Orissa High Court
Bata Krushna Mohapatra vs State Of Orissa And Others on 20 January, 2017
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
HIG1H COURT OF ORISSA: CUTTACK.
O.J.C. No.17125 of 1998
In the matter of application under Articles 226 and 227 of the Constitution of
India.
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Bata Krushna Mohapatra ...... Petitioner
- Versus-
State of Orissa and others ...... Opposite Parties
For Petitioner : M/s R.K.Rath and N.R.Rout
For Opp.Parties : Additional Government Advocate
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PRESENT:
THE HONOURABLE KUMARI JUSTICE SANJU PANDA
&
THE HONOURABLE SHRI JUSTICE SUJIT NARAYAN PRASAD
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Date of hearing and judgment : 20.01.2017
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S. N. Prasad, J.The petitioner has approached this Court invoking jurisdiction conferred under Articles 226 and 227 of the Constitution of India assailing the order dated 14.10.1998 passed by the Orissa Administrative Tribunal, Bhubaneswar in Original Application No.1271 of 1994, whereby and where under the claim of the petitioner for promotion to higher post has been declined to be granted by dismissing the original application.
2. The fact, in brief, is that the petitioner was appointed in the year 1957 as Khalasi temporarily under the work-charged establishment in the office of the Sub-Divisional Officer No.1, Electrical, Bhubaneswar, he was promoted as Junior Lineman/Wireman in the year 1959, again promoted as Air Condition Mechanic in the year 1964, the post on which he had continued up to the year 1969 and in the month of June,1969 he had been given charge of workshop by the opposite party no.3 by virtue of the order passed on 13.11.1969. He was 2 allowed to cross his Efficiency Bar in the year 1970. While petitioner was continuing as Air Condition Mechanic the Deputy Secretary to the Government of Orissa made a request to the opposite party no.2, Chief Engineer, Roads and Buildings(Electrical Circle), New Capital, Bhubaneswar vide letter dated 28.12.1981 requesting him to intimate as to whether the existing Air Condition Mechanics possess required application and experience to manage the work of a Section and whether they can discharge their duties efficiently.
Under secretary to the Government made it clear to the opposite party no.2 that 50% of the posts of Section Officer earmarked for Air Conditioning and Refrigeration under Electrical Circle(R & B) will be reserved for Air Condition Mechanics in order to provide them promotional avenue with the condition that the Air Condition Mechanics serving in the section for a minimum period of 10 years and also otherwise found suitable to substitute as Section Officers are only eligible to be appointed as Section Officer, Air Conditioning and Refrigeration.
Case of the petitioner that on 2.3.1983 one Anupam Mohanty, opposite party no.4 was given promotion illegally as Section Officer and again on 7.4.1983 one Bichitrananda Das was also promoted to the rank of Section Officer illegally.
3. The petitioner being aggrieved with the promotion of the opposite parties 4 and 5 and non-consideration of his promotion, had approached the Orissa Administrative Tribunal by filing O.A.No.1168 of 1987 which was disposed of on 28.8.1992. While disposing of the original application the Tribunal had directed the authorities to consider the grievance of the petitioner regarding regularization of his service and his grievance for non-consideration of his case for promotion to the post of Section Officer when the opposite party no.4 was promoted.
The department had convened meeting of Departmental Promotion Committee, but even the D.P.C. meeting which was held on 26.11.1999 has not found the petitioner suitable and as such he has not been 3 granted promotion while the opposite parties 4 and 5 had been granted promotion taking into consideration the fact that Sri Mohanty, O.P.No.4 was senior to the petitioner while Mr. Das, opposite party no.5, was Matriculate and having higher qualification.
4. Petitioner being aggrieved again approached the Orissa Administrative Tribunal, Bhubaneswar by filing O.A.No.1271 of 1994 and the Tribunal this time has passed order that since there is a decision of the D.P.C. who have found that the petitioner is not suitable as per the parameter fixed by the department for granting promotion as Section Officer, hence the Tribunal being a court of law cannot sit over the decision of the D.P.C. unless the decision is found to be illegal, perverse and malafide, accordingly the original application has been dismissed.
5. The petitioner being aggrieved with the order passed by the Orissa Administrative Tribunal is before this Court by way of filing this writ petition on the ground that the petitioner has been subjected to arbitrariness and unfair practice by depriving legitimate claim to be promoted to higher posts, the requirement of Matriculation qualification is not required for being eligible for promotion rather 10 years experience as Air Condition Mechanic is required and the petitioner is possessing the said experience. He further submits that so far as opposite party no.4 is concerned, he has got no grievance since he was senior to him but so far as opposite party no.5 is concerned, he is non-Matric which has subsequently come into light and when opposite party no.5 can be promoted being non-Matric why not the petitioner ?
6. On the other hand, learned Additional Government advocate representing the opposite parties has vehemently opposed the prayer of the petitioner by submitting that the post of Section Officer is a selection post depending upon suitability of one or the other candidates. Amongst the posts of Section Officers, 50% posts have been kept reserved to be filled up by way of promotion from amongst the Air Condition Mechanics who are also to be assigned with the charge of holding the Section. He further submits that the parameter for selection for promotion to the post of Section Officer from 4 amongst Air Condition Mechanics is 10 years experience and found to be suitable. He submits that the case of the petitioner has been considered by the Departmental Promotion Committee but he was not found suitable and taking into consideration this aspect of the matter the Tribunal has answered the issue while passing the order.
He further submits that even assuming that the opposite party no.5 has been granted promotion being a matriculate candidate but actually he is not a Matriculate, then also the petitioner has got no case since he is not found to be suitable by the Departmental Promotion Committee but this is not the fact here as because in course of enquiry it was found that the opposite partyno.5 was not Matriculate rather he has suppressed the fact and hence the authorities after following the procedure has reverted him, hence the ground which is being taken by the petitioner making comparison with the opposite partyno.5 is no more existence.
7. We have heard learned counsel for the parties and perused the materials available on record.
8. We, after going through the records, have found that the petitioner has claimed his promotion initially along with the opposite parties 4 and 5 but however in course of argument learned senior counsel Mr. R.K.Rath, representing the petitioner, has submitted that he has no grievance against promotion granted in favour of the opposite party no.4 as because he is senior to him but he has grievance against opposite party no.5. Hence we have scrutinized the fact regarding the petitioner vis-à-vis the opposite party no.5.
Admittedly the petitioner and the apposite party no.5 were in the cadre of Air Condition Mechanic. Government has taken decision to fill up 50% of posts of Section Officers from amongst the Air Condition Mechanic who having 10 years of experience and found to be suitable otherwise. Authorities have convened meeting of the Departmental Promotion Committee in which case of the petitioner vis-à-vis opposite party no.5 had been taken into consideration. The Departmental Promotion Committee has considered the case of the opposite party no.5 and found him suitable for promotion being 5 matriculate and higher in qualification but however the petitioner was not found suitable.
We have further gathered from the records as well as submissions made by the learned counsel for the parties that initially the opposite party no.5 had been granted promotion as Section Officer from amongst the category of Air Condition Mechanics presuming him to be a matriculate candidate but subsequently it was found that he was not matriculate hence the authority has reverted him after following the procedure.
9. Sole ground taken by learned senior counsel for the petitioner that the petitioner is senior to that of the opposite party no.5 and he is also non-matriculate as that of the opposite party no.5, hence when opposite party no.5 can be considered and found suitable, why not the petitioner. We, after examining the record, have found that the post of Section Officer is selection post depending upon the eligibility of having 10 years experience and found to be suitable on the basis of service record. We have found from the minutes of meeting of the Departmental Promotion Committee that they have found the petitioner unsuitable for promotion as Section Officer. The petitioner has challenged the decision of the Departmental Promotion Committee before the Orissa Administrative Tribunal by way of filing original application which is the subject matter of the writ petition and the Tribunal has passed order holding therein that since there is decision of the Departmental Promotion Committee assessing suitability of the petitioner and in course of assessment on the basis of service record the Departmental Promotion Committee has found him unsuitable hence declined to allow prayer of the petitioner for granting promotion to the post of Section Officer.
10. We have gone through the order passed by the Tribunal and found found that the Tribunal has taken into consideration all aspects of the matter and reason for rejecting claim of the petitioner has been assessed by the Departmental Promotion Committee and following the settled proposition that the body constituted by the competent authority to assess suitability/unsuitability of one or the other candidates whose cases have been 6 put forth before the Departmental Promotion Committee for consideration of their cases and once Departmental Promotion Committee has taken decision regarding suitability/unsuitability of one or the other candidates, Court of law should not interfere unless there is malafide or arbitrariness.
It is settled that Court of Law constituted under Article 226 of the Constitution of India cannot sit as appellate court over the decision taken by the Departmental Promotion Committee rather court sitting under Article 226 of the Constitution of India can go into if the decision making process is wrong, Tribunal after taking into consideration this aspect of the matter has rejected the claim of the petitioner. As such, we are in agreement with the finding given by the Tribunal hence we find no reason to interfere with the same.
11. In the result, this writ petition lacks merit and accordingly the same is dismissed.
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S.N. Prasad, J. Sanju Panda, J. Orissa High Court, Cuttack, Dated the 20th January,2017/Palai