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2012 DIGILAW 198 (ORI)

Mukti Ranjan Acharya v. State of Orissa

2012-04-16

B.K.NAYAK, B.P.DAS

body2012
JUDGMENT B.K. NAYAK, J. - The present opposite party Nos.3 to 13 filed Original Application No.1187 (C) of 2009 before the State Administrative Tribunal, Cuttack Bench, Cuttack under Section 19 of the Administrative Tribunals Act, 1985. Their case in the said Original Application is that they all are members of Orissa Subordinate Finance Service (in short 'OSFS') and presently working as Assistant Commercial Tax Officers, which is otherwise known as Inspector of Commercial Tax and are entitled to be promoted to Orissa Finance Service, Class-II. Recruitment to Orissa Finance Service is governed by the Orissa Finance Service Rules, 1979 (in short 1979 Rules') framed by the Government of Orissa in exercise of power under Article 309 of the Constitution of India. Recruitment to Junior Branch, of Orissa Finance Service, Class-II (in short 'OFS-II') is made from three sources, i.e., 50% by direct recruitment, 30% by way of promotion from the cadre of Orissa Subordinate Finance Service (Commercial Tax Branch), Orissa Subordinate Finance Service (Audit Branch) and Orissa Subordinate Finance Service (Treasury Branch), in the ratio of 5:4:1 and the rest 20% of the posts are to be filled up by way of selection from amongst other employees working in the Finance Department and in the Commercial Tax and other Subordinate Officers. It is also provided in Rule-18 of the Rules that the persons appointed by promotion shall be en bloc senior to the persons appointed by way of direct recruitment and selection in a Financial Year. As per the gradation list dated 09.12.2003 names of the applicants appear at SI.Nos.101, 106 to 113, 119 and 132 respectively. They have also passed departmental examination as required under the 1979 Rules. They were entitled to be promoted to OFS-II and that promotions from their cadre to OFS-II has been given upto SL. No.100 of their gradation list leaving persons from SI.No.101 onwards. The last promotion order was issued on 18.04.2007. On 23.10.2008, a letter was issued to the Commissioner of Commercial Tax, Orissa (opposite party No.2) calling for CCRs of ACTOs up to SI.No.140 of the gradation list. It was also indicated therein that the total number of promotional vacancies meant for ACTOs is 20. In pursuance of such letter, opposite• party No.2 forwarded up to date list of ACTOs. The Government letter and up to date gradation list have been filed as Annexure-3 series to the Original Application. It was also indicated therein that the total number of promotional vacancies meant for ACTOs is 20. In pursuance of such letter, opposite• party No.2 forwarded up to date list of ACTOs. The Government letter and up to date gradation list have been filed as Annexure-3 series to the Original Application. In the meantime, on 08.12.2008 and 28.02.2009 appointment to OFS-II by way of selection have been made but the case of the applicants for promotion remained pending. It is stated that since the process for filling up the promotional vacancies in OFS-II for the years 2006-07 and 2007-08 had already been started, there was no justification on the part of the opposite parties not to fill up the promotional vacancies, while posts in OFS-II are being filled up by selection. It is the further case of the applicants that while the matter stood thus, the Government suddenly issued a resolution dated 28.02.2009 (Annexure 7 to the Original Application) deciding to restructure the cadre of Orissa Finance Service and to constitute a new service known as Orissa Taxation and Accounts Service (in short the 'OT & AS), upgrading OFS Class-II to OFS Class-I (Junior). The OT and AS was proposed to be filled up 50% by way of direct recruitment and 50% by lateral selection of Officers of outstanding merit from amongst the Orissa Subordinate Finance Service cadre and the other eligible subordinate cadres of employees as may be prescribed by the Government from time to time. The resolution under Annexure-7 was given immediate effect without bringing any amendment in the 1979 Rules and without framing the proposed OT and AS Rules. It is stated that by issuing the resolution the Government made an attempt to supplant the existing Service Rules, 1979 which is in violation of Article 14 of Constitution. It is contended that the resolution cannot have the effect of taking away the rights of the applicants for promotion to OFS-II, the process for which had already been started and therefore, the resolution can have no application to the promotional vacancies in OFS-II of the years 2006-07 and 2007-08, to the detriment of the applicants, who are continuing in their cadre since the last 17 to 18 years without getting any promotion. With the aforesaid assertions and contentions the applicants sought for the following reliefs in the Original Application: "Under the above facts of the case the Hon'ble Tribunal may graciously be pleased to quash the Resolution dated 28.02.09 issued by the Government in finance Department (Annexure-7). Further be pleased to direct the respondent to consider the case of the applicants for promotion to the Orissa Finance Service Class-II with regard to the vacancies for the years 2006-07, 2007-08 and 2008-09; (the vacancies up to 27.02.09); Further be pleased to observe that the resolution dated 28.02.09 cannot be made applicable to the vacancies available prior to 28.02.09, more particularly to the vacancies of the years 2006-0, 2007-08 and 2008-09 (the vacancies up to 27.02.09); "2. By order dated 19.05.2009, while admitting the Original Application the Orissa Administrative Tribunal passed the following interim order: ".. I would expect that in the meantime rules have been amended. If the rules have not been amended then needless to say, but has to be emphasized in the context of the prayer of the applicant that the respondents would not proceed any further from today in implementing the Resolution and if any action has already been taken before this date, then that would be subjected to the outcome of this case. Copies be handed over to the learned counsel for the parties for onward transmission to the parties concerned." The aforesaid interim order was further reaffirmed by the learned Tribunal by its order dated 23.07.2009 which is quoted as under: "The matter was discussed extensively. We are still not persuaded to accept the contention of the respondents that while restructuring of the cadre awaits formalization through a statute they could be allowed to carry forward the amendment introduced through a Resolution. We reiterate what we said on 19.05.2009, that if the rules have not been amended then the respondents would not proceed any further in implementing the Resolution. Accordingly, at the request of the parties we allow adjournment to 06.08.2009. The respondents are at liberty to amend the statute in the mean time or else the matter be taken up for final disposal on the materials available on record. Interim order passed on 19.05.2009 would continue until then." 3. Accordingly, at the request of the parties we allow adjournment to 06.08.2009. The respondents are at liberty to amend the statute in the mean time or else the matter be taken up for final disposal on the materials available on record. Interim order passed on 19.05.2009 would continue until then." 3. The present writ petitioners, who belong to Orissa Finance Service, Class-II, but were not parties to the Original Application before the learned Tribunal have filed the present writ application challenging the aforesaid two interim orders of the Tribunal and further praying to direct the State Government to upgrade the petitioners to the rank of Orissa Finance Service, Class-I (Junior) as per the Resolution dated 28.02.2010 which is the subject matter of challenge in the Original Application. The writ petitioners also filed Misc. Case No.56 of 2009 to direct the State Government to effect up-gradation of the petitioners from OFS-II to OFS, Class-I (Junior) as per the Resolution. 4. By order No.3 dated 04.01.2010, this Court passed the following interim order in Misc. Case No.56 of 2010 : "As an interim measure, it is directed that it will be open for opposite party Nos.1 and 2 to allow up-gradation/promotion to the petitioners without affecting the rights of opposite party Nos.3 to 13 for promotion to Class-II. The order of the Tribunal impugned before us is modified to the above extent." 5. The aforesaid interim order of this Court was challenged by the present private opposite parties (applicants in O.A.) before the apex Court in SLP (C) No.11216 of 2010 which was taken up for hearing on 23.08.2011, by which date the new Orissa Finance Rules, 2011 and Orissa Taxation and Accounts Service Rules, 2011 had come into force and it was also represented before the apex Court by the learned counsel for the parties that the State Administrative Tribunal was then not functioning. In such scenario the apex Court without going into the merits of the case remanded the matter to this Court for consideration of the writ application on merits and also directed to transfer Original Application No.1187 of 2009 from the Tribunal to this Court and to decide the same in the light of the new Rules. This is how both the writ petition and the Original Application, which was called for from the Tribunal, were heard analogously and are being disposed of by this common judgment. 6. This is how both the writ petition and the Original Application, which was called for from the Tribunal, were heard analogously and are being disposed of by this common judgment. 6. In the Original Application before the Tribunal, the State has filed counter affidavit on 29.06.2009 and two additional counter affidavits on 20.07.2009 and 09.12.2009. It is stated in the counter affidavit that the process for appointment of OFS-II by way of selection and promotion were initiated during 2006, but process of appointment by way of promotion was completed on 18.04.2007 whereas process of appointment by way of selection continued till 27.02.2009. It is stated in the counter that D.P.C. for promotion of OSFS personnel to OFS-II was last held on 09.01.2007 to fill up the vacancies for the year 2006-07 and to work out the vacancies for the year 2007-08 and 2008-09, when the matter was referred to the G.A. Department for a clarification and the views of the G.A. Department was obtained on 18.10.2008 on which the Government approval was obtained on 20.02.2009 after which the process for filling up the promotional vacancies meant for OSFS was started. It is specifically averred in paragraph-8 of the counter affidavit that in spite of the publication of the impugned resolution the vacant posts meant for OSFS will be filled up after formulation of recruitment Rules. In paragraph-9 of the counter affidavit it is stated that vacancies arising after 28.02.2009 will be filled up according to the provision of new OT and AS Rules which is under process. In the same breath, it is stated in paragraph-13 of the petitioner affidavit that the vacancies arising in OFS-II relating to the year 2007-08 and 2008-09 wil1 be filled up as per the proposed OT & AS Rules which is under process. In the additional counter affidavit dated 20.7.2009, it is stated that the Government Resolution dated 28.02.2009 (impugned resolution) was subsequently modified by Government Resolution No.33524/F dated 17.07.2009 allowing vertical promotion to Class-II from the members of OSFS. In the additional counter affidavit dated 09.12.2009, inter alia, it has been stated in paragraph-5 and 6 as follows: "(5). That, the total vacancies in OFS-II grade for the year, 2007-08 and 2008-09 (up to 27.02.2009) is 79. In the additional counter affidavit dated 09.12.2009, inter alia, it has been stated in paragraph-5 and 6 as follows: "(5). That, the total vacancies in OFS-II grade for the year, 2007-08 and 2008-09 (up to 27.02.2009) is 79. Out of which 40 posts (50%) will be filled up by Direct recruitment through OPSC, 24 posts (30%) will be filled up by promotion from among Orissa Subordinate Finance Service Officers and 15 posts (20%) will be filled up by selection of non-Gazetted Officers as per provisions in existing OFS Rules, 1979. (6) That, pending Notification of the above mentioned Rules, steps are being taken to fill up 24 vacancies in OFS-II grade up, to 27.02.2009, i.e., the date prior to issue of Resolution for restructuring of OFS cadre, by way of promotion from among Orissa Subordinate Finance Service officers." 7. Opposite party Nos.3 to 13 in the writ application, who were applicants before the learned Tribunal have filed a counter affidavit in the writ application, reiterating the pleas taken by them in the Original Application before the learned Tribunal and have further stated that they claim their right to be considered for promotion to OFS-II against the vacancies for 2007-08 and 2008-09, i.e., up to 27.02.2009 on which date the impugned resolution was issued as those promotional vacancies were to be filled up under the provisions of the 1979 Rules and that they claim equality with some OSFS Officers, who were promoted to OFS-II, vide Finance Department Notification No.4843/F dated 07.02.2011. This notification further indicates that OFS-II has been upgraded to OFS-I (JB) with effect from 28.02.2009. By virtue of another notification bearing No.4847 of the same date, i.e., 07.02.2011, OSFS Officers promoted to OFS-II, were posted as Officers of OFS-I (JB). These notifications have been filed as Annexures-C/3 series. 8. In the meantime, the Government in Finance Department have already notified the Orissa Finance Service Rules, 2011 (in short 'OFS Rules, 2011') vide notification dated 06.06.2011 with retrospective effect from 28.02.2009. Rule-3 of the said Rules provides for Constitution of the service, the base level of which is OFS Group 'A' (JB). 8. In the meantime, the Government in Finance Department have already notified the Orissa Finance Service Rules, 2011 (in short 'OFS Rules, 2011') vide notification dated 06.06.2011 with retrospective effect from 28.02.2009. Rule-3 of the said Rules provides for Constitution of the service, the base level of which is OFS Group 'A' (JB). Under Rule 4 of the said Rules, out of the base level posts, i.e., OFS-I (JB) not less than 50% shall be filled up by direct recruitment through combined competitive examination conducted by the OPSC and not more than 50% of the posts shall be filled up by promotion from the newly created Orissa Taxation and Accounts Service (in short 'OT and AS'). Rule 6 of the OFS Rules, 2011 provides that no member of OT & AS shall be eligible for promotion to Orissa Finance Service Group 'A' (Junior Branch) unless he/she has completed six years of service in OT & AS on the first day of January .of the year in which the Selection Board meets. Rule 21 of the Rules provides for repeal of Orissa Finance Service Rules, 1979 and regulations, instructions etc. issued thereunder. However, the proviso attached thereunder stipulates that any order or appointment made or action taken or things, done under the repealed 1979 Rules, Regulations, Instructions, etc shall be deemed to have been made taken or done under the Provisions of 2011 Rules. 9. The Government have also framed the Orissa Taxation and Accounts Service Rule, 2011 (in short 'OT & AS Rules, 2011') vide notification dated 06.06.2011 bringing it into force from 17.06.2011, i.e., the date of publication of the same in the Orissa Gazette. Under Rule 3 of the said. Rules, the OT & AS consist of three categories of posts, namely, Additional Commercial Tax Officers of Commercial Tax Wing; Sub-Treasury Officers of Treasury Wing and Accounts Officers of Accounts Wing. Under Rule 3 of the said. Rules, the OT & AS consist of three categories of posts, namely, Additional Commercial Tax Officers of Commercial Tax Wing; Sub-Treasury Officers of Treasury Wing and Accounts Officers of Accounts Wing. The method of recruitment to the service, as provided in Rule 4, stipulates for filling up not less than 50% by way of direct recruitment through competitive examination, not more than 30 % by way of promotion from among the members of Orissa Subordinate Finance Service cadres and such other categories of employees as may be notified by the Government from time to time; and not more than 20% by way of selection of persons of outstanding merit and ability and who have worked for three years in a post carrying a scale of pay Rs.9300-34800/- and Grade Pay Rs.4200/ - in PB-2 and who have passed the prescribed Departmental Examination and are not more than fifty years of age. 10. The question that arises for consideration is whether the applicants before the Orissa Administrative Tribunal can be promoted to OFS-II as per the repealed Rules of 1979 after the OFS Rules, 2011 came into force and the creation of a new Service in Class-II, viz; OT & AS under the OT and AS Rules, 2011 and whether not giving them promotion to OFS-II would be unreasonable, arbitrary and discriminatory and illegal? 11. Mr. A.K. Mishra, learned Senior Counsel appearing for the original applicants (opposite party Nos.3 to 13 in the writ application) contended that the promotional vacancies in OFS-II meant for the years 2007-08 and 2008-09 were required to be filled up in accordance with OFS Rules, 1979 for which the process for promotion of the applicants had already started much prior to the issuance of resolution dated 28.02.2009 and the 'coming into force of OFS Rules, 2011 and the OT & AS Rules, 2011 and, therefore, the right of the original applicants for consideration for promotion to OFS-II cannot be affected, irrespective of the fact that by virtue the Resolution dated 28.02.2009 OFS-II was upgraded to OFS-I. In this respect, he has placed reliance in the decision of the apex Court in the case of Y.V. Rangaiah v. J. Sreenivasa Rao, (1983) 3 SCC 284 and similar other decisions. 12. 12. Learned Additional Government Advocate, on the other hand, contends that the Government took a conscious policy decision not to fill up the posts in OFS-II by way of promotion as it was contemplating to upgrade OFS-II to OFS-I (Junior) and to create a new Orissa Taxation and Accounts Service in Class-II and accordingly issued the resolution dated 28.02.2009 and subsequently brought in the new OFS Rules, 2011 by repealing OFS Rules, 1979 and by creating promotional avenue for the applicants in the new Class-II OT & AS and therefore the applicants cannot be considered for promotion to the post of OFS-II. In this respect he relies upon the decisions of the apex Court in the cases of Dr. K. Ramulu and another v. Dr. S. Suryaprakash Rao and others; (1997) 3 SCC 59 ; State of Punjab and others v. Arun Kumar Aggarwal and others; (2007) 10 SCC 402 and Deepak Agarwal and another v. State of U.P. and others; (2011) 6 SCC 725. 13. In the case of Y.V. Rangaiah (supra) the question of amendment of Rules for promotion to the post of Sub-Registrar depriving of one category of persons for promotion came up for consideration. In that case prior to the amendment of the Service Rules, two sources, namely, U.D.Cs and L.D.Cs were available for appointment as Sub-Registrar. The rules also provided that list of approved candidates should be prepared every year. For the year 1976 no list of approved candidates was prepared and in the meantime the Rules were amended in 1977 taking away the right of the LDCs for appointment as Sub-Registrar. In the circumstances, the apex Court held that the vacancies existing prior to the amendment of Rules were required to be considered in accordance with the pre amended 'rules and the mere fact of subsequent amendment does not take away the right of the LDCs to be considered for appointment in accordance with the Rules that was prevalent prior to amendment. 14. The principle decided in Y.V. Rangaiah (supra) has been followed by the apex Court in subsequent decisions in the cases of A.A. Calton v. Director of Education; (1983) 3 SCC 33 , P. Gangeshwar Rao v. State of Andhra Pradesh; 1988 Supp SCC 740, N.T. Devin Katti v. Karnataka Public Service Commission; (1990) 3 SCC 157 and B.L. Gupta and another v. M.C.D.; 1998 AIR SCW 3969. 15. 15. In the decision of Dr. K. Ramulu (supra) cited by the learned Additional Government Advocate, the case of promotion of Veterinary Assistant Surgeon to the post of Assistant Director came up for consideration. Under the unamended rules the Veterinary Assistant Surgeon was the feeder cadre for promotion to the post of Assistant Director. For the year 1995-96, the Government of Andhra Pradesh did not prepare and operate a panel of V.A.S. for promotion to the post of Assistant Director and Government amended the Rules in 1996 depriving V.A.S. from promotion to the post of Assistant Director. Pending amendment, of Rules the Government took a conscious policy decision not to fill up the promotional post during the year 1995-96. Therefore, the apex Court held that a policy decision taken consciously by the Government could-not be interfered with. The apex Court took note of the ratio in the case of Y.V. Rangaiah (supra) - and affirmed the same but distinguished it holding that in Rangaiah's case the Government amended Rules and applied such amendment Rules without taking any conscious policy decision not to fill up the existing vacancies pending amendment of Rules. 16. In the case of Deepak Agarwal (supra) cited by the learned Additional Government Advocate, instead of departing from the principle laid down in Y.V. Rangaiah (supra) the apex Court rather affirmed the same but distinguished it, which is amply clear from the observations made to the following effect: "24. We are of the considered opinion that the judgment in Y.V. Rangaiah case would not be applicable in the facts and circumstances of this case. The aforesaid judgment was rendered on the interpretation of Rule 4(a) (1) (i) of the Andhra Pradesh Registration and Subordinate Service Rules, 1976. The aforesaid Rule provided for preparation of a panel for the eligible candidates every year in the month of September. This was a statutory duty cast upon the State. The exercise was required to be conducted each year. Thereafter, only promotion orders were to be issued. However, no panel had been prepared for the year 1976. Subsequently, the Rule was amended, which rendered the petitioners therein ineligible to be considered for promotion. In these circumstances, it was observed by this Court that the amendment would not be applicable to the vacancies which had arisen prior to the amendment. Thereafter, only promotion orders were to be issued. However, no panel had been prepared for the year 1976. Subsequently, the Rule was amended, which rendered the petitioners therein ineligible to be considered for promotion. In these circumstances, it was observed by this Court that the amendment would not be applicable to the vacancies which had arisen prior to the amendment. The vacancies which occurred prior to the amended Rules would be governed by the old Rules and not the amended Rules. 25. In the present case, there is no statutory duty cast upon the respondents to either prepare a year wise panel of the eligible candidates or of the selected candidates for promotion. In fact, the proviso to Rule 2 enables the State to keep any post unfilled. Therefore, clearly there is no statutory duty which the State could be mandated to perform under the applicable Rules. The requirement to identify the vacancies in a year or to take a decision as to how many posts are to be filled under Rule 7 cannot be equated with not issuing promotion orders to the candidates duly selected for promotion. In our opinion the appellants had not acquired any right to be considered for promotion. Therefore, it is difficult to accept the submissions of Dr. Rajeev Dhavan that the vacancies, which had arisen before 17.05.1999 had to be filled under the un-amended Rules." The Court further summed up the legal position in paragraph-26 as follows:- "... ..... There is no rule of universal or absolute application that vacancies are to be filled invariably the law existing on the date when the vacancy arises. The requirement of filling up old vacancies under the old rules is interlinked with the candidate having acquired a right to be considered for promotion. The right to be considered for promotion accrues on the date of consideration of the eligible candidates. Unless, of course, the applicable rule, as in Y.V. Rangaiah case lays down any particular time-frame, within which the selection process is to be completed. In the present case, consideration for promotion took place after the amendment came into operation. Thus, it cannot be accepted that any accrued or vested right of the appellants has been .taken away by the amendment." 17. In the present case, consideration for promotion took place after the amendment came into operation. Thus, it cannot be accepted that any accrued or vested right of the appellants has been .taken away by the amendment." 17. In the light of legal position summed up above, it is to be SCCn whether the principle propounded in Y.V. Rangaiah (supra) can be applied to the facts and circumstances of the present case and whether the applicants are entitled to be considered for promotion to OFS-II. For this, we have to advert to OFS Rules, 1979 in order to find out whether it is mandatory for the State Government to fill up promotional vacancy in OFS-II every year. There is no such mandate in the OFS Rules, 1979. The relevant provisions are contained in Sub-rules (1) and (3) of Rule 12 which are to the following effect: "(1) The Selection Board shall consider the cases of eligible officers for promotion and selection to different cadres of the service under Rule 3 and scrutinize the records and prepare lists of officers who in the opinion of the Board, are suitable for appointment to the different cadres of the service by promotion or selection, as the case may be. The names of officers to be included in the list shall be twice the number of anticipated vacancies within a period of twelve months on the respective cadres. (3) While drawing the list of officers for promotion to different cadres, the Board shall consider the officers in the list up to thrice the number of anticipated vacancies within a period of twelve months." Rule 15 envisages as fallows: "15. Final list of selected person-(1) The lists recommended by the Commission under Rule 14 shall be placed before Government and after approval with modification, if any, shall form the final list from which appointment shall be made. Final list of selected person-(1) The lists recommended by the Commission under Rule 14 shall be placed before Government and after approval with modification, if any, shall form the final list from which appointment shall be made. (2) The lists shall ordinarily be in force until fresh lists are prepared; Provided that the Government may, at any time in Consultation with the Commission, for grave lapse in conduct or deterioration in standard of performance of duty on the part of any person included in the list remove the name of such person from the list." The aforesaid provisions only indicate that the Selection Board shall prepare list of eligible Officers, who are suitable for promotion and the list shall be twice the number of anticipated vacancies within a period of twelve months. The list prepared under Rule-12 by the Selection, Board is required to be submitted to the State Public Service Commission for its concurrence under Rule 13. The Commission shall recommend to the Government the list of persons for appointment to the post by promotion. The provisions in Rule 15 as quoted above clearly indicate that the Government is not bound to give promotion every year. The select list continues to be in force until fresh list is prepared. 18. Admittedly, though the process had already started, as claimed by the applicants, by issuance of letter dated 23.10.2008 to the Commissioner of Commercial Tax calling for CCRs of ACTOs up to SI. No.140 of the gradation list, it was only for the purpose of placing the same before the Selection Board for finding suitability of eligible officers and to prepare a list of suitable officers. But it is not imperative for the Government to give promotion every year. In the circumstances, the law laid down in Y.V. Rangaiah (supra) as explained in Deepak Agarwal (supra) strictly does not apply to the case of the applicants. 19. The matter however, does not end here. Undisputedly, the process regarding consideration of the case of the applicants for promotion to OFS-II had already started since 13.10.2008. There is also nothing on record that Government has taken any conscious policy decision not to fill up promotional vacancies in OFS-II for the years 2007-08 and 2008-09. 19. The matter however, does not end here. Undisputedly, the process regarding consideration of the case of the applicants for promotion to OFS-II had already started since 13.10.2008. There is also nothing on record that Government has taken any conscious policy decision not to fill up promotional vacancies in OFS-II for the years 2007-08 and 2008-09. It is riot known whether Selection Board has prepared the list of Officers belonging to the cadre of the applicants for the promotional vacancies for the years 2007-08 and 2008-09, since it is the-stand of the State in its counter filed before the Tribunal that promotional vacancies in OFS-II of the year 2006-07 have been filed up. In the additional counter affidavit dated 09.12.2009 filed by the State before the Tribunal, as can be seen from paragraph-6 above, if has been specifically stated that out of the total vacancies in OFS-II for the years 2007-08 and 2008-09 i.e., upto 27.02.2009 being 79, 30% thereof, i.e., 24 posts will be filled up by way of promotion from amongst Orissa Subordinate Finance Service, Officers as per the 1979 Rules. It is further stated that pending notification of the new Rules to be framed, steps have been taken to fill up the 24 vacancies in OFS-II by way of promotion from amongst Orissa Subordinate Finance Service Officers. In view of such stand taken by the State Government, there is no reason not to consider the case of the applicants for promotion to OFS-II, who are eligible to be considered on the date the vacancies arose. Admittedly, even after the Government Resolution dated 28.02.2009 upgrading the cadre of OFS-II to OFS-I (Junior Branch), the State Government vide notification No.4843 dated 07.02.11 (Annexure-3) series annexed to the counter of opposite party Nos.3 to 13 in the writ application) the Government has given promotion to five officers belonging to Orissa Subordinate Finance Service to OFS-II (JB) with effect from 28.02.2009. Vide another notification bearing No.4847, of the same date, the said promoted Officers were posted as OFS-I (Junior Branch). Vide another notification bearing No.4847, of the same date, the said promoted Officers were posted as OFS-I (Junior Branch). In view of the clear stand taken by the Government in their affidavits in the Original Application and the action of promoting some OSFS officers to OFS-II as against vacancies of 2006-07, non-consideration of the case of the applicants for promotion to OFS-II for the vacancies of the years 2007-08 and 2008-09, shall be arbitrary, unreasonable and discriminatory being violative of their fundamental rights under Articles 14 and 16(1) of the Constitution of India. 20. In view of what has been stated above, we allow the Original Application No.1187 (C) of 2009 and direct the State-opposite parties to immediately consider the case of the applicants for promotion to OFS-II in accordance with the 1979 Rules and complete the entire process within a period of six months from today. 21. The petitioners in the writ application had a limited grievance and by virtue of the interim order passed therein, which according to the state has already been implemented, they have already got the relief claimed in the writ application and, therefore, nothing further survives to be decided in the writ application. The Original Application and writ application are accordingly disposed of. No costs. I agree. Application disposed of.