Orissa High Court
Taranisen Pattnaik vs State Of Odisha & Anr. .... Opposite ... on 25 June, 2024
Author: S.K. Panigrahi
Bench: S.K. Panigrahi
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No. 8627 of 2020
(In the matter of an application under Articles 226 and 227 of the
Constitution of India, 1950).
Taranisen Pattnaik .... Petitioner(s)
-versus-
State of Odisha & Anr. .... Opposite Party (s)
Advocates appeared in the case through Hybrid Mode:
For Petitioner(s) : Mr. Debendra Kumar Dhar, Adv.
For Opposite Party (s) : Mr. Tapan Kumar Biswal, AGA
CORAM:
DR. JUSTICE S.K. PANIGRAHI
DATE OF HEARING:-05.04.2024
DATE OF JUDGMENT: -25.06.2024
Dr. S.K. Panigrahi, J.
1. The Petitioner has filed the aforesaid Writ Petition seeking a direction to
the Opp. Parties , particularly to Opp. Party No.1 to convene a review
selection Board dated 1.2.2020 and to promote the Petitioner to the rank
OAS Group-A (JB) from the date his juniors in the gradation list got
such promotion as per notification dated 13.02.2020 with all
consequential service and financial benefits declaring the action of the
Opp. Parties ignoring the claim of the Petitioner on the ground of lack
of required years of service on regular basis in ORS Group-B cadre.
Location: ORISSA HIGH COURT, CUTTACK
Date: 09-Jul-2024 18:14:47
I. FACTUAL MATRIX OF THE CASE:
2. The brief facts of the case are as follows:
(i) The Petitioner initially entered Government service as Junior Clerk on
25.6.1990 and in due course he was promoted to the post of Senior
Clerk. While he was working as Senior Clerk in the office of the
Panchayat Samiti, Dhamnagar in the district of Bhadrak, the State
Government decided to reorganize the Odisha Administrative Service.
Accordingly, on reorganization of Orissa Administrative Service cadres,
the Respondent No.1 framed a Rule exercising the powers conferred
upon them by the proviso to Article-309 of the Constitution of ORS
(Recruitment) Rules 2011.
(ii) The petitioner had a legitimate expectation for consideration of his case
by way of promotion to the post of ORS Group-B against the
recruitment years 2011 and 2012. But the recommendation made by the
Collector, Bhadrak to the RDC, Central Division was not properly
appreciated by the RDC, Central Division on the ground that
prosecution against the petitioner in Balasore Vigilance PS case
No.13/2011 was sanctioned on 25.3.2013.
(iii) In the meantime, entertaining the prayer in a Criminal Revision, case
bearing No.27/2015 the High Court of Odisha in its order dated
20.06.2016 set aside the charge sheet so far as the present petitioner is
concerned. As a result of which the Special Judge, Vigilance, Balasore
vide order dated 11.07.2016 discharged the petitioner from the said
vigilance proceeding. Despite all these developments the petitioner's
case was not considered for promotion to the rank of ORS Group B.
Location: ORISSA HIGH COURT, CUTTACK
Date: 09-Jul-2024 18:14:47
(iv) The petitioner then approached the State Administrative Tribunal vide
O.A. 2517/2016 and the said O.A. was allowed on 11.5.2017 where the
OAT directed that Respondent No.2 to conduct a review D.P.C. after
appropriately including the petitioner's name in the common gradation
list. If the petitioner is deemed suitable for promotion, the necessary
recommendation should be forwarded to Respondent No. 1, with the
promotion effective from the date of his juniors received their
promotion.
(v) The Opp. Party No.1 issued a promotion order in favour of the
petitioner in ORS Group B post by way of promotion against the
recruitment year 2012 bearing Notification No.39338 dated 22.10.2018.
(vi) After introduction of the Odisha Administrative Services (Method of
Recruitment and Conditions of Service) Rules, 2011 (hereinafter "OAS
Rules, 2011"), Rule 4 of the said Rules specifies that the posts of OAS
Group-A (Junior Branch) shall be filled up by way of direct recruitment
to the tune of 50% and the rest 50% shall be filled up by way of
promotion from amongst the members - belonging to the Odisha
Revenue Service. So far as eligible of ORS Group-B officers are
concerned, it is indicated in Rule-6 that a person shall be eligible for
promotion to the post of the said cadre if he/she is a graduate and has
completed six years of service on regular basis in consultation with the
Public Service Commission on the 1st day of January of the year and has
passed departmental examination, if any, or has been exempted from
the same, provided that a person whose period of services rendered in
Location: ORISSA HIGH COURT, CUTTACK
Date: 09-Jul-2024 18:14:47
any Group-B service prior to his absorption in ORS will be deemed to
be service in terms of Clause-3.
(vii) However, considering the number of vacancies required to be filled up
under such cadre and non-availability of the eligible candidates with
the minimum required numbers of years of service, the Government in
consultation with the OPSC decided to relax the eligibility criteria of six
years prescribed under clause (iii) of sub- rule (1) of Rule-6 of the said
rules in the public interest as one time measure for consideration of
promotion of ORS officers who have completed three years of service as
on 01.01.2020 to the rank of OAS -Gr. A (JB) vide notification No. 3349
dated 31.01.2020 issued by the General Administration & PG
Department.
(viii) The promotion notification of the ORS Group-B officers to the OAS
Group-A (JB) officers from which he found that as per Notification
No.7491 dated 13.2.2020, issued by the Opp. Party No.1, 250 Nos. of
ORS Group-B Officers have been promoted to OAS Group-A (JB)
including a lot of juniors whose names appeared at serial Nos.171
onwards of the said promotion notification dated 13.2.2020.
II. SUBMISSIONS ON BEHALF OF THE PETITIONER:
3. Learned counsel for the Petitioner earnestly made the following
submissions in support of his contentions:
(i) The Petitioner was a victim of circumstances for being falsely
implicated in a vigilance case and could not get the promotion in time.
However, as per the judicial pronouncement which has already been
Location: ORISSA HIGH COURT, CUTTACK
Date: 09-Jul-2024 18:14:47
implemented by the Government, he has got the promotion to the rank
of ORS Group-B with protection of his position in the said rank at
appropriate place in the final gradation list. While adjudicating the
issue the Tribunal made it clear that the petitioner is entitled to all
service benefits from the date when his juniors got such promotion,
whereas only the financial benefits will be prospective. In view of this,
the petitioner cannot be distinguished from his juniors in the gradation
list in any respect showing a less meritorious except denial of financial
benefit.
(ii) A comparison of the order of the learned tribunal with that of the
promotion notification issued by the Opp. No.1 bearing No.39338
dated 23.10.2018, it shows that the Opp. Party No.1 has allowed the
retrospective promotion to the petitioner as against recruitment year
2012 with a further stipulation that his inter se seniority shall be
determined as per the recommendation of the OPSC. The petitioner
joined in his promotional post on 2.11.2018 and he was allowed to
enjoy the financial benefit to the post of ORS Group-B from the date he
assumed the duty of such post.
(iii) The said judicial pronouncement of the learned Tribunal has already
attained its finality after implementation of the same by the
Government following with the promotion notification and placing the
petitioner at appropriate place in the gradation list. Therefore, in view
of the facts and circumstances of the case as much as keeping in view
the judicial pronouncement by the OAT, Bhubaneswar and its
Signature Notimplementation
Verified by Opp. Party No.1, there is no iota of doubt that the
Digitally Signed
Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK
Date: 09-Jul-2024 18:14:47
petitioner has accrued the required eligibility particularly in terms of
having service experience in the said post as that of his junior in the
ORS cadre is concerned. Therefore, the petitioner has legitimate and
reasonable expectation for not only being considered for promotion to
the post of OAS Group-A (JB) but also to get promotion prior to his
admitted juniors.
(iv) The Petitioner collected information from reliable sources that the DPC
was held on 01.02.2020 for promotion to the post of OAS Group-A (JB),
wherein the case of the petitioner was considered along with others.
The petitioner was qualified in all respect such as vigilance clearance,
up-to- date CCRs for the relevant periods without any adverse remark,
absence of any departmental or judicial proceeding against him,
possessing the qualification of the departmental and professional
examination, etc. However, he was shocked to get the information that
the selection committee did not recommend his case only on the
ground of eligibility with a remark that he has not completed three
years of service in the post of ORS Group-B. This view expressed by the
Selection Committee is contumacious and against the settled position
as decided by the Tribunal in its order dated 11.5.2017 which has
already been implemented by giving the petitioner promotion as well
as fixing his seniority at appropriate position in the cadre of ORS
Group-B. Since the order of the Learned Tribunal is specific to the
extent that the petitioner is entitled to all service benefits with that of
his juniors, therefore for no laches on the part of the petitioner. Hence,
Signature Notthe Opp. Parties have no right to declare the petitioner to be ineligible
Verified
Digitally Signed
Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK
Date: 09-Jul-2024 18:14:47
for promotion to OAS Group-A (JB) for not having adequate service
experience
(v) Further, Rule -6 does not prescribe the 'actual service' in the post of
ORS Group-B. The word "regular" therefore does not mean "actual"
and petitioner's appointment to ORS Group-B is in accordance with the
Rules. The expression 'on a regular basis' would mean the appointment
to the post on a regular basis in contradistinction to appointment on ad
hoc or stopgap or purely temporary basis. The promotion was given to
the petitioner in the year 2018 to right the wrong that was committed
against him in the year 2014. If the Petitioner is denied the right to be
considered for the promotion to the post of OAS Grade A (JB) on the
basis of "Such retrospective promotion" against the recruitment year
2012 at par with his juniors, it would result in perpetuating the wrong
done to the petitioner. After protection granted by the learned Tribunal
through a judicial pronouncement and its implementation by the Opp.
Party No.1 to the extent that the petitioner is entitled to all the service
benefits from the date of his juniors got such promotion in the year
2014, the Opp. Party No.1 has no right to ignore the case of the
petitioner on the ground of not having minimum period of regular
service in the cadre while considering and recommending the case of
juniors to the petitioner. For the eligibility in terms of minimum period
of regular service in a cadre, it is a settled position of law that if the
junior as per the gradation list is eligible, in that case the senior must be
eligible.
Location: ORISSA HIGH COURT, CUTTACK
Date: 09-Jul-2024 18:14:47
(vi) The Opp. Party No.1 has miserably failed to appreciate the settled
position of law and ignored the case of the petitioner while considering
his juniors for promotion to the rank of OAS Group-A (JB). In this
manner the previous wrong committed by the opp. Parties denying the
promotion to the petitioner on its due date has been allowed to be
perpetuated and the petitioner has been harassed by wrong
interpretation of regular service by the Opp. Parties.
(vii) The act of discrimination by the Opp. Party No.1 can also be evident
from the fact that Sri Sanjay Kumar Samantray, Smita Rath, Saisasmita
Hota, Susanta Kumar Sutar, Asmita Das, Smitanjali Das, Suvendu
Kumar Jena, Dasarathi Jena and Subrat Kumar Behera at serial Nos.
51,70,73,74,75,78,79,80 and 88 respectively in the promotion notification
dated. 20.2.2020 were appointed to Odisha Revenue Service as direct
recruits as per the revised result of the Odisha Civil Services
Examiantion, 2011 vide notification No.6570 dated 20.2.2018 with a
stipulation that they shall be on probation for a period of two years.
Though they were appointed in the year 2018 under ORS cadre but
they were placed in the final gradation list against recruitment year
2011. The Government took up their case as a special measure and
applying the provision of relaxation clause declared them to be eligible
for consideration of promotion to the rank of OAS Group-A (JB) taking
into consideration the services they have rendered OT & AS Group-B
post. In view of this there would have been no difficulty for the State
Opp. Parties to consider the case of the present petitioner who was
Signature Notinducted
Verified in ORS Group-B cadre during the year 2018 with service
Digitally Signed
Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK
Date: 09-Jul-2024 18:14:47
benefits at par with his juniors since 2014 against the recruitment year
2012. Therefore, non-consideration of the case of the petitioner on the
ground of lack of required service in the post of ORS Group-B amounts
to discrimination and colourable exercise of power.
III. SUBMISSIONS ON BEHALF OF THE OPPOSITE PARTIES :
4. Learned counsel for the Opposite Parties earnestly made the following
submissions in support of his contentions.
(i) In pursuance of order dated 11.05.2017 passed in O.A No.2517/2016, a
review Selection Committee meeting was held on 31.07.2018 and as per
the recommendation of the Selection Board the petitioner was
appointed to ORS Group-B post by way of promotion against the year
2012 and joined in ORS cadre only on 02.11.2018. Since the petitioner
had not completed three years of residency period on regular basis in
ORS cadre as on 01.01.2020, his name was not recommended by the
Selection Board for promotion to OAS Gr. A (JB).
(ii) The RDC (CD) had not recommended the proposal of the petitioner for
promotion to ORS cadre due to pending of Balasore Vigilance P.S Case
No.13/2011 for which his case for promotion to ORS cadre was not
taken up earlier. Hence, allegation made by the petitioner stating that
despite these developments petitioner's case was not considered for
promotion to ORS Group-B post is not justifiable and totally baseless.
(iii) The recommendation of the Selection Committee meeting held on
22.09.2014 was assailed in O.A No.2595/2014 before the Orissa
Administrative Tribunal. In fact, the recommendations of Selection
Committee
Location: ORISSA HIGH COURT, CUTTACK
Date: 09-Jul-2024 18:14:47
due compliance to the aforesaid order, a Review DPC was convened on
30.06.2016. However question of consideration of case of the petitioner
did not arise as he was not eligible by then.
(iv) Further, regarding counting his Group-B service rendered in the feeder
grade for promotion to post of OAS-A (JB), it is stated that, the
Petitioner has not been absorbed in the ORS cadre rather he has been
recruited by way of promotion. Hence, service rendered by the
petitioner in any Group-B post in the feeder grade will not be deemed
as qualifying service for promotion to the post of OAS-A (JB) in terms of
Rule, 6(1) (iii) of OAS (Method of Recruitment and Conditions of
Service) Rules 2011
(v) It is further contended that as the petitioner had not completed three
years of qualifying service in ORS cadre, his case was not considered in
the DPC held on 01.02.2020 for promotion to the rank of OAS-A (JB) as
the date of joining of the petitioner in ORS cadre is 02.11.2018
(vi) The OAT vide its order dated.11.05.2017 passed in O.A No.2517/2016
had directed that the petitioner would be entitled to financial benefits
from the date he performs his duty. It means, he is not entitled for
salary for the period he did not work. As such his regular service in
ORS cadre will be treated from the date he has actually joined in the
cadre i.e. from 02.11.2018.
(vii) Learned counsel for the Opposite Parties, accordingly, prays for
dismissal of this Writ Petition.
Location: ORISSA HIGH COURT, CUTTACK
Date: 09-Jul-2024 18:14:47
IV. COURT'S REASONING AND ANALYSIS:
5. Heard the contentions of the Parties and perused the case record.
6. In fact, Rule 6(1) (iii) of OAS (Method of Recruitment and Conditions of
Service) Rules, 2011 which has a great bearing in the case. The said Rule
is produced herein below:
"Rule 6: Eligibility criteria for promotion:-
(1) A person shall be eligible for promotion to the post in
Group-A (Junior Branch) of the service if :-
(i) he/she is a Graduate,
(ii) he/she is not more than 50 years of age; and
(iii) he/she has completed six years of service on regular
basis in consultation with the Commission on the 1st day of
the January of the year and has passed Departmental
Examination, if any, or has been exempted from the same.
Provided that a person whose period of services rendered in
any Group 'B' service prior to his absorption in the Orissa
Revenue Service will be deemed to be service in terms of
Clause (iii)." (Emphasis supplied)
7. In the realm of service jurisprudence, the terms 'regular service' and
'actual service' is frequently employed when assessing an individual's
experience and seniority within a particular service. Despite its
prevalent use, the precise definitions of these terms remain shrouded in
ambiguity, leading to inconsistencies in appointments and promotions,
as evidenced in the present case. The Supreme Court has adequately
dealt with this confusion in the case of Union of India v. K.B. Rajoria,1
Ruma Pal/ J. clearly made distinction between "regular service" and
Signature Not
3 SCC 562 1987 (4) SCC 566
Verified
Digitally Signed
Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK
Date: 09-Jul-2024 18:14:47
"actual service". In the said case, the Apex Court had an occasion to
deal with the term 'regular' and it came to the conclusion that as long as
an appointment is not irregular, the same is regular. The following is
the relevant observation of the Apex Court in this regard:
"10. Finally, while considering the definition of the word
"regular" in the Concise Oxford Dictionary , 9th Edn., the
High Court noted that it meant:
(1) conforming to a rule or principle; systematic.
(2) harmonious, symmetrical.
(3) acting or done or recurring uniformly or calculably in
time or manner; habitual, constant, orderly.
(4) conforming to a standard of etiquette or procedure;
correct; according to convention.
(5) properly constituted or qualified; not defective or
amateur; pursuing an occupation as one's main pursuit."
11. The word "regular" therefore does not mean
"actual" and the first question the High Court should
have considered was whether the appointment of
Krishnamoorti was regular and in accordance with the
Rules or it was irregular in the sense that it was
contrary to any principle of law." (Emphasis Supplied)
8. Further, another pertinent decision is the case of K. Madhavan v. Union
of India, wherein it was adjudicated as follows:
"In our view, therefore, the expression 'on a regular basis'
would mean the appointment to the post on a regular basis in
contradistinction to appointment on ad hoc or stopgap or
purely temporary basis."
It is clear from the aforementioned case that "regular service" cannot be
understood as "actual service". It also means shall notional service
Location: ORISSA HIGH COURT, CUTTACK
Date: 09-Jul-2024 18:14:47
accrued retrospectively over a person should be counted as a part of the
"regular service". This contention shall be reinforced by the next section
of examination of case laws.
9. In KB Rajoria (supra) it was held that notional service was something
for which the incumbent was entitled to be counted for as he had been
denied his service owing to reasons attributable to the department.
10. Now, notice must also be taken of the judgment of the Supreme Court
in Nirmal Chandra Bhattacharjee v. Union of India2 and in State of
U.P v. Mahesh Narain,3 that mistakes or delays on the part of the
departments ought not to be permitted to recoil on the employee. It is
important in the context of the petitioner's submission that he should
not be denied the experience for the notional service accrued to him due
to the inaction of the state authorities and for mistakes and delays on
the part of the respondents.
11. Reference can also be made to the judgment of the High Court of New
Delhi in the case of Govt. of NCT of Delhi v. Rakesh Beniwal,4 wherein
the High Court determined the following:
"26. The delay in appointment and the consequential denial of
benefits is the direct corollary of the inaction of the petitioners;
consequently, they cannot take advantage of their own delays
in declaring results and issuing appointment letters to deny
promotion to the respondents. The Supreme Court has observed
in this regard in the matter of Baij Nath Sharma v. Hon'ble
Rajasthan High Court at Jodhpur,1988 SCC (L&S) 1754, "But
here the appellant has been deprived of his promotion without
any fault of his. High Court said that it might be sad state of
(1991) Supp, (2) SCC 363
(2013) 4 SCC 169
Signature Not
Verified
2014 (213) DLT 748
Digitally Signed
Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK
Date: 09-Jul-2024 18:14:47
affairs that the name of the appellant was not considered for
promotion till he retired. High Court may feel anguish but it
gives no comfort to the appellant. At least for future such an
unfortunate thing should not happen to any other officer
similarly situated. This malaise which abysmally afflicts any
service when there is recruitment from different sources when
there is recruitment from different sources crops up in the one
form or the other with great disadvantage of one or the other.
But then service is not constituted merely for the benefit of the
officers in the service but with a certain purpose in view and in
the present case for dispensing justice to the public at large"
12. An analogy can be lucidly drawn from the aforementioned discussion
to the case at hand. The petitioner, who was eligible for promotion to
the post of ORS Group-B effective from 2012, alongside other successful
candidates, was denied said promotion due to an ongoing vigilance
suit. Upon being exonerated of the charges, he was compelled to seek
redress from multiple forums and courts for reconsideration of his
promotion. When the promotion was eventually awarded, he was
denied the inclusion of his experience from the notional date of 2012
and then later denied promotion to OAS Gr-A (JB). In my opinion, the
petitioner has faced enough discrimination and adversity that cannot be
condoned by this Court of law.
13. The petitioner is, thus, entitled to have his appointment reckoned
notionally with effect from 2012. He is also entitled to have the entire
service from 2012 reckoned as "regular service" for being considered for
selection by promotion to the post of OAS Gr-A (JB).
14. Ergo, a Committee shall be established by the Opposite Party to re-
assess the eligibility of the Petitioner for the post of OAS Gr-A (JB),
Location: ORISSA HIGH COURT, CUTTACK
Date: 09-Jul-2024 18:14:47
while counting his experience starting from 2012. Should the Committee
recommend it, the Opposite Party shall issue the necessary promotion
order effective from the same date as the promotion of other eligible
candidates, as per Notification No.7491 dated 13.02.2020. The Petitioner
shall be entitled to the same benefits as the other successful candidates,
with the exception of financial benefits which shall commence only
upon his formal assumption of the post. Hence, this Court accedes to
the prayer of the Petitioner. The entire exercise of his promotion shall be
completed within a period of three months from the date of
presentation of this judgment/order.
15. Accordingly, this Writ Petition is allowed. No costs.
(Dr. S.K. Panigrahi)
Judge
Orissa High Court, Cuttack,
Dated the 25th June, 2024/
Location: ORISSA HIGH COURT, CUTTACK
Date: 09-Jul-2024 18:14:47
