Dr. Nirmal Kumar Dixit vs State Of Odisha & Others
2023 Latest Caselaw 13652 Ori

          IN THE HIGH COURT OF ORISSA AT CUTTACK

                   W.P.(C) (OAC) No.1075 of 2019


        Dr. Nirmal Kumar Dixit               ....                     Petitioner
                                                        Mr. S.K. Das, Advocate


                               -versus-
        State of Odisha & Others
                                  ....                        Opposite Parties
                                                      Mr. H.K. Panigrahi, ASC
                               CORAM:
               JUSTICE BIRAJA PRASANNA SATAPATHY

                                         ORDER

Order No.                              06.11.2023
      07. 1.     This    matter      is taken up           through       Hybrid
          Arrangement (Virtual/Physical) Mode.

2. Heard learned counsel appearing for the Parties.

3. Petitioner has filed the present Writ Petition inter alia with the following order:-

" Under the above circumstances, it is therefore humbly prayed that the Hon'ble Tribunal be graciously pleased to direct the Respondents to restore the promotion of the applicant to the class-I senior branch on and from 14.01.2011 as that has been given to this immediate junior Dr. B.K. Das and other juniors and to grant him all consequential promotions to different higher grades i.e. junior administrative Level-I and selection grade-I from the date it has been allowed to said Dr. Barish Kumar Das with all consequential service and financial benefit".

4. It is contended that the DPC while taking up of the case of promotion of Class-1 Junior Medical Officers to the rank of Class-1 Senior in OMHS cadre held on 04.10.2010, the case of the Petitioner could not be considered due to non-availability of required CCR/PAR for the last three years. But the case of his junior namely // 2 //

Dr. Barish Kumar Das was considered and he was given the benefit of promotion to the rank of Class-I senior vide Health & Family Welfare Department Notification dtd.14.02.2011.

4.1. Subsequently after availability of the required CCR, the case of the Petitioner was considered in the DPC held on 25.04.2014 and he was promoted to the rank of Class-1 Senior vide Health and Family Welfare Department Notification dtd.05.07.2014.

4.2. Learned counsel for the Petitioner contended that since basing on the DPC held on 04.10.2010, his junior got the benefit of promotion, the Petitioner who was otherwise eligible to get similar benefit, but his case was not considered due to non-availability of CCR.

4.3. It is contended that Petitioner has no fault with regard to non-availability of CCR and it is the duty of employer to provide the same. Since for the laches on the part of the Department, Petitioner could not get the benefit of promotion when his junior got similar benefit vide Notification dtd.14.02.2011, Petitioner is eligible to get similar benefit from the date his junior namely Dr. Barish Kumar Das got similar benefit.

4.4. In support of his submission, Mr. Das, learned counsel for the Petitioner relied on the decision of the Hon'ble Apex Court in the case of the Sh. V. Kashyap and Another vs. Indian Airlines and Others reported

// 3 //

in AIR 1994 SC-2128. Hon'ble Apex Court in Para-4, 5 and 6 of the said order has held as follows:-

"4. The three APRs as required by the guidelines could not be considered in the case of the appellants for a cogent and adequate reason. The same was that the Managing Director of respondent No. 1 who was to write the APRs for the years in question, namely, 1988-89 and 1989-90, did not do so as the then incumbent (one Shri R. Prasad) had resigned in February, 1990; and despite efforts being made by respondent No. 1 to get the concerned APRs written by him after resignation the same did not bear fruit as he did not agree to do so. It is for this reason that these APRs being not available could not be considered while considering and promoting the appellants.

5. On the aforesaid facts the question is whether the view taken by the High Court can be sustained. The reason given by the High Court is that Shri Prasad being available, the fact that he did not agree to write the APRs could not be used against the writ petitioner permitting respondent No. 1 to attach another criterion beyond prescribed guidelines. We are, however, of the view that for the aforesaid disinclination of Shri Prasad to write the two APRs, the reasons of which cannot be said to be motivated or untenable, the High Court took an unreasonable view by observing that the non-writing of two APRs was due to 'lapse and fault of respondent No. 1'. It is really not a question of taking advantage of 'one's own default' as observed by the High Court. According to us, in the facts and circumstances of the case the consideration of the APRs of the years 1985- 86, 1986-87 and Sh. V. Kashyap And Another vs Indian Airlines And Others on 7 April, 1994, which were the APRs of the three preceding available years, has to be taken as a due compliance of the guidelines in this regard. The ratings as per these three APRs gave a total of 35.68 insofar as respondent No. 4 is concerned, whereas the two appellants got 39.84 and 39.68 respectively. In the interview also the two appellants got more marks than respondent No. 4 as would appear from the averment made in para 7 of the Special Leave Petition, which fact has not been disputed in the counter- affidavit filed by respondent No. 4.

6. The aforesaid being the position, we are of the opinion that the High Court committed an error in setting aside the pro motion of the appellants to the post of Deputy Director (Finance). We, therefore, allow the appeal by quashing the impugned judgment and dismissing the writ petition filed by respondent No. 4. In the facts and circum stances of the case, we leave the parties to bear their own costs".

4.5. It is also contended that similar view has also been taken by this Court in its order dtd.02.01.2023 in W.P.(C) No.34949 of 2022. This Court placing reliance on the decision of the Hon'ble Apex Court as cited (supra), issued the following direction so available at Para-11:-

// 4 //

"11. Accordingly, the writ petition is disposed of by directing the Opposite Parties, particularly the Opposite Party No.2 to provide the CCRs of the Petitioner for the relevant period and the same be placed before the review DPC for consideration. In the event the CCRs pertaining to immediately preceding three years are not available for some reason or the other, the authorities are directed to consider the CCRs pertaining to three preceding available years and the case of the Petitioner for promotion be considered on such basis and the Petitioner be given promotion to the post of Section Officer as has been given to other similarly placed or junior employees. This Court deems it necessary to also direct the Opposite Party No.2 to restore the seniority of the Petitioner as per the gradation list by giving promotion to the Petitioner w.e.f. the date on which employees junior to the Petitioner was given promotion and, accordingly, all service and financial benefits be calculated against the promotional post and the same be extended in favour of the Petitioner within a period of two months from the date of review DPC take place".

4.6. It is accordingly contended that necessary direction be issued to Opposite Party No.1 to consider the case of the Petitioner for his promotion to the rank of Class-1 Senior by conducting a review DPC so held on 04.10.2010 and by extending the benefit of promotion on notional basis as the Petitioner in the meantime has retired from his service on attaining the age of superannuation on 30.04.2019.

5. Even though a counter affidavit has been filed by Opposite Party No.1, but Mr. Panigrahi, learned ASC has no serious objection to the course of action proposed by Mr. Das.

6. Having heard learned counsel for the Parties and after going through the materials available on record, it is found that the case of the Petitioner was not considered by the DPC held on 04.10.2010 because of the non- availability of the CCR/PAR. As further found from the record, the Petitioner after such availability of the CCR

// 5 //

was extended with the benefit of promotion vide Notification dtd.05.07.2014.

6.1. Placing reliance on the decisions as cited (supra), it is the view of this Court that due to non-availability of the CCR, an employee cannot be deprived of the benefit of promotion as the fault lies completely with the employer. This Court while disposing the writ petition directs Opposite Party No.1 to conduct a review DPC held on 04.10.2010 to consider the case of the Petitioner for his promotion to the rank of Class-1 Senior. Such a review DPC be held within a period of two (2) months from the date of receipt of this order. On such consideration, if it is found that the Petitioner was otherwise eligible to get the benefit of promotion, then necessary action be taken to extend such benefit from the date his junior namely Dr. Barish Kumar Das was so extended vide notification dtd.14.02.2011. However, since in the meantime Petitioner has already retired from service on 30.04.2019 such benefit of promotion be extended on notional basis. Petitioner however will be entitled for revision of pension and other pensionary benefits as due and admissible.

7. Accordingly, the Writ Petition stands disposed of.

(Biraja Prasanna Satapathy) Judge Signature Not Verified Digitally Signed Subrat Signed by: SUBRAT KUMAR BARIK Designation: Personal Assistant Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 11-Nov-2023 11:33:05