PRAMOD KUMAR SAHOO Vs. STATE OF ORISSA

JUDGEMENT

(1.) The petitioner by filing this writ petition has questioned the selection proceedings of the Departmental Promotion Committee (DPC) dated 31. 03.2017 rejecting his claim for promotion to the post of Senior Secretary and consequential promotion of O.P. Nos. 4 to 9 under Annexure-3 series as well as further seeking for a direction in the nature of mandamus to O.P. No.2 to promote him to the post of Senior Secretary from the date of the promotion of his juniors maintaining his position in the earlier Gradation List with consequential service and financial benefits including further promotion to the post of Additional Principal Secretary along with others by quashing the above proceedings of the DPC and order of promotion to O.P. Nos. 4 to 9 as well as the rejection order on his representation as communicated to him vide Letter No.3111 dtd. 23/3/2018 in exercise of extraordinary powers of writ jurisdiction under Articles 226 and 227 of the Constitution of India.

(2.) Briefly stated, the petitioner's case is, he having qualification of B.Sc. Physics (Honours) with requisite skill of Stenography was appointed as Junior Stenographer on 1/3/1989 in a due selection process and after joining in the High Court on 19/2/1990, he was promoted to the post of Senior Stenographer and thereafter, he was also promoted to the post of Personal Assistant on 3/9/1996. While continuing in the post of Personal Assistant, his service was confirmed as a Government Employee on 1/4/1997 and thereafter, he was promoted to the post of Secretary on 16/5/2008. Further, his name was found maintained at serial No.1 in the Gradation List of Secretary as on 31/3/2017 and in order to fill the consequential vacancies, a notice was issued by OP No.3 on 25/3/2017 for conduct of interview of the eligible Secretaries for consideration of promotion and filling of six posts of Senior Secretaries by the DPC consisting of two respectable Judges, Registrar General and Registrar Administration, High Court of Orissa on 31/3/2017 and accordingly, ten numbers of Secretaries including the petitioner and O.P. Nos.4 to 9 were called to attend the DPC meeting on 31/3/2017 and in such meeting of the DPC where up-to-date CCRs of the eligible candidates were placed for consideration. However, notification was issued on the same day promoting only O.P. Nos. 4 to 9 as Senior Secretaries ignoring the petitioner, even though he was senior most in the cadre of Secretary and he was no way inferior on merit from any of his juniors. According to the petitioner, the promotion of the employees of Orissa High Court including the post of Senior Secretary is governed by Orissa High Court (Appointment of Staff and Conditions of Service) Rules, 2015 (in short the 'Rules, 2015') and Rule 13 of the Rules, 2015 provides the procedure for promotion wherein it has been made abundantly clear that in order to be considered for promotion to the post of Senior Secretary, a Secretary should have the educational qualification of Bachelor Degree in any discipline from a recognized University and should have minimum experience of five years working as Secretary and the mode of promotion prescribed therein is to be governed by 'merit with due regard to seniority and suitability', but no test was conducted by the Authority concerned to adjudge the merits of the candidates nominated for promotion, however, the members of DPC put few questions to the nominated candidates including the petitioner in the interview which was nothing to do with merit. According to the petitioner, he has got an unblemished service record with no adverse entry in his CCR and due to illegal, arbitrary and whimsical decision of the DPC, he has suffered a stigma in his service career because his juniors have been promoted ahead of him. It is further pleaded in the writ that although the decision of the DPC was not communicated to the employee concerned, but the petitioner unsuccessfully applied for such information under R.T.I. According to the Rules for promotion to the post of Additional Principal Secretary, one should have minimum educational qualification of Bachelor's Degree in any discipline from a recognized University or such other qualification equivalent thereto and having good knowledge in Hindi and English and he is a fit person to hold the post in the opinion of the Hon'ble Chief Justice and such promotion is to be made from the post of Senior Secretary basing on 'merit with due regard to seniority and suitability' and adhering to the Rules, 2015. It is further claimed by the petitioner in the writ that the earlier DPC held on 15/7/2016 did not consider the case of Sri Jadunath Sahu and Pradeep Chandra Pradhan, Senior Secretaries of the Court for promotion to the post of Additional Principal Secretary for want of minimum eligibility qualification, but Sri P.H. Palai, who was junior to both Sri Sahu and Sri Pradhan was considered and promoted to the post of Additional Principal Secretary along with another pursuant to the DPC held on 15/7/2016 only because they have Graduation Degree and otherwise fulfilled the criteria, but surprisingly in the current DPC held on 31/3/2017, O.P. Nos. 4 and 5 having qualification of I.A. and I.Com have been promoted by deviating the Rules of 2015 and ignoring the rightful claim of the petitioner. According to the petitioner, for promotion, independent assessment of merit and ability of an employee should be prime consideration of the authority and in order to assess the merit, the DPC ought to have cross-verified the CCR or the record of the employees, besides holding a test for the purpose, but in the instant case, the Authority has not considered the CCRs of the candidates nor has any of the candidate being asked to show his ability before them. Being aggrieved by the decision of DPC recommending promotion to O.P. Nos.4 to 9, the petitioner moved a representation before the Hon'ble Chief Justice on 6/4/2017, but to his utter surprise, O.P. No.3 communicated the decision of rejection of his representation after one year vide Letter No.3111 dtd. 23/3/2018 and the Authority concerned while rejecting his representation did not give any finding instead of communicating the decision in the aforesaid letter dtd. 23/3/2018 which is otherwise liable to be quashed on the very same ground. Further, the petitioner claims that he has every reason to believe that the DPC has taken some extraneous materials into consideration which dehors the Rules and there may be some allegation at some level made against him with ulterior motive by some vested person and/or at the instance of the juniors, who have been favoured with promotion in order to get rid of the petitioner from the zone of consideration of promotion and the DPC ought to have acted fairly in accordance with law, but the DPC has not considered his case for promotion on extraneous consideration, even though he is the senior-most Secretary in the cadre. Further, it is stated by the petitioner in the writ that in the meantime, steps have been taken to give promotion to the next higher grade of Senior Secretary i.e. Addl. Principal Secretary from amongst the Senior Secretaries and O.P. Nos.4 to 9 who have been promoted ignoring the case of the petitioner are now going to be considered for promotion to the post of Addl. Principal Secretary, whereas the petitioner is still languishing as Secretary. While praying for the relief indicated in the preceding paragraph, the petitioner has claimed that when the earlier DPC had not considered the case of Jadunath Sahu and Pradeep Kumar Pradhan for promotion due to change in the eligibility qualification as per Rules, 2015, the present DPC should not have recommended O.P. Nos. 4 and 5 for promotion to the post of Senior Secretary for want of educational qualification prescribed for the post of Senior Secretary.

(3.) In response to the notice of the writ of the petitioner, only O.P. Nos. 2 and 3 have jointly filed the counter affidavit stating inter alia that the DPC which was constituted by the Hon'ble Chief Justice in terms of Rule-13(d) of the Rules, 2015 had duly considered the case of the petitioner and found him unsuitable along with another for promotion by adjudging the merit of the petitioner vis-a-vis others as well as considering the service records, performance and personal interview of all the participant Secretaries in the meeting dtd. 31/3/2017. It is also alleged in the counter affidavit by O.P. Nos. 2 and 3 that allegations had been received against the petitioner for collecting money illegally from the litigants and misusing the official position for personal gain and the petitioner while being the Secretary to Miss. Justice S. Panda was let off with a warning in D.P. No.01 of 2012. The counter affidavit further reveals that the petitioner had made a representation on 6/4/2017 to consider his case for promotion and to restore his seniority, but such representation of the petitioner was rejected since his case had already been considered by the DPC. It is further claimed in the counter affidavit by OP Nos. 2 and 3 that only on the basis of seniority, promotion cannot be claimed by the petitioner and the CCRs and personal files of all the candidates including the petitioner had been properly and thoroughly assessed by the DPC in the meeting for promotion and the petitioner has to establish as to how and on what basis, he claims the other candidates to be less meritorious than him. While reiterating that the Rules, 2015 has been duly followed by the DPC O.P. Nos. 2 and 3 have claimed in the counter affidavit that the writ petition is devoid of merit and is liable to be dismissed.