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2021 DIGILAW 78 (ORI)

Rabi Narayan Nanda v. State Of Orissa

2021-02-24

BISWANATH RATH

body2021
JUDGMENT Biswanath Rath, J. - This writ petition involves the following prayer: "The petitioner therefore prays that your lordships would graciously be pleased to direct the Opp. Parties to open the sealed cover in which the findings of the DPC dated 11.04.2017 in respect of promotion of petitioner to the post of CSO kept in sealed cover and he shall be promoted to the post of CSO with effect from the date of promotion of his immediate junior with all consequential service and financial benefits in favour of the petitioner by considering Annexrue-7 within a stipulated time. And pass such order/directions as this Hon'ble Court may deem fit and proper; And fro this act of kindness, the petitioner as in duty bound shall ever pray." 2. Taking this Court to the pleading in the writ petition Sri Pati, learned counsel for the petitioner submitted that petitioner's case for promotion being taken up by the Promotion Aadalat, the Promotion Adalat vide Annexure-4, the order dated 7.12.2020 has given a direction for suitable promotion of the petitioner for the prolonged delay in finalization of vigilance case. It is, however, the concerned department taking up such direction of the Promotion Adalat at page 18 observed that for pendency of the vigilance case and also disciplinary proceeding, the consideration of the case of the petitioner for promotion and the result therein kept in sealed cover cannot be opened. Challenging this aspect of the authority, Sri Pati, learned counsel for the petitioner submitted that even assuming that there has been a Criminal proceeding but for the Criminal proceeding since initiated in the year, 2009 is still to be over even after 11 years, further since the petitioner is going to be superannuated in September, 2021, in the event the petitioner is not promoted and ultimately he gets acquitted in the Criminal Proceeding, the suffering of the petitioner due to no promotion given for the time being cannot be compensated in any manner. It is also claimed that the disciplinary proceeding if any, initiated soon after the case of the petitioner is taken for promotion has no relevancy in the matter of promotion of the petitioner taken up in the year, 2017. Further relying on Supreme Court decision in the case of State of Punjab and others Vs. It is also claimed that the disciplinary proceeding if any, initiated soon after the case of the petitioner is taken for promotion has no relevancy in the matter of promotion of the petitioner taken up in the year, 2017. Further relying on Supreme Court decision in the case of State of Punjab and others Vs. Chamanlal Goyal, reported in (1995) 2 SCC 570 , taking aid of the direction of the Hon'ble Supreme Court therein, Sri Pati, learned counsel also attempted to take support of the judgment to the petitioner's case. Petitioner also relied on a judgment/ order of this Court in Division Bench in disposal of W.P.(C). No.3850 of 2018 finds place at Annexure-5 and thus claimed allowing the writ petition on reversal of the impugned order. 3. To the contrary, Sri Dhal, learned Additional Government Advocate appearing for the State pointed out that for the several proceeding involving the petitioner pending, at this stage, no fault can be found with the Disciplinary Authority in keeping the promotion aspect of the petitioner in sealed cover and, therefore, a submission is made in the Court saying until the vigilance proceeding is over, it may not be appropriate to open the sealed cover. Sri Dhal, learned Additional Government Advocate, therefore taking support of the stand of the Disciplinary Authority prayed for dismissal of the writ petition. Sri Dhal, learned Additional Government Advocate however did not dispute that the vigilance case initiated in the year 2009 is yet to be over and that the case filed by the petitioner has application to the case of the petitioner at hand. 4. Considering the rival contentions of the parties, this Court finds undisputedly the case of the petitioner has already been taken up for promotion and the result in the said promotion process involving the petitioner even though not declared, it has been kept in sealed cover subject to outcome in the vigilance proceeding and disciplinary proceeding indicated hereinabove. It is at this stage of the matter, this Court finds the dispute is already taken care up by the Promotion Adalat being set up by the State Authority itself. It is at this stage of the matter, this Court finds the dispute is already taken care up by the Promotion Adalat being set up by the State Authority itself. From the observation of the Disciplinary Authority, the Commissioner-cum-Secretary at page 18 of the brief, it appears once a State Authority has set up an Adalat to consider promotion involving the parties and such Adalat gives a direction to proceed in a manner, until such orders are assailed in higher forum by the opposite party, the order of the Promotion Adalat is binding on both the parties. Admittedly, there is no challenge to the Promotion Adalat order and for the opinion of the Court, the Disciplinary Authority cannot sit over the decision of the Promotion Adalat, a mechanism is created by the State to ease promotion dispute. In this view, this Court finds the decision of the competent authority at Annexure-4 perse illegal and unauthorized. 5. Now coming to consider the dispute being raised by the State Counsel that admittedly there is a vigilance proceeding pending vide Vigilance Case No. 18 of 2009, this Court finds, there being no dispute that the vigilance Case No. 18 of 2009 is still pending. It is at this stage of the matter, this Court taking into account a decision of the Hon'ble Apex Court involving authority, pendency of Criminal Proceeding, deciding such issue in the case of State of Punjab and others Vs. Chamanlal Goyal, reported in (1995) 2 SCC 570 , the Hon'ble Apex Court has directed as follows; "xxx xxx xxx Considering the nature of the prayer and keeping in view the provisions contained in the Govt. instruction and the ratio of the decision of the Hon'ble Apex Court as extracted above, Respondent nos. 1 and 2 are directed to open the sealed cover in respect of promotion of the applicant to the rank of DSP, within a period of two months from the date of receipt of a copy of this order and to give effect to the recommendation of the DPC within such period by giving him promotional benefits and consequential benefits with effect from the date from which his immediate juniors, i.e. Respondent nos.4 & 5 were given such promotion. It is made clear that promotion given to the applicant will only be adhoc and subject to the final result of the Vigilance case. xxx xxx xxx" 6. It is made clear that promotion given to the applicant will only be adhoc and subject to the final result of the Vigilance case. xxx xxx xxx" 6. This Court here again finds following such decision taking into account a promotion matter involving a proceeding in the Orissa Administrative Tribunal, a Division Bench of this Court in disposal of W.P.(C). No.3850 of 2018 has also come to the same view. 7. It is in the circumstance, this Court finds pendency of the criminal proceeding for long time should not stand as a bar on giving adhocpromotion to the parties which is however subject to the decision of the Promotion Committee kept in sealed cover as nobody is yet to know the decision of the Promotion Committee. 8. Be that as it may, for the Supreme Court decision covering the case of the petitioner, on applying the same principle to the case of the petitioner further considering that petitioner is going to superannuate shortly, this Court interfering in the order at Anenxure-4, sets aside the same and directs the competent authority for opening of the sealed cover subject to the decision involving the outcome in the Vigilance proceeding. In the event there is recommendation for promotion of the petitioner considering that he is going to superannuate September, 2021, the petitioner be given conditional promotion subject to ultimate outcome of Vigilance Case No. 18 of 2009 and further also subject to undertaking of the petitioner in the event he is given promotional benefit subject to the outcome in the vigilance case and if he suffers in the vigilance case, ultimately he shall not claim any equity on the basis of this judgment. 7. In result, the writ petition succeeds. No cost.