Orissa High Court
Prakash Chandra Das And Others vs State Of Odisha And Others on 10 November, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
A.F.R. W.P.(C) No.7388 OF 2023
(An application under Articles 226 and 227 of the
Constitution of India)
Prakash Chandra Das and others
... Petitioners
-versus-
State of Odisha and others
... Opposite Parties
Advocates appeared in the case through hybrid mode:
For Petitioners : Mr. Gautam Misra,
Sr. Advocate with
Mr. D.K.Patra, Advocate
Mr.J.R.Deo, Advocate
-versus-
For Opposite Party
Nos. 1 to 3 : Mr.T.K.Pattnaik.
A.S.C.
For Opposite Party : Mr. K.P.Mishra,
Nos.12, 13 & 14 Sr. Advocate with
Mr. Sridhar Rath
Advocate and associates
For Opposite Party : Mr. B. Routray,
Nos.15, 24, 25 & 26 Sr. Advocate with
Mr.S.K.Samal, Adv.
Page 1 of 28
For Opposite Party : Mr. Haladhar Sethy,
Nos.18,19,27,30 & 34 Advocate
For Opposite Party : Mr. Haladhar Sethy,
Nos.20,22,29,32& 33 Advocate
---------------------------------------------------------------------------
CORAM:
JUSTICE SASHIKANTA MISHRA
JUDGMENT
10.11.2023.
Sashikanta Mishra,J. The Petitioners, who are 8 in number
have filed this Writ Petition with the following prayer;
"Under the facts and circumstances as
narrated above, this Hon'ble Court may
graciously be pleased to issue notice to the
Opp. Parties and after hearing the parties, be
pleased to:
A. Quash the communication dated
03.03.2023 issued by OP No.1 under
Annexure-1 so far as it relates to the
promotional exercise of O.P. Nos.4 to 34 as the
same is contrary to section 4 of the ORV Act
and the judgment of the Hon'ble Supreme
Court in the case of Pravakar Mallick v. The
State of Orissa (2020) 15 SCC 297).
AND/OR
B. Direct the O.P. Nos. 1 to 3 not to promote
Opp. Party No. 4 to 34 by resorting to
reservations in promotions without recasting
the gradation list under Annexure-2 keeping in
mind the judgment of the Hon'ble Supreme
Court in the cases of Pravakar Mallick v. State
of Orissa, (2020) 15 SCC 297, (Paras 15, 23 &
26), M. Nagaraj v. UOI. (2006) 8 SCC 212
(Paras 85, 121 to 123), Indra Sawhney v. UOI
AIR 1993 SC 477 (Para 700), Uttar Pradesh
Power Corporation Limited v. Rajesh Kumar,
(2012) 7 SCC 1 (Paras 81 to 86);
AND/OR
C. Direct the O.P No. 1 to issue a fresh
communication for promotion to the post of
Deputy Conservator of Forest OFS Group-A
(SB) in the Forest, Environment and Climate
Change Department, Govt. of Odisha without
considering the aspect of reservation in
promotion for such posts and by considering
the petitioners as senior to the Opposite Party
Nos.4 to 34;
AND/OR
D. Pass any other order/orders as this Hon'ble
Court deems fit and proper;
And for which act of kindness, the humble
petitioners as in duty bound shall ever pray".
2. Though much has been pleaded by the parties but
in view of the issues involved, it is not necessary to
refer to the same in extenso. It would suffice to refer to
the basic facts only as the same are not generally
disputed.
3. Factual matrix:
All the 8 Petitioners belong to the general category
and were initially appointed as Forest Rangers in the
year 1993 and 1994 on different dates. They were
subsequently promoted as Asst. Conservator of Forests,
OFS Group-A (JB) on different dates in the year 2018.
The following table shows the dates of initial
appointment and promotion of the Petitioners;
Sl.No Name Date of Date or Position
entry into promotion in the
initial to ACF tentative
service seniority
list dated
29.4.2013
1 Prakash 02.8.1993 01.2.2018 247
Chandra Das
2 Gouri Shankar 08.8.1993 01.2.2018 248
Das
3 Sarat Kumar 04.8.1993 01.2.2018 252
Mishra
4 A.Uma 05.8.1994 01.2.2018 262
Mahesh
5 Sisir Kumar 03.8.1994 25.6.2018 263
Mishra
6 Soubhagya 01.8.1994 25.6.2018 264
Kumar Sahoo
7 Bijay Kumar 05.8.1994 25.6.2018 271
Parida
8 Amaresh nath 01.8.1994 25.6.2018 272
Pradhan
4. The private Opposite Party Nos.4 to 34 were
similarly appointed initially as Forest Rangers and were
promoted as Asst. Conservator of Forests ahead of the
Petitioners by applying the principles of reservation.
After being subsequently promoted to the rank of Asst.
Conservator of Forests however, the Petitioners'
seniority was restored by applying the catch-up
principle and accordingly a final gradation list of Asst.
Conservator of Forests (ACF) as on 9th September, 2022
was published. On 3rd March, 2023 a letter was issued
by the Government of Odisha in Forest, Environment
and Climate Change Department (Forest Department)
to the PCCF, Odisha, intimating that the Departmental
Promotion Committee (DPC) meeting for considering
promotion of ACFs to the rank of Deputy Conservator
of Forest (DCF), OFS Group-A (SB) is going to be held
shortly (copy enclosed as Annexure-1). Accordingly, it
was requested to intimate whether any disciplinary
proceeding is pending against the Officers (ACF) as per
the list enclosed to the said letter. The names of the
Petitioners were not included whereas the list
contained only the names of private Opposite Parties.
Apprehending that such grant of promotion to the rank
of DCF would perpetually make them junior to said
private Opposite Parties, the Petitioners have
approached this Court in the instant Writ Petition. By
order dated 15th March, 2023, a co-ordinate Bench of
this Court directed as an interim measure that the DPC
may meet but the final decision shall be kept in a
sealed cover and shall not be given effect to without
leave of this Court. By order dated 12th May, 2023, the
previous order was modified to the extent that the case
of Opposite Party Nos.4 to 11 could be considered by
the State-opposite parties as they are admittedly senior
to the Petitioners.
5. Heard Mr. Gautam Misra, learned Senior
counsel, with Mr.D.K.Patra and Mr. J.R.Deo, learned
counsel, for the Petitioners, Mr. T.K.Pattnaik, learned
Addl. Standing Counsel for the State, Mr. K.P.Mishra,
learned Senior counsel, with Mr. Sridhar Rath and
Associates, learned counsel, for the Opposite Parties
12,13 and 14, Mr. B. Routray, learned Senior counsel,
with Mr. S.K.Samal, learned counsel, for Opposite
Parties 15, 24, 25 and 26, Mr. Haladhar Sethy, learned
counsel, for the Opp.Party Nos.18,19,27,30 and 34 and
Mfr. D.K.Pani, learned counsel, for the Opp. Party
Nos.20,22,29,32 and 33.
6. Rival contentions:
The case of the Petitioners, plainly stated is,
firstly, the post of ACF being a promotional one, the
principle of reservation could not have been applied.
Secondly, having applied the catch-up principle to
restore the seniority of the Petitioners, it is no longer
permissible for the authorities to apply the principles of
reservation again in case of promotion to the rank of
DCF.
Per contra, it is the case of all the Opposite
Parties including the State that the Petitioners have no
locus standi to challenge the promotion process
initiated by the authorities as they are admittedly not
eligible for being considered for promotion as such.
Even otherwise, it is factually incorrect for the
Petitioners to contend that the principle of reservation
is being applied while considering the case of the
private Opposite Parties for being promoted to the rank
of DCF, rather they are being considered because they
have acquired the required eligibility of serving as ACF
for five years.
7. Since the locus standi of the Petitioners to
maintain the Writ Petition has been raised, it would be
apposite to first deal with the said issue.
Maintainability:
Mr. B. Routray, and Mr. K.P.Mishra, learned
Senior Counsel as well as Mr. T.K.Pattnaik, learned
Add. Standing Counsel have all argued in one voice
that as per Rule 5 of the Odisha Forest Service Group-
A (Senior) (Method of Recruitment and Conditions of
Service) Rules, 2015 (for short, 2015 Rules), an officer
has to complete 5 years of continuous service in the
grade of Odisha Forest Service Group-A (Junior
Branch) as on the first day of January of the year in
which the Board meets. Admittedly, the private
Opposite Parties have completed 5 years in the grade
of OFS, Group-A (Junior Branch) as on 1st January,
2023, but the Petitioners have not. Therefore, they are
not eligible for being considered for promotion to the
next higher post. It has also been argued that a person
lacking eligibility himself cannot challenge the
proposed promotion/promotions of persons who are
eligible.
8. Mr. Gautam Misra, learned Senior counsel, on
the other hand, has argued with vehemence that the
question of locus standi cannot be dealt with only from
the point of view of application of Rule 5 of 2015 Rules.
Elaborating his argument, Mr. Misra submits that
admittedly, the Petitioners had joined in service earlier
than private Opposite Parties (except Opposite Party
Nos.4, 6 to 11, 13). So they are inherently Senior to the
concerned private opposite parties. The authorities
committed gross illegality in applying the principle of
reservation while promoting the private Opposite
Parties to the next higher grade that i.e. ACF, which is
a Group-A post, as the same runs contrary to the
provisions of the ORV Act.
9. Be that as it may, the proposed action of the
authorities to grant further promotion to the private
Opposite Parties to the next higher rank of DCF is
nothing but applying the principles of reservation again
which is entirely contrary to law laid down by the Apex
Court in several judgments beginning from Indra
Sawhney v. UOI (2006) 8 SCC 212 and reiterated in M.
Nagaraj vs. Union of India (2006) 8 SCC 212, U.P.
Power Corporation Ltd. vs. Rajesh Kumar; (2012) 7
SCC 1, Jarnail Singh v. Lachhmi Narain Gupta;
(2018) 10 SCC 396 and Pravakar Mallick v. State of
Orissa; (2020) 15 SCC 297. In all these judgments the
principle that reservation cannot be granted in
promotions has been reiterated. While interpreting the
amended provision of Article 16(4A) of the Constitution
of India, it has been held that such promotions can be
effected only if the State is ready with quantifiable data
showing inadequacy of representation of the reserved
category persons in public services. Such exercise has
not been done in Odisha. Such being the factual and
legal scenario, according to Mr. Misra, granting
promotion to the private opposite parties to the rank of
DCF ignoring the case of the Petitioners only on the
ground that they have not completed the mandatory
residency period in the feeder grade would enable the
former to steal a march over the latter. In other words,
if such promotion is effected, the Petitioners, despite
being inherently senior would become juniors to the
private opposite parties for all times to come. Mr.Misra,
thus concludes his argument by submitting that in
such factual scenario, the Petitioners are definitely
persons aggrieved so as to maintain the Writ Petition
challenging the proposed promotion of the private
opposite parties.
10. Analysis and findings on maintainability:
The facts as have been pleaded are not disputed
inasmuch as the Petitioners joined in service as Forest
Ranger earlier than the private opposite parties (except
Opp.Party Nos.4, 6 to 11, 13 and 15). It is also not
disputed that the private opposite parties were
promoted as Asst. Conservator of Forest, OFS Group-A
(Junior Branch) ahead of the Petitioners despite being
junior by application of the principles of reservation.
Since such promotion was effected way back in the
year, 2014 and was never challenged, this Court does
not propose to enter into the controversy as to whether
such promotion was legally valid or not. In any case,
the Petitioners were also promoted as ACF in the year
2018. Regardless, in the final gradation list of ACF as
on 9th September, 2022, the seniority of Petitioners vis-
à-vis the private opposite parties (who were promoted
earlier) was restored by applying the catch-up
principle. According to learned counsel appearing for
the Opposite Parties, it is a settled and accepted
position which has gone unchallenged and therefore,
cannot be allowed to be unsettled at this belated stage.
This being the factual position, this Court would like to
envision as to what effect the proposed promotion
would have vis-à-vis the Petitioners.
11. As per the impugned communication under
Annexure-1 the list of Officers (ACF) short listed for
being considered by the DPC contains only the names
of the private opposite parties and not the Petitioners.
It has been specifically pleaded in the separate counter
affidavit filed by the Opposite Parties that consideration
of the case of the private opposite parties for promotion
is not on the basis of reservation but entirely by
application of Rule 5 of the 2015 Rules, which
mandates 5 years of continuous service in the Junior
Branch for being eligible for promotion to the Senior
Branch. Admittedly, the Petitioners have not completed
5 years of continuous service as ACF as on 1st January,
2023. So if Rule 5 is applied, the Petitioners will have
to be kept out of the zone of consideration. However,
this would also entail promotion of juniors ahead of
seniors thereby rendering the catch-up principle a
nullity. Assuming that the Petitioners would be
promoted subsequently upon completing the required 5
years of continuous service, they would become juniors
to the private opposite parties and since there is no
possibility of the application of catch-up principle again
at the next higher grade, they would continue to
remain junior to the private opposite parties for all
times to come. Whether such a course of action can be
countenanced in law is something that has to be
examined in detail, but there can be no denying that
the Petitioners would be aggrieved by such action,
inasmuch as the same seeks to nullify their inherent
seniority vis-à-vis the private opposite parties
perpetually. This Court is therefore, of the considered
view that the Petitioners definitely have locus standi to
challenge the proposed promotion of the private
opposite parties and therefore, holds that the Writ
Petition is maintainable.
Finding on merits:
12. Having held the Writ Petition to be maintainable,
the next question that falls for consideration before this
Court is whether the Petitioners have made out any
case for interference with the impugned communication
under Annexure-1. In this regard, it is contended by
Mr. G. Misra, learned Senior counsel that the action of
the authorities initiating the process of promotion only
in respect of the private Opposite Parties is nothing but
granting them benefit of reservation yet again, which is
otherwise not permissible in view of several judgments
of the Apex Court. Mr. Misra further contends that the
Petitioners despite being inherently senior to the
private Opposite Parties, their seniority cannot be
taken away by promoting their juniors in the garb of
invoking the so-called eligibility clause. According to
Mr. Misra this would amount to nullifying the benefit of
the catch-up principle that has already been applied to
restore the seniority of the Petitioners vis-à-vis the
private Opposite Parties. Though the authorities have
not explicitly said so but the proposed promotion of the
private Opposite Parties ahead of the Petitioners would
be akin to granting them the benefit of reservation
again which is not permissible in view of the ratio of M.
Nagaraj (supra), U.P. Power Corporation Ltd. (supra),
Jarnail Singh (supra), and Pravkar Mallick (supra).
Mr. Misra has relied upon the decision of this Court in
the case of State of Odisha v. Amar Chhatoi;
124(2017) CLT 976, wherein the State Government
admitted that the exercise envisaged as per M. Nagaraj
(Supra) has not yet been undertaken in Odisha. Thus,
granting promotion to the reserved category candidates
by invoking only the eligibility clause would be entirely
contrary to the law of the land.
13. The State counsel as well as the learned Senior
counsel Mr. B. Routray and Mr. K.P.Mishra have
argued that the Petitioners having received the benefit
of catch-up principle at the stage of ACF and the next
promotion, i.e. to the rank of DCF not being proposed
to be done on the basis of reservation but entirely on
considerations of eligibility, the Petitioners can raise no
grievance legally against the impugned communication.
In any case, since there are adequate vacancies, the
Petitioners can be considered for promotion to the rank
of DCF as and when they acquire eligibility, but
presently the promotion proposed to be granted to the
private Opposite Parties cannot be stalled at their
instance as admittedly they do not satisfy the eligibility
condition.
14. Having noted the rival contentions as above, it
would be apposite for this Court to refer to the relevant
facts at the outset with a view to ascertain as to how
the ratio of the decisions cited at the bar would be
applicable. As already stated, the Petitioners joined as
Forest Ranger earlier than the private opposite Parties,
but they were promoted as ACF later than the private
Opposite Parties, who were admittedly granted such
promotion by following the principle of reservation. It
has been argued on behalf of the Petitioners that even
such promotion was contrary to the provisions of the
Odisha Reservation of Vacancies in Posts and Services
(Scheduled Castes and Scheduled Tribes) Act, 1975 (for
short the "1975 Act"). Rule 4 has been referred to in
particular, which is quoted herein below;
"4. Reservation and the percentage
thereof (1) Except as otherwise provided
in this Act, the vacancies reserved for the
Scheduled Castes and the Scheduled
Tribes shall not be filled up by candidates
not belonging to the Scheduled Castes
and Scheduled Tribes
(2) The reservation of vacancies in Posts
and Services shall be at such percentage
of the total number of vacancies as the
State Government may, from time to time,
by order determine:
[Provided that the percentage so
determined shall in no case be less than
the percentage of the persons belonging to
the Scheduled Castes of the Scheduled
Tribes as the case may be in the total
population of the State:
Provided further that there shall be no
reservation of vacancies to be filled up by
promotion where
(a) the element of direct recruitment in the
grade or cadre in which the vacancies
have occurred is more than sixty-six and
two third percent,
(b) the vacancies have occurred in Class I
posts and are to be filled up by promotion,
through limited departmental
examination; or
6) the vacancies have occurred in Class I
posts which are above the lowest rung
thereof, and are to be filled up on the
basis of selection
Explanation-The expression "population"
means the population as ascertained at
the last census for which the relevant
figures have been published."
15. Learned Senior counsel for the Petitioners has
argued that the post of ACF is a Group-A post and can
be filled up either by direct recruitment or by
promotion from amongst the Forest Rangers. In this
context, reference has been made to the Odisha Forest
Services Group-A (JB) (Recruitment and Condition of
Services) Rules, 2013 of which Rules 3,4 and 5 are
relevant inasmuch as the Odisha Forest Service Group-
A (JB) is a separate cadre altogether but is a Class-1
(Group-A) post. It is contended that Sub-section (2) of
Section-4 of the 1975 Act prohibits reservation in case
of promotion in Class-I (Group-A) post. However, this
Court observes that promotions to the post of ACF were
effected in the year 2014 (in case of private Opposite
Parties) and 2018 in case of the Petitioners. The final
gradation list prepared subsequently after application
of the catch-up principle to restore the seniority of the
Petitioners has never been challenged. To such extent
therefore, this Court is inclined to accept the argument
advanced on behalf of the private Opposite Parties that
it is too late in the day to raise any grievance as regards
the legality and validity of promotions granted to the
rank of ACF.
16. This Court would now focus its attention as to
the legality of the impugned communication. As already
stated, according to the Petitioners, the benefit of
restoration of seniority that they received by application
of the catch-up principle is sought to be nullified by the
impugned communication. On the other hand,
according to the Opposite Parties, the seniority of the
Petitioners having already been restored, but they
being ineligible for further promotion, cannot raise any
grievance.
17. Now the question is, whether the principle of
reservation is sought to be extended by the authorities
in the proposed promotion. The impugned
communication under Annexure-1, on the face of it
does not say so. The State counsel as well as the
learned Senior counsel appearing for the private
Opposite Parties have emphatically argued that the
principle of reservation is not sought to be extended for
promotion to the rank of DCF, rather the promotion is
sought to be made by invoking the eligibility clause.
This being the fact situation, the decisions cited by Shri
G. Misra in relation to the applicability or otherwise of
Article 16(4A) of the Constitution would not be relevant
at all. To amplify, the need of obtaining quantifiable
data by the State regarding inadequacy of
representation of reserved category persons in public
service being sine qua non to apply the principles of
promotion with consequential seniority to them as
envisaged in M. Nagaraj, U.P. State Power, Jarnail
Singh, Pravakar Mallick (supra) are rendered
redundant.
18. Rule 5 of 2015 Rules reads as follows;
"Eligibility Criteria:- (1) No Officer shall be
eligible for promotion to the post in Group-A
(Senior Branch) of the service unless he or she
has competed five years of continuous service
in the grade of Odisha Forest Service Group 'A'
(Junior Branch) as on the 1st day of January of
the year in which the Board meets.
(2) Appointment to Supertime Scale in the
service shall be made on promotion cfrom
amongst the officers who have completed two
years of service in Odisha Forest Service Group
'A' (Senior Branch)as on the 1st day of January
of the year in which the Board meets.
(3) Appointment to Superior Administrative
Grade in the service shall be made on
promotion from amongst the officers who have
completed one year of service in Odisha Forest
Service (Supertime Scale) as on the 1st day
January of the year in which the Board meets."
Thus, the Rule provides that an Officer shall not
be eligible for promotion to the post in Senior Branch
unless he has completed 5 years of continuous service
in the Junior Branch as on the first day of January of
the year in which the Board meets. The proposed
promotional exercise being scheduled to be held in the
current year i.e. 2023, the relevant date for
consideration of eligibility would be 1st January, 2023.
Admittedly as on that date the private Opposite Parties
had completed 5 years of continuous service whereas
the Petitioners had not. Thus, prima facie, they are not
eligible for being considered for promotion to the Senior
Branch, but then if only the eligibility clause is harped
upon and the proposed promotions are effected, it
would entail a situation where the private Opposite
Parties, who by virtue of the principle of reservation
had been promoted to the Junior Branch earlier than
the Petitioners (General Category candidates) would
definitely steal a march over the Petitioners. Since on
the face of it and on record the principle of reservation
would not be applied in case of promotion to the post of
DCF, the catch-up principle would also not be
applicable if and when the Petitioners are promoted to
the Senior Branch. In other words, this would lead to a
situation where the inherent seniority of the Petitioners
restored by application of the catch-up principle in the
year 2022 would be lost forever. It would be back to
square one. To further elaborate, the private Opposite
Parties, who are inherently junior to the Petitioners
but had marched ahead of them by virtue of the
principle of reservation would become seniors to them
for all times to come. According to the considered view
of this Court, this would be entirely contrary to the
principle of equality enshrined under Articles 14 and
16(1) of the Constitution of India. Thus, as between the
question of seniority and the eligibility criteria, this
Court is of the view that the former shall take
precedence over the latter as otherwise the balance
between Articles 16(1) and 16(4A) of the Constitution
would be disturbed.
19. In its judgment rendered in the case of Ajit
Singh Januja v. State of Punjab; (1996) 2 SCC 715,
the Supreme Court's following observations are
noteworthy;
"Whenever a question arises for filling up a post
reserved for Scheduled Caste/Tribe candidate
in a still higher grade then such candidate
belonging to Scheduled Caste/Tribe shall be
promoted first but when the consideration is in
respect of promotion against the general
category post in a still higher grade then the
general category candidate who has been
promoted later shall be considered senior and
his case shall be considered first for promotion
applying either principle of seniority-cum-merit
or merit-cum-seniority."
(Emphasis added)
Thus, the principle laid down is that the
inherent seniority between reserved category
candidates and general candidates in the promoted
category shall continue to be governed by their inter-
se seniority in the lower grade.
20. If, on the other hand, the proposed promotions
are effected, it would be akin to taking away by one
hand what was granted by the other. Moreover, even if,
it is not explicitly stated so, but the logical conclusion
of the proposed promotional exercise would enure only
to the benefit of the reserved category candidates i.e.
private Opposite Parties. Thus, what could not be done
directly the State is attempting to do so indirectly,
which needless to say is not conscionable in law.
Reference in this regard may be had to the decision of
the Apex Court in the case of State of Tamil Nadu
and others v. K. Shyam Sundar and others; (2011)
8 SCC 737; wherein it was held as follows;
"It is a settled proposition of law that what
cannot be done directly, is not permissible to be
done obliquely, meaning thereby, whatever is
prohibited by law to be done, cannot legally be
effected by an indirect and circuitous contrivance
on the principle of quando aliquid prohibetur,
prohibetur et omne per quod devenitur ad illud. An
authority cannot be permitted to evade a law by
'shift or contrivance'."
21. How then to go about it. It has been argued by
learned State counsel that there being large number of
vacancies in the rank of DCF, the posts need to be
filled up at the earliest for the overall efficiency and
smooth functioning of the work of the Department.
This Court finds that the Petitioners having been
promoted to the Junior Branch on different dates in the
year 2018 have acquired or will be acquiring the
eligibility on different dates in this year itself.
Moreover, we are at the fag end of the year 2023. As on
1st January, 2024 the Petitioners would have acquired
the required eligibility. Thus, taking a larger view of
the matter and in order to satisfy the requirements of
the law of the land, this Court is of the view that if it is
felt necessary to grant promotions to the rank of DCF
urgently then the Government can relax the eligibility
criteria in respect of the Petitioners and effect
promotion to the Senior Branch basing on the final
gradation list as on 9th September, 2022. Significantly,
the 2015 Rules provide such a clause in Rule 14, which
is quoted herein below;
"14. Relaxation- whenever it is considered
by the Government that it is necessary or
expedient to do so in the public interest, it
may, by order, for reasons to be recorded
in writing, relax any of the provisions of
these rules in respect of any class or
category of officers in consultation with
the Commission."
In fact, it has been brought on record by way of
an Additional Affidavit filed by the Petitioners on
20.4.2023 that the Government has in the past relaxed
the eligibility condition of five years with concurrence of
OPSC for promotions to the post of DCF by reducing it
to 4 years/2 1/2 years etc. Copies of the relevant
documents in this respect for the years 2018, 2019,
2020 and 2021 have been enclosed as Annexures-
9,10,11 and 12 to the Additional Affidavit. So, given the
fact situation obtaining in the present case this is no
reason why such course of action should not be
adopted now.
22. Since filling up the post of DCF would be in
public interest, the Government shall do well to
consider relaxation of Rule 5 in exercise of its power
under Rule 14 or in the alternative, to defer the
promotional exercise to a date after 1st January, 2024
so as to consider all officers as per the gradation list as
on 9th September, 2022.
Conclusion.
23. In view of the foregoing narration, this Court is
left with no doubt that the impugned communication
under Annexure-1 being a product of arbitrary exercise
of power, cannot be sustained in the eye of law
inasmuch as it indirectly seeks to grant the benefit of
reservation in the promotional posts to the juniors like
the private Opposite Parties ignoring the inherent
seniority of the Petitioners as correctly reflected in the
gradation list.
24. The Writ Petition is therefore allowed. The
impugned communication under Annexure-1 is hereby
quashed. The Opposite Party-authorities are directed
to take necessary steps to fill up the posts in the
promotional cadre i.e. DCF in terms of the observations
made in this judgment. It is made clear that if any
promotion has been granted to any officer pursuant to
orders dated 12.5.2023 and 04.9.2023 passed by this
Court, the same shall remain unaffected by this
judgment.
..................................
Sashikanta Mishra,
Judge
Ashok Kumar Behera
Signature Not Verified
Digitally Signed
Signed by: ASHOK KUMAR BEHERA
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 11-Nov-2023 15:41:00
