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2009 DIGILAW 529 (ORI)

State of Orissa v. Kali Ch. Ratha

2009-07-21

B.N.MAHAPATRA, L.MOHAPATRA

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JUDGMENT L. MOHAPATRA, J. — The order of the Orissa Administrative Tribunal, Bhubaneswar Bench, Bhubaneswar, in O.A. No. 1329 of 1989 dated 15.2.1999 is the subject matter of challenge before this Court. 2. Opposite party no.1 was the applicant before the Tribu¬nal. The case of the opposite party no.1 is that he being a Matriculate joined the Army on 4.8.1960 and was discharged there¬from on 12.11.1964. During the tenure of his service in the Army, he completed Class-II Course (Mechanic). He then joined the post of Assistant Sub-Inspector of Police (Mech.) on 1.3.1966. He completed Grade-II Mechanic Course in 1984. Though he had not completed Grade-I course, he was exempted from completing the same by the Director General of Police by order dated 29.1.1980 making him eligible for consideration for promotion and he was allowed to officiate as S.I. (Mech.) by Order dated 29.1.1971. He continued as such till 24.7.1972. Again, in another spell he was allowed to officiate as S.I. on 17.5.1979 and continued till 17.5.1986. During this period, he also officiated as Inspector (Mech.) from 21.5.1980 to 4.6.1980. The Trade Test for the pur¬pose of promotion to the post of Inspector was held in 1985 wherein he and opposite parties 2 and 3 had appeared. All the three of them failed in the Trade Test. The Central Selection Board, which was held in 1986, found opposite parties 2 and 3 suitable for promotion, but did not find opposite party no.1 suitable for such promotion. As a result of the above, he offici¬ating then as S.I. was reverted and challenging such reversion he approached the Tribunal. 3. The Tribunal in the impugned judgment held that all the opposite parties having been declared unsuccessful in the Trade Test the Central Selection Board should not have held opposite parties 2 and 3 suitable for promotion and ignored the case of opposite party no.1 and, accordingly, directed to give promotion to opposite party no.1 from date the opposite parties 2 and 3 were promoted to the post of Sub-Inspector (Mech.) and also to pay the arrear. 4. 4. Learned counsel for the State assailing the impugned judgment submitted that opposite party no.1 having failed in the Trade Test and he having been found unsuitable for promotion to the post of S.I. (Mech.) by the Selection Board, the Tribunal should not have directed to give him promotion solely on the basis that opposite party no.1 has been discriminated. It was further submitted by the learned counsel for the State that though all the opposite parties were declared unsuccessful in the Trade Test, the Central Selection Board found opposite parties 2 and 3 to be suitable for promotion whereas opposite party no.1 was not found suitable for promotion. The Tribunal should not have sat in appeal over the decision of the Central Selection Board while allowing the Original Application. Learned counsel for opposite party no.1 in support of the impugned judgment submitted that since all the opposite parties were unsuccessful in the Trade Test, the Central Selection Board should not have found opposite party no.1 to be unsuitable and opposite parties 2 and 3 suitable for promotion. 5. As is evident from the above discussion, all the three opposite parties were unsuccessful in the Trade Test, which was held in the year 1985. When there cases were considered by the Central Selection Board in 1986, opposite parties 2 and 3 were found suitable for promotion whereas opposite party no.1 was not found suitable. The Tribunal should not have sat in appeal over the decision of the Central Selection Board in absence of any compelling reason. We, therefore, find considerable force in the submission of the learned counsel for the State in this regard. However, the judgment of the Tribunal was implemented during pendency of the writ application and the opposite party no.1 was given promotion to the post of S.I. (Mech.) from the date oppo¬site parties 2 and 3 were promoted. Only the second party of the order, i.e. payment of arrear to opposite party no.1 has not been implemented. However, the judgment of the Tribunal was implemented during pendency of the writ application and the opposite party no.1 was given promotion to the post of S.I. (Mech.) from the date oppo¬site parties 2 and 3 were promoted. Only the second party of the order, i.e. payment of arrear to opposite party no.1 has not been implemented. Since we are of the view that the Tribunal should not have sat in appeal over the decision of the Central Selection Board without compelling reasons and on consideration of the fact that direction of the Tribunal has been implemented and opposite party no.1 has been given promotion to the post of S.I. (Mech.) from the date opposite parties 2 and 3 were promoted and that, in the meantime, opposite party no.1 has retired on superannuation, we do not want to disturb the direction of the Tribunal for giving promotion to opposite party no.1 to the post of S.I. (Mech.). However, so far as arrear salary is concerned, we direct that salary of opposite party no.1 in the promotional post be notionally fixed so that he gets the pensionary benefits but he shall not be entitled to get arrear as directed by the Tribunal. 6. With the above modification in the impugned judgment/order, the writ petition is disposed of. B.N. MAHAPATRA, J. I agree. Petition disposed of.