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2016 DIGILAW 438 (ORI)

State of Orissa v. Birendra Nath Sethi

2016-06-21

D.P.CHOUDHURY, I.MAHANTY

body2016
JUDGMENT : D.P. Choudhury, J. The captioned writ petition came to be filed challenging the legality and validity of the order dated 18.8.2014 passed by the learned Orissa Administrative Tribunal, Bhubaneswar (in short ‘the Tribunal’) in O.A. No.723 of 2013. FACTS 2. The factual matrix leading to the case of the petitioners is that the petitioners are the authorities in employment of opposite party No.1 and opposite party No.3. Opposite party No.1 is member of the Scheduled Caste community pursuant to the recruitment of Inspector of Commercial Tax (in short ‘ICT’) presently re-designated as Assistant Commercial Tax Officer (in short ‘ACTO’). In the recruitment process opposite party No.1 was selected and joined the service on 19.8.1987 as ICT in the district of Bolangir. Later on he was promoted to Orissa Accounts of Taxation Service in the year 2013 and joined as Sub-Treasury Officer in Nilagiri. 3. It is stated that Orissa Finance Service Rules 1979 (in short “the Rules 1979”) governs the promotion to the post of Orissa Finance Service Class-II and subsequent promotions thereon. On the other hand, Rule 3 (1)(b) of the Rules provides for recruitment to the Orissa Finance Service Class-II. The provision of Rule 6 deals with recruitment by promotion to OFS Service Class-II. As per the provisions contained in Rule 15 (2) of the Orissa Subordinate Finance (Commercial Tax Branch) Rules, 1988 (hereinabove called “Rules 1988”), all persons appointed to the service shall, unless specifically exempted by the Government, be required to pass departmental examination as per the syllabus. In the instant case, it is the case of the petitioners that the opposite party No.1 was promoted to the cadre of OFS Class-II which was re-designated as OFS Group-A (Junior Branch) with effect from 18.4.2007 under the Rules, 1979. 4. It is alleged, inter alia, that opposite party No.1 in the Departmental Examination has passed Paper-I (Law) and Paper-II (Marwari language) as revealed from his Service Book. But opposite party No.1 has neither attempted to appear in the Departmental Examination in Paper-II (Oriya) nor submitted any representation requesting the competent authority for exempting him from passing of the Departmental Examination in Oriya till 21.10.2010 in spite of issuance of letter dated 22.10.2003. But opposite party No.1 had applied for exemption from passing the Oriya vide his application dated 21.1.2010. The Finance Department exempted opposite party No.1 from appearing in Paper-II (Oriya) on 17.4.2010. But opposite party No.1 had applied for exemption from passing the Oriya vide his application dated 21.1.2010. The Finance Department exempted opposite party No.1 from appearing in Paper-II (Oriya) on 17.4.2010. It is stated in the petition that in 2006 for promotion of the eligible candidates to OFS Class-II, the Commissioner of Commercial Tax was requested by the Finance Department to furnish the CCRs and Gradation List of ACTOs (photocopies of the CCRs and Gradation List of ACTOs) and the departmental proceedings/vigilance case, if any, vide Government letter dated 21.12.2006. On 9.2.2007 the selection board meeting was held for filling up of 34 posts in OFS Class-II by way of promotion. Since the opposite party No.1 had not passed Departmental Examination as required under Rule 6 of the Rules 1979, he was found to be ineligible to consider him for promotion to OFS Class-II on the ground of not passing Departmental Examination in Oriya. So, the selection board justifiably did not allow the promotion of the opposite party No.1 to OFS Class-II. 5. Being aggrieved by the action of the petitioners, the opposite party No.1 approached the Tribunal and the Tribunal after hearing both the parties allowed the Original Application of opposite party No.1 who was petitioner in O.A. No.723 of 2013. The opposite party No.1 was allowed with all consequential financial service benefits including retiral benefits. Being aggrieved by the order which is otherwise illegal and invalid, the present petition is filed by the petitioners. SUBMISSIONS 6. Mr. M. Sahoo, learned Additional Government Advocate appearing for the State submitted that the order of the Tribunal is illegal and not passed order according to the facts of the case. Learned Tribunal erred in law by not appreciating the fact that on the date of DPC the opposite party No.1 had not passed the Departmental Examination in Oriya Paper-II. The order of the learned Tribunal is also erroneous because the Tribunal has exceeded its jurisdiction by allowing the reliefs to the opposite party No.1 beyond the prayers made in the petition. According to him the decision of the learned Tribunal also suffers from gross illegality and irregularity for the reason that the opposite party No.1 has not passed the Departmental Examination on the date when DPC was convened. According to him the decision of the learned Tribunal also suffers from gross illegality and irregularity for the reason that the opposite party No.1 has not passed the Departmental Examination on the date when DPC was convened. Learned Tribunal has also committed error in law by granting final pension to the opposite party No.1 without considering the scope and ambit of Rule 7 (2)(b) (ii) of the OCS (Pension) Rules with their proper perspective. It is also contended by Mr. Sahoo that the order of the Tribunal is unreasonable and is passed on non-consideration of material facts on record for which the same should be set aside by interfering with such order. 7. Mr. A.N. Pattanayak, learned counsel for the opposite party No.1 submitted that the contention of the learned counsel for the petitioners is misconceived and suffers from correct presentation of facts inasmuch as the opposite party No.1 while entered the service has already passed Oriya for which he was admittedly exempted from passing the Departmental Examination in Oriya in 2010. He further submitted that on 9.12.2003 a Gradation List was published placing the present opposite party No.1 at Sl. No.97 and present opposite party No.3 at Sl. No.125. On 22.10.2003 petitioner No.2 asked the opposite party No.1 to submit his H.S.C. pass Certificate for exemption in Departmental Examination in Paper-II (Oriya). It is submitted that on 11.12.2003 the opposite party No.1 sent his Matriculation Certificate to the petitioner No.2 showing proof of passing of Oriya language in High School standard for exempting from appearing departmental examination in Oriya. On 7.5.2004 petitioner No.2 asked opposite party No.1 to submit original Matriculation Certificate. On 10.2.2010 on the documents submitted by the opposite party No.1 and same being forwarded by the petitioner No.2, the Finance Department, Bhubaneswar exempted the opposite party No.1 from appearing Departmental language test in Oriya. So, it is submitted by the learned counsel for the opposite party No.1 that non-consideration of the case of opposite party no.1 by the DPC convened in 2007 was erroneous and illegal because the documents filed by present petitioners before the Tribunal show that during 2003 the opposite party No.1 has submitted to his authorities to exempt him from appearing Departmental Examination in Oriya language which was received in 2004. Thus, it is submitted by the learned counsel for the opposite party No.1 that since the opposite party No.1 has been illegally deprived of giving promotion, the Tribunal has correctly appreciated the facts and passed the order in favour of the opposite party No.1. Hence, it is submitted to reject the writ petition. 8. The points for consideration:- (i) Whether the opposite party No.1 has got requisite qualification to be promoted to OFS Class II on the date the DPC was convened. (ii) Whether the order of the Tribunal is wrong and misconceived. DISCUSSIONS POINT NO.(i) : 9. It is admitted fact that the opposite party No.1 entered to service as Inspector of Commercial Tax on 19.8.1987. It is also admitted fact that under the Rules 1979 there are four cadres of the Orissa Finance Service which are follows:- (i) Orissa Financial Service Class II (ii) Orissa Finance Service Class I (Junior Branch) (iii) Orissa Finance Service Class I (Senior Branch) (iv) Orissa Finance Service in Supertime scale of pay It is also admitted fact that there is provision for promotion to OFS Class-II (re-designated as OFS Group-A (Junior). It is undisputed fact that DPC was convened on 9.1.2007 when the promotion to OFS Class-II from amongst the cadre of opposite party No.1 to the post of OFS Class-II was considered and opposite party No.1 was not given promotion whereas opposite party No.3 was promoted. 10. It is revealed from the copy of the original Service Book of opposite party No.1 that the opposite party No.1 has passed bachelor of Arts and entered into service as ICT having joined the same on forenoon of 19.8.1987. Rule 2 of the Orissa Finance Service Rules, 1979 prescribes hereunder:-“2. 10. It is revealed from the copy of the original Service Book of opposite party No.1 that the opposite party No.1 has passed bachelor of Arts and entered into service as ICT having joined the same on forenoon of 19.8.1987. Rule 2 of the Orissa Finance Service Rules, 1979 prescribes hereunder:-“2. Definitions-In these rules unless the context otherwise requires- (a) “Commission” means the Orissa Public Service Commission; (b) “Government” means the Government of Orissa; (c) “Service” means the Orissa Finance Service consisting of following cadres, namely (i) Orissa Financial Service Class II (ii) Orissa Finance Service Class I (Junior Branch) (iii) Orissa Finance Service Class I (Senior Branch) (iv) Orissa Finance Service in Super time scale of pay (d) “Subordinate Finance Service” means Orissa Subordinate Finance Service’ (e) “Year” means financial year.” Rule 3 (1)(b) of the Orissa Finance Service Rules, 1979 speaks as follows:- “(b) by promotion from among members of the Orissa Subordinate Finance Service in accordance with Rule 6; and” Rule 6 of the aforesaid Rules speaks as follows:- “6. Recruitment by promotion to Orissa Finance Service Class II-No member of the Orissa Subordinate Finance Service shall ordinarily be eligible for promotion to Orissa Finance Service Class II under Clause (b) of Rule 3(1) unless- (i) he has worked for at least five years in the said service; (ii) he has passed the prescribed departmental examination, if any” 11. In view of the aforesaid provisions, an officer of the Orissa Subordinate Finance Service can be promoted to OFS Class-II provided he has worked for at least five years in the said service and has passed the prescribed Departmental Examination. Learned Additional Government Advocate drew our attention to the letter dated 17.4.2010 where the State Government in Finance Department exempted the opposite party No.1 from appearing in paper-II (Oriya) but the DPC was convened on 9.1.2007 for which the opposite party No.1 was ineligible for promotion. 12. Learned counsel for the opposite party No.1 contended that the opposite party No.1 had already passed H.S.C. in Oriya language while he entered to service. The Orissa Subordinate Finance Service Rules, 1951 was repealed in 1988 with the name and style The Orissa Subordinate Finance Service (Commercial Tax Branch) Recruitment and Conditions of Service Rules, 1988 and the same was published on 28.3.1988 in Orissa Gazette. The Orissa Subordinate Finance Service Rules, 1951 was repealed in 1988 with the name and style The Orissa Subordinate Finance Service (Commercial Tax Branch) Recruitment and Conditions of Service Rules, 1988 and the same was published on 28.3.1988 in Orissa Gazette. Rule 19 of Rules 1988 specifically stated that any rules, instructions or orders corresponding to these rules and in force immediately before the commencement of these rules relation to method of recruitment etc., to the post Inspector are hereby repealed. Also there is a proviso to the effect that save as otherwise provided in these rules anything done or any order made or action taken under the rules, instructions or orders so repealed shall be deemed to have been done, made or taken under the corresponding provisions of these rules. Since opposite party No.1 got appointment in 1987, he was governed by Rules 1951. In the Rules 1951 there was no provision for passing of Oriya in the M.E. standard in the Departmental Examination whereas Rule 15 (2) of Rules 1988 prescribes for Departmental Examination and note to the Appendix under such Rules shows that an officer may be exempted from passing the departmental examination in Oriya or Marwari on producing a certificate to the effect that he has passed in language at the High School Certificate Examination or such other examination as in the opinion of Government is equal or superior to it. The copy of Service Book of opposite party No.1 shows that he has passed the First Half yearly Departmental Examination for the year 1988 held on 18.9.1988 in Paper-I (Law, Book keeping and Accounts) and Paper-II language (Marwari) vide office order No.88620/CT dated 23.12.88. Not only this but also it appears that vide Annexure-1 on 9.12.2003 there was a Gradation List of Inspector of Commercial Taxes whereunder at Sl. No.97 the name of the opposite party No.1 finds place. It is also clear that the Departmental Examination consists of Paper-I (Law) and Paper-II languages where Oriya and Marwari have also been included. Opposite party No.1 has passed Departmental Examination containing Paper-I and Paper-II as per the certification made in the Service Book. It is admitted fact that he has passed Matriculation in mother language Oriya vide Annexure-A filed before the Tribunal. Opposite party No.1 has passed Departmental Examination containing Paper-I and Paper-II as per the certification made in the Service Book. It is admitted fact that he has passed Matriculation in mother language Oriya vide Annexure-A filed before the Tribunal. Apart from this, it is revealed from the impugned order and copies of documents filed before the Tribunal show that in 2003 the opposite party No.1 has submitted Matriculation Certificate indicating proof of passing of Oriya and that has also been sent to the office of the Commissioner in 2004 by the Commercial Tax Officer, Jajpur Road vide letter No.434 dated 6.2.2004 for exempting him from appearing in the qualifying examination. When the copy of Certificate has already been submitted by the opposite party No.1 to the next superior authority, the question of non-consideration of his promotion to OFS Class-II is surely travesty of justice and is one of the example of depriving the opposite party No.1 from receiving his entitlement of promotion under Rules, 1979. Thus, we hereby observe that on 9.1.2007 when the DPC was held opposite party No.1 has got requisite qualification for his promotion to OFS Class-II under Rules, 1979. Point No.(i) is answered accordingly. POINT NO.(ii) 13. The relevant portion of the impugned order of the Tribunal is as follows:- After hearing the learned counsel for both sides, I note that the applicant has passed the HSC examination in Odia medium with M.I.L.(Odia) as a subject in September 1975 and he should have been exempted from passing the Departmental Examination in P-II Odia language on the ground of clearing HSC Examination with M.I.L.(Odia) as a subject in Odia medium and his case should have been considered in the DPC meeting held on 09.01.2007 based on which recommendation his junior, Respondent No.4 got the promotion on 18.04.2007. Accordingly, I direct Respondent No.1 to consider and issue appropriate order for promotion of the applicant to the cadre of OFS Class-II (which has been redesignated as OFS Group-A (Junior) with effect from 18.04.2007, the date on which his junior Respondent No.4 got such promotion and he be given all consequential service and financial benefits. We have already observed that opposite party No.1 has already passed Departmental Examination under Rule 15 (2) of Rules 1988 for which he is eligible for promotion to OFS Class-II under Rule 6 of Rules 1979. We have already observed that opposite party No.1 has already passed Departmental Examination under Rule 15 (2) of Rules 1988 for which he is eligible for promotion to OFS Class-II under Rule 6 of Rules 1979. So, opposite party No.1 is entitled to get promotion from the date his junior got promotion. So, relevant impugned order is correct and cannot be said to be wrong. Point No.(ii) is answered accordingly. CONCLUSION 14. We have already observed in the aforesaid paragraphs that opposite party No.1 has got requisite qualification for his promotion under Rule 6 of the Rules, 1979 to the post of OFS Class-II. Moreover, we have observed in the aforesaid paragraphs that on the date of DPC, opposite party No.1 has already passed H.S.C. Examination in Oriya medium and mere exemption issued by the State Government latter in spite of submission of Certificate by the opposite party No.1 much before the DPC held, such delay cannot take away the right of the opposite party No.1 from his consideration for promotion to the post of OFS Class-II. When the petitioners are at fault in not considering the case of the opposite party No.1, the opposite party No.1 cannot be allowed to suffer for none of his fault. On the other hand, the Tribunal has rightly analyzed the case in the aforesaid paragraphs and allowed the opposite party No.1 for his promotion to the cadre of OFS Class-II (which was re-designated as Group-A cadre) with effect from 18.4.2007 on which date his junior opposite party No.3 has got promotion and all such consequential service and financial benefits should be made available to the opposite party No.1. Besides this we are of the view that ignoring the case of the opposite party No.1, has not only deprived to get justice but also his fundamental right under Articles 14, 16 and 21 of the Constitution of India has been seriously violated. Hence, there is no infirmity in the impugned order and we find no error in the finding of the learned Tribunal. As such the writ petition being devoid of merit stands dismissed. I. Mahanty, J. I agree.