The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C)(OAC) No.2843 of 2016 Prashant Kumar Sahoo …. Petitioner Mr. M.K. Mishra, Sr. Advocate along with Mr. D.K. Patnaik, Advocate -versus- State of Odisha & Ors. …. Opposite Parties Mr. S. Rath, ASC CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY ORDER 17.01.2024 Order No 12. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode. 2. Perused the office note dtd.20.04.2023. Since notice has been duly served on Opp. Party No. 3 on 27.03.2023 and nobody has entered appearance on behalf of Opp. Party No. 3, notice against him is treated as sufficient.
Legal Reasoning
3. Heard Mr. M.K. Mishra, learned Sr. Counsel along with Mr. D.K. Patnaik, learned counsel appearing for the Petitioner and Mr. S. Rath, learned Addl. Standing Counsel appearing for the Opp. Parties. None is present on behalf of Opp. Party No. 3 in spite of due service of notice. // 2 // 4. The Petitioner has filed the present writ petition inter alia with the following prayer:- “It is , therefore, humbly prayed that this Hon’ble Tribunal may graciously be pleased to issue notice for show cause and call for the records and on perusal of causes shown and upon insufficient causes shown be pleased to: (i) To declare the applicant Senior to the Respondent No. 3 and recast the Revised Final Gradation List of Section Officer dtd.28.08.2015 under Annexure-16 by placing the applicant above the Respondent No. 3. (ii) Direct the Respondents No. 1 to give promotion to the applicant to the next higher rank i.e. Desk Officer prior to the promotion of Respondent No. 3 and other recruitees of the year 1996. (iii) And may pass any other order/orders as deemed just and proper. And for this act of kindness, the applicant shall as in duty bound ever pray.” 5. It is the case of the Petitioner that Petitioner was appointed as a Junior Assistant in the Odisha Secretariat Service under the provisions of Rehabilitation Assistance Scheme and in accordance with OCS (R.A.) Rules, 1990 vide order dtd.25.11.1995 under Annexure-1. Pursuant to the said order Petitioner joined as a Junior Assistant on 30.01.1995. Similarly, Opp. Party No. 3 was appointed as a Junior Assistant where he joined on 20.09.1996. It is contended that fixation of seniority of Junior Assistant is governed under Rule 18 of the Orissa Ministerial Service (Method of Recruitment and Condition of Service of Junior Assistants in the Offices of Departments of Secretariat) Rules, 1951 vis-a-vis Rule 13 of the Page 2 of 8 // 3 // Odisha Civil Service (Rehabilitation Assistance) Rules, 1990. Rule 18 of the 1951 Rules reads as follows:- “18. The relative seniority of each candidate shall be determined with reference to his position in the competitive examination held in a particular year except that a candidate directly recruited to approved military service shall on his appointment to the service after release from the military service be allowed to count towards seniority the actual period of his service rendered in the army and. shall be placed above all the direct recruits of the year in which his due date of appointment falls after antedating his date of appointment to the extent of the period of approved military service to his credit. But where a candidate of a particular examination could not be appointed before the declaration of the result of the subsequent examination and is selected under rule 11 appointment he shall under the circumstances, take rank just below the successful candidates appointed on the result of the said subsequent examination. (1) The relative seniority of each candidate who come out successful in special recruitment examination shall be determined with reference to his position in the said competitive examination and such candidates shall take rand just below the candidates of the preceding general recruitment examination. (2) The relative seniority of the candidates belonging to Scheduled Castes and Scheduled Tribes recruited through a special recruitment test under rule 3 shall be determined according to their position assigned in the select list and such candidates shall take rank just below the successful Page 3 of 8 // 4 // candidates of the preceding general recruitment examination appointed in a particular year. (3) The relative seniority of the candidates appointed under Rule 17-A or under the Orissa Civil Services (Rehabilitation Assistance) Rules, 1990 shall be determined according to their date of appointment and shall take rank below all the successful candidates appointed in a particular year out of the list sponsored by the Commission under Rule 8. (4) The relative seniority of a person promoted to the post of Junior Assistant under rule (2) shall be determined with reference to his position in the select list prepared by the Departmental Promotion Committee and such person shall take rank just below the candidates appointed under rule 3(1) in a particular calendar year.” Similarly, Rule 13 of 1990 Rules reads as follows:- “13. Seniority of persons, appointed under these rules, in the grade or cadre of the service c posts in which the appointment is made shall be fixed below the persons recruited and appointed in that grade or cadre in that year as per the provisions of the relevant recruitment rules framed under article 309 of the Constitution and in other cases according to their date of joining in the post.” 5.1. It is the case of the Petitioner that in terms of the provisions contained under Rule 18(3) of 1951 Rules vis-a-vis Rule 13 of 1990 Rules, since Petitioner was appointed in the year 1995 as Junior Assistant and Opp. Party No. 3 was appointed in the year 1996, Petitioner was all through placed above Opp. Party No. 3 and in the Page 4 of 8 // 5 // final gradation list published in the cadre of Junior Assistant on 25.04.2000 under Annexure-4, Petitioner was placed at Sl. No. 200 and Opp. Party No. 3 was at Sl. No. 210. Basing on his position in the final gradation list of Junior Assistant so published on 25.04.2000 under Annexure-4, Petitioner was promoted to the rank of Senior Assistant, where he joined on 31.05.2000. But prior to publication of such final gradation list, Opp. Party No. 3 was given the benefit of promotion illegally to the rank of Senior Assistant, where he joined on 10.03.2000. 5.2. Not only that in the tentative gradation list of Sr. Asst. published on 24.10.2003 vide Annexure-6, Petitioner was placed at Sl. No. 1620 and Opp. Party No. 3 at Sl. No. 1630. In the meantime, post of Jr. Asst. and Sr. Asst. merged with creation of the post of Asst. Section Officer (ASO). In the gradation list of ASO published on 06.02.2010 under Annexure-8, Petitioner was placed at Sl. No. 744 and Opp. Party No. 3 at Sl. No. 753. 5.3. Petitioner thereafter was promoted to the rank of Section Officer, where he joined on 24.05.2014 and Opp. Party No. 3 on his promotion joined on 13.06.2014. But in the impugned final gradation list published by the Govt. in the Revenue and Disaster Management Department on 15.09.2015 under Annexure-6 in the post of Section Officer in OSS Cadre as on 01.11.2014, Petitioner was wrongly placed at Sl. No. 429 while placing Opp. Party No. 3 at Sl. No. 357. 5.4. Learned Sr. Counsel appearing for the Petitioner contended that in view of the specific provisions contained under Rule 18(3) of the Page 5 of 8 // 6 // 1951 Rules vis-a-vis Rule 13 of the OCS (R.A.) Rules, 1990, since Petitioner was appointed as a Jr. Assistant in the year 1995 and Opp. Party No. 3 was appointed as such in the year 1996, Opp. Party No. 3 cannot be placed above the Petitioner in the rank of Section Officer while taking his date of joining in the rank of Jr. Assistant as 20.09.1996. It is accordingly contended that the placement of Opp. Party No. 3 in the impugned final gradation list of Section Officer so published under Annexure-16 is not sustainable in the eye of law. 6. Learned Addl. Standing Counsel on the other hand made his submission basing on the stand taken in the counter affidavit so filed by the Opp. Party Nos. 1 & 2. It is contended that even though Opp. Party No. 3 was appointed as Junior Assistant, where he joined on 20.09.1996, but the said appointment was issued in terms of the select list published by the OPSC vide letter dtd.14.10.1993 under Annexure-2 and in respect of a selection process initiated in the year 1991. It is contended that since Opp. Party No. 3 was recommended by the Commission in the year 1993 and he was appointed in the year 1996, taking into account the recommendation to be of the year 1993, Opp. Party No. 3 is required to be placed above the Petitioner in the gradation list in terms of the provision contained under Rule 18(3) r/w Rule 13 of 1990 Rules. Accordingly, it is contended that Opp. Party No. 3 was rightly placed above the Petitioner in the gradation list published under Annexure-16. Page 6 of 8 // 7 // 6.1. It is contended that since Opp. Party No. 3 was a selectee of the year 1993, he was rightly given the position above the Petitioner, who was appointed under the provisions of R.A. Scheme in the year 1995. It is accordingly contended that no illegality or irregularity has been committed by the Opp. Party No. 1 while published the impugned gradation list under Annexure-16. 7. Having heard learned counsel appearing for the Parties and after going through the materials available on record, this Court finds that Petitioner was appointed under the provisions of Rehabilitation Assistance Scheme as a Junior Assistant, where he joined on 30.01.1995. Even though basing on the recommendation made by the Commission on 14.10.1993, Opp. Party No. 3 was appointed as a Junior Assistant, but he was so appointed where he joined on 20.09.1996. 7.1. It is also found that basing on his position in the final gradation list of Junior Assistant, Petitioner though was promoted to the rank of Senior Assistant, where he joined on 31.05.2000, but basing on his position in the tentative gradation list, Opp. Party No. 3 was promoted to the rank of Senior Assistant on 24.03.2000. However, taking into account the date of joining of the Petitioner in the post of Junior Assistant as 30.01.1995 and that of Opp. Party No. 3 as 20.09.1996, placing reliance on the provisions contained under Rule 18(3) of the 1951 Rules vis-a-vis Rule 13 of the OCS (R.A.) Rules, 1990, it is the view of this Court that Opp. Party No. 3 since was appointed in the year 1996 and not in the same year when Petitioner was appointed in the year 1995, Opp. Party No. 3 cannot be placed Page 7 of 8 // 8 // above the Petitioner in the gradation list so published under Annexure-16. 7.2. Therefore, while interfering with the placement of the Petitioner vis-a-vis Opp. Party No. 3 in the impugned gradation list under Annexure-16, this Court directs Opp. Party No. 1 to give appropriate seniority to the Petitioner above Opp. Party No. 3 by modifying the impugned gradation list published on 15.09.2015 under Annexure-16. Such an exercise be undertaken and completed by Opp. Party No. 1 within a period of six (6) weeks from the date of receipt of this order.
Decision
8. The writ petition is accordingly disposed of. (Biraja Prasanna Satapathy) Judge Sneha Signature Not Verified Digitally Signed Signed by: SNEHANJALI PARIDA Designation: Sr. Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 22-Jan-2024 11:53:35 Page 8 of 8