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2012 DIGILAW 128 (ORI)

Haripriya Dash v. State of Orissa

2012-03-12

B.N.MAHAPATRA, V.GOPALA GOWDA

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JUDGMENT V. GOPALA GOWDA, C.J. Petitioner has filed this writ petition seeking her placement in the seniority list just below all the candidates selected and appointed against the vacancies of the year 1979-80 in the cadre of erstwhile Munsif now Civil Judge (Junior Division) and above all those candidates selected/appointed for subsequent years to the said post, and further seeking for declaration of her seniority over and above opp. party Nos. 3 to 10 by quashing Annexure-5 issued by the High Court rejecting the representation and refusing the placement of the petitioner at the right place of the seniority list prepared including the selected candidates of the subsequent years and for payment of consequential service benefits urging various facts and legal contentions. 2. Brief facts of the case and the grounds urged by the petitioner are stated as hereunder with a view to consider as to whether the petitioner is entitled to the reliefs sought for. 3. In pursuance of the advertisement dated 5.12.1979 issued by the Orissa Public Service Commission (for short, "OPSC"), the petitioner appeared at the competitive examination held against the vacancies of the year 1979-80 and after being successful in the written examination she was allowed to appear at the viva voce test. The name of the petitioner did not find place in the merit list although she had secured more marks in aggregate than most of the candidates selected. She came to know that the OPSC had adopted one elimination process in the viva voce test relating to the candidates who secured less than 30% of marks meant for the above viva voce test. Because of such elimination process, the petitioner and some other candidates though secured more marks in aggregate were, eliminated and not selected in comparison to the candidates who secured less marks in aggregate. 4. Therefore, the petitioner approached this Court by filing OJC No. 1780/82 to include her name in the list of successful candidates but the same was dismissed by the judgment dated 30.08.1985. Then the petitioner approached the Supreme Court by filing Civil Appeal No. 2486/88 and another case bearing No. 2487/88 was filed by one Shri Radha Krushna Das. Both the cases were heard analogously. The Apex Court allowed both the cases on the basis of the principle settled in a similar case in Durga Ch. Mishra v. State of Orissa, (1987) 4 SCC 646 . Both the cases were heard analogously. The Apex Court allowed both the cases on the basis of the principle settled in a similar case in Durga Ch. Mishra v. State of Orissa, (1987) 4 SCC 646 . The said case was disposed of earlier on 27.8.1987. The said decision was applied and followed subsequently in the case of the petitioner who was a candidate for the same Judicial Service in the post of Munsif for the year 1979-80. The Supreme Court while allowing the Civil Appeal of the petitioner on 29.07.1988 held that she shall rank for the purpose of seniority below those who are already in service on the date of judgment, i.e. 29.7.1988 and shall be precluded from challenging such seniority in future. 5. Though the writ petition No. 1123/1986 filed by Durga Ch. Mishra was disposed of on 27.08.1987, he along with seven others were given appointment by the Law Department of Government of Orissa on 01.08.1988. The Civil Appeal No.2486-87/88 filed by the petitioner and another were disposed of on 29.07.1988. The above said Durga Ch. Mishra and seven others were not in service till the judgment of the Civil Appeal No. 2487/88 was passed by the Supreme Court. 6. The High Court Standing Committee on 10.12.1991 determined the seniority of the petitioner and one Shri Radha Krushan Das and both of them were placed above Shri Durga Ch. Mishra in pursuance to the judgment of the Apex Court referred to supra. In the aforesaid seniority list, the petitioner was placed at SI. No. 86 on the representation made by the petitioner for fixing her seniority. 7. In the civil List of the Orissa Judicial Service Class-II (Munsif Magistrate) corrected up to September 1992, the seniority position of the petitioner and the opp. parties No. 3 to 10 was indicated as follows: SI. No. Name of the Officer Date of Entry in Judiciary 86. Smt. Haripriya Dash 07.11.88 87. Sri Durga Charan Mishra 01.09.88 88. Sri Biraja Prasad Dutta 01.09.88 89. Sri Surendra Kumar Pani 01.09.88 90. Sri Akshya Kumar Mishra 01.09.88 91. Sri Ramesh Chandra Chinera 15.11.88 92. Sri Purna Chandra Patra 15.11.88 93. Sri Gopal Chandra Pattanaik 15.11.88 94. Sri Laxminarayan Sahu 09.02.89 8. However, opp. party No.1 issued notification placing Shri Durga Ch. Sri Durga Charan Mishra 01.09.88 88. Sri Biraja Prasad Dutta 01.09.88 89. Sri Surendra Kumar Pani 01.09.88 90. Sri Akshya Kumar Mishra 01.09.88 91. Sri Ramesh Chandra Chinera 15.11.88 92. Sri Purna Chandra Patra 15.11.88 93. Sri Gopal Chandra Pattanaik 15.11.88 94. Sri Laxminarayan Sahu 09.02.89 8. However, opp. party No.1 issued notification placing Shri Durga Ch. Mishra and seven others who were candidates for the Class-II Judicial Service of the year 1982-83 above the petitioner, who was the candidate for the recruitment year 1979-80. Surprisingly, in the Civil List corrected up to December, 1994 to the opp. party Nos. 3 to 10 were placed against SI. Nos. 8, 9, 26, 31, 24, 13, 14, 6 and the petitioner was placed against SI. No. 67 without any basis. 9. The seniority of the petitioner vis-a-vis the opp. parties Nos. 3 to 10 has been indicated in the seniority list corrected up to December, 1994 as follows: SI. No. Name of the Officer Date of Entry in Judiciary 6. Laxminarayan Sahu 09.02.89 8. Durga Charan Mishra 01.09.88 9. Biraja Prasad Dutta 01.09.88 13. Ramesh Chandra Chinera 15.11.88 14. Gopal Ch. Pattnaik 15.11.88 24. Surendra Kumar Pani 01.09.88 26. Purna Chandra Patra 15.11.88 31. Akshya Kumar Mishra 01.09.88 67. Smt. Haripriya Das (petitioner) 07.11.88 10. In the above manner, the petitioner was placed below all the candidates selected for the post of judicial service for year 1982-83 as well as 1985-86 and the emergency recruits of 1981-82. The officers who were appointed and joined after the petitioner also ranked senior to the petitioner. 11. Therefore, the petitioner represented to opp. party No. 2 on 02.03.1994 for fixing her seniority at the appropriate place above Shri Durga Ch. Mishra and the emergency recruits. The said representation was favourably forwarded by the Registrar (Admn.), Orissa High Court to opp. party No.1 on 26.04.1994 with the request to place the petitioner above all the officers appointed after 29.07.1988 i.e. the date of the judgment passed in the case of the petitioner by the Supreme Court in Civil Appeal No. 2486/88. 12. However, opp. party No. 1 wanted the matter to be placed before the Standing Committee of the High Court and the Committee rejected the representation in a non-speaking order without application of any mind to the order passed by the Supreme Court in the Civil Appeal filed by the petitioner. 13. 12. However, opp. party No. 1 wanted the matter to be placed before the Standing Committee of the High Court and the Committee rejected the representation in a non-speaking order without application of any mind to the order passed by the Supreme Court in the Civil Appeal filed by the petitioner. 13. In her representation, the petitioner prayed for fixation of her seniority below all the 30 officers of 1979-80 batch who were in service as on 29.7.1988 and above the 1982-83 batch (Durga Ch. Mishra and Laxminarayan, Sahoo and others) although as per the ranking she was required to be placed at SI. No. 14 of the merit list prepared for the year 1979-80. Therefore, the petitioner reasonably prayed for her placement above all those candidates selected for the year 1982-83 and the candidates recruited in the subsequent years. 14. The contention urged by the learned counsel on behalf of the petitioner is that pursuant to the decision of the Supreme Court in the Civil Appeal referred to supra the petitioner was selected and appointed in Class-II Judicial Service for the year 1979-80 as per the provisions contained in the Orissa Judicial Service Rules, 1964. Therefore, the seniority of the petitioner has to be fixed inter se in between the candidates selected and appointed in the recruitment of the year 1979-80. As per the revised merit list, the petitioner is entitled to be ranked and placed at SI. No. 14 of the merit list of the year 1979-80. At any rate, the petitioner cannot be ranked junior to the subsequent recruits and appointees of the year 1980-81, 1981-82, 1982-83 and onwards. In this regard, legal position is well settled that the recruits of a particular year is to get seniority above the recruits of the subsequent years. 15. Further, it is contended by the learned counsel that the observation of the Supreme Court in the Civil Appeal referred to supra cannot be interpreted to place the petitioner illegally below the appointees/recruits of the same Judicial Service for the year 1980-81 onwards and the standing committee of the High Court has completely failed to take note of the judgment passed by the Supreme Court in the above said Civil Appeal filed by the petitioner. 16. 16. The Standing Committee has failed to take into consideration the fact that after the judgment of the Supreme Court in the above said Civil Appeal of the petitioner was passed, the appointment order of opposite parties 3 to 10 was issued on 01.08.1988. In such situation, even if it is admitted for the sake of argument that the petitioner will rank junior for the purpose of seniority-below all the candidates of Class-II Judicial Service appointed on or prior to the date of the judgment i.e. 29.07.1988, then also Shri Durga Ch. Mishra and the named seven others having been given appointment on 01.08.1988, who are the recruits of 1982-83, cannot rank senior to the petitioner under any circumstance. Therefore, the petitioner has sought for the reliefs as stated above. 17. Learned Government Advocate sought to justify the said order contending that the placement of the petitioner is made strictly in accordance with the law as her appointment was subsequent to the appointment of Shri Durga Ch. Mishra and seven others whose date of appointment is on 1.8.1988 whereas the date of appointment of the petitioner is on 7.11.1988, which is nearly abut two months later. Therefore, her placement cannot be made above Sri Durga Ch. Mishra and seven others as it would be contrary to the rules. Hence, he has prayed for dismissal of the writ petition. 18. Learned counsel appearing on behalf of the other contesting opposite parties also adopting the submissions made by the learned Government Advocate has submitted that the petitioner is not entitled to her placement above Shri Durga Ch. Mishra and others as her appointment was later than the aforesaid officers. Hence, they have also prayed for dismissal of the writ petition. 19. With reference to the above said rival legal contentions, we have carefully examined the matter with a view to find out as to whether. (i) The Standing Committee in rejecting the representation of the petitioner to place her above Shri Durga Ch. Mishra and others in the select list is legal and valid? (ii) Whether the Standing Committee is right in rejecting the representation of the petitioner to place her ranking above Shri Durga Ch. Mishra and others and whether the same is in compliance with the direction issued by the Supreme Court in Civil Appeal No. 2487/88 disposed of on 29.7.1988? 20. (ii) Whether the Standing Committee is right in rejecting the representation of the petitioner to place her ranking above Shri Durga Ch. Mishra and others and whether the same is in compliance with the direction issued by the Supreme Court in Civil Appeal No. 2487/88 disposed of on 29.7.1988? 20. The aforesaid points are required to be answered in favour of the petitioner for the following reasons. For the said purpose, it would be just and necessary to extract the relevant portion of the judgment in Civil Appeal No. 2847 of 1988, which reads thus: “Each of these two appeals is allowed and we direct that the appellant therein shall be offered appointment by the State of Orissa within three months from today so as to enable him to join service on the 1st of November, 1988. Each of these appellants shall rank for purposes of seniority below those who are already in service today and shall be precluded from challenging such seniority in future. The appeals are allowed without any order for costs.” 21. A careful reading of the aforesaid operative portion of the judgment would indicate that while allowing the appeal of the petitioner and Radha Krushna Das, and directing the State of Orissa to offer them appointment so as to enable them to join by 1st of November, 1988, the apex Court on the question of their seniority directed that they should rank below the officers appointed to O.J.S. Class II by 29.7.1988 though they were candidates for the recruitment year 1979-80. That decision has not been reviewed or altered but has attained finality. The said decision was implemented by the Standing Committee of the High Court vide their minutes dated 10.12.1991 by placing the petitioner and Radha Krushna Das in the seniority list prepared by the Standing Committee on 10.12.1991 above Shri D.C. Mishra. It was also so reflected in the Civil List of Orissa Judicial Service Class-II corrected up to September, 1992. Thereafter the same was corrected in December, 1994 placing the petitioner's ranking below Shri D.C. Mishra and others assigning ranking at SI. No. 67 to her. Therefore, the petitioner represented to the opp. party No. 2 on 2.3.1994 for fixing her seniority above Durga Ch. Thereafter the same was corrected in December, 1994 placing the petitioner's ranking below Shri D.C. Mishra and others assigning ranking at SI. No. 67 to her. Therefore, the petitioner represented to the opp. party No. 2 on 2.3.1994 for fixing her seniority above Durga Ch. Mishra which was forwarded to the Secretary to Government in Law Department, Orissa, with a request to place the matter before the State Government to fix the seniority of the petitioner above Shri D.C. Misra and the officers in his batch who were appointed after 29.7.1988 in view of the judgment of the apex Court referred to above. Opposite party No.1 however wanted the matter to be placed before the Standing Committee of the Court and accordingly sent the same but the Standing Committee rejected the said representation without noticing their earlier decision dated 10.12.1991 to place the petitioner above Shri D.C. Mishra and others in compliance with the direction issued by the Supreme Court in the Civil Appeal filed by the petitioner. Since the apex Court had already decided the question of seniority of the petitioner, it was not open to the Standing Committee to take a view contrary to the decision of the apex Court. Therefore, the petitioner is justified in approaching this Court against the action of the Standing Committee which is in contravention of the judgment of the Supreme Court. Hence, the petitioner is entitled to the reliefs sought for. Accordingly, the writ petition is allowed and a writ of mandamus is issued to opp. party Nos.1 and 2 to fix the rank of the petitioner for the purposes of seniority just below the officers in the cadre of O.J.S. Class II who were already in service by 29.7.1988 and grant all consequential benefits to her for which she is legally entitled to. The above said direction shall be complied with within a period of six weeks from the date of receipt of the copy of this judgment. B.N. MAHAPATRA, J. I agree. Petition allowed.