Orissa High Court
Madan Mohan Das vs State Of Orissa And Others ... Opposite ... on 6 December, 2023
Author: G. Satapathy
Bench: G. Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) NO.12210 of 2012
(In the matter of application under Articles 226 and
227 of the Constitution of India).
Madan Mohan Das ... Petitioner
-versus-
State of Orissa and others ... Opposite Parties
For Petitioner : Mr. N.C. Mohanty,
Advocate
For Opposite Parties : Mr. M.K. Khuntia, AGA
CORAM:
JUSTICE G. SATAPATHY
DATE OF HEARING :01.11.2023
DATE OF JUDGMENT :06.12.2023
G. Satapathy, J.
1. The petitioner herein invokes the
extraordinary writ jurisdiction of this Court under
Articles-226 and 227 of the Constitution of India
praying to quash the order passed by OPNo.1 on
12.04.2012 under Annexure-8 by directing the OPs to
approve his promotion to the post of UD Clerk (UDC)
w.e.f. the date he was promoted by the Governing
Body (GB) of the College.
2. The basic facts under which the petitioner
has filed this writ is that on 01.10.1975, the
petitioner was appointed as LD Clerk (LDC) in UN
College, Soro (hereinafter referred to as "the
College") after due selection process and his service
was approved by OPNo.2 on 29.01.1987 vide
Annexure-1 and subsequently, on the request of
OPNo.2, the State Government sanctioned for
creation of two posts of Peon, one post of Daftry and
one post of Book Binder-cum-Daftry in the College,
but since the Roll strength of the College and the
yardstick of the State Government justified creation
of 3rd post of UDC, OPNo.3 (GB) of the College
promoted the petitioner to UDC on 24.05.1998 vide
Annexure-4 and the Principal of the College,
accordingly, submitted necessary proposal for
approval of promotion of the petitioner to the 3rd post
of UDC. On the aforesaid proposal, OPNo.2 sought for
certain documents such as Resolution of GB, Book of
appointment, joining report of the petitioner as UDC
and approval order of the post of LDC, but OPNo.3
did not take any decision on the aforesaid proposal,
despite the petitioner having fulfilled all the eligibility
conditions including passing of accounts examination
and, thereby, the petitioner was constrained to
approach this Court in W.P.(C) No.6884 of 2002
which was disposed of on 11.02.2004 by this Court
directing to consider the case of the petitioner in
accordance with law and OPNo.1 vide order dated
17.11.2006 rejected the claim of the petitioner under
Annexure-7 for want of sanction of 3rd post of UDC in
the College. The petitioner, thereafter, challenged
Annexure-7 in W.P.(C) No.889 of 2007 by claiming
promotion to the 3rd post of UDC w.e.f. 24.05.1998,
but this Court while not expressing any opinion on
merits disposes of the said writ by again directing
OPNo.1 to consider and dispose of the
recommendation of OPNo.2 in terms of Annexure-2,
but on 12.04.2012, OPNo.1 rejected the claim of the
petitioner on the ground that the petitioner's
promotion from LDC to UDC is to be guided by Orissa
Non-Government Aided Colleges Ministerial Service
(Method of Recruitment and Condition of Services)
Rules, 1999 (in short "the Rules") which according to
OP No.1 clearly lays down that the post of UDC is
required to be filled up from the common cadre of
Junior Clerks, but no gradation list for LDC (Junior
Clerk) has yet been finalized, but according to the
petitioner, OPNo.2 had already finalized the gradation
list of Junior Clerks in the Ministerial Cadre of Non-
Government Aided College located in Balasore District
as on 31.12.2004 by an Office Order No.40298 dated
18.09.2007 under Annexure-9 and the Junior Clerk
Bhagirathi Biswal whose name finds place at Serial
No.15 of such gradation list which is much below the
name of petitioner at Serial No.4, has already been
promoted to the post of UDC vide Order No.7569
dated 02.03.2010 under Annexure-10. It is also
stated by the petitioner that OPNo.2 vide Office Order
No.14858 dated 05.04.2012 has already published
the provisional gradation list of Head Clerks in
Balasore District vide Annexure-11 wherein persons
who have joined much after the petitioner as Junior
Clerk have got due promotion. On the aforesaid facts,
claiming justification for promotion in accordance with
the yardstick prescribed by the Government, the
petitioner by way of this writ has claimed relief
indicated supra by contending violation of Article-14
of the Constitution.
In response to the notice of the writ, none
of the OPs has filed counter affidavit, but Mr. M.K.
Khuntia, learned AGA has addressed argument for
OPNos.1 and 2 at the time of final hearing of the writ,
whereas no one has appeared for the GB of the
College. Heard Mr. N.C. Mohanty, learned counsel for
the petitioner and Mr. M.K. Khuntia, learned AGA in
the matter.
3. In addressing the rival arguments, looking
the case of the petitioner on a different angle, it
indisputably appears that the petitioner was
appointed as LDC and his post was approved, but
subsequently, the GB promoted him to the 3rd post of
UDC, which was admittedly not approved or
sanctioned then, and thereafter, the petitioner fought
serious legal battle to regularize his promotion and
ultimately, his claim was not favourably considered
on one ground or other. At last, OPNo.1 rejected the
claim of the petitioner for promotion to the post of
UDC for want of finalization of common cadre list and
for requirement of following the Rules, but at the
same time, OPNo.1 has, however, discriminated the
petitioner by giving provisional promotion to the
Juniors of the petitioner which was never disputed by
the OPs, rather the learned AGA appearing for the OP
Nos. 1 & 2 contends that such promotion of Juniors
was subject to result of FAO No.76 of 2008 pending
before this Court then. It is admittedly found that the
said FAO had already been disposed of on
23.07.2012, but Mr. Ramesh Chandra Patra, whose
provisional promotion was subject to the result of
FAO, is admittedly a Junior to the petitioner and his
promotion has not been interfered with.
4. The averments of the petitioner in the writ
with regard to promotion of one Bhagirathi Biswal
whose name finds place at Serial No.15 of the
provisional gradation list under Annexure-9 to the
post of UDC along with others vide Annexure-10
could not be validly disputed by the OPs, but the said
Bhagirathi Biswal appears to be Junior to the
petitioner, since the petitioner was placed at Serial
No.4 in the provisional gradation list (Annexure-9). In
the circumstance, especially when the Juniors to the
petitioner have already been promoted to the next
higher grade ignoring the case of the petitioner
without any adverse remark on the performance of
the petitioner, the concept of model employer
automatically comes into mind of the Court inasmuch
as one or some Junior(s) to the petitioner has/have
already been promoted ignoring the case of the
petitioner. It is, of course, true that such promotion
was extended to them provisionally, but what was the
fault of the petitioner for promoting him to the next
higher grade on the same principle of provisional
promotion. The authority has, of course, taken resort
to flimsy ground to deprive promotion to the
petitioner for want of finalization of common cadre
list, which if was not finalized then, it should have
been finalized shortly thereafter to address the issue,
but non-finalization of such list for years together
would speak about the incompetency of the authority
in volume inasmuch as any employee having
rendered 30 years of unblemished service to the
institution must have a legitimate expectation to the
incentive/increment/promotion, but depriving a
deserving employee from such legitimate benefit on
some pretext or other is not the duty of a model
employer, who is expected to conduct itself in a such
a manner that no employee of it would feel looked
down or discriminated for nepotism/sycophancy.
5. Quite understandably, OPNos.1 and 2 are
the State or its functionary and they are like a model
employer who is under obligation to conduct with
high probity and in particular has a duty to act in a
manner so that the employee should not feel
neglected. Further, a model employer ought not
exploit its employee or take advantage of their
helplessness or misery. With aforesaid observation,
this Court with a fond of hope trusts that the OPs
would not take any step in utter disregard to frustrate
the claims/legitimate expectation of an employee and
create a situation where hopes end in despair.
6. In this case, the facts as exposited
disclosing promotion of persons immediate Junior to
the petitioner, which is brought to the notice of the
Court by way of an additional affidavit of the
petitioner, could not be disputed by the OPs who are
found to have not filed their counter and, thereby,
paving the way in the circumstance for invoking
doctrine of non-traverse and in the peculiar facts and
circumstance of the case, this Court is of the
considered view that the petitioner is entitled to
promotion just before his immediate Juniors who
have already been promoted and, therefore,
consequential benefits arising out of such promotion
would accordingly be extended notionally to the
petitioner while regularizing his promotion in service.
7. In the result, the writ petition stands
allowed on contest to the extent indicated above, but
in the circumstance, there is no order as to costs.
(G. Satapathy)
Judge
Orissa High Court, Cuttack,
Dated the 6th of December, 2023/Subhasmita
Location: High Court of Orissa
Date: 07-Dec-2023 10:50:28
