Orissa High Court
Ranjan Parida vs State Of Orissa And Others . Opp. Parties on 4 November, 2024
Author: A.K. Mohapatra
Bench: A.K.Mohapatra
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.12466 of 2022
An application under Articles 226 & 227 of the Constitution of India
Ranjan Parida . Petitioner
Mr. Bigyan Kumar Sharma, Advocate
-versus-
State of Orissa and others . Opp. Parties
Mr.Saswat Das, A.G.A.
W.P.(C) No.6100 of 2022
Pradyumna Mohapatra . Petitioner
Mr. S.N.Patnaik, Advocate
-versus-
State of Orissa and others . Opp. Parties
Mr.Saswat Das, A.G.A.
W.P.(C) No.6102 of 2022
Manas Kumar Gaya . Petitioner
Mr. S.N.Patnaik, Advocate
-versus-
State of Orissa and others . Opp. Parties
Mr.Saswat Das, A.G.A.
W.P.(C) No.6103 of 2022
Pradeepta Kishore Behera . Petitioner
Mr. S.N.Patnaik, Advocate
-versus-
State of Orissa and others . Opp. Parties
Mr.Saswat Das, A.G.A.
W.P.(C) No.6930 of 2022
Susanta Kumar Dash . Petitioner
Mr. S.N.Patnaik, Advocate
-versus-
State of Orissa and others . Opp. Parties
Mr.Saswat Das, A.G.A.
W.P.(C) No.6959 of 2022
Pramod Kumar Mallik . Petitioner
Mr. S.N.Patnaik, Advocate
-versus-
State of Orissa and others . Opp. Parties
Mr.Saswat Das, A.G.A.
W.P.(C) No.7921 of 2022
Durga Charan Swain . Petitioner
Mr. S.N.Patnaik, Advocate
-versus-
State of Orissa and others . Opp. Parties
Mr.Saswat Das, A.G.A.
Page 2 of 43
W.P.(C) No.8413 of 2022
Sujit Kumar Choudhury . Petitioner
Ms. Kananbala Roy Choudhury,
Advocate
-versus-
State of Orissa and others . Opp. Parties
Mr.Saswat Das, A.G.A.
W.P.(C) No.12469 of 2022
Sachi Ranjan Parida . Petitioner
Mr. Bigyan Kumar Sharma, Advocate
-versus-
State of Orissa and others . Opp. Parties
Mr.Saswat Das, A.G.A.
W.P.(C) No.16468 of 2022
Manoranjan Panigrahi . Petitioner
Ms. Kananbala Roy Choudhury,
Advocate
-versus-
State of Orissa and others . Opp. Parties
Mr.Saswat Das, A.G.A.
Page 3 of 43
W.P.(C) No.10797 of 2023
Dipak Kumar Senapati . Petitioner
Ms. Kananbala Roy Choudhury,
Advocate
-versus-
State of Orissa and others . Opp. Parties
Mr.Saswat Das, A.G.A.
W.P.(C) No.39706 of 2023
Pravata Kumar Jena . Petitioner
Mr. Mihir Kanta Rath, Advocate
-versus-
State of Orissa and others . Opp. Parties
Mr.Saswat Das, A.G.A.
W.P.(C) No.39709 of 2023
Sarat Chandra Badajena . Petitioner
Mr. Mihir Kanta Rath, Advocate,
-versus-
State of Orissa and others . Opp. Parties
Mr.Saswat Das, A.G.A.
Page 4 of 43
W.P.(C) No.39685 of 2023
Ajay Kumar Pradhan . Petitioner
Mr. Mihir Kanta Rath, Advocate,
-versus-
State of Orissa and others . Opp. Parties
Mr.Saswat Das, A.G.A.
W.P.(C) No.8471 of 2022
Pankaja Kumar Nayak . Petitioner
Mr. Bipin Kumar Nayak, Advocate,
-versus-
State of Orissa and others . Opp. Parties
Mr.Saswat Das, A.G.A.
CORAM:
THE HON'BLE MR. JUSTICE A.K.MOHAPATRA
_____________________________________________________
Date of hearing : 24.04.2024 | Date of Judgment : 04.11.2024
_____________________________________________________
A.K. Mohapatra, J. :
1. Since the batch of abovenoted writ applications involve a
common facts and law, such writ applications were heard together
and is being disposed of by the following common judgment.
2. The above-named petitioners, who are serving as
constables/sepoys in OSAP, 8th Battalion, Chhatrapur, have
approached this Court by fling the abovenoted writ applications
thereby challenging the notice No.2877 dated 08.07.2021 issued
by the Special Director General of Police, SAP Opposite Party
No.2 to various authorities for redeployment of
Sepoys/Constables in the district police in the year 2021. The
petitioners have specifically challenged a single clause, which is
nothing but a disqualification clause, incorporated in the aforesaid
notice, on the ground that there is no stipulation in that regard in
The Orissa Police Services (Method of Recruitment and
Conditions of Service of Constables) Order, 2010 (herein referred
to as the "OPS order, 2010") as on 01.01.2021. The petitioners
have also challenged the conduct of the Opposite Parties in
rejecting their claims for redeployment.
3. For sake of brevity, the facts narrated in W.P.(C) No.12466/2022
is being taken up for analysis of the factual background of the
petitioner's case by treating the said matters as the lead matter in
the present batch of writ applications.
4. The factual matrix involved in the present writ application, in a
nutshell, is that the post of Constable in Civil Police of each
Police District shall construe a separate cadre for the purpose of
the recruitment, seniority and promotions. The post in the district
cadres shall be filled up by direct recruitment from open market
as per the OPS order, 2010. The said order also provides that the
State Government may from time to time fill up 20% vacancies in
a recruitment year by redeployment of regular Sepoys and
Constables in service of Armed Police Sepoys/Constables. While
this was the legal position as per the OPS order 2010, the Special
Director General of Police, State Armed Forces requested various
authorities in the State to send nominations of willing
Sepoys/Constables belonging to their battalion/units, who have
completed 15(fifteen) years of service and attained 40 years of
age as on 01.01.2021 along with written willingness and option in
order of preference for consideration of their cases for
redeployment as constable in the district police. The notice dated
08.07.2021 reveals that there were 3018 vacancies in different
districts in respect of the year 2021.
5. Clause (C) of the Notice No.2877 dated 08.07.2021, which has
been filed as Annexure-1 to the present writ petition, stipulates
the following condition:
"(C) The commandant may indicate
major/minor punishments of willing Sepoy/Constable
correctly and also intimate up-to-date status of
departmental proceeding/ criminal proceedings/
vigilance case/ Human Rights Protection cell related
cases as on 01.01.2021."
Similarly, clause 5(1A)(a) of Orissa Police Services (Method of
Recruitment and Conditions of Service of Constables) Order,
2010, vide notification No.57063/D & A, Bhubaneswar dated
23.10.2010, provides as follows:
"A sepoy/constable in order to be
eligible for consideration for redeployment must
have completed 15 years of service and attained
the age of 40 years as on 1st day of January of the
year in which "Redeployment" is to be made".
Further, the other sub clause (b) of the aforesaid clause 5(1A)
provides for constitution of a Selection Committee for
consideration of redeployment of Constables/Sepoys.
6. While the above indicated parameters were the established legal
position, the State Government vide notification No.20586 dated
08.06.2021 issued the Odisha Police Service (Method of
Recruitment and Conditions of Service of Constables)
Amendment Order, 2021. The aforesaid notification provides that
the said amendments shall come into force on the date of their
publication in the official gazette. The amendment introduced in
the year 2021 provides as follows:
"2. In the Odisha Police Service (Method of
Recruitment and Conditions of Service of Constables)
Order 2010, in the order 5(1A) (a), after the words "is to
be made" occurring at the end, the following shall be
added, namely;
"Subject to the condition that he has not been
inflicted with any major punishment or more than
5 (Five) minor punishments to his discredit during
his entire service career and no Departmental
Proceeding or Criminal Proceeding or Vigilance
case or Human Rights Protection Cell related
case shall be pending against him.""
7. Further, clause 5(1A)(c) of OPS order 2010 provides that each
year the written willingness of Sepoy/Constable will be received
through the commandant at concerned SAP headquarters by 31 st
January for consideration of their redeployment. The Opposite
Parties purportedly relying on notification dated 08.06.2021 under
Annexure-2, incorporated clause "C" in the impugned notice
under Annexure-1 to the writ application. Thereafter, the
petitioner had offered his written willingness and option for
redeployment as constable in Chhatrapur, Ganjam, Berhampur,
SRP Cuttack, Commissionerate of Police and Khurda Districts. A
copy of the willingness from the petitioner, dated 11.07.2021, has
also been filed under Annexure-3 to the writ application.
However, it appears that the case of the petitioner was not
considered on the ground that the petitioner had one black mark
which is a major punishment to his discredit and the petitioner
had also suffered a punishment of censure.
8. A perusal of the record reveals that earlier the petitioner had
approached this Court by filing W.P.(C) No.23694 of 2021,
wherein he had challenged the rejection of his (petitioner's)
willingness for redeployment as a Constable in the district cadre.
This Court vide order dated 26.08.2021 was pleased to dispose of
the said writ petition with an observation that this Court was not
inclined to entertain the writ petition since the cause of action for
filing the writ application had not yet arisen. However, while
disposing of the writ application, liberty was granted to the
petitioner to approach the appropriate forum as and when the
cause of action arises.
9. The present writ application further reveals that in the meantime
the Opposite Parties, vide order dated 30.07.2021, have published
a list of 396 Sepoys/Constables who were selected for
redeployment pursuant to the notice dated 08.07.2021. A copy of
such list has been annexed as Annexure-4 to the writ application.
A perusal of the list under Annexure-4 reveals that out of the total
vacancies, i.e. 120, 101, 34, 417 and 64, in respect of Chhatrapur-
Ganjam, Berhampur SRP, Cuttack Commissionerate of Police
and Khurda District respectively, a total number of 10, 19, 09,
160 and 15 posts respectively were filled up.
10. Mr. B.K.Sharma, learned counsel representing the petitioner at
the outset contended that the conduct of the Opposite Parties in
refusing to consider the case of the petitioner is highly illegal,
arbitrary, and smacks of malafide on the part of the Opposite
Party-Authorities. He further contended that the principal issue
involved in the present writ application, which is required to be
examined by this Court, is as to whether the amendment to the
OPS order, 2010 on 08.06.2021 can be applied to the
redeployment of Constables/Sepoys in respect of the vacancies
which had arisen prior to 08.06.2021?
11. In reply to the aforesaid issue, Mr. Sharma, learned counsel for
the petitioner submitted that clause 5(1A)(c) of the OPS order,
2010 provides that each year the written willingness of
Sepoys/Constables are to be called for and is received through the
commandant concerned at SAP headquarters by 31st January for
consideration of their redeployment. The same further provides
that the selection process and issuance of redeployment order may
preferably be completed before March of every year. In such view
of the matter, learned counsel for the petitioner further contended
that the conduct of the Opposite Parties in preparing the list, on
the basis of notice dated 08.07.2021 in respect of the recruitment
year 2021, is absolutely illegal and an arbitrary exercise of the
authority vested in the Opposite Parties by the OPS order, 2010.
He further contended that the Opposite Parties were under a legal
obligation, in view of the order 5(1A)(a) of the OPS order, 2010,
to prepare the list by end of January of the year 2021, and the
entire process, culminating in the issue of the redeployment order,
should have been completed by end of March, 2021. He further
asserted that as per the pre-amendment Rule, the petitioner was
eligible for being considered for redeployment. It was also
contended that the vacancies which had occurred prior to the date
on which the Amended Rules came into force would be governed
by the old rules and not by the later notified amended rules. In
order to support his argument, learned counsel for the petitioner
referred to the judgment of the Hon'ble Supreme Court in State of
Tripura and Others vs. Nikhil Ranjan Chakraborty and Others
reported in (2017) 3 SCC 646.
12. Mr. Sharma, learned counsel for the petitioner, next argued that
the impugned notice seeks information about major/minor
punishments as well as information with regard to the willingness
of the Sepoys/Constables as on 01.01.2021. Thus, it was
contended that as on 01.01.2021 there was no such
disqualification clause in OPS order, 2010. He further contended
that in view of the un-amended OPS order, 2010 a valuable right
had accrued in favour of the petitioner for consideration of his
case for redeployment as per the existing provisions of the OPS
order, 2010. Moreover, the entire exercise is statutorily to be over
by March of 2021. Thus, it was argued that the amendment,
brought vide notification dated 08.07.2021, under Annexure-1 to
the present writ, will not be applicable to the petitioner and
similarly situated other persons. He further contended that the
disqualification clause which was brought subsequently by the
amendment could not have been given effect to retroactively. As
such, it was contended that the list for redeployment of Sepoys/
Constables should have been prepared solely on the basis of the
statutory rule that was prevailing on 01.01.2021.
13. Learned counsel for the petitioner would further argue that clause
5(1A) read with clause 5(1A)(f) clearly stipulates that the
selection process and the issuance of the redeployment order was
to be completed before March every year. In the aforesaid
context, he further argued that the above referred provisions of
the OPS order, 2010 imposes a responsibility/statutory obligation
on the Opposite Parties to complete the selection process within
the timeframe as stipulated by the statutory order itself. Further,
referring to the facts of the present case, it was also contended
that in respect of vacancies of the year 2021, neither the
willingness was sought for by 31st January nor was the
redeployment process concluded by March 2021. On such
grounds, learned counsel for the petitioner submitted that the case
of the petitioner and similarly situated other persons should have
been considered strictly in terms of the provisions contained in
the OPS order, 2010.
14. Furthermore, learned counsel for the petitioner referring to the
order 5(1A)(c) and 5(1A)(a) contended that the amended rules
should have been made applicable to the redeployment of
Sepoys/constables beyond 08.06.2021. So far the redeployment
prior to 08.06.2021 is concerned, the same should have been
considered in terms of the pre-amendment rule, as a vested right
which had already accrued in favour of the petitioner, could not
have been taken away by enacting new laws with retrospective
effect and that the statutory rules should not be allowed to be
tinkered with in such a manner which would result in any
discrimination or violation of any constitutional right. To buttress
his arguments further, the learned counsel for the petitioner
referred to the judgment of the Hon'ble Supreme Court in Gelus
Ram Sahu and others vs. Dr. Surendra Kumar Singh and others
reported in (2020) 4 SCC 484.
15. Learned counsel for the petitioner further contended that had the
authorities been more careful and alert, they would have taken
steps in a time bound manner as has been provided in the OPS
order, 2010. Thus, the entire process of redeployment could have
been concluded before end of March, 2021 as mandated in order
5(1A)(f). In such an eventuality, the petitioner's case would have
definitely been considered favourably as the petitioner was
complying with the terms and conditions as prescribed in the
statutory rules. He further submitted that had the process been
concluded as mandated in the statutory rules, the anomaly
regarding the application of the notification under Annexure-1 to
the Petitioner's case would not have arisen in the first place. In
the aforesaid context, learned counsel for the petitioner further
argued that owing to the delay and latches on the part of the
concerned authorities in carrying out the provisions of the
statutory rules, the petitioner and similarly situated other persons
have been made to suffer.
16. It was also argued that merely because of the latches and delay on
the part of the Opposite Parties to conclude the redeployment
process before end of March, 2021, a valuable right, which had
already accrued in favour of the petitioner and similarly situated
other persons, could not be taken away merely by applying the
disqualification clause which was brought into the statue book by
virtue of the subsequent amendment. While concluding, learned
counsel for the petitioner argued that the considerable delay in
performing the statutory obligation by the Opposite Parties had
resulted in the exclusion of the petitioner from the zone of the
consideration. In the aforesaid context, learned counsel for the
petitioner referred to the judgment Hon'ble Supreme Court in
Rajendra Kumar Agrawal vs. State of Uttar Pradesh and others
reported in (2015) 1 SCC 642.
17. The conduct of the Opposite Parties was also assailed by the
learned counsel for the petitioner on the ground of arbitrariness
and discrimination. In that regard learned counsel for the
petitioner brought to the notice of this Court the fact that the list
dated 30.07.2021 under Annexure-4 contains, as per the
knowledge of the petitioner, as many as three names, i.e. Biswa
Ranjan Acharya, Sudhira Kumar Panigrahi and Purna Ch. Behera
at serial No.140, 150 and 151 respectively, who were redeployed
in Nayagarh, Cuttack and Khorda district respectively, despite
having vigilance cases pending against them.
18. A counter affidavit has been filed on behalf of the Opposite Party
No.3 i.e. Commandant 8th Battalion, OSAP, Chhatrapur. In the
counter affidavit apart from making a formal objection, the
Opposite Party No.3 has stated that the disqualification contained
in notification dated 08.06.2021 was published in the Official
Gazette on 18.06.2021 which is prior to the commencement of the
order of redeployment issued on 30.07.2021. The Counter
Affidavit further reveals that the proposal seeking willingness
from Sepoys was sought for vide letter No.2877 dated
08.07.2022. Before proceeding further, this Court would like to
observe that the date 08.07.2022 has erroneously been mentioned
in Para-11 of the counter. However, later in the same paragraph it
has been reiterated that the willingness was sought only after the
OPS order 2010 was amended vide notification dated 08.06.2021.
In Para-12 of the counter affidavit the amended clause, i.e. the
disqualification clause, has been reproduced. The said clause
stipulates that if the police personnel are having any Major
punishment or more than 5 (five) Minor punishments to their
discredit during their entire service career or any
criminal/departmental/vigilance proceeding or HRPC related
cases are found against the personnel, then his case shall not be
considered for redeployment.
19. The counter affidavit of the Opposite Party No.3 further reveals
that the Opposite Party No.3 has taken a stand that although the
petitioner has laid emphasis on the OPS order, 2010, at the same
time the petitioner has not referred to the letter dated 08.07.2021
and that no ground has been taken by the petitioner that the
aforesaid notification is not in consonance with the OPS order,
2010. Similarly, with regard to the allegation of the petitioner that
three Sepoys were issued with redeployment order despite such
Sepoys having vigilance cases pending against them, the reply in
the counter affidavit reveals that the commandant of the 1 st India
Reserve Battalion, Koraput has been requested vide letter
No.1401/Hqrs dated 18.09.2022 to provide the relevant
document/data and in reply to the aforesaid letter, the
Commandant, vide letter dated 28.10.2022, has given information
that the case is still sub-judice in the Court of Special Judge
(Vigilance) Cuttack vide TR case No.23/2010. On perusal of the
counter affidavit as well as letter under Annexure C/3 to the
counter, this Court is not at all satisfied with such replies as to
such serious allegation of discrimination made by the petitioner
against the Opposite Parties.
20. Learned Additional Government Advocate representing the State-
Opposite Party at the outset contended that all the Opposite
Parties, including the State, have adopted the counter affidavit
filed by the Opposite Party No.3. He further contended that the
Opposite Parties while considering the cases of the eligible
employees for redeployment in the district cadre have strictly
followed the statutory rules. While elaborating upon his
argument, the learned Additional Government Advocate
contended that admittedly the petitioner was having one black
mark which is equal to a Major punishment and 5 (five) Minor
penalties. The dispute involved in the present writ application
pertains to the vacancies of the year 2021. He further referred to
the Odisha Gazette notification dated 8th June, 2021, under
Annexure B/3 to the counter affidavit, to impress upon this Court
that OPS order, 2010 was amended by OPS amended order 2021.
The only amendment that is sought for through the amendment
order 2021 is with regard to the provision contained in order
5(1A)(a). The aforesaid amendment, which came into force from
the date of its Gazette publication on 18.06.2021, provides that
the disqualification clause was suitably modified to incorporate
the provision that in the event the Sepoy is having any Major
punishment or more than 5 (five) Minor punishments to his
discredit during his entire service career, such sepoys shall be
disqualified.
21. He further contended that it is only after the amendment that the
willingness was sought for vide letter dated 08.07.2021 as per
Annexure-1 to the writ petition. Therefore, at the time of
consideration, the amended rule was in force and accordingly, the
cases of the Sepoys were considered. Since the petitioner was not
found eligible, his case for redeployment has not been considered.
In such view of the mater, learned Additional Government
Advocate submitted that the Opposite Parties have not committed
any illegality in not considering the case of the petitioner for
redeployment. He further contended that in view of the settled
legal position, the rules which are in force at the time of
consideration of the case of employees shall be followed by the
employer. Accordingly, it was contended by the learned
Additional Government Advocate that the Opposite Parties have
not committed any illegality in applying the amended rules to the
case of the present petitioner. Therefore, no fault can be found in
the conduct of the Opposite Parties in not considering the case of
the petitioner for redeployment to the district cadre.
22. Heard Mr. Bigyan Kumar Sharma, learned counsel for the
petitioner in the lead matter and other learned counsels for the
petitioners in the connected writ petitions; and Saswat Das,
learned Additional Government Advocate for all the Opposite
Parties. Perused the pleadings of the respective parties as well as
the materials placed on record and relied upon by the counsel
appearing for both sides.
23. On a careful analysis of the factual background of the present
case, this Court observes that the petitioners being aggrieved by
the conduct of the Opposite Parties in not considering their cases
for redeployment to the district cadre on the basis of the option
given by them and further being aggrieved by the letter dated
08.07.2021 under Annexure-1 to the writ application, wherein the
disqualification clause has been introduced for the first time
basing upon OPS amendment order, 2021 which was published in
the Official Gazette 18.06.2021, has approached this court
seeking appropriate relief. The grievance of the petitioners and
similarly situated other Sepoys is that although they are fulfilling
the eligibility criteria which has been laid down in the OPS order,
2021 and have completed 15 years of service and have attained
the age of 40 years as on 01.01.2021, their cases have not been
considered for redeployment in the post of Sepoy/Constable in
district cadre.
24. The further grievance of the petitioner is that although in view of
the order 5(1A)(c) an obligation is cast upon the Opposite Parties
to call for the willingness of Sepoys/Constables through the SAP
headquarters by 31st of January for consideration of their
redeployment, and in view of clause 5(1A)(f) the entire selection
process was required to be completed before March of each year.
However, such time stipulation in the statutory rule has not been
adhered to by the Opposite Parties so far as the present petitioner
and similarly situated other persons are concerned. Further, it is
also the case of the petitioners that their cases are to be considered
strictly in terms of the statutory rules i.e. OPS, order, 2010 and
not in terms of the amendment to the said rule in the year 2021
which came into force subsequent to the point of time when the
valuable right for being considered for redeployment had accrued
in favour of the petitioner, in terms of the statutory rules, in the
shape of OPS order, 2010.
25. Learned Additional Government Advocate on the other hand has
taken a stand that the willingness was sought for only on
08.07.2021 and pursuant to such letter under Annexure-1, the
petitioner and similarly situated other persons have submitted
their willingness through the SAP headquarters. Therefore, at the
time of the consideration of their cases the amended rule of the
year 2021 was in force. Therefore, the case of the petitioner and
similarly situated other persons, whose nomination was received
pursuant letter dated 08.07.2021, can only be considered in the
light of the amendment of the year 2021 to the OPS order, 2010
which came into force w.e.f. 18.06.2021.
26. Moreover, this Court, while adjudicating the batch of present writ
applications and examining the rights and claims of the
petitioners and similarly situated other persons, is required to first
decide as to whether the petitioner's case is required to be
considered under the pre-amended OPS order, 2010 or by taking
into consideration the amendment to the said order which came
into force on 18.06.2021? Before delving into the matter in detail,
this Court would like to first examine the legal aspect of the
matter. The petitioner claims that his right for redeployment,
under the Orissa Police Service (Method of Recruitment and
Conditions of Service of Constable) order, 2010, has been
violated in the present case. The aforesaid order was notified by
the Home Department, Govt. of Odisha on 23.12.2010. The Govt.
of Odisha in the Home Department, in exercise of the power
conferred by Section 2 of the Police Act, 1861 has enacted the
aforesaid order. Therefore, the OPS order, 2010 is a subordinate
legislation sub-servient to the Police Act, 1861. As such, there is
absolutely no doubt that the same has a statutory flavour. On
perusal of the aforesaid OPS order, 2010 this Court observes that
order 5 was amended vide Gazette notification No.205 dated
24.01.2014 and on such amendment the new clause (1A) and
ancillary sub-clauses were introduced to the order 2010. Order
5(1A)(a) provides as follows:
"a Sepoys/Constables in order to be eligible for
consideration for redeployment must have completed 15
years of service and attained age of 40 years as on 1st day
of January in the year in which the "redeployment" is to
be made."
Similarly clause (c) provides;
"each year the written willingness of Sepoys/Constables
will be received through the commandants concerned are
SAP headquarters by 31st of January for consideration of
their redeployment".
27. Further, Clause (1A)(f) of the said order 5, which is one of the
main planks of the argument advanced by the learned counsel for
the petitioner, provides as follows:
"the selection process and issue of redeployment
order may preferably be completed before March of each
year."
28. On perusal of the order 5 of the OPS order, 2010, particularly the
clauses which were brought into force vide Gazette notification
dated 24.01.2014 and 16.01.2016, and are a part and parcel of
order 5 dealing with the eligibility criteria, it can be seen that the
said clauses stipulate the eligibility criteria for redeployment of
Sepoys/Constables and provide for specific eligibility criteria for
such redeployment. The Sepoy/Constable who has completed 15
years' of service and attained 40 years of age as on the 1 st day of
January of the year in which the redeployment is to be made, shall
be considered for redeployment. Similarly clause (c) and clause
(f) which were brought into the rule book by way of the
amendment of the year 2014 and 2015, provide for time
stipulation with regard to such redeployment.
Clause 5(1A)(a) of the OPS order, 2010 which has been
quoted hereinabove was amended vide Home Department
notification dated 08.06.2021, and the same came into force w.e.f.
18th June, 2021. The said amendment provides;
"subject to condition that he has not been inflicted any
major punishment or more than 5(five) minor punishment
to his discredit during his entire service career and no
departmental proceeding or criminal proceeding or
vigilance case or Human Rights Protection cell related
cases shall be pending against him."
29. In course of his argument learned counsel for the petitioner
submitted that the proforma which has been appended to the letter
dated 08.07.2021 under Annexure-1 stipulates a cutoff date and
provides that the willingness is to be given in a particular format.
Such format reveals that eligibility as provided in order 5(1A)(a)
shall be considered by taking into consideration the cutoff date as
01.01.2021. Although the notice for supplying the willingness
was issued on 08.07.2021 under Annexure-1, the eligibility
criteria is required to be fulfilled by taking into consideration the
cutoff date as on 01.01.2021. Therefore, there exists no doubt that
the selection for redeployment in respect of the year 2021 and the
vacancy position, which have been given district wise, appear to
be up to 01.01.2021. The consent letter under Annexure-3 dated
11.07.2021, submitted by the petitioner, reveals that the petitioner
was initially appointed as a Sepoy on 06.05.2002. As such, he had
completed 15 years of service on 06.05.2017. Similarly, the date
of birth of the petitioner has been shown to be 08.05.1977. Which
implies that the petitioner has also complied with the age
requirement, i.e. he has attained 40 years of age on 08.05.2017.
Therefore, by May, 2017 the petitioner was eligible for
redeployment in terms of order 5 of the OPS order, 2010.
However, his case was not considered from May, 2017 to July,
2021 for the reasons that are best known to the authorities. No
explanation whatsoever is coming forth from the side of the
Opposite Parties for such delay in considering the case of the
petitioner for redeployment to the district cadre. Moreover, letter
dated 30.07.2021 under Annexure-4 reveals that the entire
vacancy in the district cadre for the year 2021 was to be filled up
by redeployment to the extent of 100% of vacancies in the rank of
Constable. Such a decision was taken as a one-time measure by
relaxing the provisions of Rule 4 (which provides for filing up of
20% vacancies) of the OPS order, 2010.
30. Learned counsel for the petitioner, in course of his argument
referred to the judgment of the Hon'ble Supreme Court in Gelus
Ram Sahu's Case (Supra). In the said judgment the Hon'ble
Supreme Court was required to decide an issue as to whether
retrospective changes in qualificatory requirements can affect the
existing appointments. In reply to the said question, the Hon'ble
Supreme Court has held that even if in a situation where the
eligibility conditions are clarified from an anterior date, it may
not be prudent to affect the appointments which had been made
on the basis of a possible understanding of the eligibility
conditions. While deciding the aforesaid question, the Hon'ble
Supreme Court has further gone on to reiterate the law by
observing that;
"this Court in a range of decisions including TR Kapur
vs. State of Haryana reported in (1986) SCC 584, K.
Ravindranath Pai vs. State of Karnataka reported in
(1995) SUPP (2) SCC 246 and K. Narayanan vs. State of
Karnataka (1994) SUPP (1) SCC 44 has opined that
vested rights cannot be impaired by enacting law with
retrospective effect and that such statutory rules ought
not to result in any discrimination or violation of
Constitutional rights."
31. On a careful analysis of the argument advanced by the learned
counsel for the petitioner, this Court has examined the OPS order,
2010, wherein, it is observed that, order 5 was amended in the
year 2014 and 2015 by inserting clause (1A) and certain sub
clauses. Sub Clause (c) and (f) specifically stipulate a time frame
within which the willingness is to be received and the entire
selection process, culminating in issuance of redeployment order,
shall be concluded before March of the relevant year. On a careful
analysis of the order 5 of OPS order, 2010 and subsequent
amendment in the year 2014 and 2015, this Court is of the view
that the law makers, in their wisdom, have incorporated the
aforesaid two provisions in order to make the entire process time
bound. However, as is evident from the case of the petitioner,
although he was eligible from May, 2017, the petitioner's case
was taken up only in the year 2021. Thus, this Court is of the
further view that unless the time stipulation under clause (c) and
clause (f) of order 5 is strictly adhered to by the Opposite Parties,
the very purpose of such amendment would be defeated.
Therefore, this Court has no hesitation in coming to a conclusion
that a valuable right had accrued in favour of the petitioner on his
fulfilling the eligibility criteria for redeployment under the OPS
order, 2010 in respect of the recruitment year 2021. Moreover, the
Opposite Parties were under a legal obligation to initiate the
process of receiving willingness by 31st of January, 2021 and to
conclude the entire process of redeployment by March, 2021. Had
the process been properly followed by the concerned authorities,
the petitioner would have been redeployed, since he fulfills the
eligibility criteria. Therefore, this Court has no hesitation in
coming to a conclusion that a valuable right had indeed accrued in
favour of the petitioners in view of the provisions contained in the
OPS order, 2010.
32. Learned counsel for the petitioner next referred to a judgment of
the Hon'ble Supreme Court in Rajendra Kumar Agrawal's case
(supra). By referring to the aforesaid judgment, learned counsel
for the petitioner submitted that the Hon'ble Supreme Court has
categorically held that relaxation of minimum qualifying service
requirement, subsequent to the vacation of stay on regular
selection, when selection of officiating appointees have been
permitted even prior to vacation of stay on regular selection, does
not amount to retrospective amendment of rules of eligibility after
commencement of regular selection process. Moreover, it was
held that the relaxation in that case was valid. Learned counsel for
the petitioner also referred to the judgment in Nikhil Ranjan
Chakraborty's Case (supra). In the said judgment, the issue
involved was that the Tripura Civil Service Rules 1967 was
amended to include certain feeder cadre posts under scheduled IV
to the Rules. Such amendment was carried out in consultation
with the Tripura Public Service Commission by publishing the
Gazette notification on 24.12.2011. However, on 24.11.2011,
pursuant to rule 13 of the concerned rule, a selection committee
was constituted for considering the cases of eligible officers from
the feeder cadre. On the basis of the amendment, the State of
Tripura issued communication to all departments to send the
names of all the eligible officers pursuant to such amendment.
Such expansion of the cadre by the State was challenged by some
officers who belonged to the un-amended feeder cadre. While
deciding the issue, the Hon'ble Supreme Court in Para-8 of the
judgment has held that the judgment in Y.V.Rangaiah vs.
J.Sreenivasa Rao reported in (1983) 3 SCC 284 would not be
applicable to the facts of that case. It was further held that the said
judgment (in Y.V.Rangaiah's case) was rendered on the
interpretation of Rule 4(a)(1)(i) of the Andhra Pradesh
Registration and Subordinate Service Rules, 1976. The aforesaid
Rules provided for preparation of a panel of eligible candidates
every year in the month of September. This was a statutory duty
cast upon the state. The exercise was required to be conducted
each year. Thereafter, only promotion orders were to be issued.
However, no panel had been prepared for the year 1976.
Subsequently, the Rule was amended which rendered the
petitioners therein ineligible to be considered for promotion. In
these circumstances, it was observed by the Hon'ble Supreme
Court that the amendment would not be applicable to the
vacancies which had arisen prior to the amendment. The
vacancies which occurred prior to the amended rules would be
governed by the old rules and not the amended rules. The
Supreme Court further observed that the case which they were
considering was not similar to the facts involved in
Y.V.Rangaiah's case as no statutory duty was cast which was
required to be mandatorily performed under the applicable rules.
33. The above-noted judgment of the Hon'ble Supreme Court has
further gone on to hold that by now it is a settled position of law
that a candidate has a right to be considered in the light of the
existing rules, which implies the "rule in force" on the date the
consideration took place. There is no rule of universal or absolute
application that vacancies are to be filled invariably by the law
existing on the date when the vacancy arises. The requirement of
filling up old vacancies under the old rules is interlinked with the
candidate having acquired a right to be considered for promotion.
The right to be considered for promotion accrues on the date of
consideration of the eligible candidates. Unless, of course, the
applicable rule, as in Y.V.Rangaiah's case (supra), lays down
any particular time frame within which the selection process is to
be completed.
34. The position of law is thus well settled and unambiguous that the
right to be considered for promotion or redeployment, as in the
present case, has to be seen in the light of the existing rules i.e.
the rules in force on the date the consideration took place.
35. Learned counsel for the State on the other hand referred to the
judgment in Deepak Agarwal vs. State of UP reported in (2011)
6 SCC 725. In Deepak Agarwal's Case (supra) the appellants
were Technical Officers and along with Assistant Excise
Commissioners were eligible to be considered for promotion to
the post of Deputy Excise Commissioner. A few days before the
DPC was scheduled to meet to consider the case of eligible
officers for promotion, the concerned rules were amended. As a
result, the Technical Officers stood excluded as the feeder cadre
posts for promotion to the Deputy Excise Commissioner. The
Technical Officers, having failed in the High Court, approached
the Hon'ble Supreme Court. Ultimately the Hon'ble Supreme
Court dismissed the appeal of the Technical Officers by
categorically holding that it cannot be accepted that the accrued or
vested right of the appellant has been taken away by the
amendment.
36. Before concluding the analysis of the judgments on the issue, this
Court, at this juncture would like to examine the impact of latest
judgment of the Hon'ble Supreme Court in the case of State of
Himachal Pradesh and others vs. Raj Kumar and others
reported in (2023) 3 SCC 773. In Raj Kumar's case (supra) the
Hon'ble Supreme Court was dealing with the Himachal Pradesh
Recruitment and Promotion Rules, 1966 (i.e. the rules, 1966)
enacted in exercise of the power under Article 309 of the
Constitution. The facts of the case reveal that there were five
posts of Labour Officers and such Posts were filled by promotion
from i) Factory Inspectors, ii) Labour Inspectors and iii)
Secretariat superintendents, being the feeder category post. On
20.07.2006, seven additional Posts of Labour Officers were
created with the sanction of the Government. As a consequence,
the total number of posts of Labour Officer increased from five to
twelve. The respondents in the SLP were working as Labour
Inspectors. After sanction of the Additional Posts, the aforesaid
rules of the year 1966 came to be amended on 25.11.2006. Under
the new rules the recruitment of the post of Labour Officers was
to be made by promotion as well as through direct recruitment in
the ratio of 75% and 25% respectively. Accordingly, the
promotional posts of Labour Officers increased from five to nine
and the direct recruitment posts came out to be three. This action
of the State Government was challenged by the respondents on
the ground that the vacancies arose prior to the amendment or
promulgation of the new rules, therefore, all such vacancies must
be filled only by promotion.
37. Initially, in the aforesaid factual backdrop, the respondents in SLP
approached the Administrative Tribunal. The Administrative
Tribunal, by order dated 24.01.2007, directed the State
Government to consider the grievance of the respondents. The
State Government, after considering the grievance of the
respondents, rejected the claim of the respondents. Challenging
the aforesaid rejection order, the respondents again approached
the State Administrative Tribunal. While the matter was pending
before the State Administrative Tribunal, the Government
published the advertisement for recruitment to the aforesaid posts
through the Public Service Commission. The Public Service
Commission completed the recruitment process and
recommended the names of the respondent Nos.4 to 6, which was
accepted by the State and such respondents were given
appointment. Subsequently, challenging the appointment of
respondent Nos.4 to 6, the Respondent Nos.1 to 3 approached the
High Court of Himachal Pradesh by filing a Civil Writ Petition
No.3028 of 2008, which was allowed by the Division Bench of
the High Court of Himachal Pradesh vide order dated 28.12.2009.
Thereafter, challenging the order of the Division Bench of High
Court of Himachal Pradesh, the State Government approached the
Supreme Court by filing the Civil Appeal. Similarly, the direct
recruit appointees i.e. Respondent Nos.4 to 6 also filed a SLP
which was numbered as Civil Appeal 9747 of 2011 after leave
was granted.
38. In the above-noted Civil Appeal, the Hon'ble Supreme Court
encountered the issue as to whether the vacancies were to be
filled up under the un-amended rules i.e. the rules that were in
force when the vacancies arose or, should such recruitment be
governed under the amended rules which came into force at the
time of consideration of the cases of the respondents for
promotion to the post of Labour Officers. It may not be out place
to mention here that the High Court of Himachal Pradesh decided
the issue by following the ratio laid down in the judgment of Y.V.
Rangaiah vs. J.Sreenevasa Rao reported in (1983) 3 SCC 284.
Therefore, essentially the Supreme Court was required to test the
validity of the pronouncement of law by the Hon'ble Supreme
Court in Y.V. Rangaiah's case in Raj Kumar's case.
39. While analyzing the legal position, the Hon'ble Supreme Court in
Raj Kumar's case (supra) has taken note of at least 15 judgments
wherein an exception had been carved out from the proposition of
law laid down in Y.V. Rangaiah's case (supra). While laying
down the correct proposition of law in Raj Kumar's case, the
Hon'ble Supreme Court has categorically held that a review of the
cases distinguishing Y.V. Rangaiah's case reveals that, the
Hon'ble Supreme Court has been consistently carving out
exceptions to the broad proposition formulated therein, holding
that there is no rule of universal application to the effect that
vacancies must necessarily be filled on the basis of the rules
which existed then, and consequently, impliedly overruled Y.V.
Rangaiah's case. The Hon'ble Supreme Court has also referred to
the provisions contained under Articles 309, 310 and 311 of the
Constitution of India and has held that though relationship
between employee and the State originates in contract, but by
virtue of constitutional constraints, coupled with legislative and
executive rules governing service, such relationship attains
"status" as against contract. Thus, it is clear that the rights and
obligations of Government employees are no longer determined
by consent of both parties, but by statue or statutory rules framed
in that regard.
40. After analyzing the 15 judgments, the Hon'ble Supreme Court has
finally arrived at a conclusion, which has been recorded in Para-
82 of the said judgment ((2023) 3 SCC 773). It has been held
therein that there is no rule of universal application that the
vacancies must necessarily be filled on the basis of the law which
existed on the date when they arose, and that Y.V. Rangaiah's
case must be understood in the context of the rules involved
therein. Further, it was also held that, it is now a settled
proposition of law that a candidate has a right to be considered in
the light of the existing rules, which implies "rule in force" as on
the date on which the consideration takes place. The right to be
considered for promotion occurs on the date of consideration on
the eligible candidates. Further, in Para-82.5 it has been held that
when there is no statutory duty cast upon the State to consider
appointments/ vacancies that existed prior to the amendment, the
State cannot be directed to consider the cases.
41. The Hon'ble Supreme Court has also in the judgment in Union of
India vs. Krishna Kumar reported in (2019) 4 SCC 319, laid
emphasis on the pronouncement of law to the effect that the right
to be considered for promotion in accordance with the rules which
was prevailing on the date on which consideration for promotion
takes place. Finally, in Paragraph-85.1, the Hon'ble Supreme
Court in Raj Kumar's case (supra) has categorically held that the
statement in Y.V. Rangaiah vs. J.Sreenevasa Rao reported in
(1983) 3 SCC 284 that, "the vacancies which occurred prior to the
amended rules would be governed by the old rules and not by the
amended rules", does not reflect the correct proposition of law
governing services under the Union and the State under Part XIV
of the Constitution of India. As a result, It has been overruled by
the Hon'ble Supreme Court.
42. In view of the aforesaid declaration of law by the Hon'ble
Supreme Court in Raj Kumar's case (supra), the proposition of
law with regard to filling up of the vacancies arising prior to the
amended rules is very clear, and such vacancies are to be
governed by the amended rules or the Rules in force at the time of
consideration for promotion. However, the case of the present
petitioner stands in a different footing. As such, the general
proposition of law with regard to filling up of the vacancies
arising prior to the rules were amended, by applying the amended
rules, would not be applicable in the present case, in as much as,
in the present case the Government was under a statutory
obligation to fill up such vacancies in a time bound manner as has
been laid down in the relevant rules referred to hereinabove.
Therefore, this Court is of the view that the judgment in Raj
Kumar's case (supra) would not be applicable to the facts of the
petitioners' case.
43. Reverting back to the facts of the present case, it is observed that
the petitioners were eligible since 2017 and that no reason
whatsoever is coming forth from the concerned Opposite Party-
authorities as to why their names were not sent for consideration
for redeployment. Be that as it may, the statutory rules, in the
shape of the OPS order, 2010, provide a time stipulation within
which the selection process is required to be concluded. Thus, the
same confers a right upon the petitioner to be considered for
redeployment to the district cadre by March, 2021. However, no
such selection process was started till July, 2021. In the
meantime, the rule was amended, incorporating additional
disqualification criteria. The petitioner and similarly situated
many other persons are likely to be adversely affected by such
disqualification criteria. Learned counsel for the State has
nowhere denied that the persons who had suffered major
punishment earlier have not been extended with benefits of
redeployment in the district cadre. However, such disqualification
was introduced for the first time in June, 2021. It is further
observed that had the selection process been conducted within the
time frame as stipulated in the rules, then the petitioner would
have received the redeployment order by March, 2021. It further
appears that the reply of the State Counsel, to the specific
assertion of the learned counsel of the petitioner that persons
having vigilance cases against them have been extended with a
benefit of redeployment, is not satisfactory. In such view of the
matter, if the petitioner is kept out of the zone of the consideration
in view of the amendment, then the same would definitely be
discriminatory in nature, and would violate Article 14 of the
Constitution of India.
44. In view of the aforesaid analysis of the legal position, further
keeping in view the peculiar facts and circumstances involved in
the present writ application, this Court is of the considered view
that the cases of the petitioners and similarly situated other
persons in the connected batch of writ applications should have
been considered without applying the subsequent amendment of
the year 2021 and strictly in terms of the OPS order, 2010 that too
by end of March, 2021. The same having not been followed in the
case of the present petitioners, this Court has no hesitation in
allowing the writ application of the petitioners with a further
direction to the State-Opposite Party to consider the case of the
petitioners, in terms of the OPS order, 2010 as it stood prior to the
amendment in June, 2021, against the vacancies in respect of the
year 2021. It is stated at the bar that the vacancies of the year
2021 have not been filled up as of now. Thus, the Opposite
Parties are directed to consider the case of the petitioners for thier
redeployment to the district cadre within a period of two months
from the date of communication of a copy of this judgment, in
terms of the observations and directions given hereinabove.
45. Accordingly, the writ petition stands allowed. However, there
shall be no order as to costs.
(A.K. Mohapatra)
Judge
Orissa High Court, Cuttack
The 4th November, 2024
Rubi,Jr. Stenographer
Location: High Court of Orissa, Cuttack
Date: 08-Nov-2024 17:39:53
