The High Court
Case Details
AFR IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.5306 of 2024 Manoj Kumar Panda Petitioner Mr. Asok Mohanty, Senior Advocate …. -Versus- State of Odisha & others …. Opposite Parties Mr. B.P. Tripathy, AGA Mr. Samir Kumar Das, Intervener W.P.(C) No.10375 of 2024 Ramachandra Murmu & others Petitioners Er. Nagendra Kumar Mohanty, Advocate …. -Versus- State of Odisha & others …. Opposite Parties Mr. B.P. Tripathy, AGA Mr. G. Mishra, Senior Advocate Mr. S.K. Das, Advocate Mr. J.R. Deo, Advocate for the Intervener CORAM: JUSTICE R.K. PATTANAIK DATE OF JUDGMENT:03.12.2024 1. Since a common cause of action is involved, both the writ petitions are disposed of by the following order. 2. The writ petitions are filed by the petitioners challenging the final disposition list of officers as on 30th April, 2023 and to promote the petitioners to the cadre of OFS-I (Junior Branch) vis- (cid:224)-vis the recruitment year, 2020 on the grounds stated. 3. According to the petitioners, their promotion is to be antedated besides consequential seniority in the rank of OFS-I Page 1 of 18 (Junior Branch) over and above the direct recruitees in view of Rule 14 of the Orissa Finance Service Rules, 2011 (hereinafter referred to as ‘the OFS Rules’). As pleaded on record, the petitioners were appointed as Class-II OFS officers on promotion in the year, 2014 vide Notification dated 7th February, 2014 (Annexure-1). As further pleaded, the promotional vacancies relate to the year 2020 and the selection was held on 20th December, 2020 and the recommendation of the Board received approval of the Government in the month of December, 2020 and thus, the select list for promotion belongs to the recruitment year, 2020, however, without following the principles set out by the Government in GA&PG Department resolution dated 10th January, 2020 (Annexure-2), the order of promotion was issued on 5th January, 2021 and as such, the delay was caused, which cannot change the year of appointment of the selected candidates and place the petitioners below the direct recruitees of 2020 in view of Rule 14(3) of the OFS Rules. It is stated that the Finance Department by letter dated 13th February, 2020 addressed to the Odisha Public Service Commission (OPSC) sought for relaxation as to years of service necessary for promotion as per Rule 6 of the OFS Rules, as none from the Odisha Taxation and Accounts Service (OT&AS) was eligible for having not completed six years of service as on the 1st day of January of the year concerned and
Legal Reasoning
as the first batch of the service by way of promotion and selection was of the year 2013 and the same received the concurrence and was approved by the Government. Upon such relaxation of the eligibility criteria from six years to four years as on 1st January, 2020, it is pleaded that as a one-time measure, promotion of OT&AS officers to OFS-I (Junior Branch) was considered, whereafter, the Finance Department called for PARs in the month of July, 2020 but pending such consideration, direct recruitment was held in pursuance of Rule 4(a) read with Rule 13(1) of the Page 2 of 18 OFS Rules and on the recommendation of the OPSC, 21 candidates were appointed vide Notification dated 27th July, 2020 (Annexure-7). It is claimed that notwithstanding compliance of Annexure-6 and availability of required particulars of OT&AS officers, no DPC was held to fill up 83 posts of OFS-I (Junior Branch) on promotion, as a result of which, one among them filed W.P.(C) No.32769 of 2020, which was disposed of on 1st December, 2020, with a direction to convene DPC for the said purpose by the end of December, 2020 and thereafter, the process of promotion was initiated and it was conducted on 24th December, 2020 but unfortunately, the order of promotion was issued on 5th January, 2021 by Finance Department Notification dated 5th January, 2021 (Annexure-9), whereafter, the aggrieved OT&AS officers promoted and also the petitioners filed a representation (Annexure-10) seeking restoration of their seniority over the direct recruitees of OFS-I (Junior Branch) with consequential benefits and in the meanwhile, as pleaded further, OPSC requested for a copy of the final Gradation List of OFS-I (Junior Branch) as on 30th April, 2023, which was responded to by the Finance Department, which submitted the disposition list (Annexure-12) but the grievances of the promotee officers was not considered, which led to the submission of the representation dated 6th February, 2024 (Annexure-13 series) with a request to restore seniority over the direct recruitees treating them as promotees of the recruitment year, 2020 but finally, the disposition list was prepared and duly communicated vide Annexure-14 without such restoration. 4. The counter affidavit is filed by the State with the pleading that the inter se seniority of the appointees to a service in a particular year shall be governed by Rule 14 of the OFS Rules, according to which, the officers appointed by promotion in Page 3 of 18 Group-A (Junior Branch) of the service shall en bloc be senior to the one appointed by direct recruitment in that year referring to Sub-rule (3) thereof. It is also pleaded that such placement in the cadre is on the basis of the resolution of the Government as at Annexure-A/1 and according to the OFS Rules. It is also pleaded that seniority among the promotees and direct recruits is in consonance with the settled law decided by the Apex Court in K. Meghachandra Singh and others Vrs. Ningam Siro and others (2020) 5 SCC 689, in which, it has been held that seniority cannot be allowed when one is not even born in the cadre with retrospectivity. It is stated that the resolution dated 9th September, 2021 (Annexure-A/1) is, in fact, in the lines of the ratio laid down in K. Meghachandra Singh. The defence is that the promotee officers including the petitioners since joined in the year 2021, seniority in juxtaposition to the direct recruits shall be as per Rule 14 of the OFS Rules. The allegation of delay in allowing promotion is denied by the State with an explanation that the DPC was held in time complying the directions issued in W.P.(C) No.32769 of 2020, as according to which, the DPC was to be conducted by the end of December, 2020 and it was accordingly held on 24th December, 2020 after obtaining clearance from Vigilance and PARs received from the competent authority and thereafter, the promotion was allowed with an order notified by the Finance Department on 5th January, 2021 and in any case, the services of the promotes were regularized by a Notification dated 21st May, 2021 after obtaining concurrence of the OPSC and approval of the Government, hence, the promotion was not delayed and it was not on account of any laches of the Government. The further pleading is that promotion of the petitioners and others was considered with the relaxation and in due course, the DPC was held before 31st December, 2020, hence, no illegality has been committed and therefore, the promotees Page 4 of 18 are to be placed in the cadre as per the Rules and not over the direct recruits, who joined in the month of June, 2020. So far as the catch-up principle is concerned, as has been relied upon by the petitioners, the State’s reply is that OT&AS and OFS are two separate services governed by independent service rules and as such, it is not a case of promotion from the lower grade to the higher in a cadre and referred to Rule 4(a) of OFS Rules to plead that promotion from the OT&AS cadre is not the only process followed for appointment to the cadre of OFS-I (Junior Branch), so therefore, the petitioners cannot claim seniority referring to the principle. The further pleading is that the disposition list was not challenged nor the resolution of the G.A.&P.G. Department besides Rules 14 of the OFS Rules, hence, the writ petitions are devoid of merit and hence, are liable to be dismissed. 5.
Legal Reasoning
Heard Mr. Mohanty, learned Senior Advocate & Mr. N.K. Mohanty, learned counsel for the petitioners; Mr. Tripathy, learned AGA for the State; Mr. Mishra, learned Senior Advocate besides Mr. Das & Mr. Deo, learned counsels for the interveners. 6. Mr. Mohanty, learned Senior Advocate for the petitioners would submit that the vacancies filled up in respect of the promotees are of the year, 2020, hence, notwithstanding the appointments to be of 2021, in the facts and circumstances of the case, the petitioners are to be placed in the common cadre above the direct recruits in view of Rule 14 of the OFS Rules. The contention is that the selection process was initiated in 2020 and the entire exercise was to be concluded at the earliest with the appointment of the promotees in 2020 itself but due to the laches on the part of the Government, the appointment orders were issued in 2021 and had the appointment been made in 2020 or at any time before December, 2020, the petitioners would have been senior to the direct recruits. In so far as the decision of the Page 5 of 18 Apex Court in K. Meghachandra Singh is concerned, according to Mr. Mohanty, learned Senior Advocate, the same failed to consider an earlier decision in M. Subba Reddy and another Vrs. A.P. State Road Transport Corporation and others (2004) 6 SCC 729. The further contention is that in the matters of inter se seniority and promotion, the decision of the Apex Court in Union of India and others Vrs. N.R. Parmar and others (2012) 13 SCC 340 is to apply, which has been overruled in K. Meghachandra Singh and in view of the law laid down by the Constitution Bench in the case of Mervyn Coutindo and others Vrs. Collector of Customs, Bombay and others (1966) 3 SCR 600 and M. Subba Reddy, the decision in K. Meghachandra Singh is not a good law to be followed and with such a conclusion, the matter has been referred to a larger Bench by the Apex Court in Hariharan and others Vrs. Harsh Vardhan Singh Rao and others 2022 SCC Online SC 1717. With the above contention, Mr. Mohanty, learned Senior Advocate concluded that the petitioners, who are the promotees, were to be placed above the direct recruits in view of the binding decision in Mervyn Coutindo and also in M. Subba Reddy, which were not placed for consideration before the Bench, which decided the case in K. Meghachandra Singh. The aforesaid argument is adopted by Mr. N.K. Mohanty, learned counsel for the other set of petitioners. 7. On the contrary, Mr. Tripathy, learned AGA for the State submits that the resolution of the G.A.&P.G. Department is according to the Rules and in conformity with the decision of K. Meghachandra Singh. It is further submitted that Rule 14 of the OFS Rules has not been challenged by the petitioners and the same stipulates that the promotees are to be placed above the direct recruits, if appointed in a single calendar year and hence, the petitioners herein having been appointed in the month of Page 6 of 18 January, 2021 cannot claim seniority above the direct recruits, who received appointments in 2020. 8. Mr. Mishra, learned Senior Advocate; Mr. Das and Mr. Deo, learned counsels for the interveners supported the contention of Mr. Tripathy, learned AGA for the State to submit that the common cadre and disposition list have been prepared as per the decision in K. Meghachandra Singh and that apart, the petitioners are junior to the direct recruits having not been appointed in a single calendar year. As per the Rule 14 of the OFS Rules, as further contended, any such inter se seniority among the promotees and direct recruits shall be determined from the dates of appointment not the year of recruitment. It is contended that in N.R. Parmar, seniority between the direct recruits and promotees was to be determined on the basis of commencement of the recruitment year in which the vacancies have arisen and mere delay in joining would not affect the seniority but the said decision was overruled in K. Meghachandra Singh and in so far as the direct recruits are concerned, they were recruited in respect of the vacancies of the year, 2017 and in the present case, the selection was held in the year 2018 by the OPSC, whereas, the petitioners received promotion and joined on 5th January, 2021, so therefore, considering the case from any angle, the petitioners are junior to the direct recruits. Referring to a decision in R.K. Mobisana Singh Vrs. Kh. Temba Singh and others (2008) 1 SCC 747, it is further submitted that period of adhoc promotion cannot be counted for seniority, which is also not permissible with a retrospective effect. One more decision in Vinod Giri Goswami & others Vrs. The State of Uttarakhand and others (Civil Appeal No.1606 of 2020 disposed of on 14th February, 2020) is cited. Referring to a decision in Rashi Mani Mishra and others Vrs. State of Uttar Pradesh and others in Civil Appeal No.10788 of 2016 Page 7 of 18 dated 28th July, 2021, it is lastly submitted that the petitioners have been promoted on 5th January, 2021 on adhoc basis, which was regularized upon receiving confirmation from the OPSC by Notification dated 21st May, 2021 and in such circumstances, the seniority in the cadre can only be claimed with effect from 21st May, 2021 and not from 5th January 2021 and as in any case, the direct recruitees joined in the month of July, 2020 and hence, were rightly placed above them in the common cadre. 9. Admittedly, the petitioners are the promotee officers and given appointments against the vacancies in OFS-I (Junior Bench) cadre and it was preceded by a DPC held on 24th December, 2020 in respect of a vacancy position of 138 and the same was accomplished after relaxation of the provisions of the OFS Rules as a one-time measure reducing the experience period from six years to four years in exercise of power conferred under Rule 19 thereof and the same received the concurrence of the OPSC. The private opposite parties/interveners are the direct recruits, who joined in the year, 2020. The direct recruitment has taken place in 2020 with the selection commenced in 2018. In fact, the officers, who were recruited through Odisha Civil Services Examination, 2018 joined in OFS-I (Junior Branch) vide Finance Department Letter dated 27th July, 2020 and according to the State, it was in respect of the vacancies for the year 2017. The petitioners joined in OFS-I (Junior Branch) by Finance Department Notification dated 5th January, 2021, whereas, the direct recruits received appointment by Notification dated 27th July, 2020. The contention of the petitioners is that since the selection process is of the year, 2020 and even though it was delayed, which was the responsibility of the Government to ensure and at last, with the intervention of the Court and directions issued in W.P.(C) No. 32769 of 2020, the DPC was held in the month of December, Page 8 of 18 2020 and they finally joined on 5th January, 2021, hence, the inter se seniority shall have to be fixed with reference to the year 2020 and in view of Rule 14 of the OFS Rules, all en bloc are to be placed above the direct recruits. 10. For better appreciation, Rule 14 of the OFS Rules, which governs the field vis-(cid:224)-vis inter se seniority is reproduced hereinbelow: se inter “(1) The the persons appointed to the Service in a particular year shall be in the order in which their names appear in the selection list. seniority of se The inter seniority of (2) the persons appointed to Group-A (JB) of the service in a particular year shall be in the order in which their names appear the Commission. list prepared by the in (3) The persons appointed by promotion in Group-A (JB) of the service shall en bloc be senior to those appointed by direct recruitment in that year.” On a reading of the above provision, it is made to understand that the promotees in Group-A (JB) of the service shall be en masse senior to the direct recruits appointed in that year. If the petitioners were appointed in 2020 or at anytime of the year, in view of the Rule 14 of the OFS Rules, they would have been treated senior over the direct recruits. In the instant case, direct recruits joined in the month of July, 2020 and admittedly, the petitioners and other promotee officers received appointment in 2021 and on a plain application of Rule 14(3) of the Rules, the former cannot be considered senior to the latter, who received appointments in 2020. Page 9 of 18 11. The relevant paragraphs of the resolution dated 9th September, 2021 of the G.A.&P.G. Department, Government of Odisha are extracted below: “1. In the case of direct recruitment, the seniority of the candidates appointed out of a select list in a calendar year shall be arranged in the order in which their name appear in the merit list and shall be fixed in the said calendar year in which the appointment order is issued. 2. In the case of promotional recruitment, the seniority of the promoted officers/employees in a calendar year shall be arranged in the order in which their names appear in the select list and shall be fixed in the said calendar year in which the promotion order is issued. In the case where direct 3. recruitment, promotional recruitment and/or selection recruitment are prescribed in a rank, the seniority of the candidates appointed in a calendar year out of the select lists so prepared shall be arranged in the order in which their names appear in the respective merit list/select list and shall be fixed en bloc in the calendar year in which the appointment orders are issued and, in the sequence, prescribed in the relevant cadre Rules governing the cadre. XXX XXX XXX Further, the promotions already allowed after 7. 19.11.2019 i.e. the judgment in K. Meghachandra Singh & Ors vs Ningam Siro & Others case (publication of this Resolution) on the basis of the already prepared final gradation not be reviewed again since protected.” The above resolution is in consonance with the decision of the Apex Court in K. Meghachandra Singh. As per the resolution, the gradation list has been prepared with the petitioners being placed below the direct recruits. As per the said resolution, any such promotion, which has taken place after 19th November, 2019 on the basis of the final gradation list already prepared was held Page 10 of 18 to be not reviewed. In fact, the Apex Court in K. Meghachandra Singh overruled the law decided in N.R. Parmar and was directed to be applied prospectively. 12. In K. Meghachandra Singh, the Apex Court held that determination of the seniority between direct recruits vis-(cid:224)-vis the promotees is to be determined on the basis of the date of appointments not from the years of vacancies in which the recruitment was commenced with a conclusion that someone, who is not born in the cadre cannot be treated senior to the one, who joined earlier to him and thus, overruled the decision in N.R. Parmar. In so far as the contention of Mr. Mohanty, learned Senior Advocate demanding seniority for the petitioners by placing them in the calendar year, 2020 with a reference to the decision in Hariharan (supra), the following questions have been formulated by the Apex Court to be examined by a larger Bench and the same are as follows: “38. Hence, we pass the following order: i. We are of the considered view that the following questions need to be decided by a larger Bench of five Hon’ble Judges: in the decision a. Whether the case of K. Meghachandra can be said to be a binding precedent in the light of the law laid down by the Constitution Bench in the case of Mervyn Coutindo and the law laid down by a Coordinate Bench in the case of M. Subba Reddy? b. In absence of specific statutory rules to the contrary, when the ‘rotation of quota’ rule is applicable, whether the seniority of direct recruits who were recruited in the recruitment process which commenced in the relevant recruitment year but ended thereafter, can be fixed by following ‘rotation of quota’ by interspacing them with the direct recruits of the same recruitment year who were promoted earlier during the same year?” Page 11 of 18 13. It has been held in Hariharan that the Apex Court lost sight of the decision of a Co-ordinate Bench in M. Subba Reddy and that of the Constitution Bench in Mervyn Coutindo, hence, made the reference to the larger Bench with a conclusion that the decision in N.R. Parmar should prevail and not K. Meghachandra Singh. With such a reference, the Apex Court, in the said case, vacated the interim order and held that the seniority shall be fixed on the basis of the impugned judgment of the Patna High Court based on N.R. Parmar subject to the final outcome of the appeal or decision of the larger Bench. 14. In the instant case, the resolution of the G.A.&P.G. Department, Government of Odisha is rested on the law decided in K. Meghachandra Singh. Such decision is also applied prospectively without reopening of the promotion, which has already been given effect to or where the gradation list is prepared as according to the decision in N.R. Parmar. Admittedly, there is no challenge to Rule 14 of the OFS Rules. In fact, the challenge is not to the relevant rule, rather, the claim for inter se seniority by the petitioners is with reference to it and with a plea that the appointment shall have to be considered vis-(cid:224)-vis the year of vacancy or financial year in which the recruitment started and hence, to be placed above the direct recruits. However, having regard to the decision in Hariharan though a conclusion is reached at that the seniority should be fixed on the basis of the decision in N.R. Parmar (supra) but as an interim measure, it is held to be determined according to the impugned judgment. It has not been brought to the notice of the Court regarding the final decision of the larger Bench. 15. As far as the DPC is concerned, it has been held in the month of December, 2020. The selection process was commenced in 2020 in respect of vacancies and promotion to Page 12 of 18 OFS-I (Junior Branch). If the plea of the petitioners is accepted, the promotion shall have to be given effect to from the recruitment year, 2020 according to Rule 14 of the OFS Rules. However, the petitioners joined in 2021 and the recruitment though started in 2020, unless a decision to the contrary is delivered by the larger Bench disapproving the law laid down in K. Meghachandra Singh, such demand for promotion from an anterior date on the strength of the year of recruitment and vacancy or the financial year cannot stand since as per the resolution of the G.A.&P.G. Department dated 9th September, 2021, they received appointment not during the calendar year. If such selection and appointment had taken place in the year, 2020, the petitioners would have been senior to the direct recruits in view of Rule 14 of the OFS Rules, which having not taking place and such promotion on adhoc basis was with effect from 5th January, 2021, they cannot claim to be en bloc senior over the direct recruits. 16. The judgment in Hariharan discussed and relied on the cases that have shaped the jurisprudence vis-(cid:224)-vis seniority and recruitment in Government services. The decision in N.R. Parmar established that seniority between promotees and direct recruits should be determined based on the ‘rotation of quotas’ ensuring direct recruits interspaced with promotees from the same recruitment year. The decision in K. Meghachandra Singh overruled N.R. Parmar asserting that seniority should be based solely on the date of appointment, rather, than the rotational quota system. The Constitution Bench decision in Mervyn Coutindo upheld the rotational quota system emphasizing that it does not violate Article 16(1) of the Constitution of India, which guarantees equality of opportunity in public employment. M. Subba Reddy reinforced the principles laid out in Mervyn Page 13 of 18 Coutindo laying stress that service specific regulations must govern seniority determination. The Supreme Court in the said decision noted that K. Meghachandra Singh seemingly ignored the binding authority of Mervyn Coutindo and M. Subba Reddy, hence, potentially per incuriam, thereby, necessitating a referral to a larger Bench for clarification. In Hariharan, the Apex Court affirmed that the recruitment year is to be understood as the financial year contrary to the appellants’ contention therein of a calendar year basis. In the said decision, the focus was on the interpretation and application of the rotational quota system as delineated in various OMs of the Ministry concerned. The Apex Court also emphasized the importance of maintaining integrity of the rotational quota system to ensure equitable seniority positioning between promotees and direct recruits. Ultimately, it was concluded that due to the conflicting precedents and the potential oversight in K. Meghachandra Singh, a larger Bench’s intervention was imperative to uphold the rotational quota system’s principles but highlighted the necessity of balancing legal correctness with functional departmental efficacy. In Mervyn Coutindo, the plea of inequality in violation of Article 16(1) of the Constitution of India was raised but it was held that there is no inherent vice in the principle of fixing seniority by rotation in a case when a service is composed in fixed proportion of direct recruits and promotees and any anomalies that may have resulted on account of insufficient recruitment of direct recruits in the past could not be a ground for striking down the system itself and distinguished the decision in T. Devadasan Vrs. Union of India and others (1964) 4 S.C.R.680. 17. In the case at hand, Rule 14 of the OFS Rules is applicable vis-(cid:224)-vis inter se seniority and as per Sub-rule (3) thereof, the persons appointed by promotion in Group-A (JB) of the service Page 14 of 18 shall en bloc be senior to all, who are appointed by direct recruitment in that year. Admittedly, the challenge is not to the rules. At the cost of repetition, it is reminded that the resolution dated 9th September, 2021 of the G.A.&P.G. Department, Government of Odisha stipulates that In the case where direct and promotional recruitment and/or selection recruitment are prescribed in a rank, the seniority of the candidates appointed in a calendar year out of the select lists, so prepared, shall be arranged in the order in which their names appear in the respective merit list/select list and shall be fixed en bloc in the calendar year, in which the appointment orders are issued and in the sequence prescribed in the relevant cadre Rules governing the cadre with a rider that the promotions already allowed after 19th November, 2019 i.e. the judgment in K. Meghachandra Singh case on the basis of the already prepared final gradation list not to be reviewed since saved. In the case of the petitioners, there is no provision of rotational quota system in the Rules and the inter se seniority shall be followed by Rule 14 of the OFS Rules read with resolution of the G.A.&P.G. Department, Government of Odisha. In Hariharan, the issue was that in absence of specific statutory rules to the contrary, when the rotation of quota rule is applicable, whether, the seniority of direct recruits, who were recruited in the selection process, which commenced in the relevant recruitment year but ended thereafter, can be fixed by interspacing them with the other direct recruits of the same recruitment year, who were promoted earlier during the same year. However, as earlier stated, the placement of the recruits as per the Rules would be that the promotees to be over the direct recruitees provided the selections are concluded in a calendar year. Whether, it should be a financial year or calendar year while considering the selections and seniority, the same is to be examined by the larger Bench in view of the reference by Apex Page 15 of 18 Court in Hariharan. But, the Rules in place, at present, stipulates that it shall be the calendar year and in case the promotees join later to the direct recruits during the calendar, they shall be senior en bloc. Irrespective of absence of the rotational quota system, the question could be, whether, it should be considered a recruitment of a financial year instead, for placing the promotees over the direct recruits, which can be set at rest with the decision of the Apex Court by the larger Bench. As on date, the position is that the seniority in respect of the petitioners and direct recruits is governed by the Rules and it is for an en bloc seniority of the promotees subject to a selection and appointment during a calendar year unless clarified by the Constitution Bench dealing with the reference to mean and relate to the recruitment year or for that matter, the financial year. It is not a case of having held the seniority as per the decision in N.R. Parmar and the rules and resolution is entirely based on the decision in K. Meghachandra Singh. After the above discussions and in absence any challenge to the Rules, the dispute now lies and confined to, whether, the selection should be treated as of the recruitment year, 2020 though the appointment of the petitioners has taken place in 2021. To reiterate, answer to the above question would depend on the decision by the larger Bench in Hariharan case. As on today, the seniority is to be considered with reference to the calendar year as per the Rules and resolution dated 9th September, 2021 of the G.A.&P.G. Department, Government of Odisha, which stipulate selection and seniority amongst promotees and direct recruits held in a particular calendar year. Since, the petitioners joined in 2021, as promotees have been placed below the direct recruits, who received appointments in 2020 in view of the Rules and resolution of the Govt. in terms of the decision in K. Meghachandra Singh. Page 16 of 18 18. Laches on the part of the Government is alleged by the petitioners. The order of this Court in W.P.(C) No. 32769 of 2020 directed the State to convene the DPC. Thereafter, the DPC was held on 24th December, 2020 after obtaining the necessary clearances from the Vigilance and upon receiving the PARs. The exercise has been undertaken with the relaxation of residency as per the OFS Rules and at last, it ended with the DPC being conducted on 24th December, 2020. Though, delay has taken place and the DPC was convened after the directions issued in W.P.(C) No. 32769 of 2020, it was accomplished by the end of December, 2020. The response of the State is that there is no laches while considering the promotion of the officers of the OT&AS cadre to the post of OFS-I (Junior Branch). The order dated 1st December, 2020 in W.P.(C) No. 32769 of 2020 has been complied with, as per which, the DPC was to be convened by 31st December, 2020 and it was held on 24th December, 2020 and shortly thereafter, promotion was given to the petitioners by Notification dated 5th January, 2021. No malafide or any kind of mischief is alleged by the petitioners in regard to the promotion of the officers of OT&AS except attributing delay having been taken place on account of the laches of the Government. Without any materials on record to prima facie prove and establish that the laches from the side of the Government was deliberate in order to deny promotion to the petitioners, it cannot be said that the delay was intentional with a purpose to benefit the direct recruits. So, therefore, the Court has to reach at a conclusion that in absence of any such malafide alleged and proved against the Government and the promotion having taken place according to the Rules and the petitioners being appointed and joined in 2021, in view of of Rule 14 of the Rules being applicable for a calendar year, they have been treated as junior to the direct recruits. It can, however, be said that the inter se seniority between the Page 17 of 18 promotees and direct recruits would be dependant on a decision in Hariharan case upon disposal of the reference as the view in K. Meghachandra Singh has been openly dissented from with a conclusion that the calendar year should mean and appertain to a recruitment year. At this juncture, the Court, after having given anxious consideration to all the grounds and defence put forth, reaches at a conclusion that the inter se seniority between the promotees and direct recruits should be maintained as an interim measure till a decision in reference by the larger Bench is arrived. In other words, the seniority of the direct recruits on the strength of the rules and resolution based on the decision in K. Meghachandra Singh, in the ultimate view of the Court, should be made subject to the decision to arrive in Hariharan. 19. Hence, it is ordered. 20.
Decision
In the result, the writ petitions stand disposed of with the conclusion and for the reasons discussed herein above. Balaram (R.K. Pattanaik) Judge Signature Not Verified Digitally Signed Signed by: BALARAM BEHERA Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 05-Dec-2024 19:07:20 Page 18 of 18