Dhaneswsar Panda vs State Of Odisha And Others

A.K. Mohapatra, J

I.A. No.17488 of 2022

This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode).

Above noted I.A. has been filed at the instance of the Opposite Party No.4 seeking Vacation of Stay/ Modification/ Clarification / Recall of order dated 01.12.2022 in I.A. No.16430 of 2022.

While issuing notice in the writ petition, this Court in I.A. No.16430 of 2022 vide order dated 01.12.2022, as an interim measure directed that the case of the Opposite Party No.4 shall not be considered for further promotion without leave of this Court.

Heard learned counsels for the parties.

Mr.  T.N.  Pattanayak,  learned  counsel  appearing  for  the Opposite Party No.4 at the outset submitted that the order dated 01.12.2022 has been passed ex parte without hearing the Opposite Party No.4. he further contended that the Opposite Party No.4 is seriously affected by the interim order dated 01.12.2022, although neither he was noticed nor he was provided an opportunity of hearing before passing such an interim order. Thus, learned counsel for the Opposite Party No.4 submitted that the interim order dated 01.12.2022 needs to be vacated/modified after hearing the contentions to be raised on behalf of the Opposite Party No.4.

Mr. Manas Pati, learned counsel for the petitioner contented that pursuant to an advertisement published by Opposite Party No.3 for recruitment to the post of Junior Assistant for the year 1982-83 and 1983-84 for the Odisha Secretariat, the petitioner applied for such posts as he was eligible as per the terms and conditions of the advertisement by Opposite Party No.3.

In the said advertisement, one of the criteria for selection was with regard to age of the candidate i.e. provided that a candidate shall be over 21 years and below 28 years of age on the 13th September, 1985 i.e., he/she must not have been born earlier than the 14th September, 1957 and later then the 12th September, 1964. Further, it was stipulated in the advertisement that in the event it is found that the candidate does not fulfill any of the eligibility conditions, their candidature is liable to be cancelled. Since the petitioner was found suitable, he was appointed as a Junior Assistant initially on 27.03.1991. Later on due to his satisfactory performance, he was promoted to different promotional posts and finally, he was promoted to the post of Deputy Secretary vide Order No.5206 dated 18.02.2022. Thereafter, a tentative gradation list of Deputy Secretaries in OSS Cadre was published in the year 2022 and in the said gradation list, the name of the petitioner finds place at Sl. No.39 whereas the name of the Opposite Party No.4 finds place at Sl. No.8.

Learned counsel for the petitioner further contended that after publication of the tentative gradation list, he was shocked to observe that the date of birth of Opposite Party No.4 has been shown 25.10.1964, which is contrary to the stipulation in the advertisement. Therefore, it was alleged that the reflection of date of birth in respect of the Opposite Party No.4 in the gradation list violates the condition in para-4 of the advertisement under Annexure-1. Hence, the candidature of the Opposite Party No.4 should have been rejected as he was ineligible to be appointed pursuant to the advertisement under Annexure-1. He further contended that although the petitioner submitted an objection to the tentative gradation list on 10.10.2022, the same has not been considered by the authorities.

Mr. T.N. Pattanayak, learned counsel appearing for the Opposite Party No.4 contended that the gradation list has been finalized in the meantime and the final gradation list has been notified. Therefore, till the same is varied/modified/altered, the final gradation list so published is final and binding on all officers. Learned counsel for the Opposite Party No.4 further drawing attention of this Court to the final gradation list, which has been notified vide letter dated 30.11.2022 under Annexure-A/4, submitted that the Opposite Party No.4 has been placed at Sl. No.8 with the remark that he was promoted to the post of Deputy Secretary on 26.02.2020. The petitioner’s name finds place at Sl. No.39 and he has been promoted to the post of Deputy Secretary with effect from 18.02.2022. Accordingly, it was submitted that not only the petitioner is much below the Opposite Party No.4 in the final gradation list, but also he is not eligible to be considered for promotion to the next higher post i.e. Joint Secretary.

In such view of the matter, learned counsel for the Opposite Party No.4 contended that the petitioner no way affected and as such, he has no locus standi to file the present writ petition with regard to eligibility of the Opposite Party No.4. Mr. Pattanaik, learned counsel for the Opposite Party No.4 referring to Notification No.7334 dated 15.02.2019 of the Government of Odisha in the Home Department and drawing attention to Clause-3(5) of the said notification submitted that for promotion to the post of Joint Secretary unless a person has completed at least one year of continuous service in the post of Deputy Secretary as on 1st day of January of the year in which the committee meets, he /she shall not be eligible for promotion to the post of Joint Secretary. He, therefore, contended that the petitioner would only be eligible for promotion to the post of Joint Secretary w.e.f. 01.01.2024.

Additionally, it was also contended that since the Opposite Party No.4 is eligible in view of Clause-3(5) of notification dated 15.02.2019, therefore, the Opposite Party No.4 comes within the zone on consideration for promotion to the post of Joint Secretary. Further, the claim of the petitioner vide his representation dated 27.10.2022 has already been rejected by the Home Department, Government of Odisha vide order No.4063 dated 29.11.2022, the petitioner has no locus standi to question the promotion of the Opposite Party No.4 by filing the present writ petition. Mr. Pattanayak, learned counsel for the Opposite Party No.4 contended that the OPSC after taking into consideration all aspects in the matter has finally recommended the name of the Opposite Party No.4 for his initial appointment pursuant to Advertisement No.3 1985-86, such decision of the OPSC cannot be viewed with suspicion and be questioned after passage of several decades.

Mr. Pattanayak, learned counsel appearing for the Opposite Party No.4 also contended that the OPSC after considering the eligibility and suitability of the candidates from the final gradation list has recommended the name of the Opposite Party No.4 to the Government vide Notification No.43352 dated 15.12.2022 accordingly the Government of Odisha has already given promotion to ten numbers of Deputy Secretaries to the post of Joint Secretaries including the Opposite Party No.4. Since the petitioner was not eligible, his case has not been considered and the case of the petitioner is likely to be considered in future when he will acquire the eligibility as has been prescribed in clause-3(5) of the aforesaid notification.

Having heard learned counsel for the petitioner as well as learned counsel for the Opposite Party No.4 and learned Additional Standing Counsel for the State, this Court is of the considered view that the order which was passed initially by this Court on 01.12.2022 needs to be varied/modified in the interest of justice. Accordingly, the interim order dated 01.12.2022 passed in I.A. No.16430 of 2022 is hereby modified to the extent that the Opposite Party No.4 shall be given promotion in accordance with law and as per the recommendation and such promotion shall be subject to final outcome of the writ petition.

With the aforesaid modification, the I.A. stands disposed.

Urgent certified copy of this order be granted on proper application..

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