BIPRA CHARAN MALLICK Vs. STATE OF ODISHA

JUDGEMENT

(1.) The petitioner has filed the present application seeking a direction to the opposite party authorities to grant him promotion with retrospective effect from the date he was recommended for promotion by the Central Selection Board, 2008.

(2.) The brief facts of the case are that the petitioner was initially appointed as a Constable in the year 1980. He was promoted to the post of Asst. Sub-Inspector of Police in the year 1996. While working as such under the IIC of Chauliaganj Police Station, Cuttack, the petitioner availed leave for 20 days w.e.f. 30/4/2008 by submitting necessary application. However, because of his illness, the petitioner could not join in his duty after expiry of the period of leave as he was admitted to the City Hospital on 4/7/2008 and discharged on 15/7/2008 after undergoing surgery. The petitioner claims to have intimated this fact to the authorities by submitting applications on 23/5/2008 and 30/6/2008. Despite such intimation, the petitioner was placed under suspension w.e.f. 30/6/2008. On 1/7/2008, the petitioner submitted a medical certificate of the doctor under whom he was undergoing treatment. While the matter stood thus, a disciplinary proceeding was initiated against the petitioner by the DCP, Cuttack vide Proceeding No. 4 of 2008 as per the order dtd. 18/7/2008. The charge was served on him asking him to submit preliminary explanation by 10/8/2008 pointing out that he had availed 20 days earned leave w.e.f. 23/5/2008 but had remained unauthorizedly absent after expiry of the same. The petitioner submitted his preliminary explanation on 10/9/2008 and thereafter, on 20/9/2008 he also submitted his representation to the DCP, Cuttack with prayer to accept his joining report and to revoke the order of suspension enclosing therewith a fitness certificate. In the meantime, as per memo dtd. 27/9/2008 issued by the DIG of Police (Admn.), the Asst. Sub-Inspectors of Police were deputed to undergo S.I. course of training for a period of four months from 3/11/2008 at Biju Pattnaik State Police Academy (BPSPA), Bhubaneswar. The petitioner was also selected after due medical checkup but his name was not sponsored. As such, the petitioner approached the erstwhile Odisha Administrative Tribunal in O.A. No. 2444 (C) of 2008. By order dtd. 13/10/2008, the learned Tribunal directed the opposite party no.2 to take note of the fact that the training for Sub-Inspectors of Police for which the petitioner had been selected is due to commence from 3/11/2008 and if the disciplinary proceeding is not completed by then, the petitioner should be given an opportunity of joining the training course. The aforesaid order of the Tribunal has been enclosed as Annexure-9 to the writ application. However, despite such specific direction, the disciplinary proceeding was not concluded by the stipulated date, as a result of which the petitioner was deprived of his legitimate promotion. On 30/10/2008, the opposite party no.2 passed an order pursuant to the direction of the learned Tribunal mentioning that the petitioner's case was placed before the Central Selection Board held on 11th, 12th and15th September, 2008 for consideration of his case for promotion to the rank of S.I., but after scrutinizing his service records, the recommendation in his respect was kept in a sealed cover as per G.A. Department Circular dtd. 18/2/1994, since the departmental proceeding was pending. Accordingly, the petitioner's prayer for undergoing training was rejected. Subsequently, on 2/1/2010, the second Central Selection Board was also held but the case of the petitioner was not considered. In the meantime, the Disciplinary Proceeding No. 4 of 2008 was dropped and the petitioner was exonerated from the charge. Since the case of the petitioner was not considered for promotion with retrospective effect, he approached the learned Tribunal in O.A. No. 1181(C) of 2010 seeking appropriate relief. Learned Tribunal vide order dtd. 21/8/2010 directed the opposite party no.2 to take note of the fact of exoneration of the petitioner in the disciplinary proceeding and to open the sealed cover and to implement the recommendation of the DPC within a period of one month. The said order of the Tribunal was not complied with, for which the petitioner filed a contempt petition being C.P. No. 14(C) of 2011, which was disposed of on 5/5/2011 directing the opposite party no.2 to open the sealed cover and to act as per recommendation of the Central Selection Board. Since no action whatsoever was taken, the petitioner filed another contempt petition being C.P. No. 153(C) of 2012 for violation of the previous orders. During pendency of the aforementioned contempt petition, the DCP vide letter no. 5291 dtd. 22/10/2011, enclosed as Annexure-14 to the writ petition, passed an order that he would count the petitioner's seniority in the rank of S.I. of police from the date of his selection by the Central Selection Board and will be placed in the State Gradation List as prepared by the Central Selection Board in the order of position assigned to him provided he passes the final examination of BPSPA, Bhubaneswar successfully and that he would be granted annual increment after being declared passed in the S.I. course of training as per Rule 28(2) of the Government in Home Department Resolution dtd. 27/5/2006. The said order was not communicated to the petitioner as long as he was in service. In the meantime, the petitioner has retired from service on attaining the age of superannuation. The grievance of the petitioner is that for no fault of his, he was deprived of his legitimate claim for promotion despite being recommended by the Central Selection Board.

(3.) Despite sufficient notice, no counter affidavit was filed by the State-opposite parties. Learned State Counsel preferred to make oral arguments based on materials on record.