Dr. Dillip Kumar Behera vs State Pollution Control Board, Odisha And Another

Dr. B.R. Sarangi, J

The petitioner, who is working as Senior Environmental Scientist L1 in the State Pollution Control Board, Odisha, has filed this application to quash

the proceedings of departmental promotion committee in Annexure-3 dated 02.06.2018 denying him promotion to the post of Chief Environmental

Scientist on the plea of pendency of Sambalpur Vigilance P.S. Case No. 69 of 2012 against him. He further seeks for direction to the opposite parties

to give him ad hoc promotion, if not regular promotion, to the post of Senior Environmental Scientist, and grant all consequential service and financial

benefits as he is going to retire from service on 31.01.2019.

The factual matrix of the case, in hand, is that the petitioner acquired M.Sc. in Chemistry from Sambalpur University and Ph.D in Environmental

Chemistry from Utkal University. Initially, he joined in State Pollution Control Board, Odisha as a Research Analyst in April, 1984. Then, he got

promotion to the post of Scientist-B in the year 1985 and was also posted as Regional Officer in March, 1989. Thereafter, he was selected for higher

study and pursued M.Sc. in Environmental and Pollution Control from University of Manchester and on successful completion of higher study he

joined as Assistant Environmental Scientist in October, 1993. The petitioner was promoted to the post of Senior Environmental Scientist and Senior

Environmental Scientist L1 in January, 2006 and May, 2012 respectively.

2.1 During his entire service career, the petitioner has also presented many papers and publications in different national and international journals and

as such, he has an unblemished service record and for his sincerity and dedication to his work and his professional job, he was awarded and re-

awarded by many organizations including State Pollution Board, Odisha. When his case was considered for promotion to the next higher rank, i.e.

Chief Environmental Scientist L1, the departmental promotion committee in its meeting held on 02.06.2018 gave promotion to one Dr. P.K. Prusty and

the petitioner was denied such promotion because of Sambalpur Vigilance P.S. Case No. 69 of 2012 is pending against him for alleged offence of

receiving excess compensation amount for acquisition of his parental land by the Government for construction of Lower Irrigation Suktel Project,

Bolangir without changing the kissam of the land.

2.2 The petitioner is a permanent resident of village Chudapalli in the district of Bolangir. The father of the petitioner, late Benudhar Behera was the

recorded owner of Ac.35.33 of land of Khata No. 132 of mouza Chudapalli, who died in the year 1997. The State Government, for the purpose of

Lower Suktel Irrigation Project, acquired some of the ancestral property of the petitioner and his family and in lieu thereof the Special Land

Acquisition Officer, on verification of record, awarded compensation in favour of the petitioner and other family members as per their share and

entitlement. The petitioner has no idea about the kissam of the land and manner of fixation of the compensation, since he is staying outside the village

in his service place. Consequentially, he could not verify this fact save and except receiving the compensation as per the award. But on the basis of

the complaint made by a co-villager, the State Government conducted an enquiry behind the back of the petitioner and on the basis of such enquiry,

Sambalpur Vigilance P.S. Case No. 69 of 2012 was initiated against some Government Officers, including the petitioner and other co-sharers, under

Section 13(2) read with Section 13(1)(c)(d) of the P.C. Act read with Section 420/120-B IPC. As there was no prima face case made out against the

petitioner, under any of those provisions, as he is a bona fide receiver of the compensation in lieu of his acquired land, such vigilance case may not be

maintainable against him. The petitioner has also filed CRLMC No. 3359 of 2012 under Section 482 of Cr. P.C., for quashing the said vigilance case,

and CRLMP No.1505 of 2016, for re-investigation of Sambalpur Vigilance P.S. Case No. 69 of 2012, which are pending for adjudication by this

Court. Due to denial of promotion to the post of Chief Environmental Scientist L1 because of pendency of Sambalpur Vigilance P.S. Case No. 69 of

2012, the petitioner approached this Court by filing the present application.

Mr. S.K. Das, learned counsel for the petitioner argued with vehemence that in the name of Sambalpur Vigilance P.S. Case No. 69 of 2012, which

is pending against the petitioner and other co-sharers in connection with receiving of compensation for acquisition of their land, the petitioner has been

denied promotion to the post of Chief Environmental Scientist L1. Pendency of Sambalpur Vigilance P.S. Case No. 69 of 2012 in connection with

other issue, which has no nexus with the service of the petitioner, should not have been a bar for considering the case of the petitioner for promotion to

the next higher rank and therefore, seeks for direction to grant promotion to the petitioner on ad hoc basis, if not on permanent basis, as the petitioner

is going to retire from service from 31.01.2019.

Mr. B.Dash, learned counsel for the opposite parties contended that the petitioner’s service is regulated by the Rules and Regulations framed

by opposite party no.1, namely, Recruitment Conditions of Service of Employees of the State Pollution Control Board, Orissa Regulation, 2011. As per

Regulation-2 of Part-II, pendency of vigilance case is a bar for giving promotion to an employee and if the promotion of such employee is considered,

the same shall be kept in sealed cover. Thereby, no illegality or irregularity has been committed by the authority concerned in considering the case of

the petitioner for promotion and keeping the same in sealed cover because of the pendency of Sambalpur Vigilance P.S. Case No. 69 of 2012 and as

such the claim of the petitioner cannot sustain in the eye of law.

This Court heard Mr. S.K.Das, learned counsel for the petitioner and Mr. B.Dash, learned counsel appearing for the opposite parties-State Pollution

Control Board, Orissa. Pleadings between the parties having been exchanged, with the consent of learned counsel for the parties, this writ petition is

being disposed of finally at the stage of admission.

The facts delineated above are undisputed. Therefore, the sole question which is to be considered is that whether pendency of Sambalpur Vigilance

P.S. Case No. 69 of 2012 in connection with acquisition of land and grant of compensation will stand as a bar for grant of promotion to the petitioner,

even though he has been considered for the same by the departmental promotion committee.

On perusal of the records, it appears that this Court, vide order dated 25.07.2018, issued notice to the opposite parties, pursuant to which Mr.

B.Dash, learned counsel entered appearance on 28.08.2018 and filed a counter affidavit. In the said counter affidavit a reference has been made to

the Recruitment Conditions of Service of Employees of State Pollution Control Board Orissa Regulation, 2011 which stipulates method of recruitment

and appointment in service. Regulation-2 of Part-II reads as follows:-

“The “Recruitment Conditions of Service of Employees of the State Pollution Control Board, Orissa, Regulation- 2011†stipulates method of recruitment

and appointment in Service Regulation -2 in Part-II, reads as follows:

“While taking up the case of promotion, the Departmental Promotion Committee shall give due importance to the C.C.Rs. and the seniority of the employees

considered for promotion. Further, the sealed cover procedure will be followed in respect of the staff under suspension and in respect of employees against whom

vigilance cases are pending at the time of conduct of Departmental Promotion Meeting, while taking up their cases for promotion.â€​

So far the case of Dr. Dillip Kumar Behera, Sr. Environmental Scientist, L-1 is concerned a charge sheet bearing No. 42 Dtd.08.05.2015, has been filed vide

Sambalpur Vigilance P.S. Case No. 69/12 which is still in force. Cognizance was taken on 14.09.2015 and a case is sub-judice. The Departmental Promotion

Committee therefore decided to follow sealed cover procedure as laid down in the above Service Regulation -2 of Part-II and keep one post of Chief

Environmental Scientist vacant.â€​

The opposite parties have also admitted in the counter affidavit to the following effect:-

“It is a fact that the petitioner has a fair service career in the SPC Board. But on enquiry to Vigilance Department vide SPCB Letter No. 5425, Dtd. 03.05.2018

the Superintendent of Police (Co-ordination) intimated vide his letter No. 1826, Dtd. 19.05.2018 (Photocopy enclosed as Annexure-A/1) that, Sambalpur

Vigilance P.S. Case No. 69/12, Dtd. 19.10.2012 has been registered against Dr. Dillip Kumar Behera, Sr. Environmental Scientist, L-1 & others for receiving

excess compensation amount in the matter of acquisition of land by Government for construction of Lower Suktel Irrigation Project, Bolangir without changing

the kissam of land.â€​

It is thus contended that in connection with Sambalpur Vigilance P.S. Case No. 69 of 2012 charge-sheet bearing no.42 has been filed on 08.05.2015

and cognizance taken on 14.09.2015 and the matter is subjudice before the court below. Even though departmental promotion committee considered

the case of the petitioner for promotion, but its decision was kept in sealed cover as per the provisions contained in Regulation-2 of Part-II of the

Regulations, 2011, as quoted above.

When the matter was taken up on 20.12.2018, this Court made a query and passed the following order:-

“But in course of hearing this Court made a query as to if it will be justified to keep the proceedings of the departmental promotion committee, which

considered the case of the petitioner for promotion, in sealed cover, particularly when the vigilance case is pending for some other purpose other than service. At

this, Mr.B.Dash, learned counsel appearing for opposite party no.1 sought time to obtain instruction.â€​

In response to the same, an additional affidavit has been filed on behalf of opposite parties no.1 and 2 on 07.01.2019 reiterating the fact that as per

Regulation-2 of Part-II of the Regulation, 2011 that in respect of employees against whom vigilance cases are pending at the time of conducting of the

departmental promotion committee meeting, the sealed cover procedure will be followed and it has been clarified that such regulation only speaks

about the vigilance case pending against an employee and nowhere it has defined whether it relates to some other purpose other than the service.

Therefore, the departmental promotion committee adopted the sealed cover procedure and kept one post of Chief Environmental Scientist vacant.

No doubt, Sambalpur Vigilance P.S. Case No. 69 of 2012, which is pending against the petitioner, has got no relation to the service of the

petitioner. But fact remains that the departmental promotion committee considered the case of the petitioner for promotion and by adopting sealed

cover method kept its decision in a sealed cover, keeping one post of Chief Environmental Scientist vacant. This clearly indicates that the

petitioner’s case has been considered by the departmental promotion committee and the decision has been kept in sealed cover. The same cannot

be termed as denial of promotion to the petitioner to the post of Chief Environmental Scientist. Rather, the departmental promotion committee has

gone one step ahead by keeping one post of Chief Environmental Scientist vacant awaiting result of Sambalpur Vigilance P.S. Case No. 69 of 2012,

may it be, in relation to some other issue, which is not related to service of the petitioner. If Regulation-2 of Part-II of Regulation, 2011 put such a

restriction and as such there is no provision for ad hoc promotion, question of giving such benefit to the petitioner by exercising extraordinary

jurisdiction does not arise. Needless to mention, nothing has been placed on record by the opposite parties that for the purpose of initiation of

Sambalpur Vigilance P.S. Case No. 69 of 2012 any departmental proceeding has been initiated against the petitioner and nothing has been found

against the petitioner with regard to commission of any illegality or irregularity or misconduct by the petitioner in course of his employment under the

opposite parties. Rather, in the counter affidavit filed on behalf of the opposite parties it has been admitted that the petitioner has got an unblemished

service career. In any case, this Court is of the considered view that in the event Sambalpur Vigilance P.S. Case No. 69 of 2012 is decided in favour

of the petitioner, even if the petitioner retired from service on 31.01.2019, as submitted by the learned counsel for the petitioner, he shall be granted the

promotional benefit from the date the departmental promotion committee considered his case and kept its decision in sealed cover, by opening the

same immediately, and shall extend such benefit and other consequential benefits without causing any further delay.

With the above observation and direction the writ application stands disposed of.