Debi Prasad Nand vs State Of Odisha And Others
2023 Latest Caselaw 10950 Ori

                IN THE HIGH COURT OF ORISSA AT CUTTACK
                             W.P.(C) No. 20344 OF 2021
            Debi Prasad Nand                   ....          Petitioner(s)
                                                       Mr.S.K.Das,Adv.

                                         -versus-

            State of Odisha and others              ....       Opposite Party(s)
                                                            Mr.H.M.Dhal,AGA

                      CORAM:
                      JUSTICE SIBO SANKAR MISHRA
                                      ORDER

Order No.                            08.09.2023





   04.       1.    Heard learned counsel for the Parties.

2. The Petitioner has filed the present Writ Petition inter alia

seeking a direction to the Opposite Parties to give him promotion to

the post of Deputy Executive Engineer and then Executive Engineer

from the date on which his immediate juniors have got the promotion.

Although DPC has recommended the promotion but it has been

withheld and sealed cover procedure has been adopted owing to the

pendency of criminal prosecution against him. There is no

departmental proceedings pending against him.

3. The said Writ Petition has been heard by the learned Single

Judge on 22.07.2021 and by way of a reasoned order, the Writ

Petition was allowed. The said order is reproduced for ready

reference:-

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<Heard learned counsel for the parties.

The petitioner has filed this application seeking direction to the opposite parties to give him promotion to the post of Deputy Executive Engineer from 18.12.2014 and Executive Engineer from 31.08.2017, the date from which his immediate juniors got such promotion, and to grant all consequential service and financial benefits including further promotion within a stipulated time. Moot question involves if a promotion of employee can be withheld for indefinite period on the premises of pendency of vigilance proceeding over a period of decades. This Court considering such situation has already settled the position of law keeping the sealed cover promotion aspect in view of pendency of the Disciplinary Proceeding and/or Vigilance Proceeding for decades becomes bad. Fact involving the case reveals that there is no disciplinary proceeding against the petitioner except the vigilance proceeding pending in the court of Cuttack Vigilance T.R. No.35/12 arising out of Cuttack Vig. P.S. Case No.44/2007. Involving the allegation against the petitioner, it appears the Vigilance Proceeding initiated in the year 2007, but charge- sheet involving the Vigilance case was submitted much after. However the said vigilance case is yet to be disposed of. Pleading also further made clear that no Disciplinary Proceeding pending against the petitioner. In this background of case an allegation is made that promotion of the petitioner taking effect in the year 2019 has been kept in sealed cover only on the premises that a vigilance proceeding involving the petitioner is pending since 2007. For the settled position of law, this Court in disposal of the writ petition observes, petitioner cannot suffer for the long pendency of the vigilance proceeding. It is also not known when the Vigilance Proceeding initiated in the year 2007 will come to end. It is keeping in this view, this Court in disposal of the writ petition directs the Principal Secretary to Govt. of Odisha, Water Resources Department, Bhubaneswar-O.P. No.1 to give promotion to the petitioner to the rank of Executive Engineer (Civil) from the date of his juniors and batchmates got such promotion. However the promotion of the petitioner as per direction of this Court shall be subject to the ultimate outcome in the Vigilance Proceeding. Further it is also clarified that the promotion given to the petitioner to the rank of Executive Engineer (Civil) shall not confer equity in the event, he will ultimately lose the Vigilance Proceeding. Entire exercise shall be completed within four weeks from the date of communication of this direction. It is also clarified that upon promotion, petitioner shall also be entitled to all consequential benefits.

Writ the above observation, the writ petition thus stands disposed of.=

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4. The Opposite Party-State preferred intra-court Appeal being

W.A. No.719 of 2022 inter-alia contending that the learned Single

Judge while allowing the Writ Petition has not afforded any

opportunity of being heard or allowed the Opposite Party to even file

para-wise comment to the Writ Petition. Therefore, the Division

Bench allowed the Writ Appeal vide its order dated 27.02.2023 only

on the ground that the State-Opposite Party should be allowed to file

para-wise reply to the Writ Petition and they should be heard. After

the Division Bench relegated the matter to the Single Judge, this

matter was fixed for hearing on 15.05.2023. On 15.05.2023, the

learned Single Judge passed the following order:-

<On the request of the learned Additional Standing Counsel for the State, four weeks time is allowed to file Counter Affidavit subject to obtaining necessary permission from the Division Bench that has passed order an 27.02.2023, failing which it is made clear that the matter shall be heard and disposed of on the basis of the available pleadings.

List this matter in the week commencing from 3rd July, 2023.=

Even after affording an opportunity to file counter affidavit to

the Writ Petition, the Opposite Party-State has not yet filed the

counter affidavit. The matter was again listed on 05.07.2023 before

the learned Single Judge, one more opportunity was sought by the

learned State Counsel to file counter affidavit, even then the counter

affidavit has not been filed. It appears, the Opposite Parties are not

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interested to avail the opportunity being afforded by the Division

Bench of this Court. Therefore, this matter is taken up for hearing

today.

5. Mr. Dhal, learned Additional Government Advocate

vehemently opposes the prayer made by the Petitioner and contended

that no ad-hoc promotion pending vigilance proceeding could be

given to the Petitioner in view of the judgment of the Division Bench

of this Court passed on 11.05.2023 in W.A. No.805 of 2021 and batch

of Writ Appeals.

6. Per contra, Mr. S.K. Das, learned counsel for the Petitioner

relied upon the judgment of the Division Bench of this Court passed

on 06.05.2022 in W.P.(C) No.18500 of 2015, which squarely covers

his case. In the said case as well, pending vigilance proceedings

although the DPC had recommended, the promotion of the Petitioner,

but the same was withheld keeping in the sealed cover procedure.

Therefore, the Division Bench of this Court had directed to open the

sealed cover and grant promotion accordingly.

7. The judgment relied upon by learned counsel for the State is

clearly distinguishable from the fact of the present case. In those

cases the Petitioners claimed to have contended that in the guise of

pendency of the criminal proceeding in the vigilance court, no

promotion is being granted to them. Therefore, owing to the delayed

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prosecution, at least the Petitioners should have been granted ad-hoc

promotion awaiting the outcome of the criminal prosecution. The

Division Bench thus held that there is no legal basis to support the

claim of ad-hoc promotion and accordingly disallowed the prayer of

the Petitioners in those batch of cases. But in the instant case the

factual scenario is quite distinguishable from the facts of those cases.

In the present case, the Petitioner is claiming promotion for which

DPC has already been recommended his case for promotion,

however, it's not given effect and sealed cover procedure has been

adopted owing to the pendency of the criminal proceedings.

8. Moreover, in the present case, the vigilance proceeding was

initiated way back in the year 2007 and the trial of the proceeding is

moving in the snails pace. The prayer of the Petitioner regarding the

consideration for promotion is his time bound right and delay at the

instance of the State would cause serious deprival of his rightful

claim.

Unexplained prolongation of criminal trial violates the

constitutional rights of an accused and denial of statutory or any other

right for that matter, for a delinquent officer/government servant

impending such delayed trial is indeed a case of double jeopardy.

Matching the facts of the present case, the Hon'ble Supreme

Court while dealing with the issues in subject has been pleased to

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held in the matter of Union of India and others Vrs. K.V.

Jankiraman and others reported in (1991) 4SCC 109 that

irrespective of pendency of criminal cases, the Petitioner has

continued to serve and mere pendency of criminal case cannot be

taken as ground to delay the promotion to the Petitioner nor the

Competent Authority can withhold the recommendation of the

Petitioner indefinitely on the ground of adopting the sealed cover

procedure during the pendency of criminal proceedings.

9. Therefore, in view of the foregoing circumstance, I feel it

appropriate to allow the Writ Petition and directing the State-

Opposite Party No.1 to give promotion to the Petitioner to the rank of

the Executive Engineer (Civil) from the date of his juniors and batch-

mates got such promotion. However, it is made clear that the

promotion of the Petitioner would be subject to the outcome of the

vigilance proceeding, which is pending in the Court of the Additional

Special Judge (Vigilance), Cuttack in T.R. Case No.35 of 2012.

10. With the above direction, the Writ Petition stands disposed of.

(S. S. Mishra) Judge Swarna Signature Not Verified Digitally Signed Signed by: SWARNAPRAVA DASH Reason: Authentication Location: High Court of Orissa Date: 13-Sep-2023 11:09:01