Prasanna Kumar Jena vs State Of Odisha & Others
2024 Latest Caselaw 8 Ori

Orissa High Court

Prasanna Kumar Jena vs State Of Odisha & Others on 2 January, 2024

Author: Biraja Prasanna Satapathy

Bench: Biraja Prasanna Satapathy

          IN THE HIGH COURT OF ORISSA AT CUTTACK

                    W.P.(C) (OAC) No.1416 of 2014


        Prasanna Kumar Jena              ....                     Petitioner
                                                 Mr. D.K. Panda, Advocate

                               -versus-
        State of Odisha & Others
                                  ....                        Opposite Party
                                                     Mr. S. K. Samal, AGA

                               CORAM:
               JUSTICE BIRAJA PRASANNA SATAPATHY

                                       ORDER

Order No.                            20.12.2023
      08. 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 challenging the order dtd.19.10.2013 so passed by Government-Opposite Party No.1 under Annexure-14. Vide the said order, the claim of the Petitioner to get the benefit of promotion from the date persons similarly situated were given the benefit of promotion from the rank of Section Officer Level-II to Section Officer Level-I basing on the recommendation of the D.P.C dtd.06.05.1999 was rejected.

4. It is the case of the Petitioner that in the D.P.C held on 06.05.1999 to consider the eligibility of Section Officer, Level-II for their promotion to the rank of Section Officer Level-I, Petitioner's case was not considered due to non- availability of adequate CCRs. Subsequently, in the DPC // 2 //

held on 21.2.2000, the case of the Petitioner though was considered and Petitioner was found suitable, but the same was kept in a sealed cover on the ground of pendency of a vigilance proceeding against the Petitioner. When the petitioner was acquitted in the vigilance proceeding vide judgment dtd.12.08.2004, Petitioner was extended with the benefit of promotion with opening of the sealed cover on 09.10.2006 w.e.f. 31.03.2000 i.e. from the date his junior Sri P.C. Bebarta was given such benefit.

4.1. However, since Petitioner's case was not considered in the D.P.C held on 6.5.1999 only on the ground of non- availability of the adequate CCRs, Petitioner claiming consideration of his claim in terms of the proceeding of the D.P.C. dtd.06.05.1999, approached the Tribunal in O.A. No.2464(C) of 2010. The Tribunal vide order dtd.25.04.2013 under Annexure-13, while disposing the matter passed the following order:-

"After hearing both parties, it is clear that the Vigilance case vide G.R. Case No.13/1998(v) of Special Judge (Vigilance), Berhampur, was charge sheeted against the applicant on 10.03.1998. Hence, the sealed cover procedure should have been adopted by the DPC held on 06.05.1999. However, DPC has observed that complete CCRs of the applicant were not available, as a result of which the applicant was not assessed. It has been clarified that the subsequent DPC held on 21.02.2000 found the applicant suitable for promotion on the basis of his CCRs and he was promoted after the applicant's acquittal in the Vigilance case on 12.8.2004. Hence, the CCRs which were placed before the D.P.C dtd.6.5.1999, have been reassessed in the DPC dtd.21.2.2000. In view of the fact that the applicant's case was admittedly not taken up for consideration in the DPC dtd.6.5.1999, it is hereby directed that a review DPC for DPC dt.6.5.99 be convened to consider the case of the applicant for

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promotion on the basis of available CCR placed before the DPC dtd.21.2.2000 and records be reassessed and in case the applicant is found suitable, the applicant shall be restored to his seniority and allowed notional benefits till the date of assumption of the higher charge. His actual financial benefits be calculated after assumption of higher charge and his pensionary dues be raised accordingly. These orders be implemented within a period of three months from the date of receipt of these orders".

4.2. It is contended that the Tribunal in its order dtd.25.04.2013 directed the authorities to conduct a review D.P.C of the D.P.C held on 06.05.1999 and to consider the case of the Petitioner for his promotion basing on the available CCRs placed before the D.P.C held on 21.02.2000. Learned Tribunal also held that the Petitioner if found eligible he shall be restored to his seniority and allowed notional benefit till the date of assumption of the higher charge. The Tribunal also observed that actual financial benefit should be calculated after assumption of the higher charge and pensionary dues be revised accordingly.

4.3. It is contended that in terms of the order passed by the Tribunal, the Department though conducted a review D.P.C of the D.P.C held on 06.05.1999, but on the ground that the Petitioner is not an officer of exceptional merit, in terms of the provisions contained under Rule-8 of Orissa Secretariat Service (Group-B) Rules, 1986, rejected the claim of the Petitioner to get the benefit of promotion to the rank of Section Officer, Level-I.

4.4. Learned counsel for the Petitioner contended that in the D.P.C held on 06.05.199, gradation list of Section Officer Level-II so provided, Petitioner was placed at Sl.

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No.88. Petitioner's case was not considered in the D.P.C held on 06.05.1999 only on the ground that adequate CCRs are not available. But the DPC held on 6.5.1999 while recommending the case of around 82 Officers recommend the names of candidates placed at Sl. Nos.89, 91 and 94 to 96 and they were given the benefit of promotion to the rank of Section Officer Level-I. Out of those 82 persons, who were given such benefit of promotion, 8 candidates were recommended on the ground of having exceptional merit and the rest were given such benefit basing on their suitability and availability of CCRs.

4.5. It is accordingly contended that since around 74 persons were extended with the benefit of promotion basing on the available CCRs and 8 amongst the 82 were recommended having got exceptional merit, Petitioner's claim could not have been rejected on the ground that the Petitioner was not having exceptional merit. It is accordingly contended that the impugned order is not sustainable in the eye of law and requires interference of this Court.

5. Learned Addl. Government Advocate for the State on the other hand made his submission basing on the stand taken in the counter affidavit. It is the case of the Opposite Party that in terms of the provisions contained under the proviso to Rule-8(4) of the 1986 Rules, Petitioner since was not found of having exceptional merit, in the review D.P.C. held pursuant to the order

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passed by the Tribunal, he was not found suitable and accordingly his claim was rejected.

5.1. It is also contended that before the Tribunal Petitioner had taken a specific stand that one Mahendranath Mohanty, who was junior to him was given with the benefit of promotion basing on the recommendation of D.P.C dtd.06.05.1999. But Sri Mahendranath Mohanty was given such promotion on the ground that he was of having exceptional merit. Since as claimed, Petitioner was not of exceptional merit, his claim vis-à-vis Mahendranath Mohanty was not found good and accordingly rejected. Proviso to Rule-8(4) of the 1986 Rules is quoted hereunder:-

"8(4). The names of officers considered fit for promotion to the service shall ordinarily be arranged in the order of their respective position in the cadre of Orissa Secretariat Service (Junior):

Provided that any Section Officer, Level-II who is of exceptional merit may be assigned a place higher than that of the officer senior to him in the said cadre"

6. Having heard learned counsel for the Parties and after going through the materials available on record, this Court finds that in the D.P.C held on 06.05.1999, the case of the Petitioner was not considered only on the ground of non-availability of the CCRs. In the next D.P.C. held on 21.02.2000, Petitioner though was found suitable, but his claim was kept in a sealed cover due to pendency of the vigilance proceeding. After his acquittal in the Vigilance Proceeding on 12.08.2004, Petitioner was given retrospective promotion w.e.f 31.03.2000.

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6.1. Since the case of the Petitioner was not considered in the D.P.C. held on 06.05.1999 only on the ground of non-availability of the CCR, Petitioner approached the Tribunal claiming extension of the benefit of promotion from the date persons similarly situated in terms of the D.P.C recommendation dtd. 06.05.1999 were given such benefit. The Tribunal in its order under Annexure-13, while disposing the matter directed Opposite Parties to conduct a review D.P.C of D.P.C dtd. 06.05.1999. As found from the impugned order, in the review D.P.C so conducted the case of the Petitioner was not considered only on the ground that the Petitioner is not an Officer of exceptional merit. The said plea was taken placing reliance on the provisions contained under the Proviso to Rule-8(4) of the 1986 Rules. This Court finds that in the D.P.C held on 06.05.1999 under Annexure-15, 82 persons were recommended for their promotion to the rank of Section Officer, Level-I. Out of 82 persons so recommended 8 officers were of exceptional merit and rest 74 officers were recommended basing on the available CCR and suitability.

6.2. It is also found from the proceeding of the D.P.C. dtd. 06.05.1999 that persons placed at Sl.Nos.89, 91, 94 to 96 were recommended and extended with the benefit of promotion, though they were not of exceptional merit. Petitioner's position in the rank of Section Officer, level-II, as reflected in the proceeding of the D.P.C dtd.06.05.1999 under Annexure-15 was at Sl. No.88. Since persons with not having exceptional merit and placed at Sl. Nos. 89, 91

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and 94 to 96 were recommended and given the benefit of promotion, the ground on which the claim of the Petitioner has been rejected vide the impugned order dtd.19.10.2013 is not sustainable in the eye of law.

6.3. Therefore, this Court is inclined to quash the order dtd.19.10.2013 under Annexure-14. While quashing the same, this Court directs Opposite Party No.1 to extend the benefit of promotion in favour of the Petitioner from the date Sri Bishnu Charan Rout, the persons placed at Sl. No.89 was given such promotion. Since the Petitioner has retired in the meantime, such benefit be extended on notional basis. However, financial benefit as due and admissible with revision of the pension and other pensionary benefits be extended in favour of the Petitioner. The entire exercise be undertaken and completed within a period of three (3) months from the date of receipt of this order.

7. Accordingly, the Writ Petition stands disposed of.

(Biraja Prasanna Satapathy) Judge

Subrat

Location: HIGH COURT OF ORISSA, CUTTACK