State Of Odisha Represented vs Dr.Rajat Mohanty And Others
2023 Latest Caselaw 8465 Ori

              IN THE HIGH COURT OF ORISSA AT CUTTACK
                          W.A. No.561 of 2023

State of Odisha represented            .....                              Appellant
through Commissioner-cum-                                     Mr.M.K.Khuntia, AGA
Secretary to Government
                                       Vs.
Dr.Rajat Mohanty and others            .....                             Respondents
                                                            Mr.A.Tripathy, Advocate
                                                              (for Respondent No.1)

                  CORAM:
                     JUSTICE S.TALAPATRA
                    JUSTICE SAVITRI RATHO

                                              ORDER

03.08.2023 Order No. 1. This matter is taken up through hybrid mode.

07.

2. Heard Mr.M.K.Khuntia, learned Addl. Government Advocate

appearing for the appellant as well as Mr.A.Tripathy, learned counsel

appearing for the respondent No.1-Dr. Rajat Mohanty.

3. This intra court appeal has been filed challenging the judgment

dated 07.12.2022 delivered in W.P. (C) No.26299 of 2022 by the learned

Single Judge. By the said judgment dated 07.12.2022, the learned Single

Judge has observed, inter alia, as under:

".........there exist no doubt with regard to the Petitioner's eligibility to be considered for promotion under DACP scheme and accordingly, his case should have been considered along with other similarly situated persons for promotion to the post of Additional Director, Level-II under DACP scheme. But the only difficulty that could be visualized by this Court is with regard to submission of PARs through on-line mode which is causing problem to the Petitioner and standing as an obstacle on the way

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for consideration of Petitioner's case for promotion."

4. It has been further observed by the learned Single Judge that since

the hard copies of PARs/CCRs are already available with the G.A. &

P.G. department, the same may be called for consideration of the case of

the Petitioner for promotion. It has been held that the promotion of the

Petitioner to the rank of Additional Director-II cannot be delayed on the

ground of non-receipt of CCRs/PARs through on-line system.

Having observed thus, the learned Single Judge held that the

Petitioner has right to be considered for promotion to the higher rank,

although the Petitioner cannot claim the promotion as a matter of right. It

has been directed that the hard copies of CCRs/PARs being already

available with the Government, those shall be considered as

expeditiously as possible, preferably within a period of eight weeks for

determining the petitioner's suitability for promotion to the next grade.

Similarly situated persons, according to the learned Single Judge, has

been granted the benefit on the basis of hard copies of PARs/CCRs.

Those observations and direction have been challenged in this appeal.

5. There is no dispute that the writ petitioner - respondent is within

the zone of consideration and he has right to be considered for promotion

to the next grade but for absence of PARs/CCRs on-line, his case was not

considered.

6. Mr. Tripathy, learned counsel appearing for the writ petitioner-

respondent has submitted that this controversy is squarely covered by the

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judgment of this Court dated 28th March, 2023 passed in W.A. No.731 of

2021 (State of Odisha and others v. Dr.Kamalini Bepari) where this

Court has observed that for not uploading PARs/CCRs on-line, someone

cannot be deprived from consideration for promotion. As the hard copies

were available with the respondent, it had been directed that the selection

committee shall consider the case of the respondent in that case, having

extended relaxation as granted by the Circular dated 30.04.2020. It had

been further declared that the respondent in the event of her selection

shall not be entitled to get any financial benefits till the date of formal

appointment on promotion.

7. Mr. M.K.Khuntia, learned Addl. Government Advocate has made

a serious attempt to distinguish the facts of the said case from the present

one. Mr.Khuntia has contended that PARs/CCRs for the period 2015-

2021 were filed by the writ petitioner - respondent on 09.03.2021, i.e.,

after about seven years from the due date of filing. For example,

PARs/CCRs of 2015 was supposed to be filed in the year 2016. The said

delay in filing the performance reports which are essentially to be

considered by the selection committee for consideration of promotion,

cannot be attributed to the opposite parties. The said aspect is particularly

material on deciding the issue of retrospective benefits. That apart, the

superior authority, who is to accept or review did not get any opportunity

to record his observation in the contemporaneous time. Mr.Khuntia,

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learned Addl. Government Advocate has fairly submitted that the

Reviewing Authority/Accepting Authority has made their comment on

PARs/CCRs after their submission by the respondent -writ petitioner. It

appears that PARs/CCRs were ready for consideration only on

25.03.2022. Mr.Khuntia, learned Addl. Government Advocate has

candidly reported that the selection committee sat on 11.10.2022 for

consideration of the promotion to the next grade. Therefore, it is apparent

that those physical records of the PARs/CCRs were available for

consideration. But, since the writ petitioner - respondent did not upload

PARs/CCRs in the online system, his performance was not assessed for

determining the fitness for promotion to the next grade. His case was

discarded. The conduct of the writ petitioner - respondent cannot be

stated to be proper. The delay in filing the performance report [self-

appraisal part] has serious impact on the process. Sometimes, there may

be some problems in uploading in the online system. Those

circumstances may be leniently considered only when the problem or the

difficulty is brought to the notice of the competent authority without

delay. In this case, the authorities have admitted the fact of accepting the

physical reports after their submission belatedly. When the State has by

the Circular dated 14.01.2016, Annexure-6 to the Memorandum of

Appeal, has clearly adverted that they would not entertain the submission

of the hard copy of PARs/CCRs from 01.04.2016. Non-filing of

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PARs/CCRs in on-line cannot be deprecated. This is an act of dereliction.

The officers/employees have a duty to comply the direction of the

competent authority, otherwise, they may be charged of misconduct.

8. Be that as it may, in view of the law we have discussed in

Dr.Kamalini Bepari (supra), we would direct the appellants to consider

the case of promotion of the writ petitioner - respondent to the post of

Additional Director-II within a period of two months from today. If the

writ petitioner - respondent is found suitable for promotion by the

selection committee, he shall be promoted to the said post from the date

when his juniors were promoted to the said post. But we make it

abundantly clear that till the date of his formal appointment, the writ

petitioner -respondent shall not get any financial benefit. His pay shall be

notionally fixed from the date of his appointment on promotion, but he

Bichi will get the actual financial benefits from the date of his formal

appointment by the appellants.

9. In terms of the above, this appeal stands disposed of.

10. A copy of this order be furnished to Mr.Khuntia, learned Addl.

Government Advocate.

                                                                               (S.Talapatra)
                                                                                   Judge


                                                                              (Savitri Ratho)
Signature Not Verified                                                             Judge
Digitally Signed
Signed by: BICHITRANANDA SAHOO
Designation: Personal Assistant
Reason: Authentication
Location: Orissa High Court, Cuttack
Date: 10-Aug-2023 20:37:14