The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.C.(OA) No.2130 of 2019 Purna Chandra Mohanty …. Petitioner Mr. R.K. Bisoi, Adv. -versus- State of Odisha & Ors. …. Opposite Parties Mr. S. Jena, AGA CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY Order No 13. 1. This matter is taken up through Hybrid Arrangement ORDER 07.08.2024 (Virtual/Physical) Mode. 2. Heard learned counsel for the parties. 3. Petitioner has filed the present Writ Petition inter alia challenging order dated 08.02.2019, so issued by the Govt.-O.P. No.1 under Annexure-10. Vide the said order, claim of the petitioner to get the benefit of promotion from the date O.P. Nos.2 and 3 got the said benefit was rejected. 4. Learned counsel for the Petitioner contended that while continuing in the cadre of Odisha Subordinate Finance Services, O.P. Nos.2 and 3 were promoted and appointed to Odisha Taxation and Accounts Service (OT & AS) Class-II by way of promotion for the year 2013 vide notification dated 07.02.2014 under Annexure-3. // 2 // 4.1.
Legal Reasoning
It is contended that even though the petitioner at the relevant time was also eligible to get the benefit of promotion but the same was never extended. However, while extending similar benefit of promotion to the rank of OT & AS vide Notification dated 06.07.2015 under Annexure-5 for the year 2013, it was clearly indicated that petitioner’s inter se seniority will be fixed above O.P. No.2. It is contended that vide notification dated 07.02.2014 under Annexure-3 while O.P. Nos.2 and 3 got the benefit of promotion to the rank of OT & AS on adhoc basis, petitioner was extended with such benefit for the year 2013 on regular basis with the clear indication that he will be placed above O.P No.2 in the said rank. 4.2. It is contended that on the face of the notification issued under Annexure-5 and the direction contained therein, when in the Provisional Gradation List of OT & AS, Class–II (Group-B) published on 12.03.2018 under Annexure-6, petitioner was placed below O.P. No.2, Petitioner raised an objection with regard to his placement vis-à-vis O.P. Nos.2 and 3 on 03.04.2018 under Annexure-7. But without considering the same, Final Gradation List was published on 21.08.2018 under Annexure-8 by placing the petitioner below O.P. Nos.2 and 3. After such placement of the petitioner in the Final Gradation List below O.P. Nos.2 and 3, both O.P. Nos.2 and 3 got the benefit of promotion to the next higher rank i.e. OFS-I (JB) vide Notification dated 30.04.2019 under Annexure-14. 4.3. Learned counsel for the petitioner contended that challenging such fixation of his position in the Final Gradation List issued under Page 2 of 10 // 3 // Annexure-8, petitioner approached the Tribunal by filing O.A. No.3313 of 2018. The Tribunal vide order dated 27.12.2018 under Annexure-9 while disposing the matter issued the following directions:- “5. Considering the submissions of both parties to Government, Finance respondent No.1- Secretary Department, Bhubaneswar is directed to consider the paper book as representation and dispose of the same treating the contents of the O.A. part thereof after re-examining entire case keeping in view order at Annexure-5 and pass a reasoned and speaking order relating to the position of the applicant in the final gradation list of OTAS. Entire exercise be completed within a period of two months from the date of receipt a copy of this order and the order thereof be communicated to the applicant soon thereafter.” 4.4. It is contended that without proper appreciation of the claim of the petitioner to get his Seniority above O.P. Nos.2 and 3 in terms of the provisions contained under the relevant Recruitment Rule i.e. Odisha Taxation and Accounts Service (Amendment Rules), 2011 (in short “Rules”) more particularly Rule-15 of the said Rules, Petitioner’s claim was rejected vide the impugned order dated 08.02.2019 under Annexure-10. 4.5. Learned counsel for the petitioner contended that as provided under Rule-15 of the 2011 Rules inter se seniority of officers appointed by promotion under Clause-(b) of Rule-4 of the said rules, in a year shall be fixed on the basis of the length of services in the feeder grade and shall en bloc be senior to those appointed by selection under Clause-(c) of the rule 4 in that year. It is contended that petitioner and O.P. Nos.2 and 3 were all appointed in the OT & AS Rank for the year 2013 and while extending such benefit in Page 3 of 10 // 4 // favour of the petitioner vide notification dated 06.07.2015 under Annexure-5, it was clearly indicated that petitioner will be placed above O.P. No.2 in the said Rank. But without following same, in the Provisional Gradation List published under Annexure-6 when petitioner was placed below O.P. Nos.2 & 3, petitioner raised an objection under Annexure-7. Without considering the same, Final Gradation List was published under Annexure-8 by committing same mistake while placing the petitioner below O.P. Nos.2 and 3. It is also contended that because of such illegal action of the Opp. Parties, petitioner was deprived to get the benefit of promotion to the next higher rank while O.P. No.2 and 3 got the same vide notification dated 30.04.2019 under Annexure-14. It is accordingly
Decision
contended that the impugned order is not sustainable in the eye of law and requires interference of this Court. 4.6. It is also contended that this Court while taking up the matter on 25.09.2023, passed the following order:- “1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode. 2. Perused the Office note. Since notice on Opp. Party Nos. 2 & 3 has been duly served, notice against them treated as sufficient. 3. Heard learned counsel appearing for the Parties. 4. Learned counsel for the Petitioner contended that against the publication of the provisional gradation list on 12.03.2018 under Annexure-6 the Petitioner though made an objection within the time vide Annexure-7, but without taking a lawful decision on the same the impugned final gradation list was published on 21.08.2018 under Annexure-8. Basing on such publication of the final gradation list, promotion was also given in favour of Page 4 of 10 // 5 // Private Opp. Party Nos. 2 & 3. It is accordingly contended that since no decision was taken on the objection filed by the Petitioner under Annexure-7, publication of the final gradation list and consequential issuance of order of promotion are not sustainable in the eye of law. 5. Even though no counter has been filed by the State, but taking into account the nature of grievance raised, this Court directs learned State Counsel to obtain instruction as to whether the objection so filed by the Petitioner under Annexure-7 was considered and what order was passed on the same. Such instruction shall be provided to this Court on the next date. 6. As requested, list this matter on 13.10.2023. ” 5. After such order passed by this Court, a counter affidavit was filed by the State. Basing on the stand taken in the counter affidavit, learned Addl. Govt. Advocate contended that Seniority of the petitioner vis-à-vis O.P. Nos.2 and 3 was required to be prepared in terms of the aforesaid 2011 Amended Rules. As O.P. Nos.2 and 3 got the benefit of promotion to the rank of OT & AS vide notification dated 07.02.2014 under Annexure3 and petitioner got said benefit vide Notification dated 06.07.2015 under Annexure-5, petitioner was placed below O.P. Nos.2 and 3 in the Provisional Gradation List so issued under Annexure-6. On due consideration of his objection, he was also placed below O.P. Nos.2 and 3 in the Final Gradation List published under Annexure-8. Since petitioner was placed below O.P. Nos.2 and 3 in the Final Gradation List, O.P. Nos.2 and 3 got the benefit of promotion to the next higher Rank vide Notification dated 30.04.2019 under Annexure-14. 5.1. It is also contended that in the meantime petitioner has got the benefit of promotion to the next higher rank vide notification Page 5 of 10 // 6 // dated 05.01.2021. Stand taken in Para-10 and 18 of the counter affidavit reads as follows:- “10) That, it is humbly submitted that the averments made in para 6.10 of the original application are incorrect and hence denied.. The provisional gradation list of OT&AS Officers was published vide this Department Letter dated 12.03.2018 inviting objections / modifications / omission etc, if any, from the OT&AS Officers and accordingly several objections, including the representation of the petitioner, were received in this Department. The petitioner had submitted a representation dated 03.04.2018 objecting his position in the provisional gradation list of OT&AS Officers as compared to positions of his juniors of feeder grade. Laxmi Narayan Sahoo, Opposite Party No.2 and Shantanu Kumar Nayak, Opposite Party No. 3 who were junior to the petitioner in the feeder grade have been placed above the petitioner in the provisional gradation list of is OT&AS officers. Gradation prepared as per Rule 15 of OT&AS (Amendment) Rule, 2011 i.e. basing on the appointment year but not as per the gradation list of the individual constituent cadre. The Officers appointed to OT&AS Cadre by way of promotion in a year were arranged in the gradation list as per their length of service in the feeder grade rather than the individual constituent cadre. gradation Accordingly, the representation dated 03.04.2018 of the petitioner was considered and for consideration since his appointment year is 2015; i.e after the appointment years of Opposite Party No. 2 and Opposite Party No. 3. He has been placed rightly in the provisional gradation list. The relevant notings of the concerned file is herewith annexed as Annexure-C/1. list of OT&AS cadre found no merit list of the the vide 2014 during Opposite Party No.2 was promoted to OT&AS Cadre Finance year Department Notification No. 3564/F dated 07.02.14 but pursuant to the direction of the learned OAT in OA No. 1128/2013, Opposite party No.2 was allowed retrospective promotion to OT&AS from the year 2013 vide Finance Department Notification No.29689/F dated 18.11.2015 i.e from the date of joining of his juniors promoted as per recommendations of DPC meeting held on 22.12.2012 for the year 2012 and hence, Opposite Party No. 2 was placed above the petitioner in the gradation list. Page 6 of 10 // 7 // the 2013 during Opposite Party No. 3 was promoted to OT&AS Finance year Cadre Department Notification No. 22599/F dated 04.07.2013 whereas the petitioner was promoted to OT&AS Cadre during the year 2015 vide Finance Department Notification No.18882/F dated 06.07.2015 and hence, Opposite Party No. 3 was placed above the petitioner in the provisional gradation list. vide Copy of Finance Department Notification is annexed herewith No.22599/F dated 04.07.2013 as Annexure- D/1.. Copy of Finance Department Notification is annexed herewith No.29689/F dated 18.11.2015 as Annexure-E/1. Copy of Finance Department Notification herewith 07.02.14 annexed is dated xxxxx xxxx xxxx No.3564/F as Annexure-F/1. xxxx 18) In the meantime all the OT&AS officers including the petitioner in the said gradation list who were promoted from Odisha Sub-ordinate Finance Service (OSFS) cadre for the year 2013 have already been promoted to OFS-I (JB) Cadre vide Finance Department. Notification No.16972/F Dated Department 30.04.2019, Notification No. 366/F Dated 05.01.2021 and subsequent Notifications on the basis of the final gradation list dtd 21.08.2018 of OT&AS Officers. The petitioner alongwith the Opposite Party No. 2 was promoted from OT&AS Cadre to OFS-I(JB) vide Finance Department Notification No. 366/F Dated 05.01.2021.. Besides, the latest gradation list of OT&AS officers was published vide this Department Letter dtd. 21.12.2022 wherein the petitioner along with the other OT&AS Officers, who were promoted to OT&AS cadre for the year, 2013, are no longer available in the gradation list of OT&AS officers since they have already been promoted to OFS-I (JB) Cadre. As a result, there is no point to revisit the provisional gradation dtd 12.03.2018 or final gradation list dtd 21.08.2018 of OT&AS officers. As such, the prayer of the petitioner has become infructuous. Copy of Notification No. 16972/F Dated 30.04.2019 is annexed herewith as Annexure-G/1. Copy of Notification No. 366/F Dated 05.01.2021 is annexed herewith as Annexure-H/1.” Page 7 of 10 // 8 // 5.2. Taking into account the stand taken in the counter affidavit, learned Addl. Govt. Advocate contended that since the petitioner was promoted to the rank of OT & AS vide notification issued on 06.07.2015 under Annexure-5 and O.P. Nos.2 and 3 got the said benefit vide notification dated 07.02.2014 under Annexure-3, in view of the provisions contained under Rule-15 of the Rules, petitioner was rightly placed below O.P. Nos.2 and 3. Accordingly, O.P. Nos.2 and 3 got the benefit of promotion to the next higher rank ahead of the petitioner vide notification dated 30.04.2019 under Annexure-14, which requires no interference. 6. Having heard learned counsel for the parties and considering the submissions made, this Court finds that petitioner and O.P. Nos. 2 and 3 while continuing in the Rank Odisha Subordinate Finance Services, O.P. Nos.2 and 3 got the benefit of promotion to the rank of OT & AS, Class-II vide notification dated 07.02.2014 under Annexure-3 on adhoc basis for the year 2013. Petitioner got similar benefit of promotion also for the year 2013 on regular basis vide Notification dated 06.07.2015 under Annexure-5. While issuing such notification under Annexure-5, it was clearly indicated that inter se seniority of the petitioner will be fixed above O.P. No.2 who got the benefit vide notification dated 07.02.2014 under Annexure-3. 6.1. But on the face of such stipulation in the notification dated 06.07.2015 under Annexure-5, petitioner when was placed below O.P. Nos.2 and 3 in the Provisional Gradation List issued under Annexure-6, Petitioner made a detailed objection under Annexure- Page 8 of 10 // 9 // 7. But without considering the same in its proper perspective, while publishing the Final Gradation List vide Notification dated 21.08.2018 under Annexure-8, Petitioner was again placed below O.P. Nos.2 and 3. 6.2. Petitioner though challenged his placement in the Final Gradation List by filing O.A. No.3313 of 2018 and the Tribunal vide order dated 27.12.2018 under Annexure-9 directed the Opp. Parties to re-examine the claim of the petitioner, but his claim was rejected vide the impugned order dated 08.02.2019 under Annexure-10. Subsequently, O.P. Nos.2 and 3 got the benefit of promotion to the next higher rank vide notification dated 30.04.2019 under Annexure-14. 6.3. This Court after going through the relevant Recruitment Rule i.e. Rule-15 of the 2011 Amended Rules, is of the view that since both petitioner and O.P. Nos.2 and 3 got the benefit of promotion for the year 2013, in view of the said provisions petitioner was required to be placed above O.P. Nos. 2 and 3 in the rank of OT and AS. In the notification issued under Annexure-5, it was also clearly indicated that inter se seniority of the petitioner will be placed above O.P. No.2. 6.4. In view of the aforesaid analysis, this Court is of the view that claim of the petitioner has been illegally rejected vide the impugned order dated 08.02.2019 under Annexure-10. Therefore, this Court is inclined to quash order dated 08.02.2019 so issued by the Govt.-O.P. No.1 under Annexure-10. While quashing the same, Page 9 of 10 // 10 // this Court directs O.P. No.1 to place the petitioner above the O.P. Nos.2 and 3 in the Gradation List of OT & AS-II (Group-B) Officer as on 01.06.2018 and extend the benefit of promotion to the rank of OFS-I(JB) from the date O.P. Nos.2 and 3 got the said benefit vide Notification dated 30.04.2019 with all consequential financial and service benefit as due and admissible. This Court directs Govt.-O.P. No.1 to complete the entire exercise within a period of 3 (three) months from the date of receipt of this order. 7. The Writ Petition is accordingly disposed of. (Biraja Prasanna Satapathy) Judge Basudev Signature Not Verified Digitally Signed Signed by: BASUDEV SWAIN Designation: SR. STENO Reason: Authentication Location: High Court of Orissa, Cuttack Date: 09-Aug-2024 17:18:31 Page 10 of 10