Orissa High Court
State Of Odisha Represented vs Dr.Rajat Mohanty And Others on 3 August, 2023
Bench: S.Talapatra, Savitri Ratho
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.A. No.561 of 2023
State of Odisha represented ..... Appellant
through Commissioner-cum- Mr.M.K.Khuntia, AGA
Secretary to Government
Vs.
Dr.Rajat Mohanty and others ..... Respondents
Mr.A.Tripathy, Advocate
(for Respondent No.1)
CORAM:
JUSTICE S.TALAPATRA
JUSTICE SAVITRI RATHO
ORDER
03.08.2023 Order No. 1. This matter is taken up through hybrid mode.
07.
2. Heard Mr.M.K.Khuntia, learned Addl. Government Advocate appearing for the appellant as well as Mr.A.Tripathy, learned counsel appearing for the respondent No.1-Dr. Rajat Mohanty.
3. This intra court appeal has been filed challenging the judgment dated 07.12.2022 delivered in W.P. (C) No.26299 of 2022 by the learned Single Judge. By the said judgment dated 07.12.2022, the learned Single Judge has observed, inter alia, as under:
".........there exist no doubt with regard to the Petitioner's eligibility to be considered for promotion under DACP scheme and accordingly, his case should have been considered along with other similarly situated persons for promotion to the post of Additional Director, Level-II under DACP scheme. But the only difficulty that could be visualized by this Court is with regard to submission of PARs through on-line mode which is causing problem to the Petitioner and standing as an obstacle on the way Page 1 of 5 //2// for consideration of Petitioner's case for promotion."
4. It has been further observed by the learned Single Judge that since the hard copies of PARs/CCRs are already available with the G.A. & P.G. department, the same may be called for consideration of the case of the Petitioner for promotion. It has been held that the promotion of the Petitioner to the rank of Additional Director-II cannot be delayed on the ground of non-receipt of CCRs/PARs through on-line system.
Having observed thus, the learned Single Judge held that the Petitioner has right to be considered for promotion to the higher rank, although the Petitioner cannot claim the promotion as a matter of right. It has been directed that the hard copies of CCRs/PARs being already available with the Government, those shall be considered as expeditiously as possible, preferably within a period of eight weeks for determining the petitioner's suitability for promotion to the next grade. Similarly situated persons, according to the learned Single Judge, has been granted the benefit on the basis of hard copies of PARs/CCRs. Those observations and direction have been challenged in this appeal.
5. There is no dispute that the writ petitioner - respondent is within the zone of consideration and he has right to be considered for promotion to the next grade but for absence of PARs/CCRs on-line, his case was not considered.
6. Mr. Tripathy, learned counsel appearing for the writ petitioner- respondent has submitted that this controversy is squarely covered by the Page 2 of 5 //3// judgment of this Court dated 28th March, 2023 passed in W.A. No.731 of 2021 (State of Odisha and others v. Dr.Kamalini Bepari) where this Court has observed that for not uploading PARs/CCRs on-line, someone cannot be deprived from consideration for promotion. As the hard copies were available with the respondent, it had been directed that the selection committee shall consider the case of the respondent in that case, having extended relaxation as granted by the Circular dated 30.04.2020. It had been further declared that the respondent in the event of her selection shall not be entitled to get any financial benefits till the date of formal appointment on promotion.
7. Mr. M.K.Khuntia, learned Addl. Government Advocate has made a serious attempt to distinguish the facts of the said case from the present one. Mr.Khuntia has contended that PARs/CCRs for the period 2015- 2021 were filed by the writ petitioner - respondent on 09.03.2021, i.e., after about seven years from the due date of filing. For example, PARs/CCRs of 2015 was supposed to be filed in the year 2016. The said delay in filing the performance reports which are essentially to be considered by the selection committee for consideration of promotion, cannot be attributed to the opposite parties. The said aspect is particularly material on deciding the issue of retrospective benefits. That apart, the superior authority, who is to accept or review did not get any opportunity to record his observation in the contemporaneous time. Mr.Khuntia, Page 3 of 5 //4// learned Addl. Government Advocate has fairly submitted that the Reviewing Authority/Accepting Authority has made their comment on PARs/CCRs after their submission by the respondent -writ petitioner. It appears that PARs/CCRs were ready for consideration only on 25.03.2022. Mr.Khuntia, learned Addl. Government Advocate has candidly reported that the selection committee sat on 11.10.2022 for consideration of the promotion to the next grade. Therefore, it is apparent that those physical records of the PARs/CCRs were available for consideration. But, since the writ petitioner - respondent did not upload PARs/CCRs in the online system, his performance was not assessed for determining the fitness for promotion to the next grade. His case was discarded. The conduct of the writ petitioner - respondent cannot be stated to be proper. The delay in filing the performance report [self- appraisal part] has serious impact on the process. Sometimes, there may be some problems in uploading in the online system. Those circumstances may be leniently considered only when the problem or the difficulty is brought to the notice of the competent authority without delay. In this case, the authorities have admitted the fact of accepting the physical reports after their submission belatedly. When the State has by the Circular dated 14.01.2016, Annexure-6 to the Memorandum of Appeal, has clearly adverted that they would not entertain the submission of the hard copy of PARs/CCRs from 01.04.2016. Non-filing of Page 4 of 5 //5// PARs/CCRs in on-line cannot be deprecated. This is an act of dereliction. The officers/employees have a duty to comply the direction of the competent authority, otherwise, they may be charged of misconduct.
8. Be that as it may, in view of the law we have discussed in Dr.Kamalini Bepari (supra), we would direct the appellants to consider the case of promotion of the writ petitioner - respondent to the post of Additional Director-II within a period of two months from today. If the writ petitioner - respondent is found suitable for promotion by the selection committee, he shall be promoted to the said post from the date when his juniors were promoted to the said post. But we make it abundantly clear that till the date of his formal appointment, the writ petitioner -respondent shall not get any financial benefit. His pay shall be notionally fixed from the date of his appointment on promotion, but he Bichi will get the actual financial benefits from the date of his formal appointment by the appellants.
9. In terms of the above, this appeal stands disposed of.
10. A copy of this order be furnished to Mr.Khuntia, learned Addl. Government Advocate.
(S.Talapatra) Judge (Savitri Ratho) Signature Not Verified Judge Digitally Signed Signed by: BICHITRANANDA SAHOO Designation: Personal Assistant Reason: Authentication Location: Orissa High Court, Cuttack Date: 10-Aug-2023 20:37:14 Page 5 of 5