Orissa High Court
Sri Dasrathi Ram Dora vs State Of Odisha And Others .... Opposite ... on 22 January, 2024
Author: A.K.Mohapatra
Bench: A.K.Mohapatra
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.10427 of 2022
Sri Dasrathi Ram Dora .... Petitioner
Ms. A.K. Dei, Advocate
-versus-
State of Odisha and others .... Opposite Parties
Mr. Saswat Das, A.G.A.
CORAM:
JUSTICE A.K.MOHAPATRA
ORDER
22.01.2024 Order No.
04. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical Mode).
2. Heard learned counsel for the Petitioner as well as learned Additional Government Advocate appearing for the State-Opposite Parties. Perused the writ petition as well as the documents annexed thereto.
3. The present writ petition has been filed by the Petitioner with the following prayers:-
"It is, therefore, prayed that the Hon'ble Court may graciously be pleased to issue rule NISI calling upon the opposite party to show cause And in the event the opposite party fails to show cause of show insufficient cause make the rule absolute and issue writ of mandamus commanding the opposite party to give retrospective promotion to the petitioner from the // 2 // date when his juniors have been promoted. All the juniors and batch mates got promotion to the post of OTAS to OFS-1 (J.B.) under Finance Department, Govt. of Odisha with effect from 19.02.2019.
And pass any other appropriate order/orders, direction/directions as deem fit and proper."
4. On perusal of the order sheet, it appears that this matter was before this Bench on 09.05.2022. After hearing the learned counsels for the parties and upon considering their submissions, this Court disposed of the application vide order dated 09.05.2022 with a direction as stated in order dated 09.05.2022. Therefore, the State-Opposite Parties preferred a writ appeal bearing W.A. No.1236 of 2022 before the Hon'ble Division Bench wherein the State-Opposite Parties took a specific stand that no opportunity was given to the Opposite Parties to file counter affidavit. Accordingly, the Hon'ble Division Bench vide order dated 27.03.2023 while setting aside the order dated 09.05.2022 remitted back the matter to the roster Bench of the learned Single Judge with a further direction to the Appellant/State to file counter affidavit positively on or before 3rd July, 2023 and rejoinder thereto, if any, be also filed by the Respondent/Writ Petitioner before 17th July, 2023. Further, the order dated 27.03.2023 has made it clear that no further time will be granted to either party for that purpose. Despite such clear and specific direction, no counter affidavit has been filed as of now.
Page 2 of 5// 3 //
5. When the matter was being taken up today, learned Additional Government Advocate sought for time to file counter affidavit. However, this Court in view of the order passed by the Hon'ble Division Bench dated 27.03.2023 is unable to grant any further time. Accordingly, the matter is taken up for final disposal.
6. Learned counsel appearing for the Writ Petitioner submitted that this Court has not committed any error in passing order dated 09.05.2022. To support of her contention, learned counsel for the Petitioner also referred to the judgment of a coordinate Bench in Nihar Ranjan Choudhury v. State of Odisha and another (W.P.(C) No.21793 of 2021 decided on 06.11.2023).
7. Learned Additional Government Advocate appearing for the State-Opposite Parties, on the other hand, referred to the judgment dated 11.05.2023 passed by this Court in W.A. No.805 of 2021 in support of his contention. In course of his argument, learned Additional Government Advocate specifically referred to Para-8,9, 10, 11 & 12 of the judgment dated 11.05.2023 passed by this Court in W.A. No.805 of 2021 and a batch of Writ Appeals. To support of his contention, learned Additional Government Advocate submitted that promotion cannot be granted during pendency of the criminal case as well as disciplinary proceeding.
8. Learned counsel appearing for the Petitioner, on the other hand, heavily relied upon the judgment in Nihar Ranjan Page 3 of 5 // 4 // Choudhury's case (supra). She further contended that the judgment that has been referred to by the learned Additional Government Advocate in W.A. No.805 of 2021 and batch of Writ Appeals has been specifically taken note of by the learned coordinate Bench in its judgment dated 06.11.2023. Learned coordinate Bench referring to the judgment of the Hon'ble Supreme Court in Union of India and others Vrs. K.V. Jankiraman and others, reported in (1991) 4 SCC 109 and similar other judgments of the Hon'ble Supreme Court including the case of State of Punjab and others Vrs. Chaman Lal Goyal, reported in (1995) 2 SCC 570 was pleased to grant ad-hoc promotion to the Petitioner in that case.
9. Be that as it may, after hearing learned counsels appearing for the parties and on a careful examination of the background facts of the present case as well as further taking into consideration the fact that despite grant of opportunity to the State-Opposite Parties by the Hon'ble Division Bench no counter affidavit has been field as of now, this Court is not inclined to vary/reverse the order dated 09.05.2022. Accordingly, the same is confirmed again.
10. In view of the settled position of law, this Court while disposing of the writ petition observes that the Petitioner cannot be made to suffer for the long pendency of the criminal proceeding against him. It is also not known when the proceeding, which was initiated in the year 2016, will come to an end. Therefore, it is directed to the Opposite Party No.1 to Page 4 of 5 // 5 // give promotion to the Petitioner to the rank of OFS-1 (JB) from 19.02.2019, i.e. the date on which his junior and batch mates got such promotions. However, the promotion of the petitioner as per the direction of this Court shall be subject to the ultimate outcome in the criminal proceeding. Further, it is also clarified that the promotion given to the Petitioner to different ranks shall not confer any equity in the event the Petitioner ultimately loses in the Criminal Proceeding. It is further directed that the entire exercise shall be completed within a period of eight weeks from the date of communication of a certified copy of this order. It is also clarified that upon promotion, Petitioner shall also be entitled to all consequential benefits.
11. With the above observation and direction, the writ petition thus stands disposed of.
Issue urgent certified copy as per rules.
(A.K. Mohapatra) Judge Debasis Signature Not Verified Digitally Signed Signed by: DEBASIS AECH Designation: Secretary Reason: Authentication Location: OHC, CUTTACK. Date: 26-Jan-2024 10:56:43 Page 5 of 5