MADAN MOHAN DAS Vs. STATE OF ODISHA

JUDGEMENT

(1.) The petitioner herein invokes the extraordinary writ jurisdiction of this Court under Articles-226 and 227 of the Constitution of India praying to quash the order passed by OPNo.1 on 12. 04.2012 under Annexure-8 by directing the OPs to approve his promotion to the post of UD Clerk (UDC) w.e.f. the date he was promoted by the Governing Body (GB) of the College.

(2.) The basic facts under which the petitioner has filed this writ is that on 1/10/1975, the petitioner was appointed as LD Clerk (LDC) in UN College, Soro (hereinafter referred to as 'the College') after due selection process and his service was approved by OPNo.2 on 29/1/1987 vide Annexure-1 and subsequently, on the request of OPNo.2, the State Government sanctioned for creation of two posts of Peon, one post of Daftry and one post of Book Binder-cum-Daftry in the College, but since the Roll strength of the College and the yardstick of the State Government justified creation of 3rd post of UDC, OPNo.3 (GB) of the College promoted the petitioner to UDC on 24/5/1998 vide Annexure-4 and the Principal of the College, accordingly, submitted necessary proposal for approval of promotion of the petitioner to the 3rd post of UDC. On the aforesaid proposal, OPNo.2 sought for certain documents such as Resolution of GB, Book of appointment, joining report of the petitioner as UDC and approval order of the post of LDC, but OPNo.3 did not take any decision on the aforesaid proposal, despite the petitioner having fulfilled all the eligibility conditions including passing of accounts examination and, thereby, the petitioner was constrained to approach this Court in W.P.(C) No.6884 of 2002 which was disposed of on 11/2/2004 by this Court directing to consider the case of the petitioner in accordance with law and OPNo.1 vide order dtd. 17/11/2006 rejected the claim of the petitioner under Annexure-7 for want of sanction of 3rd post of UDC in the College. The petitioner, thereafter, challenged Annexure-7 in W.P.(C) No.889 of 2007 by claiming promotion to the 3rd post of UDC w.e.f. 24/5/1998, but this Court while not expressing any opinion on merits disposes of the said writ by again directing OPNo.1 to consider and dispose of the recommendation of OPNo.2 in terms of Annexure-2, but on 12/4/2012, OPNo.1 rejected the claim of the petitioner on the ground that the petitioner's promotion from LDC to UDC is to be guided by Orissa Non-Government Aided Colleges Ministerial Service (Method of Recruitment and Condition of Services) Rules, 1999 (in short 'the Rules') which according to OP No.1 clearly lays down that the post of UDC is required to be filled up from the common cadre of Junior Clerks, but no gradation list for LDC (Junior Clerk) has yet been finalized, but according to the petitioner, OPNo.2 had already finalized the gradation list of Junior Clerks in the Ministerial Cadre of Non-Government Aided College located in Balasore District as on 31/12/2004 by an Office Order No.40298 dtd. 18/9/2007 under Annexure-9 and the Junior Clerk Bhagirathi Biswal whose name finds place at Serial No.15 of such gradation list which is much below the name of petitioner at Serial No.4, has already been promoted to the post of UDC vide Order No.7569 dtd. 2/3/2010 under Annexure-10. It is also stated by the petitioner that OPNo.2 vide Office Order No.14858 dtd. 5/4/2012 has already published the provisional gradation list of Head Clerks in Balasore District vide Annexure-11 wherein persons who have joined much after the petitioner as Junior Clerk have got due promotion. On the aforesaid facts, claiming justification for promotion in accordance with the yardstick prescribed by the Government, the petitioner by way of this writ has claimed relief indicated supra by contending violation of Article-14 of the Constitution.

(3.) In addressing the rival arguments, looking the case of the petitioner on a different angle, it indisputably appears that the petitioner was appointed as LDC and his post was approved, but subsequently, the GB promoted him to the 3rd post of UDC, which was admittedly not approved or sanctioned then, and thereafter, the petitioner fought serious legal battle to regularize his promotion and ultimately, his claim was not favourably considered on one ground or other. At last, OPNo.1 rejected the claim of the petitioner for promotion to the post of UDC for want of finalization of common cadre list and for requirement of following the Rules, but at the same time, OPNo.1 has, however, discriminated the petitioner by giving provisional promotion to the Juniors of the petitioner which was never disputed by the OPs, rather the learned AGA appearing for the OP Nos. 1 and 2 contends that such promotion of Juniors was subject to result of FAO No.76 of 2008 pending before this Court then. It is admittedly found that the said FAO had already been disposed of on 23/7/2012, but Mr. Ramesh Chandra Patra, whose provisional promotion was subject to the result of FAO, is admittedly a Junior to the petitioner and his promotion has not been interfered with.