Orissa High Court
State Of Odisha vs Sreepati Ranjan Dash on 7 November, 2023
ORISSA HIGH COURT : CUTTACK
W.A. No.658 of 2023
and
W.A. No.744 of 2023
In the matter of an Appeals under Article 4 of
the Odisha High Court Order, 1948
read with
Clause 10 of the Letters Patent constituting
the High Court of Judicature at Patna
and
Rule 6 of Chapter-III of
the Rules of the High Court of Odisha, 1948
---------------
W.A. No.658 of 2023
1. State of Odisha
represented through
Principal Secretary,
Commerce and Transport Department,
Lok Seva Bhawan,
Bhubaneswar 3 751 001,
District: Khordha.
2. The Transport Commissioner-cum-Chairman,
State Transport Authority,
Odisha, Cuttack.
3. The Financial Advisor-cum-Additional Secretary to Govt.
Commerce and Transport (Transport) Department,
Odisha, Bhubaneswar ... Appellants
-VERSUS-
Sreepati Ranjan Dash,
son of Late Arjun Dash,
Permanent Resident of Malatipatpur,
P.O./P.S.: Chandanpur,
W.A. Nos.658 & 744 of 2023 Page 1 of 56
District: Puri
at present residing
At: Quarter No. E-5/29,
Revenue Colony, Tulasipur,
working as Assistant Section Officer,
Office of Transport Commissioner,
State Transport Authority,
Odisha, Cuttack ... Respondent
AND
W.A. No.744 of 2023
1. State of Odisha
represented through
Principal Secretary,
Commerce and Transport Department,
Lok Seva Bhawan,
Bhubaneswar 3 751 001,
District: Khordha.
2. The Transport Commissioner-cum-Chairman,
State Transport Authority,
Odisha, Cuttack.
3. The Financial Advisor-cum-Additional Secretary to Govt.
Commerce and Transport (Transport) Department,
Odisha, Bhubaneswar ... Appellants
-VERSUS-
Aditya Bhanjan Sahoo,
son of Late Artabhajan Sahoo,
At/P.O.: Ardei, via: Tiran, P.S.: Tirtol,
District: Jagatsinghpur
at present working as Assistant Section Officer,
Office of Transport Commissioner,
State Transport Authority,
Odisha, Cuttack ... Respondent
Counsel appeared for the parties in both the writ
appeals:
W.A. Nos.658 & 744 of 2023 Page 2 of 56
For the Appellants : Mr. Pravakar Behera,
Standing Counsel (Transport)
For the Respondents : Mr. Biswabihari Mohanty,
Advocate
P R E S E N T:
THE HONOURABLE ACTING CHIEF JUSTICE DR. B.R. SARANGI
AND
THE HONOURABLE MR. JUSTICE MURAHARI SRI RAMAN
Date of Hearing : 30.10.2023 :: Date of Judgment : 07.11.2023
JUDGMENT
MURAHARI SRI RAMAN, J.--
THE CHALLENGE:
W.A. No.658 of 2023
This Appeal at the behest of the Commerce and
Transport Department, Government of Odisha is
directed against Judgment dated 24.02.2023 of the
learned Single Judge of this Court passed in W.P.(C)
No.35645 of 2021 (Sreepati Ranjan Dash) invoking
Article 226/227 of the Constitution of India, whereby it
has been concluded as follows:
<29. In view of the aforesaid analysis of fact as well as
law and upon a conspectus of the materials placed
before this Court and upon hearing the learned
counsels appearing for the respective parties, this
Court is of the considered view that the impugned
order under Annexure-9 is unsustainable in law and
the same is hereby quashed.
Further, the opposite party No.2, i.e., the Transport
Commissioner-cum-Chairman, State Transport
Authority, Odisha is directed to immediately convene
the Departmental Promotion Committee and consider
the case of the petitioner along with two other
persons found eligible by him vide his Letter dated
03.09.2021 under Annexure-7 in the light of
executive instruction dated 17.11.1981 and take a
decision within a period of four weeks from the date
of production of the copy of this judgment.
It is further directed that in the event, the opposite
parties are planning to fill up the vacant post of
Assistant Regional Transport Officer in view of the
new Rules, 2021, which was notified on
03.01.2022, they are free to do so, however, three
posts of Assistant Regional Transport Officer as has
been recommended under Annexure-7 by the
Transport Commissioner shall not be filled up till a
final decision is taken by the opposite party No.2 as
has been directed hereinabove.
In the event, any advertisement has been published
to fill up such posts, suitable modification be made
in the said advertisement by way of corrigendum
forthwith.=
1.1. W.A. No.744 of 2023
The learned Single Judge disposed of W.P.(C) No. 41042
of 2021 (Aditya Bhanjan Sahoo), has passed the
following Order on 28.02.2023, assailing which the
appellants-authorities have filed this writ appeal:
<In view of Judgment passed in W.P.(C) No. 35645 of
2021 dated 24.02.2023, the present writ petition is
disposed of accordingly.=
1.2. The Appellants sought intervention of Division Bench of
this Court by way of the present intra-Court appeal by
setting aside the aforesaid Judgment dated 24.02.2023
of the learned Single Judge on the ground that the
observation made supra runs counter to what has been
spelt out vide Judgment dated 20.05.2022 of the Hon'ble
Supreme Court of India rendered in the matters of State
of Himachal Pradesh & Others Vrs. Raj Kumar & Others,
(2023) 3 SCC 773 = (2022) 15 SCR 847, wherein the
notion that <the vacancies which occurred prior to the
amended rules would be governed by the old rules and
not by the amended rules= has been held to be incorrect
proposition of law governing services under the Union
and the States under Part-XIV of the Constitution.
THE PLEADINGS:
2. Sreepati Ranjan Dash, the respondent (the petitioner in
the writ petition), was initially appointed under the
Odisha Civil Services (Rehabilitation Assistance) Rules,
1990 in the post of Junior Assistant in the Office of the
Transport Commissioner-cum-Chairman, State
Transport Authority (appellant No.2) vide appointment
Letter dated 16.03.2013. Pursuant to the said
appointment letter, the Respondent had joined in duty
on 18.03.2013.
2.1. While continuing as such in the said Office of the
appellant No.2, the respondent was found suitable and
was otherwise eligible for promotion, as per the extant
Rules in force, by the Departmental Promotion
Committee held for the purpose and accordingly, the
petitioner was given promotion to the post of Senior
Assistant vide office order dated 10.06.2016. Pursuant
to the promotion order, the respondent joined in the
promotional post of Senior Assistant on 13.06.2016.
Upon joining against the new post, on promotion, the
pay scale of the respondent was fixed at Rs.9,300/- -
Rs.34,800/- with Grade Pay of Rs.4,200/- with effect
from 13.06.2016 vide Office Order dated 20.07.2016.
2.2. Similarly, Aditya Bhanjan Sahoo was appointed in the
post of Junior Assistant in the Office of Transport
Commissioner-cum-Chairman, State Transport
Authority, Odisha, Cuttack vide Letter dated 16.03.2013
under the provisions of the Odisha Civil Services
(Rehabilitation Assistance) Rules, 1990, pursuant to
which he joined in the said post on 18.03.2013. While
continuing as such upon being found suitable for
promotion in the Departmental Promotion Committee
Meeting, he was promoted to the post of Senior Assistant
vide Officer Order dated 10.06.2016 and joined in said
post on 13.06.2016. He was extended pay fixed at
Rs.9,300/- - 34,800/- with Grade Pay Rs.4,200/- with
effect from 13.06.2016 vide Office Order dated
20.07.2016.
2.3. The Government of Odisha in General Administration
and Public Grievance Department restructured the
Odisha Ministerial Services (Assistants and Section
Officers) cadre in the Offices of the Heads of
Departments and the Odisha Heads of Departments
Establishment Officers cadre by Resolution bearing No.
2372-GAD-ASSO-0005/2017/Gen., dated 24.01.2019
(vide Extraordinary issue of the Odisha Gazette No. 228,
dated 30.01.2019). As per the said Resolution, dated
24.01.2019, the post of Senior Assistant has been re-
designated as Assistant Section Officer (<ASO=, for short)
with the existing scale of pay, i.e., Level-09 in pay matrix
in terms of the Odisha Revised Scale of Pay Rules, 2017.
2.4. Accordingly, the respondents-Senior Assistants, being
re-designated as Assistant Section Officers with effect
from 24.01.2019 vide Office Order No. 22874IX-
252/2019/TC, dated 16.02.2019 issued by the
Transport Commissioner, Odisha, continued to
discharge their duties on regular basis. Pertinent here to
refer to Letter dated 19.06.2010 (Annexure-10 forming
part of W.P.(C) No.41042 of 2021) which is to the
following effect:
<Government of Odisha
Home Department
No. CC-G-32/104 26889
Dated, Bhubaneswar, 19.06.2010
From
Shri M.K Rath,
Joint Secretary to Government
To
The Joint Secretary to Government,
H&U.D. Department.
Sub.: Posting of A.S.Os Executive Officer of ULBs4
Clarification on status of A.S.Os regarding.
Sir,
Inviting a reference to your Letter No. 11968/HUD
dated 25.5.2010 on the subject captioned above, I
am directed to say that with an objective to initiate
structural and functional reforms in the Departments
of Secretariat, a new Cadre of Assistant Section
Officer has been introduced in the Secretariat with
effect from dt.30.09.2008 in order to give an Officer
oriented administration. Further, as per the Odisha
Secretariat Services (Method of Recruitment and
Conditions of Service of Assistant Section Officers)
Rules, 2010 promulgated vide Home Deptt.
Notification No.15678/CC dated 06.04.2010 that
came into effect from dt.07.04.2010, the Assistant
Section Officers of Secretariat are treated as Officers
and can no more be considered as Ministerial.
This is for your information.
Yours faithfully
Sd/-
Joint Secretary to Government.=
2.5. It is also relevant to mention here that as per the
restructuring vide Resolution, dated 24.01.2019 the
Ministerial Cadre in the Office of the Heads of
Departments, the post of Section Officer, Establishment
Officer, Administrative Officer and Senior Administrative
Officers are the promotional posts in the cadre hierarchy
which are available to be filled up by way of promotion
from the post of Assistant Section Officer.
2.6. The final gradation list of Senior Assistant (re-designated
as Assistant Section Officer) dated 02.03.2021 under
State Transport Authority, Odisha and Heads of
Departments, the respondents' names find place at
Sl.Nos.5 and 6 respectively. Moreover, under the
ministerial cadre, the posts of the Assistant Regional
Transport Officer and the Additional Regional Transport
Officer, which are non-ministerial and non-technical
posts, were also available to be filled up by way of
promotion. Furthermore, since those posts are not in
ministerial cadre, no specific and separate recruitment
Rules were framed under proviso to Article 309 of the
Constitution of India in exercise of power conferred upon
the Government for recruitment/filling up of those posts.
The Government of Odisha in Commerce and Transport
Department vide Office Letter dated 17.11.1981 had laid
down criteria and procedure for filling up the post of
Assistant Regional Transport Officer. As per the said
executive instruction dated 17.11.1981, Grade-I
Assistant (Senior Assistant) having five years of service
as Grade-I Assistant were eligible for promotion to the
post of the Assistant Regional Transport Officer.
2.7. In order to be eligible for promotion as indicated above,
the ministerial officials working under both the
Department of Commerce and Transport and the Office
of Transport Commissioner were also made eligible to be
considered for such promotion. In view of the policy
decision of the Government vide Letter dated
17.11.1981, the post of Assistant Regional Transport
Officer was to be filled up by way of selection from
different categories of posts in the feeder cadre for
which, obviously, no common seniority list is available.
In the writ application it has been asserted that the
Letter dated 17.11.1981 was still holding the field with
suitable modification from time to time, viz., Letter dated
23.08.1991 and Letter dated 04.07.1995.
2.8. For better appreciation, the contents of Letter dated
17.11.1981 as amended by Letter dated 23.08.1991 and
Letter dated 04.07.1995 are re-produced hereunder:
<Government of Odisha
Commerce & Transport (Transport) Department
No. FE-I-Ge-44/814 17315/T.
Bhubaneswar, 17th November, 1981
From
Shri J.P. Pradhan, OAS (I),
Deputy Secretary to Government
To
The Transport Commissioner, Odisha,
Cuttack.
Sub.: Filling up of the posts of Assistant Regional
Transport Officer, criteria and procedure for.
Sir,
I am directed to say that four posts of Assistant
Regional Transport Officer have been created in this
Department G.O. No. 11608, dated 06.08.1981 for
Sambalpur, Koraput, Sundargarh and Mayurbhanj
regions to assist the concerned Regional Transport
Officers in the matter of collection and assessment of
Motor Vehicle Tax and Passenger Tax. The posts of
Assistant Regional Transport Officer are specially
declared Gazetted posts under clause (ii) of Rule 17
of the Orissa Service Code and you have been
declared as the authority competent to make
appointments to such posts vide General
Administration Department Notification No.
20431/Gen. dated 16.08.1979.
The Government have pleased to decide that the
following criteria and procedure should be followed
for selecting ministerial officers of the Commerce &
Transport (Transport) Department (Secretariat) and
Transport Commissioner9s officer for promotion to the
posts of Assistant Regional Transport Officers by
selection.
1. Grade-I Assistant (Senior Assistant) having five
years of service as Grade-I Assistant should be
eligible for promotion by selection.
2. Merit-cum-efficiency with due regard to
seniority should be taken into consideration for
selection of Grade-I Assistant (Senior Assistant)
for the posts of Assistant Regional Transport
Officer. The selection shall be made on the
basis of merit and suitability.
3. Maximum age limit for selection to the post of
Assistant Regional Transport Officer should be
forty-five years.
4. Pending finalisation of the cadre rules for
recruitment to the posts of Assistant Regional
Transport Officer, selections may be made
according to the above principles through the
Departmental Promotion Committee whom
composition will be as follows:
Transport Commissioner ... Chairman
Deputy Transport
Commissioner ... Member
Deputy Secretary,
Transport ... Member
Secretary, State
Transport Authority ... Member-Secretary
I am therefore to request you to take immediate
steps for filling up of the above four posts of
Assistant Regional Transport Officers.
The list of eligible candidates of this Department
with complete and up-to-date C.C.Rs and service
particulars is being furnished to you separately.
Yours faithfully
Sd/-
Deputy Secretary to Government.=
<Government of Odisha
Commerce & Transport (Transport) Department
Misc. 22/91/13812/T.
Bhubaneswar, 23rd August, 1991
To
The Transport Commissioner, Odisha,
Cuttack.
Sub.: Filling up of the post of Assistant Regional Transport
Officer, criteria and the procedure therefor.
Sir,
I am directed to say that Government in this
Department Circular Letter No.17315/T dated
17.11.1981 have stipulated criteria and procedure
for filling up the vacancies in the post of Assistant
Regional Transport Officer by selection. The
minimum age limit for selection to the post was fixed
as forty five posts Government on a reconsideration
of their aspect of the criteria, have now been pleased
to amend the said stipulation and to fix the minimum
age limit as 52 years.
It is requested that henceforth, the Senior Assistants
both of this Department and your office and of the
age and not exceeding 52 years may please be
considered for promotion to the post of Assistant
Regional Transport Officer.
Yours faithfully
Sd/-
Deputy Secretary to Government.=
<Government of Odisha
Commerce & Transport (Transport) Department
No. FE-I-AE-3/94/3712/T.
Dated 4th July, 1995
From
Shri P.K. Routrai, OAS-(I)
Deputy Secretary to Government.
To
The Transport Commissioner, Odisha,
Cuttack.
Sub.: Filling up of the post of Assistant Regional Transport
Officer, criteria and the procedure for.
Sir,
I am directed to invite reference to your Letter
No.12625/12625/TC, dated 13.07.1994 on the
above subject and to say that after careful
consideration Government have been pleased to
decide that the Auditors of the office of the Transport
Commissioner, Orissa, Cuttack are eligible to be
considered for the post of Assistant R.T.O. subject to
the stipulation made in this Deptt. Letter No.
17215/T dated 17.11.1981 and No.13812/T
dt.23.08.1991.
Yours faithfully
Sd/-
Deputy Secretary to Government.=
2.9. It was also specifically pleaded that the aforesaid policy
with suitable modification was being followed by the
Department and promotions were being effected until
the year 2019.
2.10. The respondent in the writ petition narrated that since
he completed five years of service as Grade-I Assistant
(Senior Assistant, which was re-designated as Assistant
Section Officer) and was 37 years of age, he was eligible
to be considered for promotion by way of
selection/induction against the post of Assistant
Regional Transport Officer independent of his chance of
promotion in the normal course in the ministerial cadre
to the next post of Section Officer. Though Transport
Commissioner was the competent authority to hold
Departmental Promotion Committee, he referred names
of eligible Assistant Section Officers including the name
of the respondent for promotion against the post of
Assistant Regional Transport Officer with request to hold
Departmental Promotion Committee vide Letter No.9356,
dated 30.09.2021.
2.11. As nothing turned out fruitful, the respondent in W.A.
No.658 of 2023 having approached this Court in W.P.(C)
No.19531 of 2021, vide Order dated 13.07.2021 the
authority was directed to consider the representation.
The Government of Odisha in Commerce and Transport
(Transport) Department rejected the representation by
Order dated 11.10.2021. Relevant portion of the said
Order reads thus:
<Now, therefore, in obedience to the aforesaid orders of
Hon9ble High Court Goverment have considered the
representation of Sri Sreepati Ranjan Dash Assistant
Section Officer as at Annexure-7 to the W.P.(C) No.
19531/2021. The facts regarding the points mentioned in
his representation are detailed below:
1. It is claimed by the applicant that the post of
Assistant Regional Transport Officer is his cadre
post. This is not a fact. That the Assistant RTO post
was a selection and ex-cadre post in the past.
2. That there is sufficient promotional scope in the
cadre of the applicant (Assistant Section Officer) like
Section Officer, Establishment officer, Administrative
Officer and Senior Administrative Officer As such he
will avail the same whenever there is vacancy and
he is eligible for same.
3. That he cannot claim for holding the past of
Assistant Regional Transport Officer which is not in
the promotional hierarchy of his cadre and the
promotion to the post of Assistant Regional
Transport Officer is made by way of selection.
4. The post of Assistant Regional Transport Officer
which is an Ex-cadre post was being filled up by
way of selection from among different cadres such
as Sr. Assts. of Transport Department, Sr. Asst. of
Office of Transport Commissioner and other posts in
STA and RTOs in pursuance to the instructions
issued vide Letter No. 17135/T dated 17.11.1981
and subsequent instructions issued in this regard
from time to time.
5. In the meantime the posts of Senior Assistants in
Transport Department and O/o TC Odisha has been
re-designated to that of Assistant Section Officer
and, therefore, the instructions dated 17.11 1981 for
filling up of the post of Assistant Regional Transport
Officer are not be applicable for filling up of said
post.
6. Further, the post of Assistant Regional Transport
Officer which was Specially declared as a special
gazetted post in Group-C has been upgraded to that
of Group-B (Class-II) with effect from 17.10.2017
and as such the present instruction for filling up of
the said posts will not be applicable in case of the
applicant.
In view of the above facts, the representation of Sri
Dash, Assistant Section Officer for promotion to the
post of Assistant Regional Transport Officer merits
no consideration and, therefore, rejected being
devoid of merit.=
2.12. Similarly, the respondent in W.A. No.744 of 2023 filed
W.P.(C) No. 23090 of 2021 seeking to quash the Order
dated 26.07.2021, by which the Government rejected the
proposal for holding the Departmental Promotion
Committee Meeting for selection of Assistant Section
Officer to the post of Assistant Regional Transport
Officer as it deserves no merit for consideration. Said
writ petition was disposed of by one of us (Dr. Justice
Bidyut Ranjan Sarangi, Acting Chief Justice) on
23.08.2021 with the following observation:
<6. Having heard learned counsel for the parties, after
going through the records, it appears that the claim
of the petitioner has been recommended for holding
DPC at government level to fill up the post of Asst.
RTO and his name finds place at serial No.2.
Thereby, it is not his claim that he should be allowed
to get benefit of promotion to Asst. RTO, rather he
claims that DPC should be held and his case should
be considered for DPC from Sr.Asst. (ASO) to the post
of Asst. RTO as per the Government in Commerce &
Transport (Transport) Department Letter No.17315/T
dated 17.11.1981. But instead of considering the
case for promotion by holding DPC, the Government
has passed an order that proposal for holding the
DPC for selection of ASO to the post of Asst. RTOs
deserves no merit for consideration. As such, no
reasons have been assigned why selection of ASO to
the post of Asst. RTOs deserves no merit for
consideration. In absence of any reason the order so
passed dated 26.07.2021 in Annexure-8 cannot
sustain in the eye of law.
7. Reasons being a necessary concomitant to passing
an order, the authority can thus discharge its duty in
a meaningful manner either by furnishing the same
expressly or by necessary reference to those given
by the original authority.
8. In Union of India Vrs. Mohan Lal Capoor, AIR 1974
SC 87 it has been held:
<Reasons are the links between the materials on
which certain conclusions are based and the actual
conclusions. They disclose how the mind is applied
to the subject-matter for a decision whether it is
purely administrative or quasi-judicial and reveal a
rational nexus between the facts considered and
conclusions reached. The reasons assure an inbuilt
support to the conclusion and decision reached.
Recording of reasons is also an assurance that the
authority concerned applied its mind to the facts on
record. It is vital for the purpose of showing a person
that he is receiving justice.=
The decisions, referred to above, have been followed
in Sanjay Kumar Rout Vrs. State of Orissa, AIR 2018
Ori 162, rendered by a Division Bench of this Court,
where Dr. B.R. Sarangi, J. is a member.
9. In view of the meaning of 8reasons9 and requirement
for compliance of the principle of natural justice, as
discussed above, and taking into consideration the
factual and legal aspects, this Court is of the
considered view that while passing the impugned
order dated 26.07.2021 no reasons has been
assigned. Hence, the order dated 26.07.2021
passed by the Government in Annexure-8 cannot
sustain in the eye of law and the same is hereby
quashed. The matter is remitted back to the
Government, for reconsideration of the
recommendation made under Annexure-6 dated
24.06.2021 for holding of DPC at Government level
to fill up the 16 nos. of vacant posts of Asst. RTO
afresh by passing a reasoned and speaking order in
accordance with law, by affording opportunity of
hearing to the parties, as expeditiously as possible,
preferably within a period of four months from the
date of communication of this order.=
2.13. In compliance of said direction of this Court, vide Order
No.TRN-FE-CASE-0014-2014/10609/T., Bhubaneswar
dated 10.12.2021 the Government of Odisha in
Commerce and Transport (Transport) Department
rejected the recommendation of the State Transport
Authority to convene Departmental Promotion
Committee Meeting in the similar fashion that was
rejected in the case of Sreepati Ranjan Dash.
2.14. Challenging aforesaid Order dated 11.10.2021 and
Order dated 10.12.2021, writ petitions being W.P.(C)
No.35645 of 2021 and W.P.(C) No.41042 of 2021 had
been filed by the respondents respectively.
3. Counter-affidavit was filed by the appellants herein in
the writ petition by contending that the post of Assistant
Regional Transport Officer was created earlier with the
objective to post them at Border Check Gates for
collection and assessment of Motor Vehicle Tax,
Passenger Tax and issue of permit. In absence of any
Rules, the post of Assistant Regional Transport Officer
was earlier being filled up by way of selection from
different feeder cadres under the administrative control
of Transport Department and in pursuance of the
executive instruction issued by the Government on
17.11.1981 with subsequent modifications to it. Further,
all the Border Check Gates have been abolished for free
passage of inter-State movement of vehicle on the advice
of the Central Government since April, 2017. After
abolition of check gates, the post of Assistant Regional
Transport Officer was adjusted in different Regional
Transport Offices. The post of Assistant Regional
Transport Officer comes under Group-C/Class-III and
after restructuring, the same has been upgraded to
Group-B/Class-II with effect from 17.10.2017. Pending
finalization of the cadre Rules, the post has been filled
up by way of selection from different posts such as
Senior Assistant of Secretariat in the Transport
Department, Senior Assistant of the State Transport
Authority and other non-ministerial posts under the
State Transport Authority/Regional Transport Offices.
After the post of Senior Assistant of Secretariat was re-
designated as Assistant Section Officer, it was not
considered for selection to the post of Assistant Regional
Transport Officer as per the above executive instruction.
3.1. In the meantime the post of Senior Assistant in the
concerned Department including the State Transport
Authority has been re-designated as the Assistant
Section Officer and as such there is no justification to
consider their names for selection to fill up the post of
Assistant Regional Transport Officer in terms of the
above noted instruction. It was stated in the counter-
affidavit that there existed no justification on the part of
the respondents to claim for promotion to the post of
Assistant Regional Transport Officer, as the said post
does not come under the promotional hierarchy of his
parent cadre; rather the cadre, in which the respondents
are posted and continued, is governed by the Odisha
Ministerial Services (Assistants and Section Officers)
cadre of Heads of Department. As per the restructuring
cadre, which was issued in the year 2019, there are five
promotional posts in the hierarchy after initial post of
Junior Assistant. Those are Assistant Section Officer,
Section Officer, Establishment Officer, Administrative
Officer and Senior Administrative Officer.
3.2. The Odisha Transport Service (Method of Recruitment
and Conditions of Services) Rules, 2021 has been framed
in consultation with the Odisha Public Service
Commission in exercise of powers conferred by proviso
to Article 309 of the Constitution of India, whereby <all
rules framed, instructions or orders issued in this
respect= have been superseded <except as respect things
done or omitted to be done before such supersession=.
Said Rules, published in the Extraordinary issue bearing
No.22 of the Odisha Gazette on 05.01.2022, came into
force with effect from said date of publication.
3.3. It has been provided under Rule 4(1) of the said Rules,
2021 that filling up of the post of Assistant Regional
Transport Officer would be made by way of direct
recruitment through combined competitive recruitment
examination conducted by the Odisha Public Service
Commission in accordance with the Odisha Civil
Services (Combined Competitive Recruitment
Examination) Rules, 1991. Therefore, it is pleaded by the
appellants that since the new Rules have come into
force, the claim of the respondents for promotion to the
post of Assistant Regional Transport Officer by way of
selection as per the executive instruction dated
17.11.1981 as amended in 1991 and 1995 is baseless
and untenable in law.
4. The learned Single Judge upon hearing the respective
counsel for the parties, came to hold as follows by
delivery of Judgment dated 24.02.2023:
<29. In view of the aforesaid analysis of fact as well as
law and upon a conspectus of the materials placed
before this Court and upon hearing the learned
counsels appearing for the respective parties, this
Court is of the considered view that the impugned
order under Annexure-9 is unsustainable in law and
the same is hereby quashed. Further, the opposite
party No.2, i.e., the Transport Commissioner-cum-
Chairman STA, Odisha is directed to immediately
convene the DPC and consider the case of the
petitioner along with two other persons found
eligible by him vide his letter dated 03.09.2021
under Annexure-7 in the light of executive instruction
dated 17.11.1981 and take a decision within a
period of four weeks from the date of production of
the copy of this judgment. It is further directed that
in the event, the opposite parties are planning to fill
up the vacant post of ARTO in view of the new Rule
2021, which was notified on 03.01.2022, they are
free to do so, however, three posts of ARTO as has
been recommended under Annexure-7 by the
Transport Commissioner shall not be filled up till a
final decision is taken by the opposite party No.2 as
has been directed hereinabove. In the event, any
advertisement has been published to fill up such
posts, suitable modification be made in the said
advertisement by way of corrigendum forthwith.=
5. Vide Order dated 28.02.2023, the learned Single Judge
disposed of W.P.(C) No.41042 of 2021 in view of
Judgment dated 24.02.2023 passed in W.P.(C) No.35645
of 2021.
INTRA-COURT APPEAL PREFERRED BY THE TRANSPORT DEPARTMENT:
6. Being aggrieved by the aforesaid Judgment rendered by
the learned Single Judge, the appellants attacked the
same on the grounds inter alia that, grave error of law
has been committed by holding that since rejection to
hold Departmental Promotion Committee Meeting in
connection with the recommendation of the State
Transport Authority for consideration of promotion to
the post of Assistant Regional Transport Officer by the
Government being on 11.10.2021 in the case of Sri
Sreepati Ranjan Dash and 10.12.2021 in the case of Sri
Aditya Bhanjan Sahoo, the executive instruction dated
17.11.1981 as amended in 1991 and 1995 cannot have
precedence over the Odisha Transport Service (Method of
Recruitment and Conditions of Services) Rules, 2021,
inasmuch as said executive instruction(s) got
superseded by virtue of said Rules. Referring to ratio
that <there is no rule of universal application that
vacancies must be necessarily filled on the basis of the
law which existed on the date when they arose= as laid
down in Judgment dated 20.05.2022 delivered in State
of Himachal Pradesh Vrs. Raj Kumar & Others, Civil
Appeal No.9746 of 2011 reported in (2023) 3 SCC 773, it
has been urged that in view of policy decision of the
Government to fill up the post of Assistant Regional
Transport Officer by way of direct recruitment as
provided under Rule 4 of the Odisha Transport Service
(Method of Recruitment and Conditions of Services)
Rules, 2021, there was little scope for this Court to show
indulgence in the order of rejection of representation of
the respondents in the garb of judicial review under
Article 226/227 of the Constitution of India.
7. This Court having issued notice to the respondent(s) in
W.A. No.658 of 2023 by Order dated 24.04.2023, and
vide Order dated 02.05.2023 in W.A. No.744 of 2023, Sri
Biswabihari Mohanty, Advocate filed reply to the
contents of the Appeal.
7.1. While conceding the position of law as enunciated in Raj
Kumar (supra), the respondent(s) has placed with
vehemence that the case law stemming on which the
present writ appeals are couched does not have
application to the factual matrix of the present cases.
The learned Single Judge after taking cognizance of the
fact that in the case of other similarly situated person
namely in the case of Aditya Bhanjan Sahoo working as
Senior Assistant re-designated as Assistant Section
Officer, vide Letter No.9356/TC/Estt. (RTA)-X-
315/2021, dated 03.09.2021 of Transport Commissioner
in the Office of the Transport Commissioner-cum-
Chairman, State Transport Authority, eliciting intention
to convene Departmental Promotion Committee, at
paragraphs 26 and 27 of the Judgment impugned herein
candidly discussed as follows:
<26. A bare reading of the aforesaid Letter dated
03.09.2021 under Annexure-7 reveals that the
Transport Commissioner on scrutiny found
three persons eligible including the petitioner
for appointment as ARTO against 16 nos. of
existing vacancies and accordingly a request
was made to the Government to convene the
DPC in view of the order passed by this court
on 13.07.2021. Otherwise, the entire process
would have been completed by the Transport
Commissioner under the executive instruction dated
17.11.1981 earlier and in such view of the matter,
this Court has no hesitation in coming to a
conclusion that the Transport Commissioner should
have considered the case of the petitioner by
convening DPC keeping in view the executive
instruction dated 17.11.1981 which was very much
in force then. Moreover, there is no doubt with
regard to eligibility and suitability of the petitioner
and the other persons whose name has been
recommended by the Transport Commissioner to the
Government. Accordingly, the Transport
Commissioner has committed an illegality by not
convening the DPC meeting himself and not
considering the case of promotion of the petitioner to
the post of ARTO. However, in the facts and
circumstances of the present case and keeping in
view the order passed by this Court, the blame for
such failure cannot be put on the Transport
Commissioner alone, as he had acted pursuant to
the order passed by this Court on 13.07.2021.
27. So far the rejection order under Annexure-9 is
concerned, this Court on a careful analysis observed
that the opposite party No.1 proceeded on the footing
that since the post of Senior Assistant has been re-
designated as ASO, the executive instruction dated
17.11.1981 is not applicable to the petitioner. At this
juncture, this Court would like to observe that mere
change of designation, everything else remaining the
same including the pay structure and the nature or
work, the same will not, by itself, disentitle the
petitioner to claim the benefit under executive
instruction dated 17.11.1981. Rather, in view of
the change in designation by virtue of a Rule
the post of Senior Assistant as mentioned in
executive instruction dated 17.11.1981 is to be
read as ASO inasmuch as the change in
designation has not changed the nature and
character of the job and there was no change
in the pay structure. Therefore, this Court is of the
considered view that the opposite party No.1 has
committed grossly illegality by rejecting the
representation of the petitioner under Annexure-9
and as such, the order dated 11.10.2021 under
Annexure-9 is unsustainable in law and accordingly,
the same is liable to be quashed.=
7.2. It is further contended by the respondent(s) that since
the Odisha Transport Service (Method of Recruitment
and Conditions of Services) Rules, 2021, came into force
with effect from 05.01.2022 by virtue of Rule 1(2) of the
said Rules, the process for convening Departmental
Promotion Committee Meeting for consideration of
promotion of Assistant Section Officer to the post of
Assistant Regional Transport Officer being commenced
much prior to said date, which decision was taken in
order to comply with the direction of this Court in
W.P.(C) No.23090 of 2021 (Aditya Bhanjan Sahoo Vrs.
State of Odisha) vide Order dated 23.08.2021, it is
unwholesome for the appellants herein to say that <the
representation of Sri Dash, Assistant Section Officer for
promotion to the post of Assistant Regional Transport
Officer merits no consideration and, therefore, rejected
being devoid of merit=. Such an action of the
Government not only smacks arbitrariness, but also
attracts vice of Article 14 of the Constitution of India.
ARGUMENTS OF RESPECTIVE COUNSELS FOR THE PARTIES:
8. Pleadings in the matter being completed, this Court
proceeded to hear the matter for final disposal on the
consent of learned counsel for both the sides. This Court
heard Sri Pravakar Behera, learned Standing Counsel
(Transport) for appellants and Sri Biswabihari Mohanty,
learned Advocate for the respondents.
9. Sri Pravakar Behera, learned Standing Counsel
(Transport) stemming on the principles of law as
propounded by the Hon'ble Supreme Court in the case of
Raj Kumar (supra) submitted that the Judgment of
learned Single Judge suffers from infirmity ex facie,
inasmuch as the appellants were required to adhere to
modality for promotion to the post of Assistant Regional
Transport Officer as spelt out in Letter No.17315-FE-T-
Gr-44/81/T, dated 17.11.1981 issued by the
Government of Odisha in Commerce and Transport
(Transport) Department, as amended in Letter
No.13812-Misc.-22/91/T, dated 23.08.1991 and Letter
No.3712-FE-I-AE-3/94/T, dated 04.07.1995.
9.1. Sri Pravakar Behera, Standing Counsel (Transport) has
relied on the following paragraph(s) of the Judgment of
Hon'ble Supreme Court in the case of Raj Kumar (supra):
<82. A review of the fifteen cases that have distinguished
Y.V. Rangaiah Vrs. J. Sreenivasa Rao, (1983) 3 SCC
284 would demonstrate that this Court has been
consistently carving out exceptions to the broad
proposition formulated in Rangaiah (supra). The
findings in these judgments, that have a direct
bearing on the proposition formulated by Rangaiah
(supra) are as under:
82.1. There is no rule of universal application that
vacancies must be necessarily filled on the
basis of the law which existed on the date
when they arose, Rangaiah9s case must be
understood in the context of the rules involved
therein.
82.2. It is now a settled proposition of law that a
candidate has a right to be considered in the
light of the existed rules, which implies the
8rule in force9 as on the date consideration
takes place. The right to be considered for
promotion occurs on the date of consideration
of the eligible candidates.
82.3. The Government is entitled to take a conscious
policy decision not to fill up the vacancies
arising prior to the amendment of the rules. The
employee does not acquire any vested right to
being considered for promotion in accordance
with the repealed rules in view of the policy
decision taken by the Government. Deepak
Agarwal Vrs. State of U.P., (2011) 6 SCC 725,
Para 26; Union of India Vrs. Krishna Kumar,
(2019) 4 SCC 319, Para 10. There is no
obligation for the Government to make
appointments as per the old rules in the event
of restructuring of the cadre is intended for
efficient working of the unit. G. Venkateshara
Rao Vrs. Union of India, (1999) 8 SCC 455. The
only requirement is that the policy decisions of
the Government must be fair and reasonable
and must be justified on the touchstone of
Article 14. Rajasthan Public Service
Commission Vrs. Charan Ram, (1998) 4 SCC
202, Para 15; K. Ramulu Vrs. Suryaprakash
Rao, (1997) 3 SCC 59, Para 15.
82.4. The principle in Y.V. Rangaiah Vrs. J.
Sreenivasa Rao, (1983) 3 SCC 284 need not be
applied merely because posts were created, as
it is not obligatory for the appointing authority
to fill up the posts immediately. Delhi Judicial
Services Association Vrs. Delhi High Court,
(2001) 5 SCC 145, Para 5.
82.5. When there is no statutory duty cast upon the
State to consider appointments to vacancies
that existed prior to the amendment, the State
cannot be directed to consider the cases.
Deepak Agarwal Vrs. State of U.P., (2011) 6
SCC 725, Para 25.
83. The above-referred observations made in the fifteen
decisions that have distinguished Y.V. Rangaiah
Vrs. J. Sreenivasa Rao, (1983) 3 SCC 284
demonstrate that the wide principle enunciated
therein is substantially watered-down. Almost all
the decisions that distinguished Rangaiah (supra)
hold that there is no rule of universal application to
the effect that vacancies must necessarily be filled
on the basis of law that existed on the date when
they arose. This only implies that decision in
Rangaiah (supra) is confined to the facts of that
case.
84. The decision in Deepak Agarwal (supra) is a
complete departure from the principle in Rangaiah
(supra), inasmuch as the Court has held that a
candidate has a right to be considered in the light of
the existing rule. That is the rule in force on the date
the consideration takes place. This enunciation is
followed in many subsequent decisions including
that of Union of India Vrs. Krishna Kumar (2019) 4
SCC 319. In fact, in Krishna Kumar (supra) Court
held that there is only a 8right to be considered for
promotion in accordance with rules which prevail on
the date on which consideration for promotion take
place9.
85. The consistent findings in these fifteen decisions
that Rangaiah9s case (supra) must be seen in the
context of its own facts, coupled with the
declarations therein that there is no rule of universal
application to the effect that vacancies must
necessarily be filled on the basis of rules which
existed on the date which they arose, compels us to
conclude that the decision in Rangaiah (supra) is
impliedly overruled. However, as there is no
declaration of law to this effect, it continues to be
cited as a precedent and this Court has been
distinguishing it on some ground or the other, as we
have indicated hereinabove. For clarity and
certainty, it is, therefore, necessary for us to hold:
85.1. The statement in Y.V. Rangaiah Vrs. J.
Sreenivasa Rao, (1983) 3 SCC 284 that, 8the
vacancies which occurred prior to the amended
rules would be governed by the old rules and
not by the amended rules9, does not reflect the
correct proposition of law governing services
under the Union and the States under Part XIV
of the Constitution. It is hereby overruled.
85.2. The rights and obligations of persons serving
the Union and the States are to be sourced
from the rules governing the services.=
9.2. It is, thus, contended by Sri Pravakar Behera that since
new set of rules, being the Odisha Transport Service
(Method of Recruitment and Conditions of Services)
Rules, 2021 framed in exercise of powers conferred
under proviso to Article 309 of the Constitution of India,
has already been put in place with effect from
05.01.2022 in supersession of aforesaid circulars/
executive instructions, the direction of the learned Single
Judge in exercise of powers under Article 226/227 of the
Constitution of India is contrary to what is enunciated in
Raj Kumar (supra).
10. Sri Biswabihari Mohanty, learned advocate for the
respondent(s) strongly opposing the contention of the
learned Standing Counsel (Transport), advanced
argument that the Judgment under challenge is in
conformity with the pious provisions contained in Article
14 of the Constitution of India, inasmuch as process for
promotion to the post of Assistant Regional Transport
Officer from Senior Assistant, as re-designated as
Assistant Section Officer, commenced by issue of Letter
dated 03.09.2021 by the Transport Commissioner in
order to comply with direction vide Order dated
23.08.2021 in W.P.(C) No.23090 of 2021, requesting the
Government to <convene DPC at Government level= for
filling up <from among three eligible Senior Assistants
re-designated as Assistant Section Officers of this Office
namely Sri Sreepati Ranjan Dash, ASO, Sri Aditya
Bhanjan Sahoo, ASO and Smt. Ritushree Baral, ASO=.
10.1. Sri Biswabihari Mohanty, learned advocate argued that
the distinctive feature in facts contained in Raj Kumar
(supra) is that for promotion to the post of Labour Officer
by virtue of the Himachal Pradesh Recruitment and
Promotion Rules, 1966, it was provided for filling up by
promotion from Factory Inspectors, Labour Inspectors
and Secretariat Superintendents, being the feeder
category; whereas by dint of amendment to said Rules in
2006, the recruitment to the post of Labour Officer was
to be made by promotion as also direct recruitment in
the ratio of 75% and 25%. Be that as it may, Sri
Mohanty went on to urge that since the subject-matter
of present cases is rejection of representation by the
Government on 11.10.2021 in connection with direction
of this Court in W.P.(C) No.19531 of 2021, disposed of
on 13.07.2021 and refusal to reconsider by Order dated
10.12.2021 the recommendation of the State Transport
Authority for holding Departmental Promotion
Committee Meeting at Government level to fill up 16
numbers of vacant posts of the Assistant Regional
Transport Officer in connection with direction of this
Court vide Order dated 23.08.2021 in W.P.(C) No.23090
of 2021, by said dates the Odisha Transport Service
(Method of Recruitment and Conditions of Services)
Rules, 2021 did not come into operation; thereby, he
essentially made submission that the modalities followed
as per executive instructions in vogue were required to
be followed by the Government in the present context.
10.2. Amplifying such stand, Sri Biswabihari Mohanty
advanced argument, by refuting what has been
submitted by Sri Pravakar Behera, that the Transport
Commissioner having appraised the Government
regarding vacancy position, suggested to fill up the
post(s) of Assistant Regional Transport Officer and
Assistant Motor Vehicle Inspector vide Letter No.388-XI-
193/21/TC/ESTT(MV), dated 08.01.2021, the Additional
Commissioner Transport (Administration), State
Transport Authority, Odisha in Letter No.6269-X-
127/2021/TC/ESTT (RTA), dated 24.06.2021 requested
Government of Odisha in Commerce and Transport
(Transport) Department to make it convenient to hold
Departmental Promotion Committee Meeting for
consideration of promotion to the post of Assistant
Regional Transport Officer read with Letter
No.9356/TC/ESTT/(RTA)/X-315/2021, dated
03.09.2021 of the Transport Commissioner, Odisha
suggesting as follows:
<At present there are 16 numbers of vacancies in the rank
of Assistant Regional Transport Officer. Out of which three
posts may be filled up from among three eligible Senior
Assistants re-designated as Assistant Section Officers of
this Office namely Sri Sreepati Ranjan Dash, ASO, Sri
Aditya Bhanjan Sahoo, ASO and Smt. Ritushree Baral,
ASO.=
10.3. Under such premise, Sri Biswabihari Mohanty, learned
advocate for the petitioner submitted that no infirmity
can be imputed to the Judgment dated 24.02.2023
delivered by the learned Single Judge.
DISCUSSIONS AND ANALYSIS:
11. Letter No.388-XI-193/21/TC/ESTT(MV), dated
08.01.2021 of the Transport Commissioner and Letter
No.6269-X-127/2021/TC/ESTT (RTA), dated 24.06.2021
of the Additional Commissioner Transport
(Administration), State Transport Authority, Odisha
clearly suggested intention to fill up the post of Assistant
Regional Transport Officer and to convene Departmental
Promotion Committee Meeting for promotion to the said
post much prior to promulgation of the Odisha
Transport Service (Method of Recruitment and
Conditions of Services) Rules, 2021, with effect from
05.01.2022.
11.1. It is also noteworthy that the respondent in W.A. No.658
of 2023 having filed W.P.(C) No.19531 of 2021, as his
representation was not given due attention, this Court
passed the following Order on 13.07.2021:
<The petitioner has filed this writ petition seeking direction
to opposite parties to consider the application of the
petitioner vide Annexure-7 for promotion to the post of
Asst. RTO through DPC within a stipulated time.
In course of hearing, learned counsel for the petitioner
states that highlighting the grievances, the petitioner has
made representation to the opposite party No.1 vide
Annexure-7 and the same may be directed to be
disposed of within a stipulated time.
Considering the limited grievance of the petitioner, this
Court, without expressing any opinion on the merits of the
case, disposes of the writ petition directing the opposite
party No.1 to consider the representation filed by the
petitioner vide Annexure-7 and pass appropriate order
in accordance with law within a period of three
months from the date of production of
authenticated/certified copy of this order.=
11.2. It may be stated that had the Department convened the
Departmental Promotion Committee Meeting within the
period stipulated in the Order dated 13.07.2021 passed
in W.P.(C) No.19531 of 2021, the case of the respondent
would have been considered prior to 05.01.2022. Under
such perspective, having refused to convene the
Departmental Promotion Committee Meeting for
consideration of request made by the Transport
Commissioner, Odisha, the Department could not have
and should not have pleaded that pursuant to the
Odisha Transport Service (Method of Recruitment and
Conditions of Services) Rules, 2021, which came into
force with effect from 05.01.2022, there was no occasion
left for consideration of promotion of respondent(s) to the
post of Assistant Regional Transport Officer.
11.3. It is pertinent to cull out the fact as reflected in the
Judgment dated 24.02.2023 of the learned Single Judge
that it is not the case of the appellants that the
respondents were not eligible and suitable for
appointment to the post of Assistant Regional Transport
Officer. The Department also wished to fill up said post
by way of promotion from the Assistant Section Officer(s)
by convening Meeting by constituting Departmental
Promotion Committee.
11.4. The Letter No.9356-X-315/2021/TC/ESTT (RTA), dated
03.09.2021 which formed part of the writ petition and
noted by the learned Single Judge in his Judgment
dated 24.02.2023 revealed the following fact:
<Office of the Transport Commissioner-cum-Chairman
State Transport Authority, Odisha, Cuttack
No. 9356/TC/ESTT (RTA) Dated 26.03.2014
X-315/2021
To
The Principal Secretary to Government,
Commerce & Transport Department,
Odisha, Bhubaneswar.
Sub.: Holding of DPC at Govt. Level to fill up the vacant
post of Asst. RTO regarding.
Sir,
In inviting a reference of order dated 23.08.2021 passed
by the Hon9ble High Court of Orissa in W.P.(C) No.23090
of 2021 filed by Sri Aditya Bhanjan Sahoo-vrs-State of
Odisha and others, it is to state that proposal was
submitted to Govt. vide this Office Letter No.6269/TC
dated 24.06.2021 to hold the DPC at Government Level
from among the eligible Senior Assistants re-designated
as Assistant Section Officers of this office to fill up the
vacant posts of Assistant RTO. But the said proposal was
not considered by the Govt. as communicated to this office
vide Govt. Letter No.6539/T dated 26.07.2021 intimating
that selection of ASO to the post of Assistant RTO deserve
no merit for consideration.
Subsequently, Sri Aditya Bhanjan Sahoo, ASO of this
office has filed a Writ Petition vide W.P.(C) No.23090 of
2021 before the Hon9ble High Court of Orissa. The Hon9ble
Court has disposed of the matter with a direction to quash
the impugned order dated 26.07.2021 passed by the
Government and has remitted the matter back to
Government for reconsideration of the recommendation
made under Annexure-6 dated 24.06.2021 for holding of
DPC at Government level to fill up the 16 nos. of vacant
post of Assistant RTO afresh by passing reasoned and
speaking order in accordance with law by affording
opportunity of hearing to the parties as expeditiously as
possible preferably within a period of 04 months from the
date of communication of this order (copy enclosed).
It is to mention here that the post of Senior Assistant in
HODs including this office was re-designated as Assistant
Section Officer with the existing level of pay i.e. Level-09
in the pay Matrix of ORSP, Rule 2017 and without any
financial benefit, as Senior Assistant post also stood in
the same pay matrix.
At present there are 16 nos. of vacancies in the rank of
Assistant RTO. Out of which three posts may be filled up
from among three eligible Senior Assistants re-designated
as Assistant Section Officers of this office namely Sri
Sreepati Ranjan Dash, ASO Sri Aditya Bhanjan Sahoo,
ASO and Smt. Ritushree Baral, ASO.
In view of the order passed by the Hon9ble High Court, it
is therefore requested to convene DPC at Govt. Level. The
detailed particulars, vigilance clearance report, final
gradation list and up-to-date CCRs for last five years of
the above three Senior Assistants re-designated as
Assistant Section Officers of this Office is sent herewith so
that the process of convening DPC will be expedited.
Yours faithfully
Sd/-
Transport Commissioner
Odisha=
11.5. It is manifest from the aforesaid Letter dated 03.09.2021
that the Transport Commissioner on scrutiny found
three persons eligible including the petitioner for
appointment as Assistant Regional Transport Officer
against 16 numbers of existing vacancies and
accordingly request was made to the Government to
convene the DPC in view of the order passed by this
Court on 13.07.2021 in W.P.(C) No. 19531 of 2021 as
also Order dated 23.08.2021 in W.P.(C) No.23090 of
2021. Had the Department complied with the direction
of this Court with positive approach, the entire process
would have been completed as per modality laid down in
the executive instruction dated 17.11.1981 as amended
in 1991 and 1995. Therefore, the learned Single Judge
on appreciation of factual position as available on record
came to conclusion that <the Transport Commissioner
should have considered the case of the petitioner by
convening DPC keeping in view the executive instruction
dated 17.11.1981 which was very much in force then=. It
was further concluded that there is no doubt with regard
to eligibility and suitability of the respondent(s) whose
names have been recommended by the Transport
Commissioner to the Government for consideration of
promotion to the post of Assistant Regional Transport
Officer. Accordingly, the Government has committed an
illegality by not acceding to the proposal of the Transport
Commissioner to convene the Departmental Promotion
Committee Meeting. Thus, prejudice has caused to the
respondent(s) by not considering their case for
promotion.
11.6. The well-founded reasons on the analysis of facts do not
warrant intervention by this Court in the instant intra-
Court appeals.
12. So far as applicability of legal position as enunciated by
the Hon'ble Supreme Court in Raj Kumar (supra) to the
factual scenario as culled out from the impugned
Judgment, at the outset this Court noticed guidelines as
contained in Union of India Vrs. Arulmozhi Iniarasu,
(2011) 7 SCC 397 = (2011) 9 SCR 1. It has been stated by
the Supreme Court of India in the said case as follows:
<12. Before examining the first limb of the question,
formulated above, it would be instructive to note, as
a preface, the well-settled principle of law in the
matter of applying precedents that the Court should
not place reliance on decisions without discussing as
to how the fact situation of the case before it fits in
with the fact situation of the decision on which
reliance is placed. Observations of Courts are neither
to be read as Euclid9s theorems nor as provisions of
Statute and that too taken out of their context. These
observations must be read in the context in which
they appear to have been stated. Disposal of cases
by blindly placing reliance on a decision is not
proper because one additional or different fact may
make a world of difference between conclusions in
two cases. [Ref.: Bharat Petroleum Corpn. Ltd. &
Anr. Vrs. N.R. Vairamani & Anr., (2004) 8 SCC 579;
Sarva Shramik Sanghatana (KV), Mumbai Vrs. State
of Maharashtra & Ors., (2008) 1 SCC 494 and
Bhuwalka Steel Industries Limited Vrs. Bombay Iron
& Steel Labour Board & Anr., (2010) 2 SCC 273].=
12.1. The Hon'ble Supreme Court of India in the case of N.
Ramachandra Reddy Vrs. State of Telengana, (2019) 11
SCR 792 delineated the scope of intra-Court appeals by
making following observation:
<43. Further, in the case of Management of Narendra &
Company Pvt. Ltd. Vrs. Workmen of Narendra &
Company, (2016) 3 SCC 340, while considering the
scope of the intra court appeal, this Court has held
that, unless Appellate Bench concludes that findings
of the learned Single Judge are perverse, it shall not
disturb the same.=
12.2. In Management of Narendra & Company Pvt. Ltd. Vrs.
Workmen of Narendra & Company, (2016) 3 SCC 340 it
has been observed as follows:
<Be that as it may, in an intra-court appeal, on a finding
of fact, unless the appellate Bench reaches a conclusion
that the finding of the Single Bench is perverse, it shall
not disturb the same. Merely because another view or a
better view is possible, there should be no
interference with or disturbance of the order passed by
the Single Judge, unless both sides agree for a fairer
approach on relief.=
12.3. Having cursory glance at the writ appeal along with the
grounds set forth therein to question the Judgment
dated 24.02.2023, nothing transpires to suggest that the
learned Single Judge has considered the merit of the
writ application on erroneous factual premise de hors
material on record. Rather at Ground No. E forming part
of writ appeal it has been asserted by the appellants-
functionaries of Government of Odisha that:
<For that the learned Single Judge has misguided in
holding that the case of the petitioner would be governed
under the old Rule, i.e., executive instruction dated
17.11.1981 since the Government has rejected his
representation prior to coming into effect the Rules, 2021.
But however it is settled law that the rights of the
petitioner are to be sourced from the Rules governing the
service, i.e., the existing rules.=
12.4. In the humble opinion of this Court such a stance is
contrary to legal position which is discussed in the
paragraphs infra.
12.5. It is pertinent to take cognizance of the fact that the
Odisha Transport Service (Method of Recruitment and
Conditions of Services) Rules, 2021, promulgated vide
Notification No. 45-TRN-FE-MISC/T-0044-2017, dated
03.01.2022, has been published in the Extraordinary
issue of the Odisha Gazette bearing No.22 on
05.01.2022. Rule 1(2) of said rules specifically lays down
as follows:
<They shall come into force on the date of their publication
in the Odisha Gazette.=
12.6. In Pratap Chandra Mishra and Others Vrs. State of
Odisha and Another, O.J.C. No.6113 of 1992, vide
Judgment dated 23.08.1993, this Court has laid down as
follows:
<3. The petitioners9 case is that they had no occasion to
know about the Resolution dated 23rd March, 1992
until its publication in the Official Gazette dated 10th
April, 1992. The only question that needs
adjudication is whether the date on which the
Resolution was passed or the date on which the
same was published in the Orissa Gazette would be
the effective date. The difficulty arises in respect of
units which made fixed capital investment between
the period from 23.3.1992 to 10.4.1992. Obviously a
person who has made investment after 23.3.1992,
but before 10.4.1992 would be affected if the
Resolution is made operative from 23.3.1992. If the
same is so made operative, it would cause prejudice
to the person who is unaware of the Resolution and
makes fixed capital investment upto 10.4.1992. It is
seen from the Resolution dated 23.3.1992 itself that
the same was ordered to be published in the next
issue of the Official Gazette. Section 3 (39) of the
General Clauses Act, 1897 defines <Official Gazette=
or <Gazette= to mean Gazette of India or Official
Gazette of a State. Section 2(16) of the Orissa
General Clauses Act, 1937 defines <Gazette= as the
Official Gazette of the State. The publication in the
Official Gazette is made for the purpose of making it
known to the public. Even if a Resolution is adopted,
from a particular date it cannot be made operative
without necessary publication, when it affects any
person by withdrawal of any benefit or incentive
already granted. We are, therefore, inclined to
accept the submission on behalf of the petitioners
that the Resolution cannot be operative prior to
10.4.1992. The Resolution dated 17.6.1992
published in the Orissa Gazette Supplement dated
26.6.1992 is nullified to that extent. The Finance
Department Notification No. SRO 629/92 dated
28.4.1992 was published in the Official Gazette on
29.4.1992, and therefore, the same would be
operative from 29.4.1992.=
12.7. Minute scrutiny of the Odisha Transport Service (Method
of Recruitment and Conditions of Services) Rules, 2021,
as published in the Extraordinary issue of the Odisha
Gazette, would reveal the following intent of the
Government:
<In exercise of the powers conferred by the proviso to
Article 309 of the Constitution of India and in
supersession of all rules framed, instructions or orders
issued in this respect except as respect things done or
omitted to be done before such supersession, the
Governor of Odisha hereby makes the following rules to
regulate the method of recruitment and conditions of
service of persons appointed to the Odisha Transport
Services ***=
12.8. While the Odisha Transport Service (Method of
Recruitment and Conditions of Services) Rules, 2021
came into force with effect from 05.01.2022 to have
prospective in its operation, the same saved the <things
done or omitted to be done before such supersession=.
12.9. The word <supersede= in law, vide Black9s Law
Dictionary, 5th Edition, as referred to in Calcutta
Municipal Corporation Vrs. Pawan Kumar Saraf, (1999) 2
SCC 400 = 1999 (1) SCR 74, means <obliterate, set aside,
annul, replace, make void or inefficacious or useless,
repeal=. The purport of <supersession= has been
succinctly explained in Union of India Vrs. Glaxo India
Ltd., (2011) 6 SCC 668 = (2011) 4 SCR 50:
<39. The impugned notification uses the expression
<supersession= of the earlier notification. Therefore,
the first question that requires to be considered and
answered by us is, what is the meaning of the
expression 8supersession9 and what is its effect.
Webster9s Third New International Dictionary
defines the word 8supersession9 to mean 8the state of
being superseded9, 8removal9 and 8replacement9. P.
Ramanatha Aiyar9s Advanced Law Lexicon defines
8superseded9 as 8set aside9 and 8replaced by9. The
view of this Court in some of the decisions is that the
expression 8supersession9 has to be understood to
amount 8to repeal9 and when notification is repealed,
the provisions of Section 6 of the General Clauses
Act would not apply to notifications.
***
42. In State of Orissa Vs. Titaghur Paper Mills Company
Ltd., 1985 Supp. SCC 280 = AIR 1985 SC 1293, the
specific question whether on 8supersession9 of a
notification, the liability to tax for a period prior to
the supersession was wiped out or not, directly
arose and was considered. This Court came to the
conclusion that the previous liability to tax for a
period prior to the supersession was not wiped out.
In our view, the results that flow from changes in the
law by way of amendment, 8repeal9, 8substitution9 or
8supersession9 on the earlier rights and obligations
cannot be decided on any set formulae. It is
essentially a matter of construction and depends on
the intendment of the law as could be gathered from
the provisions in accordance with accepted cannons
of construction.
45. In Syed Mustafa Mohamed Ghouse Vrs. State of
Mysore, (1963) 1 Cri LJ 372 (Mys), the Sugar
(Movement Control) Order, 1959 of 06.11.1959 was
passed in supersession of the Sugar (Movement
Control) Order, 1959, dated 27.07.1959. It was held
that in law 8supersession9 has not the same effect as
repeal and proceedings of a superseded order can
be commenced. In R.S. Anand Behari Lal Vrs. United
Provinces Govt., AIR 1955 NUC 2769 (All), it was
held that in case of supersession of a notification,
the objections and liabilities accrued and incurred
under the earlier notification remain unaffected,
since the supersession will be effected from the date
of second notification and not retrospectively, so as
to abrogate the earlier notification from the date of
its commencement.=
12.10. The distinction between the word <substitution=
and the term <supersession= can well be deduced from
the following dicta of the Hon'ble Supreme Court of India
in the case of State of Maharashtra Vrs. Central Provinces
Manganese Ore Co. Ltd., (1977) 1 SCC 643 = (1977) 39
STC 340 (SC):
<The following passage was also cited from Koteswar
Koteswar Vittal Kamath Vrs. K. Rangappa Balica & Co.,
AIR 1969 SC 504 (at page 509) = (1969) 3 SCR 40 (at p.
47) :
8Learned counsel for the respondent, however, urged that
the Prohibition Order of 1119 cannot, in any case, be held
to have continued after 8th March, 1950, if the principle
laid down by this Court in Firm A.T.B. Mehtab Majid &
Co. Vrs. State of Madras, (1963) Supp. 2 SCR 435 = AIR
1963 SC 928 is applied. In that case, Rule 16 of the
Madras General Sales Tax (Turnover and Assessment)
Rules, 1939, was impugned. A new Rule 16 was
substituted for the old Rule 16 by publication on
September 7, 1955, and this new rule was to be effective
from 1st April, 1955. The Court held that the new Rule
16(2) was invalid because the provisions of that rule
contravened the provisions of Article 304(a) of the
Constitution. Thereupon, it was urged before the Court
that, if the impugned rule be held to be invalid, the old
Rule 16 gets revived, so that the tax assessed on the
basis of that rule will be good. The Court rejected this
submission by holding that:
8Once the old rule has been substituted by the new
rule, it ceases to exist and it does not automatically
get revived when the new rule is held to be invalid9.
On that analogy, it was argued that, if we hold that the
Prohibition Order of 1950 was invalid, the previous
Prohibition Order of 1119 cannot be held to be revived.
This argument ignores the distinction between
supersession of a rule, and substitution of a rule. In the
case of (1963) Supp. 2 SCR 435 = AIR 1963 SC 928
(supra), the new Rule 16 was substituted for the old Rule
16. The process of substitution consists of two steps.
First, the old rule is made to cease to exist, and, next, the
new rule is brought into existence in its place. Even if the
new rule be invalid, the first step of the old rule ceasing to
exist comes into effect and it was for this reason that the
Court held that, on declaration of the new rule as invalid,
the old rule could not be held to be revived9.
In the above mentioned passage, this Court merely
explained the argument which was accepted in the case
of firm A.T.B. Mehtab Majid & Co. Vrs. State of Madras
(1963) Supp. 2 SCR 435 = AIR 1963 SC 928). After doing
so, it distinguished the facts in Koteswar9s case (supra),
relating to an alleged substitution of one Prohibition Order
by a subsequent order which was found to be invalid. It
recorded its conclusion as follows (at p. 509) :
8In the case before us, there was no substitution of
the Prohibition Order of 1950 for the Prohibition
Order of 1119. The Prohibition Order of 1950 was
promulgated independently of the Prohibition Order
of 1119, and because of the provisions of law it
would have had the effect of making the Prohibition
Order of 1119 inoperative if it had been a valid
order. If the Prohibition Order of 1950 is found·to be
void ab initio, it could never make the Prohibition
Order of 1119 inoperative9.
The argument before us is that since the word
8substituted9 is used in the amending Act of 1949, it
necessarily follows that the process embraces two steps.
One of repeal and another of the new enactment. But, this
argument is basically different from the argument which
prevailed in Koteswar9s c.ase (supra) where a distinction
was drawn between a 8substitution9 and 8supersession9.
It is true that, as the term substitution was not used
there, the old rule was not held to have been
repealed. Nevertheless, the real basis of that decision
was that what was called supersession was void ab initio
so that the law remained what it would have been if no
such legislative process had taken place at all. It was
held that the void and inoperative legislative
process did not affect the validity of the pre-existing
rule. And, this is precisely what is contended or by the
State before us.=
12.11. The word <supersession=, as finds place in the
Odisha Transport Service (Method of Recruitment and
Conditions of Services) Rules, 2021, framed in exercise
of proviso to Article 309 of the Constitution, is construed
to be used in the sense as the word <repeal= or the words
<repeal and replacement=. By using <supersession= in
said notification the expression <in supersession of all
Rules framed, instructions or orders issued= all that was
done was to repeal and replace the previous executive
instructions/circulars by this new notification, namely
aforesaid Rules of 2021. Thus understood, the Odisha
Transport Service (Method of Recruitment and
Conditions of Services) Rules, 2021, repealed and
replaced executive instructions of 17.11.1981 as
amended in 1991 and 1995 with prospective effect from
05.01.2022. The succeeding words <except as respect
things done or omitted to be done before such
supersession= contained in said Rules, 2021 are
significant, which would be construed to mean the
earlier action/process undertaken on the basis of
executive instructions was not wiped out.
12.12. In view of the settled legal position the stand of the
Standing Counsel (Transport) that the earlier actions of
authorities concerned for convening Departmental
Promotion Committee Meeting to consider the cases of
three Senior Assistants (re-designated as Assistant
Section Officers) in terms of extant executive
instructions gets obliterated once the Odisha Transport
Service (Method of Recruitment and Conditions of
Services) Rules, 2021, came into force with effect from
05.01.2022, runs counter to the interpretation of the
word <supersession= as put forth by the Hon'ble
Supreme Court as discussed above.
13. It is further argued by Sri Pravakar Behera, learned
Standing Counsel (Transport) that the learned Single
Judge ignored to refer to the Judgment rendered in Raj
Kumar (supra) while rendering Judgment dated
24.02.2023. Perusal of impugned Judgement does not
reveal that such decision has been cited during the
course of hearing. The impugned Judgment of the
learned Single Judge is also silent about advancing any
argument by the Standing Counsel (Transport) based on
said Judgment. This Court is not oblivious of the
proposition by Co-ordinate Bench of this Court in the
case of Sri Debarchan Mahanandia Vrs. State of Odisha,
W.A. No.306 of 2014 vide Judgment dated 25.09.2015,
which is to the following effect:
<5. Now coming to the contentions for the appellant with
regard to non-consideration of the case of the
appellant as recorded in point Nos.2 and 3, on
scrutiny of the judgment of the learned Single Judge,
it is observed that the appellant failed in raising any
such point during hearing of his case. For the lapse
of the appellant in canvassing the points to be
considered by the learned Single Judge, the decision
of the learned Single Judge cannot be faulted.
Further, law is fairly well settled in Dr. S.L. Agarwal
Vrs. The General Manager, Hindustan Steels Ltd.
(AIR 1970 SC 1150) that, in the event any such point
is pleaded but not canvassed during course of
argument, the remedy lies with the appellant to
apply for review of the judgment before the same
Court and there is absolutely no scope for
entertaining such issues in a writ appeal.=
13.1. This Court is, therefore, of the considered opinion that
the present writ appeal does not lie in the teeth of
aforesaid dicta of this Court.
CONCLUSION:
14. Taking into consideration the position that the Division
Bench does not sit in re-appreciating the Judgment of
the learned Single Judge in an intra-Court appeal on
finding of fact, unless it is demonstrated by the
appellants that the conclusion on set of facts based on
material on record arrived at by the learned Single Judge
is perverse. Thus, this Court does not feel it expedient to
disturb the findings settled by the learned Single Judge.
Furthermore, the ratio of Raj Kumar (supra) is not
applicable on the factual matrix discussed by the
learned Single Judge.
14.1. In view of enunciation of law with respect to
<supersession=, it is but evident from the caption
contained in the Odisha Transport Service (Method of
Recruitment and Conditions of Services) Rules, 2021,
that said Rules have no effect on the <things done or
omitted to be done before such supersession=.
14.2. A writ appeal is an appeal on principle where the legality
and validity of the Judgment and/or Order of the Single
Judge is tested and it can be interfered with only when
there is a patent error on the face of the record or the
judgment is against established or settled principle of
law. If two views are possible and a view, which is
reasonable and logical, has been adopted by a Single
Judge, the other view, howsoever appealing may be to
the Division Bench; it is the view adopted by the Single
Judge, which would, normally be allowed to prevail. If
the discretion has been exercised by the Single Judge in
good faith and after giving due weight to relevant
matters and without being swayed away by irrelevant
matters and if two views are possible on the question,
then also the Division Bench in writ appeal should not
interfere, even though it would have exercised its
discretion in a different manner, were the case come
initially before it. The exercise of discretion by the Single
Judge should manifestly be wrong, which would then
give scope for interference by the Division Bench. (Ref.:
Anindita Mohanty Vrs. Senior Regional Manager, H.P. Co.
Ltd., Bhubaneswar, 2020 (II) ILR-CUT 398).
15. This Court also takes into consideration the admitted
position as mentioned by the Government of Odisha in
Commerce and Transport (Transport) Department, vide
Order dated 11.10.2021, which was subject matter of
challenge in the writ petition. Without any ambiguity,
said Order stated that <The post of Assistant Regional
Transport Officer which is an Ex-cadre post was being
filled up by way of selection from among different cadres
such as Senior Assistants of Transport Department,
Senior Asssistant of Office of Transport Commissioner
and other posts in State Transport Authority and Regional
Transport Officers in pursuance to the instructions issued
vide Letter No. 17135/T dated 17.11.1981 and
subsequent instructions issued in this regard from time to
time.= Though it is stated in the said Order that the
posts of Senior Assistants in Transport Department and
Office of Transport Commissioner, Odisha has been re-
designated to that of the Assistant Section Officer, there
is no denial of fact narrated by the learned Single Judge
that <in view of the change in designation in executive
instruction dated 17.11.1981 is to be read as Assistant
Section Officer inasmuch as the change in designation
has not changed the nature and character of the job and
there was no change in the pay structure=.
15.1. Seeking to challenge the Order dated 11.10.2021 and
Order dated 10.12.2021 of the Government of Odisha,
the respondents had knocked the doors of this Court on
16.11.2021 by way of filing petition, registered as
W.P.(C) No.35645 of 2021 (Sreepati Ranjan Dash), and
on 24.12.2021 registered as W.P.(C) No.41042 of 2021
(Aditya Bhanjan Sahoo), which are much prior to
supersession of executive instruction/circular dated
17.11.1981 as amended vide Letter dated 23.08.1991
and Letter dated 04.07.1995, by virtue of promulgation
of the Odisha Transport Service (Method of Recruitment
and Conditions of Services) Rules, 2021, which came
into force with effect from 05.01.2022 pursuant to Rule
1(2) ibid. This Court also notes that such Orders of the
Government came to being pursuant to disposal of
W.P.(C) No. 19531 of 2021 by Order dated 13.07.2021
and W.P.(C) No. 23090 of 2021 by Order dated
23.08.2021 of this Court. The action for consideration of
promotion to the post of Assistant Regional Transport
Officer from the post of Assistant Section Officer, thus,
commenced even prior to 05.01.2022.
15.2. Since the learned Single Judge has elaborately discussed
the factual matrix with well-reasoned order placing
reliance on the evidence available on record, the
Judgment dated 24.02.2023 does not suffer from
infirmity in law so as to warrant interference in exercise
of powers under Article 4 of the Odisha High Court
Order, 1948 read with Clause 10 of the Letters Patent
constituting the High Court of Judicature at Patna and
Rule 6 of Chapter-III of the Rules of the High Court of
Odisha, 1948.
16. Keeping abreast of the scope of intra-Court of appeal as
propounded by the Hon'ble Supreme Court as well as
this Court, for the reasons stated above and the
discussions made in the foregoing paragraphs, no
infirmity in the decision of learned Single Judge vide
Judgment dated 24.02.2023 is perceived and, therefore,
this Court declines to show indulgence in the said
Judgment in this writ appeal.
16.1. In the result, the writ appeals bearing W.A. No.658 of
2023 (State of Odisha & Others Vrs. Sreepati Ranjan
Dash) and W.A. No.744 of 2023 (State of Odisha Vrs.
Aditya Bhanjan Sahoo) stand dismissed, but in the
circumstances, there shall be no order as to costs.
(MURAHARI SRI RAMAN)
JUDGE
DR. B.R. SARANGI, ACJ. I agree.
(DR. B.R. SARANGI)
ACTING CHIEF JUSTICE
Signature Not Verified
Digitally Signed
Signed by: ASWINI KUMAR SETHY
Designation: PA(SECRETARY-IN-CHARGE)
Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK
Date: 07-Nov-2023 19:23:37
Orissa High Court, Cuttack
The 7th November, 2023//Aswini/Laxmikant
