Orissa High Court
Case Details
ORISSA HIGH COURT : CUTTACK W.P.(C) No.30991 of 2021 In the matter of an Application under Articles 226 and 227 of the Constitution of India, 1950 *** In W.P.(C) No.30991 of 2021 Srikanta Kumar Jena Aged about 54 years Son of Late Harish Chandra Jena At/P.O./P.S.: Morada District: Mayurbhanj now working as Fireman (1552) in Dhamara Fire Station At/P.O./P.S.: Dhamara, District: Bhadrak. In W.P.(C) No.31139 of 2021 Santosh Kumar Gouda Aged about 47 years Son of Brundaban Gouda At: Kotibadi, P.O.: Allipur P.S.: Aska, District: Ganjam now working as Driver-Havildar in Dharmagarh Fire Station At/P.O./P.S.: Dharmagarh, District: Kalahandi. In W.P.(C) No.31140 of 2021 Bibhuti Bhusan Nayak Aged about 47 years Son of Late Harihar Nayak At/P.O.: Panchutikri, P.S.: Bansada District: Bhadrak now working as Line Fireman in Aul Fire Station At/P.O.: Nial, P.S.: Aul, District: Kendrapara. W.P.(C) No.30991 of 2021 & batch Page 1 of 43 In W.P.(C) No.32527 of 2021 Gokul Chandra Nayak Aged about 46 years Son of Late Bipin Bihari Nayak At: Dubagada, P.O.: Dadaki District: Kandhamal now working as Leading fireman in Bhanjanagar Fire Station At/P.O.: Bhanjanagar, District: Ganjam. In W.P.(C) No.32541 of 2021 Birendranath Sing Aged about 44 years Son of Late Brundaban Sing At: Takatpur, Ward No.24, P.S. Baripada Town District: Mayurbhanj now working as Leading Fireman in Padia Fire Station At/P.O.: Padia, District: Malkangiri. In W.P.(C) No.32544 of 2021 Prafulla Kumar Parida Aged about 52 years Son of Kalandi Charan Parida At: Damarpur, P.S.: Pattamundai District: Kendrapara now working as Leading Fireman in Gadi Fire Station At: Samantraypur, P.O.: Pirahat District: Bhadrak. In W.P.(C) No.32546 of 2021 Budhadev Samal Aged about 48 years Son of Late Ramachandra Samal At: Gurilo, P.S.: Balimi District: Dhenkanal W.P.(C) No.30991 of 2021 & batch Page 2 of 43 now working as Driver Havildar & Officer-In-Charge in Tigiria Fire Station At/P.O.: Tigiria, District: Cuttack. In W.P.(C) No.32582 of 2021 Rajendra Kumar Swain Aged about 49 years Son of Abhiram Swain At: Bhanjanagar, Bhejiput (Adua Sahi) P.O.: Bhanjanagar, District: Ganjam now working as Leading fireman in Paralakhemundi Fire Station, At: Betaguda, P.O.: Paralakhemundi District: Gajapati. In W.P.(C) No.32585 of 2021 Ranjan Kumar Pattnayak Aged about 49 years Son of Late Chakradhar Pattnayak At: Badabalikani, P.S.: Kujanga District: Jagatsinghpur now working as Leading Fireman in Secretariat Fire Station Secretariat Campus, Bhubaneswar District: Khurda. In W.P.(C) No.32598 of 2021 Satish Chandra Behera Aged about 52 years Son of Late Gobardhan Behera At/P.O.: Balidiha, P.S.: Kuliana District: Mayurbhanj now working as Leading Fireman in Remuna Fire Station At/P.O./P.S.: Remuna, District: Balasore. In W.P.(C) No.33622 of 2021 W.P.(C) No.30991 of 2021 & batch Page 3 of 43 Malaya Kumar Pradhan Aged about 49 years Son of Satyananda Pradhan At: Oupada, P.S.: Patkura District: Kendrapara now working as Leading Fireman in Pipili Fire Station At/P.O./P.S.: Pipili, District: Puri.… -VERSUS- Petitioners. 1. State of Odisha Represented through The Commissioner-cum-Secretary Government of Odisha, Home Department Lok Seva Bhawan, Bhubaneswar District: Khurda. 2. Director General & Inspector General of Police (Home Guards & Fire Service), Odisha At: Police Line, P.O.: Buxi Bazar District: Cuttack. 3. Principal Odisha Fire Service Training Institute (OFSTI) At/P.O.: Bhubaneswar, District: Khurda. 4. Chief Fire Officer, Odisha At/P.O.: Buxi Bazar, District: Cuttack. 5. Fire Officer, Central Range At/P.O.: Buxi Bazar District: Cuttack. … Opposite parties. AND In W.P.(C) No.33992 of 2021 Rohit Kumar Nayak Aged about 53 years Son of Late Nrusingha Nayak At: Korua, P.S.: Naugaon W.P.(C) No.30991 of 2021 & batch Page 4 of 43 District: Jagatsinghpur now working as Leading Fireman in Hindol Road Fire Station District: Dhenkanal. … Petitioner. -VERSUS- 1. State of Odisha Represented through The Commissioner-cum-Secretary Government of Odisha in Home Department At: Lok Seva Bhawan, Bhubaneswar District: Khurda. 2. Director General & Inspector General of Police (Fire Service etc.) Odisha At: Police Line, P.O.: Buxi Bazar Town & District: Cuttack. 3. Chief Fire Officer, Odisha At: Police Line, P.O.: Buxi Bazar Town & District: Cuttack. … Counsel appeared for the parties: Opposite Parties. For the Petitioners : Mr. Manoranjan Mohanty, Senior Advocate, along with Mr. Alok Kumar Panda, Advocate For the Opposite parties : Mr. Rabi Narayan Mishra, Advocate P R E S E N T: HONOURABLE CHIEF JUSTICE MR. CHAKRADHARI SHARAN SINGH AND HONOURABLE MR. JUSTICE MURAHARI SRI RAMAN W.P.(C) No.30991 of 2021 & batch Page 5 of 43 Dates of Hearing : 09.04.2024 :: Date of Judgment : 11.09.2024 MURAHARI SRI RAMAN, J.— J UDGMENT The petitioners in the aforenoted writ petitions filed under Article 226/227 of the Constitution of India pray for grant of following relief(s): “It is, therefore, prayed that this Hon‟ble Court may graciously be pleased to issue Rule NISI directing the opposite parties to show cause as to why: i. ii. The Notification dated 18.09.2021 (Annexure-5) shall not be quashed; The petitioner shall not be allowed to continue/work in the rank of Assistant Station Officer. If the opposite parties fail to show cause or show insufficient cause the Rule NISI be made absolute, the Notification be quashed and the opposite parties be directed to allow the petitioner to continue/work in the rank of Assistant Station Officer; prays And direction/directions as would be deemed fit and proper; order/orders, other pass any to And for this act of kindness, the petitioner as in duty bound shall ever pray.” 2. Vide Order dated 07.12.2021 passed in W.P.(C) No.19875 of 2019 [Benudhar Behera & Others Vrs. State of Odisha & Others], these bunch of writ petitions having W.P.(C) No.30991 of 2021 & batch Page 6 of 43 common prayers for identical relief(s) have been directed to be listed. 2.1. On conclusion of hearing of these cases on 09.04.2024, the matters have been reserved for preparation and pronouncement of Judgment. 2.2. While preparing the Judgment it is transpired that the reliefs claimed in W.P.(C) No.19875 of 2019 is different from that of the present bunch of cases; therefore, separate Judgment is prepared and pronounced today. 2.3. The facts as adumbrated in the writ petition, bearing W.P.(C) No.30991 of 2021, are taken as lead matter as written note of submission has been filed in the said case and common question for adjudication being raised and identical prayers made in all other writ petitions
Decision
tagged to this case, they are disposed of by this common Judgment. Facts: 3. Having participated in the process of selection, the petitioner was appointed as Fireman on 01.04.1994. In 2007 steps were taken by the opposite party No.2, Director General and Inspector General of Police (Home Guards and Fire Service), Odisha, to recruit Assistant Station Officer in Odisha Fire Service by promotion W.P.(C) No.30991 of 2021 & batch Page 7 of 43 following Rule 6601 of Odisha Police Manual Rules. Accordingly a Pre-Promotional Test (“PPT”, for brevity) was conducted on 23.09.2007 and the result was published on 16.10.2007, wherein the petitioner was declared to have successfully passed out. 1 “660 Appointment of Assistant Sub-Inspectors.— Assistant Sub-Inspectors will be appointed ordinarily in the following manner: (i) (a) (b) (c) (ii) Matriculate constables who have passed Constable Course of training and have had at least seven years service after the period of spent under training and having been selected as per the procedure laid down in clause (c) of this rule will be allowed to officiate as A.S.I. and will also be eligible for deputation to the A.S.I‟s. course of training for a period of four months comprising of one month institutional basis training at designated training institutions and three months practical moving in the Police Stations and shall be required to pass the final examination to be conducted simultaneously. Non-Matric constables who have passed the Constable’s course of training and have had at least seven years service after the period spent under training and having been selected as per the procedure laid down in clause-(C) of the rule will be allowed to officiate as A.S.I and will be eligible for deputation to the A.S.I‟s course of training for a period of four months, comprising of one month institutional basic training at designated training and three months practical training in the Police Stations and shall be required to pass the final examination to be conducted simultaneously. *** (deleted) (iii) Twice every year all the S Ps/Heads of Estates shall report to the IG of Police the mumber of vacancies in the rank of AS I available in their District/Estt. Reduced by the number of A S. I. course passed constables as on the 15th of April and October of that year to take up the training the A.S.I‟s. course. The selection of both Matric and Non-Matric constables eligible under the conditions laid down in clause(i) and of sub-rule(a) will be made by means of a written test which will ordinarily consist of law and rules and ability to write an essay in English. The marks for each subject and the time to be allowed for each will be prescribed by the IG. of police.” W.P.(C) No.30991 of 2021 & batch Page 8 of 43 3.1. Select list enlisting total 310 candidates was published, out of which twenty candidates were promoted on 24.10.2007 to the post of the Assistant Station Officer and sent for training. After successful completion of training, they were allowed to continue/discharge the duty of Assistant Station Officer. Subsequently, further 107 and 18 selected candidates were promoted to the post of Assistant Station Officer on 21.10.2010 and 10.11.2010 respectively and sent for training. After successful completion of their training, they were allowed to continue/discharge the duty of Assistant Station Officer. 3.2. In the year 2012 certain unsuccessful candidates who have secured less than 50% marks in the PPT, 2007 approached the Odisha Administrative Tribunal challenging fixation of 50% mark as qualifying mark in the said test. However, vide Order dated 19.12.2014 the Original Applications, being O.A. No.516(C) of 2012, &c. were not entertained on the ground that after participating in the test, they have no right to challenge, which was also got confirmed by this Court. 3.3. While the process of promotion was continuing from the select list dated 13.08.2007 as against the existing vacancies in the rank of Assistant Station Officers and some other candidates were waiting to get the promotion, a Letter was issued on 26.02.2015 by the W.P.(C) No.30991 of 2021 & batch Page 9 of 43 opposite party No.2 to conduct fresh PPT on the ground that the select list dated 13.08.2007 got expired on completion of three years. Challenging the said letter some candidates approached the Odisha Administrative Tribunal, Cuttack Bench, Cuttack by way of filing several Original Applications [O.A. Nos.751(C) of 2015 : Dhruba Charan Goi Vrs. State of Odisha, &c.] with prayers to quash the aforesaid Letter dated 26.02.2015 and direct the authorities to allow continuance of process of selection till exhaustion of the select list of 2007. All the Original applications were allowed by the Tribunal vide Order dated 24.06.2015 by holding that as Rule 660 of the Police Manual Rules does not prescribe any time limit, the select list would be kept valid till it is exhausted and direction was issued to act upon the select list dated l3.08.2007 by considering the promotion to the rank of Assistant Station Officer. Laying challenge to said Order dated 24.06.2015 of the Tribunal, writ petitions, being W.P.(C) No.22716 of 2016 (Bhimasen Behera), No.13566 of 2015 (Abhaya Kumar Swain), No.4494 of 2015 (Harekrushna Mahapatra), No.776 of 2015 (Kailash Chandra Pradhan) and No.920 of 2015 (Akhil Kumar Sahoo), were filed before this Court. 3.4. During pendency of the above writ petitions, on 01.02.2016 another batch of 33 candidates from the select list dated 13.08.2007 were promoted to the rank W.P.(C) No.30991 of 2021 & batch Page 10 of 43 of Assistant Station Officer and sent for training which commenced on 01.03.2016. The final examination in the training was held from 18.07.2016 to 26.07.2016. The petitioner, who was failed in the said examination, appeared in the final examination for the second time and successfully got passed out and became eligible to discharge the duty of Assistant Station Officer. 3.5. Even though the petitioner was selected and found eligible to be promoted to the post of Assistant Station Officer, having successfully passed out in the final training examination, he was not allowed to continue/work as Assistant Station Officer. 3.6. The writ petitions, W.P.(C) No.13566 of 2015 (Abhaya Kumar Swain Vrs. State of Odisha and batch), preferred by the unsuccessful candidates who could not secure qualifying marks of 50%, were disposed of by this Court vide Judgment dated 06.07.2017 [reported at 2017 SCC OnLine Ori 418 = 124 (2017) CLT 776]]. It is submitted that since nothing is expressed with regard to the promotions already given from the select list of 2007 by this Court in the said Judgment, the petitioner herein, who was not impleaded in the proceeding, having successfully completed the required training, ought not to have debarred to continue/to work as Assistant Station Officer. W.P.(C) No.30991 of 2021 & batch Page 11 of 43 3.7. The petitioner approached the Promotion Adalat held on 30.04.2020, which in consideration of grievance, issued Letter dated 30.04.2020 through General Administration Department mentioning therein that for employees of District Cadre it is mandatory to pass both the departmental examination and the training for consideration for promotion. It is alleged by the petitioner, in this case that as he had already successfully completed the training, the opposite parties have no reason to debar him from discharging the duty of Assistant Station Officer. 3.8. While the matter was pending consideration of the authority, Letter dated l8.09.2021 (Radio Message, vide Annexure-5) has come to be issued by the opposite party No.5 (Fire Officer) at the instruction of the opposite party No.4 (Chief Fire Officer) to conduct fresh PPT for consideration of promotion to the post of Assistant Station Officer and willingness was invited from the eligible Leading Firemen and Driver-Havildars, who completed three years of qualifying service. It is alleged that this is not in consonance with the requirement under Rule 660(a) of the Odisha Police Manual Rules. It is the grievance of the petitioner that by issuing the Radio Message dated 18.09.2021 (Annexure-5), the opposite parties compelled the petitioner to go for fresh selection test, which is completely illegal and unjustified. W.P.(C) No.30991 of 2021 & batch Page 12 of 43 It is submitted that as the petitioner has been promoted and completed the training for such promotion, he cannot be asked again to participate in the present selection for the same promotion; rather the opposite parties are bound to allow him to discharge the duty of the Assistant Station Officer. 3.9. Further fact has been placed on record that vide Home Department Notification No.30030—HOME-FS-RULE- 0003-2017/CD, dated 25.08.2021, a new set of Rules, namely “THE ODISHA FIRE SERVICE (METHODS OF RECRUITMENT AND CONDITIONS OF SERVICE OF THE GROUP „C‟ OFFICERS) RULES, 2021” has been framed in exercise of the powers conferred under sub-section (1) read with clause (c) of sub-section (2) of Section 26 of the Odisha Fire Service Act, 1993, whereby only the Leading Firemen and Driver-Havildars are allowed to participate in the PPT for the post of the Assistant Station Officer. Counter affidavit of the opposite parties: 4. In the year 2007, to fill up vacancies in the rank of Assistant Station Officer in the Odisha Fire Service by way of promotion from the sub-ordinate ranks a detailed instruction and criteria for promotion were issued by the Office of the opposite party No.2 to the opposite party No.3 vide Letter No.3962/FS, dated 13.08.2007 directing to obtain willingness of eligible candidates and to submit W.P.(C) No.30991 of 2021 & batch Page 13 of 43 their nomination rolls for holding PPT. It was clearly specified in the said letter that the minimum qualifying marks would be 50% in each subject. Total of 543 Fire Service personnel submitted their willingness and appeared in the PPT held on 23.09.2007, out of which 310 personnel secured 50% or more marks in each subject and the list of successful candidates was published vide D.O. No.4857/OFS, dated. 16.10.2007. 4.1. Fifty-one (51) personnel who appeared in the PPT and secured less than 50% marks and failed in the test, filed 44 cases in the years 2011, 2012, 2013 and 2014 before the Odisha Administrative Tribunal. All the 44 cases being heard analogously, a common Order dated 19.12.2014 in O.A. No.516(C) of 2012 as the lead case was passed. In pursuance of direction contained therein, the opposite party No.2 issued orders on 26.02.2015 for conducting fresh PPT for promotion to the rank of Assistant Station Officers. Thereafter, further 15 personnel filed O.A. Nos.751(C) of 2015 and 939(C) of 2015 before the Odisha Administrative Tribunal, wherein by Order dated 24.06.2015, it has been observed that, as Rule 660(a) of the PMR do not prescribe any period of validity, the select list would be kept valid till it is exhausted. In view of said Order dated 24.06.2015 a CSB was held on 19.01.2016, in which 34 candidates were shortlisted including the petitioner for promotion to W.P.(C) No.30991 of 2021 & batch Page 14 of 43 the post of Assistant Station Officer from the select list prepared in 2007. Subsequently, the shortlisted candidates were sent for Assistant Station Officer course training. 4.2. Being aggrieved with the said Order of the Odisha Administrative Tribunal, Cuttack Bench, Cuttack and the action of the opposite parties to accord promotion from select list of 2007, certain unsuccessful candidates of PPT, 2007 preferred writ petition W.P.(C) No.13566 of 2015 and batch of cases. While issuing notice, this Court in the said writ petition passed the following interim Order on 27.04.2016: “As an interim measure, we direct that the Orders dated 19.12.2014 and 24.06.2015 passed in O.A. No.625(C) of 2012 and O.A. No.751(C) of 2015 by the Tribunal under Annexure-9 and 11 respectively shall remain in abeyance till the next date.” 4.3. Prior to passing of interim Order dated 27.04.2016, total 34 numbers of candidates including the petitioner had already been put to Assistant Station Officer course training basing upon the Order of the Odisha Administrative Tribunal in O.A. No.751(C) of 2015. Though these candidates completed the Assistant Station Officer course training, due to pendency of W.P.(C) No.13566 of 2015 and batch, they were not allowed to officiate as Assistant Station Officer notwithstanding completion of training course. W.P.(C) No.30991 of 2021 & batch Page 15 of 43 4.4. Elaborating further, the opposite parties submitted that this Court vide Judgment dated 06.07.2017 disposed of the W.P.(C)No.13566 of 2015 and batch of cases, reported at 2017 SCC OnLine Ori 418 = 124 (2017) CLT 776, whereby the State Government was restrained from granting promotion from the select list prepared on the basis of selection conducted in the year 2007. 4.5. It is, therefore, explained that 34 candidates were not allowed to officiate in the rank of Assistant Station Officer on promotion in view of directions contained in the aforesaid Judgment. The said Judgment of this Court was assailed before the Hon‟ble Supreme Court in SLP(C) No.25112 of 2017, which was dismissed. The Judgment passed by this Court, thus, has attained finality. 4.6. The petitioner was shortlisted by the CSB for promotion to the rank of Assistant Station Officer, subject to successful completion of Assistant Station Officer course training as per Order dated 24.06.2015 of the Odisha Administrative Tribunal, Cuttack Bench, Cuttack passed in O.A. No.751(C) of 2015 and batch of cases. But, due to intervening circumstances subsequent thereto, the petitioner could not be granted promotion to officiate the post of Assistant Station Officer. So, he is not entitled to discharge his duty as Assistant Station Officer. W.P.(C) No.30991 of 2021 & batch Page 16 of 43 4.7. It is submitted by the opposite parties that mere undergoing training in connection with the promotion to the post of Assistant Station Officer, no right accrued in favour of the petitioner to claim the promotional post. This apart, in view of Order dated 06.07.2017 in W.P.(C) No.13566 of 2015 and batch of cases that the State Government was directed not to grant any promotion from the select list prepared on the basis of selection conducted in the year, 2007, which has attained finality after dismissal of SLP(C) No.25112 of 2017 by the Hon‟ble Supreme Court, the petitioner, who was shortlisted, has no right to claim for promotion to the post of Assistant Station Officer. The relief claimed by the petitioner, hence, is not amenable to be granted. Arguments and rival submissions: 5. Sri Manoranjan Mohanty, learned Senior Advocate appearing for the petitioner(s) submitted that in view of provisions of Section 26(3) of the Odisha Fire Service Act, 1993 that “until Rules are made under this section, the Rules in force immediately before the appointed day and applicable to the officers and staff of the Fire Service Branch of Odisha Police shall, as far as they are not inconsistent with the provision of this Act, continue in force and apply to the members”, Rule 660 of the Odisha Police Manual Rules (“PMR” for abbreviated) are followed for grant of promotion of Fireman, Leading Fireman and W.P.(C) No.30991 of 2021 & batch Page 17 of 43 Driver-Havildar to the rank of Assistant Station Officer in Fire Service Organisation. The Letter dated 13.08.2007 issued by the Inspector General of Police, Fire Service, addressed to the Fire Officer, Odisha, Cuttack, reveals that in order to fill up vacancies in the rank of Assistant Station Officer, PPT would be held with stipulation that “the result of Pre-Promotional Test Board shall remain valid for a period of three years or till the framing of the Cadre Rule by the Government, whichever is earlier”. Such a rider is objected to by the petitioner to be in excess of provisions contained in Rule 660 of PMR. 5.1. After reiterating the circumstances as already discussed in the foregoing paragraphs, it has been submitted that though the petitioner was found qualified as per the select list of 2007, he was not party before this Court in W.P.(C) No.13566 of 2015 [W.P.(C) No.13566 of 2015 and batch : 2017 SCC OnLine Ori 418 = 124 (2017) CLT 776], wherein it has been directed that “no appointment should be given from the list of qualified candidates of 2007”. Had this petitioner been given opportunity to have his say by impleading him as party, he would have submitted that before the Odisha Administrative Tribunal, the case was for inclusion of names of disqualified candidates in the list of qualified candidates of 2007, but it was not the case for continuance of list W.P.(C) No.30991 of 2021 & batch Page 18 of 43 beyond 3 years or otherwise. As PMR 660 is silent about life of select list, there could not have been any restriction to exhaust said list for the purpose of granting promotion to the rank of Assistant Station Officer. Till exhaustion of said select list of 2007, consideration of fresh candidates for such promotion could not have been circulated. 5.2. While delivering the Judgment dated 06.07.2017 a Division Bench of this Court held that the petitioners of that case in W.P.(C) No.13566 of 2015 and batch [reported at 2017 SCC OnLine Ori 418 = 124 (2017) CLT 776], who got failed in the written test of 2007 and those who became eligible to take the written test after 2007, were being deprived of to be considered for promotion. Instead of considering their case by allowing such persons to go for the written test to fetch qualified candidates; there was no reason to stop consideration of the qualified candidates (like that of the present petitioner) and that too behind their back. It is submitted that in the said case the Division Bench ignored to perceive that the list of 2007 was only of the qualified candidates. It is submitted that the qualified candidates get a chance of final consideration according to their seniority in the feeder-cadre of Firemen etc. Without affecting the list of qualified candidates of 2007, the freshers (and the disqualified candidates of 2007) W.P.(C) No.30991 of 2021 & batch Page 19 of 43 may be put to fresh written test and, if they are found qualified, then their names could be placed below the list of 2007 and, thus, the recruitment process can go on, as and when required, as against the future vacancies. 6. The learned Additional Government Advocate stood by the stance taken in the counter affidavit and submitted that whereas it was made known to the petitioner vide Annexure-1, i.e., Letter dated 13.08.2007 addressed to Fire Officer inter alia stipulated that the result of PPT would remain valid for a period of three years or till the framing of the Cadre Rules by the Government, whichever is earlier, the question of granting scope to the petitioner for promotion from the selection list of 2007 does not arise. 6.1. It has been interdicted in W.P.(C) No.13566 of 2015 and batch : 2017 SCC OnLine Ori 418 = 124 (2017) CLT 776, that “the State Government would not grant any promotion from the select list prepared on the basis of selection conducted in the year 2007 for the reason stated herein above”. The said matter being carried to the Hon‟ble Supreme Court, the special leave petition stood dismissed. Therefore, there can be no gainsaying that the opposite parties are not competent to consider the case of the petitioner, whose name did find place in the select list of 2007. Moreover, in view of directive of this Court in the aforesaid case that “the State Government W.P.(C) No.30991 of 2021 & batch Page 20 of 43 is directed to take all sincere endeavour to formulate the Rule within reasonable period, preferably within period of three months from the date of receipt of copy of this order, so that the work in the Fire Service Department may not suffer for an indefinite period”, in supersession of the Odisha Fire Service (Method of Recruitment and Conditions of Service of the Fireman Driver) Rules, 2011 a new set of rules, viz., “THE ODISHA FIRE SERVICE (METHOD OF RECRUITMENT AND CONDITIONS OF SERVICE OF THE GROUP „C‟ OFFICERS) RULES, 2021” has been framed in exercise of powers conferred under sub-section (1) read with clause (c) of sub-section (2) of Section 26 of the Odisha Fire Service Act, 1993, which came into force with effect from 31.08.2021 being published in the Extraordinary issue No.1340 of the Odisha Gazette dated 31.08.2021. 6.2. In such view of the matter, therefore, the learned Additional Government Advocate urged for dismissal of the present writ petition, being devoid of merit. Analysis and discussion: 7. This Court, while disposing of W.P.(C) No.13566 of 2015 and batch of matters on 06.07.2017, reported at 2017 SCC OnLine Ori 418 = 124 (2017) CLT 776, directed as follows: “(i) The State Authorities are directed to formulate the specific Rule governing the recruitment/promotion of W.P.(C) No.30991 of 2021 & batch Page 21 of 43 the different posts under the Fire Service Department of the State of Odisha so that all persons be considered for their promotion, that would be in the larger interest of the employees of the concerned department. (ii) The State Government would not grant any promotion from the select list prepared on the basis of selection conducted in the year 2007 for the reason stated herein above. (iii) The State Government is directed to take all sincere endeavour to formulate the rule within reasonable period, preferably within period of three months from the date of receipt of copy of this order, so that the work in the Fire Service Department may not suffer for an indefinite period.” 7.1. The Judgment dated 06.07.2017 in aforesaid writ petition and batch, being carried before the Hon‟ble Supreme Court of India, S.L.P.(C) No.25112 of 2017 [Prasanta Kumar Nanda & Others Vrs. Abhaya Kumar Swain & Others] stood dismissed on 10.10.2017 with the following order: “Heard. We do not see any merit in this special leave petition which is accordingly dismissed. After order of dismissal is passed, learned counsel for the petitioner seeks liberty to withdraw the special leave petition and pursue the matter with the authority concerned which course is not permissible.” W.P.(C) No.30991 of 2021 & batch Page 22 of 43 7.2. From the background factual matrix as pleaded it is clearly emanating that issue with respect to the select list prepared in the year 2007 has attained finality by virtue of dismissal of S.L.P.(C) No.25112 of 2017 [arising out of W.P.(C) No.13566 of 2015 and batch : 2017 SCC OnLine Ori 418 = 124 (2017) CLT 776] on 10.10.2017. The Hon‟ble Supreme Court has also not allowed to re- agitate the issue. 7.3. It is also noteworthy that in the year 2019, Sri Benudhar Behera and three others, who have claimed to have undergone training course, approached this Court in W.P.(C) No.19875 of 2019 seeking for a direction for consideration of their promotion to the rank of Assistant Station Officer, by recalling the Judgment dated 06.07.2017 passed in W.P.(C) No.13566 of 2015 [2017 SCC OnLine Ori 418 = 124 (2017) CLT 776] on the plea that they were not given opportunity to have their say as the unsuccessful candidates, who secured less than 50% marks having questioned their non-inclusion in the select list of 2007 in the said case, never impleaded them as parties to the proceeding. 7.4. While this Court was in seisin of the case of Benudhar Behera and Others Vrs. State of Odisha and Others in W.P.(C) No.19875 of 2019, the instant cases were filed by different personnel questioning the Radio Message vide No.4714/CR (RO-I), dated 18.09.2021 inviting names of W.P.(C) No.30991 of 2021 & batch Page 23 of 43 eligible and willing “Leading Firemen and Driver- Havildars” having completed 3 years of qualifying service as on 01.09.2021” for appearing in PPT. 7.5. This Court [Division Bench] directed for listing of these matters along with W.P.(C) No.19875 of 2019 vide Order dated 07.02.2023 at the request of the Bar, which reads as under: “2. At the request of Mr. B. Routray, learned Senior Counsel, assisted by Mr. S. Sekhar, learned counsel, appearing for the petitioners, let the matter be listed on 03.03.2023 along with W.P.(C) No.30991 of 2021, W.P.(C) No.31139 of 2021, W.P.(C) No.31140 of 2021, W.P.(C) No.32527 of 2021, W.P.(C) No.32541 of 2021, W.P.(C) No.32544 of 2021, W.P.(C) No.32546 of 2021, W.P.(C) No.32582 of 2021, W.P.(C) No.32585 of 2021, W.P.(C) No.32598 of 2021, W.P.(C) No.33622 of 2021 & W.P.(C) No.33992 of 2021 for further hearing. 3. Mr. J. Katikia, learned Addl. Government Advocate has appeared for the opposite parties. 4. We would request the counsel for the analogous matters to compare the records between themselves so that no point is left out unattended.” 7.6. In the present case [W.P.(C) No.30991 of 2021], Single Bench of this Court in seisin of the matter passed the following Order on 14.12.2021 for placing the matter along with W.P.(C) No.19875 of 2019 before the Division Bench: W.P.(C) No.30991 of 2021 & batch Page 24 of 43 “2. As prayed for, W.P.(C) Nos. 12286, 12287, 12288, 12289, 12290, 12291, 12292, 12333, 12334, 12356 of 2018, be de-linked from the this batch of cases and be listed separately in batch making W.P.(C) No. 12356 of 2018 as the lead case. 3. Mr. B.P. Tripathy, learned Additional Government Advocate submits that similar matters are pending before the Division Bench of this Court in W.P.(C) Nos. 19875 and 16304 of 2019. 4. In view of the above, let rest of the matters be tagged with W.P.(C) Nos. 19875 and 16304 of 2019, after obtaining leave from the Hon‟ble the Chief Justice. 5. Mr. B.P. Tripathy, learned Additional Government Advocate undertakes to serve copy of the counter affidavit on learned counsel for the petitioners in all the writ petitions” 7.7. Thereafter, on 22.08.2022, Division Bench of this Court passed the following Order: “2. Mr. M.R. Mohanty, learned Senior Advocate along with Mr. A.K. Panda, learned counsel appeared for the Petitioner and submitted that the Petitioner is going to file the rejoinder very shortly and as such, the prayer is made for a short accommodation. 3. The prayer stands allowed. 4. Let the matter be listed on 7th September, 2022 along with W.P.(C) No.19875 of 2019, W.P.(C) Nos.31139, 31140, 32527, 32541, 32544, 32546, 32582, 32585, 32598, 33622 and 33992 of 2021.” W.P.(C) No.30991 of 2021 & batch Page 25 of 43 7.8. These instant writ petitions, therefore, were taken up for final hearing on 09.04.2024 along with W.P.(C) No.19875 of 2019 [Benudhar Behera and Others]. At the stage of preparing the Judgment, this Court found that the prayer(s) of the petitioner in the said case is distinct and different from the present batch of cases. Whereas in W.P.(C) No.19875 of 2019 the prayer of the petitioners [Benudhar Behera and Others] was to recall the Judgment dated 06.07.2017 rendered by Division Bench of this Court in W.P.(C) No.13566 of 2015 [2017 SCC OnLine Ori 418 = 124 (2017) CLT 776], in the present bunch of cases, the petitioners herein have made prayer to quash the Radio Message dated 18.09.2021 vide Annexure-5, whereunder names of eligible and willing Leading Firemen and Driver-Havildars having 3 years of qualifying service are invited for PPT in connection with promotion to the post of Assistant Station Officer. Therefore, separate Judgments are prepared and pronounced today. 7.9. In the case of W.P.(C) No.19875 of 2019 [Benudhar Behera and Others Vrs. State of Odisha and Others], Judgment whereof has been pronounced today, it has been held that, “15. It will be useful to notice the Supreme Court‟s decision in case of Abbai Maligai Partnership Firm Vrs. K. Santhakumaran, (1998) 7 SCC 386 wherein the Supreme Court has observed as under: W.P.(C) No.30991 of 2021 & batch Page 26 of 43 the High Court exercised „4. The manner in which the learned Single Judge of the review jurisdiction, after the special leave petitions against the selfsame order had been dismissed by this Court after hearing learned counsel for the parties, to say the least, was not proper. Interference by the learned Single Judge at that stage is subversive of judicial discipline. The High Court was aware that the SLPs against the orders dated 07.01.1987 had already been dismissed by this Court. The High Court, therefore, had no power or jurisdiction to review the selfsame order, which was the subject-matter of challenge in the SLPs in this Court after the challenge had failed. By passing the impugned order on 07.04.1994, judicial propriety has been sacrificed. After the dismissal of the special leave petitions by this Court, on contest, no review petitions could be entertained by the High Court against the same order. The very entertainment of the review petitions, in the facts and circumstances of the case, was an affront to the order of this Court. We express our strong disapproval and hope there would be no occasion in the future when we may have to say so. The jurisdiction the exercised by circumstances, was palpably erroneous. The respondents who approached the High Court after the dismissal of their SLPs by this Court, abused the process of the court and indulged in vexatious litigation. We strongly deprecate the matter in which the review petitions were filed and heard in the High Court after the dismissal of the SLPs by this Court. The appeals deserve the High Court, under W.P.(C) No.30991 of 2021 & batch Page 27 of 43 to succeed on that short ground. The appeals are, consequently, allowed and the impugned order dated 07.04.1994 passed in the review petitions is hereby set aside. The respondents shall pay Rs 10,000 as costs.‟ 16. 17. In case of State of Maharashtra Vrs. Prabhakar Bhikaji Ingle, (1996) 3 SCC 463, the Supreme Court deprecated the power of review exercised by an Administrative Tribunal despite dismissal of the SLP. In view of the above, we are of the considered opinion that this writ petition seeking recall of the judgment and order passed in W.P.(C) No.13566 of 2015 is not maintainable in the given facts and circumstances of the case particularly when the said judgment attained finality with the dismissal of SLP by the Supreme Court. 18. This writ petition is accordingly dismissed.” 7.10. Since none objected to and at the request of the Bar these matters are heard analogously with W.P.(C) No.19875 of 2019 [Benudhar Behera and Others], this Judgment is delivered today. 8. From the pleadings it is transparent that in pursuance of direction contained in the Order dated 24.06.2015 passed in O.A. No.751(C) of 2015 [Dhruba Charan Goi & two other cases] by the Odisha Administrative Tribunal, Cuttack Bench, Cuttack, the petitioner was shortlisted by the CSB for promotion to the rank of Assistant Station Officer, subject to completion of Assistant W.P.(C) No.30991 of 2021 & batch Page 28 of 43 Station Officer course training successfully. But, prior to completion of training, this Court granted stay of said Order dated 24.06.2015 of the Odisha Administrative Tribunal vide Order dated 27.04.2016 while entertaining W.P.(C) No.13566 of 2015 (Abhaya Kumar Swain Vrs. State of Odisha and Others), as a result of which the petitioner could not be said to have been promoted to the post of Assistant Station Officer. 8.1. It is true that the origin of Government service is contractual. There is an offer and acceptance in every case. But once appointed to the post or office, the Government servant acquires a status and his rights and obligations are no longer determined by consent of both parties, but by statute or statutory rules which may be framed and altered unilaterally by the Government. In other words, the legal position of a Government servant is more one of status than of contract. The hallmark of status is the attachment to a legal relationship of rights and duties imposed by the public law and not by mere agreement of the parties. The emolument of the Government servant and his terms of service are governed by statute or statutory rules which may be unilaterally altered by the Government without the consent of the employee. [See, State of Himachal Pradesh Vrs. Raj Kumar, (2022) 15 SCR 847]. W.P.(C) No.30991 of 2021 & batch Page 29 of 43 8.2. In the case of State of Himachal Pradesh Vrs. Raj Kumar, (2022) 15 SCR 847, it has been laid down as follows: “36. A review of the fifteen cases that have distinguished Y.V. Rangaiah Vrs. J. Sreenivasa Rao, (1983) 3 SCC 284 would demonstrate that this Court has been consistently carving out exceptions to the broad proposition formulated in Rangaiah. The findings in these judgments, that have a direct bearing on the proposition formulated by Rangaiah are as under: 1. There is no rule of universal application that vacancies must be necessarily filled on the basis of the law which existed on the date when they arose, Rangaiah‟s case must be understood in the context of the rules involved therein. [Deepak Agarwal Vrs. State of U.P., (2011) 6 SCC 725; Union of India Vrs. Krishna Kumar, (2019) 4 SCC 319]. 2. It is now a settled proposition of law that a candidate has a right to be considered in the light of the existed rules, which implies the “rule in force” as on the date consideration takes place. The right to be considered for promotion occurs on the date of consideration of the eligible candidates. [Deepak Agarwal Vrs. State of U.P., (2011) 6 SCC 725; Union of India Vrs. Krishna Kumar, (2019) 4 SCC 319]. 3. The Government is entitled to take a conscious policy decision not to fill up the vacancies arising prior to the amendment of the rules. The employee does not to being acquire any vested right W.P.(C) No.30991 of 2021 & batch Page 30 of 43 considered for promotion in accordance with the repealed rules in view of the policy decision taken by the Government. [K. Ramulu Vrs. Suryaprakash Rao, (1997) 3 SCC 59; Shyam Chandra Das Vrs. State of Orissa, (2003) 4 SCC 218; State of Punjab Vrs. Arun Kumar Aggarwal, (2007) 10 SCC 402; Deepak Agarwal Vrs. State of U.P., (2011) 6 SCC 725]. There is no obligation for the Government to make appointments as per the old rules in the event of restructuring of the cadre is intended [G. for efficient working of Venkateshwara Rao Vrs. Union of India, (1999) 8 SCC 455]. the unit. is that