JUDGMENT :

B.R. Sarangi, J.

The petitioner, being a member of Scheduled Tribe community, was appointed as Junior Engineer (Electrical) in the Electrical Circle of Dhenkanal, pursuant to Annexure-1 dated 15.03.1993 in which his name finds place at serial no. 18, and his services were regularized on 25.04.1996. On the allegation of demand of bribe of Rs.600/-, Sambalpur Vigilance G.R. Case No. 17 of 1997 was registered against the petitioner. In that backdrop, by office order dated 27.05.1997 at annexure-2 the petitioner was placed under suspension with immediate effect, pending drawal of the disciplinary proceeding. Subsequently, pursuant to office order dated 19.01.1998 at annexure-3, the petitioner was reinstated in service with immediate effect and was posted as Junior Engineer (Electrical) under the Superintending Engineer, Electrical Circle, Jajpur Road. The petitioner continued to discharge his duties at different places under E-2 grade. When he came to know that similarly situated persons had been given E-3 grade, he made a representation vide Annexure-7 dated 26.12.2006 to the Chief Executive Officer, NESCO, Balasore to give him E-3 grade w.e.f. 08.11.2004. Pending consideration of representation, he was allowed to discharge the duties of Sub-Divisional Officer (Electrical) at different places.

2. When the matter thus stood, the Special Judge (Vigilance), Cuttack acquitted the petitioner of the charges framed against him vide judgment dated 25.02.2009 passed in T.R. Case No. 295 of 2007. On acquittal of the petitioner, the opposite parties vide order dated 20.11.2009 dropped the departmental proceedings and exonerated him from all charges and the period of suspension was treated as duty. After the departmental proceeding was dropped, on 23.11.2009, the petitioner was given promotion to E-3 grade w.e.f. 30.08.2008, even though the petitioner had been discharging his duties as Sub-Divisional Officer (SDO) from 08.11.2004. Although in the gradation list-Annexure-13 dated 07.12.2006, the petitioner was placed at serial no. 32, one Ashok Kumar Nayak, who was about 8 years junior to the petitioner and was placed at serial no. 58, was given promotion to E-3 grade much prior to the petitioner, i.e., w.e.f. 08.11.2004. Similarly, one Manas Ranjan Mohanty, even though was allowed to discharge the duty of SDO (unlike the present petitioner), w.e.f. 18.10.2003, was regularized in the said post of E-3 grade, w.e.f. 30.01.2004, but the petitioner has been discriminated. Therefore, the petitioner claims that he should be allowed to continue in E-3 grade w.e.f. 08.11.2004 instead of 30.08.2008, hence this application.

3. Mr. G. Mishra, learned counsel for the petitioner strenuously urged that, while considering the promotion from E-2 to E-3 grade, the Orissa Reservation of Vacancies in Post and Services (for Scheduled Castes and Scheduled Tribes) Act, 1975 (for short “ORV Act”), which is applicable to the opposite party-organization, has been completely given a goby. More so, when one Ashok Kumar Nayak, who is 8 years juniors to the petitioner, has been given promotion w.e.f. 06.11.2004, there is no valid and justifiable reason to give promotion to the petitioner to E-3 grade w.e.f. 30.08.2008. It is further contended that since the petitioner has already got promotion to E-3 grade vide order dated 23.11.2009, giving effect from 30.08.2008, he only claims that such benefit be extended from the date his junior has been promoted to E-3 grade, i.e., from 08.11.2004, or by applying the provisions contained in the ORV Act.

4. Mr. P.K. Mohanty, learned Senior Counsel appearing along with Mr. S.N. Das, learned counsel for opposite party no.3 argued with vehemence that the claim made by the petitioner is not admissible in view of the fact that mere functioning as in-charge shall not entitle anyone to claim benefit attached to the assigned post. To support such contention, he relied upon the order dated 23.07.2008 of this Court passed in W.P.(C) No.