The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK WPC(OA) No.3101 of 2013 Sasi Bhusan Rath ..... Petitioner Mr. B.B. Mohanty, Advocate 1) State Of Odisha 2) Director, Secondary Education 3) District Education Officer 4) Rabindra Prasad Sahoo -versus- ..... CORAM: Opposite Parties Mr. M.K. Balabantaray, AGA THE HON'BLE MR. JUSTICE BIRAJA PRASANNA SATAPATHY ORDER 30.04.2024 Order No. 13 1. This matter is taken up through hybrid mode. 2. Perused the office note. Since notice against Opp. Party No. 8 has been duly served, notice against the said Opp. Party is treated as sufficient. 3. Heard Mr. B.B. Mohanty, learned counsel for the Petitioner and
Legal Reasoning
Mr. M.K. Balabanataray, learned Addl. Govt. Advocate appearing for the Opp. Parties. 4. Petitioner has filed the present writ petition inter alia with the following prayer:- “Under this circumstances, it is humbly prayed that this Hon'ble Tribunal may be graciously pleased to allow this original Application with cost; and a) necessary direction may be made to quash the orders 16.2.2012 passed by the SME Department and hold the order dated 3.1.2012 in Ο.Α. Νο. 1758(C)/2008 as not binding on the applicant Page 1 of 8. b) This Hon'ble Tribunal may also be pleased to quash the gradation list dated 11.10.2013, and the decision to effect promotion on the basis of the gradation list dated 11.10.2013 and the consequential D.P.C and order of promotion dated 29.10.2013 c) Necessary direction may be made to the respondents not to tinker with the seniority of the applicant as Junior Clerk as per the Resolution of Govt. Dated 26.11.2007 and the gradation list of the composite merged cadre of Junior Clerks under D.E.O. Rayagada be prepared appropriately by taking the deemed date of govt. service as 1.12.1986 and effect promotion in favour of the applicant retrospectively from the date of promotion of his juniors with all consequential service and financial benefits on the basis of appropriate placement in the gradation list. d) any other order/orders as this Hon'ble Tribunal may deem fit and proper in this case;” 5. It is contended that Petitioner while continuing as Jr. Clerk in an Aided Educational Institution, basing on the resolution issued by the Govt. On 16.12.1994, services of the Petitioner was taken over. Subsequent to such taken over of the services of the Petitioner, further resolutions were issued by the Govt. on 07.12.2002 under Annexure-2 and 26.11.2007 under Annexure-3. 5.1. Placing reliance on the resolution issued by Govt.-Opp. Party No. 1 on 26.11.2007 under Annexure-3, learned counsel for the Petitioner contended that 50% of the period of service rendered by the Petitioner in the Aided Educational Institution for the period from 01.12.1978 to 07.06.1994 was required to be taken into consideration while counting the seniority of the Petitioner in the rank of Jr. Clerk. 5.2. It is contended that in terms of the resolution issued by the Govt. On 26.11.2007, while publishing the provisional gradation list Page 2 of 8. of Jr. Clerk so published vide letter dtd.13.08.2013 under Annexure- 6, Petitioner’s name was placed at Sl. No. 12 and his date of joining in the rank of Jr. Clerk was taken as 03.11.1990. It is contended that such date of joining in the rank of Jr. Clerk was fixed in terms of the provisions contained under Para 3(a) of resolution dtd.26.11.2007 under Annexure-3. Para 3(a) of the resolution is reproduced hereunder:- “(a) 50% (fifty percent) of the total length of Non-Government service from the date of recognition of the school rendered by the Non-teaching employees of the 2929 taken over High Schools in respective cadres before they were declared as Government servants w.e.f.7.06.1994 shall be counted only for determining their seniority.” 5.3. Learned counsel for the Petitioner contended that even though the seniority of the Petitioner in the rank of Jr. Clerk was taken as 03.11.1990 basing on the resolution issued on 26.11.2007, but in fact Petitioner’s date of joining in the said rank should have been taken as 03.08.1986. Accordingly, on being communicated with the provisional gradation list so issued under Annexure-6, Petitioner raised an objection before Opp. Party No. 3 on 20.09.2013 under Annexure-7. But without considering such objection in its proper perspective and in the light of the resolution issued under Annexure- 3, Petitioner’s position was downgraded and Petitioner was placed at Sl. No. 18 in the final gradation list so published on 15.10.2013 under Annexure-8. 5.4. Learned counsel for the Petitioner contended that in the final gradation list so published under Annexure-8 series on 15.10.2013, the date of joining of the Petitioner as against the post of Jr. Clerk was wrongly taken as 07.06.1994 and that is basing on the order Page 3 of 8. passed by the Tribunal on 03.01.2012 in O.A. No. 1758(C) of 2008 & batch, wherein Petitioner was never impleaded as a Party. 5.5. Learned counsel for the Petitioner however contended that order passed by the learned Single Member in O.A. No. 1758(C) of 2008 & batch on 03.01.2012 was assailed before the Division Bench of the Tribunal in O.A. No. 621(C) of 2012 & batch. The Division Bench of the Tribunal vide its order dtd.05.06.2014 set aside the order passed by the learned Single Member and while setting aside the said order so passed under Annexure-4, the resolution issued by the Govt. On 26.11.2007 under Annexure-3 was restored. 5.6. Learned counsel for the Petitioner contended that on the face of the order passed by the Division Bench on 05.06.2014 in O.A. No. 621(C) of 2012 & batch vide Annexure-A/3 to the counter affidavit, no further step was taken to rectify the mistake so committed by Opp. Party No. 3 in placing the Petitioner at Sl. No. 18 in the final gradation list of Jr. Clerk so published on 15.10.2013 under Annexure-8 series, wherein date of joining of the Petitioner was taken as 07.06.1994. It is contended that because of such in action on the part of Opp. Party No. 3, though persons originally placed below the Petitioner in the provisional gradation list under Annexure-5 got the benefit of promotion to the rank of Sr. Clerk vide office order dtd.29.10.2013 under Annexure-9, but Petitioner could not get the benefit of promotion till he retired from his service on attaining the age of superannuation on 31st March, 2018. 5.7. Learned counsel for the Petitioner contended that since the position given to the Petitioner in the final gradation list so published on 15.10.2013 vide Annexure-8 series was prepared in terms of the order passed by the learned Single Member on Page 4 of 8. 03.01.2012 in O.A. No. 1758(C) of 2008, after quashing of the said order by the Division Bench of the Tribunal vide its order dtd.05.06.2014 in O.A. No. 621(C) of 2012, date of joining of the Petitioner in the rank of Jr. Clerk should have been corrected and Petitioner should have been given due placement in terms of the stipulation contained in resolution dtd.26.11.2007 under Annexure- 3. 5.8. Learned counsel for the Petitioner further contended that even if taking the date of appointment of the Petitioner as against the rank of Jr. Clerk as 03.11.1990 so reflected in Annexure-5, he was also eligible to get the benefit of promotion to the rank of Sr. Clerk as persons, appointed in the said rank after 03.11.1990 were extended with the benefit of promotion to the rank of Sr. Clerk vide office order dtd.29.10.2013 under Annexure-9. It is accordingly contended that since because of the in action on the part of Opp. Party No. 3, Petitioner’s position was not corrected after passing of the order by the Division Bench of the Tribunal on 05.06.2014 and accordingly Petitioner could not get the benefit of promotion, on the face of such benefit being extended to his juniors, Petitioner is eligible and entitled to get the benefit of such promotion from the date his joining were so extended with the benefit of promotion with all consequential and service benefits. 6. Mr. M.K. Balabantaray, learned Addl. Govt. Advocate on the other hand made his submission basing on the stand taken in the counter affidavit. It is contended that since the resolution issued by the Govt. On 26.11.2007 was set aside by the Tribunal in its order dtd.03.01.2012 in O.A. No. 1758(C) of 2008 & batch. Taking into account such order passed by the Tribunal, Petitioner’s date of Page 5 of 8. joining in the rank of Jr. Clerk was corrected as 07.06.1994 in place of 03.11.1990 and he was placed at Sl. No. 18 in the final gradation list published by Opp. Party No. 3 under Annexure-8. But learned Addl. Govt. Advocate while not disputing the order passed by the Division Bench of the Tribunal on 05.06.2014 in O.A. No. 621(C) of 2012, wherein the order passed by the learned Single Member in O.A. No. 1758(C) of 2008 & batch was set aside, contended that because of the challenge made to order dt.05.06.2014 before this Court in W.P.(C) No. 12926 of 2014, no step was taken to rectify the date of joining of the Petitioner in the rank of Jr. Clerk. 6.1. It is contended that since because of the order passed by the Tribunal initially on 03.01.2012 and pendency of the matter before this Court, Petitioner’s seniority in the rank of Jr. Clerk so modified with issuance of the final gradation list under Annexure-8, Petitioner could not get the benefit of promotion, when such promotion was extended vide order dtd.29.10.2013 under Annexure-9. 7. To the submission made by the learned Addl. Govt. Advocate, Mr. Mohanty, learned counsel for the Petitioner contended that the order passed by the Division Bench on 05.06.2014 even though was assailed by some of the aggrieved Parties before this Court in W.P.(C) No. 12926 of 2014, but this Court vide order dtd.11.12.2023 while dismissing the writ petition, confirmed the order passed by the Division Bench. 8. Having heard learned counsel appearing for the Parties and considering the submission made, this Court finds that Petitioner was appointed as against the post of Jr. Clerk in an Aided Educational institution on 01.12.1978. Pursuant to the resolution issued by the Govt.-Opp. Party No. 1 on 16.12.1994 under Page 6 of 8. Annexure-1, services of the Petitioner was taken over and Petitioner became a Govt. Employee w.e.f.07.06.1994. Thereafter, taking into account the stipulation contained in resolution dtd.26.11.2007 vide Para 3(a), Petitioner’s seniority in the rank of Jr. Clerk was fixed at 03.11.1990 under Annexure-6. But taking into account the stipulation contained in Para 3(a), Petitioner raised an objection under Annexure-7 inter alia indicating therein that his date of joining in the rank of Jr. Clerk be taken as 03.08.1986. 8.1. But as found from record, without considering the said objection, placing reliance on the order passed by the learned Single Member on 03.01.2012 in O.A. No. 1758(C) of 2008 & batch, Petitioner’s date of joining in the rank of Jr. Clerk was taken as 07.06.1994 while publishing the final gradation list on 15.10.2013 under Annexure-8. As found from the record, the order passed by the learned Single Member on 03.01.2012 was set aside by the Division Bench of the Tribunal in its order dtd.05.06.2014 in O.A. No. 621(C) of 2012 & batch. Because of such order passed by the Division Bench, the resolution passed by the Govt. On 26.11.2007 was restored. 8.2. In view of the provisions contained under Para 3(a) of the resolution and taking into account the position given to the Petitioner in the provisional gradation list published under Annexure-6, wherein his date of appointment in the rank of Jr. Clerk was taken as 03.11.1990, since persons appointed after 03.11.1990 have got the benefit of promotion vide order under Annexure-9, Petitioner is also eligible and entitled to get the benefit of promotion. Page 7 of 8. 8.3. In view of such analysis, this Court is of the view that claim of the Petitioner to get the benefit of promotion needs consideration by Opp. Party No. 3. Therefore, this Court while disposing the writ petition directs Opp. Party No. 3 to fix the date of seniority of the Petitioner in the rank of Jr. Clerk in terms of the provisions contained under Para 3(a) of resolution dtd.26.11.2007. After fixing his seniority in the said rank in terms of the aforesaid resolution, if it will be found that persons appointed subsequent to the Petitioner in the rank of Jr. Clerk have got the benefit of promotion vide order under Annexure-9, then case of the Petitioner be considered by conducting a review DPC and benefit of promotion be given on notional basis, as Petitioner admittedly has retired on attaining the age of superannuation on 31.03.2018. 8.4. On such holding of the Review DPC, if it is found that Petitioner is otherwise eligible to get the benefit of promotion, such promotion be extended from the date persons similarly situated and junior to the Petitioner were given the benefit of promotion to the rank of Sr. Clerk on notional basis. Pensionary benefits of the Petitioner however be revised accordingly and differential pension and pensionary benefits be also released. This Court directs Opp. Party No. 3 to complete the entire exercise within a period of four (4) months from the date of receipt of this order.
Decision
9. The writ petition is accordingly disposed of. Signature Not Verified Digitally Signed Signed by: SNEHANJALI PARIDA Reason: Authentication Sneha Location: High Court of Orissa, Cuttack Date: 03-May-2024 18:57:03 (BIRAJA PRASANNA SATAPATHY) Judge Page 8 of 8.