The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK WP(C ) No.33460 of 2021 Subrat Ranjan Hota & Others …. Petitioners Ms. S. Patnaik, Adv. -versus- Union of India & Others … Opp. Parties Mr. P.K. Parhi, DSGI along with Mr.B. Maharana, CGC Mr.A. Das, Adv. (for O.P. No.4) CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY Order No ORDER 07.05.2024 26. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode. 2. Heard learned counsels appearing for the parties. Compliance affidavit filed by Opp. Party No.1 be kept in record. 3. Petitioners have filed the present Writ Petition inter alia with the following prayer. “Under these circumstances, the Petitioners most humbly prays that this Hon’ble Court be graciously pleased to admit the writ application and issue RULE NISI calling upon the Opp. Parties to show cause as to why; (i) The Opp. Parties shall not be directed to treat the petitioners as Technician-B as per the Recruitment Rules, 2014 under Annexure-4 series, (ii) The Opp. Parties shall not be directed to consider the petitioners case for the promotional post of Technician-C of Comprehensive Guidelines for the Merit Promotion Scheme for Scientific and Technical Cadres, 2014 under Annexure-4 series from the date the petitioners are eligible. (iii) The orders under Annexure-1 series may not be quashed. (iv) A direction shall not be given to the Opp. Party No.3 to give the present petitioners the promotion as has been done in case of Operator give him all (laboratory) and also consequential benefit from the date of initial promotion to the next higher grade. go (v) The action of the Opp. Parties shall not be declared as illegal, arbitrary and unreasonable.” 4. Learned counsel for the Petitioners contended that pursuant to the advertisement issued by Opp. Party No.3 on 31.03.2012 under Annexure-3, Petitioners made their applications as against the post of Operator which was so advertised. Out of the said 16 posts of Operator so advertised, seven (7) posts were meant for Laboratory Function and nine (9) posts for General Function. 4.1. Learned counsel for the Petitioners contended that after facing due recruitment process, 10(ten) persons were selected as against the post of Operator vide Office Order dt.02.12.2013 under Annexure-2 series. Petitioners accordingly joined as Operators in the establishment of Opp. Party No.3. 4.2. It is contended that though Operator Laboratory Function and Operator General Function were so appointed as against the post of Operator, but Opp. Party No.3 while framing the rule in the year 2014 i.e. Recruitment Rules of NISER for Scientific and Technical Personnel, post of Operator General Function was neither treated as Scientific Personnel or Technical Personnel.
Legal Reasoning
4.3. It is contended that in terms of the Rules so framed in the year 2014, Operator Laboratory Function being treated as Technical Personnel, they got the benefit of promotion Page 2 of 9 from the post of Technician-B to the Post of Technician-C. It is contended that in terms of rule 2.1.1 of the 2014 Rules, Operator Laboratory Function being re-designated as Technician-B, they got the benefit of promotion in the year 2016. 4.4. It is contended that in terms of the advertisement issued under Annexure-3 series, Petitioners and appointees redesignated as Technician-B were appointed as against the post of Operator. But because of the Rules so framed in the year 2014, Operator Laboratory Function were re-designated as Technician-B and they got the benefit of Promotion in the year 2016. But claim of the Petitioners was never considered while framing such Rule in the year 2014. Because of such illegalities committed by the authorities of NISER in not framing appropriate rule for the Petitioners who were appointed as Operator, General Function, Petitioners were deprived to get the benefit of promotion, whereas Operator Laboratory Function being designated as Technician-B got the benefit of promotion to the rank of Technician-C in the year 2016. 4.5. It is contended that challenging such action of the authorities, Petitioners initially approached the Central Administrative Tribunal in O.A. No.260/128/2019. The Tribunal vide order dt.27.02.2019 under Annexure-6 series, while disposing the matter directed the authorities of NISER to consider the claim of the Petitioners. But when the same was rejected vide order dt.10.05.2019 vide Annexure-1 series, Petitioners again approached the Central Administrative Tribunal by filing OA No.446 of 2019. But the Tribunal on the ground of jurisdiction and maintainability did not entertain the O.A and accordingly Page 3 of 9 the present writ petition was filed inter alia with the prayer as indicated hereinabove. 4.6. It is contended that since Operator General Function and Operator Laboratory Function were so appointed in terms of a common advertisement issued under Annexure- 3 and in the order of appointment issued on December 2, 2013 vide Annexure-2 series, all the selectees were appointed as Operator, while framing the Rules in the year 2014, similar provisions should have been made as against the post of Operator General Function as was made in respect of Operator Laboratory Function. As because of the Petitioners were left out by the authorities of NISER, while framing such Rule in the year 2014, Petitioners who were appointed as Operator General Function could not get the benefit of promotion. 4.7. It is also contended that other group of person appointed as Operator Laboratory Function though was re- designated as Technician-B, but no such re-designation was made available to Operator, General Function. Accordingly, they could not get the benefit of promotion, while the other persons appointed as Operator Laboratory Function, got the benefit of promotion in the year 2016. 4.8. It is contended that since Operator Laboratory Function and Operator General Function were appointed in terms of a common advertisement issued under Annexure- 3 and a common order was passed appointing all the selectees as against the post of Operator, Petitioners should not have been discriminated and left out by the authorities of NISER, while framing the Rules in the year 2014. Page 4 of 9 4.9. It is also contended that while the post of Laboratory Attendant and Library staff were treated as Technical personnel, Petitioners who were appointed as Operator General Function, were not included under the purview of 2014 Rule. 4.10. It is further contended that considering the grievance so raised by the Petitioners, though Opp. Party No.3 issued the Recruitment norm on 02.11.2018 vide Annexure-N/4 and post of Operator General Function was re-designated as Clerk (A)/LDC, but because of the illegal action of NISER in not including them under the provisions of 2014 Rules, they could not get the benefit of Promotion to the next higher rank from the date Operator Laboratory Function got the benefit of Promotion. 4.11. It is contended that since in terms of the advertisement issued under Annexure-3, both set of selectees i.e., Operator Laboratory Function and Operator General Function, were appointed as against the post of Operators, the authorities of NISER should not have ignored their claim to get the benefit of promotion while framing the 2014 Rules. It is accordingly contended that appropriate direction be issued to the authorities of NISER to extend similar benefit as has been extended in favour of Operator Laboratory Function, in terms of 2014 Rules. 5. Mr. Amitav Das, learned counsel appearing for the NISER on the other hand contended that even though in the advertisement issued under Annexure-3 ,the post so advertised was for the post of Operator, but the method of selection and appointment as against the post of Operator Laboratory Function and Operator General Function is different. In the applications submitted by the Petitioners Page 5 of 9 to get the benefit of appointment, all of them made the applications as against the post of Operator General Function. 5.1. Though all of them were appointed as against the post of Operator, but while framing the rule in the year 2014, Operator Laboratory Function was re-designated as Technician B. Since Operator Laboratory Function was re- designated as Technician B under the provisions of 2014 Rules, they became entitled to get the benefit of promotion to the next higher rank of Technician-C. The case of the present petitioners was considered by the Board of Governors with issuance of Annexure-N/4 on 02.11.2018. Vide the said recruitment norms so published, post of Operator General Function was re-designated as Clerk(A )/LDC. 5.2. It is contended that in terms of the recruitment norms issued on 2.11.2018, similarly situated persons appointed as against the post of Operator General Function have got the benefit of promotion to the rank of Clerk (B)/UDC. But Petitioners as per the norm never appeared before the DPC to get the benefit of promotion to the rank of Clerk(B)/UDC. It is accordingly contended that since necessary Rule has been framed to extend the benefit of promotion to the petitioners who were appointed as Operator General Function by re-designating them as Clerk(A)/LDC vide Annexure-N/4, Petitioners can very well participate to the get the benefit of promotion to the next rank i.e. Clerk(B)/UDC. It is accordingly contended that claim of the petitioners has been rightly rejected vide the impugned order dt.10.05.2019 under Annexure-1. Page 6 of 9 6. Mr. B. Maharana, learned C.G.C appearing for Opp. Party Nos.1 & 2 on the other hand made his submission basing on the available materials. It is contended that no counter affidavit has been filed even though Opp. Party Nos.1 & 2 were duly intimated. But basing on the available materials, learned counsel contended that since NISER is an autonomous body, it is free to frame its own rule and accordingly, 2014 Rules were framed for Scientific and Technical Personnel and Rule in respect of the present Petitioners have been framed on 02.11.2018 under Annexure-N/4. 6.1. It is contended that since NISER is an autonomous body, role of Opp. Party Nos.1 & 2 is very minimal and it is for them to take a decision on the claim of the Petitioners. 7. Having heard learned counsel for the parties and after going through the materials available on record, this Court finds that basing on a common advertisement issued by NISER on 31.03.2012 under Annexure-3, Petitioners made their application as against the post of Operator General Function. In the Office order issued on December 2, 2013 vide Annexure-2 series, all the selectees were appointed as against the post of Operator and in the said order, nothing was indicated as to who were appointed as Operator Laboratory Function and Operatory General Function. But basing on the applications made by the Petitioners so available in the case record, Petitioners since had made their application as against the post of Operator General Function, they were appointed as such. But from the record, it is found that while framing the rules in the year 2014, Operator Laboratory Function was re-designated as Technician-B and they became eligible to get the benefit of promotion to the rank of Technician-C. But, post of Page 7 of 9 Operator General Function was not included under the purview of 2014 Rules while categorizing the personnel as Scientific and Technical. 7.1. As found ,because of such illegalities committed by the authorities of NISER, Petitioners who were appointed as Operator General Function could not avail the benefit of promotion in terms of 2014 Rules, while Operator Laboratory Function after being re-designated as Technician-B, got the benefit of Promotion to the post of Technician-C. While framing recruitment norms in respect of present petitioners on 2.11.2018 vide Annexure-N/4 post of Operator General Function was re-designated as Clerk(A)/LDC. 7.2. Since both Operator Laboratory Function and Operator General Function were appointed in terms of a common advertisement issued on 31.03.2012 and all of them were appointed as against the post of Operator vide Order dt.02.12.2013, the authorities of NISER should have framed appropriate rule in respect of the Petitioners by re- designating the post of Operator General Function while framing the rule in the year 2014. Since as per 2014 rules, Operator Technical Function was re-designated as Technician-B and they got benefit of promotion in the year 2016, petitioners could not get such benefit, as they were not brought under the ambit of 2014 Rules. 7.3. In view of such illegalities committed by the authorities of NISER, this Court while disposing the Writ Petition directs Opp. Party No.3 to re-designate Petitioners as Clerk-(A)/LDC from the time similar re-designation was made in respect of other group as Technician-B. This Court further directs Opp. Party-NISER to extend the Page 8 of 9 benefit of promotion to the present petitioners to the rank of Clerk(B)/UDC from the date similarly situated Operator Laboratory Function/Technician-B got the benefit of promotion to the rank of Technician C with all consequential service and financial benefit, if they are otherwise eligible. This Court directs Opp. Party No.3 to comply the above direction within a period of four (4) months from the date of receipt of this order. Consequentially, the rejection available at Annexure-1 is hereby quashed.
Decision
The Writ Petition is accordingly disposed of. (Biraja Prasanna Satapathy) Judge sangita Signature Not Verified Digitally Signed Signed by: SANGITA PATRA Reason: authentication of order Location: high court of orissa, cuttack Date: 16-May-2024 14:58:54 Page 9 of 9