Research › Search › Judgment

Orissa High Court · body

2009 DIGILAW 732 (ORI)

STATE OF ORISSA v. ORISSA ADMINISTRATIVE TRIBUNAL

2009-09-15

B.N.MAHAPATRA, L.MOHAPATRA

body2009
JUDGMENT : B.N. Mahapatra, J. - This Writ Petition is directed against the Order Dated 9.7.2008 passed by the Orissa Administrative Tribunal, Cuttack Bench, Cuttack (for short, "the Tribunal") wherein the Tribunal has quashed the order of reversion dated 23.2.2007 passed against Opposite Party No. 2 as well as the order of handing over charge of even date and allowing him to continue in the promotional post. 2. The short facts giving rise to this Writ Petition are that while O.P. No. 2 was continuing as Forest Guard, the Departmental Promotion Committee (for short the 'DPC') held a meeting on 11.04.1989 for filling up of seven temporary vacancies in the cadre of Foresters caused due to superannuation and leave vacancies of Foresters, suspension etc. The DPC prepared a list of seven Forest Guards who were selected as Foresters on promotion. In the said list, the name of O.P. No. 2 finds place at SI. No. 5. On reinstatement of one Nakula Mahakud, Forester, who was placed under suspension, O.P. No. 2 was reverted to his former post vide Order Dated 14.4.1992 under Annexure-1. Against the said order of reversion, O.P. No. 2 filed O.A. No. 696 of 1992 before the Tribunal to quash the order of reversion. Learned Tribunal by an interim Order Dated 09.07.1992 stayed the order of reversion dated 14.04.1992 observing therein that O.P. No. 2 had not been promoted in the vacancy of Nakul Mahakud. The said O.A. was disposed of as infructuous on 27.7.2005. Thereafter, vide Order Dated 23.2.2007 O.P. No. 2 was reverted back to his former post of Forest Guard and was attached to Patnagarh KL Range Office as Forest Guard on reversion. Being aggrieved, O.P. No. 2 filed O.A. No. 629(C)/07 challenging the order of reversion dated 23.02.2007 posting him as Forest Guard at Patnagarh KL Range Office with a direction to handover complete charge of the Forest Central Godown of Patnagarh KL Range and Kandumundi KL Station to the Forester, Shri A.R. Sunani Bhaina, KL Section. Thereafter, on 28.08.2007, O.P. No. 2 reverted back to his parent Division, Khariar KL by order of the Conservator of Forest (KL), Bolangir Circle, Bolangir. The Tribunal has allowed the O.A. No. 629(C)/ 2007 and quashed the order of reversion as well as the order of handing over of charge. Hence, this Writ Petition. 3. Mr. Thereafter, on 28.08.2007, O.P. No. 2 reverted back to his parent Division, Khariar KL by order of the Conservator of Forest (KL), Bolangir Circle, Bolangir. The Tribunal has allowed the O.A. No. 629(C)/ 2007 and quashed the order of reversion as well as the order of handing over of charge. Hence, this Writ Petition. 3. Mr. C.A. Rao, Learned Counsel appearing on behalf of the Forest Department, vehemently argued that the Tribunal has committed gross error in law allowing the above O.A. and by quashing the order of reversion as well as the order of handing over charge dated 23.2.2007 in respect of opposite party no. 2, who was neither recruited nor promoted by following due process of selection against any regular vacancy of Foresters. It is further argued that in the order of promotion dated 13.4.1989 it was clearly mentioned that promotion of Forest Guards to the cadre of Foresters were against the temporary vacancies caused due to training, suspension and leave vacancies of Foresters and they may be reverted at any time to their former posts without any reason thereof. The order of reversion dated 14.4.1992 clearly shows that on reinstatement of one Nakula Mahakud (suspended Forester), Opposite Party No. 2 was reverted to his former post. This has been done as per the principle that if the post becomes surplus, then the last man in the cadre is to be reverted. Nakul Mahakud the suspended Forester was reinstated in his post on 14.04.1992 following which Opposite Party No. 2, D.C. Mohanty being the last man in the cadre became surplus in the cadre of Foresters and reverted to his former post. On 20.7.2005, O.A. No. 13 (C)/92 and O.A. No. 696/92 being infructuous were disposed of by the Tribunal. Opposite Party No. 2, if so aggrieved, could have very well challenged the said order instead of remaining silent. The DPC meeting held on 2004 could not consider the case of Opposite Party No. 2 because of the fact that O.A. No. 696/92 was sub-judice before the Tribunal. The Tribunal is not justified in quashing the reversion order just because some posts of Foresters were lying vacant as on 1.12.2006 under the Patnagarh (K.L.) Division. 4. The DPC meeting held on 2004 could not consider the case of Opposite Party No. 2 because of the fact that O.A. No. 696/92 was sub-judice before the Tribunal. The Tribunal is not justified in quashing the reversion order just because some posts of Foresters were lying vacant as on 1.12.2006 under the Patnagarh (K.L.) Division. 4. Mr A.R. Dash, Learned Counsel appearing for Opposite Party No. 2 contended that vide interim Order Dated 9.7.1992 passed in O.A. No. 696/92 it was clearly stated that Opposite Party No. 2, D.C. Mohanty, had not been promoted in the vacancy of Nakul Mahakud and on reinstatement of Nakul Mahakud, if one post of Forester became surplus, the last man in the cadre of Foresters should have been reverted. The Respondent-Petitioners never brought to the notice of the Tribunal that Opposite Party No. 2 was the last man in the cadre at the time of final disposal of the earlier O.A. on 21.7.2005. Even though the counter had been filed, nothing was brought on record to show that Opposite Party No. 2 was the last man in the cadre of Foresters. Even during hearing of the subsequent O.A. No. 629(C)/07 there was no indication as to whether Opposite Party No. 2 was the last incumbent in the cadre of Foresters as on 23.2.2007. Vacancy position in the month of November, 2006 at Patnagarh (K.L.) Division, which was not denied by the Petitioners, was seven in number. The affidavit dated 16.4.2006 filed by the Petitioners reveals that there was a DPC meeting in 2004 wherein the case of the Opposite Party No. 2 was not considered due to pendency of O.A. No. 696/92 It cannot be said that in 2007 the Opposite Party No. 2 was the last man in the cadre when he was reverted in 2007. Therefore, there was no occasion for the Petitioners to revert Opposite Party No. 2 in 2007. In the counter affidavit dated 1.8.1992 filed by the D.F.O., Patnagarh (K.L.) Division in the earlier O.A., it was stated that in pursuance of the Order Dated 29.01.1988, the DPC had prepared a list for Patnagarh (K.L.) Division consisting of 27 employees according to their seniority. In the counter affidavit dated 1.8.1992 filed by the D.F.O., Patnagarh (K.L.) Division in the earlier O.A., it was stated that in pursuance of the Order Dated 29.01.1988, the DPC had prepared a list for Patnagarh (K.L.) Division consisting of 27 employees according to their seniority. Out of 27 employees, the DPC considered the cases of 14 numbers of employees, which was twice the number of available vacancies and out of the said 14 numbers of Forest Guards and Orderly Forest Guards, the DPC selected 7 numbers of Forest Guards and Orderly Forest Guards suitable for promotion to the cadre of Foresters and recommended them to be appointed in the said cadre. It is for the said reason that the suitability of Opposite Party No. 2 had already been found as back as in 1989 by a duly constituted DPC, but his case was not considered in the subsequent DPC meeting held in 2004 for the purpose of promotion to the cadre of Foresters. Therefore, the Writ Petition is liable to dismissed. 5. It is not in dispute that while the Opposite Party No. 2 was continuing as Forest Guard, the DPC meeting was held on 11.4.1989 for filling up of 7 posts of temporary vacancies in the cadre of Foresters caused due to training and leave vacancy etc. The DPC selected Forest Guards as Foresters on promotion wherein the name of Opposite Party No. 2 finds place at Sl. No. 5. As per memo No. 135/SAC dated 29.1.1988, the DPC had to be consisted of the concerned D.F.O., D.F.P. (K.L.) and Dy. Director, S.F.P. or D.F.O., Wild Life, as may be convenient to the convening D.F.O. The proceeding of the meeting should be clearly written up giving adequate reason. The selection should be in order of seniority subject to elimination of unfits. The said memo also prescribes the criteria for selection. Accordingly, out of 27 Forest Guards, seven were selected for promotion to the cadre of Foresters. Therefore, it cannot be said that the 7 Forest Guards including Opposite Party No. 2 were not selected by the duly constituted DPC following due process of selection. Further, Mr. Rao appearing for the Petitioners could not satisfy the Court as to why the case of the Opp. Party No. 2 was not considered in the next DPC meeting held in 2004 even if O.A. No. 696/92 was pending. Further, Mr. Rao appearing for the Petitioners could not satisfy the Court as to why the case of the Opp. Party No. 2 was not considered in the next DPC meeting held in 2004 even if O.A. No. 696/92 was pending. During pendency of the O.A. the case of the Opposite Party No. 2 could have been considered by the DPC in 2004 and the result whereof could have been kept in abeyance until the O.A. was disposed of. Admittedly, the DPC held in 2004 did not consider the case of Opposite Party No. 2 This shows that the case of the Opposite Party No. 2 was not considered by the DPC since his case had been considered by the duly constituted DPC on 11.4.1989 selecting him for promotion to the cadre of Foresters. 6. Be that as it may, an employee should not suffer for the fault committed by the authority by not considering his case in time along with others for the purpose of promotion to the next higher cadre. Law is well settled that no man can take advantage of his own wrong. The maxim "Nullus eommodum capere potest de injuria sua propria" is one of the salient tenets of equity. (See Ashok Kapil Vs. Sana Ullah (Dead) and Others, . 7. The Tribunal in the impugned order held that the Opposite Party No. 2 who was the applicant before the Tribunal, had filed month wise return of vacancy position at Patnagarh (K.L) Division where Opposite Party No. 2 was posted in the month of November, 2006. Annexure-5 reveals that seven posts of Foresters were lying vacant under Patnagarh (K.L.) Division as on 1.12.2006. As there were existing vacancies on the date the order of reversion was passed, there was no justification for the Petitioners to revert Opposite Party No. 2 to his former post of Forest Guard on the plea that his case for promotion against regular vacancy could not be considered in the DPC held in the year 2004 as his case was sub-judice. The Tribunal further held that the Respondent-Petitioners have failed to produce any document showing that the applicant was the last man in the cadre of Foresters as on the date the impugned order of reversion was passed. 8. The Tribunal further held that the Respondent-Petitioners have failed to produce any document showing that the applicant was the last man in the cadre of Foresters as on the date the impugned order of reversion was passed. 8. In the circumstances, we hold that if there was vacancy in the post of Foresters on the date on which Opposite Party No. 2 was reverted, he be absorbed against that vacancy without asking him to face any further DPC. 9. To the above extent, the impugned order of the Tribunal is modified. L. Mohapatra, J. I agree.