Orissa High Court
Case Details
Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: A.R.-Cum-Sr.Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 03-Jun-2025 15:45:15 IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) Nos.37471, 17311, 24191, 24192, 24193, 24194, 26739, 29089, 36444 and 36496 of 2020 (In the matter of an application under Articles 226 and 227 of the Constitution of India) In W.P.(C) No.37471 of 2020 Charan Singh Hembram and others …. -versus- Petitioners State of Odisha and others …. Opposite Parties Advocate(s) appeared in this case:- For Petitioners : Ms. Pami Rath, Senior Advocate For Opposite Parties : Mr. G. Tripathy, A.G.A. Mr. S.K. Das, Advocate for private Opposite Parties In W.P.(C) No.17311 of 2020 A.Rama Krishna and others …. Petitioners -versus- State of Odisha and others …. Opposite Parties Advocate(s) appeared in this case:- For Petitioners : Mr. S.D. Das, Senior Advocate For Opposite Parties : Mr. G. Tripathy, A.G.A. Mr. B. Routray, Senior Advocate for intervenor W.P.(C) No.37471 of 2020 and batch Page 1 of 68 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: A.R.-Cum-Sr.Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 03-Jun-2025 15:45:15 In W.P.(C) No.24191 of 2020 Arjun Murmu …. -versus- Petitioner State of Odisha and others …. Opposite Parties Advocate(s) appeared in this case:- For Petitioner : Mr. S. Roy, Advocate For Opposite Parties : Mr. G. Tripathy, A.G.A. Mr. B. Routray, Senior Advocate Mr. J.K. Rath, Senior Advocate In W.P.(C) No.24192 of 2020 Sarmila Murmu …. -versus- Petitioner State of Odisha and others …. Opposite Parties Advocate(s) appeared in this case:- For Petitioner : Mr. S. Roy, Advocate For Opposite Parties : Mr. G. Tripathy, A.G.A. Mr. B. Routray, Senior Advocate In W.P.(C) No.24193 of 2020 Ajit Kumar Murmu …. -versus- Petitioner State of Odisha and others …. Opposite Parties Advocate(s) appeared in this case:- For Petitioner : Mr. S. Roy, Advocate For Opposite Parties : Mr. G. Tripathy, A.G.A. W.P.(C) No.37471 of 2020 and batch Page 2 of 68 Mr. B. Routray, Senior Advocate Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: A.R.-Cum-Sr.Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 03-Jun-2025 15:45:15 In W.P.(C) No.24194 of 2020 Sanjay Kumar Soren@Sanjay Soren …. -versus- Petitioner State of Odisha and others …. Opposite Parties Advocate(s) appeared in this case:- For Petitioner : Mr. S. Roy, Advocate For Opposite Parties : Mr. G. Tripathy, A.G.A. Mr. B. Routray, Senior Advocate In W.P.(C) No.26739 of 2020 Lasaban Mallick and others …. Petitioners -versus- State of Odisha and others …. Opposite Parties Advocate(s) appeared in this case:- For Petitioners
Legal Reasoning
: Mr. S. Roy, Advocate For Opposite Parties : Mr. G. Tripathy, A.G.A. Mr. S.K. Das, Advocate for private Opposite Parties In W.P.(C) No.29089 of 2020 Abhaya Kumar Padhi and others …. Petitioners -versus- State of Odisha and others …. Opposite Parties W.P.(C) No.37471 of 2020 and batch Page 3 of 68 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: A.R.-Cum-Sr.Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 03-Jun-2025 15:45:15 Advocate(s) appeared in this case:- For Petitioners : Mr. B.B. Mohanty, Advocate For Opposite Parties : Mr. G. Tripathy, A.G.A. Mr. S.K. Das, Advocate for private Opposite Parties In W.P.(C) No.36444 of 2020 Satchidananda Sethi and others …. Petitioners -versus- State of Odisha and others …. Opposite Parties Advocate(s) appeared in this case:- For Petitioners : Mr. B.B. Mohanty, Advocate For Opposite Parties : Mr. G. Tripathy, A.G.A. In W.P.(C) No.36496 of 2020 Nishikant Tete and others …. Petitioners -versus- State of Odisha and others …. Opposite Parties Advocate(s) appeared in this case:- For Petitioners : Mr. G. Mishra, Senior Advocate For Opposite Parties : Mr. G. Tripathy, A.G.A. Mr. S.B. Jena, Advocate for private Opposite Parties W.P.(C) No.37471 of 2020 and batch Page 4 of 68 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: A.R.-Cum-Sr.Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 03-Jun-2025 15:45:15 CORAM: JUSTICE B.P. ROUTRAY JUDGMENT 3rd June, 2025 B.P. Routray, J. 1. All the above 10 (ten) writ petitions are involving the same issue of inter-se seniority in the ministerial cadre of Assistant Section Officer (in short, “ASO”) in Odisha Secretariat Service. These writ petitions can be broadly divided into two categories. First category consisting of 7 (seven) writ petitions, i.e. W.P.(C) Nos.24191, 24192, 24193, 24194, 26739 and 36496 of 2020 involve the dispute of inter-se seniority among two batch of direct recruits, and Second category comprising 3(three) writ petitions, i.e. W.P.(C) Nos.17311, 29089 and 36444 of 2020 involve dispute of inter-se seniority between the promotees and inductee appointees versus direct recruits. 2. To deal with the first category, the facts described succinctly are that, two advertisements to fill up the posts of ASO were issued in the year 2012-13 and the year 2015-16. Advertisement No.08 dated 6.10.2012 was issued by the Odisha Public Service Commission (in short, ‘OPSC’) inviting applications to fill up 811 vacancies for the post of ASO through direct recruitment. Since some dispute arose relating to number of reserved posts leading to filing of judicial proceedings, a corrigendum was issued on 21.8.2014 modifying category-wise vacancies and extending the last date of application with stipulation that the candidates, who had already applied, are not W.P.(C) No.37471 of 2020 and batch Page 5 of 68 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: A.R.-Cum-Sr.Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 03-Jun-2025 15:45:15 required to reapply. Subsequently on 14.05.2015, Advertisement No.06 of 2015-16 was issued by the OPSC to conduct a recruitment drive for ST category candidates for 140 vacancies in total and all the posts were reserved for Scheduled Tribe candidates only. The recruitment process pursuant to Advertisement No.08, dated 6.10.2012 could not be completed due to some unavoidable reasons including filing of judicial proceedings and in the meantime, the recruitment process in respect of Advertisement No.06, dated 14.5.2014 was completed with recommendation of 139 candidates by the OPSC on 22.12.2015. Amongst said recommendees, 136 candidates were issued with appointment order vide Home Department Order No.3148/OSS dated 27.1.2016. Subsequently on 10.9.2016, the OPSC sent the list of 810 select candidates in respect of the vacancies in Advertisement No.08 of 2012-13. Amongst those recommendees, 787 candidates were issued with appointment
Decision
order on 5.10.2016 vide Home Department Order No.35258/OSS. 3. It is to be mentioned here that prior to 30.9.2008 “Junior Assistant” was the entry level post in the ministerial service cadre in Odisha State Secretariat in terms of the Odisha Secretariat Service (Method of Recruitment and Conditions of Service of Junior Assistants of Departments of Odisha Secretariat) Rules, 1951 (in short, ‘1951 Rules’). On 30.9.2008, W.P.(C) No.37471 of 2020 and batch Page 6 of 68 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: A.R.-Cum-Sr.Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 03-Jun-2025 15:45:15 the positions of “Junior Assistant” and “Senior Assistant” in Odisha Secretariat Service was merged into one base level cadre and re-designated as Assistant Section Officer (ASO). On 6.4.2010, the Odisha Secretariat Service (Method of Recruitment and Conditions of Service of Assistant Section Officers) Rules, 2010 (in short, “2010 Rules”) came into force repealing the earlier 1951 Rules. Again, the Odisha Secretariat Service (Method of Recruitment and Conditions of Service) Rules, 2016 (in short, “2016 Rules”) came into force on 11.1.2017 superseding 2010 Rules. On 12.4.2018, the tentative Gradation List of ASOs as on 1.1.2018 was published inviting objections and consequent thereto, the final Gradation List of ASOs as on 1.1.2018 was published on 11.6.2020 vide Letter No.20286/OSS of Home Department. Said final Gradation List dated 11.6.2020 is the subject matter of challenge in all the writ petitions with regard to placement of different candidates inter-se. 4. The Petitioners in 7(seven) writ petitions (hereinabove stated as first category) are the candidates appointed on 27.1.2016 (on 18.5.2016 for one more candidate) selected pursuant to Advertisement No.06, dated 14.5.2016. It is their submission that, they being appointed prior to those direct recruits of ASOs selected pursuant to Advertisement No.08 of 2012-13, they should be placed above in the Gradation List in terms of their seniority in service. Their further case is that, their W.P.(C) No.37471 of 2020 and batch Page 7 of 68 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: A.R.-Cum-Sr.Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 03-Jun-2025 15:45:15 appointment being made under 2010 Rules, their seniority in service must be counted in terms of the provisions of 2010 Rules. Therefore, the placement of those direct recruits selected pursuant to Advertisement No.08 of 2012-13 and appointed on 5.10.2016 (on 9.11.2016, 13.12.2016 and 26.12.2016 in respect of 12 more candidates) above the candidates appointed earlier is completely illegal and against the prevalent provisions of 2010 Rules. Similar is the case of the promotes/inductees in other three writ petitions (hereinabove stated as second category) that, they being appointed much prior to the appointment of those direct recruits selected pursuant to the Advertisement No.08 of 2012-13 and 06 of 2015-16, they should be placed in higher position than those candidates. 5. The facts being complicated in nature are sorted chronologically below for better appreciation. On 30.9.2008 the erstwhile posts of Junior Assistant and Senior Assistant in Odisha Secretariat Service were merged into one base level cadre and re-designated as “ASO”. The Odisha Secretariat Service (Method of Recruitment and Conditions of Service of Assistant Section Officers) Rules, 2010 came into force on 07.04.2010 repealing earlier 1951 Rules. Requisitions for regular recruitment to 811 vacant posts of ASO was sent by the Home Department vide Letter W.P.(C) No.37471 of 2020 and batch Page 8 of 68 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: A.R.-Cum-Sr.Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 03-Jun-2025 15:45:15 No.41522/CC dated 26.9.2011 and Letter No.42011/CC dated 30.9.2011 to OPSC. The OPSC issued Advertisement No.08 of 2012-13 on 6.10.2012 inviting applications for direct recruitment to 811 vacant posts of ASOs. The Odisha Administrative Tribunal (OAT) issued a direction on 18.10.2012 in OA No.1417/2012 (Amar Chhatoi vs. State) not to exceed reserved category vacancies more than 50% in respect of Advertisement No.08 of 2012-13. The Home Department vide Letter No.13883/CC dated 6.4.2013 communicated revised category-wise vacancy of posts in respect of Advertisement No.08 of 2012-13. Further in another Letter No.13884/CC dated 6.4.2013 (on the same date) requested the OPSC to conduct another recruitment drive for Scheduled Tribe category candidates. The OAT in order dated 12.12.2013 while disposing of OA No.1417/2012 (Amar Chhatoi vs. State), quashed Notification dated 7.2.2009 of Odisha Government regarding the Odisha Reservation of Posts and Services Act, 2008 and directed the State and OPSC to modify Advertisement No.08 of 2012-13 to ensure total reservation for ST, SC and SEBC categories not exceeding 50% in total. The Government of Odisha issued Resolution bearing No.17025 on 24.5.2014 mentioning the reservation of W.P.(C) No.37471 of 2020 and batch Page 9 of 68 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: A.R.-Cum-Sr.Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 03-Jun-2025 15:45:15 posts and services in favour of SEBC to the extent of 11.25%. Pursuant to the request of Government in Home Department, the OPSC issued a corrigendum on 21.8.2014 modifying the category-wise vacancy for the posts of ASO in respect of Advertisement No.08 of 2012-13 while keeping all other conditions unaltered, but extending the last date of application with stipulation that the candidates already applied need not re-apply. The OPSC issued Advertisement No.06 of 2015-16 on 14.5.2015 to conduct recruitment drive for ST category of candidates only against 140 vacancies of ASO posts in total. The OPSC recommended the names of 139 ST candidates on 22.12.2015 selected pursuant to Advertisement No.06 of 2015-16. The Home Department issued appointment order in respect of 136 ST candidates on 27.1.2016 and in respect of another ST candidate subsequently. The OPSC recommended the names of 810 candidates on 10.9.2016 in respect of Advertisement No.08 of 2012-13. The State Government in Home Department issued appointment orders in respect of 787 candidates on 5.10.2015 selected pursuant to Advertisement No.08 of 2012-13 and further, issued three other appointment orders dated 9.11.2016, 13.12.2016 and 26.12.2016 in respect of one candidate, 10 candidates and one candidate W.P.(C) No.37471 of 2020 and batch Page 10 of 68 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: A.R.-Cum-Sr.Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 03-Jun-2025 15:45:15 respectively selected pursuant to the Advertisement No.08 of 2012-13. The Odisha Secretariat Service (Method of Recruitment and Conditions of Service) Rules, 2016 came into force on 11.1.2017 superseding the Odisha Secretariat Service (Method of Recruitment and Conditions of Service of Assistant Section Officers) Rules, 2010 saving in respect of things done or omitted to be done before such supersession. The tentative Gradation List of ASOs as on 1.1.2018 was published on 12.4.2018 inviting objections. The final Gradation List of ASOs as on 1.1.2018 was published on 11.6.2020. 6. In the conspectus of facts narrated above, the dispute relating inter se seniority in the cadre of ASO arose. Let us see first the provisions of 2010 Rules and 2017 Rules governing inter-se seniority among the employees in the cadre of ASO. The relevant provisions of both 2010 Rules and 2016 Rules are re- produced below. 2010 Rules The 6th April 2010 No.15678-CC-G-03/10/CC.—In exercise of the powers conferred by the proviso to Article 309 of the Constitution of India, the Governor of Orissa is pleased to make the following rules regulating the method of recruitment and conditions of service of the persons appointed to the cadre the Departments of of Assistant Section Officer Government, namely : -- in W.P.(C) No.37471 of 2020 and batch Page 11 of 68 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: A.R.-Cum-Sr.Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 03-Jun-2025 15:45:15 PART – I PRELIMINARY 1.Short title and commencement (1) These rules may be called the Orissa Secretariat Service (Method of Recruitment and Conditions of Service of Assistant Section Officers) Rules, 2010. (2) They shall come into force on the date of their publication in the Orissa Gazettee. xxx xxx xxx 3.Constitution of Service The service shall consist of the cadre of Assistant Section Officers in the Departments of Government. xxx xxx xxx PART – II METHOD OF RECRUITMENT 5. Methods of recruitment Subject to other provisions made in these rules recruitment to the cadre shall be made by following methods, namely :-- (a) by means of competitive examination to be held once in a year by the commission. (b) by induction from among Senior Grade Typists, Senior Grade Diarists, Recorders and Senior Data Entry Operators of the Departments of Government by way of Promotion/Selection and (c) by induction from among Group ‘D’ employees working in Departments of Government by way of Limited Departmental Examination. xxx xxx xxx PART-IV PROMOTION 12. Promotion of Group ‘C’ employees W.P.(C) No.37471 of 2020 and batch Page 12 of 68 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: A.R.-Cum-Sr.Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 03-Jun-2025 15:45:15 shall be 10% of vacancies arising in a year subject to a maximum of 10 posts in the cadre of Assistant Section Officer in the Departments of Government filled up by promotion/selection of Senior Grade Typist, Senior Grade Diarist, Recorders and Senior Data Entry Operators of the Departments of Government, provided they have rendered at least 10 years of continuous service inclusive of at least 3 years service in the respective rank and possess Bachelor’s Degree in in Computer any discipline with adequate knowledge Application. xxx xxx xxx PART-V LIMITED DEPARTMENT EXAMINATION 15. Limited Departmental Examination (1) 5% of the vacancies arising in a year subject to a maximum of five posts in the cadre of Assistant Section Officer in the Departments of Government in a particular year shall be filled up from among the Group ‘D’ employees working in different Departments of Government by way of Limited Departmental Examination. ‘D’ employee shall be eligible (2) No Group for consideration for selection unless he has given willingness to that effect in writing and has put in at least 10 (ten) years of continuous service, possessed a Bachelor Degree in any discipline and has adequate knowledge in computer application. (3) A Limited Departmental examination shall be conducted on the subjects specified in the Schedule by the committee constituted under rule 13. (4) The minimum qualifying marks in each subject shall be 33%. (5) The committee shall prepare a common list of successful candidates equal to the number of vacancies in order to merit. xxx xxx xxx 17. Inter-se seniority W.P.(C) No.37471 of 2020 and batch Page 13 of 68 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: A.R.-Cum-Sr.Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 03-Jun-2025 15:45:15 (1) The inter-se seniority of the officers appointed to the service in a particular year shall be in the order in which their names appear in the select list. (2) Those appointed by promotion/selection under clause(b) of rule-5 shall en-bloc be senior to those appointed by limited departmental examination under clause (c) of rule-5, who shall in turn en-bloc be senior to those appointed by direct recruitment under clause (a) of rule-5. xxx xxx xxx 19. Other conditions of service The conditions of service in regard to matters not covered by these rules shall be the same as are or as may from time to time be prescribed by the Government. xxx xxx xxx 21. Repeal and Savings (1) The Odisha Ministerial Service (Method of Recruitment and Conditions of Service of Junior Assistants in the Offices of regulations, Departments of Secretariat) Rules, 1951, instructions or orders the in force commencement of these rules in respect of matters relating to the service and covered by these rules are hereby repealed: immediately before Provided that any order or appointment made, action taken or things done under the rules, regulations, instructions or orders so repealed shall be deemed to have been made, taken or done under these rules. 2016 Rules The 9th January, 2017 No.1009-HOME-OSS-RULES-0001/2016/HD.—In exercise of the powers conferred by the proviso to Article 309 of the Constitution of India and in supersession of the Odisha Secretariat Service (Method of Recruitment and Conditions of Service of Assistant Section Officers) Rules, 2010, the Odisha Secretariat Service (Junior) Rules, 1981, the Odisha Secretariat Service (Group-B) Rules, 1986 and he Odisha Secretariat W.P.(C) No.37471 of 2020 and batch Page 14 of 68 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: A.R.-Cum-Sr.Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 03-Jun-2025 15:45:15 Service Rules, 1980 except as respect of things done or omitted to be done before such supersession, the Governor of Odisha hereby makes the following rules regulating the method of recruitment and conditions of service of the persons appointed to the Odisha Secretariat Service, namely : -- PART – I GENERAL 1. Short title and commencement (1) These rules may be called the Odisha Secretariat Service (Method of Recruitment and Conditions of Service) Rules, 2016. (2) They shall come into force on the date of their publication in the Odisha Gazettee. xxx xxx xxx 3. Constitution of the Service:-The Service shall consist of the following posts, namely:-- (a) Assistant Section Officer, Group-B; (b) Section Officer, Group-B; (c) Desk Officer, Group-B; (d) Under Secretary, Group-A (Junior Branch); (e) Deputy Secretary, Group-A (Senior Branch); (f) Joint Secretary (Suppertime Scale) and (g) Additional Secretary (Superior Administrative Grade). PART – II METHOD OF RECRUITMENT 4. Method of recruitment:-Subject to other provisions made in these rules, recruitment to different grades in the service shall be made by the following methods, namely:- (a) in respect of the post of Assistant Section Officer in Group-B as specified in clause(a) of rule 3 – (i) by means of competitive examination to be held at least once in a year by the Commission in accordance with rule 6: W.P.(C) No.37471 of 2020 and batch Page 15 of 68 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: A.R.-Cum-Sr.Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 03-Jun-2025 15:45:15 (ii) by selection from among the Senior Grade Typists, Senior Grade Diarists, Recorders and Senior Data Entry Operators of the Departments of Government and (b) in respect of the other posts by way of promotion in accordance with these rules. xxx xxx xxx PART-IV PROMOTION 11. Criteria for Selection-(1) 10% of vacancies arising in a year subject to a maximum of 10 posts of Assistant Section Officer in the Departments of Government shall be filled up by selection of eligible and willing Senior Grade Typist, Senior Grade Diarist, Recorders and Senior Data Entry Operators of the Departments of Government mentioned under clause (a)(ii) of rule 4, provided they have rendered at least 10 years of continuous service inclusive of at least 3 years service in the respective rank, are not above 45 years of age and possess Bachelor’s Degree in any discipline with adequate knowledge in Computer Application as specified in the schedule. (2) The willing candidates shall undergo a test in Computer Application as per the syllabus specified in the Schedule. xxx xxx xxx PART-V OTHER CONDITIONS OF SERVICE 17. Inter-se Seniority:- (1) The inter-se seniority of the Assistant Section Officers of the service in respect of a particular recruitment year shall be in the following manner, namely:- (i) the promote officers shall be ranked inter-se in the order in which their names appear in the select list. (ii) the direct Recruit officers shall be ranked inter-se in the order in which their names appear in the merit list prepared by the Commission. (iii) the officers appointed by selection under sub- clause(ii) of clause (a) of rule-4 shall en-bloc be senior to those W.P.(C) No.37471 of 2020 and batch Page 16 of 68 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: A.R.-Cum-Sr.Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 03-Jun-2025 15:45:15 appointed by direct recruitment under sub-clause (i) of clause (a) of rule-4. (2) The inter-se seniority of the officers in grades other than the Assistant Section Officer in the service shall be in the order in which their names appear in the approved select list formed under rule 16. to 18. Appointment the Service:--(1) the Posts Appointment to the posts in the service by direct recruitment shall be made in the order in which the names of the persons appear in the merit list furnished by the Commission. in (2) Appointment to the posts in the service by promotion shall be made in accordance with the rules framed and procedure outlined by the Government from time to time. xxx xxx xxx 21. Other Conditions of Service:- The conditions of service in regard to matters not covered by these rules shall be the same as are or as may from time to time be prescribed by the Government.” 7. It is the contention of Petitioners, appointed pursuant to the selection in respect of Advertisement No.06 of 2015-16, that the Rules prevailing, i.e. 2010 Rules, on the date of their appointment has to be counted for determining their seniority in service. They further rely on the principles propounded with regard to inter-se seniority in the case of K. Meghachandra Singh and others vs. Ningam Siro and others, 2020 (5) SCC 689. Similar contentions are also advanced by the promotee- Petitioners to place their seniority above the direct recruits in the Gradation List. Conversely, it is submitted on behalf of the direct recruits selected pursuant to the Advertisement No.08 of 2012- 13 that, the provisions in 2010 Rules as well as 2017 Rules speak in their favour to determine their seniority above the promotes W.P.(C) No.37471 of 2020 and batch Page 17 of 68 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: A.R.-Cum-Sr.Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 03-Jun-2025 15:45:15 and direct recruits selected pursuant to Advertisement No.06 of 2015-16. 8. Before delving into the factual aspects vis-à-vis the rival contentions of the parties, it is required to see the principles propounded in different judgements of Apex court governing inter-se seniority among the employees in the same cadre. 9. In Mervyn Coutindo and others vs. Collector of Customs, Bombay and others, 1966 SCC OnLine SC 13, it is held by the Supreme Court as follows:- “3. We shall first consider the question of Appraisers. As far back as 1936, an order was passed by the Board which laid down that recruitment to the Customs Appraisers' Service would be from two sources i.e. 50 per cent by promotion, 25 per cent directly from experts and 25 per cent by means of a competitive examination or selection by the Public Service Commission. It was also said in the said order that those percentages would be the maximum and the Collectors of Customs would not be bound to recruit up to the maximum particularly in the case of recruitment by promotion. In actual practice however this order has been acted upon as if it provides 50 per cent for promotees and 50 per cent for direct recruits, whether they are experts or come by competitive examination or selection by the Public Service Commission. In 1940, the Government of India issued a circular for the determination of relative seniority of candidates appointed by direct recruitment and by promotion. In that circular it was stated that “where in a department two permanent or quasi permanent vacancies occur, even simultaneously, and the first vacancy is in accordance with the rotation meant for a direct recruit, the direct recruit will rank in seniority above the promotee even though he joined his post after the promotee had been promoted and confirmed”. Reliance has been placed on behalf of the Union on this circular in the matter of fixation of seniority between direct recruits and promotees in a cadre in which rotational system prevails. The petitioners however rely in reply on a circular issued in June 1949. That circular dealt with the seniority of displaced government servants who had W.P.(C) No.37471 of 2020 and batch Page 18 of 68 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: A.R.-Cum-Sr.Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 03-Jun-2025 15:45:15 been absorbed temporarily in service under the Central Government. The occasion for that circular was the division of India, and the creation of Pakistan resulting in displacement of a large number of public servants from the area which went to Pakistan. That circular provided for a change in the system due to displaced government servants having in most cases lost all their property and having to migrate in difficult circumstances. It was therefore thought fit to give some weightage in the matter of seniority to such persons on compassionate grounds. It was therefore decided that the seniority of persons appointed on permanent or quasi permanent basis before January 1, 1944 should not be disturbed, but thereafter displaced persons should be given consideration and their seniority counted on the basis of length of service in the particular grade as well as service in an equivalent grade. “Service in an equivalent grade” was defined as service on a rate of pay higher than the minimum of the time scale of the grade concerned. The principle of this circular was also applied to ex-government servants of Burma appointed under the Central Government and employees of the former Part B States taken over by the Centre as a result of federal financial integration. Naturally as this change could not be applied only to displaced persons etc. it was applied to the existing government servants of the Government of India also from January 1, 1944. But there is nothing in the circular to show that the seniority of the existing government servants inter se was to be disturbed on the basis of this circular. The real purpose of this circular appears to be to fix seniority for displaced persons etc. in accordance with it and for that purpose it applied the same principle to the existing central government servants from January 1, 1944. 4. It appears that by 1959, the circular of 1949 for absorption of displaced government servants etc., had worked itself out, therefore, on December 12, 1959, the Government of India issued another circular containing general principles for determining seniority of various categories of persons employed in central services. By this circular, the circular of 1949 and certain other circulars issued to deal with special types of recruitment like war service candidates were cancelled, and thereafter seniority was to be determined by the circular of 1959, which states that instructions contained in the said circulars had achieved their object and there was no longer any reason to apply those instructions in preference to the normal principles for determining seniority in future. For the future certain general principles were laid down for fixing the seniority in the circular of 1959. These principles were not to apply retrospectively but were given effect to from the date of W.P.(C) No.37471 of 2020 and batch Page 19 of 68 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: A.R.-Cum-Sr.Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 03-Jun-2025 15:45:15 their issue, subject to certain reservations with which we are not concerned. xxx xxx xxx 7. This brings us back to the circular of 1959, and the main question in that connection is the meaning to be assigned to the words “seniority determined accordingly”, in the explanation to principle 6 relating to relative seniority of direct recruits and promotees. As we read these words, their plain meaning is that seniority as between direct recruits and promotees should be determined in accordance with the roster, which has also been specified, namely, one promotee followed by one direct recruit and so on. Where therefore recruitment to a cadre is from two sources, namely, direct recruits and promotees and rotational system is in force, seniority has to be fixed as provided in the explanation by alternately fixing a promotee and a direct recruit in the seniority list. We do not see any violation of the principle of equality of opportunity enshrined in Article 16(1) by following the rotational system of fixing seniority in a cadre half of which consists of direct recruits and the other half of promotees, and the rotational system by itself working in this way cannot be said to deny equality of opportunity in government service. The anomalies which have been referred to in the petition arise not on account of there being anything opposed to equality of opportunity in government service by the use of the rotational system; they arise out of the fortuitous circumstance that in this particular service of Appraisers, for one reason or another, direct recruitment has fallen short of the quota fixed for it. It is merely because of this fortuitous circumstance that anomalies to which reference has been made in the petition have arisen. There is no doubt that if direct recruitment had kept pace with the quota fixed therefor there would have been no anomalies in fixing the seniority list. The question therefore narrows down to this : Can it be said that there is denial of equality of opportunity which arises out of this fortuitous circumstance and which is not a vice inherent in the rotational system? We are not prepared to say that the rotational system of fixing seniority itself offends equality of opportunity in government service. Any anomalies which may have resulted on account of insufficient recruitment of direct recruits in the past cannot in our opinion be a ground for striking down the rotational system, which, as we have said, does not itself amount to denial of equality of opportunity in the matter of employment in government service. It is regrettable that some anomalies have appeared because of W.P.(C) No.37471 of 2020 and batch Page 20 of 68 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: A.R.-Cum-Sr.Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 03-Jun-2025 15:45:15 insufficient recruitment of direct recruits in the past in this particular service. But that in our opinion can be no reason for striking down the seniority list prepared in 1963 which is undoubtedly in strict accordance with the rotational system based on the fixed quotas for recruitment of direct recruits and promotees. The order of the Board of 1963 on the basis of which the impugned seniority list of Appraisers has been prepared clearly lays down that “the principle of determination of seniority of the direct recruits and the promotees inter se in the prescribed ratio of 1 : 1 should be worked out”. This order is in accordance with the circular of 1959 and as we have said already, there is no inherent vice in the principle of fixing seniority by rotation in a case where a service is composed in fixed proportion of direct recruits and promotees. Nor do we think that this system is on a par with the carry-forward Rule which was struck down by this Court in T. Devadasan v. Union of India1 and on which strong reliance is placed on behalf of the petitioners. In the case of the carry forward Rule certain quota is fixed annually for a certain class of persons and it is carried forward from year to year. This is very different from a case where a service is divided into two parts and there are two sources of recruitment, one of promotion and the other by direct recruitment. In such a case, the whole cadre of a particular service is divided into two parts and there is no question of carrying anything forward from year to year in the matter of annual intake. The basis on which the carry-forward Rule was struck down by this Court does not therefore apply to a case where the whole cadre of a service is divided in certain fixed proportions between promotees and direct recruits. The petitioners therefore can get no assistance from Devdasan’s case. The petition must therefore fail so far as seniority of Appraisers is concerned. 8. This brings us to the question of Principal Appraisers. We are of opinion that the petitioners have a legitimate grievance in this respect. The source of recruitment of Principal Appraisers is one, namely, from the grade of Appraisers. There is therefore no question of any quota being reserved from two sources in their cases. The rotational system cannot therefore apply when there is only one source of recruitment and not two sources of recruitment. In a case therefore where there is only one source of recruitment, the normal Rule will apply, namely, that a person promoted to a higher grade gets his seniority in that grade according to the date of promotion subject always to his being found fit and being confirmed in the higher grade after the period of probation is over. In such a case it is continuous appointment in the higher grade which determines W.P.(C) No.37471 of 2020 and batch Page 21 of 68 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: A.R.-Cum-Sr.Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 03-Jun-2025 15:45:15 seniority for the source of recruitment is one. There is no question in such a case of reflecting in the higher grade the seniority of the grade from which promotion is made to the higher grade. Insofar therefore as the respondent is doing what it calls restoration of seniority of direct recruits in Appraisers' grade when they are promoted to the Principal Appraisers' grade, it is clearly denying equality of opportunity to Appraisers which is the only source of recruitment to the Principal Appraisers' grade. There is only one source from which the Principal Appraisers are drawn, namely, Appraisers, the promotion being by selection and five years' experience as Appraiser is the minimum qualification. Subject to the above all Appraisers selected for the post of Principal Appraisers must be treated equally. That means they will rank in seniority from the date of their continuous acting in the Principal Appraisers' grade subject of course to the right of the Government to revert any of them who have not been found fit during the period of probation. But if they are found fit after the period of probation they rank in seniority from the date they have acted continuously as Principal Appraisers whether they are promotees or direct recruits. The present method by which the respondent puts a direct recruit from the grade of Appraiser, though he is promoted later, above a promotee who is promoted to the grade of Principal Appraiser on an earlier date clearly denies equality of opportunity where the grade of Principal Appraiser has only one source of recruitment, namely, from the grade of Appraisers. In such a case the seniority in the grade of Principal Appraisers must be determined according to the date of continuous appointment in that grade irrespective of whether the person promoted to that grade from the Appraisers' grade is a direct recruit or a promotee. This will as we have already said be subject to the Government's right to revert any one promoted as a Principal Appraiser if he is not found fit for the post during the period of probation. The petition therefore will have to be allowed with respect to the method by which seniority is fixed in the grade of Principal Appraisers. That method denies equality of opportunity of employment to the Appraisers who are the only source of recruitment to the grade of Principal Appraisers. What the impugned method seeks to do is to introduce a kind of reservation in respect of the two categories of Appraisers from which the promotions are made, and that cannot be done when the source of promotion is one.” W.P.(C) No.37471 of 2020 and batch Page 22 of 68 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: A.R.-Cum-Sr.Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 03-Jun-2025 15:45:15 10. In Direct Recruit Class II Engineering Officers’ Association vs. State of Maharashtra and others, (1990) 2 SCC 715, it is held as follows:- “47. To sum up, we hold that: (A) Once an incumbent is appointed to a post according to rule, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation. The corollary of the above rule is that where the initial appointment is only ad hoc and not according to rules and made as a stop-gap arrangement, the officiation in such post cannot be taken into account for considering the seniority.” 11. In Jagadish Ch. Patnaik and others vs. State of Orissa and others, (1998) 4 SCC 456, it is held as follows:- “2.This appeal is directed against the order dated 25-10-1994 in Miscellaneous of the Orissa Administrative Tribunal Petition No. 3229 of 1992, arising out of Original Application No. 73 of 1989. The appellants are graduates in civil engineering and had been recruited as Assistant Engineers in the Irrigation Wing in the Irrigation and Power Department in the State of Orissa after being duly selected by Orissa Public Service Commission in accordance with Orissa Service of Engineers Rule, 1941 (hereinafter referred to as “the Rules”). The respondents are promotees to the post of Assistant Engineers from amongst the Junior Engineers and Sub- Assistant Engineers. OA No. 78 of 1979 had been filed by the direct recruited Assistant Engineers claiming inter alia that the appointments of such direct recruits having been made against vacancies of the year 1978 they should be treated as appointees of the year 1978 and consequently their seniority should be determined on that basis under the promotee Assistant Engineers of that year notwithstanding the fact that they were factually appointed as Assistant Engineers in the year 1980. The Tribunal allowed the said application by order dated 29-6- 1992. It may be stated that the promotee Assistant Engineers of the years 1979 and 1980 had not been arrayed as party to the said proceedings. As the order of the Tribunal dated 29-6-1992 adversely affected the seniority of the promotee Assistant Engineers who had been promoted in the years 1979 and 1980 they filed a miscellaneous petition which was registered as Miscellaneous Petition No. 3229 of 1992 for reviewing the W.P.(C) No.37471 of 2020 and batch Page 23 of 68 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: A.R.-Cum-Sr.Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 03-Jun-2025 15:45:15 order dated 29-6-1992. They also filed a direct petition before the Tribunal which was registered as OA No. 2325 of 1992. The Tribunal disposed of both the original application as well as the miscellaneous petition by the impugned judgment and came to hold that the original application would not be maintainable since the question of inter se seniority has been decided in OA No. 73 of 1989 by order dated 29-6-1992. It, however, came to the conclusion that the review of the said order is maintainable particularly when the affected persons had not been arrayed as parties to the earlier decision. Thereafter by interpreting the rule of seniority, particularly Rule 26 of the Rules, it came to hold that the direct recruits cannot be held to be recruits of the year 1978 and on the other hand, must be held to be recruits of the year 1980 when the State Government by notification appointed those direct recruits as Assistant Engineers in March 1980. It further came to hold that such direct recruits, therefore, cannot be held to be senior to the promotees of the year 1979 and will be juniors to promotees of the year 1980. The aforesaid order of the Tribunal reviewing the earlier order dated 29-6-1992 is the subject-matter of challenge in this appeal. The promotees whose Original Application No. 2325 of 1992 was dismissed as not maintainable also filed a special leave petition by way of abundant caution and that special leave petition was also taken on board and was heard along with the present appeal. 3. The brief facts culminating in the impugned order of the Tribunal may be stated as hereunder: inviting applications from That in the year 1978 forty vacancies were available in the post of Assistant Engineer in the Irrigation Wing of the Irrigation Department of the State of Orissa out of which 10 posts were to be filled up by direct recruitment in accordance with Rule 7 of the Rules. Orissa Public Service Commission issued an advertisement the candidates eligible for appointments to the service in the year 1979 and after completing the process of selection prepared a list of selected candidates in accordance with Rule 13 of the Rules and submitted the same to the State Government sometime in November 1979. The State Government finally made the final selection in accordance with Rule 15 and required to undergo medical examination and issued letters of appointment in March 1980. Thereafter the appointees joined as Assistant Engineers. The respondents who are Junior Engineers had been promoted as Assistant Engineers in accordance with Rules on different dates in 1979 and 1980, namely, 27-8-1979, 27-11-1979, 4-2- selected candidates the W.P.(C) No.37471 of 2020 and batch Page 24 of 68 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: A.R.-Cum-Sr.Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 03-Jun-2025 15:45:15 1980, 4-11-1980 and 27-12-1980. Jagdish Patnaik, Appellant 1, who was a direct recruit to the post of Assistant Engineer filed Original Application No. 78 of 1989 in the State Administrative Tribunal seeking the relief that he should be given the seniority in the rank of Assistant Engineer below the promoted Assistant Engineers in the year 1978 since he has been recruited to the said post against a vacancy which has arisen for the year 1978 and for the delay caused by the department he should not be made to suffer. The Tribunal was persuaded to accept the said contention raised on behalf of Shri Patnaik and it came to hold that since he has been selected against a vacancy of the year 1978 his seniority in the cadre of Assistant Engineer should be determined treating him to be a recruit of the year 1978 notwithstanding the fact that he was appointed as an Assistant Engineer by notification dated 29-3- 1980. The Tribunal, therefore directed the State Government to fix the seniority of the said Shri Patnaik below the promoted Assistant Engineers of the year 1978. It may be stated at this stage that under Rule 26 of the Rules which deals with the inter se seniority of the Assistant Engineers as between direct recruits and promotees, the promoted officers recruited during the year would be considered senior to the officers directly recruited during the year. Since the implementation of the aforesaid direction of the Tribunal adversely affected the seniority of the promotee Assistant Engineers who had been promoted during the year 1979-80 they approached the Tribunal both by filing an application for review and by filing an original application, as already stated, and the Tribunal disposed of the same by the impugned order. xxx xxx xxx 6. Mr Raju Ramachandran, learned counsel appearing for some of the interveners who are direct recruits, supported the submissions made by Mr Banerjee, learned Senior Counsel and contended that there is a distinction between the expressions “recruitment” and “appointment” in service jurisprudence. The expression “recruitment” signifies a stage prior to the issuance of an actual appointment order, therefore, when the seniority rule contained in Rule 26 uses the expression “direct recruitment” there is no justification to construe that it is the actual year of appointment that would govern the seniority and in this view of the matter the impugned order of the Tribunal is erroneous in law. According to Mr Ramachandran, learned Senior Counsel the expression “direct recruitment” in Rule 26 of the Rules refers to the commencement of the process of recruitment which is fixed and ascertainable and not the date of W.P.(C) No.37471 of 2020 and batch Page 25 of 68 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: A.R.-Cum-Sr.Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 03-Jun-2025 15:45:15 actual appointment which for several reasons can be indefinitely delayed in a given case and there is no justification for construing Rule 26 in that manner. xxx xxx xxx 8. Mr P.N. Mishra, learned counsel appearing for the State of Orissa, supported the submissions made by Mr Sanghi and contended that the actual year during which the appointment is made to the cadre of Assistant Engineer, be it on promotion or be it on the basis of direct recruitment is the governing factor for determination of inter se seniority as is apparent from the language used in Rule 26 of the Rules. Mr Mishra, learned counsel further contended that under the scheme of the Rule, it is the State Government who has the final power of selection both for an appointment under direct recruitment as well as appointment under promotion and until that power is exercised no person can claim to have been recruited to the service and that being the position the year in which the vacancies arose and against which the recruitment made is irrelevant for the purpose of determining the seniority. Mr Mishra, learned counsel further submitted that Rule 5 which deals with recruitment to service is also indicative of the fact that a person can be said to be recruited only on being appointed to the rank of Assistant Engineer and therefore it is not possible to construe that for the purpose of determining the seniority any date anterior to the said appointment can at all be a germane consideration. Mr Mishra, learned counsel also submitted that the word “year” having been defined to mean a calendar year under Rule 3(f) of the Rules and Rule 26 being categorical to the effect that among the officers recruited by promotion and by direct recruitment during the same calendar year the promoted officers would be considered senior to the direct recruited officers, it is only logical to hold that when they are appointed to the post of Assistant Engineer which would be taken into account for the purpose of seniority and not otherwise. xxx xxx xxx 24. Rule 26 with which we are really concerned in the present case is the rule of seniority. It would be appropriate to extract the said Rule 26 in extenso: “26. Seniority.—(1) When officers are recruited by promotion and by direct recruitment during the same year, the promoted officers shall be considered senior W.P.(C) No.37471 of 2020 and batch Page 26 of 68 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: A.R.-Cum-Sr.Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 03-Jun-2025 15:45:15 to the officers directly recruited irrespective of their dates of joining the appointment. (2) Between the two groups of promoted officers, those promoted from the rank of Sub-Assistant Engineers shall en bloc be senior to those promoted from the rank of Junior Engineers. (3) Subject to provision of sub-rules (1) and (2) seniority of officers shall be determined in accordance with the order in which their names appear in the lists prepared by the Commission.” The very scheme of recruitment under the Rules, as indicated above, unequivocally indicates that in the case of direct recruits the final authority lies with the State Government who issues appointment orders from amongst the persons found eligible by the Public Service Commission and further who have been found medically fit by the Medical Board. Even such an appointee is also required to undergo probation for two years and thereafter he can be confirmed in the service. Under Rule 26, which is the Rule for determining inter se seniority between promotees and direct recruits when the expression used is “officers are recruited by promotion and by direct recruitment” necessarily it means that when they are appointed as Assistant Engineers by the State Government. To import something else into the Rule will neither be in the interest of justice nor is it necessary in any manner and it would tantamount to legislation by the Court. It is a well-known principle of construction of a statute that when the language used in the statute is unambiguous and on a plain grammatical meaning being given to the words in the statute, the end result is neither arbitrary, irrational or contrary to the object of the statute, then it is the duty of the court to give effect to the words used in the statute as the words declare the intention of the law-making authority best. In that view of the matter we do not see any justification to go into the question of quota meant for direct recruits and promotees nor is it necessary to find out as to the year in which the vacancy arose against which the recruitment is made. On an analysis of the scheme of the Rules, as narrated earlier, we are of the considered opinion that the expression “recruited” would mean appointed and the expression “during the same year” in Rule 26 would mean during the calendar year and, therefore, direct recruits recruited during the calendar year would be junior to the promotee recruits recruited during the said calendar year. W.P.(C) No.37471 of 2020 and batch Page 27 of 68 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: A.R.-Cum-Sr.Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 03-Jun-2025 15:45:15 x xx xxx xxx 32. The next question for consideration is whether the year in which the vacancy accrues can have any relevance for the purpose of determining the seniority irrespective of the fact when the persons are recruited? Mr Banerjee's contention on this score is that since the appellant was recruited to the cadre of Assistant Engineer in respect of the vacancies that arose in the year 1978 though in fact the letter of appointment was issued only in March 1980, he should be treated to be a recruit of the year 1978 and as such would be senior to the promotees of the years 1979 and 1980 and would be junior to the promotees of the year 1978. According to the learned counsel since the process of recruitment takes a fairly long period as the Public Service Commission invites application, interviews and finally selects them whereupon the Government takes the final decision, it would be illogical to ignore the year in which the vacancy arose and against which the recruitment has been made. There is no dispute that there will be some time lag between the year when the vacancy accrues and the year when the final recruitment is made for complying with the procedure prescribed but that would not give a handle to the Court to include something which is not there in the rules of seniority under Rule 26. Under Rule 26 the year in which vacancy arose and against which vacancy the recruitment has been made is not at all to be looked into for determination of the inter se seniority between direct recruits and the promotees. It merely states that during the calendar year direct recruits to the cadre of Assistant Engineer would be junior to the promotee recruits to the said cadre. It is not possible for the Court to import something which is not there in Rule 26 and thereby legislate a new rule of seniority. We are, therefore, not in a position to agree with the submission of Mr Banerjee, the learned Senior Counsel appearing for the appellants, on this score.” 12. In M. Subba Reddy and others vs. A.P. State Road Transport Corporation and others, (2004) 6 SCC 729, it is held as follows:- “38. As regards Point 3, in Suraj Parkash [(2000) 7 SCC 561 : 2000 SCC (L&S) 977] took into consideration a large number of earlier decisions of this Court and held that services of ad hoc/stopgap service of promotees the Division Bench W.P.(C) No.37471 of 2020 and batch Page 28 of 68 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: A.R.-Cum-Sr.Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 03-Jun-2025 15:45:15 can be regularised. The Court noticing the decisions relating to the employees governed by the Service Regulations framed by the State of Andhra Pradesh (which are in pari materia with the rules in question) in no uncertain terms held that services of an employee can be regularised with retrospective effect. This Court while arriving at the said conclusion also relied upon a large number of decisions arising from other States which also support the legal principle that the regularisation of the promotees with retrospective effect is permissible in law. It was categorically held: (SCC p. 598, para 79) “Service of the promotees which is regularised with retrospective effect from the date of vacancies within the quota counts for seniority.” 13. In Pawan Pratap Singh and others vs. Reevan Singh and others, (2011) 3 SCC 267, it is held as follows:- “1. In this group of three appeals, by special leave, the question presented for consideration before this Court relates to determination of seniority between two groups of direct recruits to the posts of Deputy Jailor (Group C post), one appointed in 1991 through the selection made by the Uttar Pradesh Subordinate Services Selection Commission (for short “the Selection Commission”) and the other in 1994 by the Uttar Pradesh Public Service Commission (for short “U.P. PSC”). xxx xxx xxx 5. On 26-12-1987, U.P. PSC published an advertisement (No. A-5/E-4/87-88) for holding the Combined Lower Subordinate Services Examination, 1987. It was mentioned the advertisement that the number of vacancies to be filled on the result of the examination is expected to be approximately 600 which included the vacancies in the cadre of Deputy Jailor. There is dispute of fact about actual number of vacancies in the cadre of Deputy Jailor notified by U.P. PSC in the above advertisement but the stand of the first respondent that 114 vacancies of Deputy Jailors were notified may be assumed as a fact for the purpose of these appeals. in xxx xxx xxx 14. On 29-8-1995, a tentative seniority list of Deputy Jailors was notified by the Inspector General (Prisons), the appointing W.P.(C) No.37471 of 2020 and batch Page 29 of 68 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: A.R.-Cum-Sr.Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 03-Jun-2025 15:45:15 authority, and objections were called for from the officers concerned. In that list, the candidates appointed in 1991 were shown senior to the candidates appointed in 1994. The litigation between the two groups started with this list. The tentative seniority list dated 29-8-1995 came to be challenged before the Allahabad High Court in three writ petitions; one by Bholanath Mishra (Writ Petition No. 26560 of 1996), the other by Samar Bahadur Singh (Writ Petition No. 13138 of 2000) and the third by the first respondent herein Reevan Singh (Writ Petition No. 22919 of 2001). The writ petition filed by Samar Bahadur Singh was dismissed by the High Court on the ground of availability of alternative remedy before the State Service Tribunal. The writ petition filed by the first respondent herein was allowed on 2-12-2002 and the High Court directed the State of Uttar Pradesh and the Director General (Prisons), Lucknow to treat the appointees of 1994 senior to the 1991 appointees. 15. The contention raised by the writ petitioner (the first respondent herein) before the High Court was that in view of the second proviso to Rule 5 of the 1991 Rules, the Deputy Jailors who were selected in the selection which commenced in 1987 must be treated senior to those selected pursuant to the selection that commenced in 1990. The Division Bench agreed with this contention and held as follows: “… In our opinion the correct interpretation of the proviso to Rule 5 of the U.P. Government Servants Seniority Rules, 1991 is that persons like the petitioner who were selected in the selection process which commenced in 1987 should be treated as senior to there (sic) selected in selection process which commenced in 1990.” xxx xxx xxx 33. Rule 4(h) defines “substantive appointment” as an appointment, not being an ad hoc appointment, on a post in the cadre of service, made after selection in accordance with the service rules relating to that service. It, thus, becomes abundantly clear that for determination of inter se seniority between the two rival groups (the 1991 and the 1994 appointees by direct recruitment) what is relevant is the date of the order of their substantive appointment and since the substantive appointment of the 1991 appointees is much prior in point of time, they must rank senior to the 1994 appointees. W.P.(C) No.37471 of 2020 and batch Page 30 of 68 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: A.R.-Cum-Sr.Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 03-Jun-2025 15:45:15 xxx xxx xxx 37. In Ram Janam Singh v. State of U.P. [(1994) 2 SCC 622 : 1994 SCC (L&S) 716 : (1994) 27 ATC 166] this Court reiterated that the date of entry into a service is the safest rule to follow while determining the inter se seniority between one officer or the other or between one group of officers and the other recruited from different sources. It was observed that this is consistent with the requirement of Articles 14 and 16 of the the It was, however, observed Constitution. circumstances so require, a group of persons can be treated a class separate from the rest for any preferential or beneficial treatment while fixing their seniority, but, normally such classification should be by statutory rule or rules framed under Article 309. that if this Court two-Judge Bench of 38. A in Jagdish Ch. Patnaik [(1998) 4 SCC 456 : 1998 SCC (L&S) 1156] while construing the word “recruited” occurring in the Orissa Service of Engineers Rules, 1941, held that a direct recruit is recruited when formal appointment order is issued and not when recruitment process is initiated. This is what this Court said: (SCC p. 469, para 34) the that the effect intervenors, “34. The only other contention which requires consideration is the one raised by Mr Raju Ramachandran, learned Senior Counsel appearing for the to expressions ‘recruitment’ and ‘appointment’ have two different concepts in the service jurisprudence and, therefore, when Rule 26 uses the expression ‘recruited’ it must be a stage earlier to the issuance of appointment letter and logically should mean when the selection process started and that appears to be the intendment of the rule-makers in Rule 26. We are, however, not persuaded to accept this contention since under the scheme of rules a person can be said to be recruited into service only on being appointed to the rank of Assistant Engineer, as would appear from Rule 5 and Rule 6. Then again in case of direct recruits though the process of recruitment starts when the Public Service Commission invites applications under Rule 10 but until and unless the Government makes the final selection under Rule 15 and issues appropriate orders after the selected candidates are examined by the Medical Board, it cannot be said that a W.P.(C) No.37471 of 2020 and batch Page 31 of 68 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: A.R.-Cum-Sr.Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 03-Jun-2025 15:45:15 person has been recruited to the service. That being the position it is difficult for us to hold that in the seniority rule the expression ‘recruited’ should be interpreted to mean when the selection process really started. That apart the said expression ‘recruited’ applies not only to the direct recruits but also to the promotees. In case of direct recruits the process of recruitment starts with the invitation of application by the Commission and in case of promotees it starts with the nomination made by the Chief Engineer under Rule 16. But both in the case of direct recruits as well as in the case of promotees the final selection vests with the State Government under Rules 15 and 18 respectively and until such final selection is made and appropriate orders passed thereon no person can be said to have been recruited to the service. In this view of the matter the only appropriate and logical construction that can be made of Rule 26 is the date of the order under which the persons are appointed to the post of Assistant Engineer, is the crucial date for determination of seniority under the said Rule.” xxx xxx xxx 40. In Ajit Kumar Rath [(1999) 9 SCC 596 : 2000 SCC (L&S) 192] this Court followed Jagdish Ch. Patnaik [(1998) 4 SCC 456 : 1998 SCC (L&S) 1156] and did not accept the contention that those who were appointed against the vacancies of the earlier years although, appointed later in point of time, must rank senior to the appointees of the vacancies of the subsequent years though appointed in prior point of time. 41. This Court emphasised in Uttaranchal Forest Rangers' Assn. [(2006) 10 SCC 346 : (2007) 1 SCC (L&S) 116] that no retrospective promotion can be granted nor can any seniority be given on retrospective basis from a date when an employee has not even been borne in the cadre. In this regard, the Court relied upon the earlier decisions of this Court in State of Bihar v. Akhouri Sachindra Nath [1991 Supp (1) SCC 334 : 1991 SCC (L&S) 1070 : (1991) 16 ATC 936] and Jagdish Ch. Patnaik [(1998) 4 SCC 456 : 1998 SCC (L&S) 1156] . 42. In Dinesh Kumar Sharma [(2007) 1 SCC 683 : (2007) 1 SCC (L&S) 594] this Court was concerned with the U.P. Agriculture Group B Service Rules, 1995 and the 1991 Rules. W.P.(C) No.37471 of 2020 and batch Page 32 of 68 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: A.R.-Cum-Sr.Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 03-Jun-2025 15:45:15 With reference to Rule 8 of the 1991 Rules, this Court held that seniority cannot be reckoned from the date of occurrence of the vacancy and should be reckoned only from the date of substantive appointment to the vacant post under the Rules and not retrospectively from the date of occurrence of vacancy. xxx xxx xxx 45. From the above, the legal position with regard to determination of seniority in service can be summarised as follows: (i) The effective date of selection has to be understood in the context of the service rules under which the appointment is made. It may mean the date on which the process of selection starts with the issuance of advertisement or the factum of preparation of the select list, as the case may be. (ii) Inter se seniority in a particular service has to be determined as per the service rules. The date of entry in a particular service or the date of substantive appointment is the safest criterion for fixing seniority inter se between one officer or the other or between one group of officers and the from different sources. Any other therefrom departure rules, the executive instructions or otherwise must be consistent with the requirements of Articles 14 and 16 of the Constitution. recruited statutory in (iii) Ordinarily, notional seniority may not be granted from the backdate and if it is done, it must be based on objective considerations and on a valid classification and must be traceable to the statutory rules. (iv) The seniority cannot be reckoned from the date of occurrence of the vacancy and cannot be given retrospectively unless it is so expressly provided by the relevant service rules. It is so because seniority cannot be given on retrospective basis when an employee has not even been borne in the cadre and by doing so it may adversely affect the employees who have been appointed validly in the meantime.” W.P.(C) No.37471 of 2020 and batch Page 33 of 68 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: A.R.-Cum-Sr.Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 03-Jun-2025 15:45:15 14. In Union of India and others vs. N.R. Parmar and others, (2012) 13 SCC 340, it is held as follows:- “1. The present controversy is a dispute of inter se seniority between Income Tax Department. The direct recruits and promotees are pitted on opposite sides. Inspectors of Income Tax the xxx xxx xxx 22. During the course of hearing, the learned counsel for the rival parties agreed, that the seniority dispute between the promotee and direct recruit Income Tax Inspectors of the Income Tax Department was liable to be determined on the basis of Office Memoranda dated 7-2-1986 and 3-7-1986, read with the clarificatory office memoranda and office notes. It is important to notice, before embarking upon the claim of the rival parties, that none of the parties have assailed the vires of the Office Memoranda dated 7-2-1986 and 3-7-1986 (or for that matter, the clarificatory office memoranda/office notes). It is therefore apparent, that the dispute between the rival parties is nothing but, the true and correct interpretation of the Office Memoranda dated 7-2-1986 and 3-7-1986, read with clarificatory office memoranda and office notes. It is therefore, that the matter in hand is being examined in the light of the aforesaid office memoranda. xxx xxx xxx 24. The aforesaid prescription of the manner of determining inter se seniority between the direct recruits and promotees, determined through the OM dated 22-12-1959, was modified by an Office Memorandum dated 7-2-1986, issued by the Government of India, Department of Personnel and Training (hereinafter referred to as “the OM dated 7-2-1986”). The modification introduced through the OM dated 7-2-1986 was to redress a situation wherein, vacancies of one of the sources were kept (or remained) unfilled during the process of selection, and the unfilled vacancies, had to be filled up through “later” examinations or the determination of seniority, in the contingency wherein the process of recruitment resulted in filling the vacancies earmarked for the two sources of recruitment, the manner of determining inter se seniority between promotees and direct recruits, expressed in the OM dated 22-12-1959 remained unaltered. But where the vacancies could not be filled up, and selections. For W.P.(C) No.37471 of 2020 and batch Page 34 of 68 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: A.R.-Cum-Sr.Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 03-Jun-2025 15:45:15 unfilled vacancies had to be filled up “later” through a subsequent process of selection, the manner of determining inter se seniority between promotees and direct recruits, was modified. xxx xxx xxx to forward 28.3. The unfilled direct recruitment quota vacancies for a recruitment year, would be carried the corresponding direct recruitment vacancies of the next year (and to subsequent years, where necessary) and vice versa. In this behalf, it is necessary to understand two distinct phrases used in the OM dated 3-7-1986. Firstly, the phrase “in that year” which connotes the recruitment year for which specific vacancies are earmarked. And secondly, the phrase “in the subsequent year”, which connotes carried-forward vacancies, filled in addition to, vacancies earmarked for a subsequent recruitment year. xxx xxx xxx 34.2. The words “initiation of action for recruitment”, and the words “initiation of recruitment process”, were explained to mean, the date of sending the requisition to the recruiting authority. xxx xxx xxx 43. We shall now endeavour to examine the effect of OM dated 3-3-2008 on the subject of inter se seniority between direct recruits and promotees: 43.1. Would the OM dated 3-3-2008 supersede the earlier OMs dated 7-2-1986 and/or 3-7-1986? 43.2. And, would the OMs dated 7-2-1986 and 3-7-1986 negate the OM dated 3-3-2008, to the extent that the same is repugnant to the earlier OMs (dated 7-2-1986 and 3-7-1986)? xxx xxx xxx rule applied