Executive Engineer denied promotion due to pendency of vigilance cases since 2011 without charge sheets. Writ petition disposed of with direction to Principal Secretary to consider representation and applicability of Nihar Ranjan Nayak and Joseph Barik decisions.
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IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.29000 of 2021
Basanta Kumar Nayak
…. Petitioner
Mr. Bijaya Kumar Dash, Advocate along with
Mr. Smruti Ranjan Dash, Advocate
-versus-
State of Odisha and another
…. Opposite Parties Mr. Arnav Behera, ASC
CORAM:
HON’BLE MR. JUSTICE MURAHARI SRI RAMAN
Order No.
06.
ORDER 18.09.2024
This matter is taken up through Hybrid Mode.
And/or issue any other appropriate writ/writs, order/orders, direction/directions as deem fit and proper in the fitness of the case;
And for this act of this kindness as in duty bound the petitioner shall ever pray.”
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3.1. While the petitioner was working as Executive Engineer, three vigilance cases were instituted against him vide Koraput Vigilance P.S. Case Nos.3 of 2011, 5 of 2011 and 6 of 2011, corresponding to G.R Case Nos.3 of 2011, 5 of 2011 and 6 of 2011, pending in the court of the learned Special Judge (Vigilance), Koraput.
4.1. He continued to submit that on a plain reading of the F.I.R. and the memorandum of charges levelled against the petitioner, no prima facie case is established against him. Though the vigilance cases were instituted against the petitioner in the year 2011, till date charge sheets in those cases have not yet been filed. The petitioner has no role in delay in disposal of the criminal case as well as the disciplinary proceedings instituted against him.
4.2. He further submitted that law is well settled that a person cannot be put to unnecessary harassment for such a long period. But, keeping the matter hanging for more than thirteen years, the petitioner has already been penalized.
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4.3. He also submitted that there is no legal impediment on the part of the authorities to promote the petitioner to the post of Superintending Engineer and Additional Chief Engineer from the date his immediate juniors got such promotions with full financial benefits.
4.4. He further submitted that law is well settled that mere pendency of a criminal case for a long time an employee cannot be put to harassment and debar him the rightful claim for promotion. Alternative argument has been advanced by learned counsel for the petitioner that if no regular promotion is permissible, ad hoc promotion could be given to him/her. In this regard, he has also drawn notice of this Court to the Office Memorandum dated 17.06.2021 issued by the Government of Odisha in General Administration and Public Grievance Department, relevant portion of which reads as thus:-
“No.GAD-SC-GCS-0035-2020— 15643/Gen.
Government of Odisha
General Administration and Public Grievance Department Office Memorandum
Bhubaneswar, dated the 17th June, 2021
Subject:- Promotion of Government servants against whom Disciplinary Proceedings are pending procedure to be followed.
The Procedure to be adopted by the Departmental Promotion Committee while selecting employees for promotion to the next higher grade when any Disciplinary Proceeding is pending has been prescribed in G.A. & P.G. Department Office Memorandum No.3928/Gen., dated 18.02.1994 r/w Office Memorandum No.29699/Gen., dated 01.11.1997. Besides, in order to ensure expeditious disposal of proceedings to facilitate timely promotion of Government
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Servants, a quarterly review of the Disciplinary Proceeding has been prescribed in G.A. & P.G. Department Office Memorandum No.9162/Gen., dated 29.04.2017.
Instances have come to the notice of the Government that in spite of the afore-stated instructions, the Disciplinary Proceedings against the Government Servants are pending for long period, which unfairly results in depriving Government Servants of getting promotions.
2. After careful consideration of the above aspects, it has been decided by the Government to prescribe the following principles for consideration of ad hoc promotion of Government employees against whom Disciplinary proceedings are pending for more than two years:-
(i) In cases where Disciplinary Proceedings are pending under Rule 15 of O.C.S. (CC&A) Rules, 1962, the sealed cover procedure as envisaged in G.A. & P.G. Department Office Memorandum No.3928/Gen., dated the 18th February 1994 should be adopted.
(ii) In cases where Disciplinary Proceedings against the delinquent Government employees have not come to an end even after the expiry of two years from the date of the meeting of the Departmental Promotion Committee in which the sealed cover procedure in his/her respect was adopted, the Appointing Authority may review the promotion cases subsequently (provided the delinquent Government employee is not under suspension) to consider the desirability of allowing ad hoc promotion, if the delinquent officer has not defaulted in expeditious disposal of Disciplinary Proceedings keeping in view the following aspects:
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3. In case the Appointing Authority considers that it would not be against the public interest to allow ad hoc promotion to the employee concerned, his/her case should be placed before the next Departmental Promotion Committee to be held in the normal course to decide whether the employee is suitable for promotion on ad hoc basis. If the employee is considered suitable, on the basis of the totality of his/her record of service, without taking into account the pending disciplinary case against him/her, an order of ad hoc promotion may be issued in his/her favour from the due date of his/her promotion on notional basis and financial benefits from the actual date of joining against promotional post.
In case the Disciplinary Proceeding continues till the regular promotion of his/her earlier junior officer to the subsequent promotional rank, the officer concerned shall be considered for further ad hoc promotion on the basis of totality of his/her record of service without taking into account the pending Disciplinary Proceeding against him.
The order of ad hoc promotion shall make it clear
that:-
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Government on the pending disciplinary proceeding then the case of the employee would be decided as per the decision on the Disciplinary Proceeding and extant Government rules.
This Department Office Memorandum No.9162/Gen., dated 29.04.2017 stands modified to the above effect. All other conditions contained in the aforesaid Office Memorandum remain unchanged.
By order of Governor
Sd/-
Additional Chief Secretary to Government”
4.5. Mr. Bijaya Kumar Dash, learned counsel appearing for the petitioner distinguishing the Division Bench decision of this Court rendered in State of Odisha and another Vrs. Joseph Barik, 2023 (II) ILR-CUT 361 , cited a judgment dated 06.11.2023 rendered by a
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co-ordinate Bench of this Court in W.P.(C) No.21793 of 2021 (Nihar Ranjan Nayak Vrs. State of Odisha and another) and submitted that since there is inordinate delay in disposal of the vigilance cases and disciplinary proceedings, the petitioner deserves to be considered for promotion to the higher rank by the authorities. Thus, being the factual matrix, he submitted that the petitioner should not have been deprived of enjoying the fruits of promotional post in the rank of Superintendent Engineer.
4.6. His alternative submission before this Court is that since the petitioner has already approached the Principal Secretary in Housing and Urban Development Department, Government of Odisha, Bhubaneswar, opposite party no.1 by a representation dated 30.07.2021 under Annexure-6, the authority concerned can consider the same and take an appropriate decision on the same within a stipulated period.
5.1. Sri Arnav Behera, learned Additional Standing Counsel has made the submission that the Office Memorandum dated
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17.06.2021 on which the learned counsel for the petitioner placed heavy reliance has been considered in the case of Joseph Barik (supra) at paragraph 8 of the judgment, which is to the following effect:
“8. The Court has been shown a compilation of Office Memoranda (OMs) and Notifications issued by the Government of Odisha from time to time. These include OM dated 18th February 1994, 4th July 1995, 1st November 1997, 28th January 1999, 28th May 2012, 29th April 2017 and 17th June 2021issued by the General Administration Department. None of them envisages or permits grant of promotion to a government servant either on regular or on ad hoc basis during the pendency of a criminal case involving such government servant.”
5.2. He went on to submit that in the instant case, the petitioner does seek for consideration of promotion in terms of said Office Memorandum, which has been declined by this Court in respect of similarly situated employees in Joseph Barik (supra). 6. Considering the aforesaid submissions of the learned counsel for the parties, this Court disposes of this writ petition with a direction to the Principal Secretary in Housing and Urban Development Department, Government of Odisha, opposite party no.1, to consider and dispose of the representation filed by the petitioner under Annexure-6 in accordance with law. The authority concerned may also consider the applicability of legal position as enunciated in Nihar Ranjan Nayak Vrs. State of Odisha, W.P.(C) No.21793 of 2021 vide Judgment dated 06.11.2023, wherein this Court on the factual basis that the case of Nihar Ranjan Nayak had
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already been recommended by the DPC notwithstanding pendency of criminal case. The authority is also at liberty to have regard to State of Odisha and another Vrs. Joseph Barik, 2023 (II) ILR-CUT 361 for adjudicating as to whether there is similitude of facts with that of the instant case so as to decide the applicability of the principles as expounded in both the above judgments as referred to. 7. It is made clear that this Court has expressed no opinion on the merits of the case and expects the opposite party No.1-authority concerned shall do the needful preferably not later than three months hence and communicate the decision to the petitioner. 8. With the aforesaid observation and direction, this writ petition stands disposed of.
(M.S. Raman) Judge
Aswini/MRS
Signature Not Verified
Digitally Signed Signed by: MANORANJAN SAMAL Designation: PERSONAL ASSISTANT Reason: Authentication Location: Orissa High Court, Cuttack Date: 18-Sep-2024 18:52:56
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Colour shows how this judgement treated each authority
State of Odisha and another Vrs. Joseph BarikReferred¶6
2023 (II) ILR-CUT 361 · Who else cites this
Nihar Ranjan Nayak Vrs. State of Odisha and anotherReferred¶6
W.P.(C) No.21793 of 2021, Judgment dated 06.11.2023
2 provisions across 2 enactments
Basanta Kumar Nayak
State of Odisha
Opposite Party No.2
Murahari Sri Raman
As recorded by the court registry
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