Pradeep Kumar Barik Vs State of Odisha

IN THE HIGH COURT OF ORISSA AT CUTTACK

W.P.(C) No.2426 of 2022

An application filed under Articles 226 and 227 of the Constitution of India.

Pradeep Kumar Barik ..... Petitioner Mr. G.Mukharjee, Senior Advocate. -versus- State of Odisha & Ors. ..... Opposite Parties Mr. M.R.Mohanty, AGA.

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CORAM:

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JUSTICE A.K. MOHAPATRA

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_____________________________________________________ Date of Hearing : 06.11.2024 | Date of Judgment: 16.04.2025 _____________________________________________________

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A.K. Mohapatra, J. :

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1. The present Writ Petition has been filed by the Petitioner challenging the Notification dated 29.12.2021 (vide Notification No.RDMCON-MISC-0014-2020 39619/R&DM) passed by the Revenue & Disaster Management Department, Odisha, with a prayer for a direction to the Opposite Parties to appoint the Petitioner in the post of Odisha Revenue Service, Group- B in Level-10 in pursuance of the Notification dated

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18.01.2020 and with a further prayer for a direction to include the name of the petitioner in the abovementioned Notification No.39619/R&DM dated 29.12.2021, passed by the Revenue & Disaster Management Department, Odisha.

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FACTS OF THE CASE

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2. The essential facts leading to the filing of the present writ petition are briefly outlined hereinbelow. Initially the Petitioner was appointed as a Senior Revenue Inspector in Kujanga Tahasil, Jagatsinghpur. Thereafter, the Board of Revenue, Odisha vide its letter No.1059/CS dated 18.11.2020 (under Annexure-1 to the present writ petition), issued a letter to all Revenue Divisional Commissioners/Inspector General of Registration Odisha, Cuttack/ Director of Land Records and Survey and consolidation Odisha, Cuttack for recruitment to the post of ORS Group-B by the way of promotion, for the recruitment year 2020. The recruitment, as per the aforesaid letter dated 18.11.2020, was to be made for a total of 188 posts, out of which 129 posts are in the UR category, 21 posts in the SC category and 38 posts in the ST category. Such posts belong to the cadre of Odisha Revenue Service Group-B (herein referred to as “ORS Group-B”) by the way of “promotion”

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under Rule 4(b) of the Odisha Revenue Service (Recruitment) Amendment Rule, 2020.

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3. The promotion was to be made from amongst the officers having outstanding merit from the departments and subject to fulfilment of the eligibility criteria as enshrined in the aforesaid letter dated 18.11.2020. The requisite eligibility criteria, as per the aforesaid letter, is reproduced herewith for better appreciation;

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“ a. He /She is a graduate and has worked at least 5 years in one or-more than one post taken together as Consolidator Grade-1, Kanungo, Revenue Supervisor, Revenue Inspector or Ministerial Officer under Board of Revenue/RDCs/Collectors and other Revenue Offices as on 01.01.2020.

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b. Has passed Departmental Examination, if any. c. Not more than 53 years of aged as on 01.01.2020 .”

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4. Upon receipt of the aforesaid letter dated 18.11.2020,

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the Revenue Divisional Commissioner, Central Division, Odisha, Cuttack wrote a letter on 20.11.2020 (Annexure-2 to the present writ petition) to all Collectors under Central Division, Cuttack with regard to the aforesaid recruitment to Odisha Revenue Service Group-B. By virtue of the aforesaid letter

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dated 20.11.2020, the Collectors were requested to send recommendation of all eligible candidates in the prescribed format with the attested CCRs of the relevant period and the list of the recommended candidates with relevant data should be

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arranged as per their seniority following the principle laid down in Rule-8 of the Odisha Revenue Service (Recruitment) Rule, 2021, which is quoted hereinbelow;

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“ 8. Preparation of Gradation List for Promotion:-

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(1) For the purpose of consideration of promotion to the service under clause (b) of rule 4 a common gradation list of eligible officers shall be prepared by the Secretary, Board of Revenue, Orissa on the basis of their date of appointment to their respective cadres:

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Explanation - While preparing the common Gradation list the officers in higher pay scale or with higher grade pay in a pay band will be placed above those in the lower pay scale or lower grade pay in same pay band.

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Provided that the inter-se-seniority fixed in their respective cadre shall not be violated.

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Provided further that in case, the date of appointment of two or more officers happens

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to be the same, the person elder in age shall be placed above the younger.”

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Thereafter, the Office of the Tahasildar Kujang,

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Jagatsinghpur issued a letter No.4069 dated 01.12.2020 (under Annexure-3) to the Deputy Collector, Establishment Section, Collectorate, intimating him about the aforesaid recruitment.

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5. After getting such intimation, the Collector Jagatsinghpur, vide his letter No.13833/Estt dated 10.12.2020 (a truecopy of which has been reproduced under Annexure-4), issued a letter to the Secretary, Revenue Divisional Commissioner (Central Division), Cuttack for recommending names of the eligible Revenue Supervisors, Revenue Inspectors and Revenue Ministerial Officers of the district for recruitment to the posts of ORS Group-B, by way of promotion for the year

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2020, under Rule-4(b) of Odisha Revenue Service (Recruitment) Rule-2011 and Odisha Revenue Service Recruitment (Amendment) Rules-2017. It is in this list that the name of present Petitioner finds place at SL No.2 in the column of Ministerial Officer. In the meantime, the Office of the Collector and District Magistrate, Jagatsinghpur (Establishment Section) vide its Order No.13511/Estt, dated 23.11.2021,

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promoted three Senior Revenue Assistants to the post of Section Officers in level-9 of the pay matrix, as specified in the first schedule of the ORSP Rule, 2017, with the usual D.A and other allowances from time to time. The present Petitioner, in pursuance of the aforesaid letter, has also been promoted as Section Officer in Kujanga Block.

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6. While the matter stood thus, the department of Revenue and Disaster Management of Odisha, pursuant to the letter dated 18.11.2020, issued the impugned Notification No. 39619/R&DM, dated 29.12.2021 (under Annexure-6 to the present writ petition), thereby appointing 153 candidates to the post of ORS Group-B, in Level-10 of Pay Matrix of ORSP Rules, 2017, leaving behind the present Petitioner. It is the aforesaid notification that is the primary cause of grievance of the present Petitioner and the Petitioner has approached this Court challenging his non-inclusion in the select list.

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7. Heard learned senior counsel representing the Petitioner and learned Additional Government Advocate. Perused the writ application and the documents annexed thereto.

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CONTENTIONS OF THE PETITIONER

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8. Learned Counsel for the Petitioner at the outset contended that the Petitioner has been unfairly and unjustly excluded from the impugned notification dated 29.12.2021 despite possessing more experience and having an excellent career record as reflected in the CCRs. To illustrate the Petitioner’s outstanding performance rendered throughout his unblemished service career (i.e. from 2012-13 to 2018-19), the Learned Counsel appearing on behalf of the Petitioner has drawn attention of this court to the NOC from the Vigilance department and the Petitioner’s Character Roll Certificates under Annexure-7 series. Moreover, the Learned Counsel for the Petitioner has also put forth the argument that even though the Petitioner had already satisfied all the eligibility criteria set out by the state government in the notification dated 18.11.2020 (under Annexure-1 to the present writ petition), the Opposite Parties have unjustly selected candidates junior to the Petitioner without considering the eligibility of the Petitioner. Moreover, Learned Counsel appearing on behalf of the Petitioner has clarified that the Petitioner is challenging the impugned notification dated 29.12.2021 for the non-inclusion of his name

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and no prayer has been made for quashing of the said notification.

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9. Furthermore, with regard to the seniority of the Petitioner, the Learned Counsel appearing on behalf of the Petitioner referred to para 7 of the additional affidavit. Therein, the Learned Counsel for the Petitioner has compiled a table of service particulars of candidates at Sl Nos.41, 42, 59, 206, 215, 234 as compared to the Petitioner. Referring to the aforesaid table, the Learned Counsel for Petitioner contended that the Petitioner has rendered 22 years of service and is senior to all the other officers referred to in the aforesaid document. Ergo, the Petitioner should not have been left out of the promotion to the rank of ORS Group-B. In order to further substantiate his claims, the Learned Counsel appearing on behalf of the Petitioner has also placed reference on the judgement by a coordinate bench of this court in Jagannath Aich v. State of Odisha and Ors. bearing W.P.(C) OAC No.1380 of 2013 , delivered on 10.08.2021.

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10. Additionally, referring to Annexure-B/2 to the State’s counter affidavit, the Learned Counsel appearing on behalf of the Petitioner alleges that the aforesaid document, which is the

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common gradation list dated 05.11.2021, and has been filed by the Opposite Parties, is an incomplete document. Furthermore, referring to the Remarks column of Sl. No.200 (i.e. the Petitioner), the Learned Counsel for the Petitioner contended that the negative remarks mentioned therein - with respect to the letter No.886 dated 06.08.2021 - are wholly unknown to the Petitioner and such adverse remarks were never even communicated to the Petitioner. In fact, it has been contended that the Petitioner has never faced any Disciplinary Proceeding or any Vigilance Proceeding throughout his service carrier.

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11. Moreover, the Learned Counsel appearing on behalf of the Petitioner has submitted that the Collector, Jagatsinghpur had earlier promoted the petitioner to the post of Section Officer in Level-9 of the pay matrix (as per Annexure-5 to the Writ Petition). Therefore, it is the contention of the Learned Counsel appearing on behalf of the Petitioner that had there been any actual adverse remarks against the Petitioner, as has been alleged in the remarks column vide letter No.886 dated 06.08.2021, then the Petitioner would not have been given the aforesaid promotion to the post of Section Officer earlier. As such, it was contended by the Learned Counsel appearing on

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behalf of the Petitioner that such adverse entries appear to be an act to illegally deprive the Petitioner of his legitimate claim for promotion.

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12. Furthermore, the Learned Counsel for the Petitioner has the drawn the attention of this court towards the contradictory stance taken by the Opposite Parties. Learned counsel for the Petitioner, in this regard, has specifically contended that in the Additional Counter Affidavit (specifically in paragraph-6 therein), it has been stated that the three people, namely Soumendra Kumar Tej, Ranjan Ku Sahoo and Abhay Ku Swain, who have been placed above the Petitioner at Serial no.41, 42 and 59 respectively in the gradation list, are all at level 9 whereas the Petitioner is at Level 7. However, in the very next paragraph, the Opposite Parties have contradicted themselves by stating that the Petitioner has been placed at level 8 as on 01.01.2020. Addressing the aforesaid contradictions pleaded by the Opposite Parties in their Counter and additional counter, the Learned Counsel appearing on behalf of the Petitioner has referred to Annexure-5 to the present writ petition and contended that firstly, with regard to the grade pay of the

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Petitioner, he is at level 9 and not level 7 or level 8 as has been claimed by the Opposite Parties.

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13. Next, again referring to the Counter Affidavit by the Opposite Parties, the Learned Counsel for the Petitioner contended that the Opposite Parties have stated in their counter affidavit that three persons – namely, Nihar Ranjan Behera, Dinesh Ku Pradhan and Subrat Ku Barik – have all been given promotion despite being placed below the Petitioner in the common gradation since they have 5 years of “Outstanding” CCRs. In reply to such contention of the Opposite Parties, the Learned Counsel appearing on behalf of the Petitioner referred to the statement of service particulars of Revenue Ministerial Staff annexed to the present writ petition (at page 91/Annexure4), and contended that the Petitioner has complete CCRs of 7 (seven) years beginning from 2012 till 2019 with outstanding merit. Moreover, referring to the ‘statement of CCR’ contained in the aforesaid document, Learned Counsel appearing for the Petitioner submitted that the said documents reveal that the Petitioner possess outstanding CCRs for the period spanning from 01.04.2014 to 31.03.2019, i.e. 5 completed years of CCR. Therefore, it was submitted by the Learned Counsel appearing

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on behalf of the Petitioner that the contentions of the Opposite Parties that the Petitioner falls short of the 5 completed years of outstanding CCR is patently false and contrary to the documents on record

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14. To lend further credibility to the Petitioner’s stance and his rightful claim for promotion to the post of ORS Group-B, the Learned Counsel for the Petitioner referred to Annexure-8 to the writ petition and contended that the said document suggests that the Petitioner joined in the feeder post of the ORS cadre on 01.12.1997. Therefore, the Petitioner is senior to all the junior candidates who have been included in the final list under Annexure-6. For better appreciation, a list of such junior candidates have been reproduced by the Learned Counsel for the Petitioner in paragraph 9 of the Rejoinder filed by the Petitioner.

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15. Additionally, the Learned Counsel appearing on behalf of the Petitioner, referring to Annexure-1 to the writ petition, has contended that the Revenue Divisional Commissioner i.e. Opposite Party No. 3 is only the Scrutiny Authority and the Opposite Party No.4 has given 7 years of outstanding CCRs, i.e. from 2012-13 to 2018-19, in favour of the petitioner. Hence, the question of even possessing less than 5 years of outstanding

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CCRs does not even arise in the case of the Petitioner. The Learned Counsel appearing on behalf of the Petitioner further submitted that even accepting, for the sake of the argument, but not conceding that the Petitioner’s 5 years of CCRs are not available, then it is the duty of the Opposite Party-authority to take into consideration the CCRs of preceding years so as to make it 5 completed years of available CCRs. Instead, the Learned Counsel for the Petitioner claims that the Opposite Parties have acted in contravention to the policy framed by the Selection Committee on 05.11.2020, which has been mentioned by the Opposite Parties in their Counter Affidavit itself. In doing so, the Learned Counsel appearing on behalf of the Petitioner contended that the Opposite Parties have clearly violated Rule 3(b) of the O.C.S. (Criteria for Promotion) Rules, 1992.

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16. Additionally, the Learned Counsel appearing on behalf of the Petitioner submitted that the Common Gradation list consists of 603 candidates and out of such candidates the Petitioner has been placed at Sl No.200. At this point, the Learned Counsel appearing on behalf of the Petitioner points out that the date of entry of the Petitioner into Government service is on 01.12.1997, as such, the length of government service of

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the Petitioner, as on 01.01.2020, is 22 years and 01 month. In contrast, the candidate placed at Sl No.41 in the said list, namely Saumendra Kumar Tej, has rendered 17 years 07 months and 27 days of service as on 01.01.2020. Similarly, it was also pointed out that one Ranjan Kumar Sahoo, placed as SI No.42, has rendered 13 years 08 months and 07 days of service as on 01.01.2020 & Abhaya Kumar Swain, placed as SI No. 59, has 07 years 09 months and 20 days of service as on 01.01.2020. Therefore, the Petitioner clearly has a longer service period, however despite the same, his juniors have been placed above the Petitioner who has been placed at Sl No.200 only.

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17. Referring to the final selection list under Annexure-6 to

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the present writ petition, the Learned Counsel appearing on behalf of the Petitioner contended that one Nihar Ranjan Behera, placed at Sl No.206 in the Common gradation list, has rendered service of 17 years 08 months and 25 days as on 01.01.2020. Likewise, Dinesh Kumar Pradhan placed as Sl No.215 in the Common gradation list has served for 13 years 06 months and 04 days as on 01.01.2020 & Subrat Kumar Barik, placed at Sl No. 234 in the Common gradation list, has a length of service of 12 years 03 months and 13 days as on 01.01.2020. In such view

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of the matter, he further contended that the aforementioned candidates have been placed in the final list (under Anneuxre-6) as Sl. No.72, 75 & 81 respectively, whereas the Petitioner, who has clearly rendered a longer period of service has not been selected despite his juniors having being given a place in the final select list under Annexure-6.

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18. Consequently, in view of the aforesaid submissions, the Learned Counsel appearing on behalf of the Petitioner submitted that not only does the petitioner have an outstanding performance and an unblemished service during the period of consideration, but also 5 years of outstanding CCRs. in fact, the petitioner satisfies all the eligibility criteria mentioned in the notification dated 18.11.2020 and while similarly situated candidates have been given promotion in the meantime, however, due to the arbitrary & unreasonable conduct on behalf of the Opposite Parties, the name of the Petitioner has not been included in the final list under Annexure-6. Therefore, the Learned Counsel appearing on behalf of the Petitioner contended that the Opposite Parties may be directed to appoint the Petitioner to the post of ORS Group- B in Level-10, in pursuance of the notification dated 18.01.2020, with a further

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direction to include the name of the petitioner in the final list under Annexure-6.

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CONTENTIONS OF THE OPPOSITE PARTIES

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19. The State-Opposite Parties, in their counter affidavit, have squarely controverted the stance taken by the Petitioner. It is the Opposite parties’ claim that due procedure, as has been laid down under the relevant rules and modalities fixed by the selection committee, has been followed while conducting promotion to the post of ORS Group-B and that no illegality or irregularity can be attributed to the conduct of the Opposite Parties. The learned counsel for the Opposite Parties has contended that according to Rule-9 of the ORS (Recruitment) Rule, 2011, the Secretary Board of Revenue has invited recommendations from different authorities vide Letter No.1059/CS, dated 18.11.2020 to fill up 188 posts to the cadre of ORS Group-B by way of promotion. As a result, a total of 768(Seven hundred Sixty Eight) recommendations were received within the due date to fill up 75 posts (UR-52, SC-8, ST-15) for Revenue Field Staff and 113 posts (UR-77, SC-13, ST-23) for Ministerial Staff. The present Petitioner is from Jagatsinghpur district and falls under UR category.

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20. Learned Counsel for the Opposite Parties initially contended that two Common Gradation Lists of eligible officers – one for Revenue Field Staff and another for Ministerial Staff – has been prepared by the Secretary, Board of Revenue, Odisha (as required under Rule-8 of the Odisha Revenue Service (Recruitment) Rules, 2011. While preparing the aforesaid list, the authorities have duly taken into account the inter-se seniority of the officers in their respective cadres, and as a consequence, the Petitioner has been placed at Sl. No.200 in the common gradation list (under Annexure-B/2 to the present writ petition). Next, addressing the contention of the learned counsel for the Petitioner that the Petitioner has been placed below his juniors who have been in service for a shorter duration compared to the Petitioner, the Learned Counsel for the Opposite Parties referred to Rule-8 of ORS (Recruitment) Rules, 2011 which provides the procedure for preparation of Gradation List. Referring to such rule, the Learned Counsel for the Opposite Parties contended that while preparing the list, the authorities have duly taken into account the inter-se seniority of the officers, in their respective cadres.

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21. Learned Counsel for the Opposite Parties submitted that the Grade pay (now Level as per Pay Matrix under ORSP Rule, 2017) of one Saumendra Ku. Tej, Ranjan Kumar Sahoo and Abhaya Kumar Swain is level 9, whereas the petitioner is at Level-7, as on 01.01.2020. Hence, the learned counsel for the Opposite parties contended that as per Rule-8 of ORS (Recruitment) Rules, 2011, the aforesaid three officers have been placed above the petitioner in the Common Gradation List at Sl. No.41, 42 & 59 respectively. Similarly, the learned counsel for the Opposite Parties contended that one Sri Manoj Ku. Sahoo and the present Petitioner are of the same level of pay but since Sri Sahoo joined in the feeder cadre earlier than the Petitioner, i.e. on 27.02.1997 compared to 01.12.1997, he has been placed above the Petitioner at Sl No.130 in the Common gradation list.

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22. The Learned Counsel for the Opposite Parties has again referred to the 2^nd proviso under the Explanation to the Rule-8 of ORS (Recruitment) Rules, 2011 and submitted that the inter-se seniority fixed in their respective cadre shall not be violated. Accordingly, the Learned Counsel for the Opposite Parties contended that in the District Gradation List of

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Jagatsinghpur district, the Petitioner was placed just below one Pradipta Kishore Jena, Sr. Revenue Assistant (at Sl No. 2 in the said list). Since, as per the aforementioned 2^nd proviso under Explanation to Rule-8, the inter-se seniority of the officers is required to be maintained, the learned counsel for the Opposite Parties contended that the Petitioner was placed below Sri Pradipta Kishore Jena (at Sl No.198) in the common gradation list prepared for promotion to ORS Group-B for the recruitment year 2020 despite the Petitioner having reached a higher level of grade pay as on 01.01.2020 compared to that of Sri Jena.

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23. Relying on the aforesaid contentions, the learned counsel for the Opposite Parties contended that the Common gradation list in the present case has been prepared in strict adherence to Rule-8 of the ORS (Recruitment) Rules, 2011 rather than solely relying on the length of service of the candidates as on 01.01.2020.

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24. Furthermore, the Learned Counsel for the Opposite Parties has contended that a Departmental Promotional Committee/ Selection Committee , for granting promotion to the ORS Group-B posts, for the year 2020 was convened on 05.11.2021. In the aforesaid meeting, the Committee has

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followed Rule-3 of the Orissa Civil Service (Zone of Consideration for Promotion) Rules, 1998 to determine the number of employees within the zone of consideration of under UR category and, as such, the zone of consideration for UR candidates runs up to Sl No.272 in the Common Gradation List with respect to UR category employees for Ministerial Staff, i.e. the category to which the present Petitioner belongs. Also, in the aforesaid meeting, the Selection Committee has decided upon certain modalities for promotion to the ORS Cadre. The learned counsel for the Opposite Parties has stressed that the Opposite Parties-authority have carefully followed the modalities decided by the Selection Committee. In course of his arguments, he has further placed specific reliance on clause (i) and clause (ii) of the said modalities. In this context, the learned counsel for the Opposite Parties submitted that it is not the case of the Petitioner that the modalities fixed by the DPC for the promotion to the post of ORS Group-B are not good in law or they are illegal in any manner.

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25. The Learned Counsel for the State Opposite Parties

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further submitted that, after considering the merits of the Ministerial Officers and in terms of clause-VII of the modalities

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decided upon by the Selection Committee, candidates having five (5) “Outstanding” full years of CCRs were first taken up to meet the required vacancies (consisting of 22 seniors and 12 juniors of the Petitioners placed at Sl Nos.4, 11, 34, 46, 52, 55, 63, 87, 89, 101, 115, 118, 119, 131, 135, 145, 161, 171, 178, 179, 189, 191, 206, 215,223, 224, 228, 234, 242, 243, 245, 256, 263 and 266 in the gradation list) in the first phase. Thereafter, since a large number of posts were vacant, a second phase was adopted by the Committee to fill-up the required vacancies. In the second phase, 5 outstanding year of CCR including major part of the year, treating the outstanding CCRs of 6 months and above as outstanding for the full year irrespective of the CCR rating of rest month of the year, were taken into consideration.

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26. The Learned Counsel for the Opposite Parties contended that the petitioner, particularly for the year 2018-19, had a CCR of 10 months and there was a shortfall of 2 months. As such, altogether the petitioner had 4 years of outstanding complete CCRs and one year of outstanding incomplete CCR, which is why in the first phase of selection the persons junior to the present Petitioner, having full 5 years of outstanding CCRs, were considered for promotion. In this context, the Learned

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Counsel for the Opposite Parties submitted that the Petitioner was junior to the last man Sri Braja Bihari Pradhan (Sl No.195) of the Ministerial Staff Category selected against the vacant post in Revenue Field Staff by way of adjustment as per ORS (Recruitment) Amendment Rules, 2020. Similarly, in the second phase, although officers with incomplete CCRs were considered, including the present Petitioner, such officers were promoted instead of the present Petitioner since they are senior to the Petitioner. Consequently, all 77 posts under the UR category in the ORS Group-B Cadre have been filled with candidates comprising of the juniors and seniors of the present Petitioner. Therefore, the Learned Counsel for the Opposite Parties has contended that there has been no infirmity in the selection process conducted by the authorities and that the said selection process is nothing but fair and transparent.

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27. Additionally, the Learned Counsel for the Opposite Parties has contended that notwithstanding the aforesaid grounds, the scope of judicial review of the decision of the selection committee has been laid down by the Hon’ble Supreme Court in Dalpat Abasahev Solunke vs. Dr. B.S. Mahajan reported in AIR 1990 SC 344 , Secy. (Health) Deptt.

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Of Health & F.W. vs. Dr.Anita Puri reported in (1996) 6 SCC 282 , M.V. Thimmaiah vs. Union Public Service Commission reported in (2008) 2 SCC 119 and Om Prakash Poplai and Rajesh Kumar Maheswari vs. Delhi Stock Exchange Association Ltd. , reported in (1994) 2 SCC 117 .

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28. Furthermore, the Learned Counsel for the Opposite Parties has put forth the argument that promotion is not a matter of right and only a right to be considered for promotion is what can be claimed by the Petitioner. In support of his contentions, the Learned Counsel for the Opposite Parties has referred to the decisions of the Hon’ble Supreme Court in Lift Irrigation Corpn. Ltd. V. Pravat Kiran Mohanty reported in (1991) 2 SCC 295 & Ajit Singh (2) v. State of Punjab reported in (1999) 7 SCC 209 . The Learned Counsel for the Opposite Parties contended that presently, there is no dispute with regard to the fact that the Petitioner was considered for promotion to ORS Group-B post. In fact, the Learned Counsel for the Opposite Parties contended that the Petitioner has also not challenged the promotion of the juniors of the Petitioner in the first phase. Learned Counsel for the Opposite Parties has contended that in the event the promotion of any of the juniors of the Petitioner is

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challenged, the same would be hit by the principle of law laid down by the Hon’ble Supreme Court in Prabodh Verma v. State of U.P. reported in (1984) 4 SCC 251 and State of Uttaranchal v. Madan Mohan Joshi reported in (2008) 6 SCC 797 .

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29. In view of the aforesaid submissions, the Learned Counsel for the State-Opposite Parties submitted that no illegality whatsoever has been committed by the Opposite Parties in conducting the promotion to the posts of ORS GroupB. Therefore, the Learned Counsel for the Opposite Parties contended that the present writ petition is devoid of merit and the same is liable to be dismissed at the threshold.

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ANALYSIS

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30. Having heard the learned counsels for the respective parties, taking into consideration the factual background of the present case and on perusal of the documents annexed to the pleadings, it appears that the main grievance of the Petitioner is with regard to the non-inclusion of his name in the final list under Annexure-6. The backbone of the Petitioner’s submission

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appears to be centered around the contention that the Opposite Party-authorities have not followed their own modalities for promotion – specifically clause (VII) – and they have not taken

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into account the preceding CCRs of the Petitioner which would have allowed the Petitioner to be included in the final list for promotion to the cadre of ORS Group-B, especially since the Petitioner also claims to have fulfilled all the other requisite eligibility criteria for being appointed to the said post.

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31. The Opposite Parties on the other hand have taken the stance that the non-inclusion of the Petitioner’s name from the final list is not due to any illegality or irregularity on the part of the Opposite Parties, rather it is a natural consequence of the Opposite Party-authorities following the due procedure as has been laid down under the relevant rules and the modalities fixed by the Selection Committee. Therefore, in order to properly adjudicate the matter at hand, this Court is required to ascertain whether the Opposite Parties have duly followed the modalities established by the Selection Committee for promoting candidates to the posts of ORS Group-B.

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32. The modalities decided by the Selection Committee are reproduced hereinbelow for better appreciation;

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I. Selection of candidates will be based on Outstanding merit and suitability with due regard to seniority as per Rule 3(b) of OCS (Criteria for promotion) Rules, 1992.

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II. Selection will be based on 5 years available CCRs proceeding the recruitment year, 2020. In case of non-availability of CCRs of last 5 years, CCRs of preceding years will be taken into consideration to make it 05 (five) available CCRs as per provisions contained in Govt. in G.A. Department Memo No.4280/Gen. Dt.19.02.2010. Less than 5 (five) valid years of CCRs will not be considered for Selection.

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III. The grading of the highest authority i.e. Accepting authority in the CCR / PAR will be taken into consideration. If the CCR / PAR is not completed, then the recording of the highest authority (Reporting or Reviewing or Accepting) will be treated as final.

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IV. The CCR remark given as “Excellent” has been considered as “Outstanding”.

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V. If there are two or more different remarks in a particular year, the remark for the major period will be taken to consideration.

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VI. If there are two different remarks in a particular year for two different periods of same length, the higher remark is taken into consideration.

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VII. The candidates having five “Outstanding” full years of CCRs will be taken up first to meet the required vacancies in this process. If the required vacancies are not filled up, then five “Outstanding” including major part year of

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CCRs will be taken into consideration to meet the required vacancies treating the “Outstanding” CCRs of 6 months and above for “Outstanding” full year irrespective of CCR rating of rest month of year.

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VIII. In case of candidates belonging to reserved category (SC/ST) who come under merit, they shall be selected under unreserved category as per provisions contained in Letter No. 12625/SSD Dt.21.03.2013 of Govt. in ST & SC Development Department, Odisha, Bhubaneswar.

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33. Similarly, Rule-8 and Rule-9 of the Odisha Revenue

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Service (Recruitment) Rules, 2011 are also reproduced hereinbelow for reference;

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“ 8. Preparation of Gradation List for Promotion:-

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(1) For the purpose of consideration of promotion to the service under clause (b) of rule 4 a common gradation list of eligible officers shall be prepared by the Secretary, Board of Revenue, Orissa on the basis of their date of appointment to their respective cadres:

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Explanation - While preparing the common Gradation list the officers in higher pay scale or with higher grade pay

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in a pay band will be placed above those in the lower pay scale or lower grade pay in same pay band.

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Provided that the inter-seseniority fixed in their respective cadre shall not be violated.

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Provided further that in case, the date of appointment of two or more officers happens to be the same, the person elder in age shall be placed above the younger.

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9. Calling for Recommendation for Promotion and Selection-

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Secretary, Board of Revenue, Orissa shall call for the recommendations for Promotion and Selection under clause (b), (c) of rule 4 to the service, the names of eligible officers for consideration by the Committee.”

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34. It is equally important to refer to Rule-3 of the Orissa Civil Service (Zone of Consideration for Promotion) Rules,

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1988 which is quoted below for better understanding;

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“ 3. Zone of Consideration-

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Except in cases where the provisions of the Orissa Reservation of vacancies in Posts and Services (for Scheduled Castes and Scheduled Tribes) Act, 1975, and the rules framed there-under are applicable, in every case of promotion made by way of selection

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to any Civil Service or post of the state for which zone of consideration has been prescribed in the relevant recruitment rules; such zone of consideration shall be three times the estimated number of vacancies meant to be filled up from the General category in such Service or Posts notwithstanding anything to the contrary contained in the respective recruitment rule:

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Provided that where the estimated number of vacancies meant to be filed up is not more than three, the zone of consideration shall be ten. ”

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35. On a careful consideration of the submissions of both

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the parties, it is clear that the recruitment to the post of ORS Group-B was made in two phases. Further, it appears that the Petitioner was not selected in the first phase since, as per the Opposite Parties, he possessed only four (4) years of complete CCRs and one (1) year of incomplete CCR, which is why juniors to the Petitioner having full five (5) years of CCRs were selected and placed at Sl Nos.1 to 34 in the final list. Likewise, in the second phase also the Petitioner was not selected, despite other officers with incomplete CCRs being considered for promotion, since other officers that were selected during the second phase were all seniors to the Petitioner and they have been accordingly placed at Sl Nos. 35 to 77 of the final list.

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36. With regard to the first phase of selection, i.e. the Petitioner not having full five (5) years of CCRs, it is the contention of the Petitioner that the Petitioner possesses completed CCRs of seven (7) years. On an examination of Form-A i.e. the ‘Statement of Service Particular for the Revenue Ministerial Officers’ which forms a part of the record as Annexure-4 series to the present writ petition, it does appear that the Petitioner at Sl No.2 has 7 years of complete CCR arranged in proper sequence. Moreover, Form-B of the same Annexure reveals that the Petitioner has 5 years of CCR (2014-15, 201516, 2016-17, 2017-18 and 2018-19) with ‘Outstanding’ rating. Additionally, it has been stated that the Selection Committee has formulated certain modalities to govern the promotion to the posts of ORS Group-B. Clause (II) of the said modalities clearly states that “Selection will be based on 5 years available CCRs proceeding the recruitment year, 2020. In case of nonavailability of CCRs of last 5 years, CCRs of preceding years will be taken into consideration to make it 05 (five) complete available CCRs as per provisions contained in Govt. in G.A. Department Memo No.4280/Gen. Dt.19.02.2010. Less than 5 (five) valid years of CCRs will not be considered for Selection.”

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Therefore, it is clear that in the event the CCRs were not available, the Opposite Parties were supposed to take into consideration the past CCRs of the candidate to consider the candidature of the Petitioner.

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37. Next, this court has carefully examined all the decisions cited by both the parties and the legal principles laid down therein. It is a well settled principle, through a catena of decisions of the Hon’ble Apex Court and other High Courts, that the Court’s interference into the selection process is limited to only grounds of illegality or procedural irregularities in the selection process (see Dalpat Abasahev Solunke vs. Dr. B.S. Mahajan reported in AIR 1990 SC 344 ). In the case at hand the Petitioner has not challenged the modalities set-up for selection, neither any Rules nor constitution of the selection committee has been challenged. In such substance, the case of the Petitioner is one where there has been an irregularity in following one of the modalities set out by the Selection Committee. Therefore, this Court has no hesitation in arriving at a conclusion that it is well within the powers of this Court to remedy the irregularity in the selection process resulting in the

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non-inclusion of the present Petitioner in the final list for promotion to the Post of ORS Group-B.

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38. In the aforesaid context, the Petitioner has relied on the judgment dated 10.08.2021 by a coordinate bench of this court in Jagannath Aich v. State of Odisha and Ors. bearing WPC (OAC) No.1380 OF 2013 . On the perusal of the above cited decision, it appears that the Petitioner in the aforesaid case was not selected for promotion to the post of ORS Group-B on the ground that the CCRs of the last five years were not available. However, information obtained through RTI application revealed that the requisite CCRs were indeed available, although the authority was unable to produce the same at the time of recommendation, as such, the same has resulted in the petitioner being debarred from being promoted. A coordinate bench of this court, has disposed of the aforesaid matter with the observation that the inability of the authority to produce the CCRs of the Petitioner should not have led to the Petitioner being debarred from promotion. It appears that the facts of the aforesaid case are somewhat similar to the matter at hand, inasmuch as in the present case also it is the ground taken by the Opposite Parties

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that CCRs of the Petitioner were not available to consider the

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case of the Petitioner for promotion to ORS (Group-B) Cadre.

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CONCLUSION

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39. Finally, taking into consideration the submissions by the learned counsels for both the parties, on perusal of the documents placed on record by the parties as well as the case laws cited by both the parties, on examination of the applicable rules and modalities fixed by the Selection committee for promotion to the post of ORS Group-B, this court is of the considered view that the Petitioner possessed complete CCRs for the last seven (7) years, however, the Opposite Partyauthorities have only considered the 4 years of complete CCRs and one year of incomplete CCR, despite clause (II) of the modalities prescribing for the consideration of the past CCRs to make it as 5 complete available CCR so as to enable the Petitioner for being promoted. Therefore, this court has no hesitation in arriving at a conclusion that the Opposite Partyauthorities have clearly violated one of the modalities set up by

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the Selection Committee while considering the case of the Petitioner for promotion.

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40. In view of the aforesaid analysis and observation, this court disposes of the present writ petition with a direction to the Opposite Party-authorities to reconsider the case of the Petitioner for promotion to the Post of ORS Group-B cadre for the recruitment year 2020, against existing vacancies, by taking into consideration the CCRs of preceding years to make it five (5) available CCRs and by convening a review DPC meeting. If there are no other legal impediments, then the Petitioner be promoted to the post of ORS Group-B cadre by giving him promotion from the date on which the immediate juniors were given such promotion to the post of ORS Group-B. Let the entire exercise be carried within a period of three months from the date of communication of a copy of this judgment.

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41. Accordingly, the writ application stands allowed in terms of the above-noted direction. However, there shall be no order as to costs.

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(A.K. Mohapatra) Judge

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Orissa High Court, Cuttack The 16^th April, 2025/ RKS

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Signature Not Verified

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Digitally Signed Signed by: RAMESH KUMAR SINGH Designation: AR-CUM-Senior Secretary Reason: Authentication Location: High Court of Orissa Date: 16-Apr-2025 17:15:21

Pradeep Kumar Barik v. State of Odisha

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Pradeep Kumar Barik v. State of Odisha

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