Durga Prasad Mohanty Vs State of Odisha

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Digitally Signed Signed by: BASANTA KUMAR BARIK Designation: Secretary Reason: Authentication Location: High Court of Orissa, Cuttack Date: 09-Jan-2025 14:37:38

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IN THE HIGH COURT OF ORISSA AT CUTTACK

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W.P.(C) No.11408 of 2021

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(In the matter of an application under Articles 226 and 227 of the Constitution of India)

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Durga Prasad Mohanty …. Petitioner -versus…. State of Odisha and another Opposite Parties

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Advocate(s) appeared in this case:-

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For Petitioner : Mr. D. Mohapatra, Advocate For Opposite Parties : Mr. D. Mohanty, A.G.A.

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CORAM: JUSTICE B.P. ROUTRAY

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JUDGMENT

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16^th December 2024

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B.P. Routray, J.

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1. Heard Mr. D. Mohapatra, learned Advocate for the Petitioner as

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well as Mr. D. Mohanty, learned Additional Government Advocate for the State-Opposite Parties.

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2. The Petitioner claims promotion in the cadre of “OT&AS” under

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the Odisha Taxation and Accounts Service Rules, 2011 (in short, “2011 Rules”), w.e.f. his juniors were promoted pursuant to the D.P.C. held on 11.01.2013 and 28.02.2013.

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W.P.(C) No.11408 of 2021

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Signature Not Verified

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Digitally Signed Signed by: BASANTA KUMAR BARIK Designation: Secretary Reason: Authentication Location: High Court of Orissa, Cuttack Date: 09-Jan-2025 14:37:38

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3. The Petitioner’s case is that, he was eligible for recruitment by way of selection to the cadre of OT&AS pursuant to Rule 4 of 2011 Rules in the year 2012 when the process of recruitment by selection was taken up.

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For considered of recruitment for the year 2012 by way of selection as per Rule 4(c) of 2011 Rules, recommendations from different authorities were invited. The last date of sending recommendation was 31.3.2012. But the name of the Petitioner despite having eligibility was not recommended due to non-availability of previous two years CCRs. Thus the Petitioner approached the Odisha Administrative Tribunal (OAT), Bhubaneswar in OA No.632 of 2012. However, a departmental proceeding was initiated against him in the meantime on 12.09.2012. Subsequently, he was exonerated from the charges in the departmental proceeding on 03.02.2014.

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4. The D.P.C. meeting was held on 11.01.2013 and 28.02.2013 to

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give promotions to such persons including juniors to the Petitioner. Subsequent thereto, OA No.632 of 2012 filed by the Petitioner was dismissed in the year 2014. The Petitioner then approached this Court in W.P.(C) No.12446 of 2014 and this Court vide interim order dated

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W.P.(C) No.11408 of 2021

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Signature Not Verified

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Digitally Signed Signed by: BASANTA KUMAR BARIK Designation: Secretary Reason: Authentication Location: High Court of Orissa, Cuttack Date: 09-Jan-2025 14:37:38

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24.01.2019 directed to hold review D.P.C. without prejudice to the rights and contentions of the parties. A review D.P.C. was accordingly held on 21.2.2019 and it recommended to give promotion to the Petitioner (by way of selection) to OT&AS-II cadre. Consequently, the Petitioner was finally given promotion on 16.11.2019.

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Now the Petitioner claims to effect his promotion with retrospective date of promotion given to his juniors pursuant to the D.P.C. held on 11.01.2013 and 28.02.2013.

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5. It needs to be mentioned here that, the earlier writ petition, i.e.

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W.P.(C) No.12446 of 2014 was disposed of on 21.11.2019 with a direction to the Petitioner to approach the competent authority for redressal of his grievance.

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Pursuant to such direction of this Court dated 21.11.2019, the Petitioner made a representation to the authority and the Government of Odisha in Finance Department rejected the prayer of the Petitioner to give him antedated promotion as per their order dated 26.6.2020 under Annexure-6.

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6. Mr. Mohapatra, learned counsel for the Petitioner submits that, since the review D.P.C. considered the eligibility of the Petitioner on the date as on 11.01.2013 and 28.02.2013, and recommended for his

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W.P.(C) No.11408 of 2021 Page 3 of 9

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Signature Not Verified

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Digitally Signed Signed by: BASANTA KUMAR BARIK Designation: Secretary Reason: Authentication Location: High Court of Orissa, Cuttack Date: 09-Jan-2025 14:37:38

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promotion by way of selection, the authorities should have granted him such promotion with effect from such date when the juniors were promoted pursuant to the D.P.C. dated 11.01.2013 and 28.02.2013. According to Mr. Mohapatra, once the eligibility criteria of the Petitioner was considered as on 11.01.2013 and 28.02.2013, he cannot be debarred from getting promotion from such retrospective date when his juniors were promoted pursuant to that D.P.C. of the year 2013.

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7. Mr. Mohanty, learned Additional Government Advocate on the other hand submits that, since a departmental proceeding was pending against the Petitioner on the date of consideration of earlier D.P.C. of the year 2013, he is not eligible to get promotion (by selection) from such retrospective date. The review D.P.C. considered the case of the Petitioner for promotion only in the year 2019 and thus his prayer to draw benefits from the date of his juniors got promotion is not permissible as he was not eligible on such date.

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8. Rule 4(c) of 2011 Rules prescribes that, not more than 20% of the posts shall be filled up by way of selection as per Rule 7. Rule 7 speaks that, no person under clause (c) of Rule 4 shall be considered for appointment by selection unless; (a) He/She is of outstanding merit

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Signature Not Verified

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Digitally Signed Signed by: BASANTA KUMAR BARIK Designation: Secretary Reason: Authentication Location: High Court of Orissa, Cuttack Date: 09-Jan-2025 14:37:38

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and ability, (b) He/She has worked for at least 3 years in a post carrying scale of pay of Rs.9300-34800/- and Grade Pay Rs.4200/- in P.B.-2, (c) He/She has passed the prescribed departmental examination.

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Further Sub-rule(2) of Rule 7 says that, he/she must not be more than 50 years of age on the 1^st day of April of the year in which the selection is made.

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9. On 25^th January 2012, a circular was issued by the Government of Odisha in Finance Department relating to appointment in OT&ASClass-II by way of selection for the year 2012 (Annexure-A/2). At Clause-4 of said circular dated 25.01.2012, it is mentioned that no candidate should be nominated against whom CBI/Vigilance/ Departmental Proceedings, etc. are pending or contemplated.

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10. It is true that, the contention of the Petitioner regarding nonrecommendation of his name for non-availability of previous years CCRs for his selection in the year 2012, is not denied by the Opposite Parties in their counter affidavit. The State in their counter affidavit has emphasized upon the fact that the disciplinary proceeding being pending against the Petitioner on the date of consideration by the

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D.P.C., he cannot be given promotion retrospectively.

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W.P.(C) No.11408 of 2021

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Signature Not Verified

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Digitally Signed Signed by: BASANTA KUMAR BARIK Designation: Secretary Reason: Authentication Location: High Court of Orissa, Cuttack Date: 09-Jan-2025 14:37:38

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11. The review D.P.C. was held on 21.02.2019 pursuant to the order

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of this Court dated 24.1.2019 passed in W.P.(C) No.12446 of 2014. The relevant finding of the review D.P.C. is to the effect that, the service particulars/CCRs of the Petitioner for the period 2006-2007 to 2010-2011 having been considered which includes three outstanding CCRs with one partly outstanding and another partly very good, he was found suitable for promotion by way of selection to OT&AS cadre. Accordingly, his name was recommended for promotion by way of selection. The relevant observations of the review D.P.C. made at paragraph 7 & 10 are re-produced below:-

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“7. With this background, the Selection Board scrutinized the service particulars / CCRs of Sri Durga Prasad Mohanty as an UR candidate to ascertain whether he would have been selected by the DPC held on 11.1.2013 and 28.2.2013 for promotion to OT&AS cadre had his name been sponsored by his employer with CCRs for the year 2006-07 to 2010-11.

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Applying the eligibility criteria adopted in the Selection Board meeting held on 11.1.2013 and 28.2.2013 for adjudging the suitability for promotion by way of selection to OT&AS cadre, the Selection Board now found Shri Durga Prasad Mohanty suitable and recommends his name for promotion to OT&AS—II by way of selection.”

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W.P.(C) No.11408 of 2021

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Signature Not Verified

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Digitally Signed Signed by: BASANTA KUMAR BARIK Designation: Secretary Reason: Authentication Location: High Court of Orissa, Cuttack Date: 09-Jan-2025 14:37:38

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12. The question falls for determination here that, the Petitioner after being considered suitable for promotion by review D.P.C. in the year 2019 taking into his eligibility as on 11.1.2013 and 28.2.2013, whether

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can be given promotion retrospectively ignoring pendency of disciplinary proceeding against him on that date ?

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13. The fact that, the disciplinary proceeding was pending against him from 12.9.2012 to 3.2.2014 is admitted. The requirement prescribed in the circular dated 25.1.2012 is that, no candidate having disciplinary proceeding against him should be nominated for promotion in terms of Rule 4(c) of 2011 Rules. So when the disciplinary proceeding was admittedly pending against the Petitioner as on the date of consideration by the D.P.C., he is found disqualified for such consideration in 2013. It is a different aspect that he was exonerated from the disciplinary proceeding in the year 2014 which was initiated in the year 2012. When the review D.P.C. was held in 2019, of course taking the age of the Petitioner more than 50 years in 2019, they took the eligibility for the year 2013 when the D.P.C. was held to give him promotion. Despite the fact that, a disciplinary proceeding was pending against the Petitioner in 2013, the review D.P.C. considered the prospects of the Petitioner for promotion under

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Signature Not Verified

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Digitally Signed Signed by: BASANTA KUMAR BARIK Designation: Secretary Reason: Authentication Location: High Court of Orissa, Cuttack Date: 09-Jan-2025 14:37:38

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Rule 4(c) of 2011 Rules taking note of his subsequent exoneration in the year 2014. Therefore, what is submitted by Mr. Mohapatra that the Petitioner should be given promotion retrospectively since the review D.P.C. has considered his eligibility as on 11.1.2013 and 28.2.2013, is not appealing to the reasons as there was a disciplinary proceeding pending against the Petitioner on 11.1.2013 and 28.2.2013.

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14. It would be incorrect to say that, once the review D.P.C. has took the eligibility of the Petitioner in the year 2013 ignoring the disqualification with regard to pendency of disciplinary proceeding, he should have been given benefits from 2013, i.e. from the date his juniors were promoted. The fact of pendency of disciplinary proceeding in the year 2013 has become irrelevant in the year 2019, particularly after exoneration of the Petitioner in the year 2014. Keeping this in mind, the Petitioner was extended with the benefits of promotion by selection in terms of Rule 4(c) of 2011 Rules prospectively. As such, the contention of the Petitioner to extend his entitlement retrospectively from 11.01.2013 or 28.02.2013, when his juniors were promoted, is rejected. The authority taking note of such disqualification prevailing against the Petitioner in the year 2013 has rightly rejected his grievance under Annexure-6 not to give him the

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Signature Not Verified

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Digitally Signed Signed by: BASANTA KUMAR BARIK Designation: Secretary Reason: Authentication Location: High Court of Orissa, Cuttack Date: 09-Jan-2025 14:37:38

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benefits of promotion retrospectively. Accordingly, the prayer of the

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Petitioner is found without merit.

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15. The writ petition is dismissed.

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(B.P. Routray) Judge

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B.K. Barik/Secretary

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