SASHIKANTA DAS Vs. STATE OF ORISSA

JUDGEMENT

(1.) The petitioner, by means of this writ petition, seeks to quash the order dtd. 5/4/2012 passed by the Orissa Administrative Tribunal, Cuttack Bench, Cuttack in O.A. No. 2894 (C) of 2011 at Annexure-9, the circular dtd. 26/7/2011 of the State Government at Annexure-8, so also the order dtd. 2/8/2011 at Annexure-7, and to issue direction to the opposite parties to consider his case for promotion to the post of Junior Assistant, Group-C by declaring him eligible for such promotion.

(2.) The factual matrix of the case, in brief, is that the petitioner was appointed as a Cook, by virtue of the order dtd. 13/2/1997, in the office of the Superintendent of Circle Jail, Cuttack, Choudwar. Pursuant to which, he joined in the said post on 22/2/1997 and continued to discharge his duties to the best satisfaction of the authority. While he was so continuing, he was transferred to the office of the D.P.O., ACS, Sambalpur to work as a Peon. From there, by virtue of the order dtd. 16/8/2003, he was sent on deputation to the office of the I.G. of Prisons to work as a Peon. Thereafter, on 3/10/2007, the petitioner was again transferred to the office of the S.D.P.O., G. Udaygiri to work as a Peon on regular basis, pursuant to which, he joined in the office of the I.G. of Prisons and DCS, Orissa on 3/10/2007. But the petitioner claimed that he has rendered 10 years continuous service and, therefore, he is entitled to get promotion to the post of Junior Assistant in terms of Rule-12 and 12 (A) of Orissa Ministerial Service (Method of Recruitment and Conditions of Service of Assistants and Sec. Officers in the Offices of the Heads of Departments) Rules, 1994 (for short "Rules, 1994"). The said benefit having not been extended, the petitioner approached the tribunal by filing O.A. No. 2894(C) of 2011 and the tribunal in turn, vide order dtd. 5/4/2012, dismissed the original application. Hence this application.

(3.) Mr. K.K. Swain, learned counsel for the petitioner contended that since the petitioner was rendering service as a Cook w.e.f. 13/2/1997 and, as such, has completed 10 years of continuous service, he is entitled to get promotion to the post of Junior Assistant from the year 2007. But the same was denied to him on the ground that he has not completed 10 years of continuous service. Relying upon Rule-12 of Rules, 1994 and 12 (A) of Orissa Ministerial Service (Method of Recruitment and Conditions of Service of Assistants and Sec. Officers in the Offices of the Heads of Departments) Amendment Rules, 2001, it is contended that if the initial date of joining of the petitioner as Cook w.e.f. 13/2/1997 is taken into consideration, the petitioner has completed 10 years of service from the year 2007. Therefore, the benefit of promotion should have been extended to the petitioner along with all consequential service and financial benefits as due and admissible to him in accordance with law. It is contended that such benefit has not been extended to the petitioner in view of the clarification issued by the authority on 2/8/2011, in pursuance of the Home Department letter no.32667 dtd. 26/7/2011. It is contended that if as per Rules, 1994, which were framed in exercise of power conferred under Article 309 of the Constitution of India, the petitioner is entitled to get the benefit of promotion, by issuing an administrative circular, the same cannot be denied. To substantiate his contention, he has relied upon the judgments of this Court in the cases of Radhashyam Panigrahi v. Registrar (Admn.), Orissa High Court, 2009 (Supp.-I) OLR 682; Santosh Kumar Sahu v. District Judge, Kalahandi and Nuapada, 2009 (Supp.II) OLR 757 and of the apex Court in the case of Pratibha Rani and others v. Union of India (Civil Appeal No. 3792 of 2019 arising out of SLP (C) No. 31728 of 2018 disposed of on 10/4/2019).