Orissa High Court
Sanjay Kumar Dey vs North Eastern Electricity Supply on 5 April, 2021
ORISSA HIGH COURT: CUTTACK
W.P.(C) No.14755 of 2008
In the matter of an application under Articles 226 & 227 of the
Constitution of India.
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Sanjay Kumar Dey ... ... ... Petitioner
-versus-
North Eastern Electricity Supply
Company of Orissa Limited, (NESCO),
Having its Regd. Office at 123,
Sector-A, Zone-A., Mancheswar Industrial
Estate, Bhubaneswar and others
... ... ... Opp. Parties
For Petitioner : Mr.Goutam Mishra,
Sr.Advocate.
For Opp.Parties : M/s. D.K.Mohanty,
M/s Biraja Pr. Das, A.Ekka
(For Opposite Party Nos. 1 to 3)
M/s. Mrs. Pami Rath
(For Opposite Parties Nos.4 & 5)
Date of Hearing: 16.03.2021
Date of Judgment: 05.04.2021
P R E S E N T:
THE HONOURABLE MR. JUSTICE BISWANATH RATH
Biswanath Rath,J. Petitioner in filing the writ petition, while praying to
quash the gradation list dated 02.11.2007 so far it relates to E-4
grade to E-5 grade also seeks issuing direction to opposite party
nos.1 to 3 not to make any promotion from E-4 grade to E-5
grade on the basis of impugned gradation list and without
preparing a fresh gradate list dependant on the ultimate outcome
in the writ petition.
2. Background involving the case is that petitioner was issued
with an appointment letter on 14.09.2000 being appointed as an
Assistant Manager (Finance) in the Office of the North Eastern
Electricity Supply Company of Orissa Limited. It was mentioned
in the appointment order that immediate place of posting of the
petitioner will be at under the Managing Director, NESCO,
Balasore. It is stated that upon receipt of appointment order,
petitioner since was not in a position to join the posting
submitted a request for extension of joining date from
30.09.2000 to 16.10.2000 vide Annexure-2, which was however
accepted by the competent authority and resulted in extension of
the joining of the petitioner to 16.10.2000. While the matter
stood thus, by letter No.5464 dated 04.10.2000 the then
Assistant General Manager (HRD), NESCO, Balasore intimated
the General Manager( (Technical Services), NESCO
communicating therein the list of Assistant Managers (Finance),
who have joined in NESCO in the meantime vide Annexure-4. It
is on the basis of the disclosures vide Annexure-4, the petitioner
claimed to have been placed above Sri Sanjib Sahoo and Sri
Akshaya Kumar Sahoo, the opposite party nos.4 and 5 herein and
the petitioner was placed in Sl.No.2 therein claimed to be above
the opposite parties 4 & 5. Petitioner also further claimed that
Sri Rajib Nanda at Sl.No.1 in the said list having refused to join,
it becomes clear that the petitioner was the senior most amongst
all the persons joined at the relevant point of time. It is referring
to NESCO Officers Service Regulations Clause 16(3), petitioner
claimed inter-se seniority to Officers directly recruited in a batch
to any grade shall be reckoned with reference to the rank allotted
to them at the time of such recruitment and such direct
recruitees shall be placed before the promoted officers in the
event direct recruitment and appointment by promotion is done
simultaneously. Petitioner further pleaded that while the matter
stood thus, on 02.11.2007 vide correspondence No.CEO/ NESCO/
HR/1/01/21378, the General Manager (HRD) circulated the
gradation list from Grade-E-6 to E-2 appearing at Annexure-5. It
is taking queue from Annexure-5, petitioner claimed that the
position of the petitioner and opposite party nos.4 and 5 in the
said gradation list it clearly appears the positioning remains
contrary to the positioning of the parties through Annexure-4 and
further there is also wrong mentioning of date of petitioner's
appointment in the gradation list as 16.10.2000 instead of
14.09.2000. Petitioner claimed to have filed a detailed
representation vide Annexure-6 for removal of the above
discrepancy. While the matter stood thus, it is claimed that the
petitioner and opposite party nos.4 and 5 were simultaneously
promoted from the post of Assistant Manager (Finance) in E-3
grade to the post of Deputy Manager (Finance) in E-4 grade and
the promotion was given with effect from 02.01.2004. Petitioner
under the impression being sidelined for promotion to E-5 grade,
promotion was given to the opposite party nos.4 and 5, who are
less meritorious than the petitioner, got constrained to file the
writ petition. Petitioner further pleaded that taking advantage of
such discrepancy, the opposite party nos.1 to 3 may further
promote the opposite party nos.4 and 5 ignoring the seniority of
the petitioner. It is on the premises that the petitioner has a
better career as compared to that of opposite party nos.4 and 5
and further even though the petitioner has been shown senior to
the opposite party nos.4 and 5 in the communication at
Annexure-4, alleged that the promotion to opposite party nos.4
and 5 remains contrary to the provision at Clause 16(3) of the
NESCO Officers Service Regulations. Disclosing the performance
appraisal required by the D.P.C. during consideration of the case
of the petitioner and opposite party nos.4 and 5 to the post of
Grade-E-4 giving a statement in paragraph-17, it is claimed that
from the appraisal report, it clearly appears petitioner remained
more meritorious as compared to opposite party nos.4 and 5. It
is in the circumstance, petitioner filed this writ petition making
the prayer indicated hereinabove.
3. On entering appearance, opposite party nos.1, 2 and 3
through their counter affidavit contended that the writ petition
has no merit. Attempting to answer the parawise allegation,
these opposite parties through paragraph-4, contended that
petitioner's claim that State of Odisha has major share is wrong.
It is on the other hand claimed that NESCO is not a Government
Company and is nor a subsidiary of any Government Company.
It is also claimed that State of Odisha has no administrative
control over this Company. While admitting that the petitioner
and opposite party nos.4 and 5 were all taken for consideration of
their positioning as Assistant Manager (Finance) E-3 grade upon
selection of the petitioner and opposite party nos.4 and 5 which
were held in different phases in respect of which appointment
orders were issued on 14.09.2000. Petitioner, however, did not
join immediately and keeping in view the request, petitioner was
allowed to join on 16.10.2000 whereas the opposite party nos.4
and 5 have joined on 25.09.2020 and 4.10.2020 respectively. So
far as the claim of the petitioner on the basis of Annexure-4,
opposite party nos.1 to 3 claimed that information in Annexure-4
is just a status report indicating the list of Assistant Managers,
those who have joined in NESCO and Annexure-4 is neither a
merit list/gradation list nor is an indicator of position of parties
involved in any way as claimed by the petitioner. It is claimed
that merely because the name of the petitioner finds place above
opposite party no.4 and 5 in Annexure-4, it cannot be said the
positioning of the petitioner in the merit list was at Sl.No.2 which
is above the opposite party nos.4 and 5. On the other hand it
was just an indication of the person joined in the particular
capacity. It is claimed that in the D.P.C. meeting dated
01.11.2004 considering the number of vacancy, D.P.C.
recommended the names of the petitioner as well as opposite
party nos.4 and 5 for the post of Deputy Manager in E- IV grade
placing the opposite party no.4 at the top followed by opposite
party no.5 and petitioner whose name finds place at sl.no.3
therein and as a consequence opposite party nos.4 and 5 are
holding post of Deputy Manager(Finance) in E-IV grade for their
selection in D.P.C., 2004. Annexure-7, the gradation list has been
issued as per recommendation of the D.P.C., 2004 and petitioner
never challenged his positioning vide Annexure-7 since issued on
02.11.2004 rather after a gap of four years, this writ petition
has been filed. It is also claimed that in the meantime, there has
been publication of provisional gradation list involving
Finance/Commerce personnel from E-VI to E-II in Finance and
Commerce Grade asking for objection from intending candidates
within a period of 15 days. Even at this stage, petitioner did not
choose to object the preparation of such provisional gradation
list. It is after waiting for some time the provisional gradation
list was made final and communication of the same was made on
02.11.2007. There is no objection of the petitioner to such final
gradation list even. It is only long after preparation of the
gradation list, petitioner filed a representation on 12.08.2008
under Annexure-6 to the writ petition for correct preparation of
the gradation list and for no objection in appropriate time, these
opposite parties claimed that the petitioner's representation did
not stand merit. It is in the above background and for promotion
of the parties taking effect on the basis of the recommendation of
the D.P.C., the claim of the petitioner remained unfounded and
thus a request is made for dismissing the writ petition.
4. Opposite party nos.4 and 5 also filing their independent
counter affidavit while taking support of the stand of the opposite
party nos.1 to 3 in the Department attempted to justify their
positioning in the gradation list as well as the appointment order
against E-4 grade. Referring to Annexure-4 these opposite parties
also claimed that for the nature of correspondence it can be
considered to reflect the name of the petitioner above the
opposite party nos.4 and 5 in particular time. Giving reference to
the date of joining of different parties i.e. the opposite party no.4
on 25.09.2000 and opposite party no.5 on 08.10.2000 and
petitioner admittedly to have been joined on 16.10.2000, these
opposite parties also claimed that they remained senior even in
joining in the initial post i.e. E-3 grade. Filing a letter dated
06.11.2000, these opposite parties claimed that there is a
communication as back as on 06.11.2000 intimating therein the
joining of the petitioner as well as opposite party nos.4 and 5,
who are all placed at Sl. Nos. 2, 3 and 4 therein respectively.
Similarly, referring to a further document at Annexure-B/4, the
opposite party nos.4 and 5 claimed that the provisional gradation
list being circulated on 08.12.2006 vide Annexure-B/4, objection
even called, for there was no objection at the instance of the
petitioner and this document even clearly demonstrated that
opposite party nos.4 and 5 remaining senior to the petitioner. It
amounts acceptance of promotion of parties always. It is
petitioner's remaining silent in spite of different options available
to him itself established that petitioner was never interested to
have a claim to be posted above the opposite party nos.4 and 5
and therefore he is stopped in filing the writ petition. By filing
additional affidavit, opposite party nos.4 and 5 by way of
additional document at Annexure-C/4, a D.P.C. proceeding it is
again claimed that for the recommendation of the D.P.C. through
Annexure-C/4 placing the petitioner at Sl.No.3 and opposite party
nos.4 and 5 at Sl.Nos.1 and 2, there remains no doubt in the
recommendation of the D.P.C. and therefore it is claimed that
there is no merit involving the writ petition. It appears there is
also further affidavit by opposite party nos.1 to 3 disclosing that
the position of different candidates considered for the post of E-3
and submitted that out of five persons recruited, top 1 and 2
namely, Shri Rajib Nanda and Shri Saroj Bal did not join and
remaining 3 candidates, opposite party nos.4 and 5 are placed
above the petitioner. These opposite parties also substantiate
their stand on the basis of the position of opposite party nos.4
and 5 and petitioner in 2004 D.P.C. for promotion to the post and
claimed that opposite party nos.4 and 5 placed above the
petitioner in the D.P.C. making it clear that petitioner is all
through junior to opposite party nos.4 and 5.
5. Filing another affidavit the opposite pastry nos.1 to 3
while stating that they have already filed the D.P.C. record in
this Court but through the document at page-59 attempted to
establish that in the initial selection for the post of Assistant
Manager (Finance), petitioner's position in the select list remains
at Sl.No. 10 whereas the position of Sanjib Sahu, opposite party
no.4 at Sl.No.8 and Akshaya Kumar Sahu, opposite party no.5
stood at Sl.No.14. It is on the basis of the above, it appears on
calling for an affidavit by this Court in the previous hearing of
the matter by some other Bench, the opposite party nos.1 to 3
have filed an affidavit by way of objection in an attempt for
amendment of the writ petition by the petitioner on 23.11.2009.
Through paragraph-10, the opposite party nos.1 to3 claimed that
petitioner's claim to place him in E-4 above the opposite party
no.4 in the gradation list cannot be accepted. But however,
following the regulation relied upon by the parties, there is no
difficulty in placing the petitioner above the opposite party no.5
and below opposite party no.4 in the gradation list. This affidavit
appears to be in consonance with the documents brought by way
of Annexure-8 and also the affidavit of the opposite party nos.1
to 3 dated 06.04.2009, wherein these opposite parties also filed
Annexure-8 as their document at page 59 of the brief. It is
needless to indicate here that even though the petitioner has
attempted to incorporate certain documents by way of Annexure-
8 series and 9 by filing Misc. Case No.8776 of 2009 on
26.07.2009, the amendment application though pending , has not
been pressed even at the time of final hearing of the matter at
different stages. Presently, amendment application cannot be
taken into account but, however, looking to the document at
Annexure-8 series also brought by opposite party nos.1 to 3
wherein a direction of this Court through memo dated 16.3.2009,
a part of select list cannot be lost sight.
6. It is on the above plea of the respective parties, entering
into the argument, Sri Goutam Mishra, learned senior counsel on
reiteration of the plea taken in the writ petition coupled with the
document coming to light through the memo dated 16.3.2009 as
well as the affidavit of opposite party nos.1 to 3 and the
documents in the select list indicating position of the parties
involving select list E-3 further giving a reference to the
objection on behalf of opposite party nos.1 to 3 by way of
affidavit where the opposite party nos.1 to 3 taking support of
document at Pages-58 and 59 of the brief, contended that there
is no difficulty in allowing the petitioner to be placed above the
opposite party no.5 but below opposite party no.4. Sri Mishra,
learned counsel thus restricted his prayer to the above extent.
7. Learned counsel appearing for the opposite party nos.1
to 3 for their own undertaking by way of an affidavit through
pages-58 and 59 of the brief, particularly paragraph-4 dated
23.11.2001 did not dispute the claim of the petitioner to allow the
writ petition at least placing him above the opposite party no.5
and below the opposite party no.4 in the gradation list.
8. In her opposition, Mrs. Pami Rath, learned counsel
appearing for the contesting opposite parties on reiteration of the
plea of opposite party nos.4 and 5 in their counter affidavit
submitted that Annexure-4 cannot be a foundation involving the
claim of the petitioner. Further for the provisional gradation list
prepared in the year 2006 having not been objected by the
petitioner at appropriate time so also the final gradation list
published in the year 2007 has not been challenged in
appropriate time further referring to the position of the parties in
the D.P.C. held for promotion to the post of Grade E-3 had a
scope of objection at the relevant point of time and for not
availing the same, further filing the writ petition much after the
position of the parties in provisional gradation list, 2006, final
gradation list in the year 2007 contended that if the writ petition
will be allowed at this stage, it will be amounting unsettling the
settled position taken place in the meantime. Mrs.Rath, learned
counsel also contended that a cause of action having taken place
in 2000, the writ petition having been filed after 8 years and after
promotion to E-3 to E-4 grade taking place in the year 2004
again filing of the writ petition delayed by 4 years further in view
of promotion of the parties to E-5 Grade submitted the writ
petition should be dismissed on delay ground alone. In support of
her contention, Mrs.Rath, learned counsel appearing for the
opposite party nos.4 and 5 relied on the following decision
involving State of M.P. and others Vs. Nandlal Jaiswal and
others, reported in (1986) 4 SCC 566,C.P.Kalra Vs. AIR India
through its Managing Director, Bombay and others, 1994
Supp (1) SCC 545, State of Maharashtra Vs.
Digambar,(1995) 4 SCC 683 and in the case of Shiv Dass Vs.
Union of India and others, (2007) 9SCC 274.
9. Considering the rival contentions of the parties, this Court
finds there is no dispute that both petitioner and opposite party
nos.4 and 5 are selected to the post of Assistant
Manager(Finance) E-3 Grade as direct recruitees taking place in
the year 2000. It also remains undisputed that in the meantime
there is promotion to the post of Grade E-4 as well as E-5.
Though this Court finds by order dated 13.10.2008 this Court
directed not to give promotion to opposite party nos.4 and 5 till
next date and which interim order got extended from time to
time but however this Court ultimately modified this order by its
order dated 06.04.2009 as follows:
"Heard Mr.G.Mishra, learned counsel for the petitioner,
Mr.B.K.Nayak, learned counsel for the NESCO and Mr.R.K.Rath,
learned senior Advocate for the O.Ps.4 & 5.
Pleadings are complete in this case.
Mr.B.K.Nayak, learned counsel for the NESCO, on
instruction submits that as there are three vacancies, the
petitioner and O.Ps.4 & 5 are now going to be promoted to the
next higher rank i.e. E-5 Grade, for which he prays for
modification of the interim order of this Court dated
13.10.2008.
To this, neither the petitioner nor O.Ps.4 & 5 have any
objection. Accordingly, while modifying the order of this Court
dated 13.10.2008, we allow O.Ps.1 to 3 to give promotion to
the petitioner along with O.Ps.4 & 5, as they have undertaken.
The question of seniority shall be decided in final hearing of this
case and the said promotion shall be subject to result of the
writ petition, so far as it relates to inter se seniority.
Put up the writ petition on 8th July, 2009."
10. Reading the aforesaid order, this Court finds while
modifying the order of this Court dated 13.10.2008, this Court
has directed the opposite party nos.1 to 3 to give promotion to
the petitioner as well as opposite party nos.4 and 5 to the next
grade E-5 but keeping in view the seniority of the parties and to
be decided depending on the result of the writ petition. It is at
this stage, keeping in view the plea of the petitioner and counter
objection of the opposite party nos.1 to 3 as well as opposite
party nos.4 and 5, this Court here finds basing on subsequent
query with regard to production of documents relating to initial
selection of the petitioner vis-à-vis opposite party nos.4 and 5
taking place in the year 2000, opposite party nos.1 to 3 appears
to have produced the selection panel of 15 candidates
participating in the initial recruitment for the post of Assistant
Manager (Finance) involving WESCO, NESCO and SOUTHCO
through page-58 of the brief. Reading the document at page-58
being produced by the Department, the opposite party nos.1 to
3, this Court finds decision of the authorities remains as follows:
Page-58 "Central Services Office
NESCO, WESCO & SOUTHCO SUBSIDIARIES OF BSES Limited.)
123 Sector A, Zone A, Mancheswar Industrial Estate
Orissa-751010
Telefax (0674) 586343
BSR/CSO/HRD Date:02.08.2000
Sub-Selection of candidates for the post of Assistant Manager(Finance).
On 28th July 2000 interview were held for selecting the candidates for the
post of Assistant Manager (Finance) required by NESCO, WESCO and
SOUTHCO. In all 43 candidates were called the interviews. 29 candidates
appeared for the interview.
The selection panel consisting of M.Y.Rao, Director (GRIDCO) G.M. (Tech.
Services) CSO, GM(F) WESCO, DGM(F) CSO selected the following 15
candidates for the posting in the Companies as given below:
Sl.NO. NAME NAME OF THE COMPANY
1. B.K.Harichandan WESCO
2. B.K.Mishra NESCO
3. Rajeeb Nanda SOUTHCO
4. Saroj Kanta Bal NESCO
5. Suvendu Das SOUTHCO
6. Abinash Mishra WESCO
7. Debashis Dani WESCO
8. Sanjib Sahu NESCO
9. Benudhar Biswal NESCO
10. Sanjay Dey NESCO
11. J.S.K.Sharma WESCO
12. Sandeep Rustogi SOUTHCO
13. Sangrama Sahu SOUTGCO
14. Akshaya Kumar Sahu NESCO
15. Susant Kumar Hota SOUTHCO
An evaluation sheet is enclosed.
Submitted for approval pl.
MD NESCO
MD WESCO S.M.SAKHALKAR
MD SOUTHCO G.M.(Tech. services)"
Looking to the next document available at page 59, a
statement of selected candidates as produced by the opposite
party nos.1 to 3, this Court reproduces the same as herein
below:
Page-59
Selected candidates for the post of Asst.Manager (Finance)
SL NAME NAME OF Age/DOB Qualification Experience Name of the
NO THE Present Employer
COMPANY
1 B.K.Harichandan WESCO 27.07.69 AICWA 3 years Kalist Botting Pvt.
Ltd.
2 B.K.Mishra NESCO 01.07.68 CA 3 years MESCO Steel
3 Rajeeb Nanda SOUTHCO 12.06.69 ICWA 3 years Neelachal Ispat
4 Saroj Kanta Bal NESCO 02.01.72 CA,ICWA 1 years Bilati (Orissa)
(Inter) Limited.
5 Suvendu Das WESCO 15.09.69 ICWA 3 years NSIC Limited
6 Abhinash Mishra SOUTHCO 01.07.71 ICWA 2 years Indian Quotation
System Pvt.
Limited
7 Debashis Dani WESCO 14.07.69 ICWA 1 year Nature Care
8 Sanjib Sahu NESCO 11.09.68 ICWA 2 years Niran & Co Cost
Accountants.
9. Benudhar Biswal SOUTHCO 02.07.73 CA 2 years AK.Kar Chattered
Accountant.
10. Sanjay Dey NESCO 18.12.72 ICWA 2 years Polar Latex Ltd.
11 J.S.K.Sharma WESCO 15.08.71 ICWA 3 years Tata Refractories
Ltd.
12 Sandeep SOUTHCO 30.06.73 ICWA, CA 2 years Rashmi Cements
Rustogi Ltd.
13. Sangram Sahu SOUTHCO 25.07.70 ICWA 3 years Orient Paper Mills
14 Akshya Kumar NESCO 06.04.73 ICWA, CA 1 year Das & Pattanaik
Sahu Co.
15 Susanta Kumar WESCO 05.01.72 CA, ICWA 2 years D.K.Chhajer & Co.
Hota
11. It is taking in to consideration the contention and rival
contentions of the parties involved herein, this Court finds
undisputedly the position of the petitioner in the initial selection
as Assistant Manager (Finance) in the list remained at Sl.No.10.
Similarly, position of opposite party no.4 in the said list remained
at Sl.No.8 and position of opposite party no.5 remained at
Sl.No.14. It is needless to mention here that in the said
selection list, selection for NESCO remained at position 2, 3, 8,10
and 14 and rest belong to either WESCO or SOUTHCO not
relevant for the purpose. So looking to the candidates selected
for the post of Assistant Manager (Finance), particularly, in
NESCO, candidate stood in select list, B.K.Mishra, Sl.No.2 did not
join from the beginning and the candidate Saroj Kumar Bal stood
at Sl.No.4 though joined but did not continue in service of
NESCO. Thus, it becomes clear from the remaining three
candidates in the post of Assistant Manager (Finance), the
petitioner's position in E-3 grade remained in between the
opposite party nos.4 and 5 and this Court cannot loose sight of
the same. Above position being indicated in the D.P.C. held in the
year 2004 remain final cannot be altered in any manner. It is
here, this Court taking into the rule relied on by all the parties
involved herein for the consideration of the case at hand,
particularly, Rule 12 (1), 12(2) and Rule 16(3) of the GRIDCO
Officers Service Regulations also being adopted by the Electricity
Company, which reads as follows:
Rule 12 (1), 12 (2) and 16(3)
"12 (1) The promotions to the executive grades up to E-9 shall
be made on the basis of merit-cum-suitability with due regard to
seniority and for this purpose a Select List shall be prepared."
"12(2) The names of persons included in the Select List shall be
arranged in order of seniority in the Service or grade."
"16(3) The inter-se seniority of Officers directly recruited in a
batch to any grade shall be reckoned with reference to the rank
allotted to them at the time of such recruitment but all such direct
recruits shall be placed below the promoted Officers if the direct
recruitment and appointment by promotion is done
simultaneously."
12. Reading the aforesaid legal provision, it also becomes
clear that in the provision at 12(2) names of persons included in
the select list shall be arranged in order of seniority in the Service
or grade. Further, for the provision at Rule 16 (3), it also
becomes clear that inter-se seniority of Officers directly recruited
in a batch to any grade shall be reckoned with reference to the
rank allotted to them at the time of such recruitment. This Court
looking to the document at pages- 58 and 59 of the brief,
documents involving selection of the petitioner vis-à-vis opposite
party nos.4 and 5 along with other candidates taking place in
2000,position of the petitioner undoubtedly remained in between
opposite party nos.4 and 5. It is possibly coming to know all
these defects and wrong being committed at the time of
consideration of the case of the petitioner vis-à-vis opposite party
nos.4 and 5 from the post of Grade-E-3 to E-4 grade taking place
in 2004, in the objection on behalf of opposite party nos.1 to 3
to the Misc. Case No.8776 of 2009, the opposite party nos.1 to 3
in paragraph-4 of the affidavit dated 23.11.2009 indicated as
follows:
"4. That, in the present Misc. Case, the petitioner has prayed to
replacement of Paragraph 14, 15, 16, 18 and 20 of the writ
application and to incorporate subsequent developments by way
of amendment. As per the original merit list produced by the
Opp. Parties before the Hon'ble High Court, the claim of the
petitioner to be placed above Opp. Party No.4 in the Gradation List
cannot be allowed. As per the Regulation of NESCO, the petitioner
can only be placed below Opp. Party No.4 and above Opp. Party
No.5 as per the Gradation List subject to adjudication of the
matter by the Hon'ble Court. It is revealed from the schedule of
amendment that the petitioner wants to incorporate some new
facts replacing the submissions made earlier in number of
paragraphs of the writ application. If the amendment petition is
allowed, the same will change the nature and character of the writ
petition. Under such circumstances, the present application for
amendment is not sustainable and is liable to be dismissed."
13. It is keeping above inherent defect right from the
beginning in not placing the petitioner properly, this Court finds
the defect being a condonable defect and after official opposite
parties admitting to such defect and prepared to accommodate
the petitioner in between opposite party nos.4 and 5, being
supported under the provision of Rule 12(2) and 16(3) of the
GRIDCO Officers Service Regulations, further clarified with
material particular, this Court finds the writ petition is to succeed
at least to this extent.
14. Coming to challenge of opposite party nos.4 and 5 on
the plea of belatedness, this Court observes on interfering in the
positioning of the parties in the gradation list, there is only
repositioning of the position of opposite party nos.4 and 5 vis-à-
vis the petitioner and since all the parties have already been
promoted to E-5 grade, no party is going to be affected in any
manner. For the challenge of gradation list prepared in 2007
involving writ petition filed in 2008, it cannot be claimed to be an
belated attempt. This Court however perused all the decisions
and finds none of the decision cited by learned counsel for the
opposite party nos.4 and 5 have application to the case at hand.
15. For the inherent mistake being created at the instance
of the opposite party nos.1 to 3 in preparation of the provisional
gradation list as well as final gradation list on wrong information
involving the parties involved herein, while allowing the writ
petition in part, this Court directs opposite party nos. 1 to 3 to
correct the position of the parties taking into account their initial
joining in the post of Assistant Manager(Finance) E-3 Grade in
the provisional gradation list circulated on 08.12.2006 and the
final gradation list being prepared on 2.11.2007 and in terms of
their own affidavit to bring petitioner in between opposite party
nos.4 and 5.
16. In the result, the writ petition succeeds with a direction to
place the petitioner in between opposite party nos.4 and 5 in the
final gradation list dated 2.11.2007. Petitioner is also entitled to
consequential benefits, if any. But however there is no order as
to cost.
....................................
Biswanath Rath,J.
Orissa High Court, Cuttack
The 5th day of April, 2021/sks.
