Orissa High Court
Sanjita Das vs State Of Odisha on 19 June, 2025
ORISSA HIGH COURT : CUTTACK
WA No.432 of 2025
In the matter of an Appeal under Article 4 of
the Orissa High Court Order, 1948
read with
Clause 10 of the Letters Patent constituting
the High Court of Judicature at Patna
and
Rule 6 of Chapter-III and Rule 2 of Chapter-VIII
of the Rules of the High Court of Orissa, 1948
***
Sanjita Das
Aged about 59 years
Wife of Asitav Mohanty
Resident of Satabdi Vihar,
P.S.: Bidanasi, District: Cuttack,
Presently working as
Special Secretary,
Board of Revenue, Odisha. ... Appellant
-VERSUS-
1. State of Odisha
Represented through
Chief Secretary
Lok Seva Bhawan,
Bhubaneswar, District: Khordha
(Opposite Party No.1 in the original
Writ Application)
2. The Principal Secretary to Government
Revenue & Disaster Management Department
Government of Odisha
Lok Seva Bhawan
Bhubaneswar, District: Khordha
(Opposite Party No.2 in the original
Writ Application)
3. The Special Secretary to Govt.,
General Administration Department,
Govt. of Odisha, Lok Seva Bhawan,
Bhubaneswar, District: Khordha
(Opposite Party No.3 in the original
Writ Petition)
4. The Secretary, Board of Revenue,
Odisha, Cuttack
(Opposite Party No.4 in the original
Writ Application) ... Respondents.
Counsel appeared for the parties:
For the Appellant : M/s. Durga Prasad Nanda,
Senior Advocate,
Rupesh Kumar Kanungo,
A. Acharya, P. Roy, D. Nayak,
D. Nanda and A. Aslesh,
Advocates
For the Respondents : Mr. Saswat Das,
Additional Government Advocate
P R E S E N T:
HONOURABLE CHIEF JUSTICE
MR. HARISH TANDON
AND
HONOURABLE JUSTICE
MR. MURAHARI SRI RAMAN
Date of Hearing : 12.05.2025 :: Date of Judgment : 19.06.2025
J UDGMENT
MURAHARI SRI RAMAN, J.--
This intra-Court appeal is directed against the judgment
dated 25.06.2024 passed in W.P.(C) No.7375 of 2021,
dismissing the petition on the ground that the petitioner
should have taken steps to implement the minor
punishment awarded in the departmental proceeding
instituted while she was working as the Administrative
Officer at Srirama Chandra Bhanja Medical College &
Hospital, Cuttack and should have objected to the
subsequent increments sanctioned in her favour.
Facts:
2. A brief narration of facts emanating from the pleadings
contained in the writ petition would suffice to determine
the issue raised in the present case that whether the
petitioner is responsible for implementation of minor
punishment enumerated under Rule 13 of the Odisha
Civil Services (Classification, Control and Appeal) Rules,
1962, awarded against her in the departmental
proceedings.
2.1. The petitioner, appointee of the year 1987 borne in the
Odisha Administrative Service Cadre, while posted as
Additional Executive Officer under the Cuttack
Municipal Corporation from 09.08.1995 to 31.01.2000,
on the allegation of illegal engagement of persons as
Daily Labour Roster/DLR, a departmental proceeding
was initiated against her on 16.04.2002 and as against
fourteen charges, two charges, on the basis of enquiry
report submitted, could be established. Accordingly,
communication was issued vide Memo appended to the
Order dated 29.07.2011 indicating minor punishment,
i.e., withholding one annual increment without
cumulative effect as has been awarded by the
Disciplinary Authority. Such punishment being one of
the minor punishments enumerated in Rule 13 of the
Odisha Civil Services (Classification, Control and Appeal)
Rules, 1962, remained unchallenged.
2.2. The appellant was transferred to function as the
Administrative Officer of Srirama Chandra Bhanja
Medical College & Hospital, Cuttack ("SCBMCH", for
short) by Order dated 04.11.2011. Since the punishment
was not implemented by the District Administration, the
appellant wrote a letter to the Superintendent of
SCBMCH, Cuttack requesting him to take appropriate
steps for implementation of the order of punishment.
Though such was the position and the authorities were
conscious about the punishment with direction to reflect
the same in her service records, the appellant was given
promotions till the year 2020.
2.3. While the matter stood thus, on 12.06.2020, when her
case came up for consideration for promotion to the
Odisha Cadre of Indian Administrative Service, the
Administrative Officer, SCBMCH, intimated the
Additional Secretary to Government of Odisha, General
Administration Department for taking appropriate steps
for implementation of the order of punishment imposed
in the year 2011. Accordingly, the said order of
punishment was implemented on 05.11.2020 with
reference to said letter.
2.4. The appellant challenged such action by way of filing a
writ application, registered as W.P.(C) No.7375 of 2021,
which stood dismissed by Judgment dated 25.06.2024.
2.5. Review of said Judgment in RVWPET No.185 of 2024,
was sought for inasmuch as the role of the appellant
could not be attributed for non-implementation of the
minor punishment awarded in the disciplinary
proceeding in the year 2011 by the authorities
concerned. Furthermore, notwithstanding such order of
punishment being carried out with much delay in the
year 2020, the same should have been appreciated that
it related to the year 2011; so that it would not have any
repercussion on consideration of her case for promotion
to the Cadre of Indian Administrative Service. Said
review too stands dismissed by Judgment dated
08.01.2025 holding that she cannot escape the
consequences of her inaction. The delayed enforcement
of the punishment does not render the action of the
authorities unjustified.
Hearing:
3. Having considered the fact scenario of the present
matter, this Court condoned the delay in filing of writ
appeal vide Order dated 04.04.2025. Thereafter, the
matter got listed on 30.04.2025, 08.05.2025 and
09.05.2025. At the request of counsel for both the sides,
the matter again appeared on board on 12.05.2025.
3.1. Short point being involved and the case of the appellant
being ignored for consideration of promotion to the
Indian Administrative Service (Odisha) Cadre with
respect to the vacancies till 2019, as there was delay in
implementation of punishment awarded way back in the
year 2011 in the departmental proceeding, on the
consent of counsel for both sides, the writ appeal is
taken up for final hearing on 12.05.2025. It is also
noticed that pleadings in the matter was completed at
the stage of hearing of writ petition and no new fact or
evidence needed to be placed by the counsel for
respective parties.
3.2. Accordingly, heard Sri Durga Prasad Nanda, learned
Senior Advocate assisted by Sri Rupesh Kumar
Kanungo, Advocate appearing for the petitioner and Sri
Saswat Das, learned Additional Government Advocate
appearing for the respondents.
3.3. On conclusion of hearing on 12.05.2025, the matter
stood reserved for preparation and pronouncement of
Judgment/Order.
Arguments advanced on behalf of the appellant:
4. With the aforesaid factual backdrop, Sri Durga Prasad
Nanda, learned Senior Advocate strenuously argued that
ignoring to implement the punishment despite
communication by the appellant to the Competent
Authority at the relevant point of time in the year 2011
itself and three promotions thereafter being accorded to
the appellant, would demonstrate that it is the fault of
the authorities to suggest implementation of minor
punishment at a belated stage in the year 2020. Such
purported action of the authority is indicative of the fact
that it is only to get the appellant out of the list of
officers whose cases have been taken up for promotion
to the Cadre of Indian Administrative Service. Having not
noted the punishment in the original service book
relevant for the year 2011, it is submitted that the
appellant cannot be made to suffer for the mistake
committed by the authorities.
4.1. He went on to argue that the learned Single Judge
misdirected himself by resting onus on the appellant as
if she was instrumental for non-implementation of
punishment awarded against her in the departmental
proceeding. Had the authorities implemented the award
of punishment in the year 2011, the appellant could not
have been debarred from being considered for promotion
by the Indian Administrative Service Selection
Committee constituted under the provisions of the
Indian Administrative Service (Appointment by
Promotion) Regulations, 1955, in the meeting held on
17.12.2020. He pointed out that despite implementation
of such punishment in the year 2020, the same would
relate back to the year 2011; as such her case for
promotion to the Cadre of Indian Administrative Service
for the vacancies in the year 2019 could not have been
kept aside. The conduct of the opposite parties is tell-
tale that in order to deprive the appellant of legitimate
consideration, the implementation of minor punishment
after nine years has been carried out, which is contrary
to the Circulars/Instructions issued by the Central
Government.
Submissions of the learned Additional Government
Advocate:
5. Per contra, Sri Saswat Das, learned Additional
Government Advocate, in order to justify action of the
respondents in not considering her case for promotion in
the Cadre of Indian Administrative Service, would urge
that the learned Single Judge has taken appropriate
decision warranting no interference. He submitted that
by way of disciplinary proceeding once punishment is
imposed, it must be seen to have led to logical
conclusion by its implementation to preserve the smooth
administration. The delay in implementation is wholly
and solely attributable to the conduct of the appellant.
At the relevant point of time, as she was functioning in
the capacity of the Administrative Officer at SCBMCH,
Cuttack, she was supposed to implement the order of
punishment. She could have brought to the notice of the
Competent Authority for withholding of increment at the
time of drawal of salary; rather she deliberately
intimated regarding this aspect to the Superintendent of
the SCBMCH, who is not the appropriate authority.
Having committed such mistake by the appellant, the
non-implementation of order of punishment could not
come to fore till the year 2020. On the insistence of the
Administrative Officer of SCBMCH, step could be taken
at appropriate level for implementation in the year 2020.
Therefore, no infirmity could be imputed against the
judgment(s) of the learned Single Judge.
5.1. As her attempt to have the judgment in writ petition in
her favour failed, the appellant knocked the doors of this
Court by way of review petition; but that too was lost.
The appellant has now taken the recourse of this intra-
Court appeal. It is arduously argued by Sri Saswat Das,
learned Additional Government Advocate that the scope
of intermeddling with the Judgment(s) of the learned
Single Judge is very limited in view of restricted
perspective contained in provisions of Article 4 of the
Odisha High Court Order, 1948 read with Clause 10 of
the Letters Patent constituting the High Court of
Judicature at Patna and Rule 6 of Chapter-III and Rule 2
of Chapter-VIII of the Rules of the High Court of Odisha,
1948.
5.2. Therefore, he prays for dismissal of the writ appeal in
absence of contradictory material placed on record by
the appellant. He would suggest that lacking merit in the
matter, the writ appeal is to be dismissed with cost.
Analysis and discussions on pleadings and rival
contentions:
6. This Court having perused the Judgment dated
25.06.2024 in W.P.(C) No.7375 of 2021 and the
Judgment dated 08.01.2025 passed in RVWPET No.185
of 2024 could cull out the undisputed facts as
emanating from the documents available on record
relating to writ petition that Order No.IIIE-PD-IV-
14/2011-1405/R(CS) dated 29.07.2011 has been issued
by the Government of Odisha in Revenue and Disaster
Management Department on consideration of the
enquiry report vide Letter No.3092/Con, dated
16.07.2009, wherefrom it is transpired that:
"***
Now, after careful consideration of draft charges,
explanation of D.O., findings of Inquiring Officer and in
consultation of Odisha Public Service Commission,
Government have been pleased to impose the punishment
to withhold one annual increment without cumulative
effect for her lapses in the case."
6.1. Careful scrutiny of Memo bearing No.1406/R(CS) dated
29.07.2011 appended to said Letter signed by the
Additional Secretary to Government, reflects as follows:
"Copy in triplicate forwarded to the Sub-Collector,
Bhubaneswar with a request to serve one copy of the
order on Smt. Sanjita Das, OAS, Ex-Additional
Executive Officer, Cuttack, at present working as
Deputy Collector, Office of the Additional District
Magistrate, Bhubaneswar, Khordha and return the
served copy with date acknowledgement of Smt. Das
thereon.
The third copy is for record in his office."
6.2. From the above it is abundantly clear that the copy of
order of punishment was directed to be served on the
appellant, but no indication therein is available to show
that the appellant was to implement the terms of order
of punishment; rather it was addressed to competent
authorities to take steps. Thus, the contention of the
learned Additional Government Advocate that at the
relevant point of time since the appellant was holding
the position, she was instrumental for non-
implementation of punishment is a falsity.
6.3. On 27.12.2011 the present Appellant while working as
Administrative Officer, by a letter intimated the
Superintendent, SCBMCH, Cuttack with a Memo to the
Additional Secretary to Government, Revenue and
Disaster Management Department requesting to take
steps to withhold one annual increment without
cumulative effect in terms of order of punishment
imposed by the Disciplinary Authority. The text of said
letter is extracted hereunder for profit of understanding:
"To
The Superintendent,
SCB Medical College and Hospital,
Cuttack.
Sub.: Withholding one annual increment without
cumulative effect.
Ref.: Order No.1405/R (CS) dated 29.07.2011 of Revenue
& Disaster Management Department.
Sir,
With reference to above, I am to say that order
No.1405/R(CS) dated 29.07.2011 of Revenue &
Disaster Management Department has not been
implemented by Additional District Magistrate,
Bhubaneswar. Now, that my pay has been fixed up
vide Order No.26015/ dated 27.12.2011 by your
goodself, Drawing and Disbursing Officer may be
directed to do the needful as per the said Order of
Revenue & Disaster Management Department dated
29.07.2011.
Yours faithfully
Sd/- 27.12.2011
Encl: Order No.1405/R (CS), Sanjita Das
Dated 29.7.2011 Administrative Officer
SCB Medical College and Hospital.
Memo No.26521 Dated 29.12.2011
Copy forwarded to Additional Secretary to
Government Revenue & Disaster Management
Department with reference to their Memo
No.1406/R, dated 29.07.2011 for information.
Sd/- 27.12.2011
DDO for needful Sanjita Das
Sd/- Administrative Officer
27.12.2011 SCB Medical College and Hospital."
6.4. Said document forming part of writ application
manifests that while the appellant was working in the
capacity of Additional Executive Officer in the Cuttack
Municipal Corporation, the Order of punishment dated
29.07.2011 was served. On her transfer to the
SCBMCH, Cuttack as Administrative Officer, she
requested the Superintendent, SCBMCH, Cuttack for
withholding of annual increment without cumulative
effect on 27.12.2011 by enclosing copy of Order
dated 29.07.2011. Careful scrutiny of such
document apparently discloses that the
Superintendent at the left hand bottom portion
marked the document with instruction note to the
Drawing and Disbursing Officer (DDO) to do the
needful. It is, therefore, incumbent upon the duty of
the DDO to have taken necessary steps in this
regard to comply with the order of punishment.
Nothing is placed by the opposite parties on record
to suggest that the DDO was taken to task for such
lapses in conduct of his duty. Said document also
makes it unambiguous that she has intimated such
request to the Superintendent and the DDO of
SCBMCH, Cuttack was also instructed for
withholding of one annual increment. It also further
discloses that the said document is communicated to
the Additional Secretary to Government, Revenue
and Disaster Management Department with
reference to the said Order dated 29.07.2011 for
information.
6.5. It is of interest to notice that the Superintendent nor
the DDO of SCBMCH has never denied the fact
contained in the Letter dated 27.12.2011 and there
was no dispute by them with respect to marking of
the document to the DDO with the instructions by
the Superintendent.
6.6. Notwithstanding such glaring fact transpires from
the evidence on record that the appellant at the
relevant point of time in the year 2011 has intimated
proper quarters requesting for withholding increment
without cumulative effect, the Administrative Officer
of SCBMCH, Cuttack on 12.06.2020 issued a letter
to the Additional Secretary to Government, General
Administration & Public Grievance Department
indicating non-entry of Order dated 29.07.2011 of
Revenue and Disaster Management Department in
the original service book of the appellant.
Nevertheless, there appears no explanation either
emanate from the counter affidavit or does the fact
disclose from the correspondences made part of the
writ petition as to why it took for the opposite parties
to take steps around nine years (2011 to 2020) for
recording such fact of punishment in the original
service record, particularly when the name of the
appellant found place in the list of officers for
consideration of promotion to the Cadre of Indian
Administrative Service.
6.7. Despite indolence of the opposite parties is
manifested on the face of the record, careful reading
of the Judgment dated 25.06.2024 of the learned
Single Judge would reveal that following factor(s)
weighed in forming the decision while considering
the merit of the writ petition:
"11. As the Administrative Officer of the organization, the
Petitioner was in charge of executing the
administrative functions of the organization, with the
Superintendent being the overall head. It was the
petitioner's primary duty to ensure the
implementation of the punishment. Being a
responsible officer, she could have directly
overseen the enforcement of the punishment
order, making it unnecessary to write to the
Superintendent of the Medical College. If the
matter had inadvertently escaped the attention of
the Superintendent‟s office, the petitioner, upon
receiving her salary for the month following the
sanction of the increment, could have highlighted the
inconsistency and deposited the incremental value
immediately. Therefore, it was largely
incumbent upon the petitioner to inform the
relevant authorities about the irregularity in
the non-implementation of the punishment.
Instead, she continued to follow the process until it
was discovered, at that point she realized it might
affect her potential promotion to IAS.
12. It is reiterated that the petitioner was no less than
the Administrative Officer at SCB Medical College,
where she herself could have taken steps to
implement the Government order. Furthermore, she
could have objected to the subsequent increments
sanctioned in her favour. At no point did she bring to
the attention of any office where she worked,
following the award of the punishment that one
annual increment in her favor was supposed to be
withheld."
6.8. Examination of above paragraphs of the impugned
judgment demonstrate that as if the appellant had not
taken any step for seeking implementation of
punishment in the year 2011, the learned Single Judge
has rested onus on her. The facts which led to dismissal
of the writ petition by the learned Single Judge appear
to be perverse when tested with the aforesaid facts as
established from the documents placed at Annexures-1
and 2 of the writ petition. Annexure-1, i.e., Order dated
29.07.2011 reveals that Smt. Sanjita Das (appellant) on
the date of punishment was not the Additional Executive
Officer of Cuttack Municipal Corporation. However, the
Letter dated 27.12.2011 depicts that the
Superintendent, SCBMCH, Cuttack, requested the DDO
to do the needful upon acknowledging receipt of said
document with his signature. This document evinces
that the competent authority of SCBMCH was fully
aware with respect to the context and necessity of taking
steps at his end. From Memo appended to the said Letter
dated 27.12.2011 also discloses that such fact was also
communicated to the Additional Secretary to
Government, Revenue and Disaster Management
Department. Such factual scenario clinches that the
appellant had discharged her onus. It was the burden on
the opposite parties which they failed to discharge till
2020. This Court finds from the correspondences
enclosed to the writ petition and discussed hitherto that
the appellant could not be held responsible for
compliance of order of punishment awarded by the
Disciplinary Authority and she could not be
instrumental for non-reflection of such punishment in
her service record.
6.9. Nonetheless, the documents enclosed to the writ petition
and referred to above reveal that award of minor
punishment as imposed in the Departmental Proceeding
vide Annexure-1 was not only made known to the
Authorities of Revenue and Disaster Management
Department but also the Cuttack Municipal Corporation
where she was working as Additional Executive Officer
and thereafter the authorities of SCBMCH, Cuttack
where she worked as the Administrative Officer during
the relevant period of time, i.e., 2011. Despite her letters
to the Superintendent of SCBMCH, Cuttack and the
Department of Revenue and Disaster Management
Department, the opposite parties-authorities having not
carried out the order of punishment, and recording the
fact in the original service record, the responsibility
could not have been shifted to the shoulder of the
appellant. Such perversity of fact is writ large on the face
of the impugned judgment(s) of the learned Single
Judge.
6.10. The other documents enclosed to the writ petition depict
that the appellant in the year 2021 having no option left
made communications upon deposit of the requisite
amount in connection with the aforesaid punishment
vide Order dated 29.07.2011 (Annexure-1) to the
authorities concerned. Such gesture being shown by the
appellant, this Court feels it expedient to interfere with
the Judgment dated 25.06.2024 of the learned Single
Judge.
7. Pertinent factor which could have been appropriately
taken into consideration by the learned Single Judge is
that, at paragraph 4 of the Additional Affidavit dated
18.04.2024 filed on behalf of the respondents before the
Writ Court clearly establishes the fact that:
"That it is humbly submitted that, the General
Administration & Public Grievance Department was not
aware of the fact of non-implementation of the
punishment order of the Revenue & Disaster Management
Department. It was only on receipt of the Letter No. 11897
dated 12.06.2020 (Annexure 3 to the Writ Petition) from
the Administrative Officer, SCBMCH; the General
Administration & Public Grievance Department found that
the Order of punishment dated 29.07.2011 (Annexure 1 to
the Writ Petition) was not recorded in the Service Book of
the petitioner. This indicated that the punishment
order was not implemented till the year 2020. Then
the Board of Revenue, i.e. Controlling Authority of
petitioner (the petitioner was working as the Additional
Secretary, Board of Revenue, Odisha, Cuttack) was
requested vide General Administration and Public
Grievance Department Letter No. 23083/Gen. dated
15.10.2020 (Annexure 4 to the Writ Petition) to take
immediate necessary steps to implement the order of
punishment issued by the Revenue & Disaster
Management Department and reflect the same in the
Service Book of the petitioner. In response, the Board of
Revenue implemented the punishment Order vide
their Office Order No.1016/CS dated 05.11.2020 by
withholding one annual increment falling due on
01.11.2020."
7.1. It cannot be believed that the authorities concerned
including the Government were not aware of punishment
being awarded against the appellant in the departmental
proceeding. In Paragraphs 11, 12 and 13 of the counter
affidavit of the respondents (sworn to by the Additional
Secretary to Government, General Administration and
Public Grievance Department) filed before the learned
Single Judge the stance of the respondents was that
Order dated 29.07.2011 was not implemented as the
appellant was "in-Charge of its implementation" and "the
Superintendent of SCBMCH was not the authority to
carry out the punishment order rather she herself was
the appropriate authority to implement the said order."
7.2. Such a plea of the respondents appears to be contrary to
the document at Annexure-2 to the writ petition which
has already been analysed. It is not denied by the said
respondents that the Superintendent of SCBMCH,
Cuttack has marked the Letter dated 27.12.2011 of the
appellant with copy of Order dated 29.07.2011 enclosed
thereto to the DDO to take steps for doing the needful to
implement the order of punishment. The Memo
appended to said letter also clearly mentioned that the
Memo has been assigned with a diary number bearing
26521, dated 29.12.2011. These facts render the stand
taken by the respondents a myth and far from truth. The
respondents appear to be in a mood to shirk
responsibility and vest the same on the appellant, as if it
is the delinquent-employee who is required to carry out
the terms of order of punishment including reflecting
such fact in her service book.
7.3. A reference to D.S. Jassal Vrs. Union of India, 2015 SCC
OnLine P&H 6307 may have significance. In the said
case, the Hon'ble Punjab and Haryana High Court in the
context of consideration of penalty imposed in a
departmental proceeding vis-à-vis promotion has been
pleased to hold as follows:
"11. In Union of India Vrs. K.V. Jankiraman, (1991) 4
SCC 109, three Judge Bench of Hon‟ble Supreme
Court has held as follows:
„We are sure that the Tribunal has not intended that
the promotion should be given to the officer from the
original date even when the penalty imparted is of
reduction in rank. On principle, for the same
reasons, the officer cannot be rewarded by
promotion as a matter of course even if the
penalty is other than that of the reduction in
rank. An employee has no right to promotion.
He has only a right to be considered for
promotion. The promotion to a post and more so, to
a selection post, depends upon several
circumstances. To qualify for promotion, the least
that is expected of an employee is to have an
unblemished record. That is the minimum expected
to ensure a clean and efficient administration and to
protect the public interests. An employee found
guilty of a misconduct cannot be placed on par with
the other employees and his case has to be treated
differently. There is, therefore, no discrimination
when, in the matter of promotion, he is treated
differently. The least that is expected of any
administration is that it does not reward an
employee with promotion retrospectively from a date
when, for his conduct before that date, he is
penalised in praesenti. When an employee is held
guilty and penalised and is, therefore, not
promoted at least till the date on which he is
penalised, he cannot be said to have been
subjected to a further penalty on that account.
A denial of promotion in such circumstances is not a
penalty but a necessary consequence of his
conduct.‟
12. It has been very emphatically declared by the
Hon‟ble Supreme Court that an employee has no
right to promotion, but has a right to be considered
for promotion. Unless an unblemished service has
been put in by an employee, the question of
promoting him to the next cadre does not arise.
An employee who was found guilty of
irregularity cannot claim parity with an
employee who has put in excellent service to
the Department sans any scar on his track
record. It has been held in the above decision by
the Hon‟ble Supreme Court that different treatment
given to an employee who has committed a
misconduct and an employee who has rendered
exceptional service cannot be attacked on the ground
of discrimination. An employee who has been
visited with penalty in the disciplinary
proceedings conducted as against him cannot
claim promotion retrospectively from the date
when he committed the misconduct. But his
case for promotion will have to be taken up in
the DPC held thereafter, of course, considering
the impact of penalty imposed on him. In the
background of the above authoritative decision
pronounced by the Hon‟ble Supreme Court, the
submission made by learned counsel appearing for
the writ petitioner that claim for promotion made by
the writ petitioner shall be considered retrospectively
by constituting special review DPC against the
vacancies that arise in 1999-2000 stands rejected.
***
14. A Single Judge of this Court in Major Singh Gill Vrs.
State of Punjab, CWP No. 10359 of 1991, decided on
03.12.1991 held as follows:
„8. *** After hearing learned counsel for the
parties, I find force in the submissions of
learned counsel for the petitioner. The
punishment when awarded would relate
back to the period when the alleged
offence/misconduct was committed or in
any case when the same was detected.
Even if any punishment is awarded to the
petitioner now that would relate back to
the year 1973 when the alleged
misconduct/irregularities took place or
the year 1975 when the charge-sheet was
served (as it can be said that the
irregularities were detected about that
time).‟
15. The above decision was put to challenge before the
Division Bench of this Court by the State of Punjab
and another. In the said case in State of Punjab Vrs.
Major Singh Gill, 1994 (2) RSJ 100, it was held as
follows:
„8. The position, that thus emerges, is that the only
material adverse to Major Singh, in his service
records, is this incomplete enquiry, which, even
if it were to conclude now, with the awarding
of the proposed punishment of the
stoppage of one increment, it would relate
back to the year 1973 or at any rate 1975,
when the charge-sheet was served upon
him.‟
16. On a careful perusal of the facts noted in the
above case, it was found that 5 years' service
records prior to the date when the case of the
employee was taken up for consideration for
promotion had to be evaluated by the DPC. As it
would be unjust to direct such an employee to
wait for another years from the expiry of
currency of penalty to assess his service
records, this Court made an observation in the
special circumstances of the above case that
penalty imposed would relate back to the date
when the misconduct was committed. It is to be
noted that in the above case this Court has never
laid down a principle of law that if an employee who
was found guilty and penalized is entitled to
promotion retrospectively from the date when the
misconduct was committed. The proposition that an
employee who was found guilty and penalized
should be considered for promotion retrospectively
would lead to a situation where he was treated
equally with an employee who had put in
unblemished service. Such a premium to an
employee who committed misconduct is unknown to
service jurisprudence.
***
19. It was the admitted case that for the
irregularity allegedly committed by the writ
petitioner way-back on 27.8.1990, he was
charge-sheeted on 21.6.1993 and penalty of
'censure' was imposed on him on 18.5.1999. It
is not as if earlier irregularity allegedly
committed by the writ petitioner during the
year 1989-90 was not in the notice of the
official respondents. They, in fact, seized of such
an irregularity and launched civil proceedings before
competent Civil Court against the company
concerned. But unfortunately, Annexure R-1 which
reflects chronology of events reflecting the
disciplinary proceedings initiated against the writ
petitioner would go to establish that the complaint
against the writ petitioner was forwarded to the
Authority concerned only on 07.06.1994 after a
lapse of about 4 long years. It is really shocking that
an employee was charge-sheeted for the irregularity
he committed after 13 long years. Such an employee
may not be in a position to recall what actually
transpired at the time when he allegedly committed
irregularity. It would be an uphill task for him to
collect materials to defend himself. In other words,
an employee who has been charge-sheeted and
directed to defend will be virtually defenceless after
a lapse of 13 years.
20. Of course, chronology of events discloses that there
had been correspondence between Departments. But
such correspondence which had consumed 13 long
years had created adverse impact on the
promotional prospects of the writ petitioner. The
Department is not supposed to handle the
disciplinary proceedings of an employee
exhibiting such a lackadaisical attitude.
***
24. Apart from the delay and latches pointed out by us,
the charge-sheet issued against the writ petitioner
just 2 or 3 months prior to holding of DPC speaks
volumes of mala fides on the part of the official
respondents. An irregularity which was committed
13 years ago was intentionally taken up by the
official respondents even after the subsequent
irregularity committed by the writ petitioner had
culminated in infliction of penalty of „censure‟ as
early as on 18.05.1999. In the above background
of the case, the writ petitioner has
demonstrated that charge-sheet was issued on
08.10.2002 just before holding DPC for the
year 2002-2003 for the misconduct allegedly
committed by him about 13 years ago in order
to deprive him of his due promotion against the
vacancy taken up for consideration by the DPC
held in 2002-03. For all these reasons, we have no
hesitation to hold that the entire disciplinary
proceedings which culminated in passing the final
order imposing penalty of „censure‟ on 08.11.2005 is
liable to be set aside."
7.4. As brought to notice by Sri Durga Prasad Nanda, learned
Senior Advocate, this Court now wishes to take
cognizance of Annexure-8 of writ petition, i.e.,
Instruction/Circular No.749/SE, dated 20.02.2007
issued by the Government of Odisha in General
Administration (SE) Department which is addressed to
all Principal Secretaries to Government/
Commisionerates/Secretaries to Government/All Heads
of Departments/All concerns, which reads thus:
"Sub.: Punishment awarded in subsequent year and its
relation to year of offence.
Sir,
I am directed to invite a reference to para-II(vii) of
Memo No. 10918 (110) Pro, dated 23.11.1987 and
para-9(iv) of Memo No.1199 and 1200/PRO, dated
26.04.2006 issued by General Administration (SE)
Department which provides that all punishments
awarded or any delinquent Government servant
duly proposed against whenever punishment is one
of the penalties specified in Rule 13 of the Odisha
Civil Services (Classification, Control and Appeal)
Rules, 1962 should be placed in the CCR/PAR of the
officer concerned. But it is often seen that
punishment are being awarded to delinquent
officers much after the occurrence of the
incidence. Doubts have arisen as to which year
such penalty will relate when orders awarding
the penalty are passed. Government have now
been pleased to decide that, that was committed
irrespective of the year in which it is awarded.
Accordingly, the order of punishment may be
kept in the CCR/PAR of the year to which the
charges relate.
This may kindly be brought to the notice of all
concerned."
7.5. Said Circular dated 20.02.2007 has been withdrawn
with the following clarification:
"Government of Odisha
General Administration Department
No.467/PRO-1/2007/SE, dated 03.03.2008
From
Shri M. Saran, IAS
Special Secretary
To
All Principal Secretary/
All Commissioner-cum-Secretary/
All Heads of Departments/
All Collectors
Sub.: Placing of order of punishment in CCR/PAR Ledger
Sir,
I am directed to say that Government after careful
consideration, has been pleased to withdraw this
correspondence Letter No.749/SE, dated
20.02.2007 on the aforementioned subject and to
clarify that the copy of the order awarding the
penalty to a delinquent officer should be
placed in the CCR/PAR of the year in which it is
awarded.
This may kindly be brought to the notice of all
concerned.
Yours faithfully,
Sd/-
Special Secretary to Government"
7.6. Conjoint reading of the Circulars vide Letter dated
20.02.2007 and Clarification dated 03.03.2008 would go
to show that the penalty enumerated under Rule 13 of
the Odisha Civil Services (Classification, Control and
Appeal) Rules, 1962 should be placed in the CCR/PAR of
the year in which it was awarded.
7.7. Referring to Minutes of the Meeting of Selection
Committee constituted under Regulation 3 of the Indian
Administrative Service (Appointment by Promotion)
Regulations, 1955 for preparation of a list of such
members of the State Civil Services (SCS) of Odisha who
were suitable for promotion to the Indian Administrative
Service (IAS) against the vacancies of 2019 held on
17.12.2020 considered the case of the appellant with an
approach contrary to above Circulars. In the said
Meeting it was remarked against the appellant that
"penalty was imposed on 29.07.2011 annual increment
has been stopped with effect from 01.11.2020". On
perusal of said Minutes it is further revealed that "The
Selection Committee would go through the service
records of each of the eligible officers with special
reference to the performance of the officer during the
preceding 5 years including the vacancy year, and
after deliberations will record the assessment of the
Committee". Thus, the Selection Committee was required
to consider performance of the officer since 2015 as the
vacancy year under consideration was 2019.
7.8. To have clear perception of the concept of "year" 1, the
following observations made in Parveen Kumar Vrs.
Union Public Service Commission, 2010 (1) ILR-Punjab
and Haryana 1015 = 2010 SCC OnLine P&H 1498 are
noteworthy:
"(20) The sole question which emerges for determination
of this Court is whether the age of eligibility is
required to be considered with reference to January
1st of the year for which the select list is prepared or
any other date. A plain reading of the expression
„year‟ in Regulation 2(1)(l) shows that a year would
mean the period commencing on January 1st
1 Definition of the term "year" has been laid down in Regulation 2(1)(l) of the
Indian Administrative Service (Appointment by Promotion) Regulations, 1955,
which stands as follows:
"(l) „YEAR‟ means the period commencing on the first day of January and
ending on the thirty first day of December of the same year."
and ending on December 31st of the same year.
A further perusal of Regulation 5(3) would make it
evident that the Committee is debarred from
considering the cases of such officer of the State
Civil Service who have attained the age of 54 years.
The Regulation further says that the age of 54 years
is required to be determined on January 1st of the
year for which the select list is prepared. In the
present case 4 vacancies are of the year 2006 and
one vacancy of earlier years became available in the
year 2006 on account of non-joining of Shri Joginder
Lai Jain, PCS. It has been rightly contended that the
emphasis in Regulation 5(3) is on the expression „the
year for which the Select List is prepared5, which
would mean that meeting of the Committee may be
held in a subsequent year but the eligibility of the
officers in so far his age is concerned would remain
intact. It has to be judged with reference to the year
for which the select list is prepared.
(21) We find substantive support to the aforesaid
submission in unnumbered proviso to Regulation
5(1). According to the aforesaid proviso if no meeting
of the Committee could be held during a year then
whenever the committee meets again, the select list
has to be prepared separately for each year during
which the committee could not meet as on December
31st of each year. The aforesaid proviso is
consistent with the definition of expression „year‟ in
Regulation 2(1)(l). Therefore, the vacancies for the
year 2006 i.e. from 1st January, 2006 to 31st
December, 2006 have to be determined as on
December 31st of that year. The select list, which
has been erroneously styled as „Select List of 2007‟
in fact, is the select list for the year 2006. Therefore,
the age of the petitioner has to be determined as on
1st January, 2006. Accordingly, he would be
eligible.
(22) It is true that for the vacancies of the year 2006, the
Committee would meet in the year 2007. It does not
follow that if meeting of the Committee is held in
2007 then it would alter the eligibility in so far age
of a candidate is concerned, which is provided by
Regulation 5(3). The effect of any contrary
interpretation would be that the officers like the
petitioners would be deprived of entering the zone of
consideration without any fault of theirs. For
example, the petitioner would not be eligible in
respect of the vacancies, which have arisen in
January 2006 although he was not yet 54 years of
age nor he would be eligible for vacancies of the
year 2007 because he would cross 54 years of age.
The consideration of all eligible candidates annually
in respect of vacancies which have arisen during
that year is to avoid any such anomaly. It is also to
facilitate the work of the Committee so that all
vacancies of that year are considered in one meeting
instead of holding a meeting for every single
vacancy and then determining eligibility.
(23) To better understand, another hypothetical situation
could be considered. Let us assume that the date of
birth of an officer is 31st December, 1952. As on 1st
January, 2006, he would be less than 54 years of
age but on 1st January, 2007 he would certainly
cross the age of 54 years. Therefore, if the reasoning
adopted by the Tribunal and the respondents is
applied then such an officer would never enter the
zone of consideration for the vacancies of year 2006.
(24) The intention of the framers of the Regulations
further become discernible from the reading of un-
amended Regulations, which have linked the age of
54 years to the 1st of April of the year of meeting.
The framers of the Regulations must have found that
the year of meeting has no relationship for
determination of the age of eligibility as it was
wholly fortuitous. Therefore, to keep the
eligibility intact in respect of the year for
which the select list is prepared, amendment
has been incorporated in the year 2000 and an
effort has been made to link the age of
eligibility to the occurrence of vacancies and to
de-link the same from the year of meeting. If
we construe the Regulation 5(3) to mean that
age has to be determined by reference to the
year of meeting then the mischief which is
sought to be remedied would perpetuate and
amendment would lose its object. The
aspirations of a brilliant and meritorious
officer working in the State cannot be defeated
by any arbitrary method of fixing the age of
eligibility, which has got nothing to do with
the basic principles of service jurisprudence,
namely, occurrence of vacancy. Therefore, we
find that the Tribunal has committed a grave error
by presuming that the age of eligibility has to be
determined in respect of the year when the
Committee is supposed to meet, which is wholly
unsustainable."
7.9. From the Minutes of Meeting of the Selection Committee
as at Annexure-10 enclosed to the rejoinder affidavit
filed in the writ proceeding it is apparent that the
appellant was considered disqualified for consideration
in the Cadre of Indian Administrative Service as the
punishment awarded in the year 2011 being carried out
in the year 2020. At this stage the following dicta of the
Hon'ble Supreme Court of India rendered in the case of
Sarva U.P. Gramin Bank Vrs. Manoj Kumar Chak, (2013)
2 SCR 562 is apposite to be referred to:
"36. There is no doubt that punishment and adverse
service record are relevant to determine the
minimum merit by the DPC. But to debar a
candidate, to be considered for promotion, on
the basis of punishment or unsatisfactory
record would require the necessary provision in
the statutory service Rules. There is no such
provision under the 1998 Rules.
***
38. The reliance placed by Mr. Dhruv Mehta on the
judgment of this court in the case of Ram Ashish
Dixit Vrs. Chairman, Purvanchal Gramin Bank, 2013
(6) SCALE 345 = (2012) 13 SCR 332 is also
misconceived. In the aforesaid case, the officer had
been considered for promotion during the pendency
of the departmental proceedings to Middle
Management Grade II. However, the result was kept
in a sealed cover. After finalization of the
proceedings, the appellants requested the authority
to open the sealed cover. He was, however, informed
that he cannot be promoted in view of the bank
Circular dated 28th March, 1998 as he had been
punished. Subsequently, again his case was to be
considered for promotion in September, 1999.
However, he was denied consideration for promotion
in view of the conditions contained in Circular dated
28th March, 1998. It was submitted on behalf of the
appellants that the punishment imposed upon the
staff of the Bank cannot be treated to be an
ineligibility for promotion since the eligibility for
promotion is prescribed under the RRB Rules, 1988.
It was submitted on behalf of the bank (respondent
therein) that since stoppage of increment for 3 years
is a punishment imposed upon the appet1ants,
during the period, he would be undergoing
punishment, he could not have been considered to
be eligible for promotion. Therefore, according to the
bank, respondent had been rightly held to be
ineligible under Circular dated 28th March, 1998. It
was also claimed by the bank that the Circular is
supplementary in nature and cannot be said to be in
any manner inconsistent and ultra vires of the rules.
In answering the rival submissions, this Court held
as under:
„The criteria for promotion from Junior Manager
Grade-I to Middle Management Grade-II is on the
basis of the seniority-cum-merit. Clearly therefore,
the fact that the appellant has been punished for a
misconduct, the same would form a part of his
record of service which would be taken into
consideration while adjudging his suitability on the
criteria of seniority-cum-merit. If on such assessment
of his record of service the appellant is not promoted,
it cannot be said to be by way of punishment. It is a
non-promotion on account of the appellant not
reaching a suitable standard to be promoted on the
basis of the criteria.‟
39. We also do not find any merit in the submission of
Mr. Dhruv Mehta that the Circular No.17 of 2009
dated 30th November, 2009 and Circular dated 12th
July, 2010 are to ensure that the individual
members of the DPC do not recommend for
promotion an individual officer despite having been
punished in the preceding 5 years. Such curtailment
of the power of the DPC would have to be located in
the statutory service rules. The 1998 Rules do not
contain any such provision. The submission
needs merely to be stated, to be rejected. We also do
not find any merit in the submission of Mr. Mehta
that without the aforesaid guidelines, an officer,
even though, he has been punished for gross
misconduct would have to be permitted to be
promoted as no minimum marks are prescribed for
interview or performance appraisal. In our opinion, it
is fallacious to presume that under the 1998 Rules,
once an officer gets the minimum marks in the
written examination, he would be entitled to be
promoted on the basis of seniority alone. There is no
warrant for such a presumption. The misconduct
committed by eligible employee/officer would be a
matter for DPC to take into consideration at the time
of performance appraisal. The past conduct of an
employee can always be taken into consideration in
adjudging the suitability of the officer for performing
the duties of the higher post.
40. There is another very good reason for not accepting
the submissions ma de by Mr. Dhruv Mehta.
Different rules/regulations of the banks provide
specific punishments such as „withholding of
promotion, reduction in rank, lowering in ranks/pay
scales‟. However, there is another range of
penalty such as censure, reprimand, withholding
of increments etc. which are also prescribed under
various staff regulations. To debar such an
employee from being considered for promotion
would tantamount to also inflicting on such
employee, the punishment of withholding of
promotion. In such circumstances, a punishment of
censure/reprimand would, in fact, read as
censure/reprimand + 5 years debarment from
promotion. Thus the circulars issued by the bank
debarring such employees from being considered
would be clearly contrary to the statutory rules. The
circulars clearly do not fall within the ratio in Sant
Ram Sharma Vrs. State of Rajasthan, (1968) 1 SCR
111."
7.10. In Union of India Vrs. Sangram Keshari Nayak, (2007) 5
SCR 896 it has been laid down that:
"11. Promotion is not a fundamental right. Right to be
considered for promotion, however, is a fundamental
right. Such a right brings within its purview an
effective, purposeful and meaningful consideration.
Suitability or otherwise of the candidate concerned,
however, must be left at the hands of the DPC, but
the same has to be determined in terms of the Rules
applicable therefor. Indisputably, the DPC
recommended the case of the respondent for
promotion. On the day on which, it is accepted at the
bar, the DPC held its meeting, no vigilance enquiry
was pending. No decision was also taken by the
employer that a departmental proceeding should be
initiated against him.
12. Terms and conditions of an employee working under
the Central Government are governed by the Rules
framed under the proviso appended to Article 309 of
the Constitution of India or under a statute. The
right to be promoted to a next higher post can,
thus, be curtailed only by reason of valid Rules.
Such a Rule again, however, cannot be
construed in a manner so as to curtail the
right of promotion more than what was
contemplated by law."
7.11. Under the aforesaid premise, it is, thus, perceived that
had the Selection Committee kept in view the Circulars,
notwithstanding the fact of compliance of punishment in
the year 2020 with respect to an award made in the year
2011, the same would have to be construed to have
effect for the year 2011. Such recording of punishment
in the service record, to be more clarified, can be said to
have no effect or impact for consideration of service
records for the years 2015, 2016, 2017, 2018 and 2019.
Therefore, service records of five years of the appellant
should have been considered without taking cognizance
of punishment which related to 2011.
7.12. The learned Single Judge in his Judgment dated
08.01.2025 in RVWPET No.185 of 2024 held that the
appellant cannot escape the consequences of her
inaction, which has now come to light and adversely
impacted her position. It is further observed that the
delayed enforcement of the punishment does not render
the action unjustified; rather, it underscores the
necessity of adherence to established rules and
procedures. It is also observed that disciplinary actions,
once concluded, must be implemented in full measure to
preserve the integrity of the administrative system and
uphold accountability. On minute scrutiny this Court
finds that the learned Single Bench ignored to take into
consideration the effect of Circular dated 03.03.2008
(copy of which was available at Annexure-9 attached to
Rejoinder Affidavit dated 22.08.2023 filed by the
appellant). Hence, had the learned Single Judge taken
into consideration effect and impact of such Circular to
the fact-situation of the present case, the resultant of
the writ petition warranted to be reviewed, inasmuch as
the punishment carried out in the year 2020 would
relate back to the year 2011, i.e., the year in which
award of penalty was passed.
7.13. The learned Single Judge in his Judgment dated
25.06.2024 observed that the appellant, as the
Administrative Officer of SCBMCH was saddled with the
responsibility for implementing the punishment. It is
further observed in the said impugned judgment that it
was the primary duty of the appellant to ensure the
implementation of the punishment. Being a responsible
officer, she could have directly overseen the enforcement
of the punishment order, making it unnecessary to write
to the Superintendent of the Medical College. While so
stating, what is missed by the learned Single Judge to
bear in mind that the Superintendent of SCBMCH has
endorsed the letter of the appellant to the DDO for
carrying out the terms of award and the Memo appended
to such letter also bore issue number of the SCBMCH to
indicate that the same was communicated to the
appropriate authority for information. Therefore, the
mistake is attributable to the appropriate authority for
not entering said fact in the service record relevant to
2011; for the same purpose, the appellant could not be
said to have been held responsible. On the contrary the
evidence on record clearly suggests that the appellant
had taken appropriate steps for compliance of the award
of punishment in the year 2011 itself. Had the
authorities taken steps at the right point of time, the
appellant would have been considered for the promotion
in the Indian Administrative Service Cadre with respect
to the vacancies of the year 2019. The performance of
the appellant has been well judged by the authorities
concerned since 2011 till 2019 and the promotions
granted to her during the said period stand testimony of
such fact.
7.14. Even otherwise, the service record would reflect such
punishment relating to 2011, but such recording of
punishment would not in any way affect service records
from 2015 to 2020, as the Circular dated 03.03.2008
referred to above envisages the recording of punishment
in the service book would relate to the year of award, i.e.,
2011. Therefore, performance of the appellant for five
years prior to 2019 would be from 2015 as per the terms
of conditionalities specified in the Meeting dated
17.12.2020 read with said Circular dated 03.03.2008 for
consideration of promotion in the Indian Administrative
Service Cadre. Thus, at any rate the punishment
awarded which required to be reflected in the service
record being related to the year 2011, the same would
not fall for consideration in the year 2020 for
consideration of promotion in the Indian Administrative
Service Cadre relating to vacancies upto 2019.
Scope of interference in the Judgment of learned Single
Judge in the writ appeal:
8. Having thus found the conclusion as arrived at by the
learned Single Judge on perception of fallacious factual
foundation, this Court takes note of a principle laid
down in the decision rendered by this Court in State of
Odisha & Others Vrs. Shradhanjali Dash, Writ Appeal
No.1204 of 2022 vide Order dated 26.03.2025, wherein
the scope of interference in the Judgment of learned
Single Judge in an intra-Court appeal has been
discussed in the following terms:
"In the case of Management of Narendra & Company Pvt.
Ltd. Vrs. Workmen of Narendra & Company, reported in
(2016) 3 SCC 340, it has been observed as follows:
„5. *** Be that as it may, in an intra-Court appeal, on a
finding of fact, unless the Appellate Bench reaches a
conclusion that the finding of the Single Bench is
perverse, it shall not disturb the same. Merely
because another view or a better view is possible,
there should be no interference with or disturbance
of the order passed by the Single Judge, unless both
sides agree for a fairer approach on relief.‟
In the case of Wander Ltd. Vrs. Antox India (P) Ltd.,
reported in 1990 Supp. SCC 727, following observation
has been made:
„14. The appeals before the Division Bench were against
the exercise of discretion by the Single Judge. In
such appeals, the appellate court will not
interfere with the exercise of discretion of the
court of first instance and substitute its own
discretion except where the discretion has been
shown to have been exercised arbitrarily, or
capriciously or perversely or where the court
had ignored the settled principles of law
regulating grant or refusal of interlocutory
injunctions. An appeal against exercise of
discretion is said to be an appeal on principle.
Appellate Court will not reassess the material and
seek to reach a conclusion different from the one
reached by the Court below if the one reached by
that court was reasonably possible on the material.
The Appellate Court would normally not be justified
in interfering with the exercise of discretion under
appeal solely on the ground that if it had considered
the matter at the trial stage it would have come to a
contrary conclusion. If the discretion has been
exercised by the Trial Court reasonably and in a
judicial manner the fact that the Appellate Court
would have taken a different view may not justify
interference with the trial court‟s exercise of
discretion.‟
In the case of Anindita Mohanty Vrs. The Senior Regional
Manager, H.P. Co. Ltd., Bhubaneswar reported in 2020
(II) ILR-CUT 398, this Court had the occasion to examine
the scope of intra-Court appeal and observed as follows:
„11. *** Let us first examine the power of the Division
Bench while entertaining a Letters Patent appeal
against the judgment/order of the Single Judge. This
writ appeal has been nomenclatured as an
application under Article 4 of the Orissa High Court
Order, 1948 read with Clause 10 of the Letters
Patent Act, 1992. Letters Patent of the Patna High
Court has been made applicable to this Court by
virtue of Orissa High Court Order, 1948. Letters
Patent Appeal is an intra-Court appeal where under
the Letters Patent Bench, sitting as a Court of
Correction, corrects its own orders in exercise of the
same jurisdiction as vested in the Single Bench. (Ref:
(1996) 3 SCC 52: Baddula Lakshmaiah Vrs. Shri
Anjaneya Swami Temple). The Division Bench in
Letters Patent Appeal should not disturb the
finding of fact arrived at by the learned Single
Judge of the Court unless it is shown to be
based on no evidence, perverse, palpably
unreasonable or inconsistent with any
particular position in law. This scope of
interference is within a narrow compass.
Appellate jurisdiction under Letters Patent is
really a corrective jurisdiction and it is used
rarely only to correct errors, if any made.'
In the case of B. Venkatamuni Vrs. C.J. Ayodhya Ram
Singh reported in (2006) 13 SCC 449, it is held that in an
intra-Court appeal, the Division Bench undoubtedly
may be entitled to reappraise both questions of fact
and law, but entertainment of a Letters Patent
Appeal is discretionary and normally the Division
Bench would not, unless there exist cogent reasons,
differ from a finding of fact arrived at by the Single
Judge. Even a Court of first appeal which is the final
Court of appeal on fact may have to exercise some
amount of restraint. Thus a writ appeal is an appeal on
principle where the legality and validity of the judgment
and/or order of the Single Judge is tested and it can be
set aside only when there is a patent error on the
face of the record or the judgment is against
established or settled principle of law. If two views
are possible and a view, which is reasonable and logical,
has been adopted by a Single Judge, the other view,
howsoever appealing may be to the Division Bench; it is
the view adopted by the Single Judge, which would,
normally be allowed to prevail. If the discretion has been
exercised by the Single Judge in good faith and after
giving due weight to relevant matters and without being
swayed away by irrelevant matters and if two views are
possible on the question, then also the Division Bench in
writ appeal should not interfere, even though it would
have exercised its discretion in a different manner, were
the case come initially before it. The exercise of
discretion by the Single Judge should manifestly be
wrong which would then give scope of interference
to the Division Bench."
8.1. With the delineated position as enunciated in the
aforesaid judgment of this Court, there is no confusion
in mind that in case of finding of fact which has gone
into the decision making process of the learned Single
Judge if found to be perverse or de hors the evidence/
materials available on record, this Court in exercise of
the power under Article 4 of the Rules of Orissa High
Court, 1948 read with Clause 10 of the Letters Patent
constituting the High Court of Judicature at Patna can
interfere with the impugned judgment.
8.2. In the case at hand, as discussed in the foregoing
paragraphs, it is held that
i. the appellant could not be held responsible for
implementing the order of penalty awarded against
her in the departmental proceedings;
ii. it could not be said that she had not taken
appropriate step for implementation of such order
as overwhelming evidence available on record to
suggest that the Superintendent had instructed the
DDO to take steps in this regard;
iii. as per Circular dated 03.03.2008 the punishment if
carried out in the year 2020, it would relate to the
year of award of punishment, i.e., 2011 and, in
such view of the matter, even if the punishment is
carried out in the year 2020, the reflection of
remarks in the service record would be relevant for
the year 2011, but not 2019 or 2020;
iv. the Selection Committee was required to consider
performance of five years prior to the year of
vacancy, i.e., since 2015 for the purpose of
assessing eligibility for promotion to the Cadre of
Indian Administrative Service.
8.3. It is not a case of possibility of two views; rather the
evidence made available in the record relating to writ
petition and not disputed by the respondents before the
learned Single Judge lead to suggest only one conclusion
that the appellant could not be held responsible for
implementing the punishment awarded against her and
she could not be said to be instrumental for non-
recording of such fact in her service record.
Conclusion and decision:
9. The entry in the service book regarding a disciplinary
action relates back to the date of the order passed by the
disciplinary authority, even if the punishment or penalty
was carried out or complied with at a later date or
belated stage. This is because the disciplinary order
itself is the triggering event that affects the employee's
service record. The subsequent implementation of the
punishment is considered as a consequence of the
original order, not a separate event that alters the
effective date of the disciplinary action in the service
record. The underlying principle remains consistent. The
rationale behind this approach is to ensure that the
service record accurately reflects the date when the
disciplinary action was initiated and decided upon. This
is crucial for transparency and fairness in employment
matters. This service record is the reflection of the
timeline of events and the impact of disciplinary actions
on an employee's service history.
9.1. The effect of a penalty imposed in disciplinary
proceedings is typically fixed to the year in which the
order or award of punishment was made. In other words,
if there is any administrative or implementation delay,
the penalty is still treated as if it were effective from that
original date. This means that once the "currency of the
penalty" has elapsed or if the officer is deemed fit by the
Selection Committee despite the penalty, the delayed
implementation does not count as an additional or
continuing detriment when the officer's promotion is
considered later. The rationale behind this approach is
to ensure fairness. An employee should not suffer a
compounded disadvantage simply because there was a
delay in the administrative process. The service record
remains tied to its award year, and any delay in its
execution is not meant to extend its impact on the
officer's future career progression. Moreover, judicial
pronouncements have stressed that disciplinary
proceedings should not be allowed to drag on
indefinitely, which reinforces the principle that
administrative delays must not unjustly hinder an
officer's prospects for promotion once the disciplinary
matters are resolved.
10. Promotion is an integral part of any formal sector
employment. The principal object of a promotion system
is to secure the best possible incumbents for higher
positions while maintaining the morale of the whole
organization. In the matter of formulation of a policy for
promotion to a higher post, the two competing principles
which are taken into account are inter-se seniority and
comparative merit of employees who are eligible for
promotion. The principles for assessing merit of the
candidate for promotion as summarized by the Hon'ble
Supreme Court of India in the case of Ravikumar
Dhansukhlal Maheta Vrs. High Court of Gujarat, (2024) 5
SCR 1074 may be extracted hereunder:
"98. The various decisions of this Court have only
developed upon the principles of „Merit-cum-
Seniority‟ and „Seniority-cum-Merit‟ by explaining the
criterions that may be postulated within the
framework of these principles for the purpose of
promotion. The scope of the aforesaid principles is
summarized below:
I) The principle of „Seniority-cum-Merit‟ postulates
that:
i. Minimum requirement of merit and
suitability which is necessary for the
higher post can be prescribed for the
purpose of promotion.
ii. Comparative Assessment amongst the
candidates is not required.
iii. Seniority of a candidate is not a
determinative factor for promotion but has
a predominant role.
iv. Upon fulfilling the minimum qualifications,
promotions must be based on inter-se
seniority.
II) The principle of „Merit-cum-Seniority‟ postulates
that:
i. Merit plays a predominant role in and
seniority alone cannot be given primacy.
ii. Comparative Assessment of Merit is a
crucial, though not a mandatory, factor.
iii. Only where merit is equal in all respects
can inter-se seniority be considered.
Meaning that a junior candidate can be
promoted over the senior if the junior is
more meritorious.
99. The underlying reason why the afore-stated
postulations ought not be understood as mandatory
stems from the very fact that they are not a result of
a legislative creation, but rather one of judicial
interpretation whilst dealing with different promotion
policies, different service conditions, the varied
nature and requirement of posts and more
importantly different sets of rules. Since, these
postulations have been laid down in different
context and varied facts, it would be preposterous to
say that such postulations will apply uniformly to all
services and matters of promotion including the
judicial services.
***
109. The principle of „Merit-cum-Seniority‟ and „Seniority-
cum-Merit‟ are a flexible and a fluid concept akin to
broad principles within which the actual promotion
policy may be formulated. They are not strict rules or
requirements and by no means can supplant or take
the place of statutory rules or policies that have been
formulated, if any. These principles are dynamic in
nature very much like a spectrum and their
application and ambit depends upon the rules, the
policy, the nature of the post and the requirements of
service.
***
114. While laying down the promotion policy or rule, it is
always open to the employer to specify the area and
parameter or the weightage to be given in respect of
merit and seniority separately, so long as the policy
is not a colourable exercise of power, nor has the
effect of violating any statutory scope of interference
and other relatable matters."
10.1. In the wake of the above discussions and legal
perspective of promotion, the conclusion arrived at by
the learned Single Judge in the Judgment dated
25.06.2024 that it was the responsibility of the appellant
for implementation of the Order dated 29.07.2011
indicating minor punishment for withholding of one
annual increment without cumulative effect as has been
awarded by the Disciplinary Authority is without any
foundation and in complete ignorance of Circulars as
made available at Annexures-8 and 9 of the Rejoinder
Affidavit.
10.2. On the analysis of documents available on record, the
untrammelled facts lead to obvious conclusion that even
if the minor punishment enumerated under Rule 13 of
the Odisha Civil Services (Classification, Control and
Appeal) Rules awarded in the departmental proceeding
has been implemented in the year 2020, there is no
room left for the appellant to record such a fact in her
service record. Even as such an aspect was required to
be recorded in the service record by authority concerned,
the same being relatable to 2011, i.e., the year of order of
punishment being passed by the Disciplinary Authority,
the Selection Committee constituted under Regulation 3
of the Indian Administrative Service (Appointment by
Promotion) Regulations, 1955 for preparation of a list of
such members of the State Civil Service (SCS) of Odisha
who are suitable for promotion to the Indian
Administrative Service (IAS) against the vacancies of
2019 in its Meeting held on 17.12.2020 (Annexure-10
enclosed to the rejoinder affidavit) could not have
ignored to assess the candidature of the appellant.
10.3. The Minutes of said Meeting reflect thus:
"***
4.2. Thus, in accordance with Regulation 5(4) of the
Promotion Regulations, the Selection Committee have
to classify the eligible Officers as „Outstanding‟,
„Very Good‟, „Good‟ or „Unfit‟ as the case may be on
an overall relative assessment of their service
records as made available by the State Government.
The Selection Committee would go through the
service records of each of the eligible Officers
with special reference to the performance of
the Officer during the preceding five years
including the vacancy year, and after
deliberations will record the assessment of the
Committee.
4.3. The Committee were further informed as the overall
assessment of an Officer cannot be withheld
because of non-availability of ACRs, the Selection
Committee have to make a categorization on the
basis of available ACRs. Thus, where one or more
ACRs of an Officer have not been written for a year
or more on account of his being on leave, training or
because no Officer supervised his work for more
than three months or for any other valid reason
during the relevant period, the Selection Committee
should consider in lieu thereof the available ACR(s)
of the year(s) immediately preceding the period of
last five years so that the requirement of
consideration of ACRs of at least 5 years is met.
***
6. Further, as intimated by the State Government, the
Committee were informed that as on date of the
meeting:
***
(iv) Penalties indicated against their names have been
imposed on the following officers:
Sl. Name of Officers Nature of penalty Remarks
No. S/Shri/Smt.
*** *** *** ***
4. Sanjita Das Withholding of Penalty was imposed on
one annual 29.07.2011. Annual
increment increment has been
without stopped with effect from
cumulative effect 01.11.2020."
*** *** *** ***
***
8. The Committee examined the service records of
the Officers up to the year 2018-19, whose
names are included in the Annexure and who
fulfilled the conditions of eligibility. On an
overall relative assessment of their service records,
the Committee assessed them as indicated against
their names in the Annexure.
***"
10.4. It is unequivocal from the above that the Selection
Committee took up service records of five years up to the
year 2018-19 for examination. The ground of the
Selection Committee to eliminate the appellant from
being considered for promotion in the Cadre of Indian
Administrative Service stands contradictory to the
clarification contained in the Circular dated 03.03.2008
(Annexure-9) to the effect that "the copy of the order
awarding the penalty to a delinquent officer should be
placed in the CCR/PARs of the year in which it was
awarded".
10.5. Furthermore, as it appears from this that the service
records of the appellant from 2015 to 2019 (five years
prior to the year of vacancy, as the Selection Committee
examined service records up to the year 2018-19) were
required to be considered by the Selection Committee.
Even though the order of punishment was carried out in
the year 2020, the service record of 2011 would have to
be reflected with such fact in view of Clarification
contained in Circular dated 03.03.2008. There is
nothing placed by the respondents before this Court
with regard to any adverse entry in the service records
for five years up to the year 2018-19. No impediment is
cited in the Minutes of Meeting of the Selection
Committee for consideration of the case of the appellant
that notwithstanding the minor penalty being imposed in
the year 2011, she was unfit or not suitable for
promotion. Rather the fact adumbrated and remained
undisputed that after 2011, she was given promotions to
the higher ranks till 2020.
10.6. A reference can be had to the "Guidelines on treatment
of effect of penalties on promotion-- role of Departmental
Promotion Committee" vide Office Memorandum
No.22011/4/2007-Estt. (D), dated 28.04.2014 issued by
the Government of India, Ministry of Personnel, Public
Grievances & Pension, Department of Personnel &
Training, wherein it has clearly been stipulated that
"All the administrative authorities in the Ministries/
Department are advised to place relevant records,
including chargesheet, if any, issued to the officer
concerned, penalty imposed, etc., before the DPC/ACC
who will decide the suitability of officer for promotion
keeping in view the general service records of the officer
including the circumstances leading to the imposition of
the chargesheet or penalty imposed. If such an officer is
found suitable, promotion will be given effect after the
currency of the penalty is over."
Taking cue from the above, it can safely be said that the
Selection Committee in the present case should have
considered the service records of the appellant for the
purpose of promotion in the Cadre of Indian
Administrative Service.
10.7. It has already been discussed if at all the authorities are
required to reflect the minor punishment being awarded
vide Order dated 29.07.2011 with Memo to appropriate
authorities indicating supply of copy of order thereof in
the service records of the appellant, it has to be related
and relevant to the year of award of punishment, i.e.,
2011. Notwithstanding recording of the punishment
awarded in the year 2011 was shown to have been
entered in the service record in the year 2020 as claimed
to have been placed before the Selection Committee,
such factor could not be taken as disqualification for
consideration of promotion in the Cadre of Indian
Administrative Service relating to vacancies up to the
year 2019 as the performance of eligible officers were to
be assessed as per the material available in the service
records since 2015.
10.8. This aspect was brought to the notice of the learned
Single Judge by way of an Affidavit dated 30.09.2022,
wherein it was asserted as follows:
"Subsequently the said Notification was modified to the
extent that a copy of the Order awarding penalty to a
delinquent should be placed in the CCR/PAR of the year
in which it is awarded vide Letter dated 03.03.2008."
10.9. Such assertion of the appellant by way of affirmation in
the affidavit has not been countered or controverted by
the respondents. Hence, this Court is persuaded by the
argument of the learned Senior Advocate Sri Durga
Prasad Nanda that the learned Single Judge should have
refuted the contention of the respondents that the
punishment awarded vide Order dated 29.07.2011,
being carried out in the year 2020, the same could not
be construed as ineligibility of the appellant for the
purpose of her consideration for promotion in the Cadre
of Indian Administrative Service.
11. Under above premises, the Judgment dated 25.06.2024
of the learned Single Judge cannot be countenanced in
the eye of law and, hence, this Court has no hesitation
to set aside the impugned Judgment dated 25.06.2024
of the learned Single Judge rendered in the writ petition.
Consequently, the writ appeal stands allowed and
accordingly the writ petition is also allowed to the extent
indicated above.
11.1. It may be apposite to observe that the deposits/
recoveries as stated to have been made in compliance of
the Order dated 29.07.2011 (Annexure-1), is to be
treated as if the same is made in the year 2011 itself.
11.2. Non-recording of fact of punishment being awarded vide
Order dated 29.07.2011 of the Revenue and Disaster
Management Department in the service book cannot be
attributable to the appellant-delinquent. So, this Court
having allowed the writ appeal and as a consequence
thereof the writ petition, accedes to the prayer(s) of the
writ petitioner.
11.3. It is, therefore, directed that the respondents are
required to reckon the date of punishment with effect
from 29.07.2011 and recovery of the amount(s) as
awarded in the Order of punishment dated 29.07.2011
would relate back to the year 2011. Accordingly, the
appellant deserves to be extended all consequential
benefits.
11.4. It is also directed that the case of the appellant for
promotion be undertaken and the consequential effect of
result in the writ petition/writ appeal being allowed be
extended preferably within a period of three months from
date in the light of the observations made herein above.
12. With the aforesaid observations and directions, this Writ
Appeal stands disposed of along with all the pending
interlocutory applications, if any, but in the
circumstances, there shall be no orders as to costs.
I agree.
(HARISH TANDON) (MURAHARI SRI RAMAN)
CHIEF JUSTICE JUDGE
Signature Not
Verified
Digitally Signed
Signed by: ASWINI KUMAR
SETHY
Designation: Personal Assistant
(Secretary-in-Charge)
Reason: Authentication
Location: ORISSA HIGH COURT,
CUTTACK
Date: 19-Jun-2025 17:25:44
High Court of Orissa, Cuttack
The 19th June, 2025//Aswini/MRS
