Sujit Narayan Prasad, J. - (1.) This writ petition is filed by the State of Orissa invoking the jurisdiction of this Court conferred under Articles 226 and 227 of the Constitution of India, assailing the order dated 13.12.2013 passed by the Orisasa Administrative Tribunal in OA. No. 3471 of 2013 whereby and whereunder the learned Tribunal while allowing the Original Application has directed the authorities to open the sealed cover containing the recommendation of the review DPC held on 1.3.2013 and in case the said D.P.C. considered the applicant to be suitable for promotion, he shall be promoted to the next higher rank i.e. the post of Assistant Labour Commissioner from the date from which his immediate junior was promoted to the said rank, as has been done in the case of Sri Umakanta Jena as per the recommendation of the review DPC held on 1.3.2013.
(2.) The brief fact of the case of the parties is that opposite party no.1, while holding the post of District Labour Officer was to be considered for promotion to the post of Assistant Labour Commissioner on the basis of suitability, wherein 17 officers have been found to be under the zone of consideration as per the gradation list of District Labour Officers including the opposite party no.1, whose name appears at Sl.No.6 of the proceedings of the Selection Board meeting held on 27.7.2012. The Selection Board has considered the case of opposite party no.1, but since he was suspended vide order No. 2135 dated 19.3.2012, as he was caught red-handed by the officers of the Vigilance Organization, Balasore, in Vigilance P.S.Case No. 7 dated 26.2.2012 under Section 7 of the P.C. Act, which has been registered against him, but on that date no vigilance case was pending against the officer and as such, his case was not found to be fit for promoting him to the higher post. According to opposite party no.1, the Selection Board on the same date has considered the case of Sri Umakanta Jena, whose name was at Sl.No.2 in the select of the Selection Board against whom punishment order has been passed withholding one increment without cumulative effect and the order of punishment was referred to Orissa Public Service Commission, Cuttack for concurrence and no departmental proceeding was pending as on that date. Subsequently, on the same date, the noting made by the Selection Board with respect to opposite party no.1 that it has further been found by the Board that after scrutinizing the CCR of opposite party no.1 for the year 2007-08 to 2009-2010 and other documents could not decide on his suitability for promotion due to want of adequate number of CCRs. The State authority has again convened a meeting of the DPC on 1.3.2013 in which the case of opposite party no.1 has again been considered, but on that date although he was not under suspension being reinstated in service after revocation of the order of suspension, since the prosecution has been sanctioned and a Departmental Proceeding under Section 15 of the OCS (CCA) Rules, 1961 has been initiated as also before the competent court of criminal jurisdiction, the charge-sheet has been filed vide final form No.2 dated 14.1.2013, as such the Selection Board has decided to keep its finding on opposite party no.1 in a sealed cover as per the G.A. Department Office Memorandum No. 3928 dated 18.12.1994. Opposite party no.1 being aggrieved with such decision of the authority, has approached the learned Orissa Administrative Tribunal by filing an Original Application being O.A.No.1313 of 2013. The learned Tribunal while disposing of the Original Application vide order dated 1.7.2013 directed the authorities to open the sealed cover and in case it is found that the D.P.C. has considered the opposite party no.1 to be suitable for promotion, he shall be given promotion to the next higher rank i.e. to the post of Assistant Labour Commissioner from the date from which his immediate junior was promoted to the said post as per the recommendation of the D.P.C dated 27.7.2012. The grievance of opposite party no.1 is that in spite of specific direction issued by the learned Tribunal regarding his promotion, since his case was not considered and he has been deprived of his legitimate claim to be promoted to the higher post, he again approached the learned Tribunal vide O.A.No.3471 of 2013 and the learned Tribunal while disposing of the application vide order dated 13.12.2013 has directed the authorities to open the sealed cover containing the recommendation of the review D.P.C held on 1.3.2013 and in case the said D.P.C considered the opposite party no.1 to be suitable for promotion, he shall be promoted to the next higher rank i.e. to the post of Assistant Labour Commissioner, from the date his junior was promoted to the said rank as has been done in case of Sri Umakanta Jena as per the recommendation of the review D.P.C held on 1.3.2013. The State of Orissa being aggrieved with the order passed by the learned Tribunal is before this Court in this writ petition solely on the ground that undisputedly when the 1st D.P.C has convened its meeting on 27.7.2012, the opposite party no.1 was under suspension, which was passed vide order dated 21.3.2012 and as per the Government circular dated 18.2.1994, there is embargo for consideration of cases of such Government servants for promotion, who are under suspension, but without taking into consideration the circular dated 18.2.1994, the learned Tribunal has passed the order, hence, the same is not sustainable in the eye of law. The second ground has been taken that the learned Tribunal has passed order on the very second day of its meeting without affording any opportunity to rebut the claim of the applicant as would be evident from the order impugned, wherein it is reflected as order no.3, which itself shows that no notice has been issued. Learned Addl Govt. Advocate further contends that the G.A. Department of the State has come up with another circular on 4.7.1995, which has been issued in partial modification of the circular dated 18.2.1994 and as such, the learned Tribunal could have at best directed to consider the case of opposite party no.1 for promotion in the light of the said Govt. circular dated 4.7.1995 instead of directing the authorities to open the sealed cover and grant him promotion from the date his juniors have been promoted.
(3.) While on the other hand, Mr.B.Routray, learned Sr.Advocate has vehemently opposed the submission of the learned Addl.Govt. Advocate and has submitted that on 27.7.2012 no proceeding was pending either judicial or departmental and as such, on the very date, i.e. on 27.7.2012 the case of opposite party no.1 should have been considered and instead of keeping the same under sealed cover, it should have been considered and opened giving effect to the recommendation of the committee. But instead of doing so, his matter has been deferred to be considered in the review D.P.C and as would be evident from the minutes of the meeting dated 27.7.2012 annexed to the writ petition the case of the opposite party no.1 had been deferred due to want of adequate number of CCRs. It has been submitted due to want of adequate of CCRs the employee cannot be made to suffer. He further submits that even in the review D.P.C meeting held on 1.3.2013, he was not under suspension, rather he was reinstated in service after revocation of the order of suspension and merely on account of the fact that the prosecution has been sanctioned against opposite party no.1 and charge-sheet has been filed before the competent Court of criminal jurisdiction, the review D.P.C should not have taken the decision regarding the promotion of opposite party no.1 in a sealed cover. He further submits that the learned Tribunal has specifically directed the authorities in the order passed in O.A.No.1313 of 2013 to open the sealed cover and in case it is found that the opposite party no.1 is found to be suitable for promotion, he shall be given promotion to the next higher rank and this order having not been challenged by the State authority, the inaction on the part of the State authorities is highly illegal and arbitrary. The learned Tribunal after taking into consideration all these aspects of the matter has passed order in O.A.No. 34571 of 2013, which is the subject matter of the instant writ petition and allowed the Original Application directing the authorities to open the sealed cover containing the recommendation of the review D.P.C held on 1.3.2013 and in case the said D.P.C considered the opposite party no.1 to be suitable for promotion, he shall be promoted to the next higher rank i.e. the post of Asst. Labour Commissioner from the date his junior was promoted to the said rank.;