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2006 DIGILAW 821 (ORI)

Krupasindhu Nayak v. Government of Orissa

2006-12-04

ASOK KUMAR GANGULY, N.PRUSTY

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JUDGMENT A. K. GANGULY, J. : The subject matter of challenge in this writ petition is a judgment and order-dated 24.09.2002 passed by the Orissa Administrative Tribunal, Bhubaneswar (hereinafter referred to as “the Tribunal”). By the said judgment and order, the Tribunal allowed the Original Application filed by one Keshab Chandra Behera, who is opposite party No.4 in this writ petition. The dispute was between the said Keshab Chandra Behera and the present petitioner Krupasindhu Nayak who was respondent No.4 in the Original Application before the Tribunal. The material facts of the case are enumerated below :- Both the petitioner (Krupasindhu Nayak) and opposite party No.4 (Keshab Chandra Behera) were working as Senior Assistants in the office of the Orissa Public Service Commission, Cuttack. The seniority of Shri Nayak in the rank of Senior Assistant over Shri Behera is not disputed and has virtually been conceded as recorded in the judgment and the order of the Tribunal. It is also not in dispute that Shri Nayak has been confirmed in the post of Senior Assistant prior to Shri Behera. But the dispute arose when Shri Nayak, being a Law Graduate, was sent on deputa¬tion as Legal Assistant/Assistant Law Officer in the same office, since the said post had fallen vacant. It may be noted that while Shri Nayak was working as a Legal Assistant, his lien in the previous post of Senior Assistant was maintained. This fact is also not disputed. In the meantime, the question of promotion to the post of Section Officer Level-II (Tabulator) came up for consideration and in that post, Shri Nayak was promoted some time in the year 1996. This gave rise to the Original Application (O.A. No.1944 of 1996) being filed by Shri Behera. This fact is also not disputed. In the meantime, the question of promotion to the post of Section Officer Level-II (Tabulator) came up for consideration and in that post, Shri Nayak was promoted some time in the year 1996. This gave rise to the Original Application (O.A. No.1944 of 1996) being filed by Shri Behera. During the pendency of the Original Application before the Tribunal, Shri Behera had also been promoted to the post of Section Officer Level-II but the grievance of Shri Behera was that he should be made senior to Shri Nayak as according to his contention Shri Nayak did not have eligibility for being promoted to the said post of Section Officer Level II.) Ultimately, the contention of Shri Behera prevailed with the Tribunal and the Tribunal by the judgment and the order, which is under challenge, directed that Shri Behera should be placed as senior above Shri Nayak in the promotional post of Section Officer (Level II) and the Tribunal gave certain consequential directions. In this writ petition, Mr. Rath, learned counsel for the petitioner specifically challenged those directions of the Trib¬unal on various grounds. The first ground of challenge was that the Tribunal cannot, in exercise of its power of judicial review, direct who is to be promoted at what point of time to which post. It is specifically averred that since the Tribunal has not set aside the promotion of Shri Nayak, the direction that Shri Behera would be senior to Shri Nayak is improper. Learned counsel submitted that at the relevant point of time there was only one vacancy in the post of Section Officer (Level II) which has been occupied by Shri Nayak in 1996 by virtue of his promotion. Since his promotion has not been set aside, another person, namely, Shri Behera cannot be directed to be promoted by the Tribunal to that post in the ab¬sence of any vacancy. The next submission by the learned counsel is that, so far as the question of eligibility is concerned, the finding of the Tribunal cannot be sustained. It has been specifically submitted that as long as the petitioner retains his lien in the post of Senior Assistant, the period of his service on deputation in the same office in the post of Legal Assistant, which is an ex-cadre post, should be counted as the service in the post of Senior Assistant. It has been specifically submitted that as long as the petitioner retains his lien in the post of Senior Assistant, the period of his service on deputation in the same office in the post of Legal Assistant, which is an ex-cadre post, should be counted as the service in the post of Senior Assistant. In support of his contention, learned counsel for the petitioner has relied on a decision of the Supreme Court in the case of R. L. Gupta and another v. Union of India and others reported in A.I.R.1988 Supreme Court 968. In paragraph 13 of the said judgment, the learned Judges made it clear that merely because some employees have given their consent to go on deputa¬tion, they should not be allowed to suffer by loss of seniority or promotion in the parent cadre unless there is a specific rule to that effect or other good reasons for it. In the instant case, the attention of this Court has been drawn to Regulation 11 of the Orissa Public Service Commission (Conditions of Service) Regulations, 1952 (hereinafter referred to as “the Regulations” by the learned counsel for opposite party No.4) (Shri Behera). Very much relying on the said Regulations, the learned counsel submitted that this Regulations having been framed in exercise of power under Article 309 of the Constitution have a statutory force. Learned counsel further submitted that under Regulation 11(2) of the said Regulations it is provided that Senior Assistant, who has not completed nine years of con¬tinuous service on the first day of January of the year in which the Selection Board meets, shall not be eligible to be considered for promotion to the post of Section Officer, Level II. Learned counsel relying on the said Regulations submits that having-regard to the period for which Shri Nayak spent on deputa¬tion, the same should be excluded from being counted for the period of eligibility of nine years and if it is so counted, Shri Nayak does not have the eligibility to be promoted to the post of Section Officer (Level II) as he has not worked for nine years in the post of Senior Assistant. This contention does not find support from the Regulations indicated above. Apart from that, the decision in the case of R.L. Gupta (supra) in Para 13 thereof clearly points out to the contrary. This contention does not find support from the Regulations indicated above. Apart from that, the decision in the case of R.L. Gupta (supra) in Para 13 thereof clearly points out to the contrary. There is a Division Bench decision of this Court also in the case of Dr. Sribatsa Kumar Mohapatra vs. State of Orissa and others decided in W.P.(C) No.4670 of 2005. In that judgment the Division Bench of this Court (to which one of us is a party) has held that if a person continues in a different teaching post retaining his lien in the parent post, it cannot be said that he was not in service in the parent post and in paragraph-18 it has been held that the teaching experience cannot be counted by excluding the period of deputation. In view of such well settled legal position, we are of the opinion that the period spent on deputation by Shri Nayak in the post of Legal Assistant cannot be excluded for the purpose of counting his period of eligibility in the post of Senior Assis¬tant for promotion to the post of Section Officer (Level- II). Therefore, the very basis of the finding by the Tribunal that the petitioner is not eligible for promotion to the post of Section Officer (Level- II) is erroneous. However, the petition¬er’s promotion to the post of Section Officer (Level-II) has not been quashed by the Tribunal though in the Original Application, the specific prayer made by applicant Shri Behera was for quas¬hing the order of promotion of the petitioner to the post of Section Officer (Level-II). It is therefore clear that the petitioner’s promotion to the said post also cannot be interfered with and Shri Behera (oppo¬site party No.4), who has been promoted to the said post in 1998 cannot, by a direction of the Tribunal, be promoted to the post prior to the petitioner. In fact, the Tribunal cannot decide the seniority of employees in such a manner. If the Tribunal finds that any order of promotion has not been correctly given, it may quash the same and may direct the authorities to reconsider the matter afresh but it cannot on its own fix the seniority of a person to a promotional post at a point of time when that person was not even promoted to the same. If the Tribunal finds that any order of promotion has not been correctly given, it may quash the same and may direct the authorities to reconsider the matter afresh but it cannot on its own fix the seniority of a person to a promotional post at a point of time when that person was not even promoted to the same. In fact, from the materials which have been placed before us, it appears that the petitioner and opposite party No.4 were simul¬taneously considered for promotion in the year 1996 to the post of Section Officer (Level-II) but since Shri Behera was found wanting, he was not promoted and Shri Nayak was promoted to the said post and there was only one vacancy. In view of the decision of the Supreme Court in the case of State of Mysore Vs. C.R. Seshadri and others reported in 1974 Su¬preme Court 460, the fixation of seniority of Shri Behera in a promotional post at a point of time when he was not promoted cannot be done by the Tribunal and/or even by the High Court. The Court may only issue directions and leave it to the Executive to carry it out. In other words, Court may set aside an order and direct reconsideration on correct principles. That being the clear legal position, this Court is not in a position to sustain the judgment of the Tribunal, which suffers from serious infirmi¬ty as pointed out above. The judgment of the Tribunal is, therefore, set aside and obviously the consequential direction given in the said judgment cannot be worked out. Since this Court has already granted stay of further promotion on the basis of the judgment of the Tribun¬al, no further complication have arisen in this case. The senior¬ity of both Behera and Nayak in the promotional post will be decided on the basis of their dates of promotion and in accor¬dance with law. Therefore, the writ petition succeeds and the judgment and order of the Tribunal is set aside. There would be no order as to costs. N. PRUSTY, J. I agree. Petition allowed.