Smt. Urbasi Sethi vs State Of Odisha And Others

This matter is taken up by video conferencing mode.

The Petitioner, who was working as Junior Typist in the office of the Judge, Family Court, Dhenkanal, has filed this writ petition for a direction to

the Opposite Parties, i.e. State of Odisha (Opposite Party No.1), District & Sessions Judge, Dhenkanal (Opposite Party No.2) and Registrar (Civil

Courts), Dhenkanal (Opposite Party No.3) to grant her promotion to the post of Senior Typist and to grant her financial up-gradation under RACP

scheme w.e.f. 10th July, 2014 after completion of her 10 years of service. She has also sought for quashing of the order dated 29th July, 2016 passed

by the Registrar (Civil Courts), Dhenkanal (Opp. Party No.3) rejecting her representation dated 1st July, 2016 seeking the above relief.

This Court has heard the submission of Ms. Deepali Mahapatra, learned counsel for the Petitioner and Mr. P.K. Muduli, learned Additional Govt.

Advocate for the Opposite Parties.

The background facts are that, the Petitioner joined in service as a Junior Typist in the judgeship of Dhenkanal on 16th July, 2004. She claims to be

belonging to the Scheduled Caste (SC) category, and in that capacity she was promoted to the post of Senior Typist under the ORV Rules, vide order

dated 3rd March, 2012. By an order dated 10th April, 2012 of the District Judge, Dhenkanal (Opposite Party No.2), the Petitioner was transferred as

Senior Typist to the Court of Senior Civil Judge, Anugul. Immediately on receiving the order of transfer, the Petitioner made a representation on dated

11th April, 2012, stating that she was pregnant and carrying since four months and her baby son was only four years old. She was residing at

Dhenkanal in her relative’s house, and her husband being a government employ was residing at his work-place at Cuttack. Further, her mother-in-

law was ailing as a cancer patient and receiving treatment at S.C.B. Medical College & Hospital, Cuttack. In the circumstances, the Petitioner

pleaded that her transfer on promotion to Anugul would cause her many difficulties and that:

“under such compelling circumstances I want to forego my promotion at present and I want to take my promotion in regular course without availing the O.R.V.

Rules.â€​

In reply to the above plea of the Petitioner, Opposite Party No.2 passed an order dated 12th April, 2021 as under:

“The representation of Smt. Urbasi Sethi, of the Sadar Copying Section, Dhe3nkanal dated 11.4.2021 foregoing promoting from the cadre of Senior Typist

under the O.R.V. Rules as per her own request is accepted to the restrictions imposed under Rule-16 of the ORISSA DISTRICT AND SUBORDINATE COURTS NON

JUDICIAL STAFF (METHOD OF RECRUITMENT & CONDITIONS OF SERVICE) RULES, 2008, and she is reverted to the cadre of Junior Typist with immediate

effect.â€​

It appears that the Petitioner accepted the above order and did not question it. About four years later, on 1st July, 2016 the Petitioner made a

representation stating that her case for promotion in normal course has not been considered and further that her RACP on completion of 10 years of

service, was due from 16th July, 2014.

On 29th July, 2016, Opposite Party No.3 communicated to the Petitioner the rejection of her representation dated 1st July, 2016, as under:

“the District Judge has been pleased to reject the representation of Smt. Urbasi Sethi, Junior Typist of your office in view of the provisions laid down in

Government of Odisha, G.A. Department O.M. No.24519 dated 20.8.1999 read with Rule-16 of Orissa District & Subordinate Court’s Non Judicial Staff

(Method of Recruitment & Conditions of Service) Rules, 2008.â€​

Thereafter, the present writ petition was filed by the Petitioner.

In response to the notice issued in the present writ petition, reply has been filed by the Opposite Parties stating that no illegality has been committed

in the impugned order, since the Petitioner was not entitled to promotion in view of the restrictions imposed under Rule-16 of the Orissa District &

Subordinate Court’s Non Judicial Staff (Method of Recruitment & Conditions of Service) Rules, 2008, along with its amendment in 2010 read with

G.A. Department’s Letter No.24519 dated 20th August, 1999. Reference is also made to the Finance Department Resolution No.3560 dated 6th

February, 2013, which further clarifies that:

“if an employee refused his/her regular promotion given in due course before becoming entitled to a financial up-gradation under RACP, then there shall be

no financial up-gradation under RACP, as the employee has not been stagnated due to lack of promotional opportunities.â€​

It is further submitted that, there was no provision in favour of any Scheduled Caste employee to consider her promotion in regular course, as an

additional candidate once she refused after being in zone of consideration as a reserved candidate for promotion. For the same reason her plea for

sanction of RACP was also not considered in view of the Finance Department Resolution No.3560 dated 6th February, 2013.

It is seen that the Petitioner has not filed any rejoinder to the above counter affidavit. More importantly she has also not challenged the validity of

any of the aforesaid Rules, Circulars, etc.

Ms. Deepali Mahapatra, learned counsel for the Petitioner refers to Rule-16 of the Orissa District & Subordinate Courts’ Non Judicial Staff

(Method of Recruitment & Conditions of Service) Rules, 2008, which reads as under:

“Failure to join the post on promotion debars from promotion in future without prejudice to any other liability that may be incurred under any of the

provisions of these rules, if any, a member of the ministerial service who express his unwillingness to accept a higher post or who being promoted to the higher

post fails to join the post within the fixed time without sufficient reason, shall be liable to be debarred from being eligible for any such promotion in future.â€​

Ms. Mahapatra submitted that, since the petitioner foregoing promotion with demotion was accepted, her subsequent request /willingness for

promotion ought to have been accepted.

It is seen that the Petitioner’s request was accepted as such by Opposite Party No.2 by order dated 12th April, 2012 and it was made clear

that this was subject to the restrictions imposed under Rule-16 of the Orissa District & Subordinate Courts’ Non Judicial Staff (Method of

Recruitment & Conditions of Service) Rules, 2008. The Petitioner was aware of this position and accepted it for 4 long years. She has also accepted

the applicability of the above Rule-16 as well as the other clarifications of the Circulars and the Orders, and she has not questioned on any of them.

In the aforesaid circumstances, the Court is unable to find any illegalities have been committed by the Opposite Parties 2 and 3 in rejecting the

Petitioner’s representation dated 1st July, 2016.

The writ petition is accordingly dismissed, but in the circumstances there is no order as to cost.

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