Saroj Kumar Satapathy vs State Of Odisha And Another
2023 Latest Caselaw 3014 Ori

                  IN THE HIGH COURT OF ORISSA AT CUTTACK
                                W.P.(C) No.10611 of 2023

                 Saroj Kumar Satapathy               ....           Petitioner
                                             Mr. Sameer Kumar Das, Advocate
                                           -versus-
                 State of Odisha and another         ....         Opp. Parties
                                                     Mr. N.K. Praharaj, AGA

                                     CORAM:
                            JUSTICE A.K. MOHAPATRA
                                        ORDER

Order No.                              10.04.2023
    01.     1.      This matter is taken up through Hybrid Arrangement
            (Virtual /Physical Mode).

2. Heard Sri S.K. Das, learned counsel appearing for the Petitioner as well as Mr. N.K. Praharaj, learned Additional Government Advocate appearing for the State-Opposite Parties. Perused the writ petition and the documents annexed thereto.

3. The present writ petition has been filed by the Petitioner with a prayer for a direction to the Opposite Parties to give promotion to him to the post Additional Chief Engineer from the date of his junior got such promotion, i.e., 22.04.2021 under Annexure-5 with consequential financial benefits as well as service benefits within the stipulated period of time.

4. The factual matrix involved in the present writ petition, in gist, is that the Petitioner on being duly selected was appointed as Assistant Engineer on 13.02.1988. Thereafter, the // 2 //

Petitioner got promotion to the post of Executive Engineer in the year 2014. While working as Executive Engineer, the Petitioner was promoted to the Superintending Engineer on 22.12.2020. In the year 2020, a gradation list was prepared indicating the name of the Petitioner.

5. It has also been pleaded in the writ petition that while the Petitioner was working as Executive Engineer, he was entangled in Cuttack Vigilance P.S. Case No.21 of 2017, which corresponds to VGR Case No.72 of 2017 pending in the Court of learned Special Judge, Vigilance, Cuttack. Thereafter, a departmental proceeding was instituted on the self-same charges vide Memorandum dated 29.12.2020. While the matter stood thus, on 17.06.2021, the G.A. & P.G. Department, Government of Odisha issued Office Memorandum for grant of ad-hoc promotion.

6. While this was the position, on 22.04.2021, a DPC was convened to consider promotion to the post of Additional Chief Engineer. Accordingly, on the recommendation of the DPC, juniors to the Petitioner were given promotion to the post of Additional Chief Engineer ignoring the rightful claim of the Petitioner. Being aggrieved by such illegal and discriminatory conduct of the departmental authorities, the Petitioner submitted a representation dated 09.03.2023 under Annexure-6 to the Opposite Party No.1 to consider his case for promotion to the post of Additional Chief Engineer w.e.f. the date his immediate juniors got such promotion. However, no // 3 //

action was taken by the authorities on the representation of the Petitioner. Accordingly, the Petitioner approached this Court by filing the present writ petition.

7. Sri S.K. Das, learned counsel appearing for the Petitioner, at the outset, submitted that the Petitioner has been falsely entangled in a Vigilance Case. He further submitted that till date no charge sheet has been filed in the above noted Vigilance Case. Although the Vigilance Case is pending before the learned Special Judge, Vigilance, Cuttack, however, it is unknown as to when the said proceeding will to come an end. Learned counsel for the Petitioner further relying upon the judgment of the Hon'ble Supreme Court in State of Punjab and Ors. v. Chman Lal Goyal, reported in (1995) 2 SCC 570 and of this Court in Susanta Nanda v. Union of India (W.P.(C) No.8440 of 2009) as well as in State of Odisha & Ors. v. Ashok Kumar Hota & Anr. (W.P.(C) No.18500 of 2015 decided by a Division Bench on 06.05.2022), submitted before this Court that because of the inordinate delay in disposal of the Vigilance Case, directions were issued in the above referred cases to open the sealed cover in respect of promotion of the Petitioner as per the DPC recommendation and to give effect to the recommendation of the DPC w.e.f. the date the juniors to the Petitioner got such promotion with consequential financial as well as service benefits. Learned counsel for the Petitioner also referred to a judgment by a coordinate Bench of this Court in Sushama // 4 //

Barik v. State of Odisha (W.P.(C) No.21795 of 2021 disposed of on 03.08.2021)

8. Learned counsel for the Petitioner also referred to the Memorandum dated 17.06.2021 issued by the G.A. & P.G. Department, Government of Odisha and submitted that the aforesaid Circular of the Government permits ad-hoc promotion to Government employees against whom departmental proceeding is pending. So far the Vigilance Case is concerned, learned counsel for the Petitioner contended that the charges leveled against the Petitioner remains unestablished and on the basis of the allegation made in the F.I.R., no prima facie case is made out against the Petitioner. He rather contended that the Petitioner has been unnecessarily entangled in the above noted criminal case. Although the criminal case is pending since last six years and investigation has been concluded and no charge sheet has been filed till date. Similarly, the departmental proceeding that was initiated against the Petitioner is based on the self-same allegation that has been made in the Vigilance Case. The departmental proceeding is also pending and the same is not likely to be completed in the near future. In such view of the matter, learned counsel for the Petitioner contended before this Court that the Petitioner is suffering unnecessarily, as a result of delay in disposal of the above noted departmental proceeding as well as criminal case.

9. Learned counsel for the Petitioner also contended that as // 5 //

a result of the pendency of the above noted two cases, the Petitioner is not getting promotion to the next higher post. Although the DPC was convened to consider promotion to the next higher post, the cases of the juniors to the Petitioner have been considered and recommended for promotion by ignoring the just and fair claim of the Petitioner for promotion to the next higher post. As a result of such illegal and discriminatory conduct on the part of the Opposite Parties, the Petitioner is suffering immensely. He further contended that the inaction in giving promotion to the Petitioner can very well be compared with pre-trial conviction and that there exist no just and fair reason to deprive the Petitioner to get promotion to the next higher post while employees who are junior to the Petitioner have been given promotion in the meantime.

10. Learned counsel for the Petitioner laying emphasis of the fact that no charge sheet has been filed in the criminal case, submitted that making an mere allegation or by simply lodging an F.I.R. against a Government employee would not result in establishing the allegation against the Petitioner. He further contended that to make out a prima facie case against the Petitioner, the inquiry is required to be completed and a charge sheet is needed to be filed by the I.O. In the present case, since no charge sheet has been filed, it cannot be presumed that the Petitioner is guilty of the allegations made against him and, accordingly, he will be deprived of the opportunity to get promotion to the next higher post.

// 6 //

11. Mr. N.K. Praharaj, learned Additional Government Advocate appearing for the State-Opposite Parties, on the other hand, contended that the law in this regard is fairly well settled. Further, referring to one of the most celebrated cases of Hon'ble the Supreme Court, i.e., in Union of India and others -v.- K.V. Jankiraman and Others, reported in (1991) 4 SCC 109, the Hon'ble Supreme Court has laid down the procedure to be followed in a case of present nature. Therefore, the learned Additional Government Advocate submitted that the DPC has followed the sealed cover method as has been provided in the above noted Jankiraman's case. In such view of the matter, learned Additional Government Advocate contended that the Petitioner cannot alleged that any prejudiced caused to him due to delay in giving him promotion by opening the sealed cover. Further, referring to the Circular of the G.A. & P.G. Department dated 17.06.2021, learned Additional Government Advocate also contended that the said Circular of the G.A. & P.G. Department, Government of Odisha lays down the procedure to be followed in a case where the Government employee is facing a disciplinary proceeding. The said guideline also prescribes adherence to the sealed cover proceeding in a case where the Government employee is facing a disciplinary proceeding. Accordingly, learned Additional Government Advocate contended that it is upto the appointing authority to consider the case of the Petitioner and in the event it is found that the promotion of the // 7 //

Petitioner to the next higher post is not against the public interest, in such cases, the authorities may allow ad-hoc promotion to the Petitioner on notional basis and financial benefits shall be paid from the actual date of joining against the promotional post. He also submitted that in a case where ad-hoc promotion given pursuant to the G.A. & P.G. Department Circular dated 17.06.2021, such promotion shall be subject to the terms and conditions mentioned in paragraph- 3 of the above noted Circular.

12. Having heard the learned counsels for the respective parties and upon a careful consideration of the contentions raised by the learned counsels appearing for the respective parties and on examination of the background facts involved in the present writ application, this Court is of the prima facie view that since no charge sheet has been filed in the Vigilance Case even after expiry of six years from the date of registration of the case, it cannot be safely concluded that the Petitioner is prima facie guilty of the alleged offence. Moreover, in the meantime six years have elapsed and it is not known as to when the trial would commence and conclude. So far the disciplinary proceeding is concerned, on perusal of record, it appears that the same is also based on charges which are identical to the allegations made in the criminal case against the Petitioner. Further, taking into consideration the fact that juniors to the Petitioner have been given promotion to the next higher post and that the proceedings against the // 8 //

Petitioner is getting delayed unnecessary and the same are not likely to be completed in the immediate future, this Court is of the considered view that denying promotion to the Petitioner to the next higher post would cause prejudice to the Petitioner and moreover in the event the Petitioner is exonerated in the aforesaid two proceedings, then the Petitioner is likely to suffer irreparable loss on account of denial of promotion to the next higher post.

13. In view of the aforesaid analysis of facts as well as the law, this Court in the interest of justice deems it proper to dispose of the writ petition at the stage of admission by directing the authorities, keeping in view the ratio of the judgments referred hereinabove, to open the sealed cover and grant promotion to the Petitioner to the next higher post on notional basis w.e.f the date his junior was promoted to the post of Additional Chief Engineer, i.e., w.e.f. 22.04.2021. However, it is made clear that such ad-hoc promotion is being given purely on ad-hoc basis to ensure that the Petitioner does not suffer due to lingering disciplinary as well as criminal proceeding and that such ad-hoc promotion will not confer any right for regular promotion. It is made clear that in the event the Petitioner is awarded with major punishment, it shall be open to the authorities to take any appropriate action against the Petitioner including the action of reverting the Petitioner to the post from which he promoted on ad-hoc basic. Further, the promotion of the Petitioner was also subject to other terms and // 9 //

conditions as has been stipulated in G.A. & P.&G. Department Memorandum dated 17.06.2021 under Annexure-4. The Opposite Parties are directed to carry out the aforesaid direction within a period of six weeks from the date of communication of a certified copy of this order by the Petitioner.

14. With the aforesaid observation and direction, this writ petition stands disposed of.

( A.K. Mohapatra) Judge Debasis