Orissa High Court
Shri Justice S. K. Mishra vs Grid Corporation Of Orissa on 19 April, 2021
Author: S. K. Mishra
Bench: S. K. Mishra
W.A. No.77 OF 2020
C O R A M:
SHRI JUSTICE S. K. MISHRA
AND
MISS JUSTICE SAVITRI RATHO
______________________________________________
Smt. Kaushalya Dei ...... Appellant.
- Versus-
Grid Corporation of Orissa
and Ors. ...... Respondents.
For Appellant : Mr. J. Rath, Sr. Adv.,
D.N. Rath, P.K. Rout
and A.K. Saa.
For Respondents : Mr. P.K. Mohanty, Sr. Adv.,
P. Mohanty, P.K. Nayak,
P.K. Pasayat & S.N. Das.
(For O.P. No.4)
ORDER
03. 19.04.2021 This matter is taken up by Video Conferencing mode.
02. Heard Mr. J. Rath, learned Senior Advocate appearing for the Appellant and Mr. P.K. Mohanty, learned Senior Advocate appearing for the Respondent No.4.
03. This Intra Court Appeal has been preferred by the Appellant whose writ petition bearing W.P.(C) No.5044 of 2005 has been dismissed by the learned Single Judge on 06.01.2020.
In the said writ petition, the Petitioner/ Appellant prayed for consideration of her case for promotion, inter alia, alleging that she has not been promoted when she was eligible and the promotional posts were filled up by direct recruitment.
204. The learned Single Judge held that the writ petition filed by the Petitioner/ Appellant has become infructuous as the Petitioner/ Appellant has retired during the pendency of the writ petition on the promotional post and there was no departmental promotion during pendency of the writ petition. Hence, the issue involving promotion becomes academic. The view taken by the learned Single Judge is not correct, as the Petitioner/ Appellant has prayed for promotion to the higher post such as E-4 Grade and E-5 Grade, as she was eligible for promotion to the said post, she belongs to Scheduled Tribe (women) Category and that she is entitled to get differential arrear.
05. It is not disputed that the Petitioner/ Appellant was an employee of the Grid Corporation of Orissa Limited now named and style as "Orissa Power Transmission Corporation Limited" (OPTCL). She was working in a promotional post as Section Officer and was a graduate. It is also not disputed that she belongs to Scheduled Tribe (women) category. She started her career from 04.04.1983 on being appointed as Lower Division Assistant under Orissa State Electricity Board.
On 19.05.1986, the Appellant was promoted to the post of Grade-II Assistant. On 05.05.1992, she was promoted to the post of Grade-I Assistant. In the year 1995 the State Government, by virtue of Orissa Electricity Reform (Transfer of Undertakings, Assets, Liabilities, Proceedings and 3 Personnel) Scheme Rules, 1996, promulgated under Sections 55 and 23 of the Orissa Electricity Reform Act, 1995 (Orissa Act 2 of 1996), transferred the establishment and the personnel of Orissa State Electricity Board to Orissa Hydro Power Corporation Limited and Grid Corporation of Orissa Limited.
As per Sub-Rule 8(a) of Rule 6 of the Orissa Electricity Reform (Transfer of Undertakings, Assets, Liabilities, Proceedings and Personnel) Scheme Rules, 1996, the transferred personnel were to be protected with the condition that the terms and conditions of the services applicable to them on the effective date shall not in any way be less favourable to them than those applicable to them immediately before such date. On 01.04.1997, the GRIDCO Officers Service Regulations, 1996 came into force. The said Regulation prescribed Executive Cadre Structure from E-1 to E-
10. On 29.10.1998, the Committee of the Board of GRIDCO in its meeting dated 23.09.1998 took a decision that Section Officer, Section Officer (Senior), Section Officer (Selection Grade) and Section Officer (Supertime Scale) were to be assigned the Executive Grade and accordingly, they were assigned with E-1, E-2, E-3 and E-4 Grade, respectively.
On the same day, the office order was communicated that the Graduate Section Officers who were promoted to the post of Junior Manager in the same scale of pay i.e. Rs.1755- 3615/- (pre-revised) shall be allowed to get special pay of 4 Rs.150/- per month. On 23.11.1998, the Petitioner/ Appellant was promoted to the post of Section Officer vide Letter No.38355 dated 23.11.1998. In that view of the matter, the Petitioner/ Appellant was assigned the Executive Grade, i.e., E-2 as per the decision of the Committee dated 29.10.1998.
06. Regulation 8 of the GRIDCO Officers Service Regulation provides that all appointment and promotion to the Executive Grade shall be made by the competent authority in accordance with the Policy or the Guidelines as laid down by the Committee of the Board.
Regulation 11 (3) of the GRIDCO Officers Service Regulation provides that the permanent vacancy in the Executive Cadre shall be filled up by promotion or direct appointment from the Officers in the Lower Grade.
07. The Petitioner/ Appellant was discharging her duties as Section Officer with effect from 23.11.1998. Therefore, as per Clause-6.3 of the GRIDCO Officers' Promotion Policy, she has acquired eligibility for promotion to E-3 Grade post on completion of five years of service in E-2 Grade. She was eligible for the said post on 23.11.2003. Twelve posts were made available to be filled up in the Grade of Assistant Manager and as per Clause-7.2.6 of the Promotion Policy, 1/3rd of the vacancies in the Grade of Assistant Manager are to be filled up by way of promotion from the post of Junior Manager. Therefore, four posts out of twelve vacancies had to be filled up 5 by way of promotion and eight posts had to be filled up by direct recruitment. The process of direct recruitment for appointment to E-3 Grade, i.e., Assistant Manager started on 18.08.2002 and the appointment orders for E-3 Grade were issued in the year 2003. But, no steps were taken for promotion to the posts of E-3 Grade, though the Petitioner/ Appellant was eligible having requisite qualification and experience for consideration for appointment against the promotional vacancy.
08. Therefore, the Petitioner/ Appellant made a representation ventilating her grievance along with the fact that as she belongs to Scheduled Tribe (women) category, her case should be considered. On 23.10.2009, while the writ petition was pending, she was communicated that she has been re- designated as Junior Manager (HRD) in pursuance of Clause- 7.2.3 of the GRIDCO Officers' Promotion Policy. Such communication was incorrect and illegal in view of the fact that Clause-7.2.3 of the GRIDCO Officers' Promotion Policy was meant for non-graduate Section Officers. Finally, vide Office Order dated 06.12.2017 of the Director (HRD), Odisha Power Transmission Corporation Limited, the Petitioner/Appellant was promoted to the post of Assistant Manager (HRD) in E-3 Grade and on 03.11.2019 she retired from service on attaining the age of superannuation.
09. Keeping in view of the aforesaid facts, we are of the opinion that though an employee does not have a right to be 6 promoted, the Petitioner/ Appellant has right to be considered for promotion. When the recruitment for the post of E-2 Grade was taken place in the year 2003, the case of the Petitioner/ Appellant should have been considered for promotion. It is not the case of the Respondents that the case of the Petitioner/ Appellant was considered for promotion, but she was not found eligible. In fact, they stated that the Petitioner/ Appellant was eligible, but she did not have the qualifying service of five years on the date of promotion, which on the face of record is erroneous.
10. So, we are of the opinion that this is a fit case where the writ petition should have been allowed.
11. Therefore, we allow the WA and accordingly, the writ petition also. Even though the Petitioner/ Appellant has retired in the meantime, her case should be considered from the date when she became eligible for promotion to E-3 Grade and E-4 Grade and the Respondents should consider her case for promotion accordingly. Since she had requisite qualification of being graduate belonging to Scheduled Tribe (women) category and there were vacancies at the time in the promotional cadre, we do not find any substantive reason to refuse promotion to her. So, while considering her case, this aspect should be kept in mind and unless there is any serious allegation of misconduct on her part or similar reasons, her case for promotion from the date of her becoming qualified for promotion should be 7 considered and the consequent benefit between 22.11.2003 on the promotional cadre should be given to her. If there is any issue of unavailability of vacancies at the time of consideration, this supernumerary post should be created and this order be given effect to.
12. The entire process should be completed within a period of three months from the date of receipt/ communication of this order. This order be communicated to the Respondents requisites for which shall be filed by the Petitioner/ Appellant within 20 days from today.
13. As the restrictions due to resurgence of Covid-19 are continuing, learned counsel for the parties may utilize a printout of the order available in the High Court's website, at par with certified copy, subject to attestation by Mr. J. Rath, learned Senior Advocate, in the manner prescribed vide Court's Notice No.4587 dated 25th March, 2020 as modified by Court's Notice No.4798 dated 15th April, 2021.
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(S. K. Mishra) Judge .........................
(Savitri Ratho) Judge BJ