The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.31446 of 2023 1. Sarada Prasan Das and …. Petitioners others 2. Mr. B.Routray, Sr. Advocate with Mr.S.Routray, Advocate State of Odisha & others …. Opposite Parties -versus- Mr. Tarun Pattnaik, Addl. Standing Counsel CORAM: JUSTICE SASHIKANTA MISHRA Order No. ORDER 09.2.2024. I.A.No.17742 of 2023 08. 1. This matter is taken up through hybrid mode. 2. The Petitioners have filed this application seeking clarification of the order dated 3rd October, 2023 Page 1 of 12 // 2 // passed by this Court in the Writ Petition with the following prayer; “It is therefore most humbly prays that this Hon’ble Court may be pleased to clarify Para 7 of the order dated 03.10.2023 by directing the Opposite Parties to fill up the promotion post against the 10% quota by holding DPC in terms of the Odisha District Police of Ministerial Recruitment and Conditions of Service) Rules, 1995.” (Method Officers
Legal Reasoning
3. Heard Mr.B.Routray, learned Senior counsel, along with Mr.S.Routray, learned counsel for the Petitioners and Mr.Tarun Pattnaik, learned Addl. Standing counsel for the State. 4. After hearing learned counsel for both sides and taking note of the developments in the case, this Court disposed of the Writ Petitions by a common order passed on 3rd October, 2023, inter alia, holding as follows; is no “As regards the initial order of promotion granted in favour of the Petitioners, the same longer available to be adjudicated in view of the specific order passed by the learned Tribunal wherein it was held that the holding of the written test to decide the eligibility of the candidates was not in consonance with Page 2 of 12 // 3 //
Decision
the Rules. Be that as it may, this Court finds that there are as many as 28 vacancies, as stated at the bar being 10% of the total vacant posts in the rank of Junior Clerk. The Tribunal’s order referred to above has become final in view of the dismissal of the Writ Petition filed against it. In such view of the matter, this Court finds that there is really nothing left to be adjudicated upon in the present Writ Petitions. Both the Writ Petitions are therefore, disposed of directing the Opposite Party-authorities to take all necessary steps to fill up the promotional posts against the 10% quota by holding D.P.C. and by taking into consideration all the eligible employees in the Group D rank.” 5. Mr. Routray, learned Senior counsel, submits that the Opposite Party-authorities should be directed to fill up the promotional posts against 10% quota as per the Odisha District Police Ministerial Officers (Method of Recruitment and Conditions of Service) Rules, 1995. The authorities are however applying the provisions of the new Rules i.e. Odisha District Police Ministerial Officers (Method of Recruitment and Conditions of Service) Rules, 2021. Mr. Routray further submits that the Petitioners were admittedly promoted w.e.f. 25.4.2014 and continued in the promotional posts Page 3 of 12 // 4 // till 2020 when they were reverted on the basis of the judgment passed by the Odisha Administrative Tribunal in O.A. No.2431(C)/2014 and batch. As per the said judgment, the matter was remitted to the D.P.C. to consider the case of the applicants for promotion to Group C posts on the basis of seniority. Therefore, according to Mr.Routray, as the Petitioners were reverted because of such order and the applicants therein were to be considered for promotion as per the provisions of 1995 Rules, it follows that the Petitioners are also to be considered for promotion as per the provisions of 1995 Rules. Mr.Routray has also brought to the notice of this Court an Office order dated 7.9.2023 whereby some Group D employees of different districts were allowed promotion to the post of Junior Clerk w.e.f. 24.5.2014 notionally. Therefore, according to Mr.Rourtay, the Opposite Party-authorities are estopped to apply the new Rules in the case of the Petitioners. 6. Mr.Tarun Pattnaik, learned Addl. Standing Counsel, on the other hand, has vehemently opposed the prayer of the Petitioners by submitting that they did not acquire any vested right under the existing Rule so as to be considered under the Page 4 of 12 // 5 // provisions thereof. Once the new Rules have come into force, there is no other option but to apply the said Rules to all eligible persons. The Petitioners cannot claim any parity with any other employee as they were wrongly promoted and had to be reverted by virtue of the order of the Tribunal. Both sides have relied upon several case laws to support their respective pleas, which shall be discussed at the appropriate place later. 7. There is no dispute that the Petitioners being Group D employees were promoted to the Group C posts w.e.f 25.4.2014. The learned Tribunal in its common judgment held that the select list so prepared by the authorities is not sustainable in the eye of law and, accordingly, directed the D.P.C. to reconsider the matter. The Petitioners were thereafter reverted to their parent cadre in the year 2020. 8. Under such peculiar facts and circumstances, this Court is of the view that had the Tribunal not interfered, the Petitioners would have continued in the promotional posts. The Tribunal while remitting the matter to the D.P.C. had not said anything in respect of the persons, who had been promoted Page 5 of 12 // 6 // (including the Petitioners). The select list was held to be unsustainable but the Tribunal stopped short of saying anything as to what effect its order would have on the persons who had already been promoted, rather the matter was remitted to the DPC for consideration. This implies that the DPC was supposed to consider the case of all eligible persons including the Petitioners. It would be absurd to say that the order of the Tribunal was applicable only to the applicants before it. Obviously a DPC could not have been directed to be held only for the applicants as all those eligible for consideration for promotion have to be necessarily considered. The State has nowhere said that the Petitioners were not eligible for consideration then. In fact they were eligible but were juniors to the applicants before the Tribunal. The method of selection was only found to be erroneous, not the eligibility of the candidates. It is stated at the cost of repetition that because of their eligibility the Petitioners had been considered and selected albeit by an erroneous process. 9. Another aspect that needs mention is the vacancy position at the relevant time. In the Page 6 of 12 // 7 // objection filed to the I.A, the State has stated under Paragraph-12 as follows: “12. That it is pertinent to mention that in the year 2014, 213 Group-C posts were vacant and as per Rule 3(1) of Rules, 1995, 21 posts to be filled up from eligible Group-D employees. The selection process was conducted and 15 posts (13 UR + 2 SC) were filled up. The Petitioners, being UR category were appointed. Pursuant the orders passed by the OAT, 10 persons including the Petitioners were reverted and in place of them, 5 persons joined and rest 5 persons were granted they had notional promotion as already retired. to The above clearly implies that all vacancies of the year 2014 had not been filled up. The Petitioners having already been considered in 2014 and reverted in 2020 could also have been considered for promotion against the available vacancies without disturbing the promotion of the applicants before the OAT. No plausible reason has been put forth by the State as to why this was not done. Be that as it may, fact remains that the Petitioners were claimants against the vacancies of the year 2014, and being eligible were also duly considered. It is immaterial that the Tribunal found fault with their actual selection but then, as already Page 7 of 12 // 8 // stated, the Tribunal’s order cannot be seen to operate as a bar for consideration of the case of the Petitioners again along with the applicants before the Tribunal. 10. It would be appropriate to refer to the judgments cited by learned State counsel to contend that the Petitioners have no vested right conferred by old Rules so as to be considered for promotion as per the provisions thereof, particularly after its repeal and substitution by the new Rule. Learned State counsel has relied upon the judgment of the Supreme Court in the case of State of Himachal Pradesh and others Vs. Raj Kumar and others; (2023) 3 SCC 773. Reading of the above judgment reveals that the Petitioners therein claimed right of consideration for promotion under the Rules that existed when the vacancies had arose. This was negatived by the Supreme Court by noting that no right of promotion had been crystallized in their favour as they did not posses the eligibility criteria for promotion prior to the repeal of the erstwhile Rule. The case at hand stands entirely on a different pedestal inasmuch as the Petitioners herein were clearly eligible at the time of notification of the vacancies in the year Page 8 of 12 // 9 // 2014 and in fact were considered and granted promotion on such basis. Such was not the fact situation before the Supreme Court in the cited case for which the ratio laid down therein can be distinguished from the facts of the present case. 11. In the peculiar facts of the case, the principle that the Petitioners are to be considered as per the existing Rules is not applicable at all. Had it been a case of consideration for promotion for the first time then undoubtedly, the Rules in vogue shall be applicable. But this is not the case at hand. This is a case where the Petitioners had a right of consideration against available vacancies at the relevant time when the old Rules were in force. Only because the State, for reasons best known to it, preferred to make its own interpretation of the Tribunal’s clear order does not mean that the right of consideration of the Petitioners against the same vacancies in the same selection process was taken away. It would be profitable to refer to the judgment of Supreme Court in the case of T.R. Kapur Vs. State of Haryana and others; AIR 1987 SC 415 wherein the following was observed; “It is equally well-settled that any rule which affects the right of a person to be Page 9 of 12 // 10 // considered for promotion is a condition of service although mere chances of promotion may not be. It may further be stated that an authority competent to lay down qualifications for promotion, is also competent to change the qualifications. The rules defining qualifications and suitability for promotion are conditions of they can be changed service and retrospectively. This rule is however subject to a well-recognized principle that the benefits acquired under the existing rules cannot be taken away by an amendment with retrospective effect, that it to say, there is no power to make such a rule under the proviso to Article 309 which affects or impairs vested rights. Therefore, unless it is specifically provided in the rules, the employees who are already promoted before the amendment of the rules, cannot be reverted and their promotions cannot be recalled. In other words, such rules laying down qualifications for promotion made with retrospective effect must necessarily satisfy the tests of Articles 14 and 16(1) of the Constitution.” Thus, if 10 persons (applicants before the Tribunal) were considered, out of whom, 5 were considered and promoted after their retirement notionally after coming into the force of the new Rules, there is no reason why the Petitioners should also not have been considered. This amounts to Page 10 of 12 // 11 // violation of the principles of equality enshrined under Article 14 of the Constitution of India. 12. Thus from a conspectus of the discussion made hereinbefore, this Court is of the considered opinion that the Petitioners being eligible for consideration against the available vacancies in the year 2014 and their colleagues having been considered and granted the benefit retrospectively from 2014, when the Rules 1995 was in vogue, not granting similar benefit of consideration to the Petitioners would amount to discrimination and create a class within a class, which obviously cannot be countenanced in law. This Court would however hasten to add that whether the Petitioners are actually entitled to be promoted or not would depend on the findings of the DPC and this Court must be held to have not said anything in such regard. 13. For the foregoing reasons therefore, this Court deems it proper to dispose of the I.A. by clarifying that the direction in the order dated 3rd October, 2023 that the Opposite Party authorities shall take all necessary steps to fill up the promotional posts against the 10% quota by holding DPC, shall be understood to mean, only in so far as Page 11 of 12 // 12 // the Petitioners are concerned, as per the Rules,1995. …….……….…….……….. (Sashikanta Mishra) Judge Ashok Kumar Behera Signature Not Verified Digitally Signed Signed by: ASHOK KUMAR BEHERA Reason: Authentication Location: High Court of Orissa, Cuttack Date: 12-Feb-2024 17:23:44 Page 12 of 12