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2015 DIGILAW 362 (ORI)

Hari Mohan Panda v. State of Orissa

2015-06-18

B.K.DASH, S.K.DASH

body2015
ORDER S.K. Dash, J Hari Mohan Panda, the applicant in this O.A. has prayed to quash the gradation list of Field Technicians of Directorate of Horticulture, Orissa published on 16.5.2008 under Annexure-7. It is further prayed for a direction to the respondents to prepare and publish the final gradation list of Field Technicians working under the Director of Horticulture, Orissa afresh, by placing the applicant at an appropriate place in the said gradation list in the panel of successful candidates in order of merit while, fixing the inter-se seniority and allow him the benefits of his previous service giving due weightage to the order dated 28.8.1991 (Annexure-3) and order dated 20.11.1998 (Annexure-4). 2. The learned Counsel for the applicant submitted that in the year, 1979 pursuant to an advertisement issued by the Director of Horticulture, Orissa 200 candidates including the applicant were called for through employment exchange to appear in the written examination on 22.4.1979 for the posts of Horticulture Assistant. After their selection there being no posts like Horticulture Assistant the selected candidates including the applicant were given appointment as Probationary Gardeners instead of advertised post of Horticulture Assistant and accordingly vide order dated 3.8.1979 of the Director of Horticulture the applicant was posted as probationary Gardner at Deras Farm, Medhasala, Khurda. As the post of Horticulture Assistant is a Class-III post whereas the post of Gardner is a Class-IV post, they made several representations to the State Government to appoint them in Class-III which is their substantive post. Considering their representations to Govt. of Odisha in Agriculture Department in their letter dated 28.8.1991 at Annexure-3 took a decision for adjustment of 186 matriculate Probationary Gardeners against the vacant posts of Village Agriculture Workers (VAW) under the Director of Agriculture by relaxing the recruitment rule as per the list of names arranged in order of their inter se seniority in the cadre of Gardeners. In view of the aforesaid decision of the State Government, the applicant along with other Gardeners working under the Director of Horticulture were absorbed as VAW on transfer to the Directorate of Agriculture and Food Production. 3. The Govt. In view of the aforesaid decision of the State Government, the applicant along with other Gardeners working under the Director of Horticulture were absorbed as VAW on transfer to the Directorate of Agriculture and Food Production. 3. The Govt. of Odisha in Horticulture Department by order dated 20.11.1998 under Annexure-4 created 211 posts of Field Technician, 44 posts of Grafter and 45 posts of Gardener under the scheme for "District Establishment" (Non-Pan) during the year 1998-99 as per the terms and conditions given below: (i) The above posts are created by way of surrendering 278 posts of VAWs created in G.O. No. 14681 dated 16.4.1977 and 27 posts of VAWs created in G.O. No. 32338 dated 18.8.1980 under Director of Agriculture and Food Production, Orissa. (ii) Out of the above 211 posts of Field Technicians so created, 198 posts shall be filled up by way of transfer of 198 VAWs with posts to the Directorate of Horticulture now working under the control of DA & F.P., Orissa as per G.O. No. 26644 dated 28.8.1991 and G.O. No. 35884 dated 22.10.1999. They shall be designated as Field Technician. They shall carry their service seniority. (iii) No proposal for creation of post of VAW under the control of D.A. & F.P. Orissa will be entertained in future against the above 300 posts stand surrendered. Pursuant to the order dated 20.11.1998 the VAWs then working in different offices under the Director of Agriculture and Food Production, Orissa were appointed as Field Technician under the Director of Horticulture, Orissa, Bhubaneswar by way of transfer. 4. At this stage the employees working as Grafters in the Directorate of Horticulture challenged the order dated 20.11.1998 in which 198 VAWs designating them as Field Technicians had to come by way of transfer, stumbling their promotional avenues, by filing O.A. 2233/98, O.A. 2216/98 and O.A. 2201/98 in the Tribunal. The said O.As. were disallowed vide order dated 22.8.2006. After disposal of the above O.As., a provisional gradation list of Field Technicians as on 22.8.2006 has been prepared and circulated inviting objection, if any. Since the name of the applicant was not put at the appropriate place, he filed objection on 18.3.2008, but without taking into account his objection, the final gradation list of Field Technicians was published by the Directorate of Horticulture on 16.5.2008 under Annexure-7. Since the name of the applicant was not put at the appropriate place, he filed objection on 18.3.2008, but without taking into account his objection, the final gradation list of Field Technicians was published by the Directorate of Horticulture on 16.5.2008 under Annexure-7. As such challenging the final gradation list dated 16.5.2008 the applicant has filed this O.A. 5. The learned Govt. Advocate based on the counter filed by the respondent No. 4 contended that the final gradation list of Field Technicians has been made as per common judgment dated 22.8.2006 passed by the Tribunal in O.A. 2233/98 and batch and the applicant has been rightly placed in the final gradation list keeping in view the date of joining as VAW in DA & FP, Orissa. Besides the post held by the applicant from 1979 to 1991 is Probationary Gardener, which is lower than that of VAW and the scale of pay is also different. As VAW and FT being identical post carries the same scale of pay and as such the service seniority of the applicant along with others has been fixed with effect from 1991 as per the direction of Tribunal vide order dated 22.8.2006. The letter of Govt. in Agriculture Department under Annexure-3 relates to inter se seniority in the cadre of Gardener. But the Govt. in Agriculture Department in G.O. dated 20.11.1998 stipulates that the VAW, FT will carry their service seniority in the cadre of VAW since VAW and FT are carrying the identical scale of pay. So the service seniority can be made from the cadre of VAW not from the post of Probationary Gardener. 6. The applicant filed rejoinder enclosing the judgment of the Hon'ble High Court dated 9.11.2010 in WP (C) No. 17013 of 2006 and submitted that since the order passed by the Tribunal in O.A. 2233/98 and batch was set aside, the provisional gradation list and final gradation list at Annexure-5 and 7 are liable to be quashed and direction may be issued to prepare the gradation list afresh, as per the direction of the Hon'ble High Court. The applicant has also enclosed Annexure-11, the list of Probationary Gardeners for the year 1979 wherein the name of the applicant finds place at S. No. 60. However, in the final gradation list of Field Technicians atAnnexure-7 he was placed at Sl. No. 168. The applicant has also enclosed Annexure-11, the list of Probationary Gardeners for the year 1979 wherein the name of the applicant finds place at S. No. 60. However, in the final gradation list of Field Technicians atAnnexure-7 he was placed at Sl. No. 168. The prayer of the applicant is that the final gradation list of Field Technician be prepared taking into account his position in the list of Probationary Gardeners of the year, 1979 at Annexure-11 but not on the basis of date of joining in the post of VAW under the Agriculture Directorate in the year 1991. 7. On perusal of the record it appears that the Grafters, who were serving under the Directorate of Horticulture had challenged the Letter dated 20.11.1998 under Annexure-3 in O.A. 2233/98 and batch of cases and the Tribunal vide order dated 22.8.2006 disallowed the O.As. with the following observations:- "In view of the above observation of the Hon'ble Apex Court and after carefully considering the submissions made on behalf of both the parties, we are led to hold that the impugned portion of the Govt. Order dated 20.11.1998 pertains to the field of policy and within the exclusive jurisdiction and discretion of the State and it is not for the Tribunal to interfere with such order which, in our opinion, not at all arbitrary and illegal. There is thus no merit in O.As. which deserve to be disallowed." The said order of the Tribunal was challenged in the Hon'ble High Court in W.P. (C) No. 17013 of 2006. The Hon'ble Court disposed of the said writ application with the following observations: "We, accordingly set aside the impugned judgment and direct that as on 20th November 1998, the date on which Annexure-10 was issued all those employees working as Grafters in the Directorate of Horticulture be considered for promotion to the posts of Field Technician and those who had requisite qualification and were otherwise eligible for promotion should be given promotion first. Only against the balance posts, out of 211, the VAWs be absorbed in accordance with their seniority. Only against the balance posts, out of 211, the VAWs be absorbed in accordance with their seniority. The rest of VAWs, who do not get an opportunity of absorption as Field Technician in the Directorate of Horticulture may either be adjusted in some other similar post under the Agriculture Department or they may be kept out of service, as hold of an abolished post, has no right to claim for appointment or continue in the said post." The review petition was also dismissed by the Hon'ble High Court vide order dated 20.9.2013. 8. As the Hon'ble High Court set aside the order of the Tribunal dated 22.3.2006 passed in O.A. No. 2233/98 and batch, the final gradation list prepared on the basis of the order of the Tribunal shall be no more in existence and a fresh gradation list will be prepared as per the direction of the Hon'ble High Court to the effect that as on 20.11.1998 all those employees working as Grafters in the Directorate of Horticulture be considered for promotion to the post of Field Technician and those who had requisite qualification and were otherwise eligible for promotion should be given promotion first and only against the balance posts, out of 211, the VAWs be absorbed in accordance with their seniority. 9. The applicant was initially appointed as Probationary Gardener in the year 1979 and subsequently appointed as a VAW in 1991 in the Directorate of Agriculture. As such he is one of the VAW amongst 198 VAW/Field Technician who would be absorbed against the balance post out of 211 VAW/Field Technicians in the Directorate of Horticulture as per communication dated 20.11.1998 at Annexure-4. His grievance is that when the fresh gradation list will be prepared as per the direction of Hon'ble High Court his seniority will be fixed taking into account his position in the list of Probationary Gardeners, but not on the basis of date of joining in the post of VAW, as contended by the State respondents. 10. Admittedly as is evident from Annexure-1 requisition was sent to the Employment Exchange for sponsoring names of candidates for appointment against the post of Horticulture Assistant. 10. Admittedly as is evident from Annexure-1 requisition was sent to the Employment Exchange for sponsoring names of candidates for appointment against the post of Horticulture Assistant. Annexure-3 indicates that after selection for the posts of Horticulture Assistant, the selected candidates including the applicant were adjusted against the post of Probationary Gardeners as there was no post of Horticulture Assistant in the year 1979 and considering their representations the Government decided that such Matriculate Gardeners be absorbed against the vacant posts of VAW under the Directorate of Agriculture in relaxation of the procedure of recruitment rules. In the said letter while directing the Director of Agriculture and Food Production, for making adjustment of Matriculate Gardeners against the vacant post of VAWs in the Directorate of Agriculture, it is specifically mentioned that: "You are therefore requested to take immediate steps to appoint such Matriculates numbering 186 vide the enclosed list as VAWs under intimation to the Department as well as to the Director of Horticulture, Orissa. The names in the enclosed list have been arranged in order of their inter se seniority in the cadre of Gardener." Annexure-3 indicates that a list of Gardeners in order of their inter se seniority has been enclosed to that letter dated 28.8.1991. But the applicant has not annexed the said enclosure with Annexure-3. He only relied on Annexure-11 containing the names of Probationary Gardeners for the year, 1979, in which the name of the applicant finds pace at Sl. No. 60. In Annexure-11 there is no signature of any official indicating that the names contained in this list have been arranged in order of their inter se seniority in the cadre of Gardener. However, in the counter the respondents have stated that the names of the VAWs/Field Technicians have been arranged in the gradation list on the basis of their date of joining as VAW being a Class-III post but not on the basis of their inter se seniority in the post of Probationary Gardener which is a Class-IV post. 11. Vide letter dated 28.8.1991 at Annexure-3 the Government in Agriculture Department directed the Director, Agriculture to take immediate steps to appoint such Matriculates numbering 186 vide enclosed list as VAWs which was prepared in order of their inter se seniority in the cadre of Gardener. 11. Vide letter dated 28.8.1991 at Annexure-3 the Government in Agriculture Department directed the Director, Agriculture to take immediate steps to appoint such Matriculates numbering 186 vide enclosed list as VAWs which was prepared in order of their inter se seniority in the cadre of Gardener. The same position will continue in the post of VAWs as no separate recruitment/interview was undertaken at the time of their adjustment as VAWs. Besides the applicant being sponsored by the Employment Exchange appeared in the interview/test for the post of Horticulture Assistant, a Class-III post. As such post of Horticulture Assistant was not in existence at that point of time, they were appointed as Probationary Gardeners in the year 1979 and subsequently they were adjusted as VAWs as a policy decision by relaxing the recruitment rule. Thus the contention of the respondents in their counter that because the post of Probationary Gardener is a Class-IV post and the post of VAW against which the applicant and others Probationary Gardeners were adjusted, is a Class-III post, they have taken the date of joining in the post of VAW as the basis for the purpose of seniority in the post of VAW, is not sustainable in the eye of law. 12. In view of the position stated above, the respondents are directed to fix the seniority of the applicant in the post of VAW as per his position in the list of Probationary Gardeners enclosed to Annexure-3 within a period of one month from the date of receipt of a copy of this order. No order need be passed for quashing the final gradation list as at Annexure-7 dated 16.5.2008 as the order of the Tribunal dated 22.8.2006 passed in O.A. 2233/98 and batch, on the basis of which Annexure-7 was prepared, was set aside by the Hon'ble High Court in W.P. (C) No. 17013/2006. The O.A. is accordingly disposed of. B.K. Dash, AC : I agree. Application disposed of.