The High Court · 2025
Case Details
Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Designation: Secretary Reason: Authentication Location: High Court of Orissa, Cuttack Date: 20-Jan-2025 15:15:37 IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.20425 of 2020 (In the matter of an application under Articles 226 and 227 of the Constitution of India) Nrusingha Charan Pradhan …. Petitioner -versus- State of Odisha and another …. Opposite Parties Advocate(s) appeared in this case:- For Petitioner : Mr. K.P. Mishra, Senior Advocate Mr. N.K. Singh, Advocate For Opposite Parties : Mr. G. Tripathy, A.G.A. CORAM: JUSTICE B.P. ROUTRAY JUDGMENT 2nd January 2025 B.P. Routray, J.
Legal Reasoning
1. Heard Mr. K.P. Mishra, learned Senior Advocate for the Petitioner as well as Mr. G. Tripathy, learned Additional Government Advocate for State-Opposite Parties. 2. The subject matter of challenge in present writ petition is challenge to the impugned order dated 12.6.2020 under Annexure-10, wherein the prayer of the Petitioner to fix his seniority above his W.P.(C) No.20425 of 2020 Page 1 of 9 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Designation: Secretary Reason: Authentication Location: High Court of Orissa, Cuttack Date: 20-Jan-2025 15:15:37 junior, namely, Ananta Charan Biswal in the gradation list has been rejected on the ground that, the deemed date of joining of the Petitioner is a matter of sub-judice in W.P.(C) No.7517 of 2017. 3. It needs to be stated here that, W.P.(C) No.7517 of 2017 is still pending before a Division Bench of this Court. 4. The facts of the case stated in brief are that, the Petitioner initially filed O.A. No.1709 of 1997 praying his appointment as Junior Assistant questioning the preparation of selection list pursuant to the recruitment held by the O.P.S.C. on 28th June 1987 for the purpose of Junior Assistant in Odisha Secretariat Service. Said Original Application filed by the Petitioner was disposed of in terms of the principles and directions issued in a similar O.A. filed by another applicant, namely Arati Nanda in Original Application No.1973 of 1995. Order dated 8.1.1998 passed in O.A. No.1709 of 1997 reads as under:- “Heard. Principle has already been decided in the decision reported in 1997(2) ATT (Ori.) 48 (Arati Nanda vrs State of Orissa) decided on 12.8.1996. I direct the Respondents to apply the principle to the facts of this case and consider the question of appointment of the applicant accordingly. xx .. .. W.P.(C) No.20425 of 2020 Page 2 of 9 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Designation: Secretary Reason: Authentication Location: High Court of Orissa, Cuttack Date: 20-Jan-2025 15:15:37 .. xx .. Original Application is allowed to the extent indicated above. No costs.” 5. The operative portion of the case of Arati Nanda speaking the principle is as follows:- “10. xxx .. .. xxx .. .. In such circumstance, it is not possible to give direction to State Government to appoint her as a Junior Clerk. However, Respondent is given direction to appoint applicant if a vacancy is available. If no vacancy is available, the same has to be created to give appointment to the applicant. She will have to wait for the same. No sooner applicant is given appointment, she will get her position in seniority just above the person appointed below her in the merit list. For all purposes that would be the date of her appointment. But she will not be entitled to any salary or other benefit of service except that the period will be considered for her experience and qualifying service for purpose of pension. She will not get benefits of earned leave or increments for the period. But in case she is entitled to the same or higher salary in the scale as per service rules, the same shall be notionally fixed. xxx .. .. xxx .. ..” 6. However, challenging the decision in Arati Nanda, the State preferred writ petition and then approached the Hon’ble Supreme Court. Finally, SLP (C) No.12730 of 2011 filed before the Hon’ble Supreme Court was dismissed vide order dated 11.04.2014. Consequently, the Petitioner was given actual appointment on W.P.(C) No.20425 of 2020 Page 3 of 9 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Designation: Secretary Reason: Authentication Location: High Court of Orissa, Cuttack Date: 20-Jan-2025 15:15:37 02.01.2015 vide Annexure-4. After his appointment, the Petitioner raised his case for promotion to the post of Senior Assistant and then Section Officer fixing his place in the gradation list above such person placed below to him in the merit list as per the selection list prepared in 1988. He then filed O.A. No.1074 of 2015 with prayers that; (i) to antedate his date of appointment in the grade of Junior Assistant from the date of appointment of private respondent No.4 namely Ananta Charan Biswal i.e. 7.11.1994, (ii) promote him to the cadre of Senior Assistant from the date private respondent No.4 got such promotion i.e. 25.8.1998, (iii) thereafter to the rank of Section Officer w.e.f. 8.2.2014 the date from which said respondent No.4 was so promoted with all service and financial benefits, (iv) for a direction to respondents to insert his name above the name of respondent No.4 in the gradation list at Annexure-6, and (v) to fix his pay and annual increments and also extend all financial benefits. 7.
Decision
Learned Tribunal disposed of O.A. No.1074 of 2015 along with connected Original Application refusing to grant the benefit of promotion in favour of the Petitioner, vide its judgment dated 01.03.2017 (Annexure-D/1). Said judgment dated 01.03.2017 passed in O.A. No.1074 of 2015 has been challenged before this Court in W.P.(C) No.20425 of 2020 Page 4 of 9 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Designation: Secretary Reason: Authentication Location: High Court of Orissa, Cuttack Date: 20-Jan-2025 15:15:37 W.P.(C) No.7517 of 2017, and as stated above the said writ petition is still pending. 8. In the meantime, the Petitioner filed W.P.(C) No.18899 of 2019 praying to treat his date of appointment above one Ananta Charan Biswal as per 1988 select list and to treat his seniority accordingly. This Court vide order dated 17.02.2020 disposed of W.P.(C) No.18899 of 2019 directing the Opposite Parties to consider the grievance of the Petitioner made in that writ petition treating the same as a representation. The authorities accordingly have passed the impugned order dated 12.6.2020 under Annexure-10 which is challenged in the present writ petition. 9. It is seen from the order dated 21.08.2023 by a coordinate Bench of this Court that, present writ petition needs to be heard after disposal of W.P.(C) No.7517 of 2017 and directed for listing of the matter before the assigned Bench. But the Division Bench of this Court subsequently in order dated 29.11.2023 has observed to list W.P.(C) No.7517 of 2017 after disposal of the present writ petition. 10. Mr. K.P. Mishra, learned Senior Counsel for the Petitioner submits that, the Petitioner has been fixed between two separate W.P.(C) No.20425 of 2020 Page 5 of 9 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Designation: Secretary Reason: Authentication Location: High Court of Orissa, Cuttack Date: 20-Jan-2025 15:15:37 directions of this Court passed by two Benches, whereas the limited prayer of the Petitioner in the present writ petition is to place his seniority in terms of the principles decided in the case of Arati Nanda as per the direction passed by the learned Tribunal in O.A. No.1709 of 1997. Mr. Mishra further submits that, since the directions passed in said Original Application disposing of the same on the principles decided in Arati Nanda’s case, which has ultimately been confirmed by the Hon’ble Supreme Court, it is imperative on the part of the authorities to place the seniority of the Petitioner above Ananta Charan Biswal accepting his date of appointment as per 1988 merit list. He further contends that, the question of promotion of the Petitioner to such higher posts in the hierarchy would be a matter of adjudication in W.P.(C) No.7517 of 2017 and therefore, the Court should not be confused with the pendency of W.P.(C) No.7517 of 2017. 11. Mr. G. Tripathy, learned Additional Government Advocate for the State-Opposite Parties on the other hand submits that, since the State has treated the appointment of the Petitioner from the date from which he was given actual appointment, neither the question of promotion nor his actual seniority could be counted as per the merit list W.P.(C) No.20425 of 2020 Page 6 of 9 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Designation: Secretary Reason: Authentication Location: High Court of Orissa, Cuttack Date: 20-Jan-2025 15:15:37 of 1988. He further contends that, in the meantime the posts of Junior Assistants have been re-designated as Asst. Section Officer and the consequent rules governing the field have been repealed, so the prayer of the Petitioner to antedate his date of appointment is without merit. 12. Having considered the rival contentions advanced by both the parties, it needs to be looked into the order of the learned Tribunal dated 01.03.2017 wherein the Petitioner’s prayer for promotion and appointment date has been dealt with. 13. The prayer of the Petitioner made in O.A. No.1074 of 2015 has already mentioned above. The learned Tribunal in its operative portion at paragraph 14 of the judgment dated 01.03.2017 has answered the same stating that, on a plain reading of that decision it is clear that their notional date of joining entitles them to treat the period from which the juniors in 1988 list joined till their actual date of joining, to be treated as qualifying service for pension. Therefore, it is clear from the above expression of learned Tribunal that the prayer of the Petitioner to fix his date of appointment from 1988 has been accepted by learned Tribunal. However, the learned Tribunal has refused to treat such deemed date of appointment of the Petitioner from 1988, for the purpose of promotion. This Court is not concerned with the question of W.P.(C) No.20425 of 2020 Page 7 of 9 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Designation: Secretary Reason: Authentication Location: High Court of Orissa, Cuttack Date: 20-Jan-2025 15:15:37 promotion of the Petitioner in the present writ petition, which is the subject matter of adjudication in W.P.(C) No.7517 of 2017. 14. It is true that, the principles decided in the case of Arati Nanda has been confirmed by the apex Court and has already been implemented by Opposite Parties. So, there cannot be any quarrel on the question of the principles decided in Arati Nanda’s case to apply in the case of present Petitioner. Therefore, in terms of the direction of the learned Tribunal dated 8.1.1998 (Annexure-2), the Petitioner has to be given his position in seniority just above the person (Ananta Charan Biswal) appointed below him in the merit list. Here it needs to be stated that, the undisputed position of the Petitioner in the merit list is 787. So as per the principles decided in Arati Nanda’s case, said date is to be the appointment of the Petitioner for all purposes, except for financial and other benefits of service, in terms of the principles decided in Arati Nanda’s case. It is also seen from the direction in Arati Nanda’s case that the period from such date of appointment will be considered for the purpose of experience and qualifying service for pensionary benefits. W.P.(C) No.20425 of 2020 Page 8 of 9 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Designation: Secretary Reason: Authentication Location: High Court of Orissa, Cuttack Date: 20-Jan-2025 15:15:37 15. Thus it is seen from the above principles decided in Arati Nanda’s case that there cannot be any doubt to count the date of appointment of the Petitioner from the date of appointment of Ananta Charan Biswal for experience and qualifying service for the purpose of pension and for the same, the authorities has to act for granting him pensionary benefits as per OCS Pension Rules and Old General Provident Fund (Odisha) Rules 1938. 16. Accordingly, the writ petition is allowed with a direction to fix the date of appointment of the Petitioner in the select list above Ananta Charan Biswal (Opposite Party No.4) for such purpose of experience and qualifying service for pension and other retiral benefits, within a period of three months from the date of receipt of a certified copy of this order. (B.P. Routray) Judge B.K. Barik/Secretary W.P.(C) No.20425 of 2020 Page 9 of 9