Ananda Chandra Das vs Departmental Promotion ...
2023 Latest Caselaw 12000 Ori

                  ORISSA HIGH COURT: CUTTACK

                         W.P.(C) No.9589 of 2019

Ananda Chandra Das                                   .....             Petitioner

                                          Versus

Departmental Promotion Committee                     .....           Opp. Parties
of the Odisha State Housing Board,
Bhubaneswar & others

   For Petitioner                : Mr. S. Sahoo, Adv.


   For Opp. Parties              : Mr. S. Mishra, Adv.
                                  (For O.P. No.1)

                                   Mr. Ch. Satyajit Mishra, AGA
                                   (for O.P. Nos. 2 and 3)

           CORAM: JUSTICE SANJAY KUMAR MISHRA

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Date of Hearing: 11.08.2023, Date of Judgment: 05.10.2023
---------------------------------------------------------------------------------------

S.K. Mishra, J.

The Petitioner, who belongs to Scheduled Caste category

and works as Senior Accountant under the Odisha State

Housing Board (OSHB), has preferred the Writ Petition

challenging the legality and validity of the decision dated

25.01.2019 of the Departmental Promotion Committee (DPC) of

the OSHB, wherein the only post of Head Accountant was filled up from general category. The said challenge has been made

alleging violation of Section 10 of the Odisha Reservation of

Vacancies in Posts and Services (for Scheduled Castes and

Scheduled Tribes) Act, 1975, shortly, the Act, 1975, read with

"the Schedule" as prescribed under Rule 3 (Model Roster) of the

Odisha Reservation of Vacancies in the Posts and Services (for

Scheduled Castes and Scheduled Tribes) Rules, 1976, shortly,

the Rules, 1976.

2. The factual matrix of the case, in nutshell, is that the

Petitioner was initially appointed as Junior Accountant after

facing selection process of the Board as a SC candidate. On

15.07.2005, he was promoted to the post of Senior Accountant

on the basis of Seniority-Cum-Merit as a SC candidate. He is

performing his duties and responsibilities to the best

satisfaction of his authority from the date of his joining. There

was a disciplinary proceeding initiated against the Petitioner

based on an allegation of a private person about discrepancy in

allotment of house in OSHB. But, in the enquiry the charges

could not be established. After completion of the Departmental

Proceeding, his seniority was fixed over and above of his juniors,

who had got promotions superseding him. Accordingly, the

Petitioner's seniority and financial benefits were allowed vide

Office Order dated 01.09.2008.

It is further case of the Petitioner that a Final Gradation

List as on 12.04.2012 of the Accounts Personnel of the Board

was published vide Memo No.5885, dated 26.04.2012. In the list

of Senior Accountants, Petitioner's name was reflected at Sl.

No.7. Sl. No.1-Dillip Kumar Dash was promoted to the post of

Accounts Officer (General) since 2017. Sl. Nos. 2 and 3 were

superannuated. One Kamal Kumar Rout (O.P. No.4) was

promoted to the said post in terms of the present DPC under

challenge, but retired on 30.04.2019. As per the Gradation List,

the Petitioner is the senior most Scheduled Caste person and

his first entry into the Board's service was on 21.07.1993.

Though his promotion to the post was counted on 15.07.2005,

but as per Annexure-2, his seniority was fixed over and above

his junior, namely, Niranjan Mallick (SC). Accordingly, he is the

senior most amongst the scheduled caste employees holding the

post of Senior Accountant.

It is further case of the Petitioner that the DPC was

constituted on 30.05.2014, wherein one Dillip Kumar Dash,

Senior Accountant was promoted to the post of Head

Accountant violating the roster policy. Therefore, since 1990,

though four times promotions were given to various candidates

to the post of Head Accountant, but no SC/ST/OBC employee

was promoted to the said post. In the meanwhile, one Mahendra

Kumar Biswal, Head Accountant retired on 31.07.2013 and

another namely, Sri Sital Chandra Mohanty retired on

30.11.2014. As one post has been filled up in the year 2014

from the general category, thereafter one Head Accountant post

was vacant at that point of time.

The case of the Petitioner is that since one Head

Accountant post was vacant, he filed several representations

before the Authority ventilating his grievances about his

promotion to the post of Head Accountant as prescribed in "the

Schedule" in accordance with the Rule 3 (Model Roster) of the

Rules, 1976. The SC and ST Department also requested the

OSHB vide letter dated 15.01.2016 to follow the reservation

policy.

Due to non-promotion to the post of Head Accountant, the

Petitioner approached this Court by filing W.P.(C) No.3396 of

2016, which was disposed of vide Order dated 29.02.2016

directing the Secretary, OSHB to dispose of his representation

dated 18.12.2015. Pursuant to such direction, the

representation of the Petitioner was disposed of on 19.04.2016

indicating therein that in OSHB, the number of sanctioned post

of Head Accountants were two. The same were filled up by

promotion during 1990 and 1992 from amongst the eligible

Senior Accountants following proper procedure. Out of the two

sanctioned post of Head Accountants, one post of Head

Accountant has been upgraded to Accounts Officer (General) by

the Government in H & U.D. Department vide letter dated

22.03.2014 to be filled up by giving promotion from amongst the

senior most Head Accountant following proper procedure. After

up-gradation of one post of Head Accountant by the

Government, the sanctioned post of Head Accountant comes to

one. It was further stated vide the said communication that the

sanctioned post of Head Accountant being one, one general

candidate is holding the said position being the senior most

Senior Accountant in the Gradation List through DPC. It is

alleged that while disposing of the representation of the

Petitioner, the letter of Government in ST and SC Department

dated 15.03.2007 has been interpreted in a wrong way.

The grievance of the Petitioner is that the Order dated

20.04.2016 was mechanical, being silent about the promotion

and implementation of the 'Model Roster'. Hence, the Petitioner

filed a representation seeking review of the Order dated

20.04.2016. Due to the inaction of the Authority to act on his

representation, the Petitioner again preferred W.P.(C) No.19277

of 2016. While the matter is pending, the DPC was held on

25.01.2019. Again promotions were given to the post of Head

Accountant. In the DPC, one Kamal Kumar Rout, Senior

Accountant was promoted to the post of Head Accountant, who

retired from service after attaining the age of superannuation on

30.04.2019. Hence, W.P.(C) No.19277 of 2016 became

infructuous in the changed circumstances. It is the case of the

Petitioner that while issuing the impugned promotion order, the

ORV Act was not followed. The same is now awaiting for

administrative approval in the Government (Department of H &

U.D.)

It has further been averred in the Writ Petition that the

post of 'Head Accountant' of the Board is filled up on the basis

of seniority from amongst the Senior Accountant. The said post

was previously filled up from amongst general category each

time violating the ORV Act and Rules. The Model Roster (Rule

3), as prescribed in "the Schedule", has been deliberately

violated by the DPC held on 25.01.2019. The Opposite Party

No.4 retired from service on 30.04.2019. As the Petitioner is the

senior most among the SC/ST Senior Accountants, he ought to

have been promoted to the post as per the seniority criteria fixed

under Section 10(3) of the ORV Act, which the DPC has violated.

Therefore, the decision of the DPC was challenged in W.P.(C)

No.7993 of 2019. As there were some discrepancies in the

averments made in the Writ Petition, the same was allowed to

be withdrawn giving liberty to the Petitioner to file a better

Petition. Hence, this Writ Petition has been preferred with

changes in the averments.

It is further averred in the Writ Petition that the DPC has

arbitrarily not allowed the Petitioner's promotion violating the

Model Roster under Rule 3 of the ORV (for Scheduled Castes

and Scheduled Tribes) Rules, 1976 and Section 10 of the ORV

Act. It has been stated that in the last vacancy, though the

Petitioner was eligible to be promoted to the said post as he

belongs to SC category, the DPC of OSHB held on 25.01.2019

has acted arbitrarily violating ORV Act and Rules, which are

under challenge in the present Writ Petition.

3. Being noticed, the contesting Opposite Party No.1 has filed

Counter Affidavit stating that the subject matter and the

question of law in W.P.(C) No.19266 of 2016 pending before this

Court as well as in the present Writ Petition being same, the

present Writ Petition is misconceived and not maintainable and

liable to be dismissed. It has further been stated that as per the

ruling of the apex Court, reservation cannot exceed the ceiling

limit of 50% on post-specific roster, as has been clarified in the

Circular dated 15.03.2007 of the Government of Odisha, ST and

SC Department.

It is stated in the Counter that the service record of the

Petitioner is not clean. The order passed by the Disciplinary

Authority as well as the Appellate Authority imposing penalty on

the Petitioner have been challenged by the Petitioner in W.P.(C)

No.4550 of 2013 and the same is still pending for adjudication

before this Court. It is further stated in the Counter that one

Dillip Kumar Dash was promoted from the post of Senior

Accountant to the post of Head Accountant taking into account

the seniority in the Gradation List (Annexure-5) and the existing

Rules. There were two posts of Head Accountants in OSHB. Out

of which, one post of Head Accountant was upgraded to the post

of Accounts Officer (General) as per the Order dated 22.03.2014

of the Government in H & U.D. Department. Accordingly, after

upgradation of one post of Head Accountant, the sanctioned

post of Head Accountant comes to one only. The post of Head

Accountant having been reduced to one (single post) in OSHB,

the question of applicability of reservation policy of SC and ST

for the said post does not arise. After upgradation of one post of

Head Accountant to the post of Accounts Officer, Sital Chandra

Mohanty, being the senior most in the gradation list of Head

Accountants, was promoted to the post of Accounts Officer and

retired as such on attaining the age of superannuation on

30.11.2014. Similarly, Mahendra Kumar Biswal retired on

31.07.2013 as Head Accountant, on attaining the age of

superannuation. After retirement of Mahendra Kumar Biswal,

one Dillip Kumar Dash, being the senior most among the Senior

Accountants in the Gradation List, was promoted to the only

post of Head Accountant. It is further stated that after elevation

of Dillip Kumar Dash from the post of Head Accountant to the

post of Accounts Officer, the only post of Head Accountant has

fallen vacant and the same shall be filled up through DPC after

following due procedure and taking into account the seniority in

the gradation list of Senior Accountants.

4. In response to the Counter filed by the Opposite Party

No.1, a Rejoinder Affidavit has been filed by the Petitioner

stating therein that as averments made in Paragraphs 3.4 to 3.6

of the Writ Petition have not been disputed in the Counter

Affidavit, pendency of W.P.(C) No.4550 of 2013 cannot stand on

the way of the Petitioner to get his claim. It has further been

stated in the Rejoinder Affidavit that in view of the provisions

under Section 3(j) of the ORV Act, 1975, the said Act shall have

no application in the present case as the post of Accounts

Officer (General) in OSHB has been created by way of

upgradation of Head Accountant. The number of sanctioned

post of Head Accountants is two and out of the said sanctioned

posts, one post has been upgraded to Accounts Officer (General)

on 22.03.2014. The upgradation of a post cannot form any

grade or cadre, the same being an up-gradation simpliciter. In

an up-gradation, the candidate continues to hold the same post

as the same is not re-structuring the cadre. On the other hand,

upgradation merely confers a financial benefit by raising the

scale of pay. The letter of the State Government dated

22.03.2014, as at Annexure-B, does not disclose that

upgradation of one post of Head Accountant to Accounts Officer

(General) forms a separate cadre or grade. Hence, it cannot be

construed that even after upgradation of one post of Head

Accountant; remaining one post of Head Accountant of OSHB

will be treated as a single post in the cadre of Head Accountant.

Therefore, the reservation for SC and ST as per the Act is

applicable to the Petitioner's case. As per Model Roster, the

promotion to the post of Head Accountant at 4th instance falls

against "SC" category. Accordingly, the name of the Petitioner

deserves to be recommended for promotion to the post of Head

Accountant w.e.f. 25.01.2019.

5. Apart from filing Rejoinder Affidavit, a further Affidavit

dated 25.09.2022 has been filed by the Petitioner to bring on

record documents to demonstrate before this Court that on

30.12.2020, the DPC recommended to promote one Bishnu

Prasad Patra, Senior Accountant to the post of Head Accountant

subject to the result of W.P.(C) No. 19277 of 2016 and W.P.(C)

No.9589 of 2019 filed by the Petitioner. Further, Bishnu Prasad

Patra was promoted to the post of Accounts Officer (General)

again indicating therein that said promotion is subject to the

result of the above Writ Petitions. The Minutes of the DPC

Meeting held on 30.12.2020 so also dated 05.09.2022

pertaining to promotion to the post of Head Accountant and

Accounts Officer (General) respectively, indicate that the

sanctioned post of Head Accountant and Accounts Officer

(General) being one single sanctioned post lying vacant in

OSHB, applicability of ORV Act does not arise.

6. Mr. Sahoo, learned Counsel for the Petitioner submitted

that law is well settled that it is not at all the posts in a

particular category that are so upgraded, but only a part of it.

That is because their posts continue in the same category,

though a higher scale of pay is fixed for those posts. This

phenomenon does not differ from the case where all the posts

are upgraded. Those who get the higher grade cannot be said to

have been promoted because there is no question of

appointment from one post to another and the candidates

continue to hold the same post.

7. Learned Counsel for the Petitioner further submitted that

the decision of the DPC taken on 25.01.2019 is violative of

Section 10 of the ORV Act read with the Model Roster as per

Section 3 of the ORV (SC/ST) Rules, 1976 in allowing the

promotion to the post of Head Accountant. It is further pleaded

that the OSHB, being an instrumentality of the State

Government, should follow the reservation policy of the State in

terms of the State Government's Circular. The Odisha Civil

Services (Criteria for Promotion) Rules, 1992 with amendments

are being followed by the OSHB. Hence, non-promotion of SC

personnel to the post of Head Accountant is arbitrary, illegal

and non-application of mind and liable to be quashed.

Learned Counsel for the Petitioner further submitted that

Section 10(3) of the ORV Act in respect of promotions ought to

be based on seniority subject to fitness. In such cases, the

SC/ST candidates will be promoted to the next higher post or

grade against the reserved vacancies irrespective of their

position in the Gradation List subject to the satisfaction of

prescribed minimum qualification and experience and are found

fit for such promotion.

8. Learned Counsel for the Petitioner relied upon the

judgments in Union of India v. Pushpa Rani and others,

reported in 2008 AIR SCW 6564: AIR 2009 SC (SUPP) 1337,

Bharat Sanchar Nigam Ltd. v. R. Santhakumari Velusamy

and others, reported in AIR 2011 SC 3793: 2011 AIR SCW

5130, All India Non SC/ST Employees Association Railway v.

V.K. Agarwal, reported in AIR 2002 Punjab and Haryana 16:

AIR Online 2001 SC and K. Meganathan v. The State of Tamil

Nadu, reported in (2014) 7 MAD LJ 43 : 2014 LAB. I.C. 1776, to

substantiate the claim of the Petitioner for his promotion to the

post of Head Accountant applying the principle of reservation

under the ORV Act, 1975.

9. Mr. Mishra, learned Counsel for the Opposite Party No.1,

drawing attention of this Court to the communication made by

the Director, Housing & Ex-Officio Addl. Secretary to

Government, Government of Odisha, Housing and Urban

Development Department dated 22.03.2014 (Annexure-B),

submitted that in terms of Proviso to Sub-Section (4) of Section

10 of the Odisha Housing Board Act, 1968, sanction was

accorded for creation of post of "Accounts Officer (General)" in

OSHB in the scale of pay Rs.9300-34800 with grade pay of

Rs.4600 by way of upgradation of one post of Head Accountant

indicating therein that the said post should be filled up from

among the senior most Accountants working in the Board

observing all formalities and for the said purpose, the feeder

post for promotion to the post of Accounts Officer (General) is

Head Accountant. He further submitted that after creation of

post of Accounts Officer (General) in OSHB by upgrading one

post of Head Accountant, the total post of Head Accountant in

OSHB became one. After such upgradation, the remaining post

of Head Accountant being a single post, in view of Sub-Section

(j) of Section 3 of the ORV Act, 1975, the Model Roster on 80

points, as prescribed in the Schedule under Rule-3 of the ORV

Rules, 1976 is not applicable to the case of the Petitioner.

Hence, the prayer made in the Writ Petition to promote the

Petitioner to the post of Head Accountant applying the

provisions of ORV Act, 1975 and the Schedule made under the

ORV Rules, 1976 is misconceived and the Writ Petition deserves

to be dismissed.

10. From the pleading of the parties, so also submissions

made by the learned Counsel for the Parties, the following

issues emerge to be decided in the present lis:

(i) Out of two posts of Head Accountants, after upgradation of one post of Head Accountant to the post of Accounts Officer (General), whether the available post for promotion to the post of Head Accountant from the feeder post of Senior Accountant would be one post or such creation of post of Accounts Officer (General) by way of

upgradation is to be treated as an upgradation simpliciter?

(ii) Whether the candidate, who is appointed in the said upgraded post of Accounts Officer (General) by way of promotion, continues to hold the same post of Head Accountant?

(iii) Whether such upgradation merely confers a financial benefit in favour of a candidate by raising the scale of pay?

11. Before dealing with the issues as detailed above, it would

be apt to reproduce below the contents of letter dated

22.03.2014 as at Annexure B to the Counter, filed by the OSHB

(Opposite Party No.1).

"GOVERNMENT OF ODISA HOUSING & URBAN DEVELOPMENT DEPARTENT No.7011/HUD., Dated the 22.03.2014 HUD-13-HU-58-HR-18-01/14

From

Shri D. Senapati, Director, Housing & Ex-Officio Addl. Secretary to Government

To

The Secretary, Odisha State Housing Board, Bhubaneswar.

Sub: Sanction to the creation of the post of Accounts Officer (General) in Odisha State Housing Board.

Sir,

I am directed to invite a reference to H & U.D. Department Letter No.10960/HUD dt.7.4.2000 and your letter No.8580/OSHB dt.12.6.2008 on the above mentioned subject cited above and to say that Government have been pleased to sanction under proviso to Sub-Section (4) of Section-10 of Odisha

Housing Board Act, 1968 to the creation of the post of Accounts officer (General) in Odisha State Housing Board in the scale of pay Rs.9300-34800 with Grade pay Rs.4600 by way of up gradation of one post of Head Accountant.

2. The post of Accounts Officer (General) should be filled up from among the senior most Head Accountants working in the Board observing all formalities.

3. This has been concurred in by Finance Department, Government of Odisha vide U.O.R. No.32-WF-I Dt.20.01.14.

4. The expenditure in connection with creation of the post of Accounts Officer (General) should be met from its own fund by the Odisha State Housing Board, Bhubaneswar.

Yours faithfully, Sd/-

Director, Housing & Ex-Officio Addl. Secretary to Government"

(Emphasis supplied)

12. As is revealed from the said communication dated

22.03.2014 (supra), there is a reference to Sub-Section (4) of

Section-10 of the OSHB Act, 1968, which is extracted below.

"10. (1) xxx

(2) xxx

(3) xxx

(4) Subject to the rules made in that behalf the Board shall have power to create any post on its establishment:

Provided that no new post in the scale of pay the maximum of which exceeds five hundred rupees shall be created by the Board without the previous sanction of the State Government."

(Emphasis supplied)

13. Since there is a reference to letter No.10960/HUD dated

07.04.2000 of the Housing and Urban Development Department

so also letter dated 12.06.2008 of OSHB in the letter dated

22.03.2014 as at Annexure-B to the Counter Affidavit filed by

OSHB, on being directed by this Court, the learned Counsel for

the Opposite Party No.1 (OSHB), so also learned Counsel for the

State produced the said communications supported with

Affidavits. Contents of the letter dated 12.06.2008 being

relevant for proper adjudication of the present lis, is extracted

below:

" SACHIVALAYA MARG, BHUBANESWAR Phone: (0674) 2393524, EPBAX: (0674) 2391542, 2390141 Visit us at : www.ori.nic.in /oshb

No.8580/OSHB Date : 12 June, 2008 IE - 124/07

From:- Sri B. Bahinipati, OAS-I(SB) Secretary.

         To         The Director, Housing-cum-
                    Addl. Secretary to Govt.,
                    H & U.D. Department

         Sub:-      Conversion of the post of Officer-on-Spl.

Duty to that of Accounts Officer (General)

Ref:- (1)Govt. in H & U.D. Deptt. letter No.7103 Dt.1.3.1997,No.10960/HUD, Dt.7.4.2000. No.28811/HUD, dt. 8.12.2006

(2) This Office letter No.18518,dt. 29.11.2004, 5465 Dt. 9.3.2005, No.4169/ OSHB,Dt.11.3.2008

Sir,

I am directed to invite a reference to the above mentioned subject and to say that in obedience to Govt. in H & U.D. Deptt. instruction received from time to time, the Board in its 244th Board Meeting held on 12.05.2008 has finally decided to 'convert' an equivalent post of Officer-on-Spl. Duty to that of Accounts Officer (General) for the purpose of providing promotion berth, to Head Accountants in view of increasing work load of O.S.H.B. on accounting matter day by day.

Govt. in H & U.D. Deptt. has already been apprised of the financial implication to be incurred by O.S.H.B. on account of filling up of the post of Accounts Officer (General) from among the Head Accountants vide this Office Letter No.5465 Dtd. 9.3.2005.

The agenda note together with the minutes of the Board thereon is enclosed for kind perusal and reference.

In view of the above, I would request you to kindly look into the matter and necessary Govt. approval on this regard may please be communicated to this office at an early date for taking further course of action at this end.

                                                 Yours faithfully,
         Encl:-As above                               Sd/-
                                                    Secretary"
                                              (Emphasis supplied)

14. From the contents of the said letter dated 12.06.2008 of

the Secretary, OSHB, Bhubaneswar as extracted above so also

the provisions enshrined under the Odisha Housing Board Act,

1968, it is amply clear that OSHB approached the State

Government for creation of post of "Accounts Officer (General)"

in OSHB pursuant to 244th Board Meeting held on 12.05.2008,

vide which it was decided to convert an equivalent post of

Officer on Special Duty to that of Accounts Officer (General) for

the purpose of providing promotional berth to Head

Accountants. Pursuant to the same, sanction was accorded by

the State Government vide communication dated 22.03.2014

with regard to creation of post of Accounts Officer (General) by

way of upgradation/conversion of one post of Head Accountant.

Admittedly, the total sanctioned post of "Head Accountant"

being two, after upgradation of one such post for creation of the

post of Accounts Officer (General) to be filled up by way of

promotion, there is only one post remaining in the said cadre of

Head Accountant for promotion to the said post. The feeder post

for promotion to the said post of Head Accountant is Senior

Accountant, which the Petitioner is holding at present.

Petitioner's prayer in the Writ Petition is to promote him to the

post of Head Accountant by setting aside the ordering portion of

the Minutes of the DPC Meeting held on 25.01.2019, as at

Annexure-11, pertaining to "Head Accountant".

15. The Judgments cited by the learned Counsel for the

Petitioner are not applicable to the facts and circumstances of

the present case. Rather, in Bharat Sanchar Nigam Ltd.

(supra), vide Paragraph-21, it was held as follows:

21. On a careful analysis of the principles relating to promotion and upgradation in the light of the aforesaid decisions, the following principles emerge:

(i) Promotion is an advancement in rank or grade or both and is a step towards advancement to higher position, grade or honour and dignity. Though in the traditional sense promotion refers to advancement to a higher post, in its wider sense, promotion may include an advancement to a higher pay scale without moving to a different post. But the mere fact that both - that is advancement to a higher position and advancement to a higher pay scale - are described by the common term 'promotion', does not mean that they are the same. The two types of promotion are distinct and have different connotations and consequences.

(ii) Upgradation merely confers a financial benefit by raising the scale of pay of the post without there being movement from a lower position to a higher position. In an upgradation, the candidate continues to hold the same post without any change in the duties and responsibilities but merely gets a higher pay scale.

(iii) Therefore, when there is an advancement to a higher pay scale without change of post, it may be referred to as upgradation or promotion to a higher pay scale. But there is still difference between the two. Where the advancement to a higher pay scale without change of post is available to everyone who satisfies the eligibility conditions, without undergoing any process of selection, it will be upgradation. But if the advancement to a higher pay scale without change of post is as a result of some process which has elements of selection, then it will be a promotion to a higher pay scale. In other words, upgradation by application of a process of selection, as contrasted from an upgradation simpliciter can be said to be a promotion in its wider sense that is advancement to a higher pay scale.

(iv) Generally, upgradation relates to and applies to all positions in a category, who have completed a minimum period of service. Upgradation, can also be restricted to a percentage of posts in a cadre with reference to seniority

(instead of being made available to all employees in the category) and it will still be an upgradation simpliciter. But if there is a process of selection or consideration of comparative merit or suitability for granting the upgradation or benefit of advancement to a higher pay scale, it will be a promotion. A mere screening to eliminate such employees whose service records may contain adverse entries or who might have suffered punishment, may not amount to a process of selection leading to promotion and the elimination may still be a part of the process of upgradation simpliciter. Where the upgradation involves a process of selection criteria similar to those applicable to promotion, then it will, in effect, be a promotion, though termed as upgradation.

(v) Where the process is an upgradation simpliciter, there is no need to apply rules of reservation. But where the upgradation involves selection process and is therefore a promotion, rules of reservation will apply.

(vi) Where there is a restructuring of some cadres resulting in creation of additional posts and filling of those vacancies by those who satisfy the conditions of eligibility which includes a minimum period of service, will attract the rules of reservation. On the other hand, where the restructuring of posts does not involve creation of additional posts but merely results in some of the existing posts being placed in a higher grade to provide relief against stagnation, the said process does not invite reservation."

(Emphasis supplied)

16. Since the Opposite Party No.1 sought for creation of post

and a clear cut sanction was accorded for creation of post of

"Accounts Officer (General)" in terms of proviso under Section

10(4) of the Orissa Housing Board Act, 1968, this Court is of the

view that it is not a case of mere upgradation of post of Head

Accountant to the Accounts Officer (General). After such

creation of post by up-gradation, admittedly, there was/is only

one post of Head Accountant remaining with the Opposite Party

No.1 (OSHB) to be filled up by way of promotion, and in view of

provisions enshrined under Section 3(j) of the ORV Act, 1975

and the ORV Rules 1976 made thereunder, the ORV Act and

Rules are not to be followed for promotion to the said single post

of "Head Accountant".

17. From the legal provisions enshrined under Section 10 (4)

of the Odisha Housing Board Act, 1968 read with the

correspondences made between OSHB and the State

Government, including the sanction accorded vide

communication dated 22.03.2014 (Annexure-B), as has been

detailed above, it is amply clear that as required under proviso

to Sub-Section (4) of Section 10 of the Act, 1968, sanction was

accorded by the State Government for creation of post of

Accounts Officer (General) in the scale of pay of Rs. 9300-

34800/- with Grade pay Rs.4600/- by way of upgradation of

one post of Head Accountant, in response to letter dated

12.06.2008 of the Housing Board vide which it was

communicated to Government that Board has decided to

convert on equivalent post to that of Accounts Officer (General)

for the purpose of providing promotional berth to Head

Accountants. After such upgradation, the remaining post of

Head Accountant being one, in view of Sub-Section (f) under

Section 3 of the ORV Act, 1975, this Court is of further view

that the said Act is inapplicable to the case of the Petitioner,

which is the sole basis to make such a prayer for promotion to

the post of Head Accountant applying the provisions of ORV Act,

1975.

18. From the facts and documents on record, as discussed

above, so also judgment of the apex Court, this Court is also of

the view that the stand of the Petitioner that such upgradation

of post of Head Accountant for creation of the post of Accounts

Officer (General) is a mere upgradation simpliciter and does not

form any separate grade or cadre and the candidate continues

to hold the same post of Head Account, is misconceived.

Therefore, all the issues, as detailed above, are answered

herewith against the Petitioner. The Writ Petition, being devoid

of any merit, stands dismissed. No order as to cost.

                                                                            (S.K. Mishra)
Signature Not Verified                                                         Judge
Digitally Signed
Signed by: PADMA CHARAN DASH        Orissa High Court, Cuttack

Designation: Personal Assistant Dated, 5th October, 2023/PCD Reason: Authentication Location: orissa high court cuttack Date: 06-Oct-2023 12:50:47