Prakash Chandra Das & Others vs State Of Odisha And Others
2023 Latest Caselaw 5834 Ori

                  IN THE HIGH COURT OF ORISSA AT CUTTACK

                                 W.P.(C) No.7388 of 2023

                 Prakash Chandra Das & others     ....          Petitioners
                                          Mr. Goutam Mishra, Sr. Advocate

                                           -versus-

                 State of Odisha and others           ....     Opposite Parties
                                           Mr. Budhadev Routray, Sr. Advocate
                                                (For O.P. Nos.15, 24, 25 & 26)
                                                 Mr. K.P. Mishra, Sr. Advocate
                                                       (For O.P. Nos.12 to 14)
                                                    Mr. Tarun Pattnaik, A.S.C.


                                        CORAM:

                               JUSTICE A.K. MOHAPATRA

                                           ORDER

Order No.                                 12.05.2023

                              I.A. Nos.3901, 3908 & 4421 of 2023
    08.     1.      I.A. No.3901 of 2023 has been filed by the State-Opposite

Party No.1 for modification of interim order dated 15.03.2023

passed by this Court in the above noted writ petition.

2. I.A. No.3908 of 2023 has been filed by the Opposite

Parties No.12 to 14 for vacation of interim order dated

15.03.2023 passed in the above noted writ petition.

3. I.A. No.4421 of 2023 has been filed by the Opposite Party // 2 //

No.24 representing the Opposite Parties No.18, 19, 27 and 30

with a prayer for vacation of interim order dated 15.03.2023

passed in I.A. No.3308 of 2023.

4. Since all the above noted interlocutory applications

involve a prayer for modification/vacation of interim order dated

15.03.2023 passed in I.A. No.3308 of 2023, they are heard

together and the same are being disposed of by the following

common order.

5. Heard Mr. Goutam Mishra, learned Senior Counsel

appearing for the Petitioner and Mr. Budhadev Routray, learned

Senior Counsel appearing for the Opposite Parties No.15, 24, 25

& 26 and Mr. K.P. Mishra, learned Senior Counsel appearing for

the Opposite Parties No.12 to 14 and Mr. Tarun Pattnaik, learned

Additional Standing Counsel appearing for the State-Opposite

Parties.

6. The above noted writ petition has been filed by the

Petitioner with a prayer to quash the communication dated

03.03.2023 issued by the Opposite Party No.1 under Annexure-

1, so far it relates to the promotion exercise of Opposite Party

No.4 to 34 on the ground that the same is contrary to Section 4 // 3 //

of the O.R.V. Act and the judgment of the Hon'ble Supreme

Court in the case of Pravakar Mallick v. The State of Orissa,

reported in (2020) 15 SCC 297 and for a further direction to

Opposite Party No.1 to 3 not to promote Opposite Parties No.4

to 34 by resorting to reservations in promotions without

recasting the gradation list under Annexure-2 keeping in view

the judgment of the Hon'ble Supreme Court in Pravakar

Mallick's case (supra) and M. Nagraj v. UOI, reported in 8 SCC

212. The Petitioner has also prayed for a direction to the

Opposite Party No.1 to issue a fresh communication for

promotion to the post of Deputy Conservator of Forests OFC

Group-A (SB) in the Forest, Environment and Climate Change

Department, Government of Odisha without considering the

aspect of reservation in promotion for such post and by

considering the Petitioners seniority over the Opposite Party

Nos.4 to 34.

7. Mr. Budhadev Routray and Mr. K.P. Mishra, learned

Senior Advocates representing the private Opposite Parties at the

outset submitted that the present writ petition is not maintainable

at the instance of the present Petitioners. They further submitted // 4 //

that since the Petitioners do not have the requisite experience for

promotion to the post of Deputy Conservator of Forests (in short

'DCF') as required under the rules, therefore, they are not

eligible for promotion to the post of DCF. Accordingly, it was

submitted that since the Petitioners do not possess the requisite

experience to become eligible for promotion to the post of DCF,

the question of their getting promotion does not arise and they

have no legal right to claim for such promotion. As such, the

present writ petition at the behest of such ineligible candidates is

not maintainable in law.

8. Both the learned Senior Advocates representing the private

Opposite Parties further contended that the State-Opposite

Parties have not contravened the provisions of Section 4 of the

O.R.V. Act as is evident from the counter affidavit filed by the

Opposite Party No.1. Referring to the State counter affidavit, it

was submitted by them that the State-Opposite Parties have

categorically stated that law of reservation is not applicable for

promotion from the post of ACF (Group-A) (JB) (lowest rung

post) to the post of DCF Group-A (SB). In such view of the

mater, both the learned Senior Advocates appearing for the // 5 //

private Opposite Parties contended that the argument of learned

Senior Advocate appearing for the Petitioners is prima facie

fallacious and untenable in the eye of law.

9. In course of their argument, both the learned Senior

Advocates led much emphasis on the ground that the Petitioners

do not have the requisites experience as provided under Rule-5

of the 2015 Rules to come within the zone of consideration for

promotion to the post of DCF. On the contrary, the Private

Opposite Parties have acquired such experience and, as such,

they have the eligibility criteria as provided under Rule-5 of the

2015 Rules. Therefore, the private Opposite Parties are coming

within the zone of consideration. Accordingly, it was argued

that through the present writ petition, the Petitioners are making

an attempt to stall the promotion of private Opposite Parties

although they are eligible to be promoted to the next higher post

of DCF. On such ground, learned Senior Advocates appearing

for the private Opposite Parties submitted that the interim order

dated 15.03.2023 passed in the present case be vacated.

10. Mr. Tarun Pattnaik, learned Additional Standing Counsel

appearing on behalf of the Opposite Party No.1, on the other // 6 //

hand, submitted that large number of posts of DCF are lying

vacant at the moment. He further submitted that there is a dearth

of eligible officers for appointment as DCF. He further

contended that since the private Opposite Parties have acquired

five years of experience in the post of ACF, i.e., OFS (Group-A)

(JB) as on 1st date of January, 2023, which is in conformity with

Rule-5 of 2015 Rules, therefore, they are eligible to be promoted

to the next higher post of DCF. Further, referring to Section 4 of

the O.R.V. Act, learned Additional Standing Counsel submitted

that in view of the provisions contained in Section 4 of the

O.R.V. Act for promotion to the next higher post from the

lowest rung post of the cadre, principle of reservation is not

applicable.

11. In view of the above position, learned Additional Standing

Counsel further submitted that the private Opposite Parties have

been considered on the basis of their eligibility as provided

under the Rules, 2015 and, accordingly, it has been decided to

give them promotion from ACF to the post of DCF. So far the

eligibility of the Petitioners are concerned, learned Additional

Standing Counsel echoed the voice raised by the learned Senior // 7 //

Advocates appearing for the private Opposite Parties and,

accordingly, submitted that the Petitioners have not yet acquired

the eligibility to be considered for promotion to the post of DCF.

Finally, learned Additional Standing Counsel submitted that

since a large number of posts are lying vacant, unless such posts

are allowed to be filled up, the Government would face difficulty

in the normal functioning of the entire department. Therefore, it

was prayed by learned Additional Standing Counsel that the

entire order dated 15.03.2023 be vacated forthwith giving handle

to the Government to go ahead with promotion and appointment

to the post of DCF.

12. Mr. Goutam Mishra, learned Senior Counsel appearing on

behalf of the Petitioners argued vehemently that admittedly the

Petitioners are seniors to the Private Opposite Parties. He further

contended that the Petitioners belong to unreserved category

whereas the private Opposite Parties belong to the reserved

category. With the aid of reservation policy, the Opposite Parties

have been promoted ahead of the Petitioners. Although the

Petitioners were promoted to the post of ACF subsequently, by

applying the catch-up principle they have been kept above the // 8 //

private Opposite Parties in the common gradation list. Mr.

Goutam Mishra further contended that the Petitioners were

initially appointed prior to the private Opposite Parties and,

therefore, all throughout their service career they have been

shown as senior to the private Opposite Parties in the common

gradation list.

13. Learned Senior Counsel appearing for the Petitioners very

fairly submitted that the Opposite Parties No.4 to 11 are senior

to the Petitioners considering their date of entry into the service.

Therefore, he submitted that he has no objection in the event

their cases are considered for promotion to the post of DCF by

the State-Opposite Parties. So far Opposite Parties No.12 to 34

are concerned, he further contended that such Opposite Parties

have been given promotion illegally by ignoring the law laid

down by the Hon'ble Supreme Court in M. Nagraj's case (supra)

and Jarnail Singh v. Lachhmi Narain Gupta, reported in

(2018) 10 SCC 396. Mr. Goutam Mishra, learned Senior

Counsel appearing for the Petitioners also relied upon the

judgment of the Hon'ble Supreme Court in Utter Pradesh Power

Corporation Limited v. Rajesh Kumar, reported in (2012) 7 // 9 //

SCC 1 and submitted that the private Opposite Parties could not

have been given promotion had the State-Opposite Parties

followed the law laid down by the Hon'ble Supreme Court in the

above noted judgments.

14. Additionally, Mr. Mishra, learned Senior Counsel

appearing for the Petitioners also argued that the Opposite

Parties have taken an unfair and undue advantage and,

accordingly, they are trying to steal a march over the Petitioners,

especially the Opposite Parties No.12 to 34, who are admittedly

juniors to the Petitioners at least as per the undisputed gradation

list. In such view of the matter, learned Senior Counsel

appearing for the Petitioners further contended before this Court

that the interim order passed by this Court protecting the interest

of the Petitioners is legally justified, otherwise the matter would

become infructuous as the State-Opposite Parties are going to

give promotion to the Opposite Parties forthwith.

15. Regard being had to the contentions raised by the learned

Senior Counsels appearing for the respective parties and upon a

prima facie examination of the records, this Court after taking

into consideration the submission made by the learned Senior // 10 //

Counsel appearing for the Petitioners as well as the learned

Additional Standing Counsel that the Opposite Party No.4 to 11

are admittedly senior to the Petitioners, this Court deems it

proper and in the interest of justice to modify the interim order

dated 15.03.2023 passed in I.A. No.3308 of 2023 to the extent

that the State-Opposite Parties are permitted to consider the case

of promotion of Opposite Parties No.4 to 11 to the post of DCF

immediately.

16. So far private Opposite Parties No.12 to 34 are concerned,

this Court on a careful analysis of the averments as well as the

contentions raised before this Court, is of the considered view

that the issue of seniority between the Petitioners vis-à-vis the

private Opposite Parties No.12 to 34 needs to be further

examined and the matter requires an elaborate hearing. Further,

this Court is of the prima facie view that in the event the law of

reservation is not applicable for promotion to the post of DCF,

then the private Opposite Parties No.12 to 34, who have been

promoted as A.C.F. prior to the Petitioners by applying the law

of reservation would definitely steal a march over the Petitioners

even though they are juniors to the Petitioners and that too // 11 //

without the reservation policy being applicable for promotion to

the post of DCF. Therefore, this Court is also of the view that

the promotion to the post of DCF, when the law of reservation is

not applicable, has to take place on a fair field and by treating

the Petitioners as well as the Opposite Party No.12 to 34 at par

without their being any undue advantage accruing in favour of

any of the officers on a level playing field. Any other approach

would be hit by the underlying principles of Article 14 and 16 of

the Constitution of India.

17. In such view of the matter, this Court deems it proper to

further examine the issues raised by the learned counsel for the

Petitioners, particularly keeping in view the seniority of the

Petitioners as well as the private Opposite Party No.12 to 34.

Hence, this Court is not inclined to modify the interim order

dated 15.03.2023 passed in I.A. No.3308 of 2023, so far

Opposite Parties No.12 to 34 are concerned. Accordingly, the

interim order dated 15.03.2023 passed in I.A. No.3308 of 2023

in respect of Opposite Parties No.12 to 34 shall continue till the

next date.

18. List W.P.(C) No.7388 of 2023 on 27th June, 2023 for final // 12 //

hearing.

19. Parties are directed to complete their pleadings and

exchange the same well before the next date of hearing.

20. Accordingly, the above noted I.As. are disposed of.

( A.K. Mohapatra ) Judge

Debasis

DEBASIS AECH Digitally signed by DEBASIS AECH Date: 2023.05.12 19:30:20 +05'30'