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2017 DIGILAW 1229 (ORI)

Milu Sahu v. C. M. D. , GRIDCO

2017-10-31

SUJIT NARAYAN PRASAD

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JUDGMENT : S. N. Prasad, J. This writ petition is under Article 226 and 227 of the Constitution of India, wherein the petitioner has been prayed; (i) to quash the seniority list under Annexure-3 and in consequence thereupon to quash the promotion order of opposite parties 4 to 15 who have been granted promotion vide order dated 26.08.2000 under Annexure-8. (ii) to direct the opposite parties to re-fix the seniority of the petitioner in the grade of Driver-A and the circle level recruitment committee may be directed to hold meeting of the Departmental Promotion Committee afresh for the post of Driver High Skilled-B, in alternative it has been prayed to direct the opposite parties to do notional fixation of scale of pay of the petitioner w.e.f. 26.08.2000 or any eligible date till 31.04.2008 as Driver High Skilled ‘B’ and in consequence thereof he may be granted the revised retirement benefits such as gratuity, leave salary and monthly pension and arrear pension within specified period. 2. The facts of the case is that the petitioner was initially appointed as Helper under the E.H.T. (M) Division, Chainpal on 06.09.1971, since he was possessing the Driving License as such he was taken over as Driver w.e.f. 8.9.1971 allowed to hold the post of Driver-‘C’ on 15.04.10983 and then he was promoted to the post of Driver-B on 1.12.1984. The opposite parties after considering the availability of vacancies for the post of Driver-A, promoted the petitioner to the post of Driver-A w.e.f. 6.7.1991. Grievance of the petitioner is that the opposite parties 4 to 15 have wrongly been granted seniority ignoring his case who have not taken birth in the cadre where the petitioner has taken the birth and as such they cannot be given seniority over and above the petitioner, as such the opposite party has committed illegality in placing them above the petitioner is nothing but an arbitrary exercise of the power of the authorities. According to the petitioner if opposite parties 4 to 15 would not have been given seniority over and above the petitioner, he would have granted promotion to the higher post, hence he has filed the writ petition assailing the action of the authorities in placing the opposite parties 4 to 15 above the petitioner. 3. According to the petitioner if opposite parties 4 to 15 would not have been given seniority over and above the petitioner, he would have granted promotion to the higher post, hence he has filed the writ petition assailing the action of the authorities in placing the opposite parties 4 to 15 above the petitioner. 3. Learned counsel for the petitioner has submitted that during pendency of the writ petition, since the opposite parties 4 to 15 have been superannuated from service, hence the petitioner has filed miscellaneous application for deletion of their names since according to the petitioner they were no more contesting parties to contest the case, and by virtue of an order passed by this Court, the names of opposite parties 4 to 15 have been deleted from the list of the opposite parties and as such now he is only claiming the notional benefit by granting promotion w.e.f. the date when these opposite parties have been granted promotion to the higher post, so that the petitioner may be able to get monetary benefit by virtue of the fixation of pension after his retirement, he has also retired from service in the year 2008. He has relied upon Annexure-12 wherein by putting reliance upon Clause-(1)(a), it has been demonstrated by him that the authorities while putting these opposite parties above than the petitioner has ignored the said provision, wherein it has been stipulated that the employees borne in the Circle cadre who are working in the Division which is transferred to another Circle shall be absorbed, as far as possible, in the vacancies existing in the Circle. If after such absorption there will be surplus employees to be transferred the junior most employees borne in Circle cadre should be transferred to the other Circle. By putting reliance upon the said stipulation he has submitted that the implied meaning of this provision is that the employees who are being transferred from another circle where the petitioner has taken birth will be said to be junior for all practical purposes but the authorities ignoring the said stipulation has placed them above than the petitioner and on the basis of placing in the seniority list they have been granted promotion prior to the promotion of the petitioner, without considering the case of the petitioner for promotion to the higher post. 4. 4. Learned counsel for the opposite party while on the other hand has submitted that the writ petition is fit to be dismissed on the ground that the petitioner’s main prayer is based upon the action of the authorities in granting promotion to the opposite parties 4 to 15, who have been deleted from the list of the opposite parties and now as such he cannot claim grievance against the opposite parties 4 to 15. He submits that the original prayer is to quash the order of promotion of the opposite parties 4 to 15 but subsequently their names have been deleted from the list of opposite parties, as such the original prayer is fit to be dismissed on this ground only. He submits regarding the alternative prayer to fix the notional fixation of scale of pay of the petitioner w.e.f. 26.08.2000 of or any eligible date till 31.04.2008, the date of superannuation of the petitioner, even this prayer cannot be allowed reason being that, if he would be granted promotion w.e.f. 26.08.2000 even notionally, then also the petitioner has to make out a case by equating himself with the opposite parties 4 to 15 who have been granted promotion w.e.f. 26.08.2000, hence this prayer is also not fit to be allowed. He further submits by putting reliance upon Annexure-12 that the submission advanced on behalf of the petitioner regarding the principle to be adopted for fixation of inter se seniority in case of transfer from one cadre to another, the provision of Clause-1 (a) will not be applicable, rather clause-3 wherein the specific provision has been made in case the employees transferred from one circle to another circle to that situation the employees who are being transferred to another circle they will come along with the seniority and to put reliance upon the paragraph-8 of the counter affidavit, wherein it has been stated that the drivers whose names have been mentioned under paragraph-9 have been bodily transferred along with the vehicles with their original seniority as per the letter No.10608 (127) dated 02.05.1986 in supersession of letter No.25778 (120) dated 05.11.1982 of OSEB, Bhubaneswar and considering the said decision of the authorities, the seniority of the persons who have been placed above than the petitioner cannot be questioned. In view of such submission, it has been argued that the petitioner has failed to make out a case of granting promotion w.e.f. the date when other persons have been granted promotion. Heard the learned counsel for the parties and perused the documents available on record. 5. On appreciation of the rival submission of the learned counsel for the parties, it is evident that the petitioner is claiming promotion on the basis of his seniority position which he has carried out in the original cadre. 6. The admitted position in this case is that the petitioner had taken birth in the cadre under Dhenkanal Electrical Division, Chainpal, where he was appointed as Helper on 8.9.1971, thereafter he was appointed as Driver-C w.e.f. 15.04.1983 and re-designated as Driver-B w.e.f. 01.12.1984 and again re-designated as Driver-A w.e.f. 06.07.1991 as per the standing norms of the erstwhile OSEB. Thus, the petitioner came to the cadre of Driver-C w.e.f. 15.04.1983 and in the post of Driver-B w.e.f. 01.12.1984, accordingly the seniority list in the post of Driver-A issued by the Superintending Engineer of the concerned Circle on 08.02.1999 was prepared on the basis of the joining in the post of Driver-B. While, the petitioner was working under the said Division, the Government has taken decision to reorganize the employees/workers working in the Division/Sub-division and in order to reorganize the division, the decision was taken to transfer along with the establishment from one Circle/Division to another. 7. Further decision was taken that at the time of such re-organisation, the employees who are actually working in the Division/Sub-Division which are re-organised are being transferred from one Circle/Division to another without having their seniority in the parent Circle/Division. Some of the such employees have represented to retain them in their parent Circle/Division, for some reason or other, the decision was taken as has been quoted herein below:- It is decided that at the time of such re-organisation the following principles should be observed for transfer of employees:- (1) In case of transfer Division/Sub-Division from one Circle to another (for employees in Circle cadre) (a) The employees borne in the Circle cadre who are working in the Division which is transferred to another Circle shall be absorbed, as far as possible in the vacancies existing in the Circle. If after such absorption there will be surplus employees to be transferred the junior most employees borne in Circle cadre should be transferred to the other Circle. (b) All the employees borne in the cadres of the Division which is transferred shall be transferred to the other Circle along with the Division. (2) In case of transfer of Sub-Division/Section from one Division to another (for employees in Divisional cadre). Those of the employees working in the Sub-Division Section which are transferred from one Division to another shall be absorbed as far as possible in the vacancies existing in the Division. If after such absorption there will be employees to be transferred the junior most employees in Division cadre should be transferred. (3) The employees transferred shall carry with them their seniority inter se. They shall also merge in equivalent cadres of the Circle/Division to which they are transferred. Their seniority inter se with their counter parts in the cadre in which they are merged in to be fixed taking their dates of joining under the previous Circle/Division in a particular category on the date of transfer. (4) The above principles shall be given effect to prospectively from the date of issue of these instructions and post cases shall not be re-opened. It is evident from the decision as quoted hereinabove, that in case of transfer Division/Sub-Division from one Circle to another, the employees borne in the Circle cadre who are working in the Division which is transferred to another Circle shall be absorbed, as far as possible and the surplus employees will be transferred according to the position on the seniority list to another Circle. The decision as contained in clause-3 is stipulates that the employees transferred shall carry with them their seniority inter se. It is further evident from the stipulation made therein that they shall also be merged in the equivalent cadres of the Circle/Division to which they are transferred. Their seniority interse in the counter parts in the cadre in which they are merged is to be fixed taking their dates of joining under the previous Circle/Division in a particular cadre on the date of transfer. Their seniority interse in the counter parts in the cadre in which they are merged is to be fixed taking their dates of joining under the previous Circle/Division in a particular cadre on the date of transfer. Thus, it is evident that the competent authority has taken decision to fix interse seniority of such employees whose cadre is being transferred from one cadre to another on the basis of their dates of joining in the erstwhile Circle or Division. 8. Learned counsel for the petitioner has contended that as per the stipulation made in the Annexure-12 dated 5.11.1982 under Clause-1 (a) that the employees who are coming from one Circle to another Circle or one Division to another Division, they will be treated junior to the employees who have taken birth originally in the cadre, but on critical appreciation of provision made under Clause-1(a), that condition is not meant for fixation of interse seniority of the transfer of employees from one cadre to another, rather the same is for the purpose of absorption in the original cadre and shifting of the employees who have been found to be surplus after exhaustion of vacancies in the erstwhile cadre and to shift them to another cadre subject to availability of vacancies, hence the reliance placed by the petitioner upon clause-1(a) is not give any aid to the petitioner to grant any relief as has been prayed by the petitioner in this writ petition. 9. According to the considered view of this Court, the Clause-3 communication dated 5.11.1982 that relates to fixation of interse seniority wherein it has specifically been stipulated the process to fix interse seniority of the employees who are coming from outside cadre of Division or Circle and the process for fixing the seniority has been decided to be done on the basis of their date of appointment of the erstwhile place of posting. 10. It is evident from the Annexure-11 annexed to the writ petition that the name of 14 employees have been given including the petitioner who is at Sl. No.14 and other employees from Sl.No.1 to 13 have come from another Circle to the Circle of the petitioner and on the basis of the date of joining in the Circle they have been shown senior to the petitioner, hence there is nothing illegality rather it has been done in consonance with Clause-3 of Annexure-12 dated 5.11.1982. No.14 and other employees from Sl.No.1 to 13 have come from another Circle to the Circle of the petitioner and on the basis of the date of joining in the Circle they have been shown senior to the petitioner, hence there is nothing illegality rather it has been done in consonance with Clause-3 of Annexure-12 dated 5.11.1982. It is further evident from the specific stand taken by the opposite parties in para-9 that the drivers whose names have been mentioned in the said paragraph have been bodily transferred along with the vehicles with their original seniority as per the letter No.10608 (127) dated 02.05.1986 in supersession of letter No.25778 (120) dated 05.11.1982 of OSEB, Bhubaneswar. It is further evident that the decision taken by the authorities in the letter dated 2.5.1986 has never been assailed by the petitioner. 11. In view of the foregoing reasons, this Court is of the considered view that the petitioner fails to make out a case. Accordingly, the writ petition is dismissed.