Orissa High Court
Upendra Prasad Patra vs State Of Odisha And Others ..... ... on 13 December, 2021
Author: B.R. Sarangi
Bench: B.R. Sarangi
IN THE HIGH COURT OF ORISSA AT CUTTACK
WPC (OA) No. 990 of 2004
Upendra Prasad Patra ..... Petitioner
Mr. S.N. Patnaik, Advocate
Vs.
State of Odisha and others ..... Opposite parties
Mr. N.K. Praharaj, Standing Counsel
CORAM:
DR. JUSTICE B.R. SARANGI
ORDER
13.12.2021 Order No. This matter is taken up by hybrid mode.
012. Heard Mr. S.N. Patniak, learned counsel for the petitioner and Mr. N.K. Praharaj, learned Standing Counsel for the state.
3. The petitioner files this writ petition seeking for quashing of the order dated 16.08.2004 and further seeks to direct the opposite parties to grant all consequential service benefits as due and admissible to him.
4. Mr. S.N. Patnaik, learned counsel for the petitioner contended that the petitioner who belongs to SC category, joined the service as Sub-Inspector of Excise on 21.04.1971. The petitioner promoted to the rank of Inspector of Excise with effect from 01.02.1989 and the said has been declared as a specially declared gazetted post. When the question of promotion to the post of Deputy Superintendent of Excise was concerned, the petitioner was promoted to the Deputy Superintendent of Excise on ad hoc basis for a period of one year or till recommendation of the Orissa Public Service Page 1 of 4 Commission or further orders, whichever is earlier without prejudice to the claims of others. However on the basis of non concurrence given by the OPSC, the petitioner was immediately reverted back to the original Post of Inspector of Excise. It is contended that the OPSC has taken into consideration the CCR of the petitioner vis-à-vis the private opposite parties for giving promotion and in compliance of the same, the petitioner was reverted back, without complying the principle of natural justice.
5. Mr. N.K. Praharaj, learned Standing Counsel contended that the promotion was given to the petitioner on ad hoc basis subject to the concurrence of the OPSC and the OPSC while according concurrence examined the record of the petitioner vis-à-vis the private opposite parties and came to a conclusion that the petitioner is less suitable in comparison to private opposite parties on the basis of the entries made in the CCR and thereby the petitioner was reverted back. Thus no illegality or irregularity has been committed by the authority by passing the impugned order. He further contended that while granting promotion to the petitioner on ad hoc basis, it has been indicated in the promotion order that the same is for a period of one year or till recommendation of the OPSC, which was within the knowledge of the petitioner. Therefore, if the opposite parties have reverted the petitioner on the basis of the opinion of the OPSC, the principle of natural justice need not be followed.
6. Having heard learned counsel for the petitioners and going through the record, there is no dispute with regard to the factual matrix. Admittedly the petitioner has been given Page 2 of 4 promotion to the post Deputy Superintendent of Excise from the post of Inspector of Excise, but the same was on ad hoc basis for a period of one year or subject to concurrence of the OPSC. The petitioner is aware of the fact that he had been given promotion on ad hoc basis for a period of one year. The service record of the petitioner vis-à-vis the private opposite parties were scrutinized by the OPSC while granting concurrence and it is observed as follows:-
"At the same time, on scrutiny of C.C. Rolls of Sri U.P. Patra, it is found that, for the years 97-98, 98-99 and 99-2000, no entry has been recorded. For the year 96-97, he has earned rating of 'Average'. In the year 95-96, no entry has been recorded in his C.C. Roll. Under the Orissa Civil Service (Criteria for Promotion) Rules, 1992, the C.C. Rolls of the preceeding five years available should be scrutinized. In absence of records, the C.C. Rolls prior to the last five years have been seen. Records reflect the following:-
i) In the year 91-92, he was rated as an 'Average' Officer.
ii) In the year 92-93, he was rated as a 'Good' Officer.
iii) In the year 93-94, he was rated as an 'Average' Officer.
iv) For the part period of 9596, he was rated as 'Good' Officer.
From analysis of these records, the Commission does no consider him to be an Officer who should be allowed to hold higher responsibility of the post of Deputy Superintendent of Excise. The principle for promotion is "merit and suitability with due regard to seniority". The Commission cannot afford to ignore the consistently 'Average' records and therefore, do not recommend this case for promotion"
7. Considering the service record of the petitioner, OPSC did not consider the petitioner to be an officer who should be allowed to hold higher responsibility of the post of Deputy Superintendent of Excise. The Principle for promotion is "merit and suitability with due regard to seniority". It was also observed that the Commission could not afford to ignore the Page 3 of 4 consistently 'Average' records and therefore, did not recommend his case for promotion. Due to non grant of concurrence to the promotional post of the petitioner by the OPSC, he has been reverted back to the post of Inspector of Excise. This Court does not find any error to this extent.
8. But fact remains by the time the order of non grant of concurrence of the promotion of the petitioner was passed by the OPSC, the petitioner has already got promotion to the rank of Deputy Superintendent of Excise and all of a sudden on receipt of order from the OPSC, the petitioner was reverted back to the post of Inspector of Excise. Law requires that when reversion is to be made, compliance of natural justice has to be made. But in the present case nothing has been placed on record that the compliance of natural justice has been followed. Therefore, the reversion order has been passed by the authority concerned without following the principle of natural justice. Thus the order under Annexure-4 dated 13.02.2002 cannot sustain in the eye of law and as such, the same is hereby quashed. It is left open to the opposite parties to re-consider the case of the petitioner with regard to extension of benefit of promotion to him in consonance with the provisions of law as expeditiously as possible, preferably within a period of four months from the date of communication of the order, since in the meantime, the petitioner has already retired from service.
9. With the above observation/direction the writ petition stands disposed of.
Arun DR. B.R. SARANGI,
JUDGE
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