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2018 Supreme(Ori) 427
IN THE HIGH COURT OF ORISSA : CUTTACK
S. PANDA, K.R. MOHAPATRA, JJ.
Narayan Prasad Mohanty - Petitioner
Versus
State of Odisha & another - Opp. Parties
W.P.(C) NO. 3742 OF 2014
Decided On : 09-02-2018
For the Petitioner: M/s. Bimal Prasad Tripathy & K.K.Pradhan
For the Opp. Parties :Mr. M.S.Sahu, Additional Government Advocate
Headnote:1. SERVICE - Whether an employee is entitled to the arrears of salary in case he was notionally promoted from a retrospective date ? - Petitioner has not worked in the promotion post, as by the time the impugned judgment was passed by learned Tribunal he was superannuated from service - Normal rule of service jurisprudence is "no work no pay" - A person cannot be allowed to draw the benefits of a post in which he has not discharged his duties -Discharging the duties in a post is the sine qua non for drawing the salary in that post - An employee has no right of promotion - He has only right to be considered for promotion -Direction of the learned Tribunal to give notional promotion to the petitioner from a retrospective date, does not entitle him to the arrear salary automatically - It has to be considered on its own merit - Entitlement of the petitioner for arrear salary is a matter of consideration by the authorities - The findings of the Tribunal to the extent that the petitioner is not entitled to arrear salary for the period for which he has not discharged his duty in the promotion cadre - Entitlement of the petitioner to the arrear salary depends upon various factors which can only be examined by the competent authority. (Paras - 4 to 8).
2. PROMOTION - Denial of promotion due to pendency of disciplinary/criminal proceeding and non-consideration of promotion of an employee, albeit having eligibility and suitability, are two different circumstances and eventualities in service - In the former eventuality, normally the result of the D.P.C. is kept in a sealed cover till finalisation of the disciplinary/criminal proceedings and the promotion of the employee depends upon the disciplinary criminal proceedings - In the latter eventuality, the employee stands in a better footing - Employer has no legal constraint when refuses to consider the case of the eligible and suitable employee for promotion -Such an action is depreciable being arbitrary and unreasonable. (Para - 5)
JUDGMENT :
K.R. MOHAPATRA, J.
Petitioner, in this writ petition, assails the order dated 22.01.2013 passed by the Odisha Administrative Tribunal, Cuttack Bench, Cuttack (for short, ‘the Tribunal’) in O.A. No. 2872(C) of 1999 (Annexure-1), whereby the learned Tribunal while allowing the Original Application filed by the petitioner, directed the Collector, Cuttack-opposite party No.2 to convene a review DPC to consider the suitability of the petitioner for promotion to the post of Revenue Supervisor on the basis of his service record till 01.07.1989. It has been further directed that the petitioner, if found suitable for promotion, shall be deemed to have been promoted with effect from the date from which the first promotion order was issued during 01.07.1989 to 21.07.1992. As the petitioner was superannuated by the time of disposal of the Original Application, it was directed that his pay be notionally fixed in the promotional cadre and his pension should be revised accordingly. He has also been held to be entitled to arrears of pension and other retiral benefits. However, the petitioner, being aggrieved by the observation of the learned Tribunal to the effect that he shall not be entitled to the arrear salary for the period for which he has not discharged his duty in the promotional cadre, has filed this writ petition.
2. It is the contention of Mr. Tripathy, learned counsel for the petitioner that opposite party No.2-Collector, Cuttack gave promotion to 15 numbers of Revenue Inspectors in between 01.07.1989 and 21.07.1992 to the cadre of Revenue Supervisor ignoring the case of the petitioner. The Revenue Inspectors, who got promotion, were not eligible to be considered for promotion, as they had not passed preliminary accounts examination as required under Rule-12 of the Orissa District Revenue Service (Method of Recruitment and Conditions of Service) Rules, 1983. However, the petitioner by then had completed R.I. training from the Training Institute at Khalikote and passed the final examination as per the Board of Revenue notification dated 26.11.1983. He had also passed Preliminary Accounts Examination (Group-A) as per the Board of Revenue notification dated 30.10.1990. Learned Tribunal, taking into consideration the rival contentions of the parties, has rightly held that non-consideration of the case of the petitioner for promotion to the cadre of Revenue Supervisor was not proper and justified. Hence, the learned Tribunal directed the Collector, Cuttack to convene a review DPC to consider suitability of the petitioner for promotion to the cadre of Revenue Supervisor on the basis of his service record till 01.07.1989, i.e., the initial date on which some Revenue Inspectors were given promotion to the cadre of Revenue Supervisor. Learned Tribunal further directed the opposite parties to promote the petitioner with effect from the date from which first promotion order was issued during the period from 01.07.1989 to 21.07.1992, if found suitable. Since the petitioner had retired from government service by the date of pronouncement of the impugned order, his pay was directed to be notionally fixed in the promotional cadre and his pension be accordingly revised and arrears of pension and other retiral benefits be released in his favour. However, learned Tribunal most erroneously directed that the petitioner would not be entitled to arrears of salary for the period for which he had not discharged his duties in the promotional post.
Learned counsel for the petitioner submitted that the case of the petitioner was ignored by the authorities and he was not given promotion for no fault of his. He was illegally deprived from discharging his duties in the promotional cadre, although he was ready and willing for the same. When learned Tribunal deprecated the action of the opposite parties in ignoring the case of the petitioner for promotion and directed to consider the case of the petitioner for promotion with effect from the date his count
