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2014 DIGILAW 428 (ORI)

Panchanan Behera v. State of Odisha

2014-07-17

BISWANATH RATH, I.MAHANTY

body2014
JUDGMENT Biswanath Rath, J. : By filing the writ petition, the petitioner has sought for quashing of the order dated 24.04.2014 (Annexure-13) passed by Administrative Tribunal, Cuttack Bench, Cuttack in O.A. No.326(C) of 2010 for quashing of the orders dated 21.12.2009 and 12.01.2010 passed by the State Government as appearing at Annexures-7 and 12 respectively in the writ petition and further prayed for direction to opposite party no.1-State of Odisha to appoint the petitioner in the promotional post of O.F.S.-II with all consequential service benefits within a stipulated period of time. The background of the case is that the petitioner as applicant vide O.A. No.326(C) of 2010 before the Orissa Administrative Tribunal, Cuttack Bench, Cuttack prayed therein to set aside the order dated 21.12.2009 and the order dated 12.01.2010 available at Annexures-8 & 15 to the Original Application and also for direction to the respondent no.1, the present opposite party no.1 to appoint the applicant in the promotional post of O.F.S.-II, giving him all consequential financial and service benefits within a stipulated period of time. The grievance of the petitioner before the Tribunal was that he joined as Auditor Common Cadre Audit (CCA) Finance on 25.01.1988. While continuing as such, he was recommended for appointment to the post of O.F.S.-II through a duly constitutional selection process. The Odisha Public Service Commission in its letter dated 07.11.2008 concurred the proposal of the State Government for appointment of 54 officers to the rank of O.F.S.-II by way of selection for the year 2006-07. In the same order the Odisha Public Service Commission also recommended 14 officers for appointment to the post of O.F.S.-II by way of selection against anticipated vacancy following provisions of Rule 4(2) of OCS criteria for selection of appointment. In the select list of 14 officers, the petitioner’s name found place at Sl.No.6. The further case of the petitioner before the Tribunal is that the Odisha Public Service Commission also recommended another group of 13 candidates in its earlier order dated 02.05.2008 (Annexure-2) for the year 2003-04, 2004-05 and 2005-06. On receipt of the recommendation / concurrence from the Odisha Public Service Commission, the opposite parties vide their office order dated 08.12.2008 as appearing at Annexure-3, appointed 67 persons in the post of O.F.S.-II cadre by way of selection and gave them posting in different offices. On receipt of the recommendation / concurrence from the Odisha Public Service Commission, the opposite parties vide their office order dated 08.12.2008 as appearing at Annexure-3, appointed 67 persons in the post of O.F.S.-II cadre by way of selection and gave them posting in different offices. The petitioner further pleaded before the Tribunal that since 5 persons from the General Category and one from S.C. Category did not join in response to Annexure-3 and some of them have also given option not to join in O.F.S.-II promotion posts, the Government vide office order dated 28.02.2009 as appearing at Annexure-4, called upon General Category candidates from the list of 14 officers to be appointed in the anticipated vacancy. As such Sl. No.1, 3 and 5 have been appointed and adjusted in the cadre of O.F.S.-II. Since Sl. No.2 and 4 in the said list though called for but, did not join in the post of O.F.S.-II, such two posts were remained vacant, required to be filled up by the persons below the list, i.e Sl. No.6 to 11 from the General Category of those anticipated vacancy list. The petitioner further claimed before the Tribunal that in view of the non-joining of the two persons appearing at Sl. No. 2 and 4 and that in view of the recommendation already in his favour by the Odisha Public Service Commission, a right has been accrued in favour of the petitioner / applicant for consideration of his case for appointment. The petitioner further alleged that since persons voluntarily declined to accept promotion / appointment, the authority could not have insisted them for their joining rather the vacancy should have been filled up from amongst remaining candidates. The petitioner waited for about nine months with a hope that he would be appointed in anticipated vacancies, which was fallen vacant due to non-joining of the two persons. The petitioner though filed detailed representation before the opposite party no.1 as it is appearing at Annexure-5, which remain unattended giving rise the cause of action to the petitioner to move the Odisha State Administrative Tribunal by filing O.A. No.294(C) of 2009 for redressal of his grievances, which matter was disposed of by the Odisha State Administrative Tribunal by order dated 02.12.2009 directing therein to the State to consider the grievance of the petitioner within a month from the date of receipt of certified copy of the order. 2. 2. As the matter stood thus, in spite of unwillingness by opposite party no.3 to join the post of O.F.S.-II the authority issued direction to the opposite party no.3 to join the new post by 08.01.2010 vide order dated 21.12.2009 as appearing at Annexure-7 to the present writ petition. The petitioner further claimed that in the meanwhile following the conditions in the office memorandum dated 28.08.1999 as appearing at Annexure-8, the vacancy, on account of non-joining of the opposite party no.2 should have gone to the next eligible and suitable employee. He further claimed that the opposite party no.2 on his volition expressed his unwillingness to join O.F.S.-II cadre on 16.03.2009. He had foregone the promotion for all time to come and there was no option left with him to withdraw such undertaking of foregoing promotion / appointment to O.F.S.-II. The State Government on appearance, submitted that the Government had decided to give institutional training to the newly appointed candidates in O.F.S.-II and as the training of 67 newly appointed O.F.S.-II was going on, there was no scope for imparting training of the officers appearing from the waiting list. So there has been no discrimination by giving appointment to respondent nos.2 and 3. It is further submitted by the opposite party-State before the Tribunal that the name of the applicant was included in the panel of waiting list as per General Administrative Department Notification dated 09.07.2003 and under the circumstances the petitioner had no right for appointment to O.F.S.-II. Since, there was no vacancy at that point of time Government had no scope to give appointment to the petitioner. It is the further case of the State, before the Tribunal that the opposite party no.2 though initially had foregone the promotion but after one month, he himself represented to join in the promotional post. The State-opposite party categorically submitted before the Tribunal that the opposite party no.2 though initially had foregone the promotion but made a representation for withdrawing his claim for the foregoing the promotion before the matter was processed by Government for their order for canceling the promotion. The representation of opposite party no.2 was considered as per advice of the General Administrative Department and in view of such advice the opposite party no.2 was allowed to join in the promotional post. The representation of opposite party no.2 was considered as per advice of the General Administrative Department and in view of such advice the opposite party no.2 was allowed to join in the promotional post. So far as case of opposite party No.3 is concerned stand of the State was that he had not submitted his unwillingness to join the post, he had only requested for change of his posting, which since is permissible was accepted by the Government and as such there was absolutely no vacancy on account of opposite party No.3. After hearing the parties, State Administrative Tribunal while considering the case of the parties, came to observe that there is no discrimination by the State Government and that there has been no violation of the General Administrative Department O.M. dated 20.08.1999, as the consideration of the representation of opposite party no.2 foregoing his posting for O.F.S.-II on health and family ground had not reached its logical conclusion of acceptance by the authorities by issuing an office order to that effect and the entry in his service book. Since the process following the representation preferred, was incomplete, the subsequent steps for filling up the vacancy by the next eligible candidate could not have been taken up. The Tribunal while disposing the O.A., held that the consideration of the case of the petitioner is perfectly in order and there is no scope for its interference with the same. Saying so, the Tribunal further held that since the petitioner being lower to them in the rank in the waiting list prepared by the State-opposite party, the petitioner cannot have a better claim over the other except waiting for consideration of his case when his turn come. On the claim of the petitioner against respondent no.3 / opposite party no.3 Tribunal based on argument advanced by State, held there is no vacancy on account of respondent no.3, it is only a case for change of his posting which has been accepted by State and the petitioner / applicant has no case sustainable against respondent no.3 / opposite party no.3 3. Being aggrieved by the final order of the Tribunal dated 24.04.2014 in O.A. No.326(C) of 2010, the petitioner, i.e., the applicant before the Tribunal has preferred the present writ petition, as appears, confining his claim against opposite party no.2. Being aggrieved by the final order of the Tribunal dated 24.04.2014 in O.A. No.326(C) of 2010, the petitioner, i.e., the applicant before the Tribunal has preferred the present writ petition, as appears, confining his claim against opposite party no.2. The petitioner raises the following points for consideration :- That the opposite party no.2 though appointed, did not join the post and claimed that since the petitioner is the next in the list, he had a legitimate expectation to join the O.F.S.-II cadre in the event a person preferred not to join the post. The next submission of the petitioner is that the office memorandum issued by the General Administrative Department dated 20.08.1999 as annexed Annexure-8 has fixed the criteria with regard to foregoing promotion. The petitioner claimed that the aforesaid circular of the Government clearly prescribes that there cannot be any optional promotion for a temporary period, it rather prescribes, at once an employee does not accept the higher responsibility in the higher rank / grade, may forego the promotion once for all claiming the above. The petitioner further submitted that since the opposite party no.2 on his own volition expressed his unwillingness to join O.F.S.-II cadre on 18.03.2009, following conditions in the Government circular (supra), he had foregone the promotion for all time to come. He had no option to withdraw such pleading for foregoing the promotion. 4. We have heard the parties and perused the pleadings of the parties available on record. The moot questions to be decided in the present writ petition are :- (1) Whether the opposite party no.2 had the right to recall his claim for foregoing the promotion? (2) Whether acceptance of withdrawal of opposite party no.2 was in consonance with the Government Circular dated 20.08.1999 vide Anenxure-8 ? and (3) Whether the State Administrative Tribunal is justified in dismissing the Original Application. 5. Coming to answer the question no.1, on perusal of pleadings of the parties and on consideration of the submissions of the respective parties, it is made clear that the opposite party no.2, who was due to promotion to O.F.S.-II by letter dated 16.03.2009 while foregoing to join O.F.S.-II wrote to Joint Secretary to Government, Parliamentary Affairs Department indicating therein the following :- “To The Joint Secretary to Govt, P.A. Department. Ref:-F.D. OM No.10916/F dt.28.02.2009 Sir, In inviting a reference to F.D.00 dt.28.2.2009 cited above, I beg to inform you that I am not willing to join O.F.S. due to illness and family trouble which may be intimated to F.D. Yours faithfully BBSR Shridhar Mohapatra 16.03.09 S.O. Accounts Section.” Pending final decision in the above matter, he moved an application dated 17.04.2009, where the opposite party no.2 while recalling his unwillingness to join post of O.F.S.-II by letter dated 17.04.2009 prayed for recalling his letter of unwillingness to join the O.F.S.-II. The contents of the letter dated 17.04.2009 as available at Annexure-9, is reproduced as herein below :- “To The Joint Secretary to Government, Parliamentary Affairs Department. Sub:-Appointment of O.F.S.-II by way of Selection. Sir, In my application dated 16.03.2009, I expressed my unwillingness to join O.F.S. due to health ground which was forwarded to Finance Department in this Department letter No.1908/PAD, dated 18.03.2009. Now I am fit and have set up my mind to join the new assignment in O.F.S. As I am now on Election duty I may be allowed to join in the new post after election. I therefore request you to kindly move Finance Department to reconsider my case for joining in O.F.S. after being relieved from this Department. Yours faithfully, Bhubaneswar (Shridhar Mohapatra) 17.04.2009 Section Officer, P.A. Department.” 6. On a bare perusal of the letter dated 16.03.2009, disclosed categorically that the unwillingness of opposite party no.2 was on account of his illness and family trouble. Similarly, the letter dated 17.04.2009 vide Annexure-9 indicates that he has become fit in the meanwhile there is no material forthcoming from either side that the letter of the opposite party no.2 dated 16.03.2009 was being acted upon rather it seems, the request of the opposite party no.2 dated 16.03.2009 was pending for consideration by the competent authority. Since the matter was pending for final decision by the competent authority, he was well within his right to submit the letter dated 17.04.2009 indicating his withdrawing the letter of unwillingness to join O.F.S.-II. This aspect of the matter has been rightly considered and viewed by the Tribunal in the O.A. This Court finds no fault in the findings of the Tribunal in the said regard. Thus the question no.1 is answered in favour of the opposite party no.2 and against the present petitioner. 7. This aspect of the matter has been rightly considered and viewed by the Tribunal in the O.A. This Court finds no fault in the findings of the Tribunal in the said regard. Thus the question no.1 is answered in favour of the opposite party no.2 and against the present petitioner. 7. Now coming to answer question no.2, the Government Circular dated 20.08.1999 at Clause-4(a) and 4 (c) reads as follows :- “(a) it is not desirable to introduce an element of optional deferment of promotion for temporary periods. To forego is to give up. An employee, who does not wish to accept the larger responsibility a higher rank/grade, may forgo the promotion once and for all; (c) in case a Government servant opts for permanent and unconditional foregoing of promotion, Office Order should be issued to that effect and an entry should be in the Service Book. The result vacancy may be filled up by elevating the next eligible and suitable employee” 8. The Bare perusal of the office memorandum dated 20.08.1999 makes it clear that there cannot be an element of the deferment of promotion for temporary period, if foregone, then it is given up and the foregone of promotion is once for all. It further makes clear that the foregoing of promotion shall not be conditional. It further makes clear that in case of permanent and unconditional foregoing for promotion, office order should be issued to that effect and entry should be made in service book and the result of vacancy may be filled up by elevating next eligible suitable employee. In the instant case, as the opposite party no.2 had applied withdrawing his unwillingness to join the post of O.F.S.-II before the acceptance of his unwillingness by the competent authority, since no office order was issued to the said effect and further no entry following any decision in the above regard was made in the service book, following the requirement in office memorandum vide Annexure-8 there is no question of permanent and unconditional foregoing of promotion and, therefore, the action of the State was in consonance with the office memorandum vide Annexure-8 and we find no fault in the State’s action. 9. Now coming to answer the question no.3, it is observed that the State Administrative Tribunal has vividly considered all the above aspects and has rightly come to the conclusion for rejecting the Original Application. 9. Now coming to answer the question no.3, it is observed that the State Administrative Tribunal has vividly considered all the above aspects and has rightly come to the conclusion for rejecting the Original Application. Thus, while upholding the decision vide Annexure-13 rendered by the Tribunal in O.A. No.326(C) of 2010, we dismiss the writ petition. However, there shall be no order as to costs. I agree.