Orissa High Court
Pradeep Kumar Barik vs State Of Odisha & Ors. ..... Opposite ... on 16 April, 2025
Author: A.K. Mohapatra
Bench: A.K. Mohapatra
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.2426 of 2022
An application filed under Articles 226 and 227 of the
Constitution of India.
Pradeep Kumar Barik ..... Petitioner
Mr. G.Mukharjee, Senior
Advocate.
-versus-
State of Odisha & Ors. ..... Opposite Parties
Mr. M.R.Mohanty, AGA.
CORAM:
JUSTICE A.K. MOHAPATRA
_____________________________________________________
Date of Hearing : 06.11.2024 | Date of Judgment: 16.04.2025
______________________________________________________
A.K. Mohapatra, J. :
1. The present Writ Petition has been filed by the
Petitioner challenging the Notification dated 29.12.2021 (vide
Notification No.RDMCON-MISC-0014-2020 39619/R&DM)
passed by the Revenue & Disaster Management Department,
Odisha, with a prayer for a direction to the Opposite Parties to
appoint the Petitioner in the post of Odisha Revenue Service,
Group- B in Level-10 in pursuance of the Notification dated
18.01.2020 and with a further prayer for a direction to include
the name of the petitioner in the abovementioned Notification
No.39619/R&DM dated 29.12.2021, passed by the Revenue &
Disaster Management Department, Odisha.
FACTS OF THE CASE
2. The essential facts leading to the filing of the present
writ petition are briefly outlined hereinbelow. Initially the
Petitioner was appointed as a Senior Revenue Inspector in
Kujanga Tahasil, Jagatsinghpur. Thereafter, the Board of
Revenue, Odisha vide its letter No.1059/CS dated 18.11.2020
(under Annexure-1 to the present writ petition), issued a letter to
all Revenue Divisional Commissioners/Inspector General of
Registration Odisha, Cuttack/ Director of Land Records and
Survey and consolidation Odisha, Cuttack for recruitment to the
post of ORS Group-B by the way of promotion, for the
recruitment year 2020. The recruitment, as per the aforesaid
letter dated 18.11.2020, was to be made for a total of 188 posts,
out of which 129 posts are in the UR category, 21 posts in the
SC category and 38 posts in the ST category. Such posts belong
to the cadre of Odisha Revenue Service Group-B (herein
referred to as "ORS Group-B") by the way of "promotion"
under Rule 4(b) of the Odisha Revenue Service (Recruitment)
Amendment Rule, 2020.
3. The promotion was to be made from amongst the
officers having outstanding merit from the departments and
subject to fulfilment of the eligibility criteria as enshrined in the
aforesaid letter dated 18.11.2020. The requisite eligibility
criteria, as per the aforesaid letter, is reproduced herewith for
better appreciation;
" a. He /She is a graduate and has worked at least 5
years in one or-more than one post taken together
as Consolidator Grade-1, Kanungo, Revenue
Supervisor, Revenue Inspector or Ministerial
Officer under Board of Revenue/RDCs/Collectors
and other Revenue Offices as on 01.01.2020.
b. Has passed Departmental Examination, if any.
c. Not more than 53 years of aged as on
01.01.2020."
4. Upon receipt of the aforesaid letter dated 18.11.2020,
the Revenue Divisional Commissioner, Central Division,
Odisha, Cuttack wrote a letter on 20.11.2020 (Annexure-2 to the
present writ petition) to all Collectors under Central Division,
Cuttack with regard to the aforesaid recruitment to Odisha
Revenue Service Group-B. By virtue of the aforesaid letter
dated 20.11.2020, the Collectors were requested to send
recommendation of all eligible candidates in the prescribed
format with the attested CCRs of the relevant period and the list
of the recommended candidates with relevant data should be
arranged as per their seniority following the principle laid down
in Rule-8 of the Odisha Revenue Service (Recruitment) Rule,
2021, which is quoted hereinbelow;
"8. Preparation of Gradation List for Promotion:-
(1) For the purpose of consideration of promotion
to the service under clause (b) of rule 4 a
common gradation list of eligible officers shall
be prepared by the Secretary, Board of Revenue,
Orissa on the basis of their date of appointment
to their respective cadres:
Explanation - While preparing the
common Gradation list the officers in higher pay
scale or with higher grade pay in a pay band
will be placed above those in the lower pay
scale or lower grade pay in same pay band.
Provided that the inter-se-seniority
fixed in their respective cadre shall not be
violated.
Provided further that in case, the date
of appointment of two or more officers happens
to be the same, the person elder in age shall be
placed above the younger."
Thereafter, the Office of the Tahasildar Kujang,
Jagatsinghpur issued a letter No.4069 dated 01.12.2020 (under
Annexure-3) to the Deputy Collector, Establishment Section,
Collectorate, intimating him about the aforesaid recruitment.
5. After getting such intimation, the Collector
Jagatsinghpur, vide his letter No.13833/Estt dated 10.12.2020 (a
truecopy of which has been reproduced under Annexure-4),
issued a letter to the Secretary, Revenue Divisional
Commissioner (Central Division), Cuttack for recommending
names of the eligible Revenue Supervisors, Revenue Inspectors
and Revenue Ministerial Officers of the district for recruitment
to the posts of ORS Group-B, by way of promotion for the year
2020, under Rule-4(b) of Odisha Revenue Service
(Recruitment) Rule-2011 and Odisha Revenue Service
Recruitment (Amendment) Rules-2017. It is in this list that the
name of present Petitioner finds place at SL No.2 in the column
of Ministerial Officer. In the meantime, the Office of the
Collector and District Magistrate, Jagatsinghpur (Establishment
Section) vide its Order No.13511/Estt, dated 23.11.2021,
promoted three Senior Revenue Assistants to the post of Section
Officers in level-9 of the pay matrix, as specified in the first
schedule of the ORSP Rule, 2017, with the usual D.A and other
allowances from time to time. The present Petitioner, in
pursuance of the aforesaid letter, has also been promoted as
Section Officer in Kujanga Block.
6. While the matter stood thus, the department of
Revenue and Disaster Management of Odisha, pursuant to the
letter dated 18.11.2020, issued the impugned Notification No.
39619/R&DM, dated 29.12.2021 (under Annexure-6 to the
present writ petition), thereby appointing 153 candidates to the
post of ORS Group-B, in Level-10 of Pay Matrix of ORSP
Rules, 2017, leaving behind the present Petitioner. It is the
aforesaid notification that is the primary cause of grievance of
the present Petitioner and the Petitioner has approached this
Court challenging his non-inclusion in the select list.
7. Heard learned senior counsel representing the
Petitioner and learned Additional Government Advocate.
Perused the writ application and the documents annexed thereto.
CONTENTIONS OF THE PETITIONER
8. Learned Counsel for the Petitioner at the outset
contended that the Petitioner has been unfairly and unjustly
excluded from the impugned notification dated 29.12.2021
despite possessing more experience and having an excellent
career record as reflected in the CCRs. To illustrate the
Petitioner's outstanding performance rendered throughout his
unblemished service career (i.e. from 2012-13 to 2018-19), the
Learned Counsel appearing on behalf of the Petitioner has
drawn attention of this court to the NOC from the Vigilance
department and the Petitioner's Character Roll Certificates
under Annexure-7 series. Moreover, the Learned Counsel for the
Petitioner has also put forth the argument that even though the
Petitioner had already satisfied all the eligibility criteria set out
by the state government in the notification dated 18.11.2020
(under Annexure-1 to the present writ petition), the Opposite
Parties have unjustly selected candidates junior to the Petitioner
without considering the eligibility of the Petitioner. Moreover,
Learned Counsel appearing on behalf of the Petitioner has
clarified that the Petitioner is challenging the impugned
notification dated 29.12.2021 for the non-inclusion of his name
and no prayer has been made for quashing of the said
notification.
9. Furthermore, with regard to the seniority of the
Petitioner, the Learned Counsel appearing on behalf of the
Petitioner referred to para 7 of the additional affidavit. Therein,
the Learned Counsel for the Petitioner has compiled a table of
service particulars of candidates at Sl Nos.41, 42, 59, 206, 215,
234 as compared to the Petitioner. Referring to the aforesaid
table, the Learned Counsel for Petitioner contended that the
Petitioner has rendered 22 years of service and is senior to all
the other officers referred to in the aforesaid document. Ergo,
the Petitioner should not have been left out of the promotion to
the rank of ORS Group-B. In order to further substantiate his
claims, the Learned Counsel appearing on behalf of the
Petitioner has also placed reference on the judgement by a
coordinate bench of this court in Jagannath Aich v. State of
Odisha and Ors. bearing W.P.(C) OAC No.1380 of 2013,
delivered on 10.08.2021.
10. Additionally, referring to Annexure-B/2 to the State's
counter affidavit, the Learned Counsel appearing on behalf of
the Petitioner alleges that the aforesaid document, which is the
common gradation list dated 05.11.2021, and has been filed by
the Opposite Parties, is an incomplete document. Furthermore,
referring to the Remarks column of Sl. No.200 (i.e. the
Petitioner), the Learned Counsel for the Petitioner contended
that the negative remarks mentioned therein - with respect to the
letter No.886 dated 06.08.2021 - are wholly unknown to the
Petitioner and such adverse remarks were never even
communicated to the Petitioner. In fact, it has been contended
that the Petitioner has never faced any Disciplinary Proceeding
or any Vigilance Proceeding throughout his service carrier.
11. Moreover, the Learned Counsel appearing on behalf of
the Petitioner has submitted that the Collector, Jagatsinghpur
had earlier promoted the petitioner to the post of Section Officer
in Level-9 of the pay matrix (as per Annexure-5 to the Writ
Petition). Therefore, it is the contention of the Learned Counsel
appearing on behalf of the Petitioner that had there been any
actual adverse remarks against the Petitioner, as has been
alleged in the remarks column vide letter No.886 dated
06.08.2021, then the Petitioner would not have been given the
aforesaid promotion to the post of Section Officer earlier. As
such, it was contended by the Learned Counsel appearing on
behalf of the Petitioner that such adverse entries appear to be an
act to illegally deprive the Petitioner of his legitimate claim for
promotion.
12. Furthermore, the Learned Counsel for the Petitioner
has the drawn the attention of this court towards the
contradictory stance taken by the Opposite Parties. Learned
counsel for the Petitioner, in this regard, has specifically
contended that in the Additional Counter Affidavit (specifically
in paragraph-6 therein), it has been stated that the three people,
namely Soumendra Kumar Tej, Ranjan Ku Sahoo and Abhay
Ku Swain, who have been placed above the Petitioner at Serial
no.41, 42 and 59 respectively in the gradation list, are all at level
9 whereas the Petitioner is at Level 7. However, in the very next
paragraph, the Opposite Parties have contradicted themselves by
stating that the Petitioner has been placed at level 8 as on
01.01.2020. Addressing the aforesaid contradictions pleaded by
the Opposite Parties in their Counter and additional counter, the
Learned Counsel appearing on behalf of the Petitioner has
referred to Annexure-5 to the present writ petition and
contended that firstly, with regard to the grade pay of the
Petitioner, he is at level 9 and not level 7 or level 8 as has been
claimed by the Opposite Parties.
13. Next, again referring to the Counter Affidavit by the
Opposite Parties, the Learned Counsel for the Petitioner
contended that the Opposite Parties have stated in their counter
affidavit that three persons - namely, Nihar Ranjan Behera,
Dinesh Ku Pradhan and Subrat Ku Barik - have all been given
promotion despite being placed below the Petitioner in the
common gradation since they have 5 years of "Outstanding"
CCRs. In reply to such contention of the Opposite Parties, the
Learned Counsel appearing on behalf of the Petitioner referred
to the statement of service particulars of Revenue Ministerial
Staff annexed to the present writ petition (at page 91/Annexure-
4), and contended that the Petitioner has complete CCRs of 7
(seven) years beginning from 2012 till 2019 with outstanding
merit. Moreover, referring to the 'statement of CCR' contained
in the aforesaid document, Learned Counsel appearing for the
Petitioner submitted that the said documents reveal that the
Petitioner possess outstanding CCRs for the period spanning
from 01.04.2014 to 31.03.2019, i.e. 5 completed years of CCR.
Therefore, it was submitted by the Learned Counsel appearing
on behalf of the Petitioner that the contentions of the Opposite
Parties that the Petitioner falls short of the 5 completed years of
outstanding CCR is patently false and contrary to the documents
on record
14. To lend further credibility to the Petitioner's stance and
his rightful claim for promotion to the post of ORS Group-B,
the Learned Counsel for the Petitioner referred to Annexure-8 to
the writ petition and contended that the said document suggests
that the Petitioner joined in the feeder post of the ORS cadre on
01.12.1997. Therefore, the Petitioner is senior to all the junior
candidates who have been included in the final list under
Annexure-6. For better appreciation, a list of such junior
candidates have been reproduced by the Learned Counsel for the
Petitioner in paragraph 9 of the Rejoinder filed by the Petitioner.
15. Additionally, the Learned Counsel appearing on behalf
of the Petitioner, referring to Annexure-1 to the writ petition,
has contended that the Revenue Divisional Commissioner i.e.
Opposite Party No. 3 is only the Scrutiny Authority and the
Opposite Party No.4 has given 7 years of outstanding CCRs, i.e.
from 2012-13 to 2018-19, in favour of the petitioner. Hence, the
question of even possessing less than 5 years of outstanding
CCRs does not even arise in the case of the Petitioner. The
Learned Counsel appearing on behalf of the Petitioner further
submitted that even accepting, for the sake of the argument, but
not conceding that the Petitioner's 5 years of CCRs are not
available, then it is the duty of the Opposite Party-authority to
take into consideration the CCRs of preceding years so as to
make it 5 completed years of available CCRs. Instead, the
Learned Counsel for the Petitioner claims that the Opposite
Parties have acted in contravention to the policy framed by the
Selection Committee on 05.11.2020, which has been mentioned
by the Opposite Parties in their Counter Affidavit itself. In doing
so, the Learned Counsel appearing on behalf of the Petitioner
contended that the Opposite Parties have clearly violated Rule
3(b) of the O.C.S. (Criteria for Promotion) Rules, 1992.
16. Additionally, the Learned Counsel appearing on behalf
of the Petitioner submitted that the Common Gradation list
consists of 603 candidates and out of such candidates the
Petitioner has been placed at Sl No.200. At this point, the
Learned Counsel appearing on behalf of the Petitioner points out
that the date of entry of the Petitioner into Government service
is on 01.12.1997, as such, the length of government service of
the Petitioner, as on 01.01.2020, is 22 years and 01 month. In
contrast, the candidate placed at Sl No.41 in the said list, namely
Saumendra Kumar Tej, has rendered 17 years 07 months and 27
days of service as on 01.01.2020. Similarly, it was also pointed
out that one Ranjan Kumar Sahoo, placed as SI No.42, has
rendered 13 years 08 months and 07 days of service as on
01.01.2020 & Abhaya Kumar Swain, placed as SI No. 59, has
07 years 09 months and 20 days of service as on 01.01.2020.
Therefore, the Petitioner clearly has a longer service period,
however despite the same, his juniors have been placed above
the Petitioner who has been placed at Sl No.200 only.
17. Referring to the final selection list under Annexure-6 to
the present writ petition, the Learned Counsel appearing on
behalf of the Petitioner contended that one Nihar Ranjan Behera,
placed at Sl No.206 in the Common gradation list, has rendered
service of 17 years 08 months and 25 days as on 01.01.2020.
Likewise, Dinesh Kumar Pradhan placed as Sl No.215 in the
Common gradation list has served for 13 years 06 months and
04 days as on 01.01.2020 & Subrat Kumar Barik, placed at Sl
No. 234 in the Common gradation list, has a length of service of
12 years 03 months and 13 days as on 01.01.2020. In such view
of the matter, he further contended that the aforementioned
candidates have been placed in the final list (under Anneuxre-6)
as Sl. No.72, 75 & 81 respectively, whereas the Petitioner, who
has clearly rendered a longer period of service has not been
selected despite his juniors having being given a place in the
final select list under Annexure-6.
18. Consequently, in view of the aforesaid submissions, the
Learned Counsel appearing on behalf of the Petitioner submitted
that not only does the petitioner have an outstanding
performance and an unblemished service during the period of
consideration, but also 5 years of outstanding CCRs. in fact, the
petitioner satisfies all the eligibility criteria mentioned in the
notification dated 18.11.2020 and while similarly situated
candidates have been given promotion in the meantime,
however, due to the arbitrary & unreasonable conduct on behalf
of the Opposite Parties, the name of the Petitioner has not been
included in the final list under Annexure-6. Therefore, the
Learned Counsel appearing on behalf of the Petitioner
contended that the Opposite Parties may be directed to appoint
the Petitioner to the post of ORS Group- B in Level-10, in
pursuance of the notification dated 18.01.2020, with a further
direction to include the name of the petitioner in the final list
under Annexure-6.
CONTENTIONS OF THE OPPOSITE PARTIES
19. The State-Opposite Parties, in their counter affidavit,
have squarely controverted the stance taken by the Petitioner. It
is the Opposite parties' claim that due procedure, as has been
laid down under the relevant rules and modalities fixed by the
selection committee, has been followed while conducting
promotion to the post of ORS Group-B and that no illegality or
irregularity can be attributed to the conduct of the Opposite
Parties. The learned counsel for the Opposite Parties has
contended that according to Rule-9 of the ORS (Recruitment)
Rule, 2011, the Secretary Board of Revenue has invited
recommendations from different authorities vide Letter
No.1059/CS, dated 18.11.2020 to fill up 188 posts to the cadre
of ORS Group-B by way of promotion. As a result, a total of
768(Seven hundred Sixty Eight) recommendations were
received within the due date to fill up 75 posts (UR-52, SC-8,
ST-15) for Revenue Field Staff and 113 posts (UR-77, SC-13,
ST-23) for Ministerial Staff. The present Petitioner is from
Jagatsinghpur district and falls under UR category.
20. Learned Counsel for the Opposite Parties initially
contended that two Common Gradation Lists of eligible officers
- one for Revenue Field Staff and another for Ministerial Staff -
has been prepared by the Secretary, Board of Revenue, Odisha
(as required under Rule-8 of the Odisha Revenue Service
(Recruitment) Rules, 2011. While preparing the aforesaid list,
the authorities have duly taken into account the inter-se seniority
of the officers in their respective cadres, and as a consequence,
the Petitioner has been placed at Sl. No.200 in the common
gradation list (under Annexure-B/2 to the present writ petition).
Next, addressing the contention of the learned counsel for the
Petitioner that the Petitioner has been placed below his juniors
who have been in service for a shorter duration compared to the
Petitioner, the Learned Counsel for the Opposite Parties referred
to Rule-8 of ORS (Recruitment) Rules, 2011 which provides the
procedure for preparation of Gradation List. Referring to such
rule, the Learned Counsel for the Opposite Parties contended
that while preparing the list, the authorities have duly taken into
account the inter-se seniority of the officers, in their respective
cadres.
21. Learned Counsel for the Opposite Parties submitted
that the Grade pay (now Level as per Pay Matrix under ORSP
Rule, 2017) of one Saumendra Ku. Tej, Ranjan Kumar Sahoo
and Abhaya Kumar Swain is level 9, whereas the petitioner is at
Level-7, as on 01.01.2020. Hence, the learned counsel for the
Opposite parties contended that as per Rule-8 of ORS
(Recruitment) Rules, 2011, the aforesaid three officers have
been placed above the petitioner in the Common Gradation List
at Sl. No.41, 42 & 59 respectively. Similarly, the learned
counsel for the Opposite Parties contended that one Sri Manoj
Ku. Sahoo and the present Petitioner are of the same level of
pay but since Sri Sahoo joined in the feeder cadre earlier than
the Petitioner, i.e. on 27.02.1997 compared to 01.12.1997, he
has been placed above the Petitioner at Sl No.130 in the
Common gradation list.
22. The Learned Counsel for the Opposite Parties has
again referred to the 2nd proviso under the Explanation to the
Rule-8 of ORS (Recruitment) Rules, 2011 and submitted that
the inter-se seniority fixed in their respective cadre shall not be
violated. Accordingly, the Learned Counsel for the Opposite
Parties contended that in the District Gradation List of
Jagatsinghpur district, the Petitioner was placed just below one
Pradipta Kishore Jena, Sr. Revenue Assistant (at Sl No. 2 in the
said list). Since, as per the aforementioned 2nd proviso under
Explanation to Rule-8, the inter-se seniority of the officers is
required to be maintained, the learned counsel for the Opposite
Parties contended that the Petitioner was placed below Sri
Pradipta Kishore Jena (at Sl No.198) in the common gradation
list prepared for promotion to ORS Group-B for the recruitment
year 2020 despite the Petitioner having reached a higher level of
grade pay as on 01.01.2020 compared to that of Sri Jena.
23. Relying on the aforesaid contentions, the learned
counsel for the Opposite Parties contended that the Common
gradation list in the present case has been prepared in strict
adherence to Rule-8 of the ORS (Recruitment) Rules, 2011
rather than solely relying on the length of service of the
candidates as on 01.01.2020.
24. Furthermore, the Learned Counsel for the Opposite
Parties has contended that a Departmental Promotional
Committee/ Selection Committee, for granting promotion to the
ORS Group-B posts, for the year 2020 was convened on
05.11.2021. In the aforesaid meeting, the Committee has
followed Rule-3 of the Orissa Civil Service (Zone of
Consideration for Promotion) Rules, 1998 to determine the
number of employees within the zone of consideration of under
UR category and, as such, the zone of consideration for UR
candidates runs up to Sl No.272 in the Common Gradation List
with respect to UR category employees for Ministerial Staff, i.e.
the category to which the present Petitioner belongs. Also, in the
aforesaid meeting, the Selection Committee has decided upon
certain modalities for promotion to the ORS Cadre. The learned
counsel for the Opposite Parties has stressed that the Opposite
Parties-authority have carefully followed the modalities decided
by the Selection Committee. In course of his arguments, he has
further placed specific reliance on clause (i) and clause (ii) of
the said modalities. In this context, the learned counsel for the
Opposite Parties submitted that it is not the case of the Petitioner
that the modalities fixed by the DPC for the promotion to the
post of ORS Group-B are not good in law or they are illegal in
any manner.
25. The Learned Counsel for the State Opposite Parties
further submitted that, after considering the merits of the
Ministerial Officers and in terms of clause-VII of the modalities
decided upon by the Selection Committee, candidates having
five (5) "Outstanding" full years of CCRs were first taken up to
meet the required vacancies (consisting of 22 seniors and 12
juniors of the Petitioners placed at Sl Nos.4, 11, 34, 46, 52, 55,
63, 87, 89, 101, 115, 118, 119, 131, 135, 145, 161, 171, 178,
179, 189, 191, 206, 215,223, 224, 228, 234, 242, 243, 245, 256,
263 and 266 in the gradation list) in the first phase. Thereafter,
since a large number of posts were vacant, a second phase was
adopted by the Committee to fill-up the required vacancies. In
the second phase, 5 outstanding year of CCR including major
part of the year, treating the outstanding CCRs of 6 months and
above as outstanding for the full year irrespective of the CCR
rating of rest month of the year, were taken into consideration.
26. The Learned Counsel for the Opposite Parties
contended that the petitioner, particularly for the year 2018-19,
had a CCR of 10 months and there was a shortfall of 2 months.
As such, altogether the petitioner had 4 years of outstanding
complete CCRs and one year of outstanding incomplete CCR,
which is why in the first phase of selection the persons junior to
the present Petitioner, having full 5 years of outstanding CCRs,
were considered for promotion. In this context, the Learned
Counsel for the Opposite Parties submitted that the Petitioner
was junior to the last man Sri Braja Bihari Pradhan (Sl No.195)
of the Ministerial Staff Category selected against the vacant post
in Revenue Field Staff by way of adjustment as per ORS
(Recruitment) Amendment Rules, 2020. Similarly, in the second
phase, although officers with incomplete CCRs were
considered, including the present Petitioner, such officers were
promoted instead of the present Petitioner since they are senior
to the Petitioner. Consequently, all 77 posts under the UR
category in the ORS Group-B Cadre have been filled with
candidates comprising of the juniors and seniors of the present
Petitioner. Therefore, the Learned Counsel for the Opposite
Parties has contended that there has been no infirmity in the
selection process conducted by the authorities and that the said
selection process is nothing but fair and transparent.
27. Additionally, the Learned Counsel for the Opposite
Parties has contended that notwithstanding the aforesaid
grounds, the scope of judicial review of the decision of the
selection committee has been laid down by the Hon'ble
Supreme Court in Dalpat Abasahev Solunke vs. Dr. B.S.
Mahajan reported in AIR 1990 SC 344, Secy. (Health) Deptt.
Of Health & F.W. vs. Dr.Anita Puri reported in (1996) 6 SCC
282, M.V. Thimmaiah vs. Union Public Service Commission
reported in (2008) 2 SCC 119 and Om Prakash Poplai and
Rajesh Kumar Maheswari vs. Delhi Stock Exchange
Association Ltd., reported in (1994) 2 SCC 117.
28. Furthermore, the Learned Counsel for the Opposite
Parties has put forth the argument that promotion is not a matter
of right and only a right to be considered for promotion is what
can be claimed by the Petitioner. In support of his contentions,
the Learned Counsel for the Opposite Parties has referred to the
decisions of the Hon'ble Supreme Court in Lift Irrigation
Corpn. Ltd. V. Pravat Kiran Mohanty reported in (1991) 2 SCC
295 & Ajit Singh (2) v. State of Punjab reported in (1999) 7
SCC 209. The Learned Counsel for the Opposite Parties
contended that presently, there is no dispute with regard to the
fact that the Petitioner was considered for promotion to ORS
Group-B post. In fact, the Learned Counsel for the Opposite
Parties contended that the Petitioner has also not challenged the
promotion of the juniors of the Petitioner in the first phase.
Learned Counsel for the Opposite Parties has contended that in
the event the promotion of any of the juniors of the Petitioner is
challenged, the same would be hit by the principle of law laid
down by the Hon'ble Supreme Court in Prabodh Verma v. State
of U.P. reported in (1984) 4 SCC 251 and State of Uttaranchal
v. Madan Mohan Joshi reported in (2008) 6 SCC 797.
29. In view of the aforesaid submissions, the Learned
Counsel for the State-Opposite Parties submitted that no
illegality whatsoever has been committed by the Opposite
Parties in conducting the promotion to the posts of ORS Group-
B. Therefore, the Learned Counsel for the Opposite Parties
contended that the present writ petition is devoid of merit and
the same is liable to be dismissed at the threshold.
ANALYSIS
30. Having heard the learned counsels for the respective
parties, taking into consideration the factual background of the
present case and on perusal of the documents annexed to the
pleadings, it appears that the main grievance of the Petitioner is
with regard to the non-inclusion of his name in the final list
under Annexure-6. The backbone of the Petitioner's submission
appears to be centered around the contention that the Opposite
Party-authorities have not followed their own modalities for
promotion - specifically clause (VII) - and they have not taken
into account the preceding CCRs of the Petitioner which would
have allowed the Petitioner to be included in the final list for
promotion to the cadre of ORS Group-B, especially since the
Petitioner also claims to have fulfilled all the other requisite
eligibility criteria for being appointed to the said post.
31. The Opposite Parties on the other hand have taken the
stance that the non-inclusion of the Petitioner's name from the
final list is not due to any illegality or irregularity on the part of
the Opposite Parties, rather it is a natural consequence of the
Opposite Party-authorities following the due procedure as has
been laid down under the relevant rules and the modalities fixed
by the Selection Committee. Therefore, in order to properly
adjudicate the matter at hand, this Court is required to ascertain
whether the Opposite Parties have duly followed the modalities
established by the Selection Committee for promoting
candidates to the posts of ORS Group-B.
32. The modalities decided by the Selection Committee are
reproduced hereinbelow for better appreciation;
I. Selection of candidates will be based on
Outstanding merit and suitability with due
regard to seniority as per Rule 3(b) of OCS
(Criteria for promotion) Rules, 1992.
II. Selection will be based on 5 years available
CCRs proceeding the recruitment year, 2020. In
case of non-availability of CCRs of last 5 years,
CCRs of preceding years will be taken into
consideration to make it 05 (five) available
CCRs as per provisions contained in Govt. in
G.A. Department Memo No.4280/Gen.
Dt.19.02.2010. Less than 5 (five) valid years of
CCRs will not be considered for Selection.
III. The grading of the highest authority i.e.
Accepting authority in the CCR / PAR will be
taken into consideration. If the CCR / PAR is not
completed, then the recording of the highest
authority (Reporting or Reviewing or Accepting)
will be treated as final.
IV. The CCR remark given as "Excellent" has been
considered as "Outstanding".
V. If there are two or more different remarks in a
particular year, the remark for the major period
will be taken to consideration.
VI. If there are two different remarks in a particular
year for two different periods of same length, the
higher remark is taken into consideration.
VII. The candidates having five "Outstanding" full
years of CCRs will be taken up first to meet the
required vacancies in this process. If the
required vacancies are not filled up, then five
"Outstanding" including major part year of
CCRs will be taken into consideration to meet
the required vacancies treating the
"Outstanding" CCRs of 6 months and above for
"Outstanding" full year irrespective of CCR
rating of rest month of year.
VIII. In case of candidates belonging to reserved
category (SC/ST) who come under merit, they
shall be selected under unreserved category as
per provisions contained in Letter No.
12625/SSD Dt.21.03.2013 of Govt. in ST & SC
Development Department, Odisha,
Bhubaneswar.
33. Similarly, Rule-8 and Rule-9 of the Odisha Revenue
Service (Recruitment) Rules, 2011 are also reproduced
hereinbelow for reference;
"8. Preparation of Gradation List for Promotion:-
(1) For the purpose of consideration of
promotion to the service under clause (b)
of rule 4 a common gradation list of
eligible officers shall be prepared by the
Secretary, Board of Revenue, Orissa on
the basis of their date of appointment to
their respective cadres:
Explanation - While preparing the
common Gradation list the officers in
higher pay scale or with higher grade pay
in a pay band will be placed above those
in the lower pay scale or lower grade pay
in same pay band.
Provided that the inter-se-
seniority fixed in their respective cadre shall not be
violated.
Provided further that in case, the
date of appointment of two or more officers happens
to be the same, the person elder in age shall be
placed above the younger.
9. Calling for Recommendation for Promotion and
Selection-
Secretary, Board of Revenue, Orissa shall call
for the recommendations for Promotion and
Selection under clause (b), (c) of rule 4 to the
service, the names of eligible officers for
consideration by the Committee."
34. It is equally important to refer to Rule-3 of the Orissa
Civil Service (Zone of Consideration for Promotion) Rules,
1988 which is quoted below for better understanding;
"3. Zone of Consideration-
Except in cases where the provisions of the Orissa
Reservation of vacancies in Posts and Services (for
Scheduled Castes and Scheduled Tribes) Act, 1975,
and the rules framed there-under are applicable, in
every case of promotion made by way of selection
to any Civil Service or post of the state for which
zone of consideration has been prescribed in the
relevant recruitment rules; such zone of
consideration shall be three times the estimated
number of vacancies meant to be filled up from the
General category in such Service or Posts
notwithstanding anything to the contrary contained
in the respective recruitment rule:
Provided that where the estimated number of
vacancies meant to be filed up is not more than
three, the zone of consideration shall be ten."
35. On a careful consideration of the submissions of both
the parties, it is clear that the recruitment to the post of ORS
Group-B was made in two phases. Further, it appears that the
Petitioner was not selected in the first phase since, as per the
Opposite Parties, he possessed only four (4) years of complete
CCRs and one (1) year of incomplete CCR, which is why
juniors to the Petitioner having full five (5) years of CCRs were
selected and placed at Sl Nos.1 to 34 in the final list. Likewise,
in the second phase also the Petitioner was not selected, despite
other officers with incomplete CCRs being considered for
promotion, since other officers that were selected during the
second phase were all seniors to the Petitioner and they have
been accordingly placed at Sl Nos. 35 to 77 of the final list.
36. With regard to the first phase of selection, i.e. the
Petitioner not having full five (5) years of CCRs, it is the
contention of the Petitioner that the Petitioner possesses
completed CCRs of seven (7) years. On an examination of
Form-A i.e. the 'Statement of Service Particular for the Revenue
Ministerial Officers' which forms a part of the record as
Annexure-4 series to the present writ petition, it does appear that
the Petitioner at Sl No.2 has 7 years of complete CCR arranged
in proper sequence. Moreover, Form-B of the same Annexure
reveals that the Petitioner has 5 years of CCR (2014-15, 2015-
16, 2016-17, 2017-18 and 2018-19) with 'Outstanding' rating.
Additionally, it has been stated that the Selection Committee has
formulated certain modalities to govern the promotion to the
posts of ORS Group-B. Clause (II) of the said modalities clearly
states that "Selection will be based on 5 years available CCRs
proceeding the recruitment year, 2020. In case of non-
availability of CCRs of last 5 years, CCRs of preceding years
will be taken into consideration to make it 05 (five) complete
available CCRs as per provisions contained in Govt. in G.A.
Department Memo No.4280/Gen. Dt.19.02.2010. Less than 5
(five) valid years of CCRs will not be considered for Selection."
Therefore, it is clear that in the event the CCRs were not
available, the Opposite Parties were supposed to take into
consideration the past CCRs of the candidate to consider the
candidature of the Petitioner.
37. Next, this court has carefully examined all the
decisions cited by both the parties and the legal principles laid
down therein. It is a well settled principle, through a catena of
decisions of the Hon'ble Apex Court and other High Courts, that
the Court's interference into the selection process is limited to
only grounds of illegality or procedural irregularities in the
selection process (see Dalpat Abasahev Solunke vs. Dr. B.S.
Mahajan reported in AIR 1990 SC 344). In the case at hand the
Petitioner has not challenged the modalities set-up for selection,
neither any Rules nor constitution of the selection committee
has been challenged. In such substance, the case of the
Petitioner is one where there has been an irregularity in
following one of the modalities set out by the Selection
Committee. Therefore, this Court has no hesitation in arriving at
a conclusion that it is well within the powers of this Court to
remedy the irregularity in the selection process resulting in the
non-inclusion of the present Petitioner in the final list for
promotion to the Post of ORS Group-B.
38. In the aforesaid context, the Petitioner has relied on the
judgment dated 10.08.2021 by a coordinate bench of this court
in Jagannath Aich v. State of Odisha and Ors. bearing WPC
(OAC) No.1380 OF 2013. On the perusal of the above cited
decision, it appears that the Petitioner in the aforesaid case was
not selected for promotion to the post of ORS Group-B on the
ground that the CCRs of the last five years were not available.
However, information obtained through RTI application
revealed that the requisite CCRs were indeed available, although
the authority was unable to produce the same at the time of
recommendation, as such, the same has resulted in the petitioner
being debarred from being promoted. A coordinate bench of this
court, has disposed of the aforesaid matter with the observation
that the inability of the authority to produce the CCRs of the
Petitioner should not have led to the Petitioner being debarred
from promotion. It appears that the facts of the aforesaid case
are somewhat similar to the matter at hand, inasmuch as in the
present case also it is the ground taken by the Opposite Parties
that CCRs of the Petitioner were not available to consider the
case of the Petitioner for promotion to ORS (Group-B) Cadre.
CONCLUSION
39. Finally, taking into consideration the submissions by
the learned counsels for both the parties, on perusal of the
documents placed on record by the parties as well as the case
laws cited by both the parties, on examination of the applicable
rules and modalities fixed by the Selection committee for
promotion to the post of ORS Group-B, this court is of the
considered view that the Petitioner possessed complete CCRs
for the last seven (7) years, however, the Opposite Party-
authorities have only considered the 4 years of complete CCRs
and one year of incomplete CCR, despite clause (II) of the
modalities prescribing for the consideration of the past CCRs to
make it as 5 complete available CCR so as to enable the
Petitioner for being promoted. Therefore, this court has no
hesitation in arriving at a conclusion that the Opposite Party-
authorities have clearly violated one of the modalities set up by
the Selection Committee while considering the case of the
Petitioner for promotion.
40. In view of the aforesaid analysis and observation, this
court disposes of the present writ petition with a direction to the
Opposite Party-authorities to reconsider the case of the
Petitioner for promotion to the Post of ORS Group-B cadre for
the recruitment year 2020, against existing vacancies, by taking
into consideration the CCRs of preceding years to make it five
(5) available CCRs and by convening a review DPC meeting. If
there are no other legal impediments, then the Petitioner be
promoted to the post of ORS Group-B cadre by giving him
promotion from the date on which the immediate juniors were
given such promotion to the post of ORS Group-B. Let the
entire exercise be carried within a period of three months from
the date of communication of a copy of this judgment.
41. Accordingly, the writ application stands allowed in
terms of the above-noted direction. However, there shall be no
order as to costs.
(A.K. Mohapatra)
Judge
Orissa High Court, Cuttack
The 16th April, 2025/ RKS
Designation: AR-CUM-Senior Secretary
Reason: Authentication
Location: High Court of Orissa
Date: 16-Apr-2025 17:15:21
