JADUNATH SAHU Vs. STATE OF ORISSA
HIGH COURT OF ORISSA
STATE OF ORISSA
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S. K. Sahoo, J. -
(1.) The petitioner Jadunath Sahu has filed this writ petition seeking for a direction to quash the proceedings of the Departmental Promotion Committee (hereafter 'DPC') held on 15.07.2016 for promotion to the post of Additional Principal Secretary and the consequential promotional notification in favour of opposite party no.4 Prasanta Hrudaya Palai vide Annexure-3 and for a further direction directing the opposite party no.2 Registrar (Judicial) of this Court to promote him (petitioner) to the post of Additional Principal Secretary from the date his junior (opposite party no.4) was promoted w.e.f. 20.07.2016 and grant all the consequential service and financial benefits from that date and for a further direction directing the opposite parties nos.1 to 3 to re-fix his pension and other pensionary dues in such higher scale of pay and cadre pay in the promotional post of Additional Principal Secretary and to pay the differential arrears on such calculation within a stipulated period with interest @ 8% per annum.
(2.) The case of the petitioner, in short, is that he was having qualification of Intermediate in Arts with shorthand and typewriting and in a due process of selection, he was appointed as a Junior Stenographer in the judgeship of Cuttack district on 07.04.1982. In response to an advertisement issued by this Court for appointment of Senior Stenographer, he faced the interview and was selected and joined as Senior Stenographer on 25.11.1986. Thereafter he was promoted to the post of Personal Assistant on 10.05.1989 and while continuing in such post, he became a confirmed Government employee on 01.12.1995 and then he was promoted to the post of Secretary on 12.06.2006 and Senior Secretary on 03.11.2012.
It is the further case of the petitioner that two posts of Additional Principal Secretary fell vacant and in order to fill up such posts, file was processed and a meeting of DPC was convened on 15.07.2016 and all the four Senior Secretaries available in the feeder cadre including the petitioner and the opposite party no.4 were called to attend the DPC. After the meeting was convened, the DPC recommended the names of one Kailash Chandra Pati whose position was serial no.1 in the gradation list as well as the opposite party no.4 Prasanta Hrudaya Palai whose position was serial no.4 in that list for promotion. The DPC did not consider the case of the petitioner as well as one Sri P.C. Pradhan who were senior to the opposite party no.4 as per the gradation list and accordingly, notifications were issued on 20.07.2017 promoting Kailash Chandra Pati and the opposite party no.4 to the post of Additional Principal Secretary. The DPC found the petitioner as well as Sri P.C. Pradhan lacking in minimum educational qualification i.e. Bachelor's degree required for that post as per the High Court of Orissa (Appointment of Staff and Conditions of Service) Rules, 2015 (hereafter '2015 Rules').
It is the further case of the petitioner that he had more than thirty one years of service as on the date of holding of last DPC on 15.07.2016 and there was no adverse entry or remark entered in his service record and no adverse remark was ever communicated to him. Being the serial no.2 in the gradation list of Senior Secretaries in the establishment of this Court till 15.07.2016, he had a legitimate expectation for promotion to the post of Additional Principal Secretary as there were two vacancies in that post. He submitted a representation to the Hon'ble Chief Justice through the Registrar (Judicial) on 25.08.2016 indicating his grievances and to consider his case for promotion and to restore his seniority from the date his junior (opposite party no.4) got the promotion.
It is the further case of the petitioner that prior to the 2015 Rules, the Orissa High Court (Appointment of Staff and Conditions of Service) Rules, 1963 (hereafter '1963 Rules') was in force and the entry qualification for appointment to the post of Junior Stenographer/Senior Stenographer was matriculate with shorthand and typewriting. The amended 2015 Rules came into force vide notification dated 25.02.2015 and as per the amended Rules, the qualification for appointment to the Steno cadre was prescribed as Bachelor's degree in any discipline with stenography. So far as the promotion to the post of Additional Principal Secretary is concerned, the minimum qualification prescribed is Bachelor's degree in any discipline from a recognised University or such other qualification equivalent thereto having good knowledge in Hindi and English and he must be a fit person to hold the post in the opinion of the Hon'ble Chief Justice and minimum experience of one year as Senior Secretary to the Hon'ble Judges. The mode of promotion was prescribed as 'by promotion from the post of Senior Secretary basing on merit with due regard to seniority and suitability'. It has been specifically stated in the new 2015 Rules as per Rule 1 under the heading of 'Explanation' that nothing in that Rules shall adversely affect any person, who was a member of the service on the date of coming into force of these Rules.
It is the further case of the petitioner that he entered into the service of the Court's establishment prior to the coming of 2015 Rules into force and the subsequent eligibility qualification in the entry grade or for promotion to the cadre of Additional Principal Secretary cannot be made applicable to him. The petitioner highlighted the cases of Raghunath Sahoo and Akshaya Kumar Dhal having the qualification of I.A. and I.Com respectively to have been given promotion to the post of Senior Secretary vide notifications dated 31.03.2017. According to the petitioner, the decision taken by the authorities is against the basic principle of law with regard to parity as under the same set of Rules i.e. 2015 Rules, the claim of the petitioner was rejected whereas the cases of Raghunath Sahoo and Akshaya Kumar Dhal were considered for promotion without having Bachelor's degree. The petitioner further highlighted the cases of Mahendra Kumar Routray and Bijay Kumar Sahoo, Section Officers of the Court to have been promoted to the cadre of Superintendent in the Court's establishment even though they were having Intermediate qualification to their credit. According to the petitioner, the DPC has bypassed the Rules and adopted a novel practice and procedure beyond the Rules for promotion to the post of Additional Principal Secretary from amongst the Senior Secretaries by promoting the junior over the petitioner who had an unblemished service record. The decision taken by the DPC on dated 15.07.2016 by misinterpreting 2015 Rules needs reconsideration in the light of decision taken in the DPC on dated 31.03.2017 for promotion to the post of Senior Secretary. According to the petitioner, though he has retired from Government service w.e.f. 31.05.2017 but his representations dated 25.08.2016 and 11.04.2017 vide Annexures-3 and 6 have not been considered and due to his non-promotion, he has suffered mentally and financially.
(3.) On behalf of the opposite party no.2 Registrar (Judicial) of this Court, counter affidavit was filed wherein a stand has been taken that the notifications dated 20.07.2016 promoting the opposite party no.4 and another to the post of Additional Principal Secretary were issued in terms of the recommendation made by the DPC held on 16.07.2016 strictly in compliance of the recruitment Rules in vogue and the action of the opposite party no.2 was legal, valid and justified. The DPC after interviewing the petitioner and giving its due consideration to the service records of the petitioner did not find him suitable on comparative merit vis-a-vis opposite party no.4 for promotion to the cadre of Additional Principal Secretary and as such recommended the case of the opposite party no.4 and another for promotion. It is stated that Rule 21 of 2015 Rules has clearly stipulated about the repeal of 1963 Rules and therefore, the provisions of the repealed Rules did not survive to be acted upon or to confer any right on anybody or to lay down the criteria for promotion or procedure for the purpose. It is stated that promotion to the higher post is based on merit with due regard to seniority as per the provisions envisaged in Rule 13 of the 2015 Rules read with criteria fixed under the Odisha Civil Services (Criteria for Promotion) Rules, 1992 and not on the basis of entries in CCRs alone. An employee having good CCRs without any adverse entry therein cannot claim automatic promotion as other eligibility criteria are required for such promotion. The case of the petitioner is covered under the 2015 Rules and in view of Rule 21 of the said Rules, old qualification requirement for promotion cannot continue ignoring the new as prescribed in the Appendix to the 2015 Rules. An employee cannot remain immune from the new Rules relating to qualification requirement for promotion to the higher post. The DPC found the petitioner was having lack of requisite educational qualification and therefore unsuitable for promotion. The proceeding of the DPC held on 16.07.2016 was placed before the Hon'ble Chief Justice who approved the recommendations on 19.07.2016 and ordered that candidates at serial nos. 1 and 4 be promoted to the post of Additional Principal Secretary against the newly created vacancies in the Court's establishment as per the merit. It is stated that an employee coming within the zone of consideration has a right to be considered for promotion but he cannot ipso facto claim promotion to the post. The representations of the petitioner are pending awaiting the result of this writ petition. DPC after perusal of CCRs, antecedents, service records, performance of the employees in the cadre of Senior Secretary including the petitioner in the interview and considering the comparative merit and suitability of all such candidates, recommended the names of candidates at serial nos. 1 and 4 in the gradation list for promotion in accordance with the provisions of the Rules. The petitioner did not possess the minimum educational qualification as required under the 2015 Rules for which he was not found suitable for promotion. It is stated that the result of subsequent DPC held for promotion to the cadre of Senior Secretary wherein the incumbents having Intermediate qualification were given promotion to the post of Senior Secretary under the same Rules has no relevance to the case in hand and the same is not comparable with the decision taken by the DPC giving promotion to the opposite party no.4 and another to the cadre of Additional Principal Secretary which is a key post in the Court's establishment and its qualification is different from that prescribed for the post of Senior Secretary. It is stated that the promotion given in favour of the opposite party no.4 was with due approval of the Hon'ble Chief Justice. The criteria regarding the educational qualification for promotion to the post of Addl. Principal Secretary and that for promotion to the cadre of Senior Secretary, as per rules are distinctly different. For promotion to the cadre of Additional Principal Secretary, a candidate should not only possess a Bachelor's degree and have good knowledge in Hindi and English, but he should also be a fit person in the opinion of the Hon'ble Chief Justice to hold such post whereas for promotion to the post of Senior Secretary, a candidate is only required to possess a Bachelor's degree. It is further stated in the counter affidavit that the incumbents in the cadre of Secretary were promoted to the cadre of Senior Secretary basing upon the principle of merit with due regard to seniority and suitability by the DPC whereas the opposite party no.4 and another were promoted to the cadre of Additional Principal Secretary not only after they were adjudged suitable by the DPC basing upon the principle of merit with due regard to seniority and suitability but also after they were found fit in the opinion of the Hon'ble Chief Justice to hold such post.;
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