Orissa High Court
Suprava Nayak vs State Of Odisha And Others ... Opposite ... on 2 April, 2025
Author: Aditya Kumar Mohapatra
Bench: Aditya Kumar Mohapatra
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.22705 of 2024
In the matter of the application under Articles 226 and 227 of the
Constitution of India.
Suprava Nayak ... Petitioner
- Versus -
State of Odisha and others ... Opposite Parties
Advocate(s) appeared in this case:-
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For Petitioner ... M/s. Rabinarayan Nayak,
N.K. Sen, S. Sahani,
S. Nayak & C. Sethy
For Opposite Parties ... Mr. Samresh Jena,
Additional Standing Counsel.
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PRESENT:
THE HONOURABLE SHRI JUSTICE ADITYA KUMAR MOHAPATRA
Date of hearing- 21.03.2025 :: Date of judgment : 02.04.2025
Aditya Kumar Mohapatra, J. By filing the present writ petition, the
Petitioner has prayed for issuance of writ of mandamus to the
Opposite Party No.2 with a direction to correct her surname from
"Supravanalini Rout" to "Suprava Nayak" in the seniority list under
Annexure-1. A further prayer has also been made for a direction to
the Opposite Parties to consider the prayer of the Petitioner for
promotion to the post of Assistant Nursing Superintendent keeping
in view her seniority in the gradation list and to give her promotion
w.e.f. the date her immediate junior, namely, Smt. Baijayantimala
Sahoo (Serial No.93 in the common gradation list of Nursing
Officers as on 01.11.2022 under Annexure-6) was given such
appointment with effect from 21.01.2023 under Annexure-4 to the
writ petition. Accordingly, the Opposite Parties be further directed
to grant notional promotion w.e.f. 21.01.2023 along with all
consequential service and financial benefits as is due and
admissible to the Petitioner in terms of the Odisha Nursing Service
(Method of Recruitment and Conditions of Service) Amendment
Rules, 2020. Petitioner has also prayed for a direction to the
Opposite Parties to consider the case of the Petitioner for further
promotion after giving promotion to the post of Assistant Nursing
Superintendent as per the rules.
2. The factual backdrop of the Petitioner's case, in short, is that
the Petitioner was initially appointed in service on 04.01.1991 by
the Director of Health Services and she was posted at S.C.B.
Medical College and Hospital, Cuttack. While working as such,
the surname of the Petitioner was changed from "Suprava Nalini
Rout" to "Suprave Nayak" by order of the Superintendent, S.C.B.
Medical College & Hospital on 20.08.2005. While the matter stood
thus, on 04.11.2020, the Orissa Nursing Service (Method of
Recruitment & Conditions of Service) Rules was amended thereby
prescribing a fresh criteria for promotion. On 25.11.2022, a final
common gradation list of the Nursing Officers was prepared and
published by the Opposite Party No.2.
3. While this was the position, on 29.12.2022, a DPC meeting
was convened and held to consider the case of the Nursing Officers
for promotion to 381 posts of Assistant Nursing Superintendent. It
appears that the Petitioner, along with other candidates in the
gradation list, were eligible to be considered for such promotion as
they were satisfying the eligibility criteria as has been laid down in
the amended rules of the year 2020. Finally, vide order dated
21.01.2023 promotion orders in respect of 77 Nursing Officers to
the post of Assistant Nursing Superintendent was issued without
considering the case of the Petitioner for promotion to the post of
Assistant Nursing Superintendent. Thereafter, the Petitioner
submitted a representation on 26.01.2023 before the Opposite Party
No.2. Such representation was duly forwarded to the office of the
Opposite Party No.5 for carrying out necessary correction of the
name of the Petitioner as has been reflected in the final gradation
list.
4. The pleadings further reveal that another restructuring of
Nursing Cadre took place in the year 2023. Accordingly, a
restructured gradation list was published by the Health & Family
Welfare Department on 04.12.2023. On 18.04.2024, the Health &
Family Welfare Department, Government of Odisha vide
Resolution No.9661 created extra promotional posts of Nursing
personnel. On 04.06.2024, the Petitioner again submitted another
representation before the Opposite Party No.2 through the Opposite
Party No.5 to consider her case for promotion to the next higher
post. Since no action was taken, the Petitioner was compelled to
approach this Court by filing W.P.(C) No.15277 of 2024.
5. A coordinate Bench of this Court vide order dated 05.07.2024
disposed of the above noted writ petition with a direction to the
Opposite Party No.2 to consider the representation of the Petitioner
within a period of six weeks. Although the order passed by the
coordinate Bench in the above noted writ petition was
communicated to the competent authority, it is alleged by the
Petitioner that no decision was taken on the said representation of
the Petitioner under Annexure-9 dated 04.06.2024. Learned
counsel for the Petitioner, at this juncture, contended that since the
Petitioner is going to retire from service on attaining the age of
superannuation w.e.f. 30.04.2025 and the Petitioner has no other
alternative, she has approached this Court by filing the present writ
petition.
6. Learned counsel for the Petitioner, at the outset, contended
that the Petitioner has rendered continuous service for more than
three decades as a Nursing Officer. He further contended that
although the Petitioner is eligible to be promoted to the post of
Assistant Nursing Superintendent in view of the amended rule of
the year 2020 and the Petitioner satisfies all the eligibility criteria,
the Opposite Parties have committed an illegality by not
considering her case along with all eligible candidates. He further
contended that vide order dated 21.01.2023, although 77 Nursing
Officers were given promotion to the post of Assistant Nursing
Superintendent, however, out of the aforesaid 77 officers, 46
Nursing Officers are junior to the present Petitioner and they have
been given promotion ignoring the just and fair case of the present
Petitioner. In such view of the matter, learned counsel for the
Petitioner contended that the Opposite Parties have grossly violated
the provisions contained in Article 14 and 16 of the Constitution of
India to the effect that the case of the Petitioner has not been
considered for promotion while giving promotion to his juniors
although no judicial or criminal proceeding is pending against the
present Petitioner. In the aforesaid context, learned counsel for the
Petitioner finally contended that the Opposite Parties be directed to
give promotion to the Petitioner to the post of Assistant Nursing
Superintendent along with all consequential service and financial
benefits as expeditiously as possible, preferably before the
Petitioner takes retirement from service.
7. Learned counsel for the State, on the other hand, referring to
the counter affidavit dated 11.03.2025 admitted the fact that the
Petitioner has been working as a Nursing Officer at SVP PG
Institute of Pediatrics (Sishu Bhawan), Cuttack on being deployed
from the S.C.B. Medical College & Hospital, Cuttack. Further,
referring to paragraph-5 of the counter affidavit, learned counsel for
the State contended that Opposite Parties No.1 and 2 have
categorically stated that the case of the Petitioner could not be
considered by the DPC held on 29.12.2022 due to non-availability
of documents like CCRs, Non-pendency of Departmental
Proceeding, Vigilance Clearance Certificate and Property
Statement etc.
8. Similarly, in Paragraph-6 of the counter affidavit, it has been
stated that the name of the Petitioner has already been changed in
the meantime and her surname has been replaced as 'Nayak' in
place of 'Rout' vide order No.13127 dated 20.08.2005 of the
Superintendent, S.C.B. MCH, Cuttack. Since such order had not
been communicated to the office of the Directorate of Nursing,
Odisha, no follow up steps were taken by the Directorate of
Nursing. It has also been stated that no representation/objection
has been received by the Opposite Party No.1 and 2 with a prayer
for correction of the surname. As such, name of the Petitioner has
been continued to be shown as "Suprva Nalini Rout" instead of
"Suprava Nayak" in the gradation list published on 25.11.2022.
9. Learned counsel for the State further contended that due to
non-availability of required documents, as has been indicated in the
preceding paragraph, the case of the Petitioner was not considered
for promotion to the post of Assistant Nursing Superintendent
while considering the case of other eligible candidates and some of
them are admittedly junior to the Petitioner. He further contended
that since the cadre has been restructured in the meantime, the next
promotional post of the Petitioner would be Senior Nursing Officer
instead of Assistant Nursing Superintendent. Accordingly, it has
been stated that the representation of the Petitioner under
Annexure-9 with a prayer for promotion to the post of Assistant
Nursing Superintendent is legally unsustainable.
10. Further, referring to the proceeding of the DPC meeting dated
29.12.2022 under Annexure-7 to the writ petition, learned counsel
for the State contended that while giving promotion to 77 eligible
Nursing Officers to the post of Assistant Nursing Superintendent,
the case of the remaining officers, where the service records were
not placed before the DPC, have not been considered and the same
was deferred to be considered in a review DPC within 30 days from
the date of DPC meeting which was held on 29.12.2022. With
regard to the convening of review DPC meeting, learned counsel
for the State contended that the same could not be convened before
issuance of Resolution dated 04.12.2023 of the Government of
Odisha in Health & Family Welfare Department due to heavy work
load, shortage of experienced employee and the some
administrative inconvenience.
11. Furthermore, with regard to the correction of surname, he
contended that necessary steps have been taken by the Directorate
keeping in view the order dated 20.08.2005 passed by the
Superintendent, SCB MCH, Cuttack while publishing the revised
gradation list. In reply to the compliance of the order passed by
this Court in the previous writ petition on 05.07.2024, learned
counsel for the State contended that the representation of the
Petitioner has been disposed of by passing a speaking and reasoned
order on 09.12.2024 under Annexure-A/2 to the counter affidavit.
Finally, learned counsel for the State submitted that in view of the
restructuring of the cadre pursuant to the Resolution dated
04.12.2023 of the Government of Odisha in Health & Family
Welfare Department, the Petitioner cannot be given promotion to
the post of Assistant Nursing Superintendent. On such ground,
learned counsel for the State submitted that the writ petition is
devoid of merit and, as such, the same should be dismissed.
12. Heard learned counsels appearing for both the sides. Perused
the pleadings of the respective parties as well as materials placed
before this Court for consideration.
13. Having heard the learned counsels appearing for both the
parties, on a careful examination of the pleadings of the respective
parties, further keeping in view the nature of dispute involved in
the present writ petition, this Court observes that the question that
is required to be adjudicated in the present writ petition is as to
whether the Petitioner is entitled to get promotion to the post of
Assistant Nursing Superintendent keeping in view the fact that 46
junior Nursing Officers have been given such promotion, in the
meantime, pursuant to the DPC proceeding dated 29.12.2022 under
Annexure-7, while deferring the case of the Petitioner due to
absence of CCRs and other records of the Petitioner? The second
question that also requires adjudication is as to whether after
restructuring of the cadre pursuant to the Resolution dated
04.12.2023 of the Government of Odisha in Health & Family
Welfare Department the case of the Petitioner can be considered for
promotion to the post of Assistant Nursing Superintendent under
the unamended cadre rules?
14. On a careful analysis of the factual background of the present
case and keeping in view the submissions made by the learned
counsels appearing for both the sides, this Court observes that most
of the factual aspects are not disputed by either side. The only
dispute that remains to be adjudicated is with regard to the
applicability of the old cadre rule to the case of the Petitioner and
the conduct of the Opposite Parties in not considering the case of
the Petitioner in the DPC meeting held on 29.12.2022 under
Anexure-7 to the writ petition. In the aforesaid context, this Court,
on a careful analysis of the materials on record, observes that the
Opposite Parties in their counter affidavit have categorically
admitted the fact that although the Petitioner was eligible to be
promoted to the post of Assistant Nursing Superintendent,
however, her case was not considered due to non-availability of
CCRs and departmental proceeding/criminal proceeding/vigilance
clearance and property statement. It has already been admitted by
the Opposite Parties that some of the candidates, who are junior to
the Petitioner have been given promotion to the post of Assistant
Nursing Superintendent.
15. In the aforesaid factual backdrop, this Court is of the
considered view that conduct of the Opposite Parties in not
considering the case of the Petitioner for promotion to the post of
Assistant Nursing Superintendent is grossly illegal, arbitrary and
discriminatory in nature inasmuch as the juniors to the Petitioner
were admittedly given promotion to the post of Assistant Nursing
Superintendent in the DPC proceeding held on 29.12.2022 under
Annexure-7 to the writ petition prior to amendment of the cadre
rules. Further, on perusal of the DPC proceeding under Annexure-
7 to the writ petition, it appears that the case of the Petitioner was
deferred to be considered in a special DPC within thirty days from
the date of the DPC meeting held on 29.12.2022 under Annexue-7
to the writ petition. However, no such special DPC/review DPC
was ever convened by the Opposite Parties, however, in the
meanwhile the cadre rules were amended by the Opposite Parties.
16. Additionally, the Opposite Parties have taken a ground that
due to non-availability of CCRs/Departmental Proceedings/
clearance, the case of the Petitioner was not considered along with
other eligible candidates in the DPC meeting held on 29.12.2022.
Nowhere in the counter affidavit the Opposite Parties have taken a
stand that the Petitioner was not eligible for consideration for
appointment to the post of Assistant Nursing Superintendent.
Therefore, the said question rests there and no further discussion is
required on the aforesaid issue. As such, this Court would now
proceed by accepting the fact that the Petitioner was eligible by the
time the DPC meeting was convened on 29.12.2022.
17. Furthermore, it is a settled position of law that the records are
to be forwarded by the controlling authority to the DPC for
consideration of the case of all the eligible employees/officers for
the next higher post that too without any discrimination or bias. In
the event such records/documents are not placed before the DPC in
respect of any particular employee, the blame cannot put on the
concerned employee. It is needless to mention here that the entire
responsibility of forwarding the records/documents to the DPC
vests entirely on the controlling authority of the concerned office.
Therefore, the ground that such documents were not available
cannot be taken by the Opposite Parties collectively to deny the
legitimate claim of the Petitioner for promotion to the next higher
post.
18. It is apt to mention here that law on promotion in service
matter has progressed a lot in the meantime by virtue of several
judgments of this Court as well as the Hon'ble Supreme Court.
The right to be considered for promotion to the higher post has
been accepted as a fundamental right guaranteed to the concerned
officers/employees under Article 14 and 16 of the Constitution of
India, although the same may not be available when a claim is
made directly for promotion to a particular post. Definitely non-
consideration of a case of an employee/officer for promotion,
despite the fact that such employee/officer was eligible for such
promotion, is definitely hit by the principle laid down in Articles 14
and 16 of the Constitution of India. By applying the aforesaid
principle to the case of the present Petitioner, this Court has no
hesitation in arriving at the conclusion that the conduct of the
Opposite Parties, in so far as the present Petitioner is concerned, is
definitely hit by Article 14 and 16 to the Constitution of India.
19. Next, with regard to applicability of the Resolution dated
04.12.2023 of the Government of Odisha in Health & Family
Welfare Department, i.e. restructuring of the cadre, this Court
observes that the restructuring took place much after the DPC
meeting was held on 29.12.2022. While the case of the Petitioner
should have been considered along with other eligible candidates
including some of the juniors to the Petitioner, this Court is of the
considered view that irrespective of the restructuring of the cadre,
the case of the Petitioner should have been considered for the post
of Assistant Nursing Superintendent inasmuch as 46 juniors have
been given promotion to such post in the DPC meeting that was
held on 29.12.2022. Therefore, it is clear that such conduct of the
Opposite Parties is grossly discriminatory in nature.
20. In such view of the matter, this Court has no hesitation in
coming to a conclusion that the Opposite Parties should have
convened the review DPC as has been mentioned in the
proceedings meeting of the DPC held on 29.12.2022 under
Annexure-7 to the writ petition. The explanation given in the
counter affidavit with regard to the non-holding of such
review/special DPC appears to be a lame excuse given by the
Opposite Parties to defend their own illegal conduct in the shape of
their failure to conduct such special review DPC.
21. In view of the aforesaid analysis of the factual position as
well as the principle of law involved in the present writ petition,
this Court is of the considered view that the Opposite Parties have
committed serious illegality by not convening the special/review
DPC within thirty days from the date the last DPC was convened
on 29.12.2022 under Annexure-7 to the writ petition.
22. In view of the aforesaid analysis, the present writ petition is
hereby allowed. The Opposite Parties are directed to convene the
special/review DPC within a period of thirty days from today and
give promotion to the Petitioner to the post of Assistant Nursing
Superintendent. Further, it is directed that such promotion to the
post of Assistant Nursing Superintendent shall be given with effect
from the date the immediate junior to the Petitioner in the final
gradation list was given such promotion.
23. In view of the aforesaid direction, this Court deems it proper
to give a further direction that the Petitioner be paid all her service
and financial benefits as is due and admissible to her consequent
upon her promotion to the post of Assistant Nursing
Superintendent, as has been directed hereinabove, by calculating
the same within a period of thirty days from the date of giving such
promotion to the Petitioner.
24. Accordingly, the writ petition stands allowed. However,
there shall be no order as to costs.
(Aditya Kumar Mohapatra)
Judge
Orissa High Court, Cuttack
The 2nd April, 2025/Debasis Aech, Secretary
