Madan Mohan Das vs State Of Odisha And Others

G. Satapathy, J.

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.

The basic facts under which the petitioner has filed this writ is that on 01.10.1975, 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 29.01.1987 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 24.05.1998 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 11.02.2004 by this Court directing to consider the case of the petitioner in accordance with law and OPNo.1 vide order dated 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. 24.05.1998, 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 12.04.2012, 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 dated 18.09.2007 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 dated 02.03.2010 under Annexure-10. It is also stated by the petitioner that OPNo.2 vide Office Order No.14858 dated 05.04.2012 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.

In response to the notice of the writ, none of the OPs has filed counter affidavit, but Mr. M.K. Khuntia, learned AGA has addressed argument for OPNos.1 and 2 at the time of final hearing of the writ, whereas no one has appeared for the GB of the College. Heard Mr. N.C. Mohanty, learned counsel for the petitioner and Mr. M.K. Khuntia, learned AGA in the matter.

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 & 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 23.07.2012, 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.

The averments of the petitioner in the writ with regard to promotion of one Bhagirathi Biswal whose name finds place at Serial No.15 of the provisional gradation list under Annexure-9 to the post of UDC along with others vide Annexure-10 could not be validly disputed by the OPs, but the said Bhagirathi Biswal appears to be Junior to the petitioner, since the petitioner was placed at Serial No.4 in the provisional gradation list (Annexure-9). In the circumstance, especially when the Juniors to the petitioner have already been promoted to the next higher grade ignoring the case of the petitioner without any adverse remark on the performance of the petitioner, the concept of model employer automatically comes into mind of the Court inasmuch as one or some Junior(s) to the petitioner has/have already been promoted ignoring the case of the petitioner. It is, of course, true that such promotion was extended to them provisionally, but what was the fault of the petitioner for promoting him to the next higher grade on the same principle of provisional promotion. The authority has, of course, taken resort to flimsy ground to deprive promotion to the petitioner for want of finalization of common cadre list, which if was not finalized then, it should have been finalized shortly thereafter to address the issue, but non-finalization of such list for years together would speak about the incompetency of the authority in volume inasmuch as any employee having rendered 30 years of unblemished service to the institution must have a legitimate expectation to the incentive/increment/promotion, but depriving a deserving employee from such legitimate benefit on some pretext or other is not the duty of a model employer, who is expected to conduct itself in a such a manner that no employee of it would feel looked down or discriminated for nepotism/sycophancy.

Quite understandably, OPNos.1 and 2 are the State or its functionary and they are like a model employer who is under obligation to conduct with high probity and in particular has a duty to act in a manner so that the employee should not feel neglected. Further, a model employer ought not exploit its employee or take advantage of their helplessness or misery. With aforesaid observation, this Court with a fond of hope trusts that the OPs would not take any step in utter disregard to frustrate the claims/legitimate expectation of an employee and create a situation where hopes end in despair.

In this case, the facts as exposited disclosing promotion of persons immediate Junior to the petitioner, which is brought to the notice of the Court by way of an additional affidavit of the petitioner, could not be disputed by the OPs who are found to have not filed their counter and, thereby, paving the way in the circumstance for invoking doctrine of non-traverse and in the peculiar facts and circumstance of the case, this Court is of the considered view that the petitioner is entitled to promotion just before his immediate Juniors who have already been promoted and, therefore, consequential benefits arising out of such promotion would accordingly be extended notionally to the petitioner while regularizing his promotion in service.

In the result, the writ petition stands allowed on contest to the extent indicated above, but in the circumstance, there is no order as to costs.

…………………………