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2012 DIGILAW 213 (ORI)

Pravat Ranjan Mohanty v. State of Orissa

2012-04-24

M.P.MISRA

body2012
ORDER M.P. MISRA, MEMBER (JUDICIAL) - The applicant who was appointed as S.I. of Police in the year 2008 has come up with this Original Application with a prayer to be treated as a recruitee of the year 1992-93. 2. The case of the applicant as revealed in the Original Application may be briefly stated as follows: The applicant was a candidate for direct recruitment test held in the year 1992-93 for the post of S.I. of Police. He cleared the written examination after which he appeared before the Medical Board on 12.2.1993 and was found medically fit. Thereafter he also appeared before the Central Selection Board for viva voce and psychological test. Since he was not finally selected he approached this Tribunal in O.A. No. 2798/(C)/1994 challenging the recruitment process. Though written examination carried 150 marks, the viva voce carried 100 marks which was objected to, by the applicant. Several other Original Applications were also filed. The Tribunal by their order dated 8.11.1996 disposed of all these (five) O. As. with a direction to reduce the marks fixed for viva voce test to 20 notionally and to proportionately arrive at marks secured by the candidates in the viva voce test dividing by 5, the marks secured by the candidates in viva voce test. The order of the Tribunal was however not compiled with for which I.P. No.133(C)/1997 was filed by the applicant. Since the said I.P. was dismissed by this Tribunal the applicant approached the Hon'ble High Court of Orissa in OJC No. 173/1998. The Hon'ble High Court while setting aside the order of the Tribunal directed the respondent no. 2 to implement the order passed by the Tribunal in O.A. by considering the case of all the candidates who had appeared in the viva voce test and not just the candidates who had approached the Tribunal. But respondent No.2 by wrongly interpreting the order of the Hon'ble High Court called only 32 persons to the physical fitness test and the applicant was also excluded. Hence the applicant again approached this Tribunal in O.A. No. 2033 (C)/2005. The Tribunal however dismissed the O.A. and the applicant challenged the order of dismissal in the Hon'ble High Court in W.P. (C) No. 13379/2005. Hence the applicant again approached this Tribunal in O.A. No. 2033 (C)/2005. The Tribunal however dismissed the O.A. and the applicant challenged the order of dismissal in the Hon'ble High Court in W.P. (C) No. 13379/2005. Hon'ble High Court in their judgment dated 29.6.2007 (Annexure-6) set aside the order of the Tribunal and directed the respondents to give appointment to the applicant with the observation that the marks given to different candidates in the viva voce test was manipulated and the result of the viva voce test did not carry any value. In compliance to the order of the Hon'ble High Court the respondents issued order dated 1.10.2008 (Annexure-7) appointing the applicant as S.I. of Police. The applicant was posted as S.I. of Police at Cuttack as per the order of the Directorate General of Police dated 23.10.2008 at Annexure-8. Though the order of the Tribunal clearly directed that the applicant should be treated as an appointee of the year 1992-93 the respondents treated him as an appointee of the year 2008. The applicant represented before the respondent No.2 for being treated as an appointee of the year 1992-93. Since the respondents slept over the matter the applicant has filed this O.A. praying to be treated as an appointee of the year 1992-93 with all service benefits including seniority. 3. The respondents in their counter while admitting the facts described in the Original Application have challenged its maintainability as follows: The seniority of a S.I. in the Police department is counted from the date of passing of S.I. of Police training course. When the applicant joined service as per the direction of the Hon'ble High Court the training program of that year was in an advanced stage. Hence it was not possible to fit the applicant as a trainee in the middle of the course. The applicant joined the training course on 13.05.2009 and passed the training course on 11.6.2010. Hence as per Home Department resolution dated 27.5.2006 at Annexure-C the seniority of the applicant in the cadre of S.I. of police was counted w.e.f. 11.6.2010. Since the applicant became a regular S.I. of Police on 11.6.2010 he is not entitled to seniority over the candidates who had completed the training course prior to him. For the self same reason the applicant is also not entitled to differential salary from the year 1992-93 till 11.6.2010. 4. Since the applicant became a regular S.I. of Police on 11.6.2010 he is not entitled to seniority over the candidates who had completed the training course prior to him. For the self same reason the applicant is also not entitled to differential salary from the year 1992-93 till 11.6.2010. 4. The learned standing counsel relied on the provisions of “Orissa Police Service (Conditions of Service and Method of Recruitment of Sub-Inspectors) Order 2006 hereinafter referred to as "the Order" 2006 at Annexure-C which came into force on the date of its publication in the Orissa Gazette. Hence it can have only prospective effect and no retrospective effect. The appointment of the applicant was not made in regular course it was made on the directions of the Hon'ble High Court and this Tribunal. 5. The Hon'ble High Court in their order dated 3.2.2005 in O.J.C. No. 173/1998 at Annexure-3 directed the respondents to implement the order of the Tribunal passed in O.A. No. 2798/(C)/1994. This Tribunal in O.A. No. 2798(C)/1994 had directed to adjust the applicant and others against the available vacancies for the year 1992-93 and if no such vacancies would be available then the applicant could be treated to have been selected for the next batch. It is therefore no more open to the respondents to say that the date of passing of the S.I. training course will govern his seniority. In view of the order of the Tribunal in O.A.No.2798(C)/1994 the applicant has every right to be included in the list of recruits of the year 1992-93. Since the Tribunal had directed to treat the applicant as a recruitee of 1992-93 the respondents cannot treat him as recruitee of the year 2008. 6. Learned standing counsel strenuously argued that in view of the orders which is now in force the applicant cannot be treated as 1992-93 recruitee. Though the Tribunal disposed of O.A. No. 2798(c)/1994 on 26.9.1996 with a direction to the respondents to complete the process of selection within a period of four months the respondents took more than 10 years to carry out this order. The delay caused in applicant's passing of the training course therefore is clearly attributable to the fault of the respondents. The applicant cannot lost his seniority and other service benefits. Even the Orders which is now in force, contains a provision of relaxation of the rules. The delay caused in applicant's passing of the training course therefore is clearly attributable to the fault of the respondents. The applicant cannot lost his seniority and other service benefits. Even the Orders which is now in force, contains a provision of relaxation of the rules. Rule 31 of the order lays down that where the Government, on a reference made by the D.G. and I.G. of Police or otherwise are satisfied that it is necessary or expedient to do so, it may by order, for reasons to be recorded in writing relax any of the provisions of this Order with respect to any class or category of persons. In view of this provision the respondents can treat the applicant as a recruitee of the year 1992-93 by applying the relaxation, provided under Rule 31 of the Order. Rule 27(1) of the Order lays down that the inter se seniority of the Sub-Inspectors appointed by way of direct recruitment during a particular recruitment year shall be determined in the order of the names appear in the select list. Therefore, the applicant's name can find place at the bottom of the select list of the year 1992-93. In view of my above analysis the O.A. is allowed. The respondents are directed to treat the applicant as a S.I. of Police recruited in the year 1992-93. His name shall find place at the bottom of the said list and his seniority shall be counted with effect from the date of joining of the officer placed just above him in the said list. The respondents are further directed to fix the pay of the applicant notionally by treating him to have been appointed in the year 1992-93 and giving him the benefit of seniority and pay fixed as per O.R.S.P. Rules 2008. He shall however not be entitled for arrears of salary for the period, prior to his actual joining the service. O.A. is accordingly disposed of. O.A. allowed.