JUSTICE v. NARASINGH DATE OF FINAL HEARING
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) NO.9371 of 2012 (In the matter of an application under Articles 226 & 227 of the Constitution of India). Petitioners …. …. 1) Deba Prasad Mangaraj 2) Smt. B. Sujata 3) Rajakishore Dash -versus- 1) State of Odisha 2) The Housing Commissioner-cum- Secretary , Odisha State Housing Board 3) Kartik Ch. Nanda 4) Sandhyarani Devi 5) Tusharkanti Mohanty 6) Dusmant Ku. Biswal 7) Debendra Patra 8) Minaketan Sahoo 9) Bhagirathi Acharya 10)Nalinikant Rath 11)Sushant Kumar Pradhan 12)Babaji Ch. Pratihari 13)Raghunath Mishra 14)Adwaita Kumar Mohanty For Petitioners For Opposite Parties : : Opposite Parties Mr. B.K. Sharma, Advocate Mr. S.N. Pattnaik, AGA Mr. D.N. Mohapatra, Adv. (O.P. Nos.1 & 2) Mr. P.K. Mishra, Adv. (O.P. Nos.3 to 9, 12 & 14) Mr. S. Udagata, Adv. (O.P. No.10) W.P.(C) Nos.9371, 8720 & 8731 of 2012 Page 1 of 14 W.P.(C) NO.8720 of 2012 (In the matter of an application under Articles 226 & 227 of the Constitution of India). Kanhu Charan Sethi …. Petitioner -versus- 1) State of Odisha 2) The Housing Commissioner-cum- Secretary , Odisha State Housing Board 3) Upendra Bag 4) Nilamani Sethi …. Opposite Parties For Petitioner :
Legal Reasoning
Mr. B.K. Sharma, Advocate For Opposite Parties : Mr. S.N. Pattnaik, AGA Mr. D.N. Mohapatra, Adv. (O.P. Nos.1 & 2) W.P.(C) NO.8731 of 2012 (In the matter of an application under Articles 226 & 227 of the Constitution of India). Baula Singh …. Petitioner -versus- 1) State of Odisha 2) The Housing Commissioner-cum- …. Secretary, Odisha State Housing Board 3) Gobardhan Kisan 4) Sanatan Hembram 5) Mangal Marandi W.P.(C) Nos.9371, 8720 & 8731 of 2012 Opposite Parties Page 2 of 14 For Petitioner For Opposite Parties : : Mr. B. K. Sharma, Advocate Mr. S.N. Pattnaik, AGA Mr. D.N. Mohapatra, Adv. (O.P. Nos.1 & 2) CORAM: JUSTICE V. NARASINGH DATE OF FINAL HEARING :18.10.2023 DATE OF JUDGMENT : 15.04.2024 V. Narasingh, J. The principal issue “fixation of basis of inter se seniority amongst Jr. Assistant of Odisha State Housing Board (OSHB)” to be decided in these W.P.(C)s being identical, all the matters were
Decision
heard together and disposed of by this common judgment on the consent of the Parties. The Writ Petition bearing W.P.(C) No. 9371 of 2012 is treated as the lead case, as agreed upon by the Parties, during the course of hearing. Heard learned counsel for the Petitioners, Mr. B.K. Sharma and Mr. S.N. Pattnaik, learned Additional Government Advocate and Mr. D.N. Mohapatra, learned counsel for the Opposite Party Nos.1 & 2 respectively, Mr. P.K. Mishra, learned Counsel for Opposite Party Nos.3 to 9, 12 & 14 and Mr. S. Udgata, learned counsel for the Opposite Party No.10. W.P.(C) Nos.9371, 8720 & 8731 of 2012 Page 3 of 14 1. Jurisdiction of this Court under Article 226 and 227 of the Constitution of India has been invoked assailing the final gradation list dtd. 26.04.2012 at Annexure-9 (Annexure-6 in the connected Writ Petitions i.e. W.P.(C) Nos.8720 and 8731 of 2012) so far as it relates to the placement of the Petitioners vis-a-vis the Opp. Party Nos.3 to 14 in the rank of Junior Assistant and to issue further direction to the Opp. Party Nos.1 and 2 (State of Odisha represented by Commissioner-cum-Secretary, Housing & Urban Development Department, Bhubaneswar and The Housing Commissioner-cum- Secretary, Odisha State Housing Board, respectively) to restore the position of the Petitioners in the final gradation list as per the proceeding of the selection committee meeting dtd. 05.12.1994 at Anenxure-1 (same in all the connected Writ Petitions i.e. W.P.(C) Nos.8720 and 8731 of 2012). 2. For convenience of ready reference the prayer in the Writ Petition is extracted hereunder:- “………….. issue Rule NISI calling upon the opp. Parties as to why the final gradation list dtd.26.04.20 12 so far as the position of the petitioners and opp. Party No.3 to 14 are concerned, shall not be quashed and set aside and if the opp. Parties fail to show cause or show insufficient cause make the said Rule NISI absolute and further be pleased to issue writ of certiorari in line with the aforesaid Rule NISI quashing the final gradation list dtd.26.04.2012 to the extent mentioned herein above. And further be pleased to direct the Opp. Party to restore the position of the petitioners in the final gradation list as per the proceeding of the selection committee dtd.2.12.1994 under Annexure-1. xxx xxx xxx” W.P.(C) Nos.9371, 8720 & 8731 of 2012 Page 4 of 14 Petitioners’ Contention 3. The Commissioner-cum-Secretary of the Housing Board requested the Director of Employment Exchange, Orissa to sponsor candidates for the post of Junior Assistants vide letter dtd. 07.09.1992. The name of the Petitioners were sponsored along with others and a selection test was held by the Board selecting the candidates for the post of Junior Assistants in terms of their merits. 4. Annexure-1 to the Writ Petition is the select list prepared in terms of the merit category-wise i.e. S.C., S.T. and U.R. basing upon the written test, personal interview and career marks. The name of the Petitioners along with private Opp. Parties are all reflected under the U.R. category. The Petitioners as well as Opp. Parties were appointed in terms of the aforesaid selection list and they joined in the post of Junior Assistants on different dates. During their continuance as Junior Assistants, they were terminated from their services as per the office order dtd. 05.07.1996 on the plea that they were appointed temporarily for a period of one year and on completion of the aforesaid tenure of one year, their services were terminated. 5. Being aggrieved with such action, the Petitioners and others filed OJC No.1421/1996 challenging the order of termination which was disposed of by this Hon’ble Court on 04.03.2009 directing the Opp. Parties to regularize the services of the Petitioners within a period of six months from the date of communication of the order and to consider their claim for consequential benefits. W.P.(C) Nos.9371, 8720 & 8731 of 2012 Page 5 of 14 6. In terms of the aforesaid decision of this Court, the Board in their meeting dtd. 24.10.2009 recommended to Government for regularization of services of 34 Jr. Assistants including the case of the Petitioners. The Government accorded approval for regularization of the 34 numbers of Junior Assistants including the Petitioners as per their communication dtd. 16.06.2010. Thereafter, the Board issued office order on 28.06.2010 regularizing the service of all the 34 employees including the Petitioners as Junior Assistant from the date of their joining. 7. While the matter stood thus, a provisional gradation list in the existing cadre of Jr. Assistant was circulated on 09.08.2011 at Annexure-5 indicating the name of present Petitioners at Sl. No.30, 31 and 32 respectively. Exercising the liberty granted in the said notice dtd. 09.08.2011 at Annexure-5, the Petitioners submitted their objection relating to their placement in the provisional gradation list. 8. For considering objections relating to the provisional gradation list, a committee was constituted and held its deliberation on 23.09.2011 and 24.10.2011 at Annexure-8 for the purpose of finalizing the gradation list of Jr. Assistants of Orissa State Housing Board wherein a decision was taken that the gradation list is required to be prepared as per the position in the merit list. For convenience of ready reference, relevant extract of Annexure-8 is culled out hereunder; “xxx xxx xxx “……….The committee members were of the opinion that the final gradation list may be prepared as per the original merit list. xxx xxx xxx” W.P.(C) Nos.9371, 8720 & 8731 of 2012 Page 6 of 14 9. Despite such decision to adhere to the inter se merit as the sole criteria for fixing seniority, the Opp. Party No.2 (The Housing Commissioner-cum-Secretary, Odisha State Housing Board) published the final gradation list on 26.04.2012 at Annexure-9 reflecting the name of the Petitioners at Sl. No.39, 51 and 32 respectively below the Opposite Party Nos.3 to 14 (at Serial Nos.12-14, 16-20, 22, 25-26 and 24 respectively.) Counter of State-Opposite Parties 10. The Opp. Party No.2, Orissa State Housing Board represented through its Secretary filed a counter wherein while admitting the other facts with respect to engagement and regularization of service of these Petitioners along with others as Junior Assistants, they clarified that Annexure-1 reflects the list of selected candidate but does not reveal the marks secured in the recruitment test which forms the basis of preparation of select list whereas the committee recommended the names block-wise of S.C., S.T. and general and drew a select list. Since the selection file is not traceable, it is difficult to ascertain the numbers secured by the selected candidate in the recruitment test for which the Housing Board decided to seek opinion in this regard from the then learned Advocate General, Odisha, Cuttack. 10-A. Thereafter, on the basis of the views expressed by the learned Advocate General, they decided to prepare the final gradation list with reference to the age, date of birth of the selected candidate in order to set at rest continuing discontentment among employees. W.P.(C) Nos.9371, 8720 & 8731 of 2012 Page 7 of 14 To substantiate the said procedure to be just and proper, they relied upon the principle decided by the Apex Court in the case of Bimlesh Tanwar vs. State of Haryana and others reported in AIR 2003 SC 2000. On one hand the hearing committee decided to give emphasis on the merit list for preparation of the gradation list and on the other hand in absence of any proper document to decide the inter se merit between the selected candidates, it was thought appropriate to adopt the views of learned Advocate General which was based upon the principle decided by the Apex Court in the case of D.P. Das vs. Union of India and Others reported in AIR 2011 SC 2947. 10-B. It is further contended by the Board that to decide the inter se seniority the date of joining of different candidates was also not taken into consideration as all of them were directed to join within a stipulated time. Accordingly, the Board adhered to the rational principle of age criteria to avoid any conflict in the matter. 10-C. It is contended by the Petitioners that they were placed at Sl. Nos.1, 2 and 3 respectively in the merit list prepared on 05.12.1994 at Annexure-1, for the purpose of gradation list in general category on the basis of written test, personal interview and career marks in order of merit. Since the Authority-Opposite Party Nos.1 and 2 decided to adhere to the merit position as the sole criteria for fixing the inter se seniority, the decision in the final gradation list, Annexure-9, reflecting the position of the Petitioners below the Opp. Party Nos.3 to 14, as noted above, is ex-facie fallacious. W.P.(C) Nos.9371, 8720 & 8731 of 2012 Page 8 of 14 Counter of Opposite Party Nos.3 to 9 10-D. Counter affidavit has been filed on behalf of Opp. Party Nos.3 to 9 disputing the submissions of the Petitioners mainly on the ground that the selection list dtd. 05.12.1994 at Annexure-1 is not the document which can be treated as a common merit list so as to form the basis for deciding the inter se seniority. Neither the said list indicates the number secured by the individual candidates nor the inter se merit position of different categories are reflected. As such, it is not possible to treat it as a common merit list which can be utilized for the purpose of deciding inter se seniority among the employees. It is their further stand on the basis of RTI information that selection file is not readily traceable and therefore, the assertion of the Petitioners to accept the Annexure-1 as the sole basis for deciding inter-se seniority as reflected as per the minute of meeting at Annexure-8 is untenable. Stand of Opposite Party No.10 10-E. An independent counter affidavit has been filed by the Opposite Party No.10 reiterating the stand taken by the Opposite Party No.2 and Opposite Party Nos.3 to 9. He has also emphasized upon the principle adopted by the Board relying upon the opinion of the learned Advocate General at Annexure-B/2. It is thus emphasized referring to the decision of the Apex Court in the case of D.P. Das (supra) which was also relied upon by the Learned Advocate General in his opinion, to give primacy to age and to treat it as a rational factor to determine seniority, when the appointments are made in terms of the same order without preparing merit list and in absence of any rule fixing the criteria to determine inter se seniority. W.P.(C) Nos.9371, 8720 & 8731 of 2012 Page 9 of 14 Finding 11. There is no dispute that seniority is of seminal importance in service career of employees and the determination of seniority inter se must be based on such principle which is just and fair. But the principle of adopting age as a factor to determine the seniority can only come into play if there is no guideline deciding inter se seniority. Neither the appointments were made on the same date nor the existence of the merit list Annexure-1 drawn category wise is disputed in the present case. 12. Since it is a dispute between the same category of employees that is UR category therefore, the accepted and undisputed inter se merit cannot be brushed aside. 13. This court therefore respectfully disagrees with the opinion tendered by Learned Advocate General in the facts of the present case on the basis of which inter se seniority has been fixed and is reflected in the impugned gradation list at Annexure-9 relating to Junior Assistants (General category). 14. Law is well settled that the seniority inter se between two employees has to be determined strictly taking into consideration the manner in which the rule governing the field of seniority of such employee is in force. In case no such rule is available to decide the same, then the inter se seniority should be fixed only on the basis of merit. Where the merit between two candidates is on the equal scale, then for fixation of seniority, age should be the criteria. It has to be borne in mind that admittedly the Board has misplaced the recruitment file. However, the category wise inter se merit position at Annexure-1 prepared way back in the year 1994 is W.P.(C) Nos.9371, 8720 & 8731 of 2012 Page 10 of 14 not in dispute. In fact is apt to note that appointments were undisputedly made consequential to Annexure-1. The inter se position in the list at Annexure-1, category wise being not in dispute by the respective parties it is no more open for the Opposite Parties i.e. both for the Board as well as the employees to raise any dispute for fixation of the interse seniority on the basis of merit position particularly when the said select list indicates that the names have been arranged in terms of their merit on the basis of written test, personal interview, career marks in order of merit (Category-wise) for the purpose of preparation of gradation list. 15. Relevant extracts of Annexure-1 is culled out hereunder for convenience of ready reference:- “PROCEEDINGS OF THE SELECTION COMMITTEE FOR THE POST OF JUNIOR ASSISTANTS. Present: Sri K.M. Rout, OAS (S) ……… Secretary 1. 2. Dr. R.N. Pattnaik Chief Accounts Officer……….Member Shri K.C. Patra, OAS 3. Land-cum-Admn. Officer……… Member The following candidates have been recommended for the post of Junior Assistants based on written Test, Personal Interview, Career Marks in order of merit (category-wise) and for the purpose of gradation list; xxx xxx xxx” 16. In the present case, this Court finds that Annexure-1 is an undisputed document. It is nothing but a merit list prepared on the W.P.(C) Nos.9371, 8720 & 8731 of 2012 Page 11 of 14 basis of written test, personal interview, career marks in order of merit (Category-wise) and for the purpose of gradation list, as noted. Therefore, the only logical deduction is that name of the Petitioners and Opposite Party Nos.3 to 14 of general category has been arranged on the basis of their respective merit. And the same is a rational basis for determining seniority eliminating arbitrariness. 17. In this context, it is apt to refer to the ratio decided by Apex court in SLP(Civil) No(s).6572 OF 2014) in the matter of Sudhir Kumar Atrey Versus Union Of India &Ors.2021 SCC OnLine SC 971, decided on 26-10-2021; “17. We are also of the view that in the matter of adjudging seniority of the candidates selected in one and the same selection, placement in the order of merit can be adopted as a principle for determination of seniority but where the selections are held separately by different recruiting authorities, the principle of initial date of appointment/continuous officiation may be the valid principle to be considered for adjudging inter se seniority of the officers in the absence of any rule or guidelines in determining seniority to the contrary.” (at page 359-360) 18. In the case hand, although there does not exist any statutory rule but the practice of determining inter se seniority on the basis of the merit list has to be on the basis of Annexure-1, an undisputed document for almost 16 years (the Writ Petition having been filed in 2012) . In Chairman, PuriGramya Bank &Anr. vs. Ananda Chandra Das &Ors. [1994(6) SCC 301] Apex court held: "………… It is settled law that if more than one are selected, the seniority is as per ranking of the direct W.P.(C) Nos.9371, 8720 & 8731 of 2012 Page 12 of 14 recruits subject to the adjustment of the candidates selected on applying the rule of reservation and the roster. By mere fortuitous chance of reporting to duty earlier would not alter the ranking given by the Selection Board and the arranged one as per roster. The High Court is, therefore, wholly wrong in its conclusion that the seniority shall be determined on the basis of the joining reports given by the candidates selected for appointment by direct recruitment and length of service on its basis. xxx xxx xxx” 19. In view of the foregoing discussion, this Court is of the considered view that the decision taken by Board to accept age of the employees as the determining factor for deciding the seniority inter se is not sustainable in the eye of law in the face of Annexure-1. And, accordingly, gradation list at Annexure-9 (Annexure-6 in the connected Writ Petitions i.e. W.P.(C) Nos.8720 and 8731 of 2012) is quashed. The Opposite Party Nos.1 and 2 are accordingly directed to recast the gradation list of Junior Assistants, category wise, taking into consideration their position so reflected in the select list at Annexure-1, with consequential benefits. 20. It is clarified that any financial benefit which may have accrued till date (date of judgment 15.04.2024), to any employee irrespective of category, on the basis of the impugned Annexure-9 (Annexure-6 in the connected Writ Petitions i.e. W.P.(C) Nos.8720 and 8731 of 2012) shall not be recovered. 21. The exercise of preparation of gradation list, as above, shall be completed within a period of four months from the date of W.P.(C) Nos.9371, 8720 & 8731 of 2012 Page 13 of 14 production of the copy of the judgment or communication, whichever is earlier. 22. Accordingly, the Writ Petitions stand disposed of. No costs. ( V.Narasingh ) Judge Orissa High Court, Cuttack, Dated the 15th of April, 2024/Santoshi Signature Not Verified Digitally Signed Signed by: SANTOSHI LENKA Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa Date: 25-Apr-2024 17:17:27 W.P.(C) Nos.9371, 8720 & 8731 of 2012 Page 14 of 14