Orissa High Court
Ashish Kumar Dash vs State Of Odisha And Others … Opposite … on 2 April, 2025
Author: Aditya Kumar Mohapatra
Bench: Aditya Kumar Mohapatra
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.6925 of 2024
In the matter of the application under Articles 226 and 227 of the
Constitution of India.
Ashish Kumar Dash ... Petitioner
- Versus -
State of Odisha and others ... Opposite Parties
Advocate(s) appeared in this case:-
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For Petitioner ... M/s.Prasanta Kumar Mishra,
K.L. Kar, S. Mishra.
For Opposite Parties ... Smt. Siva Mohanty,
Additional Standing Counsel.
(For O.P. Nos.1 to 3)
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PRESENT:
THE HONOURABLE SHRI JUSTICE ADITYA KUMAR MOHAPATRA
Date of hearing -19.03.2025 : Date of judgment – 02.04.2025
Aditya Kumar Mohapatra, J. The above named Petitioner has filed
the present writ petition with a prayer to quash the impugned
order dated 26.07.2023 passed by the Joint Secretary to
Government of Odisha, Home Department, under Annexue-8,
and further for a direction to the Opposite Parties to consider and
Page 1 of 15.
promote him to the post of Administrative Officer w.e.f.11.07.2022, i.e. the date on which his immediate junior i.e.
Opposite Party No.4 got such promotion under Annexure-4 in
terms of G.A. & P.G. Department O.M. dated 04.03.2020 under
Annexure-11, keeping in view the fact that the Petitioner has
already been exonerated from the disciplinary proceeding vide
order dated 15.03.2021 under Annexure-2 to the writ petition.
Further, the Petitioner has prayed for all consequential service
and financial benefits consequent upon his promotion to the post
of Administrative Officer.
2. Bereft of all unnecessary details, the case of the Petitioner
is a condensed form, is that the Petitioner on being selected
through a regular process of selection, was appointed as a Junior
Assistant on 27.11.1987. Accordingly, he joined in duty on the
very same day. While working as such, the Petitioner got
promotion to the post of Senior Assistant and subsequently to the
post of Section Officer. While working as a Section Officer, a
disciplinary proceeding was initiated against the present
Petitioner vide Memorandum dated 04.12.2018. While the
Petitioner was facing Disciplinary Proceeding, a D.P.C. was
Page 2 of 15.
convened to consider promotion of Section Officers to the post of
Establishment Officer. Since the Petitioner was entangled in the
Disciplinary Proceeding, the case of the Petitioner was
considered by the DPC along with other employees, including his
junior like Opposite Party No.4, and the fate of the Petitioner was
kept in a sealed cover. As a result, due to the pendency of the
aforesaid Disciplinary Proceeding, the Petitioner was not given
promotion by opening the sealed cover whereas his junior like
the Opposite Party No.4 has been given promotion in the
meanwhile on the recommendation of the D.P.C.
3. While the matter stood thus, the Disciplinary Proceeding,
which was initiated against the Petitioner, was dropped vide
order dated 15.03.2021 under Annexure-2 to the writ petition.
Thereafter, vide order dated 10.12.2021, the Petitioner was given
promotion to the post of E.O. prospectively. Being aggrieved by
such conduct of the Opposite Parties, the Petitioner submitted his
representation before the authorities to give him promotion w.e.f.
09.09.2020 when his junior got such promotion.
Page 3 of 15.
4. Learned counsel for the Petitioner, at the outset, contended
that while the representation of the Petitioner was pending for
consideration, the Opposite Party No.4, who is admittedly junior
to the Petitioner, was given promotion to the post of
Administrative Officer w.e.f. 11.07.2022 under Annexure-4 to
the writ petition. Being aggrieved by such conduct of the
Opposite Party No.4, the Petitioner once again submitted another
representation before the authorities. He further submitted that
after considering the representation of the Petitioner, the
Opposite Party No.1 vide Notification dated 20.02.2023 modified
the earlier Notification dated 10.12.2021 promoting the Petitioner
to the post of Establishment Officer and the promotion of the
Petitioner to the post of Establishment Officer was antedated and
the same was given effect from 09.09.2020.
5. In course of his argument, learned counsel for the Petitioner
referred to the Notification dated 20.02.2023 under Annexure-6
to the writ petition. He further contended that the Government of
Odisha determined the seniority of the Petitioner and the
Petitioner was placed above his immediate junior, namely, Sri
Jeebanananda Panda, who is Opposite Party No.4 to the present
Page 4 of 15.
writ petition. Further, the fixation of seniority under Annexure-6
has remained unassailed. Therefore, learned counsel for the
Petitioner submitted that the seniority of the Petitioner is not
disputed by the Opposite Party No.4 or for that matter by any
other employee in that cadre. Learned counsel for the Petitioner,
at this juncture, further contended that the grievance of the
Petitioner in the present writ petition revolves around the inaction
of the Opposite Parties in not giving him promotion to the next
promotional post of Administrative Officer.
6. In the aforesaid context, learned counsel for the Petitioner
further contended that although the Opposite Party No.4, who is
admittedly junior to the Petitioner which is evident from the
Notification under Annexure-6 to the writ application, has
already been given promotion to the post of Administrative
Officer w.e.f. 11.07.2022, however, the case of the Petitioner has
not been considered and he has not been given promotion to the
post of Administrative Officer. He further contended that being
aggrieved by the aforesaid conduct of the Opposite Parties in not
given the Petitioner promotion to the post of Administrative
Page 5 of 15.
Officer, the Petitioner has approached this Court by filing the
present writ petition.
7. Learned counsel for the Petitioner further submitted that
although the Petitioner, being aggrieved by such inaction, had
approached the Opposite Parties to consider the case of the
Petitioner for promotion to the post of Administrative Officer, the
Opposite Parties rejected his prayer for promotion to the post of
Administrative Officer and thereby rejected his representation
dated 13.03.2023 with the observation that the promotion of the
Petitioner to the post of Administrative Officer is not feasible at
present without obtaining leave of the Hon’ble High Court in
view of the orders passed in I.A. No.1168 of 2023, arising out of
W.P.(C) No.2156 of 2023. With regard to the above noted writ
petition, learned counsel for the Petitioner, referring to the order
dated 31.01.2023 passed in W.P.(C) No.2156 of 2023 (which has
been filed under Annexure-9 to the writ application), contended
that the said writ petition was filed by one Sri Jagabandhu
Senapati and others and the dispute involved in the said writ
petition was with regard to the inter se seniority between a group
of officers.
Page 6 of 15.
8. Learned counsel for the Petitioner further contended that
the Petitioner is neither a party to the aforesaid writ petition nor
is he in anyway bound by the order passed in the above noted
writ petition. Further, referring to para-6 of the order dated
31.01.2023, he also contended that this Court has categorically
observed that the gradation list which reflects the inter se
seniority shall remain unaffected and liberty was given to the
Opposite Parties to select the candidates for promotion to the post
of Establishment Officer. Thus, the dispute involved in the
aforesaid writ petition was with regard to the selection and
appointment of Establishment Officer. In the previous writ
petition, the gradation list in respect of the Establishment Officer
was under challenge. However, neither the Petitioner nor the
Opposite Party No.4 are parties to the aforesaid writ petition.
Thus, they are not bound by the outcome of such writ petition.
9. Moreover, the interim order passed in the above noted writ
petition was in respect of the regular DPC for selection and
appointment to the post of Administrative Officer. In such view
of the matter, learned counsel for the Petitioner submitted that in
the absence of any genuine dispute with regard to the seniority of
Page 7 of 15.
the present Petitioner in the gradation list and the junior to the
Petitioner having been given promotion to the post of
Administrative Officer, which also remains unassailed, the case
of the Petitioner should have been considered for promotion to
the post of Administrative Officer by convening a review DPC.
There exists no other legal impediment to convene a review DPC
meeting to consider the case of the Petitioner for promotion to
the post of Administrative Officer as the Petitioner fulfills all the
criteria fixed for such promotion including his seniority in the
gradation list.
10. Learned counsel for the State, on the other hand, referring
to the counter affidavit filed by the Opposite Party No.1,
contended that the case of the Petitioner was duly considered
after the Disciplinary Proceeding was dropped against him. She
further contended that the Petitioner has been given promotion to
the post of Establishment Officer from the post of Section Officer
w.e.f. the date his immediate junior i.e. Opposite Party No.4 was
given such promotion. Therefore, the Opposite Parties tried to
justify their action by stating that they have not committed any
Page 8 of 15.
illegality and that they have not denied the legitimate promotion
as is due to the Petitioner.
11. With regard to the promotion of the Petitioner to the post of
Administrative Officer, learned counsel for the State raised
basically two grounds basing upon the stand taken in the counter
affidavit. The first ground is that in view of the interim order
dated 31.01.2023 passed in the pending writ application bearing
W.P.(C) No.2156 of 2023 dated 31.01.2023, the case of the
Petitioner has not been considered as this Court had restrained
the Opposite Parties from taking any final decision. The second
ground that has been taken in the counter affidavit is that the
select list which was prepared in the year 2013 from among the
Establishment Officer for promotion to the post of
Administrative Officer has expired in the meantime as the same
was valid only for a period of one year in view of Rule-11(2) of
the Odisha Heads of Department (Method of Recruitment and
Condition of Service of Establishment Officer, Administrative
Officer and Senior Administrative Officer of Heads of
Department) Common Cadre Rules, 2019. By citing the
aforesaid two hurdles, learned counsel for the State contended
Page 9 of 15.
that the Opposite Parties have not committed any illegality in
rejecting the prayer of the Petitioner vide order dated 26.07.2023
under Annexure-8 to the writ petition.
12. Heard Mr. P.K. Mishra, learned counsel for the Petitioner
as well as Smt. Siva Mohanty, learned Additional Standing
Counsel appearing for the State-Opposite Parties No.1 to 3.
Perused the pleadings of the respective parties as well as the
materials placed on record for consideration by this Court.
13. On a careful analysis of the factual background of the
present case on the basis of the pleadings of the respective
parties, this Court observes that the pivotal issue that is required
to be adjudicated in the present writ petition is as to whether the
Petitioner is eligible to be promoted to the post of Administrative
Officer?. In the event this Court arrives at a conclusion that the
Petitioner was eligible for promotion to the post of
Administrative Officer, then this Court is bound to hold that the
conduct of the Opposite Parties in rejecting the prayer of the
Petitioner vide impugned order under Annexure-8 is illegal and
arbitrary.
Page 10 of 15.
14. To determine the aforesaid issue, this Court, while
examining the factual background of the present case, observes
that there is no dispute with regard to the fact that the Petitioner
was working as a Section Officer when the disciplinary
proceeding was initiated in the year 2018. Although the DPC
was convened in the year 2020 and the case of the Petitioner and
other eligible candidates were considered, however, since the
departmental proceeding was pending against the Petitioner, the
Opposite Parties followed the correct procedure of sealed cover
method, in so far as the present Petitioner is concerned.
However, other eligible officers were given promotion to the post
of Establishment Officer. When finally the departmental
proceeding against the Petitioner was dropped, the Petitioner was
initially given promotion to the post of Establishment Officer,
however, such promotion was given with prospective effect.
15. Subsequently, on the representation of the Petitioner, the
Opposite Parties corrected the aforesaid error by antedating his
promotion to the post of Establishment Officer at par with his
immediate junior, i.e. Opposite Party No.4 w.e.f. the date
09.09.2020. While this was the position, the Opposite Parties
Page 11 of 15.
again gave promotion to the Opposite Party No.4 to the post of
Administrative Officer w.e.f. 11.07.2022 under Annexure-4 to
the writ petition. Obviously, the grievance of the Petitioner in
the present writ petition is with regard to the fact that he was not
given promotion to the post of Administrative Officer although
his immediate junior i.e. Opposite Party No.4 was given such
promotion w.e.f. 11.07.2022.
16. With regard to the eligibility of the present Petitioner, this
Court observed that the Opposite Parties have categorically stated
in paragraph-5 of the counter affidavit that although the
Petitioner was entitled for promotion to the rank of
Administrative Officer w.e.f. 15.07.2022, i.e. the date on which
his immediate junior was given such promotion, however, the
same was not acted upon or was possible in view of the interim
order passed in the writ petition bearing W.P.(C) No.2156 of
2023 dated 31.01.2023.
17. In view of the aforesaid stand taken by the State-Opposite
Parties in the counter affidavit, this Court has no hesitation in
coming to a conclusion that the Petitioner was eligible for
Page 12 of 15.
promotion to post of Administrative Officer. Therefore, the only
hurdle for the Petitioner to be promoted to the post of
Administrative Officer was the interim order passed by this Court
in the above noted writ petition.
18. On perusal of the record of W.P.(C) No.2156 of 2023, this
Court observes that two sets of officers had quarrel over the inter
se seniority and, accordingly, a set of officers approached this
Court by filing the above noted writ petition arraying the officers
over whom they were claiming seniority to the said writ petition.
On a careful scrutiny of the said writ petition, it appears that
neither the present Petitioner and the present Opposite Party No.4
have been arrayed as parties to the said writ petition, nor any
specific prayer has been made against them by the Petitioner in
the above noted writ petition.
19. In the aforesaid context, this Court would like to observe
that since the Petitioner is not a party to the aforesaid writ
petition, he will neither be affected nor be bound by the final
outcome of the above noted writ petition. It further implies that
the Petitioners in the said writ petition had no grievance against
Page 13 of 15.
the present Petitioner and that they do not dispute the seniority of
the present Petitioner. Moreover, the Notification dated
20.02.2023 under Annexure-6 clearly reveals that the Petitioner
has been placed in the gradation list immediately above the
Opposite Party No.4 and such placement of the Petitioner in the
gradation list having not been assailed by any of the parties, the
Notification under Annexure-6 has attained finality.
20. Taking into consideration the aforesaid analysis of the
factual position as well as the materials on record, this Court is of
the considered view that it is not disputed that the Opposite Party
No.4 is the immediate junior of the present Petitioner. Moreover,
the seniority of the Petitioner over the Opposite Party No.4 is
supported by Notification under Annexure-6 which remains
unassailed. The State-Opposite Parties having given promotion
to the private Opposite Party No.4 to the post of Administrative
Officer w.e.f. 11.7.2022, the Petitioner, having been found
eligible in view of the specific admission in the counter affidavit,
is also eligible to be promoted to the post of Administrative
Officer along with his batchmates and juniors.
Page 14 of 15.
21. In such view of the matter, this Court has no hesitation in
quashing the impugned rejection order dated 26.07.2023 under
Annexure-8 to the writ petition. Accordingly, the same is hereby
quashed. Further, the Opposite Party No.1 is directed to give
promotion to the Petitioner, by convening a review DPC
immediately within a period of six weeks, to the post of
Administrative Officer from the date such promotion was given
to the private Opposite Party No.4, who is admittedly junior to
the present Petitioner. It is needless to mention here that upon
such promotion, the Petitioner shall be entitled to all service and
consequential benefits as is due and admissible to him.
22. Accordingly, the writ petition stands allowed. However,
there shall be no order as to costs.
(Aditya Kumar Mohapatra)
Judge
Signature Not Verified
Digitally Signed Orissa High Court, Cuttack
nd
Signed by: DEBASIS AECH The 2 April, 2025/Debasis Aech, Secretary
Reason: Authentication
Location: ORISSA HIGH COURT
Date: 02-Apr-2025 19:49:07
Page 15 of 15.
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