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2017 DIGILAW 1478 (ORI)

Nimain Charan Mohanty v. State of Orissa

2017-12-19

SUJIT NARAYAN PRASAD

body2017
JUDGMENT : S.N. Prasad, J. Since common issues are involved in all the writ petitions, they are being heard together and disposed of by this common judgment. 2. In these writ petitions, the matter pertains to quashing the decision of the authorities whereby and whereunder the order of promotion has been cancelled with a direction to revert the petitioners to the former post from the post of Tax Collector. While in one case, the direction has been sought for to consider the case of the petitioner in accordance with the seniority. 3. The brief facts of the case in hand is that the petitioners, who are working in Class-IV posts under the dual capacity, have been included in the combined gradation list which has become final and the authorities, while considering the case of promotion of the petitioners, have been considered having been granted promotion to Tax Collector, but subsequently in pursuant to the direction passed by this Court when the matter has been inquired into by the Director, Housing & Urban Development Department, it was found that the selection by way of promotion to the post of Tax Collector has not been done in accordance with the provision of sub-rule (3) of Rule-426 of the Orissa Municipal Rules, 1953 and as such, decision has been taken to recall the order of promotion and in view thereof, they have reverted from the post of Tax Collector to that of the original post. 4. According to the petitioners in whose against the order of reversion has been passed, the authorities have granted them promotion in accordance with law from the cadre of 71 employees working under the Class-IV. The cases of all the employees under the Cadre were taken into consideration in view of statutory provision which stipulates that the promotion would be granted on the basis of seniority subject to suitability, while assessing the candidature of all the employees in the cadre, only the candidatures of 29 candidates were called for interview, out of which, 26 appeared. Among the candidates, candidates at Serial No.19, 20, 21 and 22 have expressed their unwillingness for promotion. Among the candidates, candidates at Serial No.19, 20, 21 and 22 have expressed their unwillingness for promotion. Taking into account the suitability of the candidates for the job of Tax Collector, their experience, minimum knowledge of Oriya and English language and their aptitude, the petitioners have been found to be suitable by the Committee for the promotion to the post of Tax Collector for the post of 4 numbers of vacancies and one kept vacant for Scheduled Caste category, if not available. 5. According to the learned counsel appearing for the petitioners, the candidature of all the employees in the cadre consisting of 71 have been taken into consideration and subject to suitability, the selection by way of promotion has been made to the post of Tax Collector. Hence, nothing illegal is there. 6. While, on the other hand, learned counsel appearing for the opposite party-Puri Municipality submits that the Tax Collector being non-selection post is to be filled up in accordance with strict seniority except where a senior does not possess the qualifications prescribed for holding the highest post and definitely proved to be incompetent to hold such post or where on account of his proved serious misconduct it is considered undesirable to promote him. He further submits that while considering the cases of the petitioners and others, the provision as contained in sub-rule(3) of Rule-426 of Orissa Municipal Rules, 1953 has not been taken into note and as such, in view of the order passed by this Court in W.P.(C) No.14664 of 2008, the matter has been inquired into by the Director, Municipal Administration, Housing and Urban Development Department, who in course of inquiry, has found that the said provision of law has not been followed. Hence, decided to recall the order of promotion and in view thereof, the order of reversion has been passed. Hence, decided to recall the order of promotion and in view thereof, the order of reversion has been passed. He further submits by referring to the report of the Director, Municipal Administration, Housing and Urban Development Department by refuting the contention of the petitioners that the candidature of all the candidates have been taken into consideration, but that is not the fact, as would be evident from the report of the Director, Municipal Administration, Housing and Urban Development Department wherein it is reflected that the 29 candidates were called for interview, out of which, 26 appeared and while considering only name of 7 candidates are recommended for promotion, but while the cases of others have been rejected, the promotion committee has not assigned the reason which according to him, was to be assigned so that it can be reflected that their cases have been considered. Since it is not being reflected in the said meeting, it can safely be said that the Departmental Promotion Committee has not acted in accordance with law. Hence, the entire exercise of consideration of promotion by the committee is illegal. He further submits that when the process of Departmental Promotional Committee is illegal, the same is amenable to the judicial review in exercise of power conferred to this Court under Article 226 of the Constitution of India. 7. Upon hearing the learned counsel for the parties and on appreciation of their rival submission, the issue fell for consideration before this Court to assess the illegality and propriety in the decision taken by the Departmental Promotion Committee in granting promotion from Class-IV to the post of Tax Collector. 8. This Court has thought it proper to quote the relevant provision which has direct nexus for the proper adjudication of the issue involved in this case and the relevant provision of Rule-426 of the Orissa Municipal Rules, 1953 which is being referred herein below :- “426. (1) Posts of Manager, Head Clerk, Accountant, Upper Division Clerks or posts carrying upper division pay and posts of Headmasters of secondary schools be selection posts and all the ministerial posts other than those specified above shall be non-selections. (2) Promotion to selection post shall be made on grounds of qualification and merit, seniority considered only where qualifications and merit are approximately equal. (2) Promotion to selection post shall be made on grounds of qualification and merit, seniority considered only where qualifications and merit are approximately equal. (3) Promotions to non-selection posts shall be made in accordance with strict seniority except- (a) where a senior does not possess the qualifications prescribed for holding the higher post and definitely proved to be incompetent to hold such post; or (b) where on account of his proved serious misconduct it is considered undesirable to promote him. (4) Non-promotion to a non-selection post shall be deemed to be withholding of promotion within the meaning of the rules relating to appointment and punishment of officers and servants of the Council. (5) The Government or any authority appointed by them in this behalf may, if they deem fit, call for records relating to appointments and promotions to selection posts for review and the orders passed by the Government or the authority shall be carried out by the Council.” 9. It is evident from the provision as contained in Rule-426(1) that the posts of Manager, Head Clerk, Accountant, Upper Division Clerks or posts carrying upper division pay and posts of Headmasters of secondary schools has been held to be selection posts which shall be decided to be made on the basis of qualification and merit, seniority will be considered only where qualifications and merit are approximately equal. Rule-426(3)(a) of the Orissa Municipal Rules, 1953 provides provision of promotion to non-selection posts which shall be made in accordance to the strict seniority except where a senior does not possess the qualifications prescribed for holding the higher post and definitely proved to be incompetent to hold such post; or (b) where on account of his proved serious misconduct it is considered undesirable to promote him. 10. 10. This Court has also taken into consideration the fact as to whether the post of Tax Collector is coming under the fold of sub-rule (1) or sub-rule(3) of Rule-426 of the Orissa Municipal Rules, 1953 for which the provision as contained in Rule-427 has been examined wherein under the heading of “Office Establishment”, the reference of Bill Collector has been made which is equal to that of Tax Collector and as such, the post of Bill Collector/Tax Collector is to be filled up from amongst the candidates who is having under-matric who should have passed the M.E. School Examination, hence the post of Bill Collector since been not referred in sub-rule (1) of Rule-426 of the Orissa Municipal Rules, 1953, as such, the said post cannot be held to be a selection post, rather it will be held to be non-selection post and accordingly, the post is to be filled up by way of promotion in accordance with the strict seniority. Hence, the provision of sub-rule (3) of Rule-426 of the Orissa Municipal Rules, 1953 is to be taken into consideration while granting promotion from Class-IV to Tax Collector. 11. The fact in these cases are that the petitioners are under the Class-IV Cadre which consist of 71 employees as per the gradation list annexed to the writ petitions and as such, in case of filling up the post of Tax Collector, the same is to be filled up strictly in accordance with the seniority. 12. It is settled proposition of law that the High Court sitting under Article 226 of the Constitution of India cannot interfere in the decision of the Departmental Proceeding Committee, but if the process in taking the decision is illegal, the same will be amenable to the writ jurisdiction and as such, this Court has examined the factual aspect in the light of this proposition of law as to whether the decision taken by the Departmental Proceeding Committee is in accordance with the provision made under the sub-rule (3) of Rule-426 of the Orissa Municipal Rules, 1953 or not? It is equally settled that the right of promotion is not a fundamental right, but right to consideration is a fundamental right and right to consideration can be said to be followed when it will be considered by proper application of mind either in rejecting or considering it in positive, it has to be reflected in the minutes of meeting. Accordingly, this Court has examined the minutes of meeting of the Departmental Proceeding Committee which is in Oriya language which has been annexed by the petitioners in these writ petitions along with the translated version having been authenticated by the learned counsel for the parties and from its perusal, it is evident that out of 71 candidates, 29 candidates were called for interview, out of which, 26 appeared and in comparative assessment, only 7 candidates have been found to be eligible, but since the 4 posts were to be filled up, accordingly, 4 candidates have been selected and promoted. 13. This Court, after going through the proceedings of selection committee held on 9.4.2008, has found that the candidature of other candidates of the gradation list consisting of 71 employees belonging to Class-IV Cadre has not at all been referred either rejecting or without any consideration and it is settled that if there is no reference of a candidate in the minutes of meeting, it will be said that their cases have not been considered. Reference in this regard may be made to the judgment rendered by Hon’ble the Apex Court in the case of Chairman, Life Insurance Corporation of India and Others v. A. Masilamani, reported in (2013) 6 SCC 530 wherein the Hon’ble Apex Court has held at paragraph-19 which is being quoted herein below :- “19. The word “consider” is of great significance. The dictionary meaning of the same is, “to think over”, “to regard as”, or “deem to be”. Hence, there is a clear connotation to the effect that there must be active application of mind. In other words, the term “consider” postulates consideration of all relevant aspects of a matter. Thus, formation of opinion by the statutory authority should reflect intense application of mind with reference to the material available on record. The order of the authority itself should reveal such application of mind. In other words, the term “consider” postulates consideration of all relevant aspects of a matter. Thus, formation of opinion by the statutory authority should reflect intense application of mind with reference to the material available on record. The order of the authority itself should reveal such application of mind. The appellate authority cannot simply adopt the language employed by the disciplinary authority and proceed to affirm its order (Vide Indian Oil Corpn. Ltd. v. Santosh Kumar, (2006) 11 SCC 147 and Bhikhubhai Vithlabhai Patel v. State of Gujarat, (2008) 4 SCC 144 )” 14. In view of the fact that the other candidates who ought to have been considered on the basis of seniority in view of the provision of sub-rule(3) of Rule-426 of Orissa Municipal Rules, 1953 since been not considered, hence the provision of sub-rule(3) of Rule-426 of Orissa Municipal Rules, 1953 has not been followed. Accordingly, the process of the proceeding of selection committee is held to be illegal. 15. Some of the aggrieved employees belonging to the cadre has approached this Court and this Court, while passing the order in W.P.(C) No.14664 of 2008, has directed the Director, Municipal Administration, Housing and Urban Development Department to inquiry into the matter and in inquiry he has found that the selection has not been done in pursuant to the sub-rule-3 of Rule-426 of the Orissa Municipal Rules, 1953. Accordingly, in view their decision, the order of reversion has been passed. 16. The petitioners have challenged the order of reversion also on the ground that the principal of natural justice has not been followed, but question herein is that when the process itself is illegal in granting them promotion even if the principal of natural justice would be followed, no material change will come and as such, on this ground even if the order of reversion will be quashed, there is no likelihood of change in the decision by the authority and if the matter will be remitted before the authority, it will an empty formality and futile exercise. In this respect, reference may be made to the judgment rendered by the Hon’ble Apex Court in the case of Dharampal Satyapal Ltd. Vs. Deputy Commissioner of Central Excise, Gauhati and others, reported in (2015) 8 SCC 519 wherein their Lordships have held at paragraph-39 which is being quoted herein below : “39. In this respect, reference may be made to the judgment rendered by the Hon’ble Apex Court in the case of Dharampal Satyapal Ltd. Vs. Deputy Commissioner of Central Excise, Gauhati and others, reported in (2015) 8 SCC 519 wherein their Lordships have held at paragraph-39 which is being quoted herein below : “39. We are not concerned with these aspects in the present case as the issue relates to giving of notice before taking action. While emphasizing that the principles of natural justice cannot be applied in straitjacket formula, the aforesaid instances are given. We have highlighted the jurisprudential basis of adhering to the principles of natural justice which are grounded on the doctrine of procedural fairness, accuracy of outcome leading to general social goals, etc. Nevertheless, there may be situations wherein for some reason- perhaps because the evidence against the individual is thought to be utterly compelling- it is felt that a fair hearing “would make no difference”- meaning that a hearing would not change the ultimate conclusion reached by the decision-maker.” In the case of Escorts Farms Ltd. Vs. Commissioner, Kumaon Division, Nainital, U.P. & others, reported in (2004) 4 SCC 281 wherein the Hon’ble Apex Court has held at paragraph-64 which is being quoted herein below : “64. Right of hearing to a necessary party is a valuable right. Denial of such right is serious breach of statutory procedure prescribed and violation of rules of natural justice. In these appeals preferred by the holder of lands and some other transferees, we have found that the terms of government grant did not permit transfers of land without permission of the State as grantor. Remand of cases of a group of transferees who were not heard, would, therefore, be of no legal consequence, more so, when on this legal question all affected parties have got full opportunity of hearing before the High Court and in this appeal before this Court. Rules of natural justice are to be followed for doing substantial justice and not for completing a mere ritual of hearing without possibility of any change in the decision of the case on merits. In view of the legal position explained by us above, we, therefore, refrain from remanding these cases in exercise of our discretionary powers under Article 136 of the Constitution of India.” 17. In view of the legal position explained by us above, we, therefore, refrain from remanding these cases in exercise of our discretionary powers under Article 136 of the Constitution of India.” 17. In view of the entirety facts and circumstances of the case narrated hereinabove and according to the conscious view of this Court, the petitioners have failed to make out a case in their favour except W.P.(C) No.6966 of 2010 and as such, this Court declines to interfere with the order of reversion. Accordingly, W.P.(C) Nos.11319, 14121, 14120 of 2011 are dismissed. 18. In consequence of the finding given hereinabove, the prayer made in the W.P.(C) No. 6966 of 2010 is allowed with a direction upon the competent authority to proceed with the exercise of granting promotion to the post of Tax Collector expeditiously strictly in accordance with the provision of Rule-426 of Orissa Municipal Rules, 1953 and the authority is directed to complete the exercise within eight weeks from the date of production of certified copy of this order. It is made clear that while considering the candidature of one or the other candidates, the statutory provision as contained in Rule-426(3) of Orissa Municipal Rules, 1953 is to be followed. The W.P.(C) No.6966 of 2010 stands disposed of. The contempt proceeding is also disposed of.