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2008 DIGILAW 1092 (ORI)

Bimal Prasanna Acharya v. State of Orissa

2008-12-03

I.MAHANTY, L.MOHAPATRA

body2008
JUDGMENT L. MOHAPATRA, J. — All the three writ applications have been filed assailing the legality of the judgment passed by the Orissa Administrative Tribunal, Bhubaneswar in O.A. No.807 of 2001. 2. The petitioners in W.P.(C) No.9249 of 2007 and W.P.(C) No.9197 of 2007 were not parties before the Tribunal. But the writ applications have been filed by them on the ground that the impugned judgment affects them materially. W.P.(C) No.9515 of 2007 has been filed by the Department challenging the said judg¬ment of the Tribunal. 3. Aurobinda Kumar Sinha and Laxmi Narayan Mohapatra, the private opposite parties in all the three writ applications filed a joint application before the Tribunal alleging therein that they have been wrongly treated as promotees of the year 1988 to Orissa Forest Service, Class-II instead of 1986 and accordingly their respective seniority in the Gradation List have been wrong¬ly fixed. 4. Both the applicants as aforesaid joined as Forest Rangers under the State Government in the year 1974. After ren¬dering about 12 years of service, their cases were considered for promotion to Class-II Orissa Forest Service. The Departmental Promotion Committee in its meeting held on 30.1.1986 considered the cases of the applicants along with others in terms of the Regulations of the Orissa Forest Service Class-II (Appointment by Promotion) Regulation, 1985. As it appears, against 36 vacancies identified, 108 eligible Forest Rangers were considered by the Departmental Promotion Committee for promotion and in terms of the Regulation, select list of 72 Forest Rangers was prepared and the name of the applicants figured at Sl. Nos.26 and 27 respectively in the said list. Since there was urgent requirement of filling up of the posts for execution of the Development Pro¬grammes undertaken by the Department, the first 36 officers out of the select list were given ad hoc promotion subject to concur¬rence of the Orissa Public Service Commission. Accordingly the applicants who figured at Sl. Nos.26 and 27 respectively in the select list were given ad hoc promotion in the year 1986 and continued as such till the OPSC concurred their selection on 31.12.1987. The applicants were thereafter regularly appointed to OFS Class-II by office order dated 29.8.1988 after the concur¬rence of the OPSC was obtained. Accordingly the applicants who figured at Sl. Nos.26 and 27 respectively in the select list were given ad hoc promotion in the year 1986 and continued as such till the OPSC concurred their selection on 31.12.1987. The applicants were thereafter regularly appointed to OFS Class-II by office order dated 29.8.1988 after the concur¬rence of the OPSC was obtained. Therefore, even though the appli¬cants were found suitable for promotion to the rank of ACF (OFS Class-II) on 31.1.1986 by the Departmental Promotion Committee, their regular appointment order was issued on 29.8.1988 after their cases were recommended by the OPSC. The petitioners in W.P.(C) No.9249 of 2007 and W.P.(C) No.9197 of 2007 are direct recruits of the year 1988 to OFS Class-II service. According to the Regulation, the direct recruits are to be placed above the promotees after such promotions are given in the same year. Ac¬cordingly the petitioners in the aforesaid two writ applications were placed above the private opposite parties (applicants before the Tribunal) in the Gradation List of ACFs. Challenging such placement, the applicants approached the Tribunal solely on the ground that the vacancies occurred in the year 1985 and they were given ad hoc promotion in the year 1986 and therefore even if OPSC concurred their promotion on 31.12.1987, they have to be treated as promotees of 1986 and accordingly are to be placed above the direct recruits of 1988 in the Gradation List. The Tribunal having accepted the case of the applicants allowed the Original Application which has given rise to these three writ applications. 5. The sole question for consideration by this Court is as to whether the ad hoc service rendered by the private opposite parties who were applicants before the Tribunal from the date of their ad hoc promotion till they were regularly appointed on 29.8.1988 can be taken into account for the purpose of seniority and they can be treated as promotees of the year 1986. 6. 6. The learned counsel appearing for the petitioners in all the three writ applications referred to the relevant provi¬sion contained in the Regulation and also relied upon a judgment of this Court confirmed in Supreme Court in support of their case that such ad hoc period cannot be taken into account for the purpose of fixation of seniority and the private opposite parties who were applicants before the Tribunal have to be treated as promotees of the year 1988 and accordingly, their seniority has to be fixed below the petitioners in two out of the three writ applications. It was contended by the private opposite parties who were applicants before the Tribunal that the applicants had been promoted to the post of ACF in the year 1986 on ad hoc basis after following the due procedure for such promotion and their promotion not being of stop gap arrangement, the period of ad hoc service has to be taken into account for the purpose of fixation of seniority and they have to be treated as promotees of the year 1986. 7. Having heard learned counsel for the parties on the above issue, we think it proper to refer some of the provisions contained in the Orissa Forest Service, Class-II (Recruitment and Conditions of Service) Rules, 1984 (hereinafter called the ‘Rules’). Rule 4 provides for method of recruitment and there are only two methods of recruitment. The first method is by direct recruitment on the basis of competitive examination and the second method is by way of promotion from among the Forest Rangers. Rule 7 provides that the number of vacancies in the service to be filled up in any particular year by direct recruitment and by promotion shall be determined by the Government. Rule 12 deals with percentage of recruitment. It provides that the percentage of direct recruits and persons recruited by way of promotion shall be 50 and 50 respectively, of the total strength of the cadre. If adequate number of candidates are not available for direct recruitment, the resulting vacancies shall be filled up by way of promotion. Rule 14 deals with eligibility of Forest Rangers for the purpose of promotion and Rule 15 provide for preparation of a select list for the promotees. If adequate number of candidates are not available for direct recruitment, the resulting vacancies shall be filled up by way of promotion. Rule 14 deals with eligibility of Forest Rangers for the purpose of promotion and Rule 15 provide for preparation of a select list for the promotees. Rule 15 provides that the recommendation of the Commission made for promotion of Forest Rangers in accordance with the regulations shall be placed before the Government for approval after which such list shall, subject to modifications, if any, by the Government, form the select list for appointment to the service by promotion, which shall ordinarily be in force for one year from the date of its approval by the Government. Rule 16 deals with fixation of inter se seniority which provides that the seniority of officers appointed to the service by direct recruitment and promotion shall be in the following order: (a) when officers are appointed by promotion and by direct recruitment during the same year, the directly recruited officers shall en block be senior to the promoted officer irrespective of their dates of appointment; Rule 17 deals with the probation period. These are the relevant rules for the purpose of this case. The other rule which also has relevance for the purpose of the case is Rule 13 which provides that there shall be constituted a Departmental Committee for selection of persons for promotion to the service under Clause (b) of Rule 4. If the case of the parties is examined in the light of the above provisions, it will be found that 36 vacancies in Class-II service were identified in the year 1985 and 108 eligible Forest Rangers were considered by the Departmen¬tal Committee constituted under Rule 13 of the said Rules. Out of 108 eligible Forest Rangers, 72 were recommended by the Committee for promotion in terms of the Rule and in the list of 72 offi¬cers, the names of the applicants find place at Sl. Nos.26 and 27. Such recommendation was required to be concurred by the OPSC and was also to be approved by the State Government. However considering the exigency, 36 officers including the applicants before the Tribunal were given ad hoc promotion to OFS Class-II and they continued as such till OPSC concurred the recommendation of the Departmental Committee for promotion of such officers on 31.12.1987. However considering the exigency, 36 officers including the applicants before the Tribunal were given ad hoc promotion to OFS Class-II and they continued as such till OPSC concurred the recommendation of the Departmental Committee for promotion of such officers on 31.12.1987. After obtaining concurrence of the OPSC, the appli¬cants were regularized in service as ACF by order dated 29.8.1988. It is also not disputed that the petitioners in W.P.(C) No.9249 of 2007 and 9197 of 2007 were directly recruited to Class-II service in the year 1988. It was submitted by the learned counsel for the petitioners in the aforesaid two writ applications who had been directly recruited in the year 1988 that the applicants before the Tribu¬nal having been regularly recruited to Class-II service after concurrence of OPSC, in the same year in which they had been directly recruited, as per Rule 16 of the Rules, they are to be treated en block senior to the promotees like the applicants before the Tribunal. It was contended on behalf of the applicants before the Tribunal that the vacancies being of the year 1985, their cases were considered by the Departmental Committee in terms of Rule 13 of the Rules and they were recommended for promotion. They having been recommended for promotion by the Departmental Committee merely because there was delay in obtain¬ing concurrence of the OPSC, their seniority cannot be reckoned from the date they were regularly appointed in the year 1988 and the ad hoc service is required to be taken into consideration for the purpose of fixation of seniority and they are to be treated as promotees of the year 1986. 8. Reliance was placed by the learned counsel appearing for the petitioners in all the three cases on a judgment of this Court in the case of Manoranjan Rath v. State of Orissa and others, in OJC No.588 of 1972, disposed of on 10.6.1974. The said case also relates to promotion of Forest Rangers to Class-II Forest Service. It was contended before this Court in the said case that the officers who had been given ad hoc promotion prior to consultation with OPSC, the period during which they served in the promotional post on ad hoc basis cannot be counted towards their seniority. The said case also relates to promotion of Forest Rangers to Class-II Forest Service. It was contended before this Court in the said case that the officers who had been given ad hoc promotion prior to consultation with OPSC, the period during which they served in the promotional post on ad hoc basis cannot be counted towards their seniority. The Court with reference to the Rules held that such promotions cannot be permitted to act adversely against the direct recruits and therefore, their seniority can be fixed from the date on which concurrence of OPSC was received taking the same as the real date of promotion. The said judgment of this Court was challenged by the Department in Civil Appeal Nos.2051-52/1974 before the Supreme Court of India and both the Civil Appeals were dismissed. Relying on the aforesaid decision, it was contended by the learned counsel for the petitioners that under no circumstances the period of service rendered by the applicants before the Tribunal on ad hoc basis can be taken into account for the purpose of promotion. Reliance was also placed on another deci¬sion of the Supreme Court in the case of State of Haryana v. Haryana Veterinary & A.H.T.S. Association, reported in AIR 2000 SC 3020 . In the said decision, the apex Court held that - “The service rendered by an ad hoc appointee appointed de hors service rules who subsequently gets appointed on regular basis without any interruption in the service, cannot be treated as regular service. Such ad hoc service cannot be tagged on to service rendered by appointee after regular appointment for computing the period of 12 years of “regular service” fixed under the Govt. circulars for earning the benefit of selection grade/revised pay.” Learned counsel for the applicants before the Tribunal relied upon another judgment of the Supreme Court in the case of Ajit Kumar Rath v. State of Orissa & others, reported in (2000) 1 ATT (SC) 161. In the said case promotion was given on ad hoc basis in the year 1972 and concurrence of OPSC was obtained in the year 1976. The question raised for consideration was as to whether the period of ad hoc service could be taken into account for the purpose of fixation of seniority. In the said case promotion was given on ad hoc basis in the year 1972 and concurrence of OPSC was obtained in the year 1976. The question raised for consideration was as to whether the period of ad hoc service could be taken into account for the purpose of fixation of seniority. On examination of the relevant rules which are more or less similar to the present rules, the Supreme Court in paragraph-24 of the judgment held that the appellants before it were given promotion on a regular, though provisional basis pending concurrence from the OPSC, the promotion having been made in accordance with the Rules, the entire period of ad hoc service beginning from 1972 to 1976, when they were appointed on a regular basis on the concurrence of the OPSC would have to be counted towards the seniority of the appel¬lant therein vis-a-vis the contesting respondents. The Supreme Court in the said decision held that if ad hoc promotion is given by following the prescribed rules against substantive vacancies, such period of ad hoc service has to be taken into account for the purpose of fixation of seniority. In this connection, it is worth referring to a decision of the Supreme Court by a Constitu¬tion Bench in the case of the Direct Recruit Class-II Engineering Officers’ Association and others v. State of Maharashtra and others, reported in AIR 1990 SC 1607 . The dispute in the afore¬said case was seniority in service between the Direct Recruits and the promotees. In para-44 of the judgment, the Supreme Court concluded in the following manner: “To sum up, we hold that : (A) Once an incumbent is appointed to a post according to rule, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation. The corollary of the above rule is that where the initial appointment is only ad hoc and not according to rules and made as a stop-gap arrangement, the officiation in such post cannot be taken into account for considering the seniority. (B) If the initial appointment is not made by following the procedure laid down by the rules but the appointee continues in the post uninterruptedly till the regularization of his service in accordance with the rules, the period of officiating service will be counted. (B) If the initial appointment is not made by following the procedure laid down by the rules but the appointee continues in the post uninterruptedly till the regularization of his service in accordance with the rules, the period of officiating service will be counted. (C) When appointments are made from more than one source, it is permissible to fix the ratio for recruitment from the different sources, and if rules are framed in this regard they must ordi¬narily be followed strictly. (D) If it becomes impossible to adhere to the existing quota rule, it should be substituted by an appropriate rule to meet the needs of the situation. In case, however, the quota rule is not followed continuously for a number of years because it was impos¬sible to do so the inference is irresistible that the quota rule had broken down. (E) Where the quota rule has broken down and the appointments are made from one source in excess of the quota, but are made after following the procedure prescribed by the rules for the appointment, the appointees should not be pushed down below, the appointees from the other source inducted in the service at a later date. (F) Where the rules permit the authorities to relax the provisions relation to the quota, ordinarily a presumption should be raised that there was such relaxation when there is a devia¬tion from the quota rule. (G) The quota for recruitment from the different sources may be prescribed by executive instructions, if the rules are silent on the subject. (H) If the quota rule is prescribed by an executive instruction, and is not followed continuously for a number of years, the inference is that the executive instruction has ceased to remain operative. (I) The posts held by the permanent Deputy Engineers as well as the officiating Deputy Engineers under the State of Maharashtra belonged to the single cadre of Deputy Engineers. (J) The decision dealing with important questions concerning a particular service given after careful consideration should be respected rather than scrutinized for finding out any possible error. It is not in the interest of Service to unsettle a settled position. (J) The decision dealing with important questions concerning a particular service given after careful consideration should be respected rather than scrutinized for finding out any possible error. It is not in the interest of Service to unsettle a settled position. With respect to Writ Petition No.1327 of 1982, we further hold: (K) That a dispute raised by an application under Article 32 of the Constitution must be held to be barred by principles of res judicata including the rule of constructive res judicata if the same has been earlier decided by a competent Court by a judgment which became final.” Though a reference has been made to this judgment in the case of State of Haryana v. Haryana Veterinary & A.H.T.S. Associ¬ation (supra), the case was not decided following the said decision. This Court in the case of Manoranjan Rath did not refer to the aforesaid judgment of the Constitution Bench. The judgment in the said case having been rendered by a Constitution Bench of the Supreme Court, the ratio dissident therein has to be followed. The Constitution Bench in the said case specifically held that once an incumbent is appointed to a post according to rule, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation. The corollary of the above rule is that where the initial appointment is only ad hoc and not according to rules and made as a stop-gap arrange¬ment, the officiation in such post cannot be taken into account for considering the seniority. Here is a case where the substan¬tive 36 posts were identified in the year 1985 and the applicants before the Tribunal were recommended for promotion by the Depart¬mental Committee in terms of Rule 13 of the Rules and were also given promotion to Class-II service as ACF in the year 1986 on ad hoc basis. They continued as such because of delay in getting concurrence from OPSC. Therefore, as per the decision of the Constitution Bench, such period of service rendered on ad hoc basis can be counted for the purpose of fixation of seniority. 9. While examining the records, we came across the profor¬ma in which information is given to the OPSC in respect of ad hoc appointments made by the Government. Therefore, as per the decision of the Constitution Bench, such period of service rendered on ad hoc basis can be counted for the purpose of fixation of seniority. 9. While examining the records, we came across the profor¬ma in which information is given to the OPSC in respect of ad hoc appointments made by the Government. The proforma prescribes that the following information is to be given : (1) The date on which the post was created; (2) The date and period of ad hoc appointments, number of ad hoc appointment made and names of the ad hoc employees; (3) Reasons of urgency warranting ad hoc appointment; (4) Whether any DPC was held at Government level for such ad hoc appointments and if so, the date of such DPC; (5) Reasons due to which prior concurrence of the OPSC could not be obtained; (6) Whether approval of the Chief Minister has been obtained for making such ad hoc appointment. These are the relevant six requirements out of 16 informa¬tion given to the OPSC in the proforma. It also appears from the record that as against these requirements, information had been given to the OPSC that ad hoc promotions have been given to 36 Forest Rangers to OFS Class-II subject to concurrence of OPSC having been recommended by the Departmental Committee held on 30.1.1986. The OPSC was also informed in the proforma that in view of the urgency, the posts had been filled up with approval of the Chief Minister and those 36 promotees were continuing in the promotional posts on ad hoc basis. On perusal of these re¬quirements one may come to a conclusion that the entire purpose for seeking recommendation of OPSC is concurrence of such ad hoc promotions which were given after following the due procedure prescribed under the rules. 10. We are, therefore, of the view that the ad hoc service rendered by the applicants before the Tribunal in the promotional posts is to be taken into consideration for the purpose of fixa¬tion of their seniority vis-a-vis the direct recruits of the year 1988 considering the fact that they had been given ad hoc promo¬tion after following the due procedure prescribed under the Rules against substantive vacancies. 11. We, therefore, concur with the judgment of the Tribunal impugned before us and accordingly do not find any merit in all the three writ applications which stand dismissed. 11. We, therefore, concur with the judgment of the Tribunal impugned before us and accordingly do not find any merit in all the three writ applications which stand dismissed. I. MAHANTY, J. I agree. Application dismissed.