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2016 DIGILAW 1189 (ORI)

Giridhari Bhuyan v. State of Orissa

2016-12-03

S.N.PRASAD, S.PANDA

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JUDGMENT : S.N.Prasad, J. The petitioner being aggrieved with the order dated 15.3.2012 passed in O.A.No. 381 of 2007 is before this Court by invoking the jurisdiction conferred under Articles 226 and 227 of the Constitution of India, whereby and whereunder the learned Tribunal has refused to entertain the grievance of the petitioner in changing his position in the seniority list. 2. The brief fact of the case is that the petitioner while working in the work-charged establishment appointed as Class-IV employee vide order dated 15.5.1979 issued by the Managing Director, Orissa Lift Irrigation Corporation, opposite party no.4 was appointed as Class-IV in the same order of appointment and his name found place at Sl.No.27. The petitioner while working in the Ground Water Section under the Orissa Lift Irrigation Corporation, the Govt. had directed the Directorate of Water Survey and Investigation, created vide resolution dated 29.12.1995 by virtue of the order passed by the Rural Development Department, the Orissa Lift Irrigation Corporation was transferred to the administrative control of the Department of Water Resources under the principle of “as is where is basis” w.e.f. 1.1.1996, in pursuance to the same 340 posts of Orissa Lift Irrigation Corporation were also transferred to the Director, Ground Water Survey and Investigation and employees working in the Section of Ground Water were absorbed on the basis of principle of “as is where is basis. In view thereof, the petitioner was absorbed as per the resolution and on the basis of the principle of “as is where is basis”, he continued w.e.f. 1.1.1996 and while continuing as peon, he was promoted to the post of Ferro Printer in the scale of pay of Rs.3050-4590/-on the recommendation of the Departmental Promotion Committee vide order dated 30.10.2001. Opposite party no.4 had also been granted promotion to the post of Jr.Grade Diarist. The post of Jr.Grade Diarist and Ferro Printer are interchangeable and promotion will be made to the post of Sr.Grade Diarist from the common cadre of Jr.Grade Diarist and Ferro Printer. Opposite party no.4 had also been granted promotion to the post of Jr.Grade Diarist. The post of Jr.Grade Diarist and Ferro Printer are interchangeable and promotion will be made to the post of Sr.Grade Diarist from the common cadre of Jr.Grade Diarist and Ferro Printer. Opposite party no.1 had published a tentative gradation list of common cadre of Jr.Grade diarist and Ferro Printer on 20.12.1995 wherein the name of the petitioner finds place at Sl.No.2 and the opposite party no.4 is at Sl.No.1 though the opposite party no.4 had joined on 25.1.1996 while the petitioner had joined on 1.1.1996, but without taking into consideration the date of entry into service, the petitioner has been shown junior to opposite party no.4 and as such, being aggrieved with the tentative gradation list, the petitioner had made a representation for making necessary correction therein by fixing the seniority of the petitioner vis-a-vis the opposite party no.4 on the date of entry into service. The opposite party-State without considering the grievance of the petitioner has come up with the final gradation list. The petitioner has also filed one Original Application being O.A.No. 381 of 2007 challenging the decision of the authority dated 17.3.2007 whereby and whereunder the petitioner has been shown junior to opposite party no.4, but the learned Tribunal without taking into consideration the date of entry in service of the petitioner vis-à-vis opposite party no.4, has rejected the grievance of the petitioner against which this writ petition has been filed. 3. The petitioner has challenged the order passed by the learned Tribunal on the ground that the learned Tribunal has not taken into consideration the service rendered by the petitioner with effect from 9.5.1984 against the leave vacancy towards counting the total length of service, rather, he has been shown to be in service w.e.f. 22.8.1984, i.e. the date when he has been adjusted against a permanent vacancy and thereby the period rendered by him under the opposite parties from 9.5.1984 to 21.8.1984 has not been taken into consideration. 4. 4. The private opposite parties both the State as well as Orissa Lift Irrigation Corporation have appeared and contested the case by vehemently arguing that the learned Tribunal has not committed any error in deciding the issue of fixation of seniority having been done by the authorities by excluding the period of rendering service by the petitioner from 9.5.1984 which is the date of his service against a leave vacancy and since it was not against a permanent establishment, the period of service rendered by the petitioner against the leave vacancy w.e.f. 9.5.1984 has not been taken into consideration, rather the date of entry in service under the permanent establishment, i.e., 22.8.1984 has been taken into account, on the basis of the same, the petitioner has been found to be below in the seniority list in comparison to opposite party no.4, who has come in service under the permanent establishment on 16.5.1984. On these factual aspects, argument has been advanced on behalf of the learned counsel for the opposite parties that there is no error in the order passed by the learned Tribunal. 5. We have heard learned counsel for the parties and perused the materials available on record. We after re-appreciating the argument has found that the main claim of the petitioner is to determine his seniority from the date when he has entered into service under the leave vacancy i.e. w.e.f. 9.5.1984 and taking into consideration this date, since opposite party no.4 has joined the service on 16.5.1984, as such, on the basis of entry in to the service, the petitioner will be said to be senior in comparison to opposite party no.4. It is settled proposition of law that the inter se seniority of the employees in a cadre is to be decided on the basis of entry in the substantive service against a sanctioned post. 6. In the instant case although the petitioner had joined the service on 9.5.1984, but against a leave vacancy. He has subsequently been adjusted against a permanent vacancy on 22.8.1984 by virtue of an order passed on 21.8.1984. 6. In the instant case although the petitioner had joined the service on 9.5.1984, but against a leave vacancy. He has subsequently been adjusted against a permanent vacancy on 22.8.1984 by virtue of an order passed on 21.8.1984. The petitioner during the relevant time has not challenged that aspect of the matter as to why his service will be treated to be by virtue of the an order passed on 21.8.1984 and thus, the service rendered by him against the leave vacancy w.e.f. 9.5.1984 cannot be taken into consideration, rather he has chosen to accept the decision of the authorities. The admitted position in this case is that opposite party no.4 had come into the cadre on 16.5.1984, which is under the permanent establishment while the petitioner has come to the permanent establishment only on 22.8.1984. The authorities after taking into consideration the fact that the petitioner has come to the permanent establishment only after opp.party no.4 entered in service i.e. on 16.5.1984 and hence, opposite party no.4 has been kept above than that of the petitioner. Since the petitioner has not chosen to assail the decision of the authorities taken by virtue of the order dated 21.8.1984 regarding continuity of service from 9.5.1984 and taking into consideration the fact that the service of the petitioner from 9.5.1984 is against a leave vacancy which is not under the permanent establishment and hence the authorities have rightly not considered the period from 9.5.1984 till 21.8.1984 for the purpose of deciding the inter se seniority between the petitioner vis--a-vis opposite party no.4. Learned Tribunal after taking into consideration this factual aspect by elaborately discussing the matter in detail, has come to the finding that the decision of the authorities in determining the seniority has got no infirmity. 7. We, after taking into consideration the aforesaid factual aspect and the principle for determination of inter se seniority of an employee in a cadre, are of the considered view that the authorities as well as the Tribunal has not committed any error. Accordingly, we find no reason to interfere with the same. 8. In the result, the writ petition is dismissed being devoid of merit.