Promotion of Government Servant is only subject to the outcome of pending Criminal Proceedings- Say Orissa High Court

IN THE HIGH COURT OF ORISSA AT CUTTACK

W.A. No. 805 of 2021 and batch of Writ Appeals

1. W.A. No. 805 of 2021

State of Odisha and Another …. Appellants

Mr. M.K. Khuntia, Addl. Govt. Advocate

Mr. A.P. Das, Addl. Standing Counsel

-versus

Joseph Barik …. Respondent

 2. W.A. No.490 of 2021

State of Odisha and another …. Appellants

Mr. M.K. Khuntia, Addl. Govt. Advocate Mr. A.P. Das, Addl. Standing Counsel

versus

Saishaba Kumar Mandal and another …. Respondents None

3. W.A. No. 935 of 2021

State of Odisha …. Appellant

Mr. A.P. Das, Addl. Standing Counsel -versus

B. Nareen Kumar Reddy and Others …. Respondents None

4. W.A. No.943 of 2021

State of Odisha …. Appellant

Mr. M.K. Khuntia, Addl. Govt. Advocate -versus

Nikhil Mohan Bastia …. Respondent

.W.A. No.286 of 2022

State of Odisha and Others …. Appellants

Mr. A.P. Das, Addl. Standing Counsel -versus

Chittaranjan Jena …. Respondent None

6. W.A. No. 659 of 2022

State of Odisha and Others …. Appellants

Mr. A.P. Das, Addl. Standing Counsel

versus

Ranjan Kumar Mohanty …. Respondent None

7. W.A. No. 681 of 2022

State of Odisha and Another …. Appellants

Mr. M.K. Khuntia, Addl. Govt. Advocate

versus

Sashi Sekhar Behera …. Respondent None

8. W.A. No. 683 of 2022

State of Odisha and Another …. Appellants

Mr. M.K. Khuntia, Addl. Govt. Advocate

versus

Rabindranath Gochhayat …. Respondent None

9. W.A. No. 685 of 2022

State of Odisha and Another …. Appellants

Mr. M.K. Khuntia, Addl. Govt. Advocate

versus

Sangram Keshari Mohanty …. Respondent None

10. W.A. No. 691 of 2022

State of Odisha and Another …. Appellants

Mr. Rabi Narayan Mishra, Addl. Govt. Advocate

versus

Alekh Charan Sahoo …. Respondent None

11. W.A. No. 831 of 2022

State of Odisha and Another …. Appellants

Mr. M.K. Khuntia, Addl. Govt. Advocate

versusDilip Kumar Patra and Another …. Respondents None

12. W.A. No.1042 of 2022

State of Odisha and another …. Appellants

Mr. M.K. Khuntia, Addl. Govt. Advocate

versus

Ramesh Chandra Mishra …. Respondent

Mr. Sarada Prasad Dash, Advocate

13. W.A. No.1107 of 2022

State of Odisha and another …. Appellants

Mr. M.K. Khuntia, Addl. Govt. Advocate

versus

Pratap Keshri Malla …. Respondent None

14. W.A. No.1127 of 2022

State of Odisha and another …. Appellant

Mr. M.K. Khuntia, Addl. Govt. Advocate

versus

Bedambar Behera …. Respondent

Mr. Bigyan Sharma, Advocate 

W.A. No. 1223 of 2022

State of Odisha and Others …. Appellants

Mr. M.K.Khuntia, Addl. Govt. Advocate -

versus

Sisir Ranjan Prusty …. Respondent

Mr. T.K. Biswal, Advocate

16. W.A. No.1232 of 2022

State of Odisha and another …. Appellants

Mr. M.K.Khuntia, Addl. Govt. Advocate

versus

Amulya Kumar Tripathy …. Respondent

Mr. Tushar Kanta Nayak, Advocate

17. W.A. No.1239 of 2022

State of Odisha and another …. Appellants

Mr. M.K.Khuntia, Addl. Govt. Advocate

versus

Shishir Kumar Das …. Respondent None

18. W.A. No. 1272 of 2022

State of Odisha and Others …. Appellants

Mr. M.K. Khuntia, Addl. Govt. Advocate

versus

Manas Ranjan Sahoo …. Respondent None

19. W.A. No. 1314 of 2022

State of Odisha and Another …. Appellants

Mr. M.K. Khuntia, Addl. Govt. Advocate

versus

Prasanta Kumar Das …. Respondent

Mr. Bigyan Sharma, Advocate 

20. W.A. No.1346 of 2022

State of Odisha and another …. Appellants

Mr. A.P. Das, Addl. Standing Counsel

versus

Umakanta Biswal …. Respondent None

21. W.A. No.1347 of 2022

State of Odisha …. Appellant

Mr. M.K. Khuntia, A.G.A.

versus

Kali Charan Sadangi and another …. Respondents None

22. W.A. No. 1365 of 2022

State of Odisha and Another …. Appellants

Mr. A.P. Das, Addl. Standing Counsel

versus

Prasanta Kumar Malla …. Respondent None

23. W.A. No. 1368 of 2022

State of Odisha and Another …. Appellants

Mr. M.K. Khuntia, Addl. Govt. Advocate

versus

Nalini Ranjan Mishra …. Respondent None

24. W.A. No. 1460 of 2022 State of Odisha …. Appellant

Mr. A.P. Das, Addl. Standing Counsel

versus

Umesh Chandra Moharana …. Respondent

Mr. S.K. Ojha, Advocate

25. W.A. No.1651 of 2022

State of Odisha and others …. Appellants

Mr. M.K. Khuntia, A.G.A.

versus

Krushna Chandra Dash …. Respondent None

26. W.A. No. 1659 of 2022 State of Odisha and Another …. Appellants

Mr. Manoj Kumar Khuntia, Addl. Govt. Advocate

versus

Ananga Bhima Deo …. Respondent Mr. D.R. Bhokta, Advocate

27. W.A. No. 1733 of 2022 State of Odisha …. Appellant

Mr. Manoj Kumar Khuntia, Addl. Govt. Advocate

versus

Pramod Kumar Sahoo …. Respondent None

28. W.A. No. 1813 of 2022

State of Odisha and Another …. Appellants

Mr. Manoj Kumar Khuntia, Addl. Govt. Advocate

versus

Dr. Rajat Ranjan Sadual …. Respondent None

29. W.A. No. 257of 2023

State of Odisha and Another …. Appellants

Mr. Manoj Kumar Khuntia, Addl. Govt. Advocate

versus

Aruna Kumar Rout …. Respondent None

30. W.A. No. 343 of 2023

State of Odisha and Another …. Appellants

Mr. A.P. Das, Addl. Standing Counsel

versus

Mahendra Kumar Sahoo …. Respondent None

31. W.A. No. 345 of 2023

State of Odisha and Another …. Appellants

Mr. Manoj Kumar Khuntia, Addl. Govt. Advocate

versus

Brusava Kumar Pradhan …. Respondent

Mr. Manas Pati, Advocate

32. W.A. No. 395 of 2023

State of Odisha and Another …. Appellants

Mr. Manoj Kumar Khuntia, Addl. Govt. Advocate

versus

Apurba Kumar Patra …. Respondent None

33. W.A. No. 505 of 2023

State of Odisha and Another …. Appellants

Mr. Manoj Kumar Khuntia, Addl. Govt. Advocate

versus

Pradyumna Kumar Parida …. Respondent None

34. W.A. No. 511 of 2023

State of Odisha and Another …. Appellants

Mr. Manoj Kumar Khuntia, Addl. Govt. Advocate

versus

Biswa Bhusan Mohanty …. Respondent None

35. W.A. No. 535 of 2023

State of Odisha and Another …. Appellants

Mr. Manoj Kumar Khuntia, Addl. Govt. Advocate

versus

Rajat Chandra Singh …. Respondent

Mr. D.R. Bhokta, Advocate

36. W.A. No. 536 of 2023

State of Odisha and Another …. Appellants

Mr. Manoj Kumar Khuntia, Addl. Govt. Advocate

versus

B. Lileswar Rao …. Respondent None

37. W.A. No. 567 of 2023

State of Odisha and Another …. Appellants

Mr. Manoj Kumar Khuntia, Addl. Govt. Advocate

versus

Janardan Bal …. Respondent None

38. W.A. No. 596 of 2023

State of Odisha and Another …. Appellants

Mr. Manoj Kumar Khuntia, Addl. Govt. Advocate

versus

Dr. Malay Kumar Pradhan …. Respondent

Mr. Anjan Kumar Biswal, Advocate

39. W.A. No. 604 of 2023

State of Odisha and Others …. Appellants

Mr. A.P. Das, Addl. Standing Counsel

versus

Niranjan Behura …. Respondent None

40. W.A. No. 634 of 2023 State of Odisha …. Appellant

Mr. Manoj Kumar Khuntia, Addl. Govt. Advocate

versus

Kanhu Charan Nayak …. Respondent None

41. W.A. No. 677 of 2023

State of Odisha and Others …. Appellants

Mr. Manoj Kumar Khuntia, Addl. Govt. Advocate

versus

Sunita Sahu …. Respondent None

42. W.A. No. 731 of 2023

The Principal Secretary to Govt., Food, Supplies and Consumer Welfare Dept. …. Appellant

Mr. A.P. Das, Addl. Standing Counsel

versus

Bijay Kumar Mohanty …. Respondent None

43. W.A. No. 743 of 2023

State of Odisha and Another …. Appellants

Mr. Manoj Kumar Khuntia, Addl. Govt. Advocate

versus-

Rajkishore Ghadei @ Ghadai …. Respondent None

44. W.A. No. 790 of 2023

State of Odisha …. Appellant

Mr. Manoj Kumar Khuntia, Addl. Govt. Advocate

versus

Madhab Chandra Sarangi …. Respondent None

45. W.A. No. 1266 of 2022 Commissioner-cum-Secretary, Works Department …. Appellant

Mr. Manoj Kumar Khuntia, Addl. Govt. Advocate -

versus

Ambika Ballava Swain and Others …. Respondents None

46. W.A. No. 125 of 2022

State of Odisha …. Appellant

Mr. Manoj Kumar Khuntia, Addl. Govt. Advocate

versus

Srimanta Mishra …. Respondent

Mr. Upendra Kumar Samal, Advocate CORAM: THE CHIEF JUSTICE JUSTICE G. SATAPATHY Order No. ORDER 11.05.2023 02.

1. In all these writ appeals by the State of Odisha against the corresponding orders of the learned Single Judge, a common question arises for consideration viz. whether during the pendency of a criminal case against the government servant in the Court of the Special Judge (Vigilance), and notwithstanding exoneration of the said employee in the departmental proceedings, could the learned Single Judge have ordered grant of either ad hoc or regular promotion to the government servant subject to the outcome of the criminal proceedings?

2. One other common factor that requires to be noticed is that except in W.A. No.596 of 2023 where the impugned order under challenge  was passed by the learned Single Judge after completion of pleadings in the writ petition, in all the other appeals the impugned order under challenge was passed by the learned Single Judge on the very first date of hearing of the writ petition without an opportunity to the State of Odisha to file its reply.

3. This Court has heard the learned counsel for the parties.

4. There is no dispute in that the criminal case involving the Respondents in the present appeals is still pending before the Court of the Special Judge (Vigilance) at various stages. In some cases, even a charge sheet is yet to be filed and in other charges may or may not have been framed; in certain other cases, trial is in progress.

5. Learned counsel appearing for the respective Respondents argue that on account of the long years of the pendency of the criminal case and with the impending prospect of many of the Respondents superannuating in the immediate future, one equitable solution would be for this Court to direct the Appellants (State of Odisha) to grant them ‘ad hoc’ promotions. In support of such plea, reliance placed on an interim order passed by this Court on 27th March, 2023 in W.A. No.321 of 2022.

6. However, it is pointed out by Mr. Khuntia, learned Additional Government Advocate (AGA) that in W.A. No.321 of 2022 the Respondent had been exonerated in the departmental proceedings and the report sent by the Special Judge, Vigilance to this Court  showed that the trial in T.R. Case No.50 of 2014 was progressing very slowly with only three witnesses having been examined. Accordingly, this Court in the said case directed the trial Court to conclude the entire trial and deliver the judgment on or before 1st August, 2023. It is in those circumstances that no interim order was passed by the Diviion Bench staying the order of the learned Single Judge. The said writ appeal has been directed to be listed on 10th August, 2023.

7. Apart from the fact that the aformenetioned order is an interlocutory one peculiar to the facts noted, as far as the present batch of cases is concerned, departmental proceedings are still pending in some and in all the cases criminal proceedings are pending.

8. The Court has been shown a compilation of Office Memoranda (OMs) and Notifications issued by the Government of Odisha from time to time. These include OM dated 18th February 1994, 4th July 1995, 1st November 1997, 28th January 1999, 28th May 2012, 29th April 2017 and 17th June 2021issued by the General Administration Department. None of them envisages or permits grant of promotion to a government servant either on regular or on ad hoc basis during the pendency of a criminal case involving such government servant.

9. Further in terms of the law explained by the Supreme Court in Union of India v. K.V. Janaki Raman (1991) 4 SCC 109, State of Punjab v. Chamanlal Goel (1995) 2 SCC 570, the judgment of this  Court dated 5th October, 2016 in W.P.(C) No.19909 of 2015 (State of Odisha v. Somanath Sahoo) and the judgment dated 26th April, 2017 in W.P.(C) No.22393 of 2015 (State of Odisha v. Anil Kumar Sethi), there is no right of the government servant to be considered for promotion during the pendency of either departmental proceedings or criminal proceedings or both against such government servant.

10. The plea of the learned counsel appearing for the Respondents that they should be granted at least one ‘ad hoc promotion’ is also without any legal basis in light of the above OMs and the settled position in law.

11. It is clarified that as and when the criminal proceedings end in favour of the government servant by way of an acquittal and such government servant also stands exonerated from the departmental procewedings then notwithstanding the superannuation of such government servant, the notional benefits attaching to the promotion that is due to the government servant would be calculated and the pension fixed accordingly.

12. In the light of the above orders of the Government, it is not possible for this Court to sustain the impugned orders of the learned Single Judge in the present cases directing the Appellants to grant regular promotion to the Respondents even with the caveat that such promotion would be subject to the outcome of the criminal case against such government servant. The said impugned orders of the learned Single Judge are accordingly hereby set aside.

13. It will of course be open to the Respondents to request the criminal Courts concerned to expedite the proceedings and bring the trials to an early conclusion.

14. The writ appeals are accordingly allowed, but in the circumstances, with no order as to costs.

(Dr. S. Muralidhar) Chief Justice

(G. Satapathy) Judge