Orissa High Court
Nilamani Tripathy vs State Of Odisha & Others .... Opposite ... on 2 January, 2024
Author: Biraja Prasanna Satapathy
Bench: Biraja Prasanna Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) (OA) No.1867 of 2013
Nilamani Tripathy .... Petitioner
Mr. N. Rath, Adv.
-versus-
State of Odisha & Others .... Opposite Parties
Mr. M.K. Balabantaray, AGA
Mr. B.P. Tripathy, Adv. for
O.P.2
CORAM:
JUSTICE BIRAJA PRASANNA SATAPATHY
ORDER
21.12.2023 Order No
09. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode.
2. Heard learned counsel appearing for the Parties.
3. The present Writ Petition has been filed by the Petitioner inter alia with the following prayer:-
"i. To quash the decision of Respondent No.2 as at Annexure-8.
ii. To quash the reversion order dtd.13.05.2004 as at Annexure-3 issued by the Respondent No.1.
iii. To direct the Respondents to allow the benefit of Addl. Superintendent of Police from the date of his impugned reversion till the date of his retirement and to grant him all consequential service benefits.
iv. To pass any other order/s as deem fit and proper".
4. It is contended that Petitioner while continuing as a Deputy Superintendent of Police, basing on the recommendation of the DPC held on 29.08.2002, Petitioner vide Notification dtd.03.10.2002 under Annexure-2 was promoted to the rank of Addl.
// 2 // Superintendent of Police (Group-A) in OPS cadre. In the Notification issued under Annexure-2, Petitioner's name finds place at S.L. No.12.
4.1. It is contended that while so continuing in the promotional post of Addl. Superintendent of Police in terms of Annexure-2, Petitioner was reverted to the post of Deputy Superintendent of Police vide Notification dtd.13.05.2004 under Annexure-3, on the ground that OPSC has advised not to extend the benefit of promotion in favour of the Petitioner. Petitioner challenging the reversion approached the Tribunal in O.A No.602 of 2004. The Tribunal vide order dtd.24.06.2011 under Annexure-7, disposed of the matter inter alia with certain directions. Relevant portion of the order reflected in Para-13, 14 and 15 are quoted hereunder:-
"13. The ad hoc promotion of the applicant under Annexure-2 was for one year or till the confirmation of OPSC, which ever was earlier. As OPSC did not recommend for his promotion irrespective of reason thereof, he stood reverted to the post of DSP.
14. In the circumstances, it is directed that the Respondent No.2-OPSC is to reconsider their findings and recommendation as regards promotion of the applicant.
15. This exercise be completed within three months from communication of this order. If such concurrence is granted, the applicant be allowed by Respondent No.1 to continue in the post of Addl. Superintendent of Police from the date he was reverted to the rank of D.S.P".
4.2. It is contended that on receipt of the order of the Tribunal, OPSC-Opposite Party No.2 issued the impugned order dtd.02.11.2012 under Annexure-8 by upholding its earlier advice.
Page 2 of 8// 3 // 4.3. It is contended that by the time the D.P.C recommended the case of the Petitioner, basing on the proceeding dtd. 29.08.2002, Petitioner since had five outstanding CCR, he was treated as an Exceptional Officer and accordingly he was given out of turn promotion in terms of the provisions contained under Rule-3(b) of OCS (Criteria for Promotion) Rules, 1992 (in short Rules).
4.4. It is contended that out of turn promotion of the Petitioner to the rank of Addl. Superintendent of Police was not assailed by any person to whom the Petitioner superseded while getting the benefit. But because of the advice given by the OPSC in its letter dtd.08.12.2003 under Annexure-6, Petitioner without being giving any opportunity of hearing, was reverted vide order dtd.13.05.2004 under Annexure-3. Petitioner on being so reverted continued in the rank of Deputy Superintendent of Police till he attained the age of superannuation on 31.01.2007.
4.5. Learned counsel for the Petitioner contended that D.P.C found the Petitioner being in the nature of an exceptional officer and relying on the provision contained under Rule-3 of the Rules recommended his case for promotion. The recommendation made by the DPC was acted upon while issuing the Notification under Annexure-2. It is accordingly contended that there was no occasion on the part of the OPSC to advice against such promotion vide Annexire-6.
Page 3 of 8// 4 // 4.6. It is contended that in its advice issued on 08.12.2003 under Annexure-6, OPSC in Para-4 has taken the following stand:-
"4. As regards, Sri Nilamani Tripathy who had been nominated by the D.P.C. for out of turn promotion, the Commission observed that according to Rule 3(b) of the O.C.S (Criteria for promotion) Rules, 1992, the main ingredient is merit and suitability in all respects with due regard to seniority. In addition to this, other aspects like select list and seniority in feeder service or grade are also relevant. The O.C.S. (Zone of Consideration) Rules, 1998 also have to be taken into account in absence of specific provision in the Recruitment Rules. The D.P.C. while preparing the select list should exclude such categories of officers who do not fall within Rule 3(b) of the O.C.S (Criteria for Promotion) Rules, 1992. In that event, certain categories of officers are considered unsuitable due to adverse C.C.Rs., some other cases are to be kept in sealed cover due to pendency of proceedings and the select list will be prepared after exclusion of those names. From the select list, there may be accelerated promotion as long as that takes place in the same batch or within the same year of allotment. Keeping this in view, the Commission considered the case of Sri Nilamani Tripathy and found that he has outstanding C.C.Rs for five years out of which outstanding C.C.Rs for four years have not been substantiated. According to standing instruction of Government every 'outstanding' grading should be substantiated. Therefore, the Commission does not think it proper to consider his case based on the grading given in the C.C.Rs as of exceptional merit.
Secondly, it is found that Sri Nilamani Tripathy is the last man in the Zone of consideration, the select list prepared already consists of meritorious and suitable officers. Therefore, taking the last officer into the select list by excluding may suitable and meritorious officers senior to him, will not be correct in the light of principle laid down under the O.C.S. (Criteria for Promotion) Rules. Having examined so, the Commission does not recommend Sri Nilamani Tripathy for promotion to the rank of Additional S.P. on out of turn basis".
4.7. It is contended that in the advice dtd. 08.12.2003 under Annexure-6 a plea was taken by the OPSC that Petitioner though has got outstanding CCR for 5 years, Page 4 of 8 // 5 // but outstanding CCR for four years have not been substantiated. Accordingly, OPSC gave the advice under Annxure-6. But in terms of the direction of the Tribunal, while upholding the advice, OPSC took the following stand with regard to the out of turn promotion of the Petitioner. The stand taken in the impugned order dtd.02.11.2012 is quoted hereunder:-
"As indicated above, the select list shall be arranged in order of seniority in the feeder service or the grade. The DPC should have made the select list and then should have gone on preparing the merit list.
The DPC has considered Sl. No.59, Sri Nilamani Tripathy as he has got "Outstanding" service records for last 5 years which is exceptional in nature. But there is a proviso to Rule-3(b) of OCS (Criteria for Promotion) Rules, 1992 and in the said proviso if is mentioned that after the select list is prepared amongst them if a Junior Officer is found exceptionally meritorious, he will be assigned a place higher than his seniors of his batch.
In the instant case, DPC should have taken into consideration all the 10 eligible officers and should not have gone up to the last officer of 1998 batch of DSP i.e. to SI. No.59 of gradation list and therefore question of his placement higher in the merit list does not arise at all. The DPC has not considered suitable officers and neither have declared them unsuitable and have gone beyond them and have done injustice to them going down to Sl.No.59 which is not the selection rule for promotion.
After reconsidering of all matters, the Commission feel that the selection of Sri Nilamani Tripathy, Sl.No.59 of the gradation list, on out of turn basis, is not proper. Hence, the Commission does not recommend his name for promotion to the rank of Additional S.P. on reconsideration".
4.8. It is contended that since the Petitioner at the relevant point of time had got five outstanding CCRs and the DPC in terms of Rule-3 found him to be an exceptional officer, he was given out of turn promotion by superseding 9 officers of the same batch. The Page 5 of 8 // 6 // promotion so given in favour of the Petitioner was never assailed by any of his 9 juniors and it presupposes that Petitioner was rightly extended with the benefit. But because of the advice of the OPSC so issued under Annexure-6, Petitioner was reverted.
4.9.It is also contended that while in the advice issued under Annexure-6, OPSC took a stand that out of 5 outstanding CCR, 4 have not been substantiated, but while upholding the advice vide the impugned order, OPSC took a different stand to the effect that Petitioner being the Junior to his batch mates of 1998 batch, other officers should have been considered for such out of turn promotion.
4.10.It is accordingly contended that in view of such stand taken by the OPSC, Petitioner could not have been reverted vide the impugned order dtd.13.05.2004 under Annexure-3.
4.11.It is therefore contended that the Petitioner is eligible and entitled to get the benefit of promotion so accorded in his favour vide Notification issued on 03.10.2002 under Annexure-2 till he attained the age of superannuation on 31.01.2007 with all service and financial benefits.
5. Considering the stand taken by OPSC in its counter, when this Court directed the learned counsel appearing for the Commission to produce the CCRs of the Petitioner and other 9 Officers whom the Petitioner superseded, Commission failed to produce the CCRs of Page 6 of 8 // 7 // other 9 Officers. It is contended that the CCRs of the other 9 officers are available with the State. Basing on the stand taken by the learned counsel appearing for the Commission, this Court passed an order directing the State-Opposite Party to produce the CCRs of the Petitioner as well as of other 9 officers.
5.1. Today when the matter was taken up, instruction provided by the Home Department vide letter dtd.20.12.2023 was produced. In the said instruction, it has been indicated that because of lapse of time the CCRs of other 9 officers are not available. However, the CCR of the present petitioner was produced before this Court. After going through the instruction, it is found that the Petitioner at the relevant point of time, when the DPC recommended his name had got five outstanding CCRs. Since the CCRs of other nine officers are not there before this Court in spite of direction being issued to the Commission as well as to the State, this Court is of the view that the D.P.C in its proceeding dtd.28.09.2002 rightly recommended the case of the Petitioner to get the benefit of promotion out of turn taking recourse to the provisions contained under Rule-3(b) of the Rules. The recommendation was also rightly acted upon with issuance of the Notification dtd.03.10.2002 under Annexure-2.
6. Therefore, in view of such finding of this Court, this Court is inclined to quash the order of reversion passed against the Petitioner vide Notification dtd.13.05.2004 under Annexure-3 as well as the order Page 7 of 8 // 8 // passed by the Commission on 02.11.2012 under Annexure-8. While quashing both the orders issued under Annexures-3 & 8, this Court upheld the order of promotion so extended in favour of the Petitioner vide Annexure-2. However, since after the order of reversion passed on 13.05.2004, Petitioner continued as against the post of Deputy Superintendent of Police, till he retired on 31.01.2007, the period of from 13.05.2004 till 31.01.2007 be regularized on notional basis, taking into account the status of the Petitioner in the rank of Addl. Superintendent of Police. On extension of such benefit on notional basis pension and other pensionary benefits be revised accordingly and differential entitlement as due and admissible be also released in favour of the Petitioner. The entire exercise be undertaken and completed by Opposite Party No.1 within a period of three (3) months from the date of receipt of this order. Instruction provided by the learned State Counsel be kept in record.
7. Accordingly, the Writ Petition stands disposed of.
(Biraja Prasanna Satapathy) Judge Subrat Signature Not Verified Digitally Signed Signed by: SUBRAT KUMAR BARIK Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 02-Jan-2024 10:58:56 Page 8 of 8