Afr Sultan Khan vs State Of Odisha & Others
2022 Latest Caselaw 4715 Ori

               IN THE HIGH COURT OF ORISSA AT CUTTACK

                       WPC(OAC) No. 4264 of 2016

       An application under Articles 226 & 227 of Constitution of
       India.
                                   ---------------
AFR    Sultan Khan                              ......       Petitioner

                             -Versus-

       State of Odisha & others               .......        Opp. Parties

       Advocate(s) appeared in this case:-
       _______________________________________________________

         For Petitioner      :       M/s. Dr. J.K. Lenka &
                                     P.K. Behera, Advocates

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

            JUSTICE SASHIKANTA MISHRA

                                JUDGMENT

14th September, 2022

SASHIKANTA MISHRA, J.

The petitioner, being recruited as a Junior Clerk

under the Collector, Cuttack joined as such on

04.05.1991. In the year 2004 he was promoted to the post

of Sr. Clerk. He was further promoted to the post of Head

Clerk in the year 2014 and joined as such in the office of

B.A.O., LFA, Cuttack on 21.05.2016. By letter dated

13.09.2012, the Collector recommended the name of the

petitioner for promotion to Odisha Revenue Service (Group-

B) for the recruitment year 2011 as per Rule-4(b) of Odisha

Revenue Service (Recruitment) Rules, 2011 (in short "2011

Rules"). The petitioner had outstanding CCRs for the

preceding five years. However, the petitioner was deprived

of being promoted to ORS by the DPC held on 04.02.2013.

A similarly placed employee, namely Akhaya Kumar

Mohanty approached the erstwhile Odisha Administrative

Tribunal by filing O.A. No. 1764 (C) of 2013. By order dated

01.05.2014, learned Tribunal held that the promotion of

less meritorious candidates ignoring the case of persons

like the applicant (Akhaya Kumar Mohanty) was not proper

and as such, quashed the recommendation of the DPC

dated 04.02.2013 and directed the authorities to convene a

review DPC in order to consider suitability of the applicant

(Akhaya Kumar Mohanty) along with others for promotion

and if found suitable for promotion, to recommend his

name for the same. Accordingly, a selection committee was

held on 22.09.2014, wherein it was, inter alia, decided to

wait till the final decision of the High Court in W.P.(C)

No.13210 of 2014, which was filed by the State challenging

the order of the Tribunal in O.A. No. 1764 of 2013 (Akhaya

Kumar Mohanty). The petitioner in the meantime, also

approached the Tribunal by filing O.A. No. 1346 (C) of

2015. By order dated 23.04.2015, the Tribunal disposed of

the O.A. by directing the authorities to extend the same

benefits to the petitioner as per the ratio decided in O.A.

No. 1764 of 2013 (Akhaya Kumar Mohanty). Accordingly,

by order dated 08.10.2015, the petitioner was promoted

and appointed to ORS (Group-B) against the recruitment

year 2011 and was posted as Additional Tahasildar,

Bhuban. The writ petition filed by the State being W.P.(C)

No. 13210 of 2014 was withdrawn on 19.10.2016.

Thereafter, acting purportedly as per the recommendation

of the Review Selection Committee held pursuant to the

order of the Tribunal passed in O.A. No.1764 of 2013, the

petitioner was reverted to his parent post i.e., Senior Clerk

and was posted in Pattamundai Tahasil, Kendrapara and

his name was placed in the waiting list for the recruitment

year 2012 to be considered after availability of vacancy for

the said year after vacation of the stay order passed by the

Tribunal in O.A. No. 2983 of 2014, filed by one Gauranga

Kumar Gouda for promotion to the rank of ORS for the

recruitment year 2012. The order of reversion dated

11.11.2016, which is impugned in the present application,

is enclosed as Annexure-12. O.A. No. 2983 of 2014 was

disposed of by the Tribunal by order dated 12.05.2016 with

a direction to constitute review DPC. In the review DPC

held on 19.03.2016, the names of 106 officers were

recommended for promotion to ORS for the recruitment

year 2011 including employees, who are less meritorious

than the petitioner as also some employees who had

forgone their promotion. It is the petitioner's case that as

per the gradation list, his name finds place at serial no.

262, whereas the names of Smruti Ranjan Sahoo, Susanta

Kumar Pattnaik and Akhaya Kumar Mohanty find place at

serial nos. 263, 264 and 265 respectively. All the said

persons were promoted whereas the petitioner was reverted

and that too to a post below the post which he was holding

prior to promotion. Being thus aggrieved, the petitioner

originally approached the Odisha Administrative Tribunal

seeking the following relief:

"In view of the facts mentioned in para-6 above, the applicant prays for the following relief(s):-

(a) Quash the impugned revision order No. 35083/RDM dated 11.11.2016 at Annexure-12 and the decision of Review selection committee dated 06.01.2016 communicated under memo dated 28.07.2016 vide Annexure-13 so far as it relates to the Applicant.

(b) Declare that appointment of the applicant to ORS (Group-B) by way of promotion for the recruitment year-2011 as per letter No.-28763/R dated 08.10.2015 at Annexure-11 is valid and the Applicant is entitled all consequential and financial benefits w.e.f. 20.04.2013.

(c) Declare that consideration the cases of 32 candidates/persons those who were forego their promotion for the recruitment year 2011 in the review selection committee dated 06.01.2016 is illegal, arbitrary and contrary to the law/executive instruction.

(d) Issue any other order/direction which would afford complete relief to the applicant, in the facts & circumstances of the case;"

The said O.A. has since been transferred to this

Court and registered as the instant writ petition.

2. A counter affidavit has been filed by opposite

parties No. 2 and 3. In the said counter affidavit, 2011

Rules has been referred to. It is admitted that for the

recruitment year 2011, the name of the petitioner was

recommended as he had five outstanding CCRs to his

credit, for which he was promoted. It is further admitted

that even though the promotion was to be made against 73

vacancies meant for UR category and he had five

outstanding CCRs, yet due to selection of the UR

candidates having three outstanding CCRs are their credit,

the vacancies meant for UR category was exhausted at

serial no.100 of the common gradation list. Subsequently,

in pursuance of the order passed by the Tribunal in O.A.

No. 1346(C) of 2015, the applicant was recommended for

promotion against the recruitment year 2011. Thereafter

several O.As. have been filed for which it was decided to

consider the cases of all candidates afresh as per direction

given by the Tribunal in O.A. No.1764 of 2013 and to

withdraw the writ application pending before this Court.

Accordingly, the review DPC was convened on 06.01.2016

and several decisions were taken. In so far as the petitioner

is concerned, it was found that he was promoted in

pursuance of order of the Tribunal in O.A. No.1346(C) of

2015 having fulfilled the benchmark decided in the review

DPC held on 06.01.2016 but presently, appears below the

last man recommended in the waiting list for promotion

against the recruitment year 2012. It is further stated that

his name will appear at serial no.236 of the common

gradation list for the year 2012 and will remain below

Umakanta Biswal at serial no. 17 of the waiting list for the

year 2012 and can now to be adjusted for the year 2012.

3. The petitioner filed a rejoinder to the counter

affidavit taking the stand that the petitioner had already

joined in the promotional cadre but was reverted without

giving him an opportunity of hearing. Further, the

petitioner has been ignored while persons such as, Smruti

Ranjan Sahoo and Akhaya Kumar Mohanty, who are

placed much below him in the common gradation list for

the year 2011, were promoted. There was no legal

impediment for considering the case of the petitioner since

he had fulfilled the benchmark as decided in the Review

Selection Committee held on 06.01.2016. The gradation list

published on 13.05.2021 does not contain the name of the

petitioner and is placed in the separate list at serial no.4.

One of the officers, namely, D. Maleswar Patra, whose

name finds place at serial no.11 in the said separate list,

filed an O.A. before the Tribunal being O.A. No.

913(C)/2017 which was subsequently transferred to this

Court and registered as WPC(OAC) No.913 (C) of 2017. By

order dated 06.08.2021, a coordinate Bench of this Court

held that the order of reversion of the petitioner (D.

Maleswar Patra) without granting opportunity of hearing

was illegal and therefore, the same was quashed. Pursuant

to such order, the authorities restored his original

promotion. Since the petitioner stands exactly on same

footing, the impugned order of reversion also needs to be

quashed and his promotion should be restored.

4. Heard Dr. J.K. Lenka, learned counsel for the

petitioner and Mr. H.K. Panigrahi, learned Addl. Standing

Counsel for the State.

5. It is argued by Dr. J.K. Lenka that as per the

2011 Rules, promotion is to be granted on the principle of

merit-cum-suitability with due regard to seniority. In so far

as merit is concerned, the CCRs of the past five years is to

be taken into consideration. Admittedly, the petitioner had

five outstanding CCRs to his credit and therefore, he

should have been promoted at the first instance. The

petitioner was promoted only after he had approached the

Tribunal in O.A. No.1346(C)/2015. Prior to being thus

promoted, the petitioner was admittedly occupying the post

of Head Clerk since 21.05.2014. It is further contended by

Dr. Lenka that reversion of the petitioner is illegal mainly

for the reason that he was not given any opportunity of

hearing. Secondly, less meritorious officers having been

promoted ahead of him, he could not have been reverted.

That apart, he could not have been reverted to the grade

lower than the grade which he was occupying prior to

promotion. It is further contended by Dr. Lenka that the

petitioner's case is exactly the same as that of D. Maleswar

Patra and batch, in which the order of reversion was

quashed and the Government has implemented such order

by allowing them to continue in ORS cadre against their

original promotion.

6. Mr. H.K. Panigrahi, on the other hand

submits that though the criteria for promotion is merit-

cum-seniority, yet seniority cannot altogether be ignored.

As per the common gradation list published for the year

2011, the petitioner was placed at serial no. 173. Since

the vacancies, namely, 73 meant for UR category had

already been exhausted at serial no. 100 of the common

gradation list, he could not have been granted promotion.

It is further contended by Mr. Panigrahi that though the

petitioner was promoted subsequently as per the order

passed by the Tribunal, yet keeping in view the large

number of litigations, the Government decided to review

the entire process and to consider the case of all

candidates afresh. In the process, the petitioner had to be

reverted but was kept in the waiting list for promotion for

the recruitment year 2012.

7. In order to appreciate the rival contentions

better, it would be apposite to refer to the provisions of

Orissa Revenue Service (Recruitment) Rules, 2011. Rule-4

provides that 50% of the posts shall be filled up by way of

direct recruitment and 30% shall be filled up by way of

promotion of officers of outstanding merit from among the

officers of the Department as envisaged under Rule-6.

Rule-6 is quoted hereinbelow for immediate reference.

"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."

Rule-9 provides that Secretary, Board of

Revenue, Orissa shall call for the recommendations for

promotion and selection, the names of eligible officers for

consideration by the Committee. The constitution of

committee is laid down under Rule-10. Rule-8 deals with

preparation of gradation list for Promotion, which reads as

under;

"8. Preparation of Gradation List for Promotion :- (1) For the purpose of consideration of promotion to the service under clause (b) of rule 4 a common gradation list of eligible officers shall be prepared by the Secretary, Board of Revenue, Orissa on the basis of their date of appointment to their respective cadres:

Explanation - While preparing the common Gradation list the officers in higher pay scale or with higher grade pay in a pay band will be placed above those in the lower pay scale or lower grade pay in same pay band.

Provided that the inter-se-seniority fixed in their respective cadre shall not be violated.

Provided further that in case, the date of appointment of two or more officers happens to be the same, the person elder in age shall be placed above the younger."

8. Admittedly, the petitioner was placed at Serial

No. 173 of the common gradation list. It is also not

disputed that the petitioner had five outstanding CCRs to

his credit for the period from 2005-2006 to 2009-2010 as

per the information obtained by the petitioner under the

RTI Act, the copy of which has been enclosed as Annexure-

5. It has been argued that out of 120 persons

recommended for promotion by the selection committee

and appointed to ORS for the recruitment year 2011 there

are some candidates who do not possess five outstanding

CCRs but only 2, 3 and 4 outstanding CCRs. In the case of

Akhaya Kumar Mohanty (OA No. 1764 of 2013), the

learned Tribunal in its order dated 01.05.2014 inter alia

observed as follows:

"xx xx xx In the instant case, even though many employees, have 5 years outstanding CCRs, they have been ignored from being recommended for promotion. Surprisingly, in the instant case the DPC in its meeting dated 04.02.2013 (Annexure-5) took a decision in paragraph-8 that the Selection Committee will take into consideration all recommended cases by the respective recommending authorities and relied on three Outstanding CCRs during last five years preceding to the Recruitment year 2011 for selection. In paragraph-8 (iii) they have decided that the employees having at least three Outstanding CCRs during last five years preceding to the Recruitment year 2011 will be considered for promotion. In such consideration outstanding CCR for a part of the year will be treated as for the whose year. Such decision taken by the DPC is completely again the prescribed Rules and even instruction, which has been imparted by the State Government.

Law is well settled that when a principle of merit-cum-suitability with due regard to seniority will

be considered, then first of all merit-cum-suitability is to be taken into account for consideration of promotion. In the instant case, the persons concerned, who have got two outstanding or one Outstanding CCRs have been ignored. In that view of the matter, the process of selection is completely against the settled principle of law and hence liable to be quashed.

xx xx xx"

The Tribunal further held as follows:

"As such, the person concerned having five outstanding CCRs ought to have been selected at the first instance. If required number of candidates were not available from out of the persons of five outstanding CCRs, then the DPC would have gone to consider and select the persons concerned having four outstanding CCRs, three outstanding CCRs, two outstanding CCRs and one outstanding CCR."

9. Holding thus, the Tribunal directed to

convene a review DPC to consider the case of the applicant

(Akhaya Kumar Mohanty). It has already been stated

hereinbefore that the State had challenged the said order

before this Court in W.P.(C) No.13210 of 2014 but the

same was withdrawn. In so far as the petitioner is

concerned, the Tribunal in O.A. No. 1346(C) of 2015 filed

by him, held as follows:

"Considering the submission of the learned counsel for the applicant and learned Standing Counsel as well as taking into account the ratio decided by this Tribunal in O.A No. 1764/2013 dated 01.05.2014, the applicant in this case may be extended the same benefits. The entire exercise be completed

within a period of one month from the date of receipt of copy of this order."

10. From the above narration it is evident that as

directed by the Tribunal in its order dated 23.04.2015,

which incidentally has never been challenged and has

become final, the same benefit as granted in the case of

Akhaya Kumar Mohanty was required to be granted to the

petitioner also. Such benefit was also granted to him

though by order dated 08.10.2015. In the impugned order

dated 11.11.2016 in reverting the petitioner to the post of

Sr. Clerk reference has been made to the recommendation

of the Review Selection Committee held in pursuance of

orders of the Tribunal passed in O.A. No.1764 of 2013. The

order of the Tribunal in the said O.A. has been quoted in

extenso before. There is nothing in the said order which

can even remotely justify the action taken by the authority

to revert the petitioner to the post of Senior Clerk. In the

counter affidavit, it has been admitted that the petitioner

had five outstanding CCRs to his credit and was therefore,

eligible for consideration for promotion. It is also

forthcoming from the counter and on a reading of the order

of the Tribunal in O.A. No.1764 of 2014 that persons

though senior to the petitioner but less meritorious were

granted promotion for the recruitment year 2011. It is

reiterated that where the Rules provide for promotion on

the basis of "outstanding merit" as per Rule-4(b) of the

2011 Rules, the same cannot be nullified in any manner

whatsoever by harping upon the so called seniority of less

meritorious candidates. Therefore, there was no justified or

valid reason to revert the petitioner to the post of Senior

Clerk.

11. Another important aspect that strikes at the

very basis of the impugned order of reversion is, no

opportunity of hearing was granted to the petitioner before

reverting him to a lower post. Such an act is entirely

contrary to the principles of natural justice and therefore,

cannot meet with the approval of law. Be it noted here that

the petitioner having been promoted to the ORS by order

dated 08.10.2015 was reverted by order dated 11.11.2016,

i.e., after working in the promotional post for a little more

than a year. It is stated at the bar that the persons who

were promoted earlier 2011 have in the meantime acquired

right to be considered for further promotion to the OAS. As

has already been stated hereinbefore a coordinate Bench of

this Court in the case of D. Maleswar Patra (WPC(OAC) No.

913 of 2017) disapproved the order of reversion issued

against the petitioner in the said case and quashed the

same with a direction to the authority to reconsider the

same and to pass appropriate order by affording

opportunity of hearing to the petitioner. It is not disputed

that pursuant to such order, the authority by order dated

23.11.2021 has allowed the petitioner (D. Maleswar Patra)

to continue in ORS Cadre against his original recruitment

by promotion. Having regard to the fact that the petitioner

stands exactly on the same footing there is no reason why

similar benefit shall not be granted to him.

12. For the forgoing reasons therefore, this Court

is of the considered view that the impugned order, looked

at from the angle of justifiability or legality, cannot be

sustained in the eye of law. The petitioner deserves to be

restored in his promotional post as originally granted vide

order dated 08.10.2015 with all consequential service and

financial benefits.

13. In so far as the prayer for a declaration that

consideration of the case of 32 candidates, who had

foregone their promotion for the recruitment year 2011 is

concerned, this Court is of the view that the said

candidates not having been impleaded in the present case,

no order operating to their detriment can be passed in the

present case.

14. In the result, the writ petition is allowed. The

impugned order under Annexure-12 dated 11.11.2016 is

hereby quashed. The petitioner shall be deemed to be

continuing in the promotional post as per order dated

08.10.2015 and consequently, shall be granted all service

and financial benefits within a period of four weeks.

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

Sashikanta Mishra, Judge

Orissa High Court, Cuttack, The 14th September, 2022/ A.K. Rana