Geeti Ranjan Mohapatra vs State Of Odisha And Others
2023 Latest Caselaw 5833 Ori

                HIGH COURT OF ORISSA: CUTTACK

                         W.P.(C) No.31501 of 2021

    In the matter of an application under Articles 226 and 227 of the
    Constitution of India.


                                    -----------

    Geeti Ranjan Mohapatra                   ...            Petitioner

                                     - Versus -

    State of Odisha and Others               ...            Opposite parties

        For Petitioner                       ...      M/s. A.K. Acharya, S. Mishra
                                                    & A. Acharya

        For Opposite Parties                 ...      Mr. Tarun Pattnaik,
                                                    Additional Standing Counsel


                                   --------------

    PRESENT:

THE HONOURABLE SHRI JUSTICE A.K. MOHAPATRA

Date of hearing : 08.05.2023 Date of judgment : 12.05.2023

A.K. Mohapatra, J. I have heard the learned counsel appearing for the

Petitioner as well as learned Additional Standing Counsel

appearing for the State-Opposite Parties. Perused the pleadings of // 2 //

the respective parties as well as the documents annexed to the

respective pleadings.

2. This 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 rank of Deputy Superintendent of Police pending

disposal of Bolangir District Disciplinary Proceeding No.15 of

2017 w.e.f. the date of his batchmates and immediate juniors

have been given promotion in terms of the G.A. & P.G.

Department Office Memorandum dated 17th June, 2021 under

Annexure-10 to the writ petition.

3. Mr. A.K. Acharya, learned counsel appearing for the

Petitioner submitted that while the Petitioner was serving as

Inspector of Police in Puintala Police Station in the district of

Bolangir, vide compliant of the Additional Superintendent of

Police, Bolangir vide letter No.4850/DCRB dated 27.05.2017

under Anneuxre-1, a proceeding was registered as Bolangir

District Disciplinary Proceeding No.15 of 2017. It is further

submitted by Mr. Aharaya that although the Petitioner is

cooperating with the Departmental Authority, however, the same // 3 //

has not been concluded as of now and for such delay in

concluding the Disciplinary Proceeding, the Petitioner cannot be

blamed.

4. Learned counsel for the Petitioner further contended that

during pendency of the aforesaid Disciplinary Proceeding, a DPC

meeting was convened to consider the promotion of the

Inspectors to the post of Deputy Superintendent of Police.

Although the Petitioner was eligible for such promotion along

with his batchmates, his case was not considered on the ground

that the required numbers of APRs was not available for

consideration by the DPC. He further contended that the said

DPC meeting which was held on 28.01.2021, the batchmates of

the Petitioner and immediately juniors of the Petitioner have been

given promotion ignoring the case of the present Petitioner.

5. Thereafter, the case of the Petitioner was considered in

review DPC after obtaining required number of APRs of the

Petitioner. In the review DPC which took place on 22.07.2021,

the case of the Petitioner was considered and his fate has been

kept in a sealed cover in view of the G.A. Department // 4 //

Notification No.29904/Gen. dated 24.07.1992, the Petitioner has

approached this Court by filing the present writ petition for a

direction to open the sealed cover and give promotion to the

Petitioner on the ground that the Office Memorandum of the G.A.

& P.G. Department under Annexure-10 provides from the date of

DPC, if the Disciplinary Proceeding is not concluded within a

period of two years, then the case of the Petitioner be considered

for ad hoc promotion subject to certain terms and conditions

mentioned therein.

6. Referring to the Office Memorandum dated 17th June, 2021

under Annexure-10, learned counsel for the Petitioner submitted

that the Petitioner is entitled to get the benefit under

Clause-2(ii) of the aforesaid Memorandum by taking into

consideration that the first DPC for the year 2020 was convened

on 28.01.2021. He further contended that though the case of the

Petitioner was considered in the review DPC, the Petitioner

cannot be held responsible for such deferment as a duty is cast

upon the departmental authorities to maintain APRs and forward // 5 //

the same to the DPC for consideration of promotion of the

Government employees.

7. He further submitted that by taking into consideration the

first DPC which was convened on 28.01.2021, two years have

been elapsed in the meantime and the Disciplinary Proceeding

has not come to an end. In the meantime, the batchmates and

immediate juniors have already been given promotion to the next

higher rank, i.e., DSP. Accordingly, learned counsel for the

Petitioner submitted that the Opposite Parties be directed to open

the sealed cover and give promotion to the Petitioner within the

stipulated period of time.

8. Learned Additional Standing Counsel appearing for the

State-Opposite Parties, referring to the counter affidavit,

submitted that while Petitioner was working as IIC in the

Bolangir District, a disciplinary proceeding was initiated against

him. Since the Disciplinary Proceeding which was initiated

against the Petitioner is pending, the Departmental Authorities

shall consider the case of the Petitioner by following the G.A.

Department Notification No.29904/Gen. dated 24.07.1992 in the // 6 //

review Departmental Promotion Committee meeting for the year

2020 for promotion from Inspector to the rank of DSP which was

held on 22.07.2021. He further contended that due to pendency of

such Disciplinary Proceeding against the Petitioner, the case of

the Petitioner was although considered for promotion in the

review DPC meeting held on 22.07.2021, the fate of the

Petitioner has been kept in a sealed cover. Moreover, the said

sealed cover can only be opened after disposal of the Disciplinary

Proceeding or completion of two years from the date of review

DPC recommendation, which was held on 22.07.2021.

9. Learned Additional Standing Counsel appearing for the

State-Opposite Parties referring to the counter affidavit further

submitted before this Court that in view of the Office

Memorandum of the G.A. & P.G. Department under

Annexure-10, the Appointing Authority is required to consider

the case of the Petitioner for ad hoc promotion keeping in view

the public interest. He further submitted that it is only after expiry

of two years of DPC recommendation, the case of the Petitioner

can be considered for ad hoc promotion in the event the // 7 //

Disciplinary Proceeding is not concluded within the aforesaid

time.

10. Further, while considering such ad hoc promotion, the

authorities are also required to consider the suitability of the

employee concerned on the basis of his totality of his

service/record of his service without taking into account

Disciplinary Proceeding pending against him. He further

contended that it is only after complying with aforesaid

requirement, promotion can be granted to a Government

employee, who is facing a Disciplinary Proceeding. Learned

Additional Standing Counsel emphatically submitted that the two

years period as prescribed in Office Memorandum under

Annexure-10 has not come to an end, therefore, the case of the

Petitioner is not yet matured for such ad hoc promotion.

11. A rejoinder affidavit has been filed on behalf of the

Petitioner. On perusal of the rejoinder affidavit, it is seen that the

Petitioner has taken a ground that availability of required number

of APRs and sending the same to the DPC for consideration is not

the responsibility of the Petitioner. The District Police // 8 //

Administration or the higher authorities of the Police Department

are vested with such responsibility and it is their duty and

responsibility to see that such PARs are send in time to the DPC

for consideration of the cases of the promotion of the

Government employees in time and as per the rules.

12. In such view of the matter, learned counsel for the

Petitioner submitted that non-availability of APRs/CCRs/PARs is

not a ground not to consider the case of the Petitioner for

promotion in the regular DPC which was held on 28.01.2021.

Although the case of the Petitioner was considered in the review

DPC meeting held on 22.07.2021, the same should have been

considered on 28.01.2021 and taking into consideration the date

of the DPC meeting, i.e., on 28.01.2021, two years have already

expired in the meantime as provided in Office Memorandum

under Annexure-10. Accordingly, sealed cover should have been

opened and the Petitioner should have been given ad hoc

promotion subject to other terms and conditions under

Annexure-10.

// 9 //

13. Having heard the learned counsel for the respective parties

and upon a careful consideration of the pleadings of the

respective parties as well as their respective contentions and upon

a close scrutiny of the materials placed before this Court, this

Court is of the considered view that to succeed in the writ

petition, the Petitioner has to satisfy that he fulfills all the

eligibility criteria that has been prescribed in the Office

Memorandum dated 17.06.2021 under Annexure-10. On close

scrutiny of the materials placed on record, this Court finds that

initially the Petitioner's name was sent to DPC along with other

eligible candidates which was convened in respect of the year

2020.

14. It is also apt to mention here that although the DPC meeting

held on 28.01.2021 which had recommended the batchmates and

immediate juniors of the Petitioner for promotion to the post of

DSP, the case of the Petitioner could not be considered due to

lack of adequate number of PARs which fact is evident from the

minutes of such DPC meeting. Such non-availability of the PARs

cannot be a ground not to consider the case of the Petitioner for // 10 //

promotion which is a right vested by law upon the Petitioner.

This Court in several judgments referring to the judgments of the

Hon'ble Apex Court has already held that a Government

employee cannot be denied promotion merely on the ground that

adequate numbers of PARs are not made available to the DPC or

the APRs are not transferred by the authorities.

15. In such view of the matter, this Court has no hesitation to

come to a conclusion that although the case of the Petitioner was

considered in the review DPC meeting, which was held

subsequently, however, the same has to be counted from the date

of original DPC that was convened and the recommendations of

the batchmates and immediate juniors of the Petitioners were

made for promotion to next higher rank. Accordingly, if the

limitation prescribed in G.A. & P.G. Office Memorandum dated

17th June, 2021 under Annexure-10 of two years is to be

calculated w.e.f. the date of the DPC meeting for the year 2020

held on 28.01.2021, it is crystal clear that the two years' time

frame as provided under Clause-2 has already been expired in the

meantime. Therefore the case of the Petitioner for ad hoc // 11 //

promotion to the post of DSP could very well have been

considered by the authorities in the light of the Office

Memorandum dated 17th June, 2021 under Annexure-10 to the

writ petition.

16. Accordingly, in view of the aforesaid analysis of facts as

well as the law, this Court has no hesitation in directing the

Opposite Party No.2 to open the sealed cover in respect of the

present Petitioner within a period of four weeks from the date of

production of certified copy of this judgment. Further, it is made

clear that such ad hoc promotion of the Petitioner shall be subject

to other terms and conditions as has been provided in the Office

Memorandum dated 17th June, 2021 under Annexure-10 to the

writ petition.

17. With the aforesaid observations and directions, this writ

petition stands disposed of.

(A.K. Mohapatra) Judge

Orissa High Court, Cuttack The 12th May, 2023/D. Aech, P.A.

DEBASIS AECH Digitally signed by DEBASIS AECH Date: 2023.05.12 19:31:12 +05'30'