Amiya Kumar Das And Others vs State Of Odisha And Others
2022 Latest Caselaw 3020 Ori

   IN THE HIGH COURT OF ORISSA AT CUTTACK

                   WP(C) No.27381 of 2019
                   (Through Hybrid mode)

Amiya Kumar Das and others ....                                  Petitioners

                                         Mr. Sadasiva Patra, Advocate

                                 -versus-

State of Odisha and others             ....               Opposite Parties

                            Mr. Y.S.P. Babu, Addl. Govt. Advocate
                              Mr. Biswabihari Mohanty, Advocate

                      WP(C) No.14243 of 2021

Prasanna Kumar Jena and others                 ....               Petitioners
                                             Mr. S. B. Panda, Advocate

                                  -versus-

State of Odisha and others                     ....        Opposite Parties

                             Mr. Y.S.P. Babu, Addl. Govt. Advocate

                      WP(C) No.16871 of 2021

Amiya Kumar Das and others                    ....               Petitioners

                                  Ms. Saswati Mohapatra, Advocate

                                 -versus-

State of Odisha and others                    ....        Opposite Parties

                            Mr. Y.S.P. Babu, Addl. Govt. Advocate

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                   CORAM: JUSTICE ARINDAM SINHA

                                        ORDER

Order No.                              08.07.2022

   21.      1.     Parties appear in support of their contentions in these

writ petitions. The controversy appears to arise from order dated 11th April, 2016 of Government of Odisha, Home Department. It is Odisha Police Signals Service (Method of Recruitment and Conditions of Service) Order, 2016. Clause 21(4) in the order provides for inter se seniority. Petitioners in the writ petitions are aggrieved by sub-clause (4), which says as follows:

"(4) The inter se seniority in the rank of Inspector (Communication) and Sub-Inspector (Communication) shall be determined as per the position assigned in the select list prepared by the Board."

2. The writ petitions were moved before this Bench on 16th December, 2021 after having had been specially assigned. They were heard on a few occasions.

3. Mr. Sadasiva Patra, learned advocate appears on behalf of petitioners in W.P.(C) no.27381 of 2019 and submits, his clients and private opposite parties were both recruited parallely in respective wings, Assistant Sub-Inspector (Mechanical) and Assistant Sub-Inspector (Operator). By the order there has been merger of the two wings. Inter se seniority to be fixed per sub-clause (4) cannot be on any other criteria but by reference to initial appointments.

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4. On 6th April, 2022, Mr. Patra had prayed for direction upon opposite party no.2 (State) to produce merit list of petitioners and opposite party nos.4 to 22 in WP(C) no.27381 of 2019, on their appointments in years 1997 and 2003. He wanted production of consolidated merit list, from where, he had submitted, bifurcation was made in sending petitioners to 'mechanics' and said opposite parties, to 'operators'. Mr. Babu, learned advocate, Additional Government Advocate appears on behalf of State and refers to additional affidavit dated 23rd March, 2022, in which State said, pursuant to advertisement dated 7th August, 1996 published in local daily 'Dharitree' for recruitment to post of Assistant Sub-Inspector (operator/mechanic), interested candidates had applied. There were several qualifying tests, after which the candidates appeared before the Central Selection Board. The affidavit goes on to say that the Central Selection Board interviewed 49 candidates, out of whom 35 were selected as ASI (Operators). Then again said Board interviewed 53 candidates, out of whom 30 were selected as ASI (Mechanics). He submits, in absence of specific cadre rule, candidates were required to indicate their order of preference in the application.

5. Today Mr. Patra submits, the wing 'mechanics' is more specialized and had better quality of job application and pay. That is why his clients opted for the wing. However, promotional posts available were less in number. In spite of being better than their counter parts in wing 'operators', his clients obtained promotion after said opposite parties, in their wing. However, on being promoted and thereafter the two

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separate wings being merged, date of reckoning for fixing inter se seniority must be reckoned from respective dates of initial appointment. This is because the wings were different in their requirements and other criteria. From the selection process they were different, irrespective of the common notice inviting applications for both the wings.

6. He draws attention to his clients' additional affidavit dated 5th January, 2022, in which following was said in paragraph 3 therein, reproduced below.

"3. That, it is submitted that in similar circumstances the seniority has been fixed in the Department of Ministry of Home Affairs of Govt. of India (Apex Body of wireless communication in India) vide Office Memorandum dtd.18.01.2019. For better appreciation it is submitted that like the present case in the Directorate of Co-ordination Police Wireless, two different cadres were there namely Radio Technician and Radio Operator and their training were same between the petitioners vis-à-vis private opposite parties. The Radio Technicals were promoted to Senior Technical Assistant where as the Radio Operators were promoted to station supervising officers in their own channel of promotion. After restructuring of cadre above two promotional posts were merged to communication officer. The seniority of above those employees were fixed on the basis of the entry into the grade i.e. joining in the feeder post which was circulated vide office memorandum dtd. 18.01.2019 which is filed herewith as Annexure-

14."

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7. He relies on judgment of the Supreme Court in Nirmal Kumar v. State of Bihar, reported in AIR 1998 SC 394, paragraph 4, reproduced below.

"4. It is a well-settled position in law that seniority would ordinarily depend upon length of service subject, of course, to rules holding the field. That view has been taken by this Court in several cases and it is unnecessary to refer to all of them. In A. Janardhana v. Union of India,(1983) 2 SCR 936: (AIR 1983 SC 769), the situation was somewhat the same as here. The Court found that the method adopted for fixing seniority overlooked the character of appointments and pushed down persons validly appointed below others who had no justification to be given higher place. At page 960 (of SCR) : (at P. 781 of AIR), the Court observed:-

"It is an equally well recognised canon of service jurisprudence that in the absence of any other valid rule for determining inter se seniority of members belonging to the same service, the rule of continuous officiation or the length of service or the date of entering in service and continuous uninterrupted service thereafter would be valid and would satisfy the tests of Article 16."

We may also refer to a very recent decision of this Court in K.S. Vora v. State of Gujarat, (1987) 5 JT 179: (AIR 1987 SC 2348). The High Court recorded a finding that there is no applicable rule in the matter of fixing inter se seniority in a situation of this type. In the absence of rules, the more equitable way of preparing the combined gradation list would be to take the total length of service in the common grade as the basis for determining inter se seniority. We would like to add that in regard to the Supervisors (now called Junior Engineers) serving in the three wings there

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is no dispute of the grade being the same. While we do not agree with the High Court that confirmation should be the basis and would substitute it by the length of service test, we would uphold the direction that in fixing the combined gradation list the inter se seniority of the incumbents in their respective departments would not be disturbed. Even if this be the test, the gradation list as published by Government has to be modified. We would accordingly confirm the conclusion of the High Court that Annexures 1 1, 11/1, 12, 13, 13/1, 15 and 16 should be quashed and a fresh combined gradation list has to be published. We have altered the test for fixing the seniority inter se generally but we have approved the direction of inter se seniority in their own departments to be respected. The respondent-State and its officers are directed to prepare and publish the fresh combined gradation list keeping the aforesaid directions in view."

He then relies on views taken by a Division Bench of this Court in Ajit Kumar Ray v. Director, Higher Education Orissa, reported in 1996 (1) OLR - 209 being that for determination of inter se seniority, general consideration of merit, educational qualification, age, past experience and several other factors are to be taken into account.

8. Ms. Mohapatra, learned advocate appears on behalf of petitioners in WP(C) no.16871 of 2021. She submits, her clients are in 'mechanics' wing. It being true that her clients got promotion later than 'operators', because of less promotional posts available in 'mechanics' wing, but for purpose of drafting combined gradation list on inter se seniority consequent to the merger, it is irrelevant that her clients were promoted later. This is because the wings were

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completely different. Her clients have nothing to say about promotional opportunities in wing 'operators'. However, on merger there has to be level playing field for purpose of determination of seniority since, the separate wings have now been brought together and the reckoning must be from the dates of appointment. More so, members of 'mechanics' wing had obtained their technical qualification much prior to members of 'operators' wing having got promotion in year 2010.

9. She relies on tentative gradation list as on 1st January, 2016 circulated by letter dated 3rd October, 2016 issued by Superintendent of Police, Signals. She draws attention to serial no.4 giving particulars of petitioner no.1. She demonstrates that the third and last technical qualification was achieved by petitioner no.1 in year 1993. It is thereafter on 31st December, 2012 that he got promotion to the post of Sub- Inspector (Communications). She then relies on communication dated 4th April, 2012 issued by Inspector General of Police (Communications) to the Government saying, inter alia, the posts created for the Indian Reserve Battalion should maintain uniformity. She submits, uniformity between the operational and mechanical wings. Lastly, she refers to GO dated 15th March, 2021, whereby the Government rejected her clients' case for changing the select list prepared by the Board pursuant to clause 21(4) in said order of merger dated 11th April, 2016. Hence, her clients have moved Court. She relies on judgment dated 31st March, 2011 of the Supreme Court in Civil Appeal no.6587 of 2003

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(Deepak Agarwal v. State of Uttar Predesh), wherein the Court in paragraph-30 said as reproduced below (Indian Kanoon print).

"30. In such circumstances, the Government may be well advised to have a re-look at the promotion policy to provide some opportunity of further promotion to the officers working on these posts."

10. Mr. Mohanty, learned advocate appears on behalf of opposite party nos. 4 to 22 in W.P.(C) no.27381 of 2019. He submits, his clients were not impleaded in the other writ petitions. Court observes, that should not stand in the way since hearing of the writ petitions have been taken together, on participation of learned advocates appearing for all parties and Mr. Mohanty is on notice of all contentions put forward, recorded by Court in the order sheet. Object of pleadings, for notice of case, stands satisfied. Furthermore, said opposite parties were vigilant and had intervened to get themselves added as parties in one of the writ petitions.

11. Mr. Mohanty's clients were Assistant Sub-Inspector (Operators). He had earlier submitted, in the parallel wing, to which his clients belong, there were more promotional posts. His clients obtained promotion to rank of Sub-Inspector (Operators) in year, 2010. Impugned administrative order of 2016 provides for promotion from rank of Sub-Inspector to Inspector. One of the criteria is ten years service in the post of Sub-Inspector. This, petitioners do not have as they were promoted from being Assistant Sub-Inspector (Mechanical) to

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Sub-Inspector (Mechanical) later, in year, 2012. He submits with reference to clause 21(4) that the reckoning for preparing the select list was made on dates of promotion to the post SI, his clients having had obtained promotion in year 2010 and petitioners, thereafter in year 2012.

12. He had relied on judgment of the Supreme Court in S.P. Shivprasad Pipal vs Union Of India, reported in AIR 1998 SC 1882, paragraph-19 to submit, the writ petitions cannot be maintained and should be dismissed as petitioners have challenged merger of two posts. They cannot do so under the law declared thereby. He had submitted with reference to page- 18 in his clients' counter, there were more posts available for promotion in operational wing than the mechanical wing. There was common entrance. Different promotional prospects were known to all at the time of entrance. Petitioners having had accepted their appointments in the mechanical wing with less promotional prospects, cannot now challenge the merger on disparity in dates of promotion.

13. Today Mr. Mohanty relies on judgment of the Supreme Court in Amarjeet Singh v. Devi Ratan, reported in AIR 2010 SC 3676, paragraphs 24 and 28. Paragraph 24 is reproduced below.

"24. In the instant case, promotions had been made by two different DPC's held on 19-12-1998 and 22-1-1999. Both the DPC's had made promotions under different rules on different criterion and their promotions had been made with retrospective effect with different dates notionally. In the writ petition before the High Court, the promotion of the appellants had not been under

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challenge. The seniority which is consequential to the promotions could not be challenged without challenging the promotions."

Ms. Mohapatra replies that there was no question of her clients challenging promotions given in a separate wing. The judgment is therefore distinguishable on facts. Mr. Patro adopts the submission as his reply as well.

14. The facts, as Court has been able to ascertain, are that there was notice issued for inviting applications for some posts of Assistant Sub-Inspector (ASI) operators and ASI mechanics, to be directly recruited by Odisha Police Signal Department. The notice was published in local newspaper 'Dharitree' on 7th August, 1986. Eligibility criteria were notified and both petitioners and private opposite parties in the writ petition, had applied. The process of selection, as stated in the affidavit filed by State and referred to above, appears to have been undertaken, as neither the several writ petitioners nor said private opposite parties could show anything otherwise. What transpires is, in the application the candidates had to indicate their preference. It is, therefore, that there were a certain number of applicants for the post of ASI operator, from whom some few were selected and different number of candidates for the post of ASI mechanical, from whom some were selected. Also is a fact that Inspector General of Police, by relied upon communication dated 4th April, 2012, had said that posts created for the Indian Reserve Battalions should maintain uniformity regarding the two wings. As such, it is established that there were two separate wings. The Government then

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thought best to merge the wings to become a common post, at present Sub-Inspector (SI) (Communication).

15. There is no challenge to merger of the wings. Impugned sub-clause in merger order dated 11th April, 2016 has already been reproduced above. It is seen that thereby inter se seniority in rank of, inter alia, SI (Communication) shall be determined as per position assigned in the select list prepared by the Board. It appears from submissions made at the Bar and materials on record that the select list was prepared taking into account SI operators having obtained promotion in year 2010 as had to have higher position in the table of seniority, over SIs in the mechanical wing, who had obtained their promotion in year 2012. Writ petitioners belong to the mechanical wing. It is demonstrated that they were a separate wing all along and had no connection with operations wing, right from the process of selection for appointment. They have said that they obtained their technical qualifications earlier than private opposite party nos. 4 to 22 having obtained promotion to the post of Sub- Inspector in year 2010. Mr. Mohanty submits, there is no pleading to this effect and he disputes this submission.

16. The difference in scope of work in the two wings has been indicated in the letter relied upon by Ms. Mohapatra, being letter dated 4th April, 2012 written by Inspector General of Police to the Government. First paragraph from said letter is reproduced below.

"Inviting a reference to the letter on the subject cited above, it is to intimate that Signals Estt comprise of two cadres viz. Operational and

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Mechanical in the field of Communication, where sophisticated sets and equipments are used in different channels/nets. The duty of the Operational cadre is to communicate/informations/messages pertaining to law & order, important administrative and security related matters. The Mechanical Cadre are to look after the maintenance, installation and take up repair/works."

17. Of all the judgments relied upon by the parties, in context of the facts and circumstances, Amarjeet Singh (supra) and Nirmal Kumar (supra) are to be considered for instruction and application. Paragraph 24 in Amarjeet Singh (supra) has been reproduced above. Facts in that case become relevant. They were that appellants before the Supreme Court were appointed as Excise Inspectors under relevant rules. They became eligible to be considered for promotion to the next higher post. The rules stood amended w.e.f. 10th October, 1994. By the amendment, criterion of 'merit' was amended to be 'seniority subject to rejection of unfit'. A writ petition was filed by petitioner-appellants challenging the selection process for promotion under the rules. The High Court held that vacancies, which came into existence prior to 10th October, 1994 were to be filled up as per the un-amended rule. State of UP had preferred Special Leave Petition (SLP) and on 30th October, 1995 the Supreme Court passed interim order permitting State to make promotions as per amended rule but subject to outcome of the SLP. In view of the interim order 61 persons got promotion, subject to outcome of the SLP. The SLP was ultimately dismissed. However, State did not revert the promotees but let them continue in the promoted post.

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Here, it would be appropriate to reproduce paragraph-14.

"14. In view of the above, the State Government ought to have reverted the respondents as their promotions were subject to the decisions of the said petition. In view of the fact that the respondents continued on a higher post under the orders of this Court for years together and even after dismissal of the petition filed by the state, and the exercise for making promotions was not undertaken by the state Authorities, the appellants should not suffer for no fault of theirs. It has fairly been conceded by learned counsel appearing for the respondents that had the exercise of making promotions been undertaken immediately after the order of this Court dated 19- 8-1998, the appellants could have been promoted much earlier and they could have been senior to the respondents. Thus the question does arise as to whether appellants should be asked to suffer for the interim order passed by this Court in a case having no merits at all."

18. After dismissal of the SLP the Departmental Promotional Committee (DPC) met and found that only 30 candidates were suitable for promotion, for filling up the vacancies, which came into existence prior to date of amendment (10th October, 1994). The DPC recommended and the unfilled vacancies were carried forward to enable State to fill them applying the amended rule. The DPC thereafter met again and made recommendation for promotion on the amended rule. After the two promotions, as recommended had happened, a seniority list dated 12th July, 2000 was issued, wherein appellants before the Supreme Court were placed above respondents. The respondents had approached the High Court challenging the seniority list. The High Court quashed

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the seniority list and another dated 26th July, 2002 was prepared. In this context, above reproduced paragraph-24 indicating that respondents in the Supreme Court had not challenged the promotion given to appellants pursuant to dismissal of the SLP. Not having done that they could not raise a dispute on seniority. The Supreme Court restored the earlier list dated 12th July, 2000. It is clear, facts in that case were different and the decision is not applicable to this case, where the wings being separate, petitioners cannot be held to have waived and thereby barred from raising dispute regarding preparation of combined seniority list on not having challenged earlier promotion granted in the operators wing.

19. In Nirmal Kumar (supra) facts appear to be similar to the case at hand. The Supreme Court was dealing with the dispute, where three different wings of engineers in department of agriculture had been amalgamated on 9th January, 1969. Combined gradation list was prepared giving rise to disputes. In those facts the Court said in paragraph-4, as reproduced above. The Court said, it is well settled position of law that seniority would ordinarily depend upon length of service subject, of course to rules holding in the field. In this case there is no rule holding the field on consequence of merger and thereupon preparation of combined inter se seniority list. In Nirmal Kumar (supra) the Supreme Court directed for fresh seniority list.

20. Opposite party no.3 in W.P.(C) no.27381 of 2019 is directed to cause the Board to prepare fresh select list, required

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by clause 21(4) in order dated 11th April, 2016, depending upon length of service of all personnel holding present post of Sub-Inspector (Communication), by six weeks from date.

21. The writ petitions are disposed of.

(Arindam Sinha) Judge

RKS