Orissa High Court
Case Details
ORISSA HIGH COURT: CUTTACK AFR W.P(C) NO. 19533 OF 2018 In the matter of an application under Articles 226 and 227 of the Constitution of India. --------------- Bijaya Kumar Sahoo ..… Petitioner -Versus- State of Odisha & Ors. ….. Opp. Parties For petitioner : M/s. K.K. Swain, S.K. Rout and Mr. S.C. Bairiganjan, Advocates For opp. parties : Mr. A.R. Dash, Addl. Government Advocate P R E S E N T: THE HONOURABLE ACTING CHIEF JUSTICE DR. B.R.SARANGI AND THE HONOURABLE MR JUSTICE MURAHARI SRI RAMAN Date of Hearing :15.11.2023 :: Date of Judgment : 22.11.2023 DR. B.R. SARANGI, ACJ. The petitioner, who was working as Senior Grade Typist in the office of Revenue Divisional Commissioner, Northern Division, Sambalpur and is on deputation in the office of Board of Revenue, Cuttack, has filed this writ petition seeking to quash the order dated 29.11.2017 passed in O.A. No.2704(C) of 2008, by which the Odisha Administrative Tribunal has // 2 // dismissed the said O.A. with regard to inter se fixation of seniority with opposite party no.3. 2. The factual matrix of the case, in brief, is that the petitioner was appointed as a Jr. Typist under the Revenue Divisional Commissioner (Northern Division), Sambalpur on 30.09.1997, pursuant to recruitment made by the Board of Revenue, Odisha in consonance with the procedure laid down by the Odisha Typist Service (Recruitment & Condition of Service of Typist in Office of Heads of Department) Rules, 1982 (for short “Rules, 1982”). As per Rule 13 of the said Rules, one Jr. Grade Typist on completing 03 years qualifying service becomes eligible for getting promotion to the post of Sr. Grade Typist, provided there exists vacancy in the promotional post and he/she is the senior most person in the cadre of Jr. Typist. The petitioner, who was appointed as Jr. Grade Typist on 30.09.1997, on completion of 03 years qualifying service in the aforesaid grade, became eligible for getting promotion to the post of Sr. Grade Typist on and from 30.09.2000. // 3 // 2.1. A gradation list of Jr. Typists working under RDC (ND), Sambalpur was published on 01.01.2001, wherein the name of the petitioner was placed above opposite party no.3. On 25/26.04.2001, DPC was convened for selection of candidates from the cadre of Jr. Typists for promotion to 03 posts of Sr. Typists, out of which, 02 were lying vacant and one was to fall vacant consequent upon promotion of one incumbent from the cadre of Sr. Grade Typist to the post of Type Superintendent. For promotion from the post of Sr. Grade Typists to the post of Type Superintendent, DPC was held under opposite party no.2 on 26.04.2001 and on the basis of recommendation of such DPC, one D.K. Kanhar, Sr. Grade Typist was promoted to the post of Type Superintendent, vide order dated 31.05.2001 passed by opposite party no.2. By the DPC held on 25.04.2001, 03 candidates belonging to the cadre of Jr. Grade Typist were selected and recommended for
Legal Reasoning
promotion to the post of Sr. Typist, namely, Sri A.K. Das (UR), Mrs. K.B. Rout (UR) & Mrs. P. Bhoi (SC). The above two UR candidates were senior to the petitioner in the grade of Jr. Typist, but Mrs. Pravati Bhoi (SC), // 4 // who was recommended by the DPC for promotion to the grade of Sr. Typist was junior to the petitioner in the cadre/grade. The petitioner was above opposite party no.3 in ranking in the list of direct recruitment to the post of Jr. Grade Typist and hence he was senior to opposite party no.3 in the cadre of Jr. Grade Typist. 2.2. Basing upon recommendation of DPC dated 25.04.2001, opposite party no.3-Mrs. Pravati Bhoi was promoted to the grade of Sr. Typist by opposite party no.2 and, accordingly, she joined her promotional post on 31.05.2001. As per Roster Register, the 03 vacancies in the grade of Sr. Typist, which were filled up by the aforementioned 03 candidates on the basis of recommendation made by the DPC were meant for candidates of UR category, but in violation of such Roster Rules, opposite party no.3 (SC) was promoted to the grade of Sr. Typist, vide order dated 31.05.2001, ignoring the case/entitlement of the petitioner, who is a candidate of UR category. In the year 2004, the petitioner was posted under the Board of Revenue, Odisha, Cuttack on deputation from Revenue Divisional // 5 // Commissioner (ND), Sambalpur on administrative exigency and since then, he has been continuing there at Cuttack by way of extension of his period of deputation from time to time. 2.3. The promotion of D.K. Kanhar to the post of Type Superintendent was challenged by one Markardhwaj Pradhan before the Odisha Administrative Tribunal, Cuttack Bench, Cuttack in O.A. No.24820 of 2001 contending therein that, his above promotion amounts to 100% reservation and hence it was impermissible in law. The Tribunal, taking note of the above legal position, passed an interim order on 07.12.2001 making it clear that, the continuance of D.K. Kanhar in the post of Type Superintendent beyond 31.01.2002 shall be made with the leave of the Tribunal. Pursuant to order dated 07.12.2001 passed by the Tribunal, D.K. Kanhar was reverted to the grade of Sr. Typist w.e.f. 31.01.2002, vide order of the RDC (ND), Sambalpur and opposite party no.3, who had been promoted to the post of Sr. Grade Typist against the vacancy arose out of promotion of D.K. Kanhar to // 6 // the post of Type Superintendent was reverted to the post of Jr. Grade Typist on 31.01.2002 for giving way for continuance of D.K. Kanhar in the grade of Sr. Typist on his reversion from the post of Type Superintendent. 2.4. Subsequently, on promotion of Makardhwaj Pradhan to the post of Type Superintendent, vide order dated 29.09.2007 passed by opposite party no.2, a vacancy in the post of Sr. Grade Typist arose, wherein opposite party no.3 was appointed by way of promotion from the Junior Grade Typist. Aggrieved by the said order, the petitioner submitted representation before opposite party no.2 on 09.10.2007 stating therein that he being a candidate of UR category ought to have been promoted to the vacancy arose in the post of Sr. Typist on promotion of Markardhwaj Pradhan to the post of Type Superintendent. But the said representation was not considered by the authority. Consequentially, the petitioner submitted another representation before opposite party no.2 on 31.01.2008 seeking promotion to the post of Sr. Grade Typist from the date opposite // 7 // party no.3 was promoted. Then, a DPC was convened on 07.02.2008 for recommendation of the case of the petitioner for promotion to the post of Sr. Typist, but no order of promotion was issued in his favour. Therefore, he again submitted another representation before opposite party no.2 on 20.06.2008, but no action was taken. 2.5. Aggrieved by the action of opposite party no.2 in not considering his case for promotion to the post of Sr. Grade Typist from 01.05.2001 and giving promotion to opposite party no.3 to such post, the petitioner approached the Odisha Administrative Tribunal, Cuttack Bench, Cuttack by filing O.A. No.2704(C) of 2008 stating therein that the vacancy in the post of Sr. Grade Typist, to which opposite party no.3 was promoted, was meant for candidate of UR category and he being a candidate of such category ought to have been promoted to such post, when he is senior to opposite party no.3 and is fully eligible for promotion to the post of Sr. Grade Typist after rendering three years qualifying service in the post of Jr. Grade Typist as per // 8 // the Rules, 1982. Subsequently, he was given promotion in 2009. The Tribunal, after hearing the parties, rejected the claim of the petitioner by dismissing O.A. No. 2704(C) of 2008. Hence, this writ petition. 3. Mr. S.K. Swain, learned counsel appearing for the petitioner contended that the petitioner, having belonged to UR category, is entitled to get promotion to the Sr. Grade Typist from the date his junior, i.e., opposite party no.3, who belongs to SC category, was promoted. It is further contended that since opposite party no.3 was promoted to the post of Sr. Grade Typist on 27.09.2007, the promotion of the petitioner should relate back to 2007, as he was given promotion on 05.02.2009. It is further contended that the question revolves round that the petitioner, being senior to opposite party no.3, should be given promotion to the post of Sr. Grade Typist w.e.f. 27.09.2007, the date opposite party no.3 was promoted, instead of 05.02.2009, the date on which actual promotion has been given to him. // 9 // 4. Mr. A.R. Dash, learned Addl. Government Advocate appearing for the State-opposite parties vehemently contended that the DPC was held on 25.04.2001 and 26.04.2001 for selection of Junior Grade Typist for promotion to the post of Senior Grade Typist and Type Superintendent respectively. The Committee recommended the name of one Senior Grade Typist (ST) for promotion to the post of Type Superintendent and the names of three Junior Grade Typists for promotion to the post of Senior Grade Typist. Though all the three posts of Senior Grade Typist against the Roster Points-13, 14 & 15 were meant for unreserved category, there were two backlog vacancies, one for S.C and another for S.T. So, the Committee selected the names of three Junior Grade Typists, two from the unreserved category, who are senior to Sri Bijaya Kumar Sahoo, the petitioner herein, and one available S.C category i.e Smt. Pravati Bhoi- opposite party no.3, though she was junior to Sri Sahoo, for promotion to the post of Senior Grade Typist in order to fill up the backlog vacancy as per the provisions of ORV Act and Rules. The promotion order of Sri D.K.Kanhar, // 10 // Senior Grade Typist to the post of Type Superintendent, vide office order no. 1345 dated 31.05.2001 and the promotion order no.1357 dated 01.06.2001 for the consequential vacancy in the post of Senior Grade Typist were challenged by one Makardhwaj Pradhan, Senior Grade Typist by filing O.A No.2482(C) of 2001 before the Odisha Administrative Tribunal, Cuttack Bench, Cuttack contending that after joining of Sri D.K.Kanhar, two posts of Type Superintendent were filled up by one S.C. and one S.T. category employees for which the percentage of reservation became 100% which is not permissible, and that as Makardhwaj Pradhan was the senior most Senior Grade Typist, he should have been promoted in place of Sri Kanhar. The Tribunal passed interim order on 7.12.2001 to the effect that "continuance of Respondent No.3 (i.e Sri kanhar) in the promotional post beyond 31.01.2002 shall be with the leave of the Tribunal". By virtue of interim order passed by the Tribunal, Dillip Kumar Kanhar, Type Superintendent was reverted back to his former post of Senior Grade Typist and consequent upon reversion, opposite party no.3-Pravati Bhoi, the junior most Senior // 11 // Grade Typist was also reverted back to her former post of Junior Grade Typist w.e.f. 31.01.2002 afternoon, vide RDC Office’s Order dated 31.01.2002. After reversion to the post of Senior Grade Typist, Dillip Kumar Kanhar submitted a representation on 30.08.2006 stating that he was not interested for promotion to the post of Type Superintendent, but interested to be promoted to the post of Senior Assistant. Makardhwaj Pradhan also requested, vide his representation dated 23.05.2007, for his promotion to the post of Type Superintendent, as D.K.Kanhar was not interested for the said post. The Tribunal, vide order dated 19.04.2007 passed in O.A No.2482(C) of 2001, permitted to withdraw the said case
Decision
and accordingly, the case was disposed of as withdrawn. Consequent upon reversion of D.K.Kanhar from the post of Type Superintendent to the post of Senior Grade Typist, one post of Type Superintendent was fallen vacant. To fill up the said post, a DPC meeting was held on 20.09.2007, wherein the name of Makardhwaj Pradhan, Senior Grade Typist was recommended for promotion to the post of Type Superintendent. Consequent upon his promotion, one single post of // 12 // Senior Grade Typist was fallen vacant. The DPC found that there were two backlog vacancies, one for Scheduled Caste and another for Scheduled Tribe category. As per percentage of reservation, out of seven sanctioned posts of Senior Grade Typist, one is reserved for Scheduled Tribe and another is reserved for Scheduled Caste candidate. Hence, the Committee decided to fill up the backlog and fill up the Roster Point-15 vacancy (unreserved) by the candidate belonging to Scheduled Caste category to fill up the percentage of reservation. As such, the Committee recommended/selected the name of opposite party no.3- Pravati Bhoi, Junior Grade Typist for promotion to the post of Senior Grade Typist. Consequent upon promotion of Makardhwaj Pradhan, Senior Grade Typist to the post of Type Superintendent, Smt. Pravati Bhoi, Junior Grade Typist was promoted to the post of Senior Grade Typist vide office order dated 27.09.2007. Thereby, no illegality or irregularity has been committed in giving promotion to opposite party no.3 to the post of Senior Grade Typist w.e.f. 27.09.2007. Therefore, it is contended that the question of granting any benefit of // 13 // promotion to the petitioner from the date his junior, i.e., opposite party no.3 was promoted, has no justification. Consequentially, the Tribunal is well justified in passing the order impugned dated 29.11.2017 in O.A. No.2704(C) of 2008, which does not warrant interference of this Court at this stage. 5. While entertaining this writ petition, this Court issued notice on 20.02.2020 to the opposite parties. Though the State Counsel appeared on behalf of opposite parties no.1 & 2, notice as against opposite party no.3 was not made sufficient. Vide order dated 04.07.2023, again notice was directed to be issued to opposite party no.3, pursuant to which, instead of appearing in person or through her counsel, she filed a written statement of defence, copy of which was served on Mr. S.K. Swain, learned counsel for the petitioner, who also filed rejoinder affidavit in response to same and the same was communicated to opposite party no.3, which she received as per postal tracking report submitted by the postal authority. Despite several opportunities, opposite party no.3 did not choose to // 14 // appear in Court and she having filed written statement, this Court proceeded with the pleadings available on such written statement for disposal of the writ petition, as opposite party no.3 stepped into the shoes of the State-opposite parties and adopted the stand taken by the learned State Counsel, because she is the beneficiary so far as the promotion is concerned. 6. This Court heard Mr. S.K. Swain, learned counsel appearing for the petitioner and Mr. A.R. Dash, learned Additional Government Advocate appearing for the State-opposite parties in hybrid mode. Since it is a certiorari proceeding and on the basis of materials available on record, with the consent of learned counsel appearing for the parties, the writ petition is being disposed of finally at the stage of admission. 7. In the instant case, there is no dispute with regard to the fact that the petitioner belongs to UR category and senior to opposite party no.3, who belongs to SC category. Admittedly, opposite party no.3 got promotion to the post of Senior Grade Typist on 27.09.2007 and the petitioner got promotion to the post // 15 // of Senior Grade Typist on 05.02.2009. Therefore, the petitioner claims that his promotion should relate back to 27.09.2007. The DPC was held on 25.04.2001 and 26.04.2001 for selection of Junior Grade Typist for promotion to the post of Senior Grade Typist and Type Superintendent respectively. The Committee recommended the name of one Senior Grade Typist (ST) for promotion to the post of Type Superintendent and the names of three Junior Grade Typists for promotion to the post of Senior Grade Typist for UR category against the Roster Points-13, 14 & 15. Though all the three posts of Senior Grade Typist were meant for unreserved category, there were two backlog vacancies, one for S.C and another for S.T. So, the Committee selected the names of three Junior Grade Typist, two from the unreserved category, who are senior to the petitioner and one from S.C category, namely, Pravati Bhoi-opposite party no.3, though she was junior to the petitioner, for promotion to the post of Senior Grade Typist in order to fill up the backlog vacancy, as per the provisions of ORV Act and Rules. // 16 // 8. The promotion of Sri D.K.Kanhar, Senior Grade Typist to the post of Type Superintendent, vide Office Order No. 1345 dt.31.05.2001, and the promotion order no.1357 dated 01.06.2001 for the consequential vacancy in the post of Senior Grade Typist were challenged by one Makardhwaj Pradhan, Senior Grade Typist by filing O.A No.2482(C) of 2001 before the Odisha Administrative Tribunal, Cuttack Bench, Cuttack contending that after joining of Sri D.K.Kanhar, two posts of Type Superintendent were filled up by one S.C. and one S.T. category employee, for which the percentage of reservation became 100%, which is not permissible, and that as he (Makardhwaj Pradhan) was the senior most Senior Grade Typist, he should have been promoted in place of Sri Kanhar. The Tribunal passed interim order on 7.12.2001 to the effect that "continuance of Respondent No.3 (i.e Sri Kanhar) in the promotional post beyond 31.01.2002 shall be with the leave of the Tribunal". Basing on the interim order passed by the Tribunal, Dillip Kumar Kanhar, Type Superintendent was reverted back to his former post of Senior Grade Typist and consequent upon // 17 // reversion, opposite party no.3-Pravati Bhoi, the junior most Senior Grade Typist was also reverted back to her former post of Junior Grade Typist w.e.f. 31.01.2002 afternoon, vide RDC Office's Order dated 31.01.2002. After reversion to the post of Senior Grade Typist, Dillip Kumar Kanhar submitted a representation on 30.08.2006 stating that he was not interested for promotion to the post of Type Superintendent, but interested to be promoted to the post of Senior Assistant. Similarly, Makardhwaj Pradhan also requested, by filing representation dated 23.05.2007, for his promotion to the post of Type Superintendent, as D.K.Kanhar was not interested for the said post. The Tribunal, vide order dated 19.04.2007 passed in O.A No.2482(C) of 2001, permitted to withdraw the said O.A. and accordingly, the said O.A. was disposed of as withdrawn. 9. Consequent upon reversion of D.K.Kanhar from the post of Type Superintendent to the post of Senior Grade Typist, one post of Type Superintendent was fallen vacant. To fill up the said post, a DPC // 18 // meeting was held on 20.09.2007, wherein the name of Makardhwaj Pradhan, Senior Grade Typist was recommended for promotion to the post of Type Superintendent. Consequent upon his promotion, one single post of Senior Grade Typist was fallen vacant. The DPC found that there were two backlog vacancies, one for Scheduled Caste and another for Scheduled Tribe category. As per percentage of reservation, out of seven sanctioned post of Senior Grade Typist, one is reserved for Scheduled Tribe and another is reserved for Scheduled Caste candidate. Hence, the Committee decided to fill up the backlog and fill up the Roster Point-15 vacancy (unreserved) by the candidate belonging to Scheduled Caste category to fill up the percentage of reservation. As such, the Committee recommended/selected the name of opposite party no.3-Pravati Bhoi, Junior Grade Typist for promotion to the post of Senior Grade Typist. Consequent upon promotion of Makardhwaj Pradhan, Senior Grade Typist to the post of Type Superintendent, opposite party no.3- Pravati Bhoi, Junior Grade Typist was promoted to the // 19 // post of Senior Grade Typist vide office order dated 27.09.2007. 10. Though the petitioner was working as Junior Grade Typist and senior to opposite party no.3, to maintain the percentage of reservation for SC & ST in posts and services as per ORV Act and to fill up the backlog vacancy, the committee recommended the name of opposite party no.3 for promotion to the post of Senior Grade Typist. Upon promotion of D.K. Kanhar, Senior Grade Typist to the post of Senior Assistant, one post of Senior Grade Typist was fallen vacant. To fill up the vacant post of Senior Grade Typist, a DPC meeting was held on 07.02.2008 and recommended the name of the petitioner, Junior Grade Typist for promotion to the post of Senior Grade Typist. As such, the petitioner joined in the said post on 05.02.2009 and is continuing in the said post till date. 11. Aggrieved by the promotion of opposite party no.3 to the post of Senior Grade Typist w.e.f. 27.09.2007, the petitioner challenged the same before the Tribunal by filing O.A. No.2704(C) of 2008 and the // 20 // Tribunal, vide order dated 29.11.2017, while disposing of the said O.A., has taken note of the ratios decided by the apex Court in R.K. Sabharwal and others v. State of Punjab and others, AIR 1995 SC 1371 and M. Nagaraj v. Union of India, (2006) 8 SCC 212, wherein the apex Court upheld the Article 16 (4B) relating to classification between current vacancies in one hand and carry forward of backlog vacancy on the other. Therefore, the Tribunal found that there is nothing wrong in promotion of opposite party no.3 against a current backlog vacancy and made it clear that promotion and consequential seniority are two different issues. Keeping in view Sections-7 & 11 of the ORV Acts and Rules, the Tribunal did not find any illegality in the action of the opposite party-authority by giving promotion to opposite party no.3 against a backlog and carry forward vacancy in the rank of Sr. Grade Typist. In the meantime, the petitioner has already got promotion to the post of Senior Grade Typist. // 21 // 12. In view of such position, the Tribunal is well justified in dismissing the claim of the petitioner for retrospective benefit of promotion from the date, his junior, i.e., opposite party no.3 was promoted. Thereby, this Court does not find any error in the order dated 29.11.2017 passed by the Odisha Administrative Tribunal, Cuttack Bench, Cuttack in O.A. No.2704 (C) of 2008 so as to cause interference of this Court. 13. In the result, the writ petition merits no consideration and the same stands dismissed. But, however, in the circumstance of the case there shall be no order as to costs. (DR. B.R. SARANGI) ACTING CHIEF JUSTICE M.S. RAMAN, J. I agree. (M.S. RAMAN) JUDGE Orissa High Court, Cuttack The 22nd November, 2023, Alok Signature Not Verified Digitally Signed Signed by: ALOK RANJAN SETHY Designation: Secretary Reason: Authentication Location: ORISSA HIGH COURT Date: 22-Nov-2023 17:35:15