The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK WPC (OAC) No.1971 of 2008 Deepak Mohanty …. Petitioner Mr. B.K. Sharma, Adv. -versus- Chairman, OPSC & Others …. Opposite Parties Mr. G.P. Dutta, Adv. (for OPSC) CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY ORDER 25.04.2023 Order No 10. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode.
Legal Reasoning
2. Heard Mr. B.K. Sharma, learned counsel appearing for the Petitioner and Mr. G.P. Dutta, learned counsel appearing for the Odisha Public Service Commission(in short, “the Commission”). 3. The Petitioner has filed the present Writ Petition challenging the rejection of his claim to restore his seniority over Opp. Party Nos.3 & 4 with quashing of Annexure-3 and consequential rejection of his claim for promotion ahead of Opp. party No.3 & 4 vide the impugned order at Annexure-8. A further prayer has also been made by the Petitioner to direct Opp. party Nos.1 & 2 to give him promotion to the post of Junior Assistant earlier than Opp. Party Nos. 3 & 4 with all consequential service and financial benefits. 4. Learned counsel for the Petitioner contended that pursuant to the selection process initiated by the Commission, the Petitioner was appointed as a Junior // 2 // Assistant where he joined on 05.01.1990. In the said selection process, Opp. party Nos.3 & 4 were also appointed as against the post of Junior Assistant where they joined on 06.01.1990 and 08.01.1990. 4.1. It is the case of the Petitioner that since the Petitioner joined as a Jr. Assistant earlier than Opp. Party Nos.3 & 4, his seniority in the rank of Jr. Asst. should be above Opp. Party Nos.3 & 4. When that was not followed and the Commission ignoring the claim of the Petitioner extended the benefit of promotion to the rank of Sr. Assistant in favour of Opp. Party No. 3 vide order dated 30.04.1998 and Opp. party No.4 vide order dated 01.02.1999, the Petitioner challenging such action of the Commission approached the Tribunal in O.A. No.745(C ) of 2002, which was subsequently renumbered on transfer, as O.A No.38 of 2006. 4.2. Learned counsel for the Petitioner contended that even though the Tribunal found the stand of the Petitioner to be a genuine stand, but without directing the Commission to do the needful, remitted the matter for fresh consideration. It is contended that the Commission without following the true intent and spirit of the order dated 02.01.2008, so passed by the Tribunal in O.A. No.38 of 2006 under Annexure-6 rejected the Petitioner’s claim vide the impugned order at Annexure-8. It is accordingly contended that since the Petitioner had joined earlier than the Opp. party Nos.3 & 4 in the rank of Jr. Assistant, his seniority should have been placed above Opp. party Nos.3 & 4 and the Petitioner should also have been given promotion ahead of Opp. Party Nos. 3 & 4. Making all these submissions, Page 2 of 7 // 3 // Mr. B.K. Sharma, learned counsel appearing for the Petitioner prays for interference of this Court. 5. Even though a counter affidavit has been filed by the Commission and by the private Opp. party No.4, but this Court on not being satisfied with the stand taken in the counter so filed by the Commission directed the learned counsel for the Commission to place the material justifying the fixation of seniority of the Petitioner below Opp. party Nos.3 & 4. Pursuant to the said direction an additional affidavit was filed by the Commission by enclosing various documents. 5.1. Mr. G.P. Dutta, learned counsel appearing for the Commission contended that even though the petitioner pursuant to the selection process initiated for recruitment to the post of Jr. Assistant joined earlier than Opp. party Nos. 3 & 4, but since in the merit list, his position was below Opp. party No.3 & 4, taking recourse to the provision contained under Para 22 of the Orissa Public Service Commission (Conditions of Service) Regulation 1952 read with Rule 18 of the Orissa Ministerial Service (Method of Recruitment and Condition of Service of Junior Assistants in the Offices of Departments of Secretariate) Rules, 1951, the Petitioner was rightly placed below Opp. party Nos.3 & 4 in the seniority list of Jr. Asst. Accordingly, Opp. party Nos.3 & 4 got the benefit of promotion earlier than the Petitioner vide Order dated 30.04.1998 and 01.02.1999. 5.2. Mr. Dutta accordingly contended that since in the merit list so prepared by the Commission with regard to the selection of Jr. Assistant, Petitioner is admittedly placed below Opp. Party Nos.3 & 4, no illegality has been committed by the Commission in placing them above the Page 3 of 7 // 4 // Petitioner in the Gradation list under Annexure-3 and consequentially allowing them the benefit of promotion earlier than the petitioner. It is accordingly contended that after due appraisal of the order passed by the Tribunal under Annexure-6, the Commission has passed a reasoned order vide Annexure-8 and no interference is called for by this Court. 6. To the aforesaid submission the learned counsel appearing for the Commission, learned counsel for the Petitioner contended that in view of the provision contained under Para 22 of the 1952 Order and Rule 18 of the 1951 Rules, the Petitioner though has no further scope to assail the seniority of Opp. party Nos.3 & 4 in the rank of Jr. Asst, but contended that even though the Petitioner and Opp. Party Nos.3 & 4 joined with break of around 3 days, but while Opp. party No.3 was given promotion to the rank of Senior Assistant on 30.04.1998 and Opp. Party No. 4 on 01.02.1999, Petitioner’s case was only considered in the year 2006 and he was given promotion to the rank of Sr. Assistant in the month of September, 2006. It is further contended that during the relevant time though there were available vacancies, but the Commission intentionally and deliberately did not consider the case of the petitioner for his promotion to the rank of Senior Assistant after considering the case of Opp. party Nos.3 & 4. Mr. Sharma accordingly contended that necessary direction be issued to the Commission to take a fresh decision with regard to the eligibility of the petitioner to get the benefit of promotion in the rank of Sr. Asst. starting from the year 1999. Page 4 of 7 // 5 // 7. Heard learned counsel for the parties. Perused the material available on record. Para 22 of the 1952 order and Rule 18 of the 1951 Rules provides as under:- “22. (1) The ministerial establishment and the inferior servants shall be subject to the same conditions of service as the personnel of the corresponding grades serving in the Secretariat. (2) The authority who may impose any of the penalties prescribed in rule 13 of the Orissa Civil Services (Classification, Control and Appeal) Rules, 1962 shall be the Special Secretary and the appellate authority the chairman.” “18. The relative seniority of each candidate shall be determined with reference to his position in the competitive examination held in a particular year except that a candidate directly recruited to approved military service shall on his appointment to the service after release from the military service be allowed to count towards seniority the actual period of his service rendered n the army and shall be placed above al the direct recruits of the year in which his due date of appointment falls after antedating his date of appointment to the extent of the period of approved military service to his credit. But where a candidate of a particular examination could not be appointed before the subsequent the declaration of examination and for appointment he shall under the circumstances, taken rank just below the successful candidates appointed on the result of the said subsequent examination. is selected under rule 11 the result of (1) The relative seniority of each candidate who come out successful in special recruitment examination shall be determined with reference to his position in the said competitive examination and such candidates shall take just below the candidates of the preceding general recruitment examination. (2) The relative seniority of the candidates belonging to Scheduled Castes and Scheduled Tribes recruited through a special recruitment test under rule 3 shall be determined according to their position assigned in the select list and such candidates shall take rank just below the successful candidates of the preceding examination appointed in a particular year. recruitment general, (3) The relative seniority of the candidates appointed under Rule 17-A or under the Orissa Civil Services (Rehabilitation Assistance) Rules, 1990 shall be determined according to their date of appointment and shall take rank below all the successful candidates appointed in a particular year out of the list upon by the Commission under Rule 8. (4) The relative seniority of a person promoted to the post of Junior Assistant under rule (2) shall be Page 5 of 7 // 6 // determined with reference to his position in the select list prepared by the Departmental Promotion Committee and such person shall take rank just below the candidates appointed under rule 3(1) in a particular calendar year.” 7.1. In view of the provisions contained under Para 22 of the 1952 Orders read with Rule 18 of 1951 Rules, this Court finds no illegality or irregularity with regard to fixation of seniority of Opp. Party Nos.3 & 4 over the Petitioner in the rank of Jr. Asst. vide Annexure-3 nor with the rejection of the Petitioner’s claim for promotion ahead of Opp. Party Nos.3 & 4 vide the impugned order at Annexure- 8. Accordingly, this Court is not inclined to interfere with Annexures-3 & 8. 7.2. However, taking into account the submission made by Mr. B.K. Sharma, learned counsel appearing for the Petitioner that the Petitioner’s promotion was much delayed in spite of available of vacancies in the rank of Sr. Assistant at the relevant point of time, this Court while disposing the Writ Petition directs the Commission to take a fresh decision on the claim of the Petitioner to get the benefit of promotion to the rank of Senior Assistant. On such re- consideration, if it is found that there were available vacancies in the rank of Senior Assistant after 01.02.1999, when opp. party no.4 was so promoted, the case of the Petitioner be considered and necessary action be taken to provide him retrospective promotion, if there is no other legal impediment. However, such retrospective promotion, if any, shall only be on notional basis. The Writ Petition is disposed of with the aforesaid observation and direction. (Biraja Prasanna Satapathy) Judge Page 6 of 7 // 7 // sangita Page 7 of 7