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2012 DIGILAW 235 (ORI)

Pradipta Kumar Mishra v. State of Orissa

2012-05-08

B.K.NAYAK, B.P.DAS

body2012
JUDGMENT B.K. NAYAK, J 1. In this Writ Petition the Petitioner assails the Order Dated 19.05.2010 (Annexure-9) passed by the Orissa Administrative Tribunal, Bhubaneswar in O.A. No.49 of 2009 & further prays to consider the case of the Petitioner for promotion to the post of Orissa Finance Service Class- II. 2. Recruitment to the Orissa Finance Service Class-II (in short 'O.F.S. Class-II') is governed by the Orissa Finance Service Rules, 1979, (herein after referred to as the Rules). As per Rule 3 (1) the recruitment is made from three sources, namely: (a) By direct recruitment in accordance with Rule 5; (b) By promotion from among members of the Orissa Subordinate Finance Service in accordance with Rule 6; (c) By selection of lion gazetted officers in accordance with Rule 7. The ratio of recruitment from three sources is 5:3:2 as provided in Rule 4. Rule 7 prescribes the eligibility criteria for non-gazetted Government Officers for recruitment to OFS-II by selection, which is reproduced hereunder: "7. Appointment by Selection to Orissa Finance Service Class II- No person shall be considered for appointment by selection under Clause (c) of Rule 3(1) to Orissa Finance Service Class-II unless- (a) He is of outstanding merit & ability; (b) He has worked for at least 3 years in a post carrying a scale of pay the minimum of which is not less than Rule 400 or the maximum of which is not less than Rs.620; (c) He has passed the prescribed departmental examination; (d) He is not more than 55 years of age on the 1st day of April of the year in which the selection is made." The principles for promotion & selection to different cadres of Orissa Finance Service have been laid down in Rule 12. So far as appointment to OFS-II by selection is concerned, Sub Rule (1) & Clause (c) of Sub Rule (2) of Rule 12 are relevant, which are quoted hereunder: "12. Principles for promotion & selection-(1) The Selection Board shall consider the cases of eligible officers for promotion & selection to different cadres of the service under Rule 3 & scrutinise the records & 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. (2) (c) The selection of persons for, inclusion in the list for appointment by selection under Clause (c) of Sub-rule (1) of Rule 3 shall be on the basis of outstanding merit & ability." 3. The undisputed facts are that the Petitioner is a Senior Assistant in the office of the Director of Agriculture & Food Production, Orissa, Bhubaneswar, which is a non-gazetted post. Vide letter dated 11.08.2006 issued by opposite Party No.1, the different departments of the Government, Heads of Department & Collectors were directed to sponsor names of eligible non-gazetted officers for the purpose of recruitment to OFS-II by selection. It was clearly stipulated in Clause-9 & 10 of the letter that recommendations along with attested photo copy of the CCRs & the required service particulars properly filled in respect of the nominated candidates should reach the Finance Department on or before 28.09.2006 & that recommendations received alter the stipulated date would not be entertained & shall be liable for rejection. The names of the Petitioner & Opposite Party No.5 along with others were duly recommended by Opposite Party No.2 vide letter dated 25.09.2006 (Annexure-3) to the Finance Department. The Performa sent with the recommendations in respect of the Petitioner & opposite. Party No.5 indicated the length of their service in their cadre of Senior Assistant as 14 years 9 months 25 days & 15 years 10 months 18 days respectively. Subsequently, the seniority of the Petitioner as well as of Opposite Party No.5 was revised as per Order Dated 26.10.2007 passed by Opposite Party No.2 under Annexure-5 & therefore, revised Performa in respect of both the Petitioner & Opposite Party No.5 were sent by Opposite Party No.2 to the Finance Department vide letter dated 2.11.2007 under Annexure-6 showing the length of service of both the Petitioner & Opposite Party No.5 as 21 years 3 months 5 days. 4. It is the allegation of the Petitioner that though originally Opposite Party No.5 was senior to him & recommendation was sent to the Finance Department, after revision of seniority his length of service in the cadre of Senior Assistant became equal with that of Opposite Party No.5. 4. It is the allegation of the Petitioner that though originally Opposite Party No.5 was senior to him & recommendation was sent to the Finance Department, after revision of seniority his length of service in the cadre of Senior Assistant became equal with that of Opposite Party No.5. But while Opposite Party No.5 was given promotion taking into consideration his length of service, the Petitioner was not given promotion. 5. In the counter affidavit filed, by Opposite Party No.1 it is stated that ill the letter under Annexure-1 dateline for receipt of recommendation of eligible non-gazetted officers was fixed as 28.09.2006 with specific stipulation that recommendations received after the said date would not be entertained. The recommendations received in the Finance Department on or before the dateline were placed before the Internal Scrutiny Committee & the said committee submitted their report on 25.09.2007 for placing the same before the Selection Board. The letter dated 2.11.2007 (Annexure-6) issued by Opposite Party No.2 re-fixing the seniority of the Petitioner & Opposite Party No. 5 was received by Finance Department on 02.11.2007 i.e. much after the cut off date fixed & even after the Scrutiny Committee had submitted their report &, therefore, the same was not taken into consideration. The Selection Committee took into consideration the recommendations received prior to the cut off date & selected candidates strictly in accordance with the Rules. 6. The Petitioner filed Original Application No.49 of 2009 praying for promotion to OFS-II by quashing the proceedings of the D.P.C. (Selection Board) & to direct for convening fresh D.P.C. & to consider the case of the Petitioner for appointment to OFS-II taking into account his revised seniority. The plea of the State Government before the Learned Tribunal was identical to the counter affidavit filed in the present writ application. The Tribunal by the impugned Judgment disposed of the Original Application accepting the stand of the Government that the subsequent recommendation re-fixing the seniority of the Petitioner was rightly not taken into consideration as such recommendation was received much after the cut off date, i.e. 28.09.2006. 7. The Tribunal by the impugned Judgment disposed of the Original Application accepting the stand of the Government that the subsequent recommendation re-fixing the seniority of the Petitioner was rightly not taken into consideration as such recommendation was received much after the cut off date, i.e. 28.09.2006. 7. In this writ application it is contended by the Learned Counsel for the Petitioner that the revised seniority of Opposite Party No.5 was taken into consideration though his length of service as Senior Assistant has been wrongly shown as 20 years 7 months 8 days in place of the revised period of 21 years 3 months 5 days In the select list. 8. Undisputedly, 68 number of posts of OFS-II were to be filled up by way of selection under Rule 3 (1) (c) of the Rules, out of which 42 were unreserved & rest 26 posts were reserved for SCs & STs as per the roster register maintained for the purpose. The proceedings of the meeting of the Selection Board, which has been filed as Annexure 7, goes to show that the Selection Board has not taken into consideration any application/recommendation received/made after the cut off date. In the circumstances, the contention of the Petitioner that the length of service of Opposite Party No.5 as per the revised seniority has been taken into consideration whereas his own revised seniority has been ignored has no force, in view of the specific stand taken by the Government in the counter, which also find support from the proceedings of the Selection Board. As has been seen earlier, criteria for appointment to OFS-II by way of selection of non-gazetted Officers has been provided in Rule 12, particularly in Clause (c) of Sub Rule (2) of the said Rule, which is only outstanding merit & ability. The length of qualifying service or seniority has no role to playas a criteria for selecting officers of outstanding merit & ability. Rule 7 (b) only provides a length of qualifying service for at least 3 years as an eligibility condition for the purpose of. consideration for selection. There is nothing in the Rules to indicate that seniority is one of the criteria for promotion. Therefore, the length of 21 years of qualifying service of the Petitioner as per his revised seniority does not give him any right to be selected. consideration for selection. There is nothing in the Rules to indicate that seniority is one of the criteria for promotion. Therefore, the length of 21 years of qualifying service of the Petitioner as per his revised seniority does not give him any right to be selected. It is not the case of the Petitioner that his recommendation for selection was not taken into consideration at all. On the contrary, it is admitted position that he along with Opposite Party No.5 & several others of his cadre from his own department were recommended & as per the affidavit of the State Government all those recommendations received by the cut off date were scrutinised & all those recommendations complete in every respect were considered by the Selection Board. 9. In the aforesaid circumstances, we find no merit in the Writ application which is accordingly dismissed. No costs.