Bana Bihari Mallick & Others vs State Of Odisha & Others
2023 Latest Caselaw 5832 Ori

      IN THE HIGH COURT OF ORISSA AT CUTTACK

                   W.P.(C) No.21360 of 2021


       An application under Articles 226 and 227 of the
Constitution of India.

      Bana Bihari Mallick & others              .         Petitioners
                                             Mr. P.K. Panda, Advocate

                                  -versus-

      State of Odisha & others                 .        Opp. Parties
                                              Mr. I. Mohanty, A.S.C.


                            CORAM:

             JUSTICE A.K. MOHAPATRA

_____________________________________________________ Date of hearing : 03.05.2023 | Date of Judgment : 12.05.2023 ______________________________________________________

A.K. Mohapatra, J. :

01. Heard Mr. P.K. Panda, learned counsel appearing for the

petitioners as well as Mr. I. Mohanty, learned Addl. Standing

Counsel for the State-Opposite Parties. Perused the writ petition

as well as the documents annexed thereto.

3. The Petitioners have knocked the doors of the High Court

being aggrieved by order No.646 dated 13.04.2021 which was

communicated vide a radio message by the Opposite Party No.5

i.e. Superintendent of Police (Signal Odisha Government) // 2 //

indicating therein that the Petitioners are being deployed in

different Wireless Training (W.T.) Stations/ Workshop attached

to the Crimes and Criminal Tracking Networking System

(CCTNS) Project in different districts of the State of Odisha.

4. The Petitioners in the present writ application were

rendering their services under Opposite Party No.5 as Constable

(Communication). While working as such on being duly selected

they were promoted to the rank of ASI (Communication) in

Police Signals Establishment by the CSB held on 18.03.2001 and

pursuant to the resolution which was communicated by the

Opposite Party No.3. It is pertinent to mention here that the

service condition of the Petitioners are governed by Odisha Police

Signals service (Method of Recruitment and Conditions of

Service) Order, 2021. Under the aforesaid order 2021, the

Petitioners are to render service in three different categories under

Opposite Party No.5 which has been defined under Rule 3(c) of

the aforesaid order. However, the Opposite Party No.5 violating

the said order has issued the impugned order dated 13.04.2021

under Annexure-2 thereby deploying the petitioners in different

Wireless Training Stations/ Workshop attached to CCTNS Project

in different districts of Odisha. In such view of the matter, learned

counsel for the petitioner submitted that the impugned order // 3 //

Annexure-2 is illegal, arbitrary and unsustainable in the eye of

law. It has also been stated that the impugned order is also not in

consonance with the order under Annexure-3 i.e. an order passed

by the CSB promoting the Petitioners to the rank of ASI

(Communication) in the signals establishment of Odisha Police.

5. The Opposite Parties have filed a counter affidavit

wherein they have stated that the Petitioners having accepted the

promotional order and after joining in their respective posts

without any kind of objection are now estopped to challenge the

very same promotional order under which they have availed the

benefit of promotion. Furthermore, it has also been contended on

behalf of the Opposite Parties that the promotional order cannot

be bifurcated i.e. while implementing a part the order, the other

part of the order which is not suitable to the Petitioners be

obliterated and deleted altogether. In the said counter affidavit it

has also been stated that the post of ASI (Communication) in

various CCTNS Project are not under different establishment and

as such placing their services in CCTNS project, the Opposite

Parties have not imposed any additional burden upon the

Petitioners. On completion of VHF and computer familiarization

course of training, and on being found suitable for promotion to

the rank of ASI (Communication) as per the prevailing rules, the // 4 //

Petitioners have been given promotion and accordingly they were

posted in different CCTNS Projects under different police

districts of the State of Odisha. Further, it has been stated that in

course of such training the Petitioners have been imparted

training exclusively with regard to the CCTNS work.

6. In the counter affidavit, it has also been stated that the

Petitioners are being paid 15 % special incentives as a technical

incentives for specialized duty they are required to perform.

Learned counsel for the Opposite Parties also contended that the

CCTNS Projects has been started in the State of Odisha more than

a decade ago. As a part of National E-Governance Plan of

Government of India with an aim to create a Comprehensive

Integrated System for enhancing efficiency and effectiveness of

policing through adoption of the principle of E-Governance and

for creation of Nationwide Network Infrastructure for evolution

of IT enabled State of the Art Tracking System around

Investigation of Crime and Detection of the Criminals. He further

contended that under the CCTNS Project, 784 Locations and

Police Stations/ Police Control Rooms are being provided with

necessary computer hardware and Network Connectivity by the

Police System Integrator. Since, it is a part of a nationwide plan

to integrate the work of Police Investigation and detection of // 5 //

Criminals with a view to enhance security and improve service to

the citizens, the Odisha Police has adopted the Project which is

only a part of E-Governance Plan of Government of India and the

same is being implemented by the Odisha Police.

7. Learned Addl. Standing Counsel further contended that

the State Police Headquarter vide office order dated 30.01.2014

had earlier selected and attached 100 ASIs (Communication) to

CCTNS Project with effect from the year 2014. Additionally, he

also submitted that due to want of suitable replacement these

ASIs could not be transferred from those places. In the event, they

are transferred without making any suitable arrangement to

substitute another officer in their place, then the entire CCTNS

platform would get affected.

8. Mr. P.K. Panda, learned counsel appearing for the

Petitioner, on the other hand submitted that promotion in service

is a matter of course and every employee has a right to be

considered for such promotion. However, while giving such

promotion the employer cannot impose any such condition which

would affect the interest of the employee adversely and moreover,

when such condition imposed is not authorized under the relevant

rules. He further contended that the Petitioners accepted the

promotional order under compulsion as they had no other // 6 //

alternative than to accept the promotion. It was also contended by

Mr. Panda that with regard to the condition imposed under the

order promoting the Petitioner, the same can always be

questioned on the ground that imposition of such conditions are

contrary to the orders/ rules/ guidelines.

9. Learned counsel for the Petitioner further contended that

the Petitioners are all matriculates and most of them are lady

police officers, therefore, Attaching them to CCTNS Project

under different district police headquarters is as good as putting

them under the control of the Superintendent of Police of the

concerned district and in the process making the petitioners

answerable to the Superintendents of Police of such concerned

districts. Therefore, it was submitted that the Petitioners are now

answerable to two different authorities which will not only put

them into inconvenience, moreover, the same will affect the

service career of the petitioners.

10. He further raised the ground of lack of technical expertise

to attend multiple police stations at a time. Therefore, it was

argued by learned counsel for the petitioners that by giving

conditional promotion to the petitioners in their parent

establishments has not only caused prejudice to the petitioner, the

same is also contrary to the rules regulating the service condition // 7 //

of the Petitioners. In reply to the training given to the Petitioner

both in practical and theory in VHF and computer familiarization

course as stated by the learned Addl. Standing Counsel appearing

on behalf of the State-Opposite Parties, learned counsel for the

petitioner submitted that it would be evident from the syllabus

under Annexure-4 to the rejoinder affidavit that the Petitioners are

required to appear and qualify in a higher examination like

Computer Engineering Theory which the Petitioners might not be

able to clear with their basic knowledge in computer application.

11. Mr. Panda, learned counsel for the Petitioner, further

contended that the Petitioners were given training for five days

only which is in the nature of a crash course and to acquire basic

knowledge of CCTNS Project, therefore, such training is not

adequate to handle the CCTNS Projects in the State of Odisha

effectively. The sum and substance of the contentions raised by

learned counsel for the Petitioner is that to handle the CCTNS

work, the Petitioners are required to have a set of specific skills as

per the rules and the syllabus prescribed for the purpose.

However, hastily, the Petitioners have been given promotion and

posted in CCTNS Project for which they are not properly

equipped and they have not been properly trained for the said

purpose. Therefore, learned counsel for the Petitioner expressed // 8 //

his apprehension that eventually the petitioners may not be able to

handle the nature of work that is required to be performed under

the CCTNS Project and accordingly the same is likely to affect

their service career adversely.

12. With regard to payment of 15 per cent special incentive

as technical incentive for performance of the specialized job as

submitted by the learned Addl. Standing Counsel for the Opposite

Parties, learned counsel for the Petitioner submitted that the same

is not correct and no such special incentive is being paid to the

petitioners for discharging the duties under the CCTNS Project.

13. The current situation, so far the Petitioners are concerned,

according to the learned counsel for the petitioner, is like without

giving training to the Petitioners how to swim, the Opposite

Parties have pushed the Petitioners into a river. Thereby the

Opposite Parties have put the entire service career of the

Petitioner in danger. Therefore, learned counsel for the Petitioner

submitted that the conditional promotion order is bad in law and

contrary to the rules and, moreover, the same will adversely affect

the service career of the Petitioners including their future

promotional prospects. In the said context, it was also argued that

the nature of work under the CCTNS Project as well as the design

of the software which is a role based software is based on the role // 9 //

performed by SHO (Station House Officer) as such the staffs/

officers of the Signal Establishment having no specific role in the

Investigation of Crime and Detection of Criminals are not the

right kind of persons to be manned in the CCTNS Project which

is a computer technology based project requiring a higher degree

of skill. He further submitted that the posting of the Petitioner

under the CCTNS Project would not only put the service career of

the Petitioners in jeopardy, the same is also likely to affect the

entire functioning of the CCTNS network in the State of Odisha

which is definitely not in the larger public interest.

14. Additionally, it was also contended by learned counsel for

the Petitioner that it is not correct that vide order dated

30.01.2014 all ASIs (Communication) were deployed to perform

CCTNS work under various police districts. The order dated

30.01.2014 was challenged by some ASIs (Communication) by

filing O.A. No.632 of 2019 before the learned Odisha

Administrative Tribunal. Thereafter, the State Government has

withdrawn all the ASIs due to availability of sufficient trained

Police personnel to maintain the CCTNS Project. He further

submitted that all the ASIs referred to in order dated 30.01.2014

are all direct recruits, therefore, they cannot be equated with the

Petitioners who are promotees and were initially appointed as // 10 //

Constables having matriculation as their qualification. He also

submitted that in the meantime 57 constables (communication)

have been promoted to the post of ASIs vide order No.959 dated

30.06.2022, but none of them have been attached to the CCTNS

Project unlike the Petitioners.

15. Having heard the learned counsels appearing for the

Parties and upon a careful consideration of the pleadings filed

before this Court by the counsels representing both sides, this

Court is of the considered view that upon a careful examination of

the entire background facts, this Court observed that there exists

certain practical difficulties which are required to be resolved by

the Odisha Police. This is more so because selection of right

candidates would have a direct bearing on the effective

functioning of CCTNS network in the State of Odisha. In the

event, trained and qualified persons are not deployed in the

CCTNS project there is every possibility that the E-Governance

plan of Government of India so far the Police Administration is

concerned is not likely to achieve its desired objective and

furthermore, in such eventuality the huge amount of public

money spent in such project is likely to be wasted. Therefore, this

Court feels that the highest authority in the Police Administration

in the State of Odisha are required to look into the matter with all // 11 //

seriousness and try to resolve the impending issues and the

problems/difficulties that has been raised by the petitioners. In

such view of the matter, this Court deems it proper to dispose of

the writ application by directing the petitioners to file a petition

before the Director General of Police-Opposite Party No.2

narrating the issues and difficulties faced by them within a period

of three weeks from today. In the event, such a petition is filed

before the Opposite Party No.2, the Opposite Party No.2 in

consultation with other opposite parties shall do well to consider

the grievance of the Petitioners keeping in view the larger public

interest and the objective of the CCTNS Project and shall take a

decision in accordance with law within a period of two months

from the date of filing of the Petition by the Petitioners.

Moreover, it is also directed that the Opposite Parties shall also

do well to ensure that the petitioners get 15 per cent special

incentive as technical incentive as has been promised to them and

mentioned in para-4(o) of the Counter affidavit.

16. The writ petition stands disposed of with the observations

made hereinabove, however, there shall be no order as to cost.

(A.K. Mohapatra) Judge Orissa High Court, Cuttack The 12th of May, 2023/ Anil.

                          Digitally signed by
ANIL KUMAR ANIL KUMAR SAHOO
SAHOO      Date: 2023.05.12
           18:12:44 +05'30'