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2017 DIGILAW 394 (ORI)

State of Odisha v. Pradosh Kumar Panda

2017-04-12

SANJU PANDA, SUJIT NARAYAN PRASAD

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JUDGMENT : S. N. Prasad, J. 1. This writ petition is under Articles 226 and 227 of the Constitution of India, preferred by the State of Odisha wherein the order dtd.07.10.2015 passed in O.A. No.107 of 2014 and O.A. No.257 of 2014 has been challenged whereby and where under the Tribunal, while quashing the gradation list, has directed to redraw the gradation list in Group-B status by properly placing the applicant above private respondents who got Group-B status later to the applicant. 2. The brief facts of the case of the applicant before the Tribunal was that he entered into Government service as Jr. Agriculture Officer on 16.06.1986, while he was continuing as such, the Government has taken decision for bifurcation of Directorate of Agriculture and Horticulture by Notification dtd.24.08.1989 but the applicant was retained in the department of horticulture being in the horticulture cadre. The applicant was promoted to the rank of Soil Chemist, which is a Group-B (Class-II) service vide order dtd.18.08.1994 on ad hoc basis pending concurrence of the Odisha Public Service Commission, which subsequently been concurred by Odisha Public Service Commission letter dtd.01.08.1996. The effect of promotion has not been granted even in spite of the decision of the authority and its concurrence by the Odisha Public Service Commission since the same has been challenged by one Sri Bhikari Charan Mohanty before the Tribunal in O.A. No.498 of 1995 but the said O.A. has been dismissed and thereafter he has duly been promoted to the post of Soil Chemist under Group-B (Class-II) service, but his name being not reflected in the gradation list of Group-B service of the horticulture cadre, he again approached the tribunal in O.A. No.639(C) of 2009, the Tribunal vide its order dtd.03.04.2012 has directed for inclusion of the name of the applicant in the cadre of Group-B/Class-II Officers in the Directorate of Horticulture with effect from 18.08.1994 with all service benefits including seniority in that cadre. The petitioner had been granted the benefit of regular promotional status including seniority in the cadre of Group-B (Class-II) Service with effect from 18.08.1994. The cadre of horticulture officers under the Directorate of Horticulture was restructured after a long gap vide resolution dtd.07.03.2012 and as per new structured cadre the post of Horticulturists, Asst. Horticulture Officer and the Specialists were re designated as Asst. Horticulture Officers. The cadre of horticulture officers under the Directorate of Horticulture was restructured after a long gap vide resolution dtd.07.03.2012 and as per new structured cadre the post of Horticulturists, Asst. Horticulture Officer and the Specialists were re designated as Asst. Horticulture Officers. In course of restructure, the name of the petitioner in the gradation list has been shown at Sl. No.61 instead of at Sl. No.17, which according to the petitioner is below the name of his juniors, he being aggrieved, has made a protest and when his grievance has not been redressed, he approached to the Tribunal by filing original application, the Tribunal after taking note of his date of promotion as Soil Chemist, has directed the authorities to redraw the gradation list by quashing the gradation list in which the position of the petitioner has been shown below than his juniors. 3. The order passed by the tribunal has been assailed by the State of Odisha merely on the ground that the Tribunal, while quashing the gradation list, has not given any finding regarding the Government resolution dtd.07.03.2012 by which the Directorate of Horticulture was restructured and it is only due to restructuring of the Directorate of Horticulture, since different employees have come from the different streams, as such taking the date of entry in the cadre, the seniority list has been prepared and according to that the applicant has rightly been placed according to his date of entry in the cadre, but the tribunal even after discussing regarding the resolution of restructure dtd.07.03.2012, has not given any finding, as such the order is without any application of mind, hence not sustainable in the eye of law. 4. While on the other hand, learned counsel representing the petitioner has submitted that seniority of the petitioner has already been set at rest from the date when he got promotion as Soil Chemist and on the basis of that position of his seniority cannot be changed, the tribunal after taking note of this aspect of the matter, has quashed the gradation list directing the authorities to redraw the gradation list by putting him in the right place on the basis of his promotion to Soil Chemist granted in the year 1994. 5. We have heard the learned counsels for the parties and perused the documents available on record including the order passed by the Tribunal. The learned Addl. Govt. 5. We have heard the learned counsels for the parties and perused the documents available on record including the order passed by the Tribunal. The learned Addl. Govt. Advocate has not disputed the factual aspect that the applicant has been granted promotion as Soil Chemist vide order dtd.18.08.1994 and the seniority list has been drawn under Group-B (Class-II) Horticulture service, but his case is that on the basis of restructuring of the Directorate of Agriculture, the seniority list has been revised in order to maintain parity with all such employees who have come in the stream of the cadre in consequence of the restructure of the Directorate of Agriculture so that no employee, who are coming from different cadre after restructuring, be prejudiced. His further case is that the applicant has availed the benefit of restructuring by getting promotion to the higher post, hence now he cannot take the plea that he is against the restructure. Learned counsel appearing for the applicant, in course of argument, has not disputed the fact with respect to restructuring as also the benefit given to the applicant by promoting to the higher post on account of restructure of the Directorate of Horticulture. 6. We, after going through the order passed by the Tribunal, have found that the resolution of the Government dtd.07.03.2012 regarding restructure of the Directorate of Horticulture has widely been discussed by the Tribunal but no finding to that effect has been given. In view thereof, we are of the considered view that the issue needs fresh adjudication by the Tribunal being the court of first instance having not given finding regarding the effect of re-structuring of the Directorate of Horticulture vide Government resolution dtd.7.3.2012, hence the order passed by the tribunal in O.A. No.107 of 2014 and O.A. No.257 of 2014 dtd.07.10.2015 is set aside and the matter is remitted before the learned Tribunal to adjudicate upon the issue and assess the legality and propriety of the gradation list on the basis of the Govt. resolution dtd.7.3.2012 and pass an order in accordance with law after providing opportunity hearing to the parties concerned. Accordingly, the writ petition stands disposed of with the observations and directions made herein above.