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2013 DIGILAW 31 (ORI)

Parameswar Dayal v. State of Orissa

2013-01-29

A.PATTANAYAK

body2013
ORDER AMARANANDA PATTANAYAK, ADMINISTRATIVE MEMBER––Facts of this O.A., bereft of unnecessary details, are that the applicant, with Matric and ITI qualifications, was appointed as Helper in the work-charged establishment under the Rengali Irrigation Project vide office order No. 13 of 79-80 dtd. 25.7.1979 (Annexure-1). He was promoted as Crane Operator, Grade-II, as per office order No. 2176 dt. 15.3.1980 of the Superintending Engineer, Rengali Dam Circle, (Annexure-3). A common seniority list upto 31.12.1986 of work charged Crane Operators Grade-II was published, (Annexure-4), as per which the applicant is at Sl. No.7, and Trinath Behera, Respondent No.6, at Sl. No.8. The applicant was subsequent transferred as Crane Operator Grade-III from the Rengali Dam Project to the Subarnarekha Irrigation Project in November, 1991, (Annexure-5). On coming to know that Trinath Behera, Respondent No.6, who was junior to him as per the aforesaid gradation list upto 31.12.1986 has been promoted as Crane Operator Grade-II, the applicant filed representation dtd. 18.9.1995, (Annexure-6). However, in response a stand was taken by the authorities that as Trinath Behera, Respondent No.6, had been promoted that as Crane Operator Grade-II in the Rengali Irrigation Project no decision is possible, and the matter was referred to the Superintending Engineer, Rengali Dam Circle, who vide his letter dtd. 9.8.1996 disposed the matter stating that as the applicant had not represented for promotion though the applicant was admittedly senior by one day to respondent No. 6, the same cannot be considered. The applicant represented against such promotion allowed to respondent No.6 as Crane Operator Grade-II with effect from 21.5.1981 on 7.1.2002, and then filed O.A. No. 2919 (C)/2002 which was referred to the authorities for appropriate orders on merit vide order dtd. 6.1.2003, (Annexure-11). However, in response the Government respondents passed order No. IRC-81/2003-135 1911 WR Dtd. 17.4.2004 (Annexure-12), rejecting the claim of the applicant for promotion after the applicant's retirement on 28.4.2004, which he has sought to impugn in this case stating that the said order is not a speaking order. In this O.A. the applicant has impugned the said order dtd. 17.4.2004, (Annexure-12), and prayed for retrospective promotion as Crane Operator Grade-II with effect from 21.5.1981 with all service benefits. 2. Counter dtd. In this O.A. the applicant has impugned the said order dtd. 17.4.2004, (Annexure-12), and prayed for retrospective promotion as Crane Operator Grade-II with effect from 21.5.1981 with all service benefits. 2. Counter dtd. 13.11.2006 has been filed by the state respondents in this case, submitting that the applicant was appointed as Helper under the Work-charged establishment on 26.7.1979, but his education certificate could not have been produced at the time of his appointment as the same was issued on 28.9.1981 only. He was then promoted as Crane Operator, Grade-III, on 15.3.1980. It is stated that prior to introducing a common seniority list of work-charged personnel, project authorities of each project were allowing promotion to their work-charged employees on the basis of merit cum suitability and accordingly Respondent No.6 was promoted as Crane Operator, Grade-II, vide Order No. 4092 dtd. 21.5.1981 before introduction of the Common Seniority List for work-charged Crane Operator Grade-III. It is contended that the applicant did not represent for such promotion but submitted his representation to respondent No.4 on 18.5.1995 whereas respondent No.6 had already been promoted vide order No. 4092 dtd. 21.5.1981, though it is plausible that such order may not have been communicated to the applicant. It is also stated that the claim of the applicant for promotion has since been rejected after the matter was referred by the O.A.T. in order No.5 dated 6.1.2003 in O.A. 2919 (C)/2002. 3. It is now to be decided if the applicant has a reasonable claim for promotion vis-a-vis respondent No.6 who was admittedly junior in the common seniority list as on 31.12.1986 (Annexure-4). 4. Heard learned counsel for the applicant. He submits that the applicant's case shall not be affected by limitation as promotion allowed to his junior, i.e. respondent No.6, vide Order No. 4092 dtd. 21.5.1981 was not adequately circulated. The applicant represented for such promotion only on coming to know about such promotion of his junior. 4. Heard learned counsel for the applicant. He submits that the applicant's case shall not be affected by limitation as promotion allowed to his junior, i.e. respondent No.6, vide Order No. 4092 dtd. 21.5.1981 was not adequately circulated. The applicant represented for such promotion only on coming to know about such promotion of his junior. He further states that the applicant has approached this Tribunal before expiry of the limitation period after rejection of his representation for promotion in order dated 17.4.2004, (Annexure-12), which he has impugned in this O.A. Learned counsel refers to the decision of the Hon'ble Apex Court in the case of Y.Ramanjaneyulu v. State of A.P., AIR 1985 SC 928 , submitting that the applicant is entitled to compensatory payment in the higher grade from the date the respondent No.6, who is admittedly junior to him was promoted as Crane Operator Grade-II, ignoring the claim of the applicant. He further states that the settled seniority is not likely to be affected as the applicant who has since retired is likely to be benefited monetarily only in case this O.A. is allowed. Heard learned Addl. Standing Counsel. He points out that the applicant has neither moved the authorities or this Tribunal in time against promotion of Respondent No.6 on 21.5.1981, but represented against such allegedly incorrect promotion of Respondent No.6 for the first time on 1.8.5.1995. Hence he submits that the settled seniority of Respondent No.6 cannot be disturbed at this stage. 5. A note of arguments in favour has been filed on behalf of the applicant reiterating the earlier contentions. 6. After hearing both parties, it is apparent that the order promoting respondent No. 6 vide office order No. 4092 dated 21.5.1981 was never adequately circulated on the pretext that it was a promotion allowed to a work-charged employee in one project only prior to introduction of the common seniority list for work-charged employees of all Irrigation Projects. The applicant has approached the authorities immediately on coming to know of such order. The applicant is senior to respondent No.6 in the Common Seniority list as on 31.12.1986, as he has been promoted as Crane Operator Grade-III from 16.3.1980 whereas Respondent No. 6 was promoted as Crane Operator Grade-III from 17.3.1980. It is contended by the learned Addl. The applicant has approached the authorities immediately on coming to know of such order. The applicant is senior to respondent No.6 in the Common Seniority list as on 31.12.1986, as he has been promoted as Crane Operator Grade-III from 16.3.1980 whereas Respondent No. 6 was promoted as Crane Operator Grade-III from 17.3.1980. It is contended by the learned Addl. Standing Counsel that as per the decision of the Hon'ble Apex Court in the case of Shiba Sankar Mohapatra v. State of Orissa 2010 (I) OLR (SC) 102, seniority not challenged within 3 to 4 years cannot be challenged on a later date, and that limitation as settled by the Hon'ble Apex Court in the case of C. Jacob v. Director, Mining and Geology, (2008) 2 SC (L & S) 961, shall be applicable. However, in view of the fact that order of promotion of respondent No. 6 vide order No. 4092 dtd. 21.5.1981 was not adequately circulated and as per in letter No. RDC-I-W/C-47/95 39521/dt. 9.8.1996 (Annexure-8), it has been clearly indicated that the applicant who was senior to respondent No.6 by one day was overlooked as he did not represent for promotion, it will only be appropriate to treat the applicant as notionally promoted as Crane Operator Grade-II from the date his junior respondent No.6 was promoted and to allow him the actual financial benefits of higher pension only from his date of retirement after notionally re-fixing his pay vis-a-vis his junior from the date his admittedly junior was promoted as the applicant shall not be entitled to the actual pay of Crane Operator Grade-II as he has not physically discharged his duties of a Crane Operator Grade-II, (Ref: B.M. Jha v. Union of India (2008) 2 SCC (L & S) 399). The Govt. respondents are directed to issue such promotion orders accordingly and settle the claims of the applicant, including payment of arrears, within a period of three months from the date of receipt of these orders. With these orders, the O.A. is disposed of. O.A. disposed of.