GOPINATH MISHRA Vs. STATE OF ODISHA

JUDGEMENT

(1.) The petitioner, by way of this writ petition, seeks to quash the order dtd. 22/6/2018 passed in O.A. No. 488 of 2009, by which the Odisha Administrative Tribunal, Principal Bench, Bhubaneswar though held that Sahadeb Mallick was wrongly promoted to the post of Head Clerk on 1/5/2006 and the case of the petitioner should have been considered at that time, but, in view of the fact that a departmental proceeding was pending against the petitioner at the time of DPC and the said proceeding concluded after his retirement from government service, and that the original application was not filed within the period of limitation, observed that no relief can be granted and by so observing dismissed the original application. He further seeks direction to the opposite parties to grant the benefit of promotion to him to the post of Head Clerk w.e.f. 1/6/2006 with all consequential service and financial benefits within a stipulated time.

(2.) The factual matrix of the case, in brief, is that the petitioner was working as Senior Clerk in the office of the Inspector of Schools, Bolangir since 13/11/1978 and retired from service on attaining the age of superannuation on 31/5/2008. Being senior in the cadre of Senior Clerk, he was serving in the post of Junior Accountant at the time of retirement. In the year 2006, he became the senior most Senior Clerk of the circle and was eligible for the post of Head Clerk. But ignoring his seniority, the Inspector of Schools promoted one Sahadev Mahallik, a scheduled caste candidate, to the rank of Head Clerk on ad hoc basis, even though he was junior to the petitioner. There were five posts of head clerk under the Inspector of Schools, Bolangir Circle, Bolangir and one post of head clerk is meant for the office of the Inspector of Schools, Bolangir and other four posts for D.I. of Schools of Bolangir district. In view of the judgment of the apex Court in the case of R.K. Sabarwal v. State of Punjab, AIR 1995 SC 1371, out of five posts, as per the roster point, one post is meant for S.T. and another for S.C. candidates, and rest three posts for general candidates. But the Inspector of Schools, Bolangir filled up all the five posts of Head Clerk by S.C. and S.T. candidates. Before 1/5/2006, four S.C. and S.T. category candidates were promoted to the rank of Head Clerk of them three belonged to S.T. and one belonged to S.C. category. Again, the Inspector Schools, Bolangir on the recommendation of the DPC promoted another S.C. candidate, namely, Sahedev Mallick to the rank of Head Clerk who joined on 1/5/2006, as per the DPC proceeding dtd. 28/4/2006.

(3.) Mr. S.K. Pattnaik, learned Senior Counsel appearing along with Mr. P.K. Pattnaik, learned counsel appearing for the petitioner contended that rejection of the original application of the petitioner on the ground of limitation cannot sustain in the eye of law. He admitted that when the case of Sahadev Mallick was considered for promotion for the post of head clerk, a departmental proceeding was pending against the petitioner. It is contended that had the case of the petitioner been considered along with Sahadev Mallick, a sealed cover procedure would have been followed in terms of G.A. Department O.M. No.3928-Gen. dtd. 18/2/1994. But the same was not followed and his junior was promoted and, as such, the petitioner should not have been discriminated. It is further contended that after the petitioner was exonerated from the charges, he should have been granted consequential benefit of promotion from the date his juniors were promoted. Therefore, the tribunal has committed error apparent on the face of record by rejecting the original application of the petitioner on the ground of limitation. It is contended that since promotion was given to Sahadev Mallick on 1/5/2006, the petitioner filed representation before the authority for grant of promotion to him, and thereafter, when he retired from service, he approached the tribunal by filing original application for having imposed with penalty of censure. Thereby, there was no delay on the part of the petitioner as cause of action still survives. To substantiate his contention, he has relied upon the judgment of this Court in the case of Balajjinath Padhi v. Central Administrative Tribunal, (2002) Orissa LR 667 and the apex Court in the case of Sesh Nath Singh v. Baidyabati Sheoraphuli Cooperative Bank Ltd., AIR 2021 SC 2637.