Orissa High Court
Ramesh Chandra Mishra vs State Of Odisha & Another on 14 October, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
WPC(OA) No.1627 of 2019
Ramesh Chandra Mishra .... Petitioner
-versus-
State of Odisha & another .... Opp. Parties
For Petitioner Mr. Dayananda Mohapatra,
M.R. Pradhan, M. Mohapatra,
J.M. Barik and
P.K. Singhdeo
For Opposite Parties : : Mr. P.C. Das,
Addl. Standing Counsel
CORAM:
JUSTICE A.K. MOHAPATRA
_____________________________________________________
Date of hearing : 19.05.2022 | Date of Judgment: 14.10.2022
______________________________________________________
A.K. Mohapatra, J. :
1. The instant writ application, which has been registered as
WPC(OA) No.1627 of 2019, has been registered after re-
registering O.A. No.1627 of 2019, which was transferred to this
Court after abolition of the Odisha Administrative Tribunal.
2. Initially, the Petitioner as applicant had filed the O.A.
before Odisha Administrative Tribunal, Principal Bench,
Bhubaneswar with the following prayer:-
// 2 //
"I. The final gradation list as under Annexure-22 may be
quashed and the order dated 20.03.2017(Annexure-
23) may be declared as incorrect, and
II. The respondent no.1 may be directed to declare the
applicant as promoted to the rank of Section Officer
w.e.f. 12.01.1998/16.11.1998 when Sri Gagan Bihari
Tripathy was so promoted, or
III. In the alternative declare the applicant as promoted as
Section Officer w.e.f. 22.12.2006 when Sri Hare
Krushna Panda was promoted as Section Officer, and
IV. Issue appropriate direction to pay the actual financial
benefit w.e.f. 12.01.1998 or 22.12.2006 as the case
may be to the applicant on the basis of such
retrospective promotion.
V. Pass any appropriate order/direction as per deem fit
and proper for which the applicant shall ever pray."
3. Heard Mr. D. Mohapatra, learned counsel appearing on
behalf of the petitioner and Mr. P.C. Das, learned Additional
Standing Counsel appearing on behalf of the State opposite
parties. Perused the pleadings of the respective parties, the
documents filed as Annexures and relied upon by the parties.
4. The case of the petitioner, as culled out from the writ
petition as well as rejoinder filed by him, is that the applicant
joined in service initially as an L.D. Assistant in the High Court
// 3 //
of Orissa (subsequently re-designated as Junior Assistant) on
01.03.1982. On being relieved from service by the Hon'ble High
Court of Orissa on 17.12.1985, the applicant joined in the
judgeship of Puri on 20.12.1985 and was posted as Junior Clerk,
he was allowed to join on deputation as Junior Assistant in Odisha
Administrative Tribunal and as such joined at new place of
posting as Junior Assistant in the Odisha Administrative Tribunal
on 01.10.1986. Thereafter while working in the Odisha
Administrative Tribunal, the petitioner was promoted to the post
of Senior Assistant on 30.01.1990. It may not be out of place to
mention here that one Sri Gagan Bihari Tripathy joined at the
Odisha Administrative Tribunal on deputation on 31.10.1990 as
Senior Assistant.
5. While the matter stood thus, on 29.12.1995, a provisional
gradation list concerning the Senior Assistants working in the
Odisha Administrative Tribunal was published showing the name
of Sri Gagan Bihari Tripathy above the present petitioner.
Although objections were called for before finalizing the
gradation list, however, after considering such objections, the
final gradation list was published on 06.02.1998 showing the
above named Sri Gagan Bihari Tripathy above the present
// 4 //
petitioner. However, it has also been asserted by the petitioner
that before the final gradation list was published on 06.02.1998,
the above named Sri Gagan Bihari Tripathy was promoted as
Section Officer on 12.01.1998 on officiating basis for a period of
six months. Challenging the final gradation list dated 06.02.1998,
the petitioner approached the Orissa Administrative Tribunal by
filing O.A. No.1962 of 1998 on 29.10.1998. The above named
Gagan Bihari Tripathy was arrayed as respondent no.6 to the
above noted O.A. Sri Gagan Bihari Tripathy was regularly
promoted to the post of Section Officer on 16.11.1998. Though
OAT while taking up the above noted O.A. passed an interim
order to the effect that any further action taken / to be taken in
pursuance of the gradation list shall be subject to result of O.A.
and in case the final gradation list is setting aside and quashed and
the petitioner is declared as senior to the private respondent, they
would be entitled to past benefits. It is pertinent to mention here
that O.A. No.1962 of 1998 along with O.A.1990 and O.A. No.197
of 1999 were heard analogously and allowed vide judgment dated
13.04.2007 thereby quashing the provisional gradation list of
Senior Assistants dated 29.12.1995 and final gradation list dated
06.02.1998 and further directed the opposite party authority to
prepare a fresh gradation list in accordance with Orissa
// 5 //
Administrative Tribunal (Recruitment and Conditions of Service
of Officers and Staff) Rules, 1999 (hereinafter referred to as "the
Rules, 199")
6. The common judgment dated 13.04.2007 passed in O.A.
No.1962 of 1998 along with a batch of similar other matters was
challenged before this Court by filing a writ petition bearing
W/P.(C) No.10114 of 2007. The order passed by the Orissa
Administrative Tribunal was confirmed by this Court vide
judgment dated 09.03.2011 in W.P.(C) No.10114 of 2005 and
judgment dated 21.04.2011 in W.P.(C) No.10717 of 2007.
Thereafter, again another revised gradation list of Senior
Assistants was published on 10.11.2013. In the said gradation list,
the petitioner was placed at Sl. No.8 below his juniors. It has also
been mentioned that on the basis of the seniority of the present
petitioner, he should have been placed at Sl. No.01 in the
gradation list dated 10.10.2013.
7. The petitioner being aggrieved by the action of the
opposite parties authorities, filed another O.A. bearing O.A.
No.2152(C) of 2013, which was allowed on 11.03.2015 directing
that the applicant should be given all consequential benefits
service and financial benefits from the date when his juniors got
// 6 //
such benefits. It is further relevant to mention here that the order
of the Tribunal in O.A. No.2152(C) of 2013 was confirmed by
this Court in W.P.(C) No.6318 of 2015, which was filed by one
Goura Prasad Pattanaik and another and another writ petition
bearing W.P.(C) No.1238 of 2016 at the instance of the Registrar,
OAT.
8. The order/direction passed by the Tribunal in O.A.
No.2152(C) of 2013 was confirmed by this Court and the same
was not challenged by anybody thereafter. The limited grievance
of the petitioner in the present writ petition is that pursuant to the
order/direction passed by the OAT in O.A. No.2152(C) of 2013,
the petitioner was given retrospective promotion by the Opposite
parties as Section Officer vide order dated 20.03.2017. However,
the said retrospective promotion was given w.e.f. 20.11.2013
when Sri Pavash Chandra Mishra, who was posted as Senior
Assistant on 30.03.1990 after the applicant, was promoted as
Section Officer instead of giving promotional benefits w.e.f.
12.01.1998 when Sri Gagan Bihari Tripathy (retired since
30.06.2005) was promoted as Section Officer.
9. On careful examination of the pleadings, it appears that
the present case involves a dispute with regard to inter se seniority
// 7 //
of the employees of OAT and further the discriminatory treatment
meted out to the petitioner while consider his case for promotion
to the post of Section Officer to decide the issue involved in the
present writ petition certain dates are important which are
mentioned herein below:-
Sl. Name of the Date of entry into Reference
No. candidate the present grade
1. Ramesh 01.03.1982 The petitioner was
Chandra appointed as L.D. Assistant
Mishra in High Court of Orissa
2. 20.12.1985 The petitioner was
transferred to the judgeship
of Puri.
3. 01.10.1986 The petitioner was brought
in deputation to the Orissa
Administrative Tribunal.
4. 30.01.1990 The petitioner was
promoted to the post of Sr.
Assist. On regular basis.
5. Pravash 30.03.1990 Pravash Chandra Mishra
Chandra appointed as Sr. Assist. In
Mishra OAT
6. Gagan Bihari 31.01.1990 Gagan Bihari Tripathy
Tripathy appointed as Sr. Assist. In
OAT
7. 12.01.1998 Gagan Bihari Tripathy was
promoted as Section Officer
(Level-II for officiating
basis.
8. 16.11.1998 Gagan Bihari Tripathy was
given regular promotion as
Section Officer Level-II.
9. 06.02.1998 Final gradation list was
published
10. 30.06.2005 Gagan Bihari Tripathy
retired from his service
11. 13.04.2007 O.A. No.1962 of 1998 was
allowed thereby quashing
the provisional as well as
final gradation list.
12. 09.03.2011 Order of OAT dated
13.04.2007 was confirmed
// 8 //
by this Court.
13. 10.10.2013 Another final gradation list
of Sr. Assist. was published
placing the petitioner under
his juniors therein. O.A.
No.2152(C) of 2013 was
filed by the petitioner
challenging the gradation
list dated 10.10.2013.
14. 13.11.2015 One Pravash Chandra
Mishra was promoted to the
post of Section Officer.
15. 11.03.2015 O.A. No.2152(C) of 2013
was allowed thereby
quashing the final gradation
list and with a direction to
prepare a fresh gradation
list following the Rule-5(2)
of the Recruitment Rules.
16. 03.12.2016 W.P.(C) No.6318 of 2015
filed challenging the order
dated 11.03.2015.
W.P.(C) No.6318 of 2015
was dismissed confirming
the order dated 11.03.2015
passed by the Tribunal.
17. 03.03.2017 Another final gradation list
of Sr. Assist. was published
pursuant to the order dated
11.03.2015. However, the
petitioner was not given as
due promotion as he is
entitled to as per law.
18. 20.03.2017 The petitioner was
promoted as Section Officer
w.e.f. 20.11.2013 and
showing Pravash Chandra
Mishra as his immediate
junior. However, the
seniority of the petitioner
vis-à-vis Gagan Bihari
Tripathy, who had directed
by then, has not been
considered by the opposite
parties authorities.
19. 15.12.2017 The petitioner submitted
representation claiming the
benefit at par Gagan Bihari
Tripathy.
20. 27.06.2019 Representation submitted
// 9 //
by the petitioner was
rejected by the authority
21. 2019 O.A. No.1627 of 2019 was
filed, which was later on
transferred to this Court and
re-registered as WPC(OA)
No.1627 of 2019.
10. Both the opposite parties have filed joint counter affidavit
opposing the prayer made in the writ petitioner. On a careful
examination of the pleading in the counter affidavit, this Court
observed that the opposite parties have taken stand that since
Gagan Bihari Tripathy and Harekrushna Panda have retired from
their services in the meantime and their promotion have been
specifically challenged in O.A. No.2152 (C) of 2013, raising such
an issue at this stage would be barred by limitation. Further by
referring to Rule-5(2) of the Rules, 1999, the opposite parties
have asserted that they have acted in conformity with the said
Rules, 1999. Further, it has been asserted on behalf of the
opposite parties that the gradation list under Annexure-9 which
was quashed by the Tribunal vide order dated 11.03.2015 in O.A.
No.2152 (C) of 2013, the name of Sri Gagan Bihari Tripathy was
not there in the said gradation list as he had retired by then and it
has also been stated that the names which were included in the
said gradation list have been taken into consideration vis-à-vis the
// 10 //
seniority of the present petitioner and accordingly final remedy
has been worked out and the petitioner has been given promotion.
11. In paragraph-5 of the counter affidavit, it has been stated
that in the year 1998 when Sri Gagan Bihari Tripathy was
promoted to the post of Section Officer, the present petitioner was
not eligible for consideration for promotion to the post of Section
Officer as he had not completed 9 years of service as Senior
Assistant in OAT. In O.A. No.1962 of 1998, it was argued by
learned counsel for the State that as per the observation in the said
order the persons who have already retired and have got benefit
out of the absorption their cases would not be reopened.
Therefore, learned Additional Standing Counsel submits that the
petitioner cannot claim parity with Sri Gagan Bihari Tripathy and
Sri Harekrushna Panda as they have already retired from their
services by the time final gradation list was published.
Considering the said submissions and further examining the
relevant order, this Court is of the considered view that the
aforesaid order was only intended to protect the two employees,
who had already retired by then and as such it was directed by the
OAT not to reopen their cases and further this Court is of the
considered view that there is no bar in law to consider the case of
// 11 //
the petitioner by taking into consideration the facts pertaining to
aforesaid two employees. Moreover, the order of the Tribunal
passed earlier and confirmed by this Court, wherein a direction
was given to re-draw the gradation list cannot be given a narrow
and restrictive interpretation whereby the employees who had
retired by the time final gradation list was published are to be
ignored and further the petitioner is debarred to claim parity with
the aforesaid two employees merely because they have retired in
the meantime. It appears that the opposite parties have interpreted
the direction of the OAT according to their sweet will and not in
terms of the direction issued by the Tribunal and confirmed by
this Court. This issue shall be dealt elaborately later on in the
judgment.
12. It is contended by learned counsel for the State that
pursuant to the direction of the Tribunal confirmed by this Court a
DPC meeting was held on 10.03.2017 to consider the case of the
present petitioner and to give him retrospective promotion at par
with the Section Officer who were continuing their service at that
time. Further, it is submitted that one Sri Pavash Chandra Mishra
was the senior most Section Officer at that time, who got his
promotion w.e.f. 20.11.2013. Accordingly, the DPC has
// 12 //
recommended for granting retrospective promotion to the
petitioner and consequential benefits w.e.f. 20.11.2013. Further,
on careful reading of the pleadings at paragraph-6 of the counter
affidavit, it is seen by this Court that the opposite parties have
categorically stated in their counter affidavit that pursuant to the
order dated 11.03.2015 passed by the OAT objections were
invited and pursuant to such invitation, the petitioner along with
another person, namely, Sri Pramod Chandra Pattanaik submitted
their objections. It has also been stated in the counter affidavit
that the petitioner submitted his objection inter alia claiming
seniority of Section Officer from the year 1998 at par with Sri
Gagan Bihari Tripathy. Further, it is stated that after due
consideration, the representation of the petitioner was rejected and
final gradation list was published. Therefore, learned counsel for
the State emphatically submits that the direction issued by the
Tribunal in OA No.1962 of 1998 and OA No.2152(C) of 2013 has
been carried out in its letter and spirit and as such, the opposite
parties have not committed any wrong/illegality. Besides the
contentions of learned counsel for the State, this Court clearly
observed that the petitioner in his representation has raised issue
of his seniority above or at par with Sri Gagan Bihari Tripathy
although the same was rejected by the authorities.
// 13 //
13. The petitioner has filed rejoinder affidavit in reply to the
counter affidavit jointly filed by the respondents. In the rejoinder
affidavit, the petitioner has categorically asserted that he was
appointed to the rank of Senior Assistant on 30.01.1990 whereas
the above named Sri Harekrushna Panda and Sri Gagan Bihari
Tripathy were appointed in the Tribunal as Sr. Assistants on
28.08.1990 and 31.10.1990 respectively. Further, it has been
mentioned in the rejoinder that the petitioner was allowed a scale
of pay of Rs.1400/- whereas the other two employees referred
hereinabove were allowed a scale of pay of Rs.1200/- before they
entered into the cadre of Odisha Administrative Tribunal. It has
also been stated in the rejoinder affidavit that the first O.A.
bearing O.A. No.1962 of 1998 was filed by the petitioner
challenging the promotion of the above named two persons and
since then the litigation is continuing although in the meantime
above named two persons have retired from their services. It is
further contended that the above named two persons were also
opposite parties in O.A. No.1962 of 1998. Further, it has been
stated that most unfortunately in their show-cause affidavit filed
in C.P. No.214(C) of 2018 arising out of O.A. No.2152 (C) of
2013 they have misled the Court and made false and wrong
statement by stating that they were not arrayed as party in O.A.
// 14 //
No.1962 of 1998. On such grounds, learned counsel for the
petitioner vociferously argued that the grounds taken by the
opposite party to the effect that the claim is barred by limitation,
is unsustainable in law in view of the facts mentioned
hereinabove. In the rejoinder affidavit it has also been stated on
behalf of the petitioner that the Tribunal was mislead by the
opposite parties by suppressing the 2nd proviso Rule-5(2) of the
OAT Recruitment Rules, 1999. The said proviso reads as
follows:-
"Provided further that the service rendered by an
officer/employee in the Tribunal before the
commencement of these rules shall be reckoned towards
counting of seniority and eligibility for promotion to the
next higher grade in the Tribunal."
14. Further, it has also been clarified in the rejoinder that
though the above named Sri Gagan Bihari Tripathy was a party in
the first O.A., but he was not arrayed as opposite party to the
subsequent O.A. which was filed by the petitioner as Sri Gagan
Bihari Tripathy had retired from his service by then. The
petitioner has reiterated his assertion with regard to his seniority
over Sri Gagan Bihari Tripathy. Moreover, it has been contended
that the order dated 13.04.2007 passed in O.A. No.1962 of 1998
// 15 //
does not affect the rights of the present petitioner adversely and
the observations made in the said order which is only intended to
protect the financial benefits released in favour of the retired
employees and further nowhere in the said judgment, the relief
sought for by the petitioner has been either denied and made
subject to certain conditions. The direction of the Tribunal vide
order dated 13.04.2007 was very clear and comprehensive i.e. to
consider the case of the petitioner and to prepare gradation list
afresh in terms of the rules governing the field.
15. Having heard learned counsel for the respective parties
and upon careful consideration of the pleadings of the respective
parties, this Court is of the considered view that to resolve
anomaly, the directions/order issued earlier by the Tribunal and
confirmed by this Court needs to be looked into at the first
instance and thereafter the applicability of the rules governing the
field to the facts of the present case shall also be considered by
this court. On perusal of the order dated 13.04.2007 passed in
O.A. No.1962 of 1998 and a batch of other cases, it appears that
the said O.A. was disposed of with the following directions:-
"9. In conspectus, we dispose of the application with
the following directions:-
// 16 //
(i) Annexure-6 (dated 29.12.1995), 7 (dated
29.12.1995) and 12(dated 6.2.1998) are quashed in so far
as these apply to deputationists including the applicants
and private party respondents.
(ii) All the persons other than direct recruits to the
Tribunal who came from different departments will have
to go now through the fresh process of absorption. They
would have to be asked for their willingness for
absorption; they would be given terms and conditions as
contained in the Rules and thereafter on the basis of their
option they would be considered for absorption in the
Tribunal Surviving liens on the date of absorption which
were unilaterally terminated by the borrower would stand
revived if an employee is not willing to be absorbed in the
Tribunal and wishes to revert to his parent department at
his own risk. The modalities of revival of lien will
however be settled in consultation with the lending
Department. The date of absorption in respect of the
members of a cadre at the entry grade in the Tribunal
would be one single date. Their inter se seniority would be
in accordance with the Rules.
(iii) A gradation list will be published on the basis of
seniority so determined. Promotions already made be
reviewed in the light of this decision.
(iv) Those who have already retired and have got any
benefit out of the absorption orders now quashed, their
cases would not be reopened.
(v) This entire exercise be completed within a period
of three months from the date of receipt of a copy of these
// 17 //
orders. Until then, status quo as on the date be
maintained."
On a careful reading of the aforesaid directions, it appears
that :-
(i) Both the gradation list of the year 1995-1998 were
quashed which includes private respondents and such
private respondents including Sri Gagan Bihari Tripathy-
respondent no.6 and Sri Harekrushna Panda-respondent
no.8.
(ii) The date of absorption in respect of the members
of a cadre at the entry would be one single date and their
inter se seniority would be in accordance with rules.
(iii) Gradation list would be prepared afresh on the
basis of the seniority, so determination and promotion
already made be reviewed in the light of the decision.
(iv) Those who have already retired and have got the
benefits absorption orders and now quashed, their cases
should not be reopened.
(v) The entire exercise shall be completed within a
period of three months from the date of receipt of copy of
the order and until then status quo as on the date be
maintained. Therefore, it is crystal clear that the
provisional gradation list and final gradation list, 1998
were quashed by the Tribunal. Further it is clarified that
the same shall be applied to the private respondent nos.6
and 8. Further, a direction was given to review the
promotion already given in paragraph-9.
// 18 //
(vi) The direction issued by the Tribunal, which is
being interpreted by the opposite parties to restrict the
petitioner's promotion from the year 2013, according to
this Court can only be interpreted in only one way i.e. the
benefits which has accrued and release in favour of the
retired employees shall not be reopened and reconsidered
and as such, a limited protection was given to the retired
employees with regard to the financial benefits that has
been paid to them in the meantime. Thus, on conspectus of
the order dated 13.04.2007, this Court is of the humble
view that there exists absolutely no ambiguity in the said
order, which has been confirmed by this Court in W.P.(C)
No.10114 of 2007 vide judgment dated 09.03.2011 and
the same has attained finality as the judgment of this Court
has not been challenged any further. Moreover, while
disposing of the said writ petition, a Division Bench of
this Court has categorically held that the Tribunal has
recorded valid cogent and reason for setting aside the
impugned order challenged in the Tribunal and we do not
find any good reason to interfere with the same and that no
prejudice is likely to be caused as the matter is being
remanded to be considered for regularization / absorption
of employees in accordance with the Rules.
16. After the matter was remanded the authority again
prepared final gradation list dated 10.10.2013 without considering
the case of the present petitioner in the light of the direction
issued by the Tribunal earlier vide their order dated 13.04.2007.
The petitioner had no alternative than to challenge the same by
filing another O.A. No.2152(C) of 2013 wherein the private
// 19 //
parties were also arrayed as opposite parties except Sri Gagan
Bihari Tripathy, who had retired by then. After hearing learned
counsel for the respective parties and upon a careful consideration
of records and the facts presented before the Tribunal, the
Tribunal vide its well reasoned and detailed order dated
11.03.2015 has come to a definite conclusion that in the earlier
O.A. which was confirmed by this Court, the only requirement
was to prepare a fresh gradation list by following the rules and
fresh gradation list so prepared and which was not challenged in
O.A. No.2152 (C) of 2013 has not been prepared by following
rules, therefore, such gradation list was again set aside and the
matter was again remanded back to the authorities to consider the
case afresh and to prepare gradation list following (the proviso to
Rule-5 of the Rules, 1999 within a period of two months from the
date of receipt a copy of the order and further it was directed to
place the petitioner at the appropriate position taking into
consideration his past service in High Court w.e.f. 01.03.1982 and
to extend all consequential service and financial benefits to him
from the date his juniors got such benefits. The order dated
11.03.2015 was further challenged in W.P.(C) No.6315 of 2015
and a Division Bench of this Court disposed of the said writ
petition vide judgment dated 03.12.2016 by categorically holding
// 20 //
that the Tribunal has not committed any error in passing the order
and accordingly, the writ petition was dismissed and the order
passed by the Tribunal was confirmed.
17. After disposal of the O.A. and the writ petition, the DPC
was again held on 10.03.2017 and considered the case of the
present petitioner. Upon consideration of the case of the
petitioner, the petitioner was promoted to the post of Section
Officer in the scale of pay of Rs.9300-34,800/- with grade pay
Rs.4600/- per month with usual D.A. and other allowances from
time to time w.e.f. 20.11.2013. It is further stated that by virtue of
an office order dated 20.03.2021 under Annexure-23, the
promotion was given w.e.f. 20.11.2013 A.N. i.e. on which date
the immediate junior to the petitioner one Sri Pravash Chandra
Mishra had joined as Section Officer on promotion. Thereafter,
the petitioner again submitted his representation dated 15.12.2017
questioning the action of the DPC in giving him promotion w.e.f.
20.11.2013 and further a specific stand was taken by the
petitioner that the order dated 20.03.2017 and the decision of the
DPC held on 10.03.2017 is not in conformity with the direction
issued by the Tribunal which has been confirmed by this Court.
Further, in the representation the petitioner has taken a specific
// 21 //
stand that the petitioner is a promote to the rank of Senior
Assistant whereas one Sri Gagan Bihari Tripathy is a direct
recruitee to the rank of Senior Assistant. He has further asserted
that the said Sri Gagan Bihari Tripathy was not eligible to be
promoted to the post of Section Officer as he had not rendered
nine years of service as Senior Assistant and further employees
senior to him was available for promotion at the relevant point of
time.
18. So far as the case of the petitioner is concerned, the
petitioner claimed seniority and the promotion to the post of
Section Officer either above or at par with one Sri Gagan Bihari
Tripathy and Harekrushna Panda. Admittedly, both of them
joined as Senior Assistant in the Tribunal after the petitioner was
promoted to the post of Senior Assistant w.e.f. 30.01.1990.
Further on careful reading of the earlier orders passed by the
Tribunal and confirmed by this Court, it appears that the sum and
substance of such orders passed by the Tribunal is that the
gradation list was set aside and the matter was remanded to
consider the seniority and the gradation list afresh strictly in terms
of the rules. Therefore, to decide the issue involved in the present
case, it is imperative that the Rule-5 be looked into at this stage.
// 22 //
Rule-5 of the Orissa Administrative Tribunal (Recruitment of
service of Officers and staffs) Rule, 1999, provides as follows:-
"Rule-5: Appointment by way of Deputation.
(1) The Officers or employees who come to the Tribunal
on deputation from different Departments of the
Government, State Government Undertakings, High Court
or the Subordinate Judiciary may be absorbed in the
Tribunal on exercising option, on the orders of the
Chairman passed in consultation with the concerned
lending authority.
(2) The Officers or employees so absorbed in any post or
the service shall not claim seniority accrued to them in
their parent Departments or Offices :
Provided that the seniority inter se of the officers or the
employees so absorbed in the Service shall count from the
date of their absorption in any cadre of the Service and if
two or more persons are absorbed in a particular grade on
the same day, their inter se seniority shall be decided by
taking into consideration the period of their past services
rendered in their parent Departments/Offices:
Provided further that the services rendered by an
officer/employee in the Tribunal before the
commencement of these rules shall be reckoned towards
counting of seniority and eligibility for promotions to the
next higher grade in the Tribunal."
19. The fact of the present case, it is needless to say depends
on the interpretation of the Rules 1999. The first limb of the rule
// 23 //
provides that the officers and employees who have been
appointed on deputation from Government/Departments may be
absorbed in the Tribunal on exercising option and the officers and
the employees so absorbed shall not claim seniority accrued to
them in their parent departments or offices. Therefore, it is crystal
clear that service rendered by an employee in the parents
department cannot be taken into consideration for determination
of the inter se seniority and in this context, learned counsel for the
petitioner relied upon the judgment of the Hon'ble Supreme
Court. Therefore, there is no dispute with regard to the
proposition that counting of past service in the parent department
or office towards seniority is no more open for adjudication in this
case in view of the aforesaid clear pronouncement of law.
Moreover, in order to determine the inter-se-seniority, the Rule-5
provides a clear procedure to be followed:-
"Only expectation is that when it is found that two or
more employees have been absorbed on a particular grade
on the same day, their inter se seniority shall be diced by
taking into consideration the part of their past service
rendered in their parent department/office."
20. So far the promotion in the next higher grade is
concerned, proviso to Rule-5 provides that the service rendered
// 24 //
by an officer and an employee before joining at the Tribunal and
before commencement of the relevant Rules shall be reckoned
towards counting of seniority to be eligible for promotion to the
next higher grade in the Tribunal. On a careful consideration of
the impugned judgment, it appears that the Tribunal has
proceeded by accepting 09.03.2011 as a single date for entry into
the grade in question in the Tribunal. Moreover, the tribunal has
already rightly held that the undertaking of the petitioner while he
was continuing in service in Puri Judgeship to the effect that he
shall not claim seniority and would be treated as a junior most
clerk is a condition and undertaking vis-à-vis other employees in
Puri Judgeship. Therefore, the petitioner is not bound by such
undertaking in the facts of the present case, which is completely
different.
21. Language is used in Rule-5 of 1999 Rules, is very clear
and un-ambiguous. Therefore, the case of the petitioner is to be
considered strictly in terms of Rule-5. On perusal of the letter
dated 20.091986 (Annexure-1), it appears that the petitioner was
appointed, initially, for a period of two years on deputation with
the condition that subject to suitability he would be permanently
absorbed. Thereafter, vide letter dated 30.01.1990 under
// 25 //
Annexure-2, the petitioner along with others were provisionally
promoted to the rank of senior assistant till they are considered for
regular appointment under the recruitment rules in the Tribunal.
Similarly, Sri Pravash Chandra Mishra was provisionally
promoted to the rank of Senior Assistant by order dated
30.03.1990. Further vide order dated 19.10.1990 under Annexure-
4 Sri Gagan Bihari Tripathy, Senior Clerk in the office of the
Deputy Director, was appointed as Senior Assistant on deputation
for a period of two years subject to conditions that if found
suitable, he will be absorbed in the Tribunal. Further a careful
scrutiny of order dated 29.12.1995 publishing the provisional
gradation list, it is seen as follows:-
Sl. No. Name Date of entry into Date of
present grade confirmation
1. Jagannath Mohanty 11.7.86 -
2. Gangadhar Mohanty 13.4.87 -
3. Gagan Bihari Tripathy 31.10.90 30.10.92
4. Basanta Kumar Nath 28.2.87 28.2.89
5. Sunakar Jena 6.3.87 6.3.89
6. Srikanta Dhal 31.1.90 31.1.91
7. Biraj Kumar Routray 3.2.88 3.2.89
8. Harekrushna Panda 28.8.90 28.8.91
// 26 //
9. Saroj Ku. Pattnaik 30.10.90 30.10.92
10. Dharanidhar Mallik(S.C.) 26.10.90 30.10.92
11. Kabiraj Muduli 30.1.90 30.1.91
12. Bibhuti Bhusan Das 30.1.90 30.1.91
13. Ajit Kumjar Panigrahi 30.1.90
14. Ramesh Chandra Mishra 30.1.90 30.1.91
15. Madhab Ch. Dash 30.1.90 30.1.91
16. Hadibandhu Behera (S.T.) 30.1.90 30.1.91
17. Nidhiram Panda 30.1.90 30.1.91
18. Pravash Chandra Mishra 30.3.90 30.3.91
19. Pramod Ch. Pattnaik 13.1.93
20. Gour Prasad Pattnaik 30.3.90 30.3.91
21. Prasant Ku. Sahu 30.3.90
22. Nimai Ch. Panda 13.1.93
23. Pravash Ch. Mohapara 13.1.93
24. Asish Ku. Pattnaik 30.3.90 30.3.91
25. Amulya Ku. Dhalasamanta 13.1.93
Although the said gradation list was quashed by the Tribunal,
however, facts stated therein would be referred to for the limited
purpose of considering the date of entry and the date of
confirmation mentioned therein which are undisputed.
// 27 //
22. On a careful scrutiny of such facts, it appears that the
present petitioner had joined in the grade of Junior Assistant prior
to Gagan Bihari Tripathy and Harekrushna Panda as well as
Pravash Chandra Mishra. Further his date of confirmation is also
much prior to the confirmation of service of the persons referred
to hereinabove. However, ignoring the said fact the OAT issued a
letter on 12.01.1998 availability promoting the above named
Gagan Bihari Tripathy to the post of Section Officer. Prima facie
it appears that the said promotion has been given in violation of
the rules as well as by ignoring the rule of seniority. Therefore,
the gradation list prepared by the OAT has been rightly set aside
by the Tribunal as well as by this Court.
23. Now by applying principle laid down Rule-5, the
petitioner, who had joined in the rank of senior assistant on
30.01.1990 and accordingly confirmed on 30.01.1991 should have
been considered for promotion to the next higher level i.e. Section
Officer prior to or along with the above named Gagan Bihari
Tripathy in view of the provisions contained in Rule-5. This Court
is utterly surprised to learn that such clear and unambiguous rule
has not been understood by the officers of the Administrative
Tribunal thereby compelling the petitioner to repeatedly approach
// 28 //
the Tribunal as well as this Court thereby causing mental
harassment. Such conduct and approach on the part of the
Registry of the Tribunal is viewed very seriously by this Court.
However, since the Tribunal has already been abolished, there is
no meaning in giving direction to again consider the gradation list
and place the petitioner as per his seniority in the said gradation
list. Further by now all the employees must have been retired
from service. This Court is also of the considered view that the
decision of the DPC to give promotion was held on 10.03.2017 by
giving promotion to the petitioner w.e.f. 20.11.2013 equating the
petitioner with his junior Pravash Chandra Mishra, who had also
been given promotion on that date, is clearly illegal and is an act
of blatant violation of the rules. Accordingly, the order dated
20.03.2017 under Annexure-23 and all consequential orders
thereto are hereby quashed. The opposite parties are directed to
give promotion to the petitioner w.e.f. the date the above named
Gagan Bihari Tripathy was given promotion i.e. w.e.f. 12.01.1998
if there are vacant post available otherwise a post be created for a
limited purpose and the petitioner be given notional promotion
and accordingly the financial benefits be calculated and paid to
the petitioner expeditiously. It is further directed that the entire
exercise as directed hereinabove be carried out within a period of
// 29 //
two months from the date of production of a certified copy of this
judgment.
24. With the aforesaid observation/direction, the writ petition
stands disposed.
(A.K. Mohapatra)
Judge
Orissa High Court, Cuttack.
The 14th day of October, 2022. /Jagabandhu.P.A.
