Patna High Court
Case Details
ORISSA HIGH COURT : CUTTACK W.A. No.658 of 2023 and W.A. No.744 of 2023 In the matter of an Appeals under Article 4 of the Odisha High Court Order, 1948 read with Clause 10 of the Letters Patent constituting the High Court of Judicature at Patna and Rule 6 of Chapter-III of the Rules of the High Court of Odisha, 1948 --------------- W.A. No.658 of 2023 1. State of Odisha represented through Principal Secretary, Commerce and Transport Department, Lok Seva Bhawan, Bhubaneswar 3 751 001, District: Khordha. The Transport Commissioner-cum-Chairman, State Transport Authority, Odisha, Cuttack. The Financial Advisor-cum-Additional Secretary to Govt. Commerce and Transport (Transport) Department, Odisha, Bhubaneswar Appellants … 2. 3. -VERSUS- Sreepati Ranjan Dash, son of Late Arjun Dash, Permanent Resident of Malatipatpur, P.O./P.S.: Chandanpur, W.A. Nos.658 & 744 of 2023 Page 1 of 56 District: Puri at present residing At: Quarter No. E-5/29, Revenue Colony, Tulasipur, working as Assistant Section Officer, Office of Transport Commissioner, State Transport Authority, Odisha, Cuttack … AND W.A. No.744 of 2023 1. State of Odisha Respondent represented through Principal Secretary, Commerce and Transport Department, Lok Seva Bhawan, Bhubaneswar 3 751 001, District: Khordha. The Transport Commissioner-cum-Chairman, State Transport Authority, Odisha, Cuttack. The Financial Advisor-cum-Additional Secretary to Govt. Commerce and Transport (Transport) Department, Odisha, Bhubaneswar Appellants … -VERSUS- 2. 3. Aditya Bhanjan Sahoo, son of Late Artabhajan Sahoo, At/P.O.: Ardei, via: Tiran, P.S.: Tirtol, District: Jagatsinghpur at present working as Assistant Section Officer, Office of Transport Commissioner, State Transport Authority, Odisha, Cuttack … Respondent Counsel appeared for the parties in both the writ appeals: W.A. Nos.658 & 744 of 2023 Page 2 of 56 For the Appellants : Mr. Pravakar Behera, Standing Counsel (Transport) For the Respondents : Mr. Biswabihari Mohanty, Advocate P R E S E N T: THE HONOURABLE ACTING CHIEF JUSTICE DR. B.R. SARANGI THE HONOURABLE MR. JUSTICE MURAHARI SRI RAMAN AND Date of Hearing : 30.10.2023 :: Date of Judgment : 07.11.2023 JUDGMENT MURAHARI SRI RAMAN, J.— THE CHALLENGE: W.A. No.658 of 2023 This Appeal at the behest of the Commerce and Transport Department, Government of Odisha is directed against Judgment dated 24.02.2023 of the learned Single Judge of this Court passed in W.P.(C) No.35645 of 2021 (Sreepati Ranjan Dash) invoking Article 226/227 of the Constitution of India, whereby it has been concluded as follows: <29. In view of the aforesaid analysis of fact as well as law and upon a conspectus of the materials placed before this Court and upon hearing the learned counsels appearing for the respective parties, this Court is of the considered view that the impugned order under Annexure-9 is unsustainable in law and the same is hereby quashed. W.A. Nos.658 & 744 of 2023 Page 3 of 56 State Further, the opposite party No.2, i.e., the Transport Commissioner-cum-Chairman, Transport Authority, Odisha is directed to immediately convene the Departmental Promotion Committee and consider the case of the petitioner along with two other persons found eligible by him vide his Letter dated light of 03.09.2021 under Annexure-7 executive instruction dated 17.11.1981 and take a decision within a period of four weeks from the date of production of the copy of this judgment. the in It is further directed that in the event, the opposite parties are planning to fill up the vacant post of Assistant Regional Transport Officer in view of the new Rules, 2021, which was notified on 03.01.2022, they are free to do so, however, three posts of Assistant Regional Transport Officer as has the been recommended under Annexure-7 by Transport Commissioner shall not be filled up till a final decision is taken by the opposite party No.2 as has been directed hereinabove. In the event, any advertisement has been published to fill up such posts, suitable modification be made in the said advertisement by way of corrigendum forthwith.= 1.1. W.A. No.744 of 2023 The learned Single Judge disposed of W.P.(C) No. 41042 of 2021 (Aditya Bhanjan Sahoo), has passed the following Order on 28.02.2023, assailing which the appellants-authorities have filed this writ appeal: W.A. Nos.658 & 744 of 2023 Page 4 of 56 <In view of Judgment passed in W.P.(C) No. 35645 of 2021 dated 24.02.2023, the present writ petition is disposed of accordingly.= 1.2. The Appellants sought intervention of Division Bench of this Court by way of the present intra-Court appeal by setting aside the aforesaid Judgment dated 24.02.2023 of the learned Single Judge on the ground that the observation made supra runs counter to what has been spelt out vide Judgment dated 20.05.2022 of the Hon’ble Supreme Court of India rendered in the matters of State of Himachal Pradesh & Others Vrs. Raj Kumar & Others, (2023) 3 SCC 773 = (2022) 15 SCR 847, wherein the notion that <the vacancies which occurred prior to the amended rules would be governed by the old rules and not by the amended rules= has been held to be incorrect proposition of law governing services under the Union and the States under Part-XIV of the Constitution. THE PLEADINGS: 2. Sreepati Ranjan Dash, the respondent (the petitioner in the writ petition), was initially appointed under the Odisha Civil Services (Rehabilitation Assistance) Rules, 1990 in the post of Junior Assistant in the Office of the Transport Commissioner-cum-Chairman, State Transport Authority (appellant No.2) vide appointment Letter dated 16.03.2013. Pursuant to the said appointment letter, the Respondent had joined in duty on 18.03.2013. W.A. Nos.658 & 744 of 2023 Page 5 of 56 2.1. While continuing as such in the said Office of the appellant No.2, the respondent was found suitable and was otherwise eligible for promotion, as per the extant Rules in force, by the Departmental Promotion Committee held for the purpose and accordingly, the petitioner was given promotion to the post of Senior Assistant vide office order dated 10.06.2016. Pursuant to the promotion order, the respondent joined in the promotional post of Senior Assistant on 13.06.2016. Upon joining against the new post, on promotion, the pay scale of the respondent was fixed at Rs.9,300/- - Rs.34,800/- with Grade Pay of Rs.4,200/- with effect from 13.06.2016 vide Office Order dated 20.07.2016. 2.2. Similarly, Aditya Bhanjan Sahoo was appointed in the post of Junior Assistant in the Office of Transport Commissioner-cum-Chairman, State Transport Authority, Odisha, Cuttack vide Letter dated 16.03.2013 under the provisions of the Odisha Civil Services (Rehabilitation Assistance) Rules, 1990, pursuant to which he joined in the said post on 18.03.2013. While continuing as such upon being found suitable for promotion in the Departmental Promotion Committee Meeting, he was promoted to the post of Senior Assistant vide Officer Order dated 10.06.2016 and joined in said post on 13.06.2016. He was extended pay fixed at Rs.9,300/- - 34,800/- with Grade Pay Rs.4,200/- with W.A. Nos.658 & 744 of 2023 Page 6 of 56 effect from 13.06.2016 vide Office Order dated 20.07.2016. 2.3. The Government of Odisha in General Administration and Public Grievance Department restructured the Odisha Ministerial Services (Assistants and Section Officers) cadre in the Offices of the Heads of Departments and the Odisha Heads of Departments Establishment Officers cadre by Resolution bearing No. 2372-GAD-ASSO-0005/2017/Gen., dated 24.01.2019 (vide Extraordinary issue of the Odisha Gazette No. 228, dated 30.01.2019). As per the said Resolution, dated 24.01.2019, the post of Senior Assistant has been re- designated as Assistant Section Officer (<ASO=, for short) with the existing scale of pay, i.e., Level-09 in pay matrix in terms of the Odisha Revised Scale of Pay Rules, 2017. 2.4. Accordingly, the respondents-Senior Assistants, being re-designated as Assistant Section Officers with effect from 24.01.2019 vide Office Order No. 22874IX- 252/2019/TC, dated 16.02.2019 issued by the Transport Commissioner, Odisha, continued to discharge their duties on regular basis. Pertinent here to refer to Letter dated 19.06.2010 (Annexure-10 forming part of W.P.(C) No.41042 of 2021) which is to the following effect: <Government of Odisha Home Department W.A. Nos.658 & 744 of 2023 Page 7 of 56 No. CC-G-32/104 26889 Dated, Bhubaneswar, 19.06.2010 From
Legal Reasoning
No.658 of 2023 having approached this Court in W.P.(C) No.19531 of 2021, vide Order dated 13.07.2021 the authority was directed to consider the representation. W.A. Nos.658 & 744 of 2023 Page 15 of 56 The Government of Odisha in Commerce and Transport (Transport) Department rejected the representation by Order dated 11.10.2021. Relevant portion of the said Order reads thus: <Now, therefore, in obedience to the aforesaid orders of Hon9ble High Court Goverment have considered the representation of Sri Sreepati Ranjan Dash Assistant Section Officer as at Annexure-7 to the W.P.(C) No. 19531/2021. The facts regarding the points mentioned in his representation are detailed below: 1. 2. 3. 4. It is claimed by the applicant that the post of Assistant Regional Transport Officer is his cadre post. This is not a fact. That the Assistant RTO post was a selection and ex-cadre post in the past. That there is sufficient promotional scope in the cadre of the applicant (Assistant Section Officer) like Section Officer, Establishment officer, Administrative Officer and Senior Administrative Officer As such he will avail the same whenever there is vacancy and he is eligible for same. That he cannot claim for holding the past of Assistant Regional Transport Officer which is not in the promotional hierarchy of his cadre and the the post of Assistant Regional promotion Transport Officer is made by way of selection. to The post of Assistant Regional Transport Officer which is an Ex-cadre post was being filled up by way of selection from among different cadres such as Sr. Assts. of Transport Department, Sr. Asst. of Office of Transport Commissioner and other posts in STA and RTOs in pursuance to the instructions W.A. Nos.658 & 744 of 2023 Page 16 of 56 5. 6. issued vide Letter No. 17135/T dated 17.11.1981 and subsequent instructions issued in this regard from time to time. In the meantime the posts of Senior Assistants in Transport Department and O/o TC Odisha has been re-designated to that of Assistant Section Officer and, therefore, the instructions dated 17.11 1981 for filling up of the post of Assistant Regional Transport Officer are not be applicable for filling up of said post. Further, the post of Assistant Regional Transport Officer which was Specially declared as a special gazetted post in Group-C has been upgraded to that of Group-B (Class-II) with effect from 17.10.2017 and as such the present instruction for filling up of the said posts will not be applicable in case of the applicant. In view of the above facts, the representation of Sri Dash, Assistant Section Officer for promotion to the post of Assistant Regional Transport Officer merits no consideration and, therefore, rejected being devoid of merit.= 2.12. Similarly, the respondent in W.A. No.744 of 2023 filed W.P.(C) No. 23090 of 2021 seeking to quash the Order dated 26.07.2021, by which the Government rejected the proposal for holding the Departmental Promotion Committee Meeting for selection of Assistant Section Officer to the post of Assistant Regional Transport Officer as it deserves no merit for consideration. Said writ petition was disposed of by one of us (Dr. Justice W.A. Nos.658 & 744 of 2023 Page 17 of 56 Bidyut Ranjan Sarangi, Acting Chief Justice) on 23.08.2021 with the following observation: <6. Having heard learned counsel for the parties, after going through the records, it appears that the claim of the petitioner has been recommended for holding DPC at government level to fill up the post of Asst. RTO and his name finds place at serial No.2. Thereby, it is not his claim that he should be allowed to get benefit of promotion to Asst. RTO, rather he claims that DPC should be held and his case should be considered for DPC from Sr.Asst. (ASO) to the post of Asst. RTO as per the Government in Commerce & Transport (Transport) Department Letter No.17315/T dated 17.11.1981. But instead of considering the case for promotion by holding DPC, the Government has passed an order that proposal for holding the DPC for selection of ASO to the post of Asst. RTOs deserves no merit for consideration. As such, no reasons have been assigned why selection of ASO to the post of Asst. RTOs deserves no merit for consideration. In absence of any reason the order so passed dated 26.07.2021 in Annexure-8 cannot sustain in the eye of law. 7. Reasons being a necessary concomitant to passing an order, the authority can thus discharge its duty in a meaningful manner either by furnishing the same expressly or by necessary reference to those given by the original authority. 8. In Union of India Vrs. Mohan Lal Capoor, AIR 1974 SC 87 it has been held: <Reasons are the links between the materials on which certain conclusions are based and the actual conclusions. They disclose how the mind is applied Page 18 of 56 W.A. Nos.658 & 744 of 2023 9. to the subject-matter for a decision whether it is purely administrative or quasi-judicial and reveal a rational nexus between the facts considered and conclusions reached. The reasons assure an inbuilt support to the conclusion and decision reached. Recording of reasons is also an assurance that the authority concerned applied its mind to the facts on record. It is vital for the purpose of showing a person that he is receiving justice.= The decisions, referred to above, have been followed in Sanjay Kumar Rout Vrs. State of Orissa, AIR 2018 Ori 162, rendered by a Division Bench of this Court, where Dr. B.R. Sarangi, J. is a member. In view of the meaning of 8reasons9 and requirement for compliance of the principle of natural justice, as discussed above, and taking into consideration the factual and legal aspects, this Court is of the considered view that while passing the impugned order dated 26.07.2021 no reasons has been assigned. Hence, the order dated 26.07.2021 passed by the Government in Annexure-8 cannot sustain in the eye of law and the same is hereby is remitted back to the quashed. The matter the Government, recommendation made under Annexure-6 dated 24.06.2021 for holding of DPC at Government level to fill up the 16 nos. of vacant posts of Asst. RTO afresh by passing a reasoned and speaking order in accordance with law, by affording opportunity of hearing to the parties, as expeditiously as possible, preferably within a period of four months from the date of communication of this order.= reconsideration for of 2.13. In compliance of said direction of this Court, vide Order No.TRN-FE-CASE-0014-2014/10609/T., Bhubaneswar Page 19 of 56 W.A. Nos.658 & 744 of 2023 dated 10.12.2021 the Government of Odisha in Commerce and Transport (Transport) Department rejected the recommendation of the State Transport Authority to convene Departmental Promotion Committee Meeting in the similar fashion that was rejected in the case of Sreepati Ranjan Dash. 2.14. Challenging aforesaid Order dated 11.10.2021 and Order dated 10.12.2021, writ petitions being W.P.(C) No.35645 of 2021 and W.P.(C) No.41042 of 2021 had been filed by the respondents respectively. 3. Counter-affidavit was filed by the appellants herein in
Arguments
Shri M.K Rath, Joint Secretary to Government To The Joint Secretary to Government, H&U.D. Department. Sub.: Posting of A.S.Os Executive Officer of ULBs4 Clarification on status of A.S.Os regarding. Sir, Inviting a reference to your Letter No. 11968/HUD dated 25.5.2010 on the subject captioned above, I am directed to say that with an objective to initiate structural and functional reforms in the Departments of Secretariat, a new Cadre of Assistant Section Officer has been introduced in the Secretariat with effect from dt.30.09.2008 in order to give an Officer oriented administration. Further, as per the Odisha Secretariat Services (Method of Recruitment and Conditions of Service of Assistant Section Officers) Rules, 2010 promulgated vide Home Deptt. Notification No.15678/CC dated 06.04.2010 that came into effect from dt.07.04.2010, the Assistant Section Officers of Secretariat are treated as Officers and can no more be considered as Ministerial. This is for your information. Yours faithfully Sd/- Joint Secretary to Government.= W.A. Nos.658 & 744 of 2023 Page 8 of 56 2.5. It is also relevant to mention here that as per the restructuring vide Resolution, dated 24.01.2019 the Ministerial Cadre in the Office of the Heads of Departments, the post of Section Officer, Establishment Officer, Administrative Officer and Senior Administrative Officers are the promotional posts in the cadre hierarchy which are available to be filled up by way of promotion from the post of Assistant Section Officer. 2.6. The final gradation list of Senior Assistant (re-designated as Assistant Section Officer) dated 02.03.2021 under State Transport Authority, Odisha and Heads of Departments, the respondents’ names find place at Sl.Nos.5 and 6 respectively. Moreover, under the ministerial cadre, the posts of the Assistant Regional Transport Officer and the Additional Regional Transport Officer, which are non-ministerial and non-technical posts, were also available to be filled up by way of promotion. Furthermore, since those posts are not in ministerial cadre, no specific and separate recruitment Rules were framed under proviso to Article 309 of the Constitution of India in exercise of power conferred upon the Government for recruitment/filling up of those posts. The Government of Odisha in Commerce and Transport Department vide Office Letter dated 17.11.1981 had laid down criteria and procedure for filling up the post of Assistant Regional Transport Officer. As per the said executive instruction dated 17.11.1981, Grade-I W.A. Nos.658 & 744 of 2023 Page 9 of 56 Assistant (Senior Assistant) having five years of service as Grade-I Assistant were eligible for promotion to the post of the Assistant Regional Transport Officer. 2.7. In order to be eligible for promotion as indicated above, the ministerial officials working under both the Department of Commerce and Transport and the Office of Transport Commissioner were also made eligible to be considered for such promotion. In view of the policy decision of the Government vide Letter dated 17.11.1981, the post of Assistant Regional Transport Officer was to be filled up by way of selection from different categories of posts in the feeder cadre for which, obviously, no common seniority list is available. In the writ application it has been asserted that the Letter dated 17.11.1981 was still holding the field with suitable modification from time to time, viz., Letter dated 23.08.1991 and Letter dated 04.07.1995. 2.8. For better appreciation, the contents of Letter dated 17.11.1981 as amended by Letter dated 23.08.1991 and Letter dated 04.07.1995 are re-produced hereunder: <Government of Odisha Commerce & Transport (Transport) Department No. FE-I-Ge-44/814 17315/T. Bhubaneswar, 17th November, 1981 From W.A. Nos.658 & 744 of 2023 Page 10 of 56 Shri J.P. Pradhan, OAS (I), Deputy Secretary to Government To The Transport Commissioner, Odisha, Cuttack. Sub.: Filling up of the posts of Assistant Regional Transport Officer, criteria and procedure for. Sir, I am directed to say that four posts of Assistant Regional Transport Officer have been created in this Department G.O. No. 11608, dated 06.08.1981 for Sambalpur, Koraput, Sundargarh and Mayurbhanj regions to assist the concerned Regional Transport Officers in the matter of collection and assessment of Motor Vehicle Tax and Passenger Tax. The posts of Assistant Regional Transport Officer are specially declared Gazetted posts under clause (ii) of Rule 17 of the Orissa Service Code and you have been to make declared as vide General appointments Administration No. 20431/Gen. dated 16.08.1979. the authority competent such posts Department Notification to The Government have pleased to decide that the following criteria and procedure should be followed for selecting ministerial officers of the Commerce & Transport (Transport) Department (Secretariat) and Transport Commissioner9s officer for promotion to the posts of Assistant Regional Transport Officers by selection. W.A. Nos.658 & 744 of 2023 Page 11 of 56 1. Grade-I Assistant (Senior Assistant) having five years of service as Grade-I Assistant should be eligible for promotion by selection. 2. Merit-cum-efficiency with due regard to seniority should be taken into consideration for selection of Grade-I Assistant (Senior Assistant) for the posts of Assistant Regional Transport Officer. The selection shall be made on the basis of merit and suitability. 3. Maximum age limit for selection to the post of Assistant Regional Transport Officer should be forty-five years. 4. Pending finalisation of the cadre rules for recruitment to the posts of Assistant Regional Transport Officer, selections may be made according to the above principles through the Departmental Promotion Committee whom composition will be as follows: Transport Commissioner … Chairman Deputy Transport Commissioner Deputy Secretary, Transport Secretary, State … … Member Member Transport Authority … Member-Secretary I am therefore to request you to take immediate steps for filling up of the above four posts of Assistant Regional Transport Officers. W.A. Nos.658 & 744 of 2023 Page 12 of 56 The list of eligible candidates of this Department with complete and up-to-date C.C.Rs and service particulars is being furnished to you separately. Yours faithfully Sd/- Deputy Secretary to Government.= <Government of Odisha Commerce & Transport (Transport) Department Misc. 22/91/13812/T. Bhubaneswar, 23rd August, 1991 To The Transport Commissioner, Odisha, Cuttack. Sub.: Filling up of the post of Assistant Regional Transport Officer, criteria and the procedure therefor. Sir, I am directed to say that Government in this Department Circular Letter No.17315/T dated 17.11.1981 have stipulated criteria and procedure for filling up the vacancies in the post of Assistant Regional Transport Officer by selection. The minimum age limit for selection to the post was fixed as forty five posts Government on a reconsideration of their aspect of the criteria, have now been pleased to amend the said stipulation and to fix the minimum age limit as 52 years. It is requested that henceforth, the Senior Assistants both of this Department and your office and of the age and not exceeding 52 years may please be W.A. Nos.658 & 744 of 2023 Page 13 of 56 considered for promotion to the post of Assistant Regional Transport Officer. Yours faithfully Sd/- Deputy Secretary to Government.= <Government of Odisha Commerce & Transport (Transport) Department No. FE-I-AE-3/94/3712/T. Dated 4th July, 1995 From Shri P.K. Routrai, OAS-(I) Deputy Secretary to Government. To The Transport Commissioner, Odisha, Cuttack. Sub.: Filling up of the post of Assistant Regional Transport Officer, criteria and the procedure for. Sir, I am directed to invite reference to your Letter No.12625/12625/TC, dated 13.07.1994 on the above subject and that after careful to say consideration Government have been pleased to decide that the Auditors of the office of the Transport Commissioner, Orissa, Cuttack are eligible to be considered for the post of Assistant R.T.O. subject to the stipulation made in this Deptt. Letter No. 17215/T dated 17.11.1981 and No.13812/T dt.23.08.1991. W.A. Nos.658 & 744 of 2023 Page 14 of 56 Yours faithfully Sd/- Deputy Secretary to Government.= 2.9. It was also specifically pleaded that the aforesaid policy with suitable modification was being followed by the Department and promotions were being effected until the year 2019. 2.10. The respondent in the writ petition narrated that since he completed five years of service as Grade-I Assistant (Senior Assistant, which was re-designated as Assistant Section Officer) and was 37 years of age, he was eligible to be considered for promotion by way of selection/induction against the post of Assistant Regional Transport Officer independent of his chance of promotion in the normal course in the ministerial cadre to the next post of Section Officer. Though Transport Commissioner was the competent authority to hold Departmental Promotion Committee, he referred names of eligible Assistant Section Officers including the name of the respondent for promotion against the post of Assistant Regional Transport Officer with request to hold Departmental Promotion Committee vide Letter No.9356, dated 30.09.2021. 2.11. As nothing turned out fruitful, the respondent in W.A.
Decision
the writ petition by contending that the post of Assistant Regional Transport Officer was created earlier with the objective to post them at Border Check Gates for collection and assessment of Motor Vehicle Tax, Passenger Tax and issue of permit. In absence of any Rules, the post of Assistant Regional Transport Officer was earlier being filled up by way of selection from different feeder cadres under the administrative control of Transport Department and in pursuance of the executive instruction issued by the Government on 17.11.1981 with subsequent modifications to it. Further, all the Border Check Gates have been abolished for free passage of inter-State movement of vehicle on the advice of the Central Government since April, 2017. After abolition of check gates, the post of Assistant Regional Transport Officer was adjusted in different Regional Page 20 of 56 W.A. Nos.658 & 744 of 2023 Transport Offices. The post of Assistant Regional Transport Officer comes under Group-C/Class-III and after restructuring, the same has been upgraded to Group-B/Class-II with effect from 17.10.2017. Pending finalization of the cadre Rules, the post has been filled up by way of selection from different posts such as Senior Assistant of Secretariat in the Transport Department, Senior Assistant of the State Transport Authority and other non-ministerial posts under the State Transport Authority/Regional Transport Offices. After the post of Senior Assistant of Secretariat was re- designated as Assistant Section Officer, it was not considered for selection to the post of Assistant Regional Transport Officer as per the above executive instruction. 3.1. In the meantime the post of Senior Assistant in the concerned Department including the State Transport Authority has been re-designated as the Assistant Section Officer and as such there is no justification to consider their names for selection to fill up the post of Assistant Regional Transport Officer in terms of the above noted instruction. It was stated in the counter- affidavit that there existed no justification on the part of the respondents to claim for promotion to the post of Assistant Regional Transport Officer, as the said post does not come under the promotional hierarchy of his parent cadre; rather the cadre, in which the respondents are posted and continued, is governed by the Odisha W.A. Nos.658 & 744 of 2023 Page 21 of 56 Ministerial Services (Assistants and Section Officers) cadre of Heads of Department. As per the restructuring cadre, which was issued in the year 2019, there are five promotional posts in the hierarchy after initial post of Junior Assistant. Those are Assistant Section Officer, Section Officer, Establishment Officer, Administrative Officer and Senior Administrative Officer. 3.2. The Odisha Transport Service (Method of Recruitment and Conditions of Services) Rules, 2021 has been framed in consultation with the Odisha Public Service Commission in exercise of powers conferred by proviso to Article 309 of the Constitution of India, whereby <all rules framed, instructions or orders issued in this respect= have been superseded <except as respect things done or omitted to be done before such supersession=. Said Rules, published in the Extraordinary issue bearing No.22 of the Odisha Gazette on 05.01.2022, came into force with effect from said date of publication. 3.3. It has been provided under Rule 4(1) of the said Rules, 2021 that filling up of the post of Assistant Regional Transport Officer would be made by way of direct recruitment through combined competitive recruitment examination conducted by the Odisha Public Service Commission in accordance with the Odisha Civil Services (Combined Competitive Recruitment Examination) Rules, 1991. Therefore, it is pleaded by the appellants that since the new Rules have come into Page 22 of 56 W.A. Nos.658 & 744 of 2023 force, the claim of the respondents for promotion to the post of Assistant Regional Transport Officer by way of selection as per the executive instruction dated 17.11.1981 as amended in 1991 and 1995 is baseless and untenable in law. 4. The learned Single Judge upon hearing the respective counsel for the parties, came to hold as follows by delivery of Judgment dated 24.02.2023: <29. In view of the aforesaid analysis of fact as well as law and upon a conspectus of the materials placed before this Court and upon hearing the learned counsels appearing for the respective parties, this Court is of the considered view that the impugned order under Annexure-9 is unsustainable in law and the same is hereby quashed. Further, the opposite party No.2, i.e., the Transport Commissioner-cum- Chairman STA, Odisha is directed to immediately convene the DPC and consider the case of the petitioner along with two other persons found eligible by him vide his letter dated 03.09.2021 under Annexure-7 in the light of executive instruction dated 17.11.1981 and take a decision within a period of four weeks from the date of production of the copy of this judgment. It is further directed that in the event, the opposite parties are planning to fill up the vacant post of ARTO in view of the new Rule 2021, which was notified on 03.01.2022, they are free to do so, however, three posts of ARTO as has the been recommended under Annexure-7 by Transport Commissioner shall not be filled up till a final decision is taken by the opposite party No.2 as has been directed hereinabove. In the event, any W.A. Nos.658 & 744 of 2023 Page 23 of 56 advertisement has been published to fill up such posts, suitable modification be made in the said advertisement by way of corrigendum forthwith.= 5. Vide Order dated 28.02.2023, the learned Single Judge disposed of W.P.(C) No.41042 of 2021 in view of Judgment dated 24.02.2023 passed in W.P.(C) No.35645 of 2021. INTRA-COURT APPEAL PREFERRED BY THE TRANSPORT DEPARTMENT: 6. Being aggrieved by the aforesaid Judgment rendered by the learned Single Judge, the appellants attacked the same on the grounds inter alia that, grave error of law has been committed by holding that since rejection to hold Departmental Promotion Committee Meeting in connection with the recommendation of the State Transport Authority for consideration of promotion to the post of Assistant Regional Transport Officer by the Government being on 11.10.2021 in the case of Sri Sreepati Ranjan Dash and 10.12.2021 in the case of Sri Aditya Bhanjan Sahoo, the executive instruction dated 17.11.1981 as amended in 1991 and 1995 cannot have precedence over the Odisha Transport Service (Method of Recruitment and Conditions of Services) Rules, 2021, inasmuch as said executive instruction(s) got superseded by virtue of said Rules. Referring to ratio that <there is no rule of universal application that vacancies must be necessarily filled on the basis of the law which existed on the date when they arose= as laid W.A. Nos.658 & 744 of 2023 Page 24 of 56 down in Judgment dated 20.05.2022 delivered in State of Himachal Pradesh Vrs. Raj Kumar & Others, Civil Appeal No.9746 of 2011 reported in (2023) 3 SCC 773, it has been urged that in view of policy decision of the Government to fill up the post of Assistant Regional Transport Officer by way of direct recruitment as provided under Rule 4 of the Odisha Transport Service (Method of Recruitment and Conditions of Services) Rules, 2021, there was little scope for this Court to show indulgence in the order of rejection of representation of the respondents in the garb of judicial review under Article 226/227 of the Constitution of India. 7. This Court having issued notice to the respondent(s) in W.A. No.658 of 2023 by Order dated 24.04.2023, and vide Order dated 02.05.2023 in W.A. No.744 of 2023, Sri Biswabihari Mohanty, Advocate filed reply to the contents of the Appeal. 7.1. While conceding the position of law as enunciated in Raj Kumar (supra), the respondent(s) has placed with vehemence that the case law stemming on which the present writ appeals are couched does not have application to the factual matrix of the present cases. The learned Single Judge after taking cognizance of the fact that in the case of other similarly situated person namely in the case of Aditya Bhanjan Sahoo working as Senior Assistant re-designated as Assistant Section Officer, vide Letter No.9356/TC/Estt. W.A. Nos.658 & 744 of 2023 (RTA)-X- Page 25 of 56 315/2021, dated 03.09.2021 of Transport Commissioner in the Office of the Transport Commissioner-cum- Chairman, State Transport Authority, eliciting intention to convene Departmental Promotion Committee, at paragraphs 26 and 27 of the Judgment impugned herein candidly discussed as follows: <26. A bare reading of the aforesaid Letter dated 03.09.2021 under Annexure-7 reveals that the Transport Commissioner on scrutiny found three persons eligible including the petitioner for appointment as ARTO against 16 nos. of existing vacancies and accordingly a request was made to the Government to convene the DPC in view of the order passed by this court on 13.07.2021. Otherwise, the entire process would have been completed by the Transport Commissioner under the executive instruction dated 17.11.1981 earlier and in such view of the matter, this Court has no hesitation in coming to a conclusion that the Transport Commissioner should have considered the case of the petitioner by convening DPC keeping in view the executive instruction dated 17.11.1981 which was very much in force then. Moreover, there is no doubt with regard to eligibility and suitability of the petitioner and the other persons whose name has been recommended by the Transport Commissioner to the Transport Government. Commissioner has committed an illegality by not convening the DPC meeting himself and not considering the case of promotion of the petitioner to the post of ARTO. However, in the facts and circumstances of the present case and keeping in Accordingly, the W.A. Nos.658 & 744 of 2023 Page 26 of 56 view the order passed by this Court, the blame for such failure cannot be put on the Transport Commissioner alone, as he had acted pursuant to the order passed by this Court on 13.07.2021. 27. So far the rejection order under Annexure-9 is concerned, this Court on a careful analysis observed that the opposite party No.1 proceeded on the footing that since the post of Senior Assistant has been re- designated as ASO, the executive instruction dated 17.11.1981 is not applicable to the petitioner. At this juncture, this Court would like to observe that mere change of designation, everything else remaining the same including the pay structure and the nature or work, the same will not, by itself, disentitle the petitioner to claim the benefit under executive instruction dated 17.11.1981. Rather, in view of the change in designation by virtue of a Rule the post of Senior Assistant as mentioned in executive instruction dated 17.11.1981 is to be read as ASO inasmuch as the change in designation has not changed the nature and character of the job and there was no change in the pay structure. Therefore, this Court is of the considered view that the opposite party No.1 has the committed grossly representation of the petitioner under Annexure-9 and as such, the order dated 11.10.2021 under Annexure-9 is unsustainable in law and accordingly, the same is liable to be quashed.= illegality by rejecting 7.2. It is further contended by the respondent(s) that since the Odisha Transport Service (Method of Recruitment and Conditions of Services) Rules, 2021, came into force with effect from 05.01.2022 by virtue of Rule 1(2) of the W.A. Nos.658 & 744 of 2023 Page 27 of 56 said Rules, the process for convening Departmental Promotion Committee Meeting for consideration of promotion of Assistant Section Officer to the post of Assistant Regional Transport Officer being commenced much prior to said date, which decision was taken in order to comply with the direction of this Court in W.P.(C) No.23090 of 2021 (Aditya Bhanjan Sahoo Vrs. State of Odisha) vide Order dated 23.08.2021, it is unwholesome for the appellants herein to say that <the representation of Sri Dash, Assistant Section Officer for promotion to the post of Assistant Regional Transport Officer merits no consideration and, therefore, rejected being devoid of merit=. Such an action of the Government not only smacks arbitrariness, but also attracts vice of Article 14 of the Constitution of India. ARGUMENTS OF RESPECTIVE COUNSELS FOR THE PARTIES: 8. Pleadings in the matter being completed, this Court proceeded to hear the matter for final disposal on the consent of learned counsel for both the sides. This Court heard Sri Pravakar Behera, learned Standing Counsel (Transport) for appellants and Sri Biswabihari Mohanty, learned Advocate for the respondents. 9. Sri Pravakar Behera, learned Standing Counsel (Transport) stemming on the principles of law as propounded by the Hon’ble Supreme Court in the case of Raj Kumar (supra) submitted that the Judgment of W.A. Nos.658 & 744 of 2023 Page 28 of 56 learned Single Judge suffers from infirmity ex facie, inasmuch as the appellants were required to adhere to modality for promotion to the post of Assistant Regional Transport Officer as spelt out in Letter No.17315-FE-T- Gr-44/81/T, dated 17.11.1981 issued by the Government of Odisha in Commerce and Transport (Transport) Department, as amended in Letter No.13812-Misc.-22/91/T, dated 23.08.1991 and Letter No.3712-FE-I-AE-3/94/T, dated 04.07.1995. 9.1. Sri Pravakar Behera, Standing Counsel (Transport) has relied on the following paragraph(s) of the Judgment of Hon’ble Supreme Court in the case of Raj Kumar (supra): <82. A review of the fifteen cases that have distinguished Y.V. Rangaiah Vrs. J. Sreenivasa Rao, (1983) 3 SCC 284 would demonstrate that this Court has been consistently carving out exceptions to the broad proposition formulated in Rangaiah (supra). The findings in these judgments, that have a direct bearing on the proposition formulated by Rangaiah (supra) are as under: 82.1. There is no rule of universal application that vacancies must be necessarily filled on the basis of the law which existed on the date when they arose, Rangaiah9s case must be understood in the context of the rules involved therein. 82.2. It is now a settled proposition of law that a candidate has a right to be considered in the light of the existed rules, which implies the 8rule in force9 as on the date consideration Page 29 of 56 W.A. Nos.658 & 744 of 2023 takes place. The right to be considered for promotion occurs on the date of consideration of the eligible candidates. 82.3. The Government is entitled to take a conscious policy decision not to fill up the vacancies arising prior to the amendment of the rules. The employee does not acquire any vested right to being considered for promotion in accordance with the repealed rules in view of the policy decision taken by the Government. Deepak Agarwal Vrs. State of U.P., (2011) 6 SCC 725, Para 26; Union of India Vrs. Krishna Kumar, (2019) 4 SCC 319, Para 10. There is no to make obligation appointments as per the old rules in the event of restructuring of the cadre is intended for efficient working of the unit. G. Venkateshara Rao Vrs. Union of India, (1999) 8 SCC 455. The only requirement is that the policy decisions of the Government must be fair and reasonable and must be justified on the touchstone of Service Article Commission Vrs. Charan Ram, (1998) 4 SCC 202, Para 15; K. Ramulu Vrs. Suryaprakash Rao, (1997) 3 SCC 59, Para 15. the Government Rajasthan Public 14. for 82.4. The principle