-v.- Purna Chandra Das & Ors. (W.P.(C) No.22560 of 2015
decided on 29.08.2016; Chakradhar Prasad Gantayat -v.-
Commissioner-cum-Secretary to Government of Odisha, Works
Department (W.P.(C) No.10919 of 2021 decided on 02.12.2021).
12. Mr. Biswal, learned counsel for the Petitioner further
submits that against the order of the Hon'ble Single Bench in the
case of Chakradhar Prasad Gantayat (supra), State has preferred a
writ appeal bearing W.A. No.321 of 2022 and vide order dated
17.5.2022, a Division Bench of this Court in para-4 of the order
dated 17.5.2022 has passed the following interim order:-
"Let the Petitioner be promoted on ad hoc
basis in terms of the impugned judgment with
notional benefits before the next date, subject, on
course, to the decision of the present appeal as well
as the outcome of the criminal trial."
13. Learned counsel for the Petitioner also relied upon a decision
of the Division Bench of this Court in the case of State of Odisha &
Anr. -v.- Smt. Sanjita Das & Ors., reported in 2016 (II) ILR-CUT-
808 and also in the case of State of Odisha & Ors. v. Somnath
Sahoo, reported in 2016 (II) ILR-CUT-989 in support of his
contentions.
14. Referring to all the aforesaid judgments of the Honb'le
Supreme Court as well as of this Court, learned counsel for the
Petitioner submits that the Petitioner has been deprived of his
legitimate right to be considered for promotion and be promoted to
the next higher rank. Further, it is stated that the Petitioner has been
subjected to discrimination by the Opposite Parties as he was not
given promotion and persons junior to him have been given
promotion to the post of Joint Director of Factories and Boilers
Level-II. Therefore, referring the judgments mentioned above, the
learned counsel for the Petitioner submits that the authorities be
directed to open the sealed cover and give promotion to the
Petitioner on ad hoc basis which will be subject to the outcome of
the pending criminal trial against the Petitioner.
15. It is further contended by the learned counsel for the
Petitioner that it is not known as to when criminal trial would come
to an end keeping in view the fact that 19 witnesses out of 95
prosecution witnesses have been examined so far. It is further
contended that earlier a writ petition being W.P.(C) No.33216 of
2021 was filed by the Petitioner before a coordinate Bench of this
Court and the coordinate Bench, after hearing the learned counsel
for the Petitioner, vide order dated 28.10.2021 disposed of the matter
by directing the Opposite Party No.1 to give promotion to the
Petitioner to the rank of Joint Director of Factories and Boilers
Level-II. However, the promotion of the Petitioner shall be subject
to the ultimate outcome of the vigilance proceeding and further it
has been clarified that the promotion that would be given shall not
confer equity on the Petitioner in the event, he ultimately loses the
vigilance proceeding and further promotion of the Petitioner shall
not also confer any right to claim consequential benefits.
16. The aforesaid order dated 28.10.2021 passed by this Court in
W.P.(C) No.33216 of 2021 was challenged before the Division
Bench of this Court in a Writ Appeal No.1002 of 2021 by the State
on the ground that no opportunity was granted to the Appellant-State
to file reply to the writ petition before disposing of the matter.
Accordingly, the Division Bench of this Court on the aforesaid
limited ground while setting aside the order passed on 28.10.2021
remanded the matter back to the assigned Single Judge Bench and
the matter has been directed to be taken up for final hearing.
17. After the matter was remanded, a counter affidavit has been
filed on behalf of the Opposite Party No.1. On perusal of the counter
affidavit, it appears that the Opposite Parties in paragraphs-12 and
13 have taken a stand that the G.A. Department issued a notification
vide Office Memorandum dated 17.6.2021 clarifying the position in
the context of promotion of Government servants against whom
disciplinary proceedings are pending and the said notification dated
17.6.2021 has been filed as Annexure-E/1 to the counter affidavit.
Relying upon the said memorandum, it is stated that on the date of
DPC, if any disciplinary proceeding/criminal proceeding is pending,
then the recommendation of DPC/Selection Board shall be kept in a
sealed cover. It is further submitted that on the earlier occasion while
the Single Judge disposed of the writ petition he has not taken into
account the aforesaid Office Memorandum and went on to give a
direction to give promotion to the Petitioner to the post of Joint
Director of Factories and Boilers Level-II.
18. Similarly, in para-14 of the counter affidavit, the judgment
of the Hon'ble Apex Court in the case of Union of India
-v.- K.V. Janakiraman, reported in (1991) 4 SCC 409 has been
referred to and in the said context, it was stated by the Government
Counsel that during the pendency of the criminal case/disciplinary
proceeding, if the promotion is given, it would stand as a reward to
the Petitioner notwithstanding his misconduct for the period when
the disciplinary proceeding/criminal case was pending at the time of
DPC was convened. It is also stated that if on the date of DPC
charge sheet is submitted in a criminal case, then the sealed covered
procedure is to be adopted.
19. In para-15 of the counter affidavit, the judgment of the
Honb'le Supreme Court in the case of State of Punjab -v.-
Chamanlal Goyal, reported in (195) 2 SCC 570 has been referred to
and it is sated that the ratio in Chamanlal Goyal's case would not
apply to the facts of the present case, as in the said case, only a
disciplinary proceeding was pending where inquiry was not
concluded and moreover, there was no criminal case involved in the
said reported case. However, in the said paragraph, the judgment of
this Court in the case of State of Odisha -v.- Somanath Sahu
(W.P.(C) No.19909 of 2015 disposed of on 05.10.2016) and State -
v.- Anil Kumar Sethi (W.P.(C) No.22393 of 2015 disposed of on
26.04.2017) has also been referred to and it has been stated that the
ratio laid down therein has no application to the present case.
20. On the basis of the aforesaid submissions and pleading,
learned Additional Government Advocate submitted that the
judgment relied upon by the learned counsel for the Petitioner is not
applicable to the facts of the present case. He further submits that in
view of the law laid down in the case of K.V. Janakiraman (supra),
the authority has rightly adopted the sealed cover method while
considering the promotion of the present Petitioner and, as such, no
fault can be found with the departmental authorities. In such view of
the matter, learned Additional Government Advocate submits that
no promotion can be given to the Petitioner at this juncture.
Therefore, he would not be entitled to any relief as sought for in the
present writ petition and, as such, the same be dismissed.
21. Having heard the learned counsel for the Petitioner as well
as the learned Additional Government Advocate appearing for the
State-Opposite Parties and upon consideration of the factual
background of the present case, this Court has no doubt with regard
to the eligibility of the Petitioner inasmuch as the Petitioner after due
consideration has been placed at Serial No.1 of the gradation list
which is not disputed by the Opposite Parties-Authorities. Therefore,
at the time when the DPC was required to consider and recommend
suitable candidates to the post of Joint Director of Factories and
Boilers Level-II, the Petitioner was the most suitable and senior
most candidate for promotion. Further, this Court has no hesitation
at all to hold that the DPC/Selection Board has followed the right
procedure by adopting the sealed cover method in view of the law
laid down by the Hon'ble Supreme Court in the case of K.V.
Janakiraman (supra). Therefore, upto that stage no fault can be
found with the departmental authorities in following the sealed cover
procedure in view of the admitted factual position that the vigilance
case is pending against the Petitioner. However, the vigilance case
which is pending against the present Petitioner was initiated in the
year 2009 after initiation of the proceeding, the charge sheet was
filed and cognizance was taken in the year 2014, i.e. five years after
the initiation of the proceeding.
22. Thereafter, since the trial did not commence for a long time,
the Petitioner had approached this Court and by order of this Court,
the vigilance case was transferred from Sambalpur to Dhenkanal and
after expiry of a period of almost 13 years from the date of initiation
of proceeding, this Court observed that only 19 witnesses have been
examined out of 95 witnesses. Hence, by no stretch of imagination,
it could be predicted that said proceeding is likely to be concluded in
the near future. However, the departmental proceeding which was
initiated against the Petitioner has been dropped in the meantime.
23. At this juncture, this Court feels that the only hurdle for the
Petitioner to get promotion is the pending vigilance case against
him. The contention of the learned Additional Government
Advocate that the case of the Petitioner cannot be considered in view
of Office Memorandum dated 17.6.2021 issued by the G.A.
Department, Government of Odisha on the ground that the said
Office Memorandum only permits granting promotion in such cases
where disciplinary proceeding is pending against the Government
employee and further the same does not take care of a scenario
where a criminal case is pending against the Government employee.
Thus, the same can be at best be said to be an executive instruction.
It is apt to mention that the Office Memorandum dated 18.2.1994
issued earlier contained a provision for giving promotion to
Government employees where criminal cases are pending against
them subject to certain conditions which was modified by Office
Memorandum dated 1.11.1997 of the G.A. Department and the
window that was given to the Government employees having
criminal cases against their name for promotion was taken away.
Further, the Office Memorandum dated 1.11.1997 of the G.A.
Department has been modified by Office Memorandum dated
17.6.2021 under Annexure-E/1. All these executive instructions
were issued with the intention to ensure expeditious disposal of
proceedings to facilitate timely promotion of Government servants
subject to quarterly review of the disciplinary proceeding as has
been prescribed in G.A. & P.G. Department Memorandum.
24. This Court upon careful scrutiny of all the Memorandum is
of the considered view that all those are executive circulars only to
implement the guidelines issued by the Hon'ble Supreme Court in
K.V. Janakiraman case (supra). Therefore, this Court has no
hesitation to hold that the same are not binding in nature at best
those are directory in nature so far the departmental authorities are
concerned. So to such circulars does not have the pleasure of a
statue. In the instant case, it appears that criminal proceeding which
was initiate in the year 2009 and is pending for almost 13 years and
moreover after expiry of 13 years only 19 witnesses out of 95
witnesses have been examined so far. Therefore, the Petitioner
cannot be made to suffer for the delay in conclusion of the
proceeding pending before a criminal court. Such a scenario was
never visualized while laying down the law on the subject. To take
care of the emerging scenario, this Court on number of occasions
have adopted the principle by directing the departmental authorities
to give ad hoc promotion to the employee which shall be subject to
the final outcome of the criminal proceeding. Moreover, a
Government employee in course of his employment has some
legitimate expectation like promotion etc. Therefore, he cannot be
forced to wait indefinitely to get the promotion because of delay in
conclusion of the criminal proceeding. There is also a likelihood of
this technique could be used as a tool against a person to stale
his/her promotion which he/she is otherwise entitled to as per law.
25. In the case of Chakradhar Prasad Gantayat (supra), the
order passed by the Single Judge to grant ad hoc promotion subject
to conditions prescribed in the order was also challenged before the
Division Bench of this Court in writ appeal. A Division Bench of
this Court while entertaining the writ appeal, by an interim order,
which has been quoted hereinabove, allowed the Petitioner to be
given ad hoc promotion with all notional benefits and such ad hoc
promotion shall abide by the decision in the writ appeal as well as
the outcome of the criminal trial. While considering the case of the
Petitioner, this Court is also bothered about the fact that in the event
the Petitioner succeeds in the trial and gets acquitted what would be
the scenario? Therefore, denial of promotion on the ground that a
vigilance case is pending and more particularly not likely to be
concluded in the near future, cannot be used against the Petitioner to
deny him promotion, especially when the trial is being dragged for
years together for none of Petitioner's fault.
26. On perusal of OCS (CCA) Rules, 1962 wherein Rule-13
provides nature of penalties. Sub-rule (iii-A) of Rule-13 of the OCS
(CCA) Rules, 1962 provides withdrawal of promotion as a
punishment. Therefore, considering the present matter from that
angle also, this Court is of the opinion that withholding of promotion
would amount to imposing punishment even without the employee
concerned facing a genuine trial. In the context of present case
where the promotion has been withheld on the ground that a criminal
case is pending for more than a decade denial to give promotion
amounts to inflicting punishment, so far the present Petitioner is
concerned. Therefore, this Court is of the considered view that it is
upto the State Government to come up with a mechanism whereby
they can classify the cases by taking into consideration the period of
time for which the criminal case is pending and who is responsible
for such delay and, accordingly, it is always open for the G.A. &
P.G. Department, Government of Odisha to clarify the position and
where the criminal cases are pending for several years, an exception
can be carved out for such employees and they may be allowed to be
considered for promotion pending finalization of the criminal cases
against them.
27. Furthermore, pending finalization of the proceeding, if an
employee could be reinstated in service revoking suspension order
as has been held by this Court as well as the Hon'ble Supreme
Court, then the denial of promotion to such employee pending
finalization of such departmental as well as criminal proceeding
does not stand to reason. Moreover, even if they are given promotion
on periodic review of their cases, such promotion shall always be
subject to certain terms and conditions like the same shall be subject
to final outcome of the proceeding pending against such employees.
Otherwise, neither the same would cause serious prejudice to the
right of the Petitioner.
28. In such view of the matter, this Court has no hesitation in
holding that denial of promotion to the Petitioner on the ground of
pendency of the vigilance case alone shall cause injustice to the
Petitioner in the facts and circumstances of the present case.
Therefore, this Court directs the Opposite Party No.1-Principal
Secretary to Government of Odisha, Labour & ESI Department,
Odisha Secretariat, Bhubaneswar to open the sealed cover and give
promotion to the Petitioner to the rank of Joint Director of Factories
and Boilers Level-II. However, the promotion of the Petitioner as
per direction of this Court shall be subject to the final outcome of the
vigilance proceeding referred to hereinabove. It is also directed that
the promotion given to the Petitioner to the rank of Joint Director of
Factories and Boilers Level-II shall not confer any equity in the
event the Petitioner ultimately losses the vigilance proceeding. The
Opposite Parties are directed to act upon the recommendation of the
DPC and the Petitioner be given promotion within a period of four
weeks from the date of communication of this order. It is needless to
mention here that on promotion, the Petitioner shall be entitled all
consequential benefits.
29. With the aforesaid observation and direction, this writ
petition stands disposed of.
(A.K. Mohapatra)
Judge
Debasis
