Right To Be Considered For Promotion Survives Retirement, Persists Even If Legitimate Claim Not Acted Upon by Employee While In Service: Orissa HC

Orissa High Court: A Single Judge Bench of Justice Sashikanta Mishra dismissed the claim of Somanath Mandal, a retired employee of the Orissa University of Agriculture and Technology (OUAT), for a notional promotion. However, the court directed the university to investigate whether vacancies in the unreserved (UR) category existed during the relevant period. The court held that an employee's right to be considered for promotion, if accrued during their service, does not lapse upon retirement. It emphasized that failure by the employer to act on a legitimate promotion claim while the employee was still in service does not invalidate the employee's entitlement to consideration, even post-retirement. Background Somanath Mandal joined OUAT as a Junior Assistant on 15th December 1986, and over time, he was promoted to Senior Assistant (1990), Section Officer Level-II (2005), and Section Officer Level-I (2009). Being a Scheduled Caste (SC) candidate, Mandal claimed eligibility for promotion to Assistant Registrar (Accounts Officer), a post reserved for SC and ST candidates. He argued that despite his qualifications and seniority, he was bypassed in favour of junior officers under the “catch-up” principle, which restored the seniority of those promoted earlier but had been surpassed due to reservations. Mandal had previously challenged his exclusion from promotion before the court in W.P.(C) No. 9884 of 2014. Following that, the court had directed OUAT to consider his representation, but the same was rejected in 2014 on the grounds that the post for SC candidates had already been filled by another officer, Madhusudan Behera, and his promotion would only be considered upon the post's vacancy. Despite Behera's retirement in May 2015, OUAT did not promote Mandal. By the time Mandal retired on 31st January 2020, his promotion grievances remained unresolved, compelling him to amend his writ petition to seek notional promotion and associated pension benefits. Arguments Mandal, represented by Mr. P.K. Ray, contended that his initial appointment and subsequent promotions as an SC candidate were valid under the provisions of the Odisha Reservation of Vacancies (ORV) Act, which allows for the exchange of posts between SC and ST categories. Despite being eligible and promised consideration post-Behera's retirement, his case was ignored. Further, he argued that a vacancy existed in the unreserved (UR) category for which he was qualified, and that the university's failure to promote him before his retirement was unjust. As such, Mandal requested a notional promotion with effect from 2011 and the rectification of his pensionary benefits. OUAT, represented by Mr. P. Panda, argued that Mandal's initial appointment under the ST category was irregular, as it violated the ORV Act's stipulations. The Act permits the exchange of posts only in cases of unavailability of SC/ST candidates, but such candidates were available at the time of Mandal's recruitment. Furthermore, OUAT claimed that the government's clarification in 2019 stated that Mandal could only be considered as a UR category candidate. The university maintained that as there were no vacancies in the UR category at the time of his retirement, Mandal's case could not be processed. OUAT also noted that it had invited objections to the revised gradation list but did not address whether Mandal's objections were considered or resolved before his retirement. OUAT further contended that promotions could only be granted following a Departmental Promotion Committee (DPC) meeting, which could not be convened after Mandal's retirement. Therefore, his claim for a notional promotion lacked merit. Court's Reasoning Firstly, the court addressed the irregularity in Mandal's initial appointment under the ST category, despite belonging to the SC community. While OUAT and the government maintained that this was a violation of the ORV Act, the court found that Mandal was not responsible for this irregularity. As his services had been rendered for decades without challenge, the court held that his initial appointment should not be questioned after such a long period. Consequently, Mandal's appointment was regularized, and he was to be treated as a UR candidate following the 2019 government clarification. Secondly, regarding the promotion dispute, the court emphasized that while no employee has an inherent right to promotion, there is a right to be considered for it. OUAT's failure to process Mandal's case after receiving the government's clarification in 2019 was deemed unacceptable. Mandal's right to consideration for promotion remained intact despite his retirement, as his application was pending at the time. However, the court noted the absence of clear evidence regarding the availability of vacancies in the UR category when the clarification was issued. OUAT's failure to provide details on the gradation ...

Right To Be Considered For Promotion Survives Retirement, Persists Even If Legitimate Claim Not Acted Upon by Employee While In Service: Orissa HC

Pranav Kumar

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Right To Be Considered For Promotion Survives Retirement, Persists Even If Legitimate Claim Not Acted Upon by Employee While In Service: Orissa HC

Pranav Kumar

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