Orissa High Court
Afr Sri Sukanta Sethi vs State Of Odisha & Others on 7 October, 2021
ORISSA HIGH COURT: CUTTACK
W.P.(C) NO. 15960 OF 2021
In the matter of an application under Articles 226 and
227 of the Constitution of India.
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AFR Sri Sukanta Sethi ..... Petitioner
-Versus-
State of Odisha & others ..... Opp. Parties
For Petitioners : M/s. Sameer Kumar Das,
P.K. Behera & N. Jena,
Advocates
For Opp. Parties : Mr. A.K. Sharma,
Addl. Govt. Advocate.
[ O.Ps. 1 to 3]
M/s. Susanta Kumar Dash,
Ananta Kumar Otta,
Swetlana Das, Narendra Kumar
Das, Asutosh Sahoo, Elina Dash
& Prabin Das, Advocates.
[ O.P No.4)
P R E S E N T:
THE HONOURABLE DR. JUSTICE B.R.SARANGI
Date of hearing : 27.09.2021 :: Date of judgment: 07.10.2021
DR. B.R. SARANGI, J. The petitioner, by means of this
writ petition, seeks to quash the final gradation list of
Chief Fire Officers published by opposite party no.1 in
letter no. 15658/CD dated 15.04.2021 under
Annexure-5, and to issue direction to opposite party
no.1 to restore the seniority of the petitioner over and
above the opposite party no.4 and consider him for
promotion to such higher post and to grant him all
consequential service and financial benefits within a
stipulated period.
2. The factual matrix of the case, in short, is
that the State Government issued an advertisement,
which was published during the year 1984 to fill up
vacancies of Station Officer in Odisha Fire Service
Organization. The recruitment process was conducted
by the Central Selection Board on 9th and 10th
February, 1984. In the said recruitment process, 13
candidates were short listed for appointment to the post
of the Station Officer in Odisha Fire Service. They were
appointed in two dates, i.e., on 24.02.1984 (ten
candidates) and 29.03.1984 (three candidates),
pursuant to which they joined on 07.03.1984 and
30.03.1984 respectively. The petitioner joined on
07.03.1984 and the opposite party no.4 joined on
30.03.1984. The petitioner and opposite party no.4
belonged to one select list prepared by the Central
Selection Board. After fulfilling the official procedure, all
13 candidates were put to prescribed Station Officers'
course of training in a single batch, i.e. 8th batch of
Station Officer Course of training at Odisha Fire Service
Training Institute, Bhubaneswar. After completion of
training course, the final examination was conducted,
in which opposite party no.4 secured 1st position,
whereas petitioner secured 11th position.
2.1. As per Police Order No. 110, the inter se
seniority of the passed out Station Officers was fixed
basing upon their marks secured in the final
examination of training. As such, Odisha Fire Service
being a wing of Police, is governed by PMR, and
accordingly the inter-se seniority of Station Officers of
8th batch was determined as per their marks secured in
the final examination where the opposite party no.4
stood first position and the petitioner placed at sl.no.11
in the list prepared by the authority. After completion of
requisite training course, all the 13 officers were posted
to different Fire Stations. The gradation list of 8th batch
was published vide office order no. 17/FS, dated
22.01.1995 and D.O. No. 359/OFS, dated 02.02.1985.
All the officers were communicated with a copy of
gradation list and the same was reflected in their
respective service books. In the meanwhile, with due
adherence Orissa Reservation of Vacancies in Post of
Services (for Schedule Casts and Schedule Tribes) Act,
1975 (hereinafter referred to as "ORV Act, 1975") the
petitioner got promotion to the rank of Asst. Fire Officer
(AFO) on 20.02.1997, being a schedule caste candidate,
even though he was placed in the lower place in the
initial gradation list. By virtue of the benefits of
reservation quota, the petitioner was allowed to officiate
as Deputy Fire Officer, Fire Officer and Chief Fire
Officer w.e.f. 31.10.2005, 07.08.2008 and 10.06.2013
respectively by superseding the general category
candidates like that of opposite party no.4, and now
continuing as such. Whereas, being an
unreserved/general category candidate, opposite party
no.4 did not avail any reservation facilities.
Consequentially, he was promoted to the rank of Asst.
Fire Officer, Deputy Fire Officer, Fire Officer and Chief
Fire Officer w.e.f. 09.06.2008, 16.07.2012, 14.02.2014
and 16.05.2019 respectively on his own merit without
any leverage.
2.2 The opposite party no.4 was not placed in
the same rank with that of the petitioner until dated
15.05.2019. On 16.05.2019, when opposite party no.4
was promoted to the rank of Chief Fire Officer, was
placed in the same footing with the petitioner and
basing on "catch up" rule, he was placed over the
petitioner on the basis of seniority in the initial grade.
Therefore, the final gradation list of Chief Fire Officers
in Odisha Fire Service has been prepared in Annexure-
5 dated 15th April, 2021 by the Government with due
adherence to the decision of the apex Court regarding
"catch up" principles. Being aggrieved by such fixation
of seniority, pursuant to Annexure-5 dated 15.04.2021
placing the opposite party no.4 senior to the petitioner,
this application has been filed.
3. Mr. S.K.Das, learned counsel for the
petitioner argued with vehemence that pursuant to the
advertisement issued by the State for filling up of 10
numbers of Station Officers in the Fire Service, the
petitioner applied for, got selected and was appointed,
along with 9 others, vide office order no. 12/FS dated
24.02.1984, and joined the post on 07.03.1984. The
position of the petitioner in the said list was at serial
no.9, whereas the name of the opposite party no.4 was
not at all found place therein, though he had applied
pursuant to the same advertisement. But subsequently,
the opposite party no.4 was appointed as Station
Officer on 29.03.1984 and he joined on 30.03.1984
against a subsequent vacancy, which was not
advertised in the initial advertisement or in any further
advertisement. Therefore, it is contended that the entry
into service of opposite party no.4 is void ab initio, as he
was not appointed against 10 nos. of advertised post.
As the opposite party no.4 was appointed against the
created or fall vacant post beyond the advertised
vacancy, his appointment is illegal. It is further
contended that the petitioner is senior to opposite party
no.4 in entry grade as well as subsequent promotional
posts till he was promoted to Chief Fire Officer and at
all the stages the opposite party no.4 was shown as
junior to the petitioner having promoted subsequently.
It is contended that the post of Deputy
Fire Officer belongs to Grade -A (Class-I) post. As per
Section 4(2) of the ORV Act, 1975, the reservation
policy shall be applied to the promotions up to the
lower rung of Class-I Post. All other Class-I posts
(Group-A posts) are to be filled up by the Departmental
Selection or on the basis of selection from amongst the
officers in the lowest rung thereof. Therefore, promotion
of the petitioner to the Deputy Fire Officer can be said
to be on the basis of the reservation, as the petitioner
belonged to Scheduled Caste Category, but
subsequently, his promotion to the post of Fire Officer
and above is only due to his merit and suitability, but
not on reservation and, as such, the law relating to
reservation has no application once he joined in the
cadre of Deputy Fire Officer on 07.08.2008. It is
emphatically urged by learned counsel for the petitioner
that the opposite party no.4 was not senior to the
petitioner at the entry grade, because his appointment
was made against a subsequent vacancy, beyond the
advertised vacancies, and as such, he could not reach
the cadre of Deputy Fire Officer or Fire Officer when the
petitioner was continuing in those ranks/cadre.
Therefore, "catch up" rule could not be applicable, as
the petitioner was senior to the opposite party no.4 at
the entry level. Further, assuming that "catch up" rule
is applicable, then also the opposite party no.4 cannot
claim seniority over the petitioner, after the petitioner
got promotion to the post of Fire Officer/Chief Fire
Officer which are higher rung Group-A (Class-I) posts
and such promotions of the petitioner were not because
he is a scheduled caste, rather he got such promotions
on his own merit and suitability. The opposite
partyno.4 got promotion to the post of Chief Fire Officer
on 16.05.2009, whereas the petitioner is continuing in
the said post w.e.f. 10.06.2013. Therefore, the opposite
party no.4 cannot be construed to be senior to the
petitioner. Even otherwise also taking into
consideration the date of birth of the petitioner-vis-à-vis
the opposite party no.4, the opposite party no.4 cannot
and could not be declared senior to the petitioner as the
petitioner's date of birth is 10.10.1961, whereas the
date of birth of opposite party no.4 is 04.04.1962.
Thereby, it is contended that the inter se seniority
pursuant to Annexure-5 dated 15.04.2021 declaring
the opposite party no.4 senior to the petitioner cannot
sustain in the eye of law and the same should be
quashed. To substantiate his contention he has relied
upon the judgments in Batakrushna Adhikari v.
State of Odisha and others Vol. 106 (2008) CLT-212;
Lagnajit Ray v. State of Odisha and others , 2011 (I)
OLR-689.
4. Mr.A.K.Sharma, learned Addl.
Government Advocate appearing for the State opposite
parties contended that pursuant to advertisement
published during the year 1984 to fill up the vacancies
of Station Officer in Odisha Fire Service Organization, a
recruitment process was conducted by the Central
Selection Board on 9th and 10th February, 1984 and in
the recruitment process, 13 candidates were shortlisted
for appointment to the post of Station Officer. They
were appointed in two dates, i.e. on 24.02.1984 (ten
candidates) and 29.03.1984 (three candidates),
pursuant to which, they joined on 07.03.1984 and
30.03.1984 respectively. The petitioner joined on
07.03.1984 and the opposite party no.4 joined on
30.03.1984. All the 13 candidates were put to
prescribed Station Officers course of training in a single
batch, i.e. 8th batch of Station Officer Course of training
at Odisha Fire Service Training Institute, Bhubaneswar.
As per Police Order No. 110, the inter se seniority of the
passed out Station Officers was fixed basing upon their
marks secured in the final examination of training. As
such, Odisha Fire Service being a wing of Police, is
governed by PMR, and accordingly the inter-se seniority
of Station Officers of 8th batch was determined as per
their marks secured in the final examination. The
opposite party no.4 stood first securing highest mark in
the training, whereas the petitioner's position was at
serial no. 11. Accordingly, the seniority list was
prepared on the mark secured in the final examination
of the training. The petitioner got promotion, being a
scheduled caste candidate, in adherence to the ORV
Act, 1975, though he was placed in the lower place in
the initial gradation list. By virtue of benefits of
reservation quota, the petitioner was allowed to officiate
as Deputy Fire Officer, Fire Officer and Chief Fire
Officer w.e.f. 31.10.2005, 07.08.2008 and 10.06.2013
respectively by superseding the general category
candidates like that of opposite party no.4.
Subsequently, the opposite party no.4 promoted to the
post of Asst. Fire Officer, Deputy Fire Officer, Fire
Officer and Chief Fire Officer w.e.f. 09.06.2008,
16.07.2012, 14.02.2014 and 16.05.2019 respectively
on his own merit without any leverage. The opposite
party no.4 was not placed in the same rank with that of
the petitioner until dated 15.05.2019. It is only on
16.05.2019, when the opposite party no.4 got promoted
to the post of Chief Fire Officer, he was placed in the
same footing with the petitioner and basing on "catch
up" rule, he was placed over the petitioner on the basis
of seniority in the initial grade. Thereby, no illegality or
irregularity has been committed by fixing the seniority
of opposite party no.4 over and above the petitioner
maintaining seniority fixed in the initial entry into
service pursuant to the marks secured in the training
as per PMR-110. To substantiate his contention he has
relied upon the judgment of Union of India v. Virpal
Singh Chauhan, AIR 1999 SC 448 : (1995) 6 SCC 684:
1995 (II) OLR 616 and Lagnajit Ray v. State of
Odisha and others , 2011 (I) OLR-689.
5. Mr. Susanta Kumar Dash, learned
counsel appearing for the opposite party no.4
contended that the petitioner has raised an issue that
appointment of opposite party no.4 as Station Officer
pursuant to office order dated 29.03.1984 is ab-initio
void. Such a challenge is made on erroneous
assumption of fact and law and has suppressed the fact
that against the very same advertisement for direct
recruitment, both the petitioner and opposite party no.4
were appointed. The petitioner and opposite party no.4
were appointed as Station Officer subject to completion
of training and after having undergone such training,
the rank in the gradation list was arranged in terms of
the result of the final examination of the 8th batch of
Station Officers of 1984, wherein the petitioner stood at
11th position and the opposite party no.4 bagged 1st
position. As per PMR-110, the seniority has to be fixed
on the basis of the mark secured in the training.
Thereby, the opposite party no.4 having secured
highest mark, stood first in the training ahead of the
petitioner. Taking advantage of the reservation if the
petitioner was given promotion ahead of opposite party
no.4, that itself cannot give rise to any presumption at
all that the opposite party no.4 is junior to the
petitioner in all the grades. When the office order was
issued on 22.01.1985 fixing the rank in the gradation
list serially as per marks secured in Fire Service
Training and the same having not been challenged till
date, is not available to be unsettled after more than
thirty-five years. It is further contended that such
gradation/seniority position in the post of the Station
Officer was not only published but also entered in the
service book of the employees. Non-disclosure of such
fact amounts to material suppression and the same
would obviously disentitle the petitioner to claim the
relief for the reason that the writ jurisdiction is always
discretionary. It is further contended that the petitioner
got promotion to the post of Chief Fire Officer prior to
the promotion of one Brajendu Bhusan Das in the
gradation/seniority list prepared by the Government,
where the petitioner was placed next to him. Inter-se
seniority was determined by office order dated
21.04.2017. It was never challenged by the petitioner,
by which he lost his seniority to Brajendu Bhusan Das,
getting promotion to the post of Chief Fire Officer
subsequent to his promotion. Both Brajendu Bhusan
Das and the opposite party no.4 had joined in the post
of Fire Officer on 17.09.2014, i.e. the post next below in
the rung. Inter se seniority having been fixed under the
touchstone, the petitioner is placed below the opposite
party no.4 in the impugned gradation list. It is further
contended that the petitioner has proceeded on
misleading statement of facts regarding inter-se
seniority of the petitioner and opposite party no.4 vis-à-
vis those of 1984 batch. Assertion was made by the
petitioner that ten posts were to be filled up against the
advertisement and the appointment of opposite party
no.4 was against subsequent vacancy and beyond the
post advertised, but nothing has been placed on record
to substantiate the same. Thereby, falsity of the
assertion would be evident from the fact that in his
representation, the petitioner had categorically stated
that both the petitioner and the opposite party no.4 had
applied for appointment as against one and the same
advertisement. Therefore, the question of
irregular/illegal appointment of opposite party no.4
after 35 years cannot sustain in the eye of law and
such grievance is hit by delay and laches.
It is further contended that the petitioner,
being a person belonging to scheduled caste, got extra
promotion, as such, the post of Deputy Fire Officer is a
Group-A (Class-I) post and the reservation policy in
terms of Section 4(2) of the Act, 1975 is applicable to
promotion up to the said post and that higher posts are
to be filled up by way of selection from the officers in
the lower rung. Therefore, promotion up to the said
post of Deputy Forest Officer, in which he joined on
07.08.2008, can be said to be on the basis of the
reservation, but he cannot claim seniority over the
candidates who were senior in the entry grade. It is
further contended that both the petitioner and opposite
party no.4 have reached the zone of consideration for
promotion to the post of Chief Fire Officer (Superior
Administrative Grade) newly created under Resolution
of the Government in its Home Department on
07.06.2021. The final gradation list of the Chief Fire
Officers of Odisha Fire Service Organization, as on
01.01.2020, was published by the opposite party no.1
on 15.04.2021. The petitioner though had submitted
objection on 28.12.2020, at Annexure-4 to the draft
gradation list, but has not submitted any
representation or appeal against the final gradation list.
In absence of any such demand, the claim of the
petitioner cannot sustain in the eye of law. It is further
contended that due to suppression of fact the writ
petition is liable to be dismissed as the opposite party
no.4 reached the same rank applying the "catch up"
rule and he was placed above the petitioner on the
strength of the law laid down by the apex Court in
Virpal Singh Chauhan and also Lagnajit Ray
(supra). It is further contended that the "catch up" rule
has been applied since the State Government has not
made any such rule or resolution conferring the benefit
of promotion with consequential seniority even as on
date of filing of the counter affidavit. In view of such
position, it is contended that the writ petition should be
dismissed having no merit.
To substantiate his contention he has
relied upon the judgments in K.A.Abdul Majeed Vs.
State of Kerala & others, (2001) 6 SCC 292: AIR
2001 SC 3194; Kishore Samrite Vs. State of Uttar
Pradesh & others, 2013 (2) SCC 398; Union of India
Vs. Virpal Singh (1995) 6 SCC 684: AIR 1996 SC; Ajit
Singh Juneja Vs. State of Punjab,(1996) 2 SCC 715:
AIR 1996 SC 1189; Ajit Singh -II & others Vs. State
of Punjab,(1999) 7 SCC 209: AIR 1999 SC 3471; M.
Nagaraj & others Vs. Union of India, (2006) 8 SCC
212: AIR 2007 SC 71; and Amir Chand Nayak Vs.
Special Secretary , G.A. Department & others, 2012
(2) ILR CUT 295.
6. This Court heard Mr. Sameer Kumar
Das, learned counsel for the petitioner: Mr. A.K.
Sharma, learned Addl. Government Advocate appearing
for the State; and Mr. Susanta Kumar Dash, learned
counsel appearing for opposite party no.4 by hybrid
mode. Pleadings having been exchanged between the
parties and with the consent of the learned counsel for
the parties, this writ petition is being disposed of finally
at the stage of admission.
7. On the basis of the factual matrix, as
delineated above, and in view of the rival contentions
raised by learned counsel for the parties, the following
questions emerge for consideration:
(i) Whether the petitioenr is senior to opposite
party no.4 in the entry grade post of Station
Officer or not? and
(ii) Whether the 'catch-up' rule is applicable,
and if so, the placement of opposite party
no.4 over and above the petitioner is justified
or not?
8. While answering question no. (i), the
petitioner emphatically claims that the appointment of
opposite party no.4 is void ab-initio but there is no
dispute with regard to the fact that both had applied
against the advertisement published during the year
1984 to fill up the vacancies of Station Officer in
Odisha Fire Service Organization. Accordingly, the
recruitment process was conducted by the Central
Selection Board on 9th and 10th February, 1984. In the
said recruitment process, 13 candidates were
shortlisted for appointment to the post of Station
Officer in Odisha Fire Service. They were appointed in
two dates i.e., on 24.02.1984 (ten candidates) and on
29.03.1984 (three candidates) pursuant to which they
joined on 07.03.1984 and 30.03.1984 respectively. The
petitioner had joined on 07.03.1984 and the opposite
party no.4 joined on 30.03.1984. After fulfilling the
official procedure, all the 13 candidates were put to
prescribe Station Officers course of training in a single
batch i.e. 8th batch of Station Officer course of training
at Odisha Fire Service Training Institute, Bhubaneswar.
After completion of training course, the final
examination was conducted, in which the opposite
party no.4 secured 1st position, whereas the petitioner
secured 11th position.
9. As per Police Order No. 110, the inter -se
seniority of the passed out Station Officers was fixed
basing upon their marks secured in the final
examination of training. As such, Odisha Fire Service
being a wing of Police is governed by PMR and
accordingly the inter se seniority of Station Officers of
8th batch was determined as per their marks secured in
the final examination. The contention raised, that the
opposite party no.4 was appointed beyond the post
advertised, has not been substantiated by the petitioner
by filing any document. Even the advertisement of the
year 1984 has not been produced in support of such
contention. Therefore, in absence of any such material
this Court takes into consideration Annexure-1, the
office order no. 12/FS dated 24.02.1984, by which the
petitioner was appointed, but it does not indicate that
all the posts, for which advertisement was made, were
filled up. Rather, it clearly speaks about appointment of
the candidates temporarily until further orders and it
further transpires that the candidates are required to
undergo training course for a period of six months at
the Fire Service Training School, Bhubaneswar and on
their joining at the training centre they are required to
execute a bond in Pr Form No. 106 (A). As the petitioner
and opposite party no.4 were applicants for the post of
Station Officer, pursuant to a single advertisement, and
both of them were selected by one Board, appointed
from one select list and undergone training in same
batch, there is no scope to consider them as appointees
of different batches. The petitioner has not produced
any gradation list in the post of Station Officer, though
has annexed the gradation lists of Deputy Fire Officer
and Fire Officer under Annexure-2 series. The
contention of the petitioner, as regards his seniority vis-
a-vis the opposite party No. 4 in the post of Station
Officer, is that "As it further understood as the opposite
party No. 4 has secured more marks in the 1st selection
than the reserve category candidates, but less mark than
the selected/appointed UR candidates, he is shown
senior to the petitioner". As per the marks awarded in
the training, the opposite party no.4 stood no.1 and the
petitioner no.11, as is evident from the gradation list
dated 22.01.1982, which is annexed as Annexure-D/3
to the counter affidavit filed on behalf of opposite
parties no. 1 to 3 and Annexure-A/4 to the counter
affidavit filed by opposite party no.4. The said
document has not been disputed by the petitioner, nor
has he denied the specific assertion made by opposite
party no.4 that gradation list in respect of Station
Officer was determined and it was reflected in the
service book of all those Station Officers. Such fixation
of seniority has also been clarified in the counter
affidavit filed on behalf of opposite parties no. 1 to 3
that Odisha Fire Service being a wing of Police, is
governed by PMR and accordingly as per Police Order
no. 110, inter se seniority of Station Officers of 8th
batch was determined on the basis of marks secured by
them in the final examination. Accordingly, gradation
list of Station Officers was published vide office order
no. 17/FS dated 22.01.1985 and D.O. No. 395/OFS
dated 02.02.1985 and the rank published therein was
reflected in their respective service book. In the said
gradation list, the petitioner's name finds place at serial
no. 11 and opposite party no.4 finds place at serial no.
1.
10. Chapter-1 of the Orissa Police Rules,
which were made under Section 12 of the Police Act
(Act-V of 1861), deals with "Organization". Rule-1-B
thereof, which deals with "Branches of the Orissa
Police", reads as follows:
"1-B. Branches of Orissa Police:- Police Officer
stationed in Orissa may be-
xx xx xx
(11) the Fire Service;
In view of the aforesaid provisions, it is made clear that
under sub-rule (11) of Rule-1-B, fire service has been
included and treated as police officer stationed in
Orissa.
11. The Orissa Fire Service Act, 1993 was enacted
to provide for the fire prevention and fire safety
measures in the State and for the constitution of a State
Fire Service to carry out fire-fighting measures. Sub-
Section (3) of Section-1 of the Orissa Fire Service Act,
1993 being relevant for the purpose of this case is
extracted hereunder:
" (3) This section and Sections 2, 3, and 4 shall
come into force at once, and the remaining
provisions of this Act shall come into force on
such date as the State Government may, by
Notification, appoint and different dates may be
appointed for different provisions of this Act
and for different areas, and any reference in
any such provision to the commencement of this
Act shall, in relation to an area, be
construed as a reference to the coming into
force of that provision in that area :
Provided that in any area to which fire
prevention or fire safety measures have been
extended prior to the commencement of this
section by the existing Fire Service Branch of
Orissa Police administered and regulated by the
Orissa Police Manual, it shall come into force in
that area on the appointed day.
XX XX XX"
In view of the foresaid proviso it is made clear that any
area to which fire prevention or fire safety measures
have been extended prior to the commencement of this
section by the existing Fire Service Branch of Orissa
Police administered and regulated by the Orissa Police
Manual, it shall come into force in that area on the
appointed day.
12. As such, Section-26 of the Orissa Fire Service
Act, 1993 deals with power to make rules. Under sub-
Section (3) of Section 26 it is specifically mentioned as
follows:
"26. Power to make rules. -
xx xx xx
(3) Until Rules are made under this section, the
Rules in force immediately before the appointed
day and applicable to the Officers and staff of
the Fire Service Branch of the Orissa Police
shall, so far as they are not inconsistent with
the provisions of this Act, continue in force and
apply to the members."
In view of the aforementioned provision, the service
condition applicable to the petitioner vis-à-vis the
opposite party no.4 is being protected. Therefore, the fire
service, being a branch of Orissa Police, as per Chapter-
1 of the Police Manual, and in absence of any rule made
for the fire service, the police manual is applicable, so
far as the petitioner and opposite party no.4 are
concerned. But, after enactment of the Orissa Fire
Service Act, 1993, to give effect to the provisions of the
Act, a resolution dated 25.09.2008 was issued by the
Home Department, in exercise of powers conferred by
sub-Section (2) of Section 46 of the Police Act, 1861,
sub-section (2.8) of Section 59 of the Prisons Act, 1894
and clause (c) sub-section (2) of Section 26 of the Orissa
Fire Service Act, 1993, to regulate the combined
recruitment of Group-C posts of Orissa Police Service,
Orissa Prisons Service and Orissa Fire Service, making
the Orders, namely, "Combined Competitive
Recruitment Examination for Group-C posts of Orissa
Police Service, Orissa Fire Service Orders, 2008". Vide
Notification dated 04.02.2021 the Government of Odisha
in Home Department, in exercise of power conferred by
sub-Section (2) of Section 46 of the Police Act, 1861,
sub-section (2.8) of Section 59 of the Prisons Act, 1894
and clause (c) sub-section (2) of Section 26 of the Orissa
Fire Service Act, 1993 and in supersession of the
relevant provisions of the Combined Competitive
Recruitment Examination for Group-C posts of Orissa
Police Service, Orissa Prisons Service and Orissa Fire
Service Orders, 2008, to regulate the combined
recruitment to Group-B posts of SI and equivalent rank
made the Orders, namely, "Combined Competitive
Recruitment Examination for Group-B posts of Orissa
Police Service, Orissa Fire Service Orders, 2021". An
advertisement was issued on 27.12.2017 for Combined
Police Service Examination-2017 by the Odisha Staff
Selection Commission for recruitment of SI of Police, SI
of Police (Armed), Station Officer (Fire Service) and
Assistant Jailor. These are suggestive of the fact that
Police Orders/Police Manual applies proprio vigore to
determine seniority in the posts of fire service branch of
Odisha Police and Fire Service Branch is being
administered and regulated by the Odisha Police
Manual. It is also inferred that the subsequent Act,
resolutions and notifications issued in respect of the fire
service are only applicable prospectively and, as such,
the recruitment made prior to the commencement of
such Act, resolutions an notifications are also protected
under the said Act, resolutions and notifications issued
by the Government.
13. In absence of any rules applicable to the
employees of Fire Services, the rules applicable to the
police officers will also be applicable to them. Therefore,
as per Police Order No. 110, the inter se seniority of the
passed out Station Officers was fixed basing on the
marks secured in the final examination of training. As
such, Odisha Fire Service, being a wing of Police, is
governed by PMR and accordingly, the inter se seniority
of Station Officers of 8th batch was determined as per
their marks secured in the final examination of training.
Such fixation of seniority made, vide office order no.
17/FS dated 22.01.1985 and D.O. No. 395/OFS dated
02.02.1985, although was communicated to all
concerned with a copy of gradation list and the same
was reflected in their respective service books, the
petitioner never challenged such fixation of seniority at
relevant point of time. Therefore, the contention so
raised after lapse of 36 years, cannot sustain in the eye
of law. Furthermore, the petitioner has suppressed the
material facts before this Court and has not come to the
Court with clean hands. Therefore, he is not entitled to
get any relief as claimed in the writ petition. As such,
the suppression of facts goes to the root of the matter,
therefore the writ petition has to be dismissed on that
score.
14. In The Ramjas Foundation v. Union of
India, AIR 1993 SC 852, the apex Court held that when
a person approaches a Court of equity in exercise of its
extraordinary jurisdiction under Article 226/227 of the
Constitution, he should approach the Court not only
with clean hand but also with clean mind, clean heart
and clean objective.
15. In Agricultural and Processed Food
Products vs. Oswal Agro Furane, AIR 1996 SC 1947 :
(1996) 4 SCC 297, the apex Court had taken a serious
objection in a case filed by suppressing the material
facts and held that if a person is guilty of suppression
of very important fact, his case cannot be considered on
merits. Thus, a litigant is bound to make "full and true
disclosure of facts"
16. As regards expressing distorted facts before
the Court and not approaching with clean hands, in R.
v. Kensington, Income Tax Commissioner, (1917) 1
KB 486 at page 506, it has been held as follows:
"The prerogative writ is not a matter of course;
the applicant must come in the manner
prescribed and must be perfectly frank and
open with the Court."
17. In State of Haryana v. Karnal Distillery,
AIR 1977 SC 781, the apex Court refused to grant relief
on the ground that the applicant has misled the Court.
18. In Chancellor v. Bijayananda Kar, AIR
1994 SC 579, the apex Court held that a writ petition is
liable to be dismissed on the ground that the petitioner
did not approach the Court with clean hands.
19. Taking into consideration the above
judgments, this Court, in Netrananda Mishra v. State
of Orissa, 2018 (II) OLR 436, came to hold in
paragraph-26 of the judgment as under:-
"............. For suppression of facts and having
not approached this Court with a clean hand,
the encroacher is not entitled to get any relief,
particularly when the valuable right accrued in
favour of the petitioner is being jeopardized for
last 43 years for no fault of him, on which this
Court takes a serious view. ........"
Similar view has also been taken by this Court in
Swapna Pradhan v. State of Orissa and others,
2020 (I) OLR 93.
20. In view of such position, the contention raised
with regard to validity of appointment, after long lapse of
time cannot sustain in the eye of law. More so, the
materials relating to preparation of gradation list at the
entry grade and its corresponding entry in the service
book were deliberately suppressed by the petitioner.
21. In K.A. Abdul Majeed (supra), the apex Court
held that after a long lapse of time, the question of
initial appointment cannot be re-opened at the instance
of private opposite parties and that too for altering the
seniority.
22. As regards the consequence of suppression of
material facts, e.g. the preparation of gradation list in
the post of station officer and the corresponding entry in
the respective service book, besides non-challenge to
application of catch-up rule following the subsequent
promotion of one Barjendu Bhusan Das from
unreserved category to the post of Fire Officer, by which
the petitioner was placed below him, such fact was not
disputed in the rejoinder affidavit submitted in response
to the counter affidavit filed by opposite party No. 4.
23. In Kishore Samrite (supra), the writ
petition, apart from being not fit to be entertained, was
dismissed with punitive costs, being abuse of the
process of court. Relevant paragraph of the said
judgment is extracted here-in-below.
"Abuse of the process of Court:
29. Now, we shall deal with the question
whether both or any of the Petitioners in Civil
Writ Petition Nos. 111/2011 and 125/2011 are
guilty of suppression of material facts, not
approaching the Court with clean hands, and
thereby abusing the process of the Court. Before
we dwell upon the facts and circumstances of
the case in hand, let us refer to some case laws
which would help us in dealing with the present
situation with greater precision. The cases of
abuse of the process of court and such allied
matters have been arising before the Courts
consistently. This Court has had many occasions
where it dealt with the cases of this kind and it
has clearly stated the principles that would
govern the obligations of a litigant while
approaching the court for redressal of any
grievance and the consequences of abuse of the
process of court. We may recapitulate and state
some of the principles. It is difficult to state such
principles exhaustively and with such accuracy
that would uniformly apply to a variety of cases.
These are:
(i) Courts have, over the centuries, frowned upon
litigants who, with intent to deceive and mislead
the Courts, initiated proceedings without full
disclosure of facts and came to the courts with
'unclean hands'. Courts have held that such
litigants are neither entitled to be heard on the
merits of the case nor entitled to any relief.
(ii) The people, who approach the Court for relief
on an ex parte statement, are under a contract
with the court that they would state the whole
case fully and fairly to the court and where the
litigant has broken such faith, the discretion of
the court cannot be exercised in favour of such a
litigant.
(iii) The obligation to approach the Court with
clean hands is an absolute obligation and has
repeatedly been reiterated by this Court.
(iv) Quests for personal gains have become so
intense that those involved in litigation do not
hesitate to take shelter of falsehood and
misrepresent and suppress facts in the court
proceedings. Materialism, opportunism and
malicious intent have over-shadowed the old
ethos of litigative values for small gains.
(v) A litigant who attempts to pollute the stream
of justice or who touches the pure fountain of
justice with tainted hands is not entitled to any
relief, interim or final.
(vi) The Court must ensure that its process is not
abused and in order to prevent abuse of the
process the court, it would be justified even in
insisting on furnishing of security and in cases of
serious abuse, the Court would be duty bound to
impose heavy costs.
(vii) Wherever a public interest is invoked, the
Court must examine the petition carefully to
ensure that there is genuine public interest
involved. The stream of justice should not be
allowed to be polluted by unscrupulous litigants.
(viii) The Court, especially the Supreme Court,
has to maintain strictest vigilance over the abuse
of the process of court and ordinarily
meddlesome bystanders should not be granted
"visa". Many societal pollutants create new
problems of unredressed grievances and the
Court should endure to take cases where the
justice of the lis well-justifies it. [Refer: Dalip
Singh v. State of U.P. and Ors.: (2010) 2 SCC
114; Amar Singh v. Union of India and Ors.:
(2011) 7 SCC 69 and State of Uttaranchal v.
Balwant Singh Chaufal and Ors.: (2010) 3 SCC
402]."
In view of such position, it cannot be
construed that appointment of opposite party no.4 as
Station Officer in 1984 is void. Thereby, there is no
basis to accept the contention of the petitioner that he
is senior to opposite party no.4 on any count.
Consequentially, the first question is answered against
the petitioner with the finding that the opposite party
no.4 is senior to the petitioner in the entry grade post of
Station Officer of 1984 batch.
24. Moving to question no. (ii), the "catch up"
rule is applicable as a panacea for the candidates of
unreserved category for not losing their seniority to
reserved category candidates, in the event of their
promotion to the higher posts ahead of them.
Consequential seniority is not covered by Article 16(4A)
of the Constitution of India, 1950, following the 77th
Amendment of the Constitution, which became effective
on 07.06.1995 i.e. after the judgment in the case of
Indra Sawhney etc. etc. & others v. Union of India
and others, etc. 1992 Supp.(3) SCC 217 wherein it was
held that Article-16(4) does not permit reservation in
the matter of promotion.
25. The apex Court in a series of cases, namely,
in Virpal Singh, Ajit Singh Juneja and in Ajit Singh -
II (supra) introduced the "catch up" rule. By 85th
amendment of the Constitution, which became effective
on 04.01.2002, consequential seniority was sought to
be given in favour of candidates promoted on the basis
of reservation w.e.f. 16.06.1995 i.e. immediately before
the effective date of 77th Amendment of the
Constitution. Constitutional validity of both 77th and
85th amendment of the Constitution came to be assailed
in several cases.
26. In the case of M. Nagaraj (supra), while
upholding the constitutional validity of the
amendments, the apex Court made it clear that the
State Governments may frame rule in respect of
reservation in promotion with consequential seniority,
but only after quantifying the data. Unless it is done, no
such rule relating to promotion with consequential
seniority can be introduced.
27. In view of the aforesaid scenario, in the
counter affidavit filed by opposite party no.4, it is
specifically contended that the State Government has
not made any such rule or resolution conferring the
benefit of promotion with consequential seniority even
as on the date of filing of the said counter affidavit.
Thus, the "catch-up" rule is applicable proprio vigore.
Under the "catch up" rule, the reserved candidate even
though promoted earlier has to be placed below the
general candidate promoted later, in case the general
candidate was above the reserved candidate in the entry
grade of service.
28. The petitioner while contending that the
"catch up" rule is not applicable, referring to paragraph-
8 (iv) of the writ petition stated that the petitioner and
the opposite party No.4 never continued in any
promotional posts up to the post of Fire Officer and that
he got promotion to the posts above Deputy Fire Officer
(Lowest rung in Class-I post) and that his subsequent
promotions to the post of Fire Officer and Chief Fire
Officer were on strength of merit and suitability, but the
same has no basis in view of the judgment of the apex
Court in Ajit Singh Juneja (supra). In paragraph-21,
the apex Court held as follows:
"21. We respectfully concur with the view in
Union of India v. Virpal Singh Chauhan (supra)
that seniority between the reserved category
candidates and general candidates in the
promoted category shall continue to be
governed by their panel position i.e. with
reference to their inter se seniority in the lower
grade. The rule of reservation gives
accelerated promotion, but it does not give the
accelerated 'consequential seniority'. If a
Scheduled Caste/Scheduled Tribe candidate is
promoted earlier because of the rule of
reservation/roster and his senior belonging to
the general category candidate is promoted
later to that higher grade the general category
candidate shall regain his seniority over such
earlier promoted scheduled caste/tribe
candidate.
As already pointed out above that when
a scheduled caste/tribe candidate is promoted
earlier by applying the rule of
reservation/roster against a post reserved for
such scheduled caste/tribe candidate, in this
process he does not supersede his seniors
belonging to the general category. In this
process there was no occasion to examine the
merit of such scheduled caste/tribe candidate
vis-a-vis his seniors belonging to the general
category. As such it will be only rational, just
and proper to hold that when the general
category candidate is promoted later from the
lower grade to the higher grade, he will be
considered senior to candidate belonging to the
scheduled caste/tribe who had been given
accelerated promotion against the post
reserved for him. Whenever a question arises
for filling up a post reserved for scheduled
caste/tribe candidate in still higher grade then
such candidate belonging to scheduled
caste/tribe shall be promoted first but when
the consideration is in respect of promotion
against the general category post in still higher
grade then the general category candidate
who has been promoted later shall be
considered senior and his case shall be
considered first for promotion applying either
principle of seniority cum merit or merit cum
seniority. If this rule and procedure is not
applied then result will be that majority of the
posts in the higher grade shall be held at one
stage by persons who have not only entered in
service on basis of reservation and roster but
have excluded the general category candidates
from being promoted to be posts reserved for
general category candidates merely on the
ground of their initial accelerated promotions.
This will not be consistent with the
requirement or the spirit of Article 16(4) or
Article 335 of the Constitution.
(underlining is the emphasis supplied)
29. In Amir Chand Nayak (supra), it has been
observed that if the "catch-up" principle is applied then,
the inter-se seniority between the petitioner and the
opposite party No. 4 in the feeder cadre has to be
maintained on promotion.
30. In Pravakar Mallick Vs. State of Odisha &
others, AIR 2020 SC 2122: 2020 (I) OLR (SC) 625, while
repelling the submission that the benefit of reservation
in promotion is given in the services for scheduled caste
and scheduled tribe officers as per Section 10 of Orissa
Act 38 of 1975, it was held that for the reason that such
Act was enacted by the State of Orissa in the year 1975,
no provision was brought in the said Act, for giving the
benefit of seniority for the promotees who were
promoted in reserved vacancies.
31. The petitioner lost his seniority to one
Brajendu Bhusan Das, a candidate from the unreserved
category who was promoted later to the post of Chief
Fire Officer. The opposite party No. 4 specifically stated
in the counter affidavit, annexing the relevant Office
Order No. HOME-FS-GRDN-0037-2017/CD, dated
21.04.2017 as Annexure-B/4, as follows:
""As a matter of fact though the petitioner got
promotion to the post of Chief Fire Officer
earlier to the promotion of one Brajendu
Bhusan Das, in the gradation/seniority list
prepared by the Government, the petitioner
was placed next to him. Inter-se seniority was
determined by Office Order No.
HOME-FS-GRDN-0037-2017/CD, dated
21.04.2017. It may be pertinent to state that
the petitioner never challenged the said office
order by which he lost his seniority to
Brajendu Bhusan Das, getting promotion to the
post of Chief Fire Officer subsequent to his
promotion. Both Brajendu Bhusan Das and
this opposite party had joined the post of Fire
Officer on 17.02.2014, i.e. the post next below
in the rung. Inter-se seniority having been
fixed under the same touchstone, the petitioner
is placed below this opposite party in the
impugned gradation list."
The aforesaid contention has not been denied by the
petitioner in the rejoinder affidavit explaining as to how
on the basis of the "catch up" rule, he was placed below
to Brajendu Bhusan Das and did not dispute that
opposite party no.4 and Brajendu Bhusan Das were
promoted to the post of Fire Officer on 17.02.2014.
32. Much reliance has been placed on the
provisions contained under Clause (c) of the second
proviso to Sub-Section (2) of Section-4 of the ORV Act,
1975, which reads as follows:
"4. Reservation and the percentage thereof
- (1) xx xx xx
(2) The reservation of vacancies in posts and
services shall be at such, percentage of the total
number of vacancies as the State Government
may, from time to time, by order, determine:
xx xx xx
Provided further that no reservation of
vacancies to be filled up by promotion where -
Xx xx xx
(c) the vacancies have occurred in Class-I
posts which are above the lowest rung thereof,
and are to be filled upon the basis of selection."
To substantiate the same, reliance has also been placed
on the judgment of this Court in Lagnajit Ray (supra),
wherein observation has been made that reservation in
promotional post under the State Service is available
only in respect of Class-I post at the lowest rung as per
Clause (c) of the second proviso to Sub-Section (2) of
Section-4 of the ORV Act, 1975 and not any higher
Class-I post in the service. The factual matrix of the
said case, if will be taken into consideration, as has
been indicated, there is no dispute that the impugned
provisional gradation list under Annexure-7 to the said
case was prepared giving consequential seniority to the
SC & ST roster point by following "catch up" rule. The
basis of preparation of such provisional gradation list
was the provisions of Rule 10(2) of the OAS-A (JB)
Recruitment and Appointment Promotion Rules, 1977.
Therefore, if the gradation list has been prepared by
applying the "catch up" principle, the law that governs
the reservation vacancies in past service in favour of the
SC and ST, i.e, ORV Act and Rules, 1975 and 1977
shall apply in the matter of promotion of OAS (1) JB.
Thereby, the judgment of Lagnajit Ray mentioned
supra has been decided on its own facts and
circumstances of the case which has no application to
the present context.
33. In Batakrushna Adhikari (supra), this
Court held that power to be exercised in accordance
with law and with a fair procedure, not qualified for the
post and not following any selection process make the
appointment inherently illegal. These principles have no
application to the present context and thereby, the
judgment is distinguishable.
34. In Amir Chand Nayak (supra), referring to
the judgments in Ajit Singh, M. Nagaraj and Lagnajit
Ray (supra), this Court held that if "catch up" rule is
applied then, the inter se seniority between the
petitioner and opposite party no.4 in the feeder cadre
has to be maintained on promotion. Therefore, in the
feeder cadre, if the opposite party no.4 was senior to the
petitioner, then he can be treated as senior by applying
the "catch up" principle. While analyzing the "catch up"
principle, relying upon the judgments of the apex Court,
this Court has held that roster point promotees
(reserved category) cannot count their seniority in the
promoted category from the date of their continuous
officiation in the promoted post, vis-a-vis the general
candidates who were senior to them in the lower
category and who were later promoted. On the other
hand, the senior general candidate at the lower level, if
he reaches the promotional level later but before the
further promotion of the reserved candidate he will have
to be treated as senior, at the promotional level, to the
reserved candidate even if the reserved candidate was
earlier promoted to that level. Thereby, the aforesaid
judgment is applicable to the case of opposite party
no.4 not to the case of the petitioner. Thus the
contention raised that the "catch up" principle is not
applicable, cannot sustain in the eye of law. In view of
the above, the second question is also answered against
the petitioner.
35. In view of the facts and law, as discussed
above, this Court is of the considered view that opposite
party no.4, having stood first in the training
examination held as per Police Rule 110, on the basis
of the marks secured therein, was senior to the
petitioner in the feeder cadre, and such fixation of
seniority having been entered into service book and the
same having not been called in question by the
petitioner at the relevant point of time, the seniority of
opposite party no.4 has to be retained in promotional
post by following "catch up" rule. Consequentially, the
relief sought by the petitioner in the present writ
petition cannot sustain in the eye of law. As a result,
the writ petition is devoid of any merit and the same is
hereby dismissed. No order as to costs.
..............................
DR. B.R. SARANGI,
JUDGE
Orissa High Court, Cuttack
The 7th October, 2021, Ajaya/GDS
