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2008 DIGILAW 471 (ORI)

STATE OF ORISSA v. SUBAL CHARAN DAS

2008-06-24

I.M.QUDDUSI, S.C.PARIJA

body2008
JUDGMENT : S.C. Parija, J. - The State of Orissa and its functionary have filed this writ application challenging the order dated 18.03.2005 passed by the Orissa Administrative Tribunal, Bhubaneswar, in O.A. No. 1869 of 2000 wherein the proceeding of the Departmental Promotion Committee (DPC for short) finding that the opposite party No. 1 as unsuitable for promotion to the post of Statistical Officer has been quashed. The Petitioners have further challenged the direction of the Tribunal regarding consideration of retrospective promotion of opposite party No. 1 with effect from 19.10.1976 to the post of Statistical Officer, as has been done in respect of opposite party No. 3. 2. The brief facts of the case is that opposite party No. 1 joined as Statistical Investigator on 01.12.1967 and opposite party No. 3 joined as Statistical Investigator on 15.12.1970, under the Director, Animal Husbandry & Veterinary Services, Orissa, Petitioner No. 2. 3. At the time when the DPC was convened on 13.8.1976 to consider the promotion to the post of Statistical Officer, the eligibility criteria for such promotion to the post of Statistical Officer, from amongst Statistical Investigators and Ors. were as follows: STATISTICAL OFFICER I.C.D., CUTTACK. The following qualifications have been prescribed for the post of Statistical Officer. 1. Masters' Degree in Statistics /Economics/ Mathematics/ Commerce j Agriculture or Veterinary Science with mathematics as a special subject of study. Or Degree or Diploma in Veterinary Science in Animal Husbandry from a recognized Institute in India or abroad with specialized Training in statistics. Or 10 years experience as Statistical specialized training in Statistics. Investigator or with 4. The meeting of the DPC was held on 31.8.1976 for consideration of promotion to the post of Statistical Officer. Though both opposite party No. 1 and opposite party No. 3 were not eligible for consideration, as they did not fulfill the requisite eligibility criteria as detailed above, their names were wrongly recommended by the Director, Petitioner No. 2. In the said DPC held on 31.8.1976 the opposite party No. 1 was found unsuitable for promotion due to adverse entries in the C.C. Rs. and instead the opposite party No. 3 was recommended for promotion on the basis of merit and suitability. On the basis of such recommendation of the DPC, opposite party No. 3 was promoted to the post of Statistical Officer with effect from 19.10.1976. 5. and instead the opposite party No. 3 was recommended for promotion on the basis of merit and suitability. On the basis of such recommendation of the DPC, opposite party No. 3 was promoted to the post of Statistical Officer with effect from 19.10.1976. 5. Subsequently it was detected that neither opposite party No. 1 nor opposite party No. 3 possess the requisite qualification of specialized training in Statistics nor they have got 10 years of experience as Statistical Investigator on the relevant date of consideration, i.e., 31.08.1976, as required for promotion to the post of Statistical Officer. Since opposite party No. 3 had been wrongly promoted and was holding the promotional post of Statistical Officer, he was immediately reverted to his former post of Statistical Investigator with effect from 19.01.1979. 6. As the opposite party No. 1 was not promoted to the post of Statistical Officer due to adverse entries in the C.C. Rs., which according to him, were not communicated before consideration of his case for promotion in the DPC held on 31.8.1976 and as his junior (opposite party No. 3) was promoted to the post of Statistical Officer, with effect from 19.10.1976, the opposite party No. 1 submitted representation, claiming promotion to the post of Statistical Officer from the date opposite party No. 3. was promoted. As his representation was not disposed of by the authorities, he filed writ application bearing OJC No. 9", of 1978 before this Court, which was disposed of on 9.5.1978, with a direction to the authorities to dispose of his representation. The State Government vide order dated 22.8.1978 considered and rejected the representation of opposite party No. 1. Being aggrieved, he filed another writ application bearing OJC No. 751 of 1979 before this Court, for quashing the promotion of opposite party No. 3 to the post of Statistical Officer and to consider his case for promotion from the date of promotion of the said opposite party No. 3. Subsequently, the said writ application of opposite party No. 1 (OJC No. 751/1979) was transferred to the Orissa Administrative Tribunal, Bhubaneswar and was renumbered as T.A. No. 9, of 1987. 7. During pendency of the writ application before this Hon'ble Court DPC was held on 6.8.1985 in which the opposite party No. 1 was found suitable for promotion and was promoted to the post of Statistical Officer with effect from 31.8.1985. 8. 7. During pendency of the writ application before this Hon'ble Court DPC was held on 6.8.1985 in which the opposite party No. 1 was found suitable for promotion and was promoted to the post of Statistical Officer with effect from 31.8.1985. 8. The said T.A. No. 372 of 1987 was subsequently disposed of by the Tribunal by Order dated 26.3.1991 with the following direction: Xxx Therefore we hold that if Opp. Party No. 5 S.K. Chakravarty has been promoted earlier to the Petitioner, and the Petitioner is entitled to be considered from that date after consideration of his representation against adverse entries. We therefore, direct, that the Petitioner's case for promotion to Class-II post in the Statistical wing of the Directorate of Veterinary Services be considered with effect from the date Opp. Party No. 5 has been given promotion on the basis of the records upto that time and if found suitable he be promoted. We presume that by now that the representation made by the Petitioner against his adverse entries has been considered and decided. With the aforesaid direction the petition is allowed in part. There will no order as to cost. 9. That pursuant to aforesaid direction of the Tribunal dated 26.3.1991, the review DPC was held on 9.7.1999 and in the said DPC the opposite party No. 1 was found unsuitable for promotion to the rank of Statistical Officer with effect from 19.10.1976, as he neither had the requisite qualification nor 10 years experience as Statistical Investigator with specialized training in Statistics as on 19.10.1976. This decision of the DPC was communicated vide letter dated 09.09.1999. 10. The opposite party No. 1 challenged the said decision of the DPC in O.A. No. 1869 of 2000 before the Orissa Administrative Tribunal, Bhubaneswar. The learned Tribunal after considering the materials on record and hearing the parties vide order dated 18.3.2005 came to hold as under: There is no dispute at the Bar that there was no rule in 1976 governing the recruitment and promotion of Statistical Officers. According to the Respondent No. 1, the eligibility criteria was prescribed for promotion when the D.P.C. met on 31.8.1976. The said criteria has been noted in the counter. According to the Respondent No. 1, the eligibility criteria was prescribed for promotion when the D.P.C. met on 31.8.1976. The said criteria has been noted in the counter. This was suggested by the Director of Animal Husbandry and Veterinary Services (Respondent No. 2) in his letter to the Respondent No. 1 for approval in letter No. 1470 dated 3.3.1976, (Annexure-A to the Additional Counter). The learned Govt. Advocate is not in a position to say if the proposal of Director was approved by the Govt. for giving scope to the D.P.C. to consider the same while considering the promotion to the post of Statistical Officer. The D.P.C. which met on 31.8.1976 could have considered the said criteria if it was in existence for finding the applicant not eligible for promotion. But it is admitted that the D.P.C. considered the applicant not suitable on the basis of performance. The D.P.C. had taken into consideration the adverse entries in his uncommunicated C.C. Rs. for some years and this was not accepted by the Tribunal in the earlier case. The suggested criteria and guidelines which do not appear to have received the Govt. approval in 1976 should not have been considered by the review D.P.C. which met pursuant to the order of this Tribunal dated 26.3.1991 in T.A. 372/87. It shows that the D.P.C. has not considered the case of the applicant for retrospective promotion from 19.10.1976 on which date the Respondent No. 4 was promoted to the rank of Statistical Officer in its proper perspective. The. State Respondents have introduced a new story of criteria and guidelines for promotion to the post of Statistical Officer for the reason best know to them. In that view of the matter the order Annexure-8 dated 9.7.1999 finding the applicant unsuitable for retrospective promotion is not tenable and the same needs to be quashed. ' 11. Accordingly the Tribunal quashed the decision of the DPC held on 9.7.1999 and directed the State Government, Petitioner No. l, to consider the case of opposite party No. 1 by convening a special meeting of the DPC for his retrospective promotion to the post of Statistical Officer from 19.10.1976, on which date the Opposite party No. 3 was given promotion, on the basis of records upto that time. The Tribunal further directed that if opposite party No. 1 was found suitable his date of promotion be ante dated to 19.10.1976 and his pay in the post of Statistical Officer be fixed on the deemed date of promotion. However the opposite party No. 1 will not be entitled to differential salary since he had not performed the duties of Statistical Officer. It is this order and/or direction of the Tribunal which is under challenge in the present writ petition. 12. It is the specific case of the Petitioners that the fact of the opposite party No. 3 having been wrongly promoted to the post of Statistical Officer with effect from 19.10.1976 and his subsequent reversion with effect from 19.1.1979 having been specifically brought to the notice of the Tribunal by way of counter affidavit and additional counter affidavit, the impugned direction of the Tribunal to consider the case of opposite party No. 1 for his retrospective promotion to the post of Statistical Officer from 19.10.1976, on which date opposite party No. 3 was given promotion is wholly erroneous and misconceived. 13. On perusal of the counter affidavit and the additional counter affidavit filed on behalf of State of Orissa, which are annexed as Annexure-2 and 3 to the present writ application, it appears that the said fact with regard to wrong promotion being given to opposite party No. 3 and his subsequent reversion with effect from 19.1.1979 has been specifically mentioned. Paragraphs 2, 3 & 4 of the counter affidavit of Petitioner No. 1 (respondent No. 1 before the Tribunal), which reads as follows: 2. That the D.P.C. meeting held on 31.8.1976 for consideration of promotion to the post of Statistical Officer and the committee did not find the applicant suitable for promotion on the basis of his performance. The committee recommended Shri Sapan Kumar Chakravorty (Respondent No. 4 for promotion on the basis of merit and suitability. It is here worth mentioning that Shri Chakravorty, Respondent No. 4 is junior to the applicant in the feeder grade of Statistical Investigator. Respondent No. 4 was promoted to the rank of Statistical Officer with effect from 19.10.1976. 3. That in the further development, it was detected that Respondent No. 4 had neither possessed the requisite qualification of specialized training in statistics nor 10 years experience as Statistical Investigator as prescribed in the eligibility criteria. Respondent No. 4 was promoted to the rank of Statistical Officer with effect from 19.10.1976. 3. That in the further development, it was detected that Respondent No. 4 had neither possessed the requisite qualification of specialized training in statistics nor 10 years experience as Statistical Investigator as prescribed in the eligibility criteria. Since Respondent No. 4 was not eligible for promotion he was reverted to his former post with effect from 19.1.79. That the Departmental Promotion Committee held on 6.8.85 found the applicant suitable for promotion and the applicant was promoted to the post of Statistical Officer with effect from 31.8.85. 4. That the junior of the applicant (Respondent No. 4) was reverted to his former post being found in-eligible for promotion on 19.1.79. Respondent No. 4 was promoted to the post with effect from 19.1.96 after retirement of the applicant with effect from 31.12.94. Hence the prayer of the applicant for his promotion to the post of Statistical Officer with effect from 19.10.76 i.e. the date of promotion of Respondent No. 4 has no locus-standi and the same is not tenable in the service jurisprudence. 14. Similarly in the additional counter affidavit filed on behalf of Petitioner No. 1, it has been specifically stated in paragraphs 3 and 4 as follows: 3. That the Departmental Promotion Committee was held on 31.8.76. Respondent No. 4 was junior to the applicant in the grade of statistical Investigator. Both the applicant and Respondent No. 4 were not eligible for promotion at the time of selection. They were wrongly reported to have possessed requisite specialized Training in statistics and considered for promotion. The applicant was found unsuitable for promotion due to adverse performance records. The proceedings of the Departmental Promotion Committee is annexed herewith as Annexure-'B'. Respondent No. 4 was recommended for promotion on the basis of merit and suitability. On the basis of recommendation of the Departmental Promotion Committee, Respondent No. 4 was promoted to the rank of Statistical Officer with effect from 19.10.76. Subsequently both the applicant and Respondent No. 4 were found not to have possessed the requisite specialized training in Statistics. Since Respondent No. 4 was holding the promotional post, he was reverted to his former post of Statistical Investigator with effect from 19.1.79. 4. Subsequently both the applicant and Respondent No. 4 were found not to have possessed the requisite specialized training in Statistics. Since Respondent No. 4 was holding the promotional post, he was reverted to his former post of Statistical Investigator with effect from 19.1.79. 4. That the Departmental Promotion Committee held on 6.8.85 found the applicant suitable for promotion and he was promoted to the post of Statistical Officer with effect from 31.8.85. The applicant retired from Government service with effect from 31.12.94. Respondent No. 4 was promoted to the post of Statistical Officer with effect from 19.1.96 after retirement of the applicant. Hence prayer of the applicant for his promotion to the rank of Statistical Officer with effect from 19.10.76 i.e. the alleged date of promotion of Respondent No. 4 is not maintainable. 15. In the counter affidavit filed by opposite party No. 1 in the present writ petition, the aforesaid fact of wrong promotion having been given to opposite party No. 3 and his subsequent reversion to the post of Statistical Investigator with effect from 19.01.1979 has not been controverted.Further the fact that the DPC held on 6.8.1985 found the opposite party No. 1 suitable for promotion and he was promoted to the post of Statistical Officer with effect from 31.8.1985 and that opposite party No. 3 was promoted to the post of Statistical Officer with effect from 19.01.1996, much after the retirement of opposite party No. 1, which was with effect from 01.01.1995, has also not been disputed. 16. It appears that the learned Tribunal has lost sight of the said relevant fact regarding the wrong promotion having been given to opposite party No. 3 to the rank of Statistical Officer with effect from 19.10.1976 and that subsequently it having been detected that opposite party No. 3 did not possess the requisite qualification, he was immediately reverted to his former post of Statistical Investigator with effect from 19.01.1979. The Tribunal has also lost sight of the fact that opposite party No. 1 (applicant before the Tribunal) had already been promoted as Statistical Officer with effect from 31.8.1985 and that much after his retirement from service, opposite party No. 3 was promoted to the said post of Statistical Officer only with effect from 19.01.1996. The Tribunal has also lost sight of the fact that opposite party No. 1 (applicant before the Tribunal) had already been promoted as Statistical Officer with effect from 31.8.1985 and that much after his retirement from service, opposite party No. 3 was promoted to the said post of Statistical Officer only with effect from 19.01.1996. Had these facts been taken note of by the Tribunal, the impugned order directing the Petitioners to consider the case of opposite party No. 1 for his retrospective promotion to the post of Statistical Officer from 19.10.1976, would not have been passed. 17. In view of the facts and circumstances narrated above and also the uncontroverted fact that opposite party No. 3 who was wrongly promoted on 19.10.1976 and he having been reverted to his former post of Statistical Investigator with effect from 19.01.1979 and the said opposite party No. 3 having been promoted to the post of Statistical Officer only with effect from 19.01.1996, the impugned order of the Tribunal directing the Petitioners to consider the case of opposite party No. 1 for his retrospective promotion to the post of Statistical Officer from 19.10.1976 cannot be sustained. The order of the Tribunal dated 18.03.2005, passed in O.A. No. 1869 of 2000 is therefore quashed. The writ petition is accordingly allowed. No cost. I.M. Quddusi, A.C.J. 18. I agree. Final Result : Allowed