Orissa High Court
Lokanath Barik vs Basanta Kumar Barik And Others on 28 November, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.A. Nos. 533 & 534 of 2016
Lokanath Barik .... Appellant
Mr. S.K. Rath, Advocate
-versus-
Basanta Kumar Barik and others .... Respondents
Mr. K.K. Swain, Advocate for Respondent No.1
CORAM:
THE CHIEF JUSTICE
JUSTICE M.S. RAMAN
ORDER
28.11.2022
Order No.
Dr. S. Muralidhar, CJ.
09. 1. The dispute concerning the inter se seniority of two Peons of the
P.B.M. Mahavidyalaya, Dhenkanal (Respondent No.4) forms the
subject matter of the present appeals, which arise from a common
judgment dated 3rd November, 2016 passed by the learned Single
Judge in F.A.O. No.183 of 2011 and O.J.C. No.399 of 2002.
2. The background facts are that Respondent No.4 institution was
established in 1985 for +2 courses. On 15th July, 1985 an
advertisement was issued for filling up of 3 Posts of Peons in the
said institution. Admittedly, on 27th July, 1985 the Selection
Committee, met and evaluated the capabilities of seven candidates
who appeared before it. These seven candidates included one Sri
Kulamani Roul as well as the present Appellant Sri Lokanath Barik
and Respondent No.1 Sri Basanta Kumar Barik. On 30th July, 1985
on the basis of the mark sheet drawn up by the said Selection
Committee, the Governing Body decided on filling up the first post
of Peon by Sri Kulamani Roul, who admittedly was first in the
merit list. The further admitted position is Respondent No.1 and the
Appellant were in the second and third position respectively in the
merit list. Both the Appellant and Respondent No.1 were appointed
as Peons on 30th July, 1985 and both of them joined on 5th August,
1985. As far as Sri Kulamani Roul was concerned, he also joined
on 5th August, 1985.
3. Learned counsel appearing for the Appellant emphasizes that
while Kulamani Roul joined at 11.10 am on 5th August 1985, the
Appellant joined on the same date at 11.25 am and Respondent
No.1 on the same day at 11.45 am.
4. The further admitted position is that Respondent No.4 became
eligible to receive 'grant-in-aid' with effect from 1st June, 1994. At
a stage when the issue of approval of the three posts of Peons and
the release of grant-in-aid was pending before the Director, Higher
Education, the present Appellant filed OJC No.14919 of 1999 in
this Court. The said writ petition came to be disposed of by the
learned Single Judge on 8th May, 2001 with a direction to the
Director, Higher Education to dispose of the representation dated
6th March, 1998 filed by the present Appellant. A further direction
was issued that while disposing of the representation, "the Director
shall look into the documents produced by the Petitioner as well as
the Annexures filed in this writ application".
5. Following the above order of this Court, the Director, Higher
Education on 18th December, 2001 passed an order treating the
Appellant as Second Peon for the purpose of the grant-in-aid. The
Director, Higher Education, further held that the selection list
prepared by the Governing Body was not correct. Further, going by
the date of birth of the three candidates, it was opined that the
Appellant herein, i.e., Sri Lokanath Barik was entitled for the post
of Second Peon in the College.
6. Aggrieved by the above order passed by the Director, Higher
Education, Orissa Respondent No.1 filed OJC No.399 of 2002. On
31st December, 2002 the Governing Body of the institution passed a
resolution fixing the inter se seniority of the Appellant and
Respondent No.1 as Second and Third Peon respectively as per the
joining time of each of them.
7. Following this, Respondent No.1 filed W.P.(C) No.5890 of 2005
claiming that he should have been appointed to the Second Post of
Peon. He sought the quashing of an order dated 15th July, 2004 of
the Deputy Director, Department of Higher Education to the effect
that the approval order issued in favour of Respondent No.1, as
Second Peon of the institution for the purpose of extension of
benefit of Block Grant "is hereby cancelled".
8. Following this, Respondent No.1 filed GIA Case No.83 of 2008
before the Education Tribunal. This case was dismissed by the
Education Tribunal on 1st March, 2011. The said order was
challenged by Respondent No.1 by way of FAO No.183 of 2011.
9. The learned Single Judge has by the impugned common order
dated 3rd November, 2016 disposed of both the aforementioned OJC
No.399 of 2002 and FAO No.183 of 2011. The learned Single
Judge noted that of the three posts, which were to be filled up by a
process of selection, the first post was filled up by Sri Kulamani
Roul on the basis of merit. Accordingly, it was held that even for
the second and third post, merit had to be the criterion and not the
date of birth. On that basis, the plea of the Respondent No.1 herein
was accepted and a direction was issued by the learned Single
Judge quashing the aforementioned order of the Director and also
the corresponding order of the Education Tribunal confirming it. A
declaration was issued that Respondent No.1 herein was senior to
the present Appellant and would be entitled to all service benefits
attached to the second post of Peon in the Respondent NO.4
institution.
10. While admitting the present appeal on 15th January 2019, it was
directed that in the mean while status quo as of that date regarding
the service condition of the Appellant as well as Respondent No.1
shall be maintained.
11. I.A.No.755 of 2021 was filed by the present Appellant for a
direction to the State Government not to release arrears in favour of
Respondent No.1 during the pendency of the writ appeal.
12. On the said IA, notice was issued on 25th August, 2021. As far
as the pleadings are concerned, the Appellant filed an affidavit
dated 26th October, 2022 inter alia placing on record a Government
Order (GO) on dated 21st October, 1982 which according to the
Appellant should govern the situation. According to the Appellant
since both he and Respondent No.1 joined on the same date, i.e., on
5th August, 1985, in terms of the said GO, the older among them
should fill up the second post of Peon and, therefore, the Appellant
should be declared senior to Respondent No.1.
13. It must be mentioned here that today, Respondent No.1 has filed
an affidavit dated 25th November, 2022 in purported reply to the
above additional affidavit of the Appellant inter alia pointing out
that even in terms of the said GO dated 21st October, 1982, which in
any event has according to Respondent No.1 no application to non-
teaching staff of non-Government aided colleges, wherever a
selection has been made even for filling up for post of Non-teaching
staff, it is the position in merit that will determine the inter se
seniority. It is pointed out that the same circular dated 21st October,
1982 clarifies this.
14. Learned counsel appearing for the Appellant placed extensive
reliance on the decision of the Division Bench of this Court in D.P.
Das v. Union of India 2011(II) OLR (SC) 728. It may be noted that
the said judgment in turn lace refers to the decision of the Supreme
Court in M.B. Joshi v. Satish Kumar Pandey AIR 1993 SC 267
which held that in the absence of any specific rule, the seniority
amongst persons holding similar posts in the same cadre has to be
determined on the basis of length of the service and "not on any
other fortuitous circumstances". It was noted in the said decision
that there was an executive instruction of 1946 in terms of which
the age of the candidate was a determining factor for seniority.
Reliance is also placed by the Appellant on the observation in Para-
34 of the said decision where it is held that for determination of
seniority of the Officers "who were recommended on the same date,
age is the only valid and fair basis...". It is accordingly submitted
that in the present case, since the Appellant is older than
Respondent No.1, he should get the second post of Peon and would
therefore be senior to Respondent No.1.
15. Learned counsel for Respondent No.1, first raised an objection
as to the maintainability of the present appeal since it was against
an order of the learned Single Judge in a writ petition challenging
the order of the Education Tribunal. It is pointed out that such writ
petition could only be under Article 227 of the Constitution and if
that were so, no further intra-Court appeal would be maintainable.
Reliance is placed on the decision in Ramesh Chandra Das v.
Kishore Chandra Das AIR 2007 Ori 146.
16. On merits, Mr. K.K. Swain, learned counsel appearing for the
Respondent No.1 has placed reliance on the decisions in Chairman,
Puri Gramya Bank v. Anand Chandra Das (1994) 6 SCC 301,
Suresch Chandra Jha v. State of Bihar (2007) 1 SCC 405 and
Bimlesh Tanwar v. State of Haryana (2003) 5 SCC 604.
17. The above submissions have been considered. As regards the
issue of maintainability, it does appear that there is doubt whether
the present appeal would be maintainable. In Ramesh Chandra Das
v. Kishore Chandra Das (supra), this Court, after surveying the
existing case law, came to the conclusion that such an appeal as the
present one would not be maintainable before the Division Bench
of the Court. It is pointed out that the subsequent full Bench of this
Court in Mahammed Saud v. Dr. (Maj) Shaikh Mahfooz 2008(II)
OLR (FB) 725 has upheld this position. In particular, one of the
conclusions reached there was that "no Letters Patent Appeal shall
lie against the judgment/order passed by a learned Single Judge in
proceedings arising out of Special Acts".
18. Although the Court is satisfied that this writ appeal is not
maintainable in view of the legal position explained above, the
appeal has nevertheless also been examined on merits.
19. The admitted position is that there was a Selection Committee
which assessed the capabilities of the candidates including Sri
Kulamani Roul, the Appellant and the Respondent No.1 herein and
prepared a merit list giving individual marks to each of the
candidates. Kulamani Roul stood first in the merit list with 43
marks, Respondent No.1 with 41 marks and the Appellant herein
got 37 marks.
20. The further admitted position is that Kulamani Roul was
appointed against the first post of Peon on the basis of his
performance in the selection by securing the highest marks in the
merit list. Interestingly, the Appellant is not aggrieved by the
selection of Kulamani Roul on the above basis.
21. The next question that arises is whether there is any the rule that
governs the question of seniority. Here, it must be noted
straightway that neither before the Tribunal nor before the learned
Single Judge was any particular rule cited that would govern the
issue of seniority. It is in this context that the affidavit filed by the
Appellant in the present appeal relying on the GO dated 21st
October, 1982 is relevant. Even if one were to accept that the above
GO of the Government would apply since there is no other specific
rule, it is seen that in sub para (iii), it is clarified as under:
"(iii) In case of appointments made on the
recommendation of the Selection Board between the 1st
Dec.1976 and the 23rd Oct.1981, the inter-se-seniority
may be fixed in accordance with the position assigned to
them by the Selection Board in the merit list. This
category will enbloc be junior to category (ii) above."
22. It is, therefore, not correct to contend that in terms of the above
circular, date of birth or age alone would be the criteria. It is only
where there is no such criteria that the other sub-paras of the
circular would apply and seniority be determined, in case of two
candidates joining on the same date, on the basis of their respective
dates of birth.
23. The decision in D.P. Das v. Union of India (supra) is not
particularly helpful to the Appellant in this context. There, the
decision turned on a particular executive instruction of 1946. Even
in terms of the circular referred to by the Appellant, it is not as of
the date of birth will be the sole criteria. It is only when there is no
selection held will such criteria apply.
24. If one were to proceed on the basis that there is in fact no rule
on the basis of which seniority should be fixed, then the decision in
Bimlesh Tanwar v. State of Haryana (supra) would become
relevant. There it was observed, relying on the decision in
Chairman, Puri Gramya Bank v. Anand Chandra Das (supra) as
under:
"In this case also, although there does not exist any
statutory rule but the practice of determining inter se
seniority on the basis of the merit list has been evolved on
interpretation of the rules. A select list is prepared
keeping in view the respective merit of the candidates.
Not only appointments are required to be made on the
basis of such merit list, seniority is also to be determined
on that basis as it is expected that the candidates should
be joining their respective posts almost at the same time.
Yet again in Chairman, Puri Gramya Bank v. Ananda
Chandra Das (1994) 6 SCC 301 this Court held: (SCC
p.301, para 2)
It is settled law that if more than one are selected, the
seniority is as per ranking of the direct recruits subject to
the adjustment of the candidates selected on applying the
rule of reservation and the roster. By mere fortuitous
chance of reporting to duty earlier would not alter the
ranking given by the Selection Board and the arranged
one as per roster. The High Court is, therefore, wholly
wrong in its conclusion that the seniority shall be
determined on the basis of the joining reports given by
the candidates selected for appointment by direct
recruitment and length of service on its basis."
25. Again, in Suresh Chandra Jha v. State of Bihar (supra) the
same principle was adopted and after referring to the decision in
Chairman, Puri Gramya Bank v. Anand Chandra Das (supra), it
was observed as under:
"8. Since there was no rule in operation, obviously the
ranking in the merit list was to decide the respective
seniority. The ratio in Chairman, Puri Gramya Bank v.
Ananda Chandra Das (1994) 6 SCC 301 has full
application to the facts of the case. The appellant's claim
that he was to be treated as senior to the respondent no.8
was rightly accepted by learned Single Judge.
Unfortunately, the Division Bench did not address itself
to the specific question and has placed undue stress on the
respondent no.8 having joined earlier."
26. Therefore, even if one were to presume that there is no rule, it is
plain that once a selection has taken place, it is merit which will
govern the issue of inter se seniority of the candidates. The learned
Single Judge was right in observing that with the first post of Peon
having been filled up on the basis of merit, since Kulamani Roul
was the highest in the order of merit and was accordingly appointed
to the first post of Peon, the question of changing the criteria when
it came to the appointments to the second and third posts of Peon
did not arise. The learned Single Judge rightly noted that if age
were to be the criteria, then Kulamani Roul being the youngest,
could not have possibly been appointed to the first post of Peon.
27. Interestingly, the Appellant has not challenged the appointment
of Kulamani Roul on the basis of merit. It is therefore obvious that
in this particular case, the appointments to the various posts were
not on the basis of either the dates of birth or the lengths of service
but on the basis of merit in the selection that took place. Since that
was the criteria, the inter se seniority of the Appellant and
Respondent No.1 had to be fixed only on the basis of merit and not
otherwise.
28. For all of the aforementioned reasons, the Court is unable to
find any error having been committed by the learned Single Judge
and the impugned judgment of the learned Single Judge is
accordingly calls for no interference.
29. The appeals are accordingly dismissed but in the circumstances
with no order as to costs. The interim order passed earlier stands
vacated.
(Dr. S. Muralidhar)
Chief Justice
(M.S. Raman)
Judge
S. Behera
