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2017 DIGILAW 434 (ORI)

State of Odisha v. Bimal Prasad Mohanty

2017-04-20

SANJU PANDA, SUJIT NARAYAN PRASAD

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JUDGMENT : S.N. Prasad, J. This writ petition is preferred by the State of Odisha invoking jurisdiction of this court conferred under Articles 226 and 227 of the Constitution of India assailing the order dtd.11.3.2014 passed by the State Administrative Tribunal, Cuttack Bench, Cuttack in O.A. No.1245(C) of 2013 whereby and where under the Tribunal, while quashing the order dtd.28.12.2010, has granted the applicant – opposite party herein the benefit of retrospective promotion in the rank of O.A.S. Class-II against the vacancy of emergency quota of the year 1987. 2. The brief fact of the case is that the applicant – opposite party was working as Block Development Officer, Cuttack Sadar in the district of Cuttack. Subsequently he was promoted to O.A.S. Class-II cadre on Emergency quota for the year of allotment 1992 and posted as Asst. Consolidation Officer after completion of training. He again was promoted to the rank of O.A.S., Class-I Jr. Branch in the year 2002 and now he is holding the post of Block Development Officer, Cuttack Sadar Block in the district of Cuttack. The General Administration Department has issued a notification on 10.3.1987 regarding O.A.S., Class-II (appointment by emergency recruitment by way of promotion) Regulation, 1987 (herein after referred to as the Regulation, 1987) enforced under Rule 11 of O.A.S., Class-II (recruitment) Rules, 1978 to man certain more numbers of post of B.D.O. in the State. The emergency recruitment was made as per Rule 11 of the Recruitment Rules, 1978. The Regulation, 1978 contains a provision under Regulation 11 for emergency recruitment as per which the State Government may after consultation with the Commission, recruit to the service such number of persons as may be required and in accordance with such regulations as may be framed for the purpose. The Revenue and Excise Department requested to the Secretary of all the Departments for selection of candidates for appointment to the post of O.A.S. Class-II cadre by way of emergency recruitment as per letter No.623 dtd.27.3.1987 for recommendation of eligible candidates with original CCRs up to 31.3.1986 and other service particulars which should reach in the Department by 30.4.1987. The name of the applicant was recommended by the Director General of Police and Inspector General of Police with all relevant documents as per letter No.623 dtd.27.3.1987 of the Revenue and Excise Department. The name of the applicant was recommended by the Director General of Police and Inspector General of Police with all relevant documents as per letter No.623 dtd.27.3.1987 of the Revenue and Excise Department. As per regulation 6(2) of the Emergency Recruitment Regulation 1987, the recommendation and required particulars were to be set out in a tabular form and placed before the selection board for consideration. As per regulation 7(1) the Selection Board was to consider the recommendation, scrutinize the record and prepare a list of officers, who in its opinion are suitable to be appointed to the service. As per regulation 7(2) the selection shall be based on merit and suitable in all respects and the names of the officers included in the list shall be arranged in order of merit. As per Regulation 8 the recommendation of the Selection Board was forwarded to the Odisha Public Service Commission along with the list and service records in respect of all the officers, whose case were considered by the Selection Board. The Revenue and Excise Department issued a notification bearing No.2346 dtd.30.12.1987 on the basis of the decision of the Selection Board as per Regulation 7 of Regulation 1987, issued provisional appointment order on ad hoc basis to the official in OAS Class-II by promotion by emergency recruitment for the recruitment year 1987 for a period not exceeding one year or until further orders, which ever is earlier pending receipt of concurrence of the Odisha Public Service Commission in the matter, but the name of the applicant could not find place in the aforesaid ad hoc appointment order dtd.30.12.1987. The Commission was supposed to consider the list along with other documents as per Regulation 8(2) relating to the officers considered by the selection board and recommend to the Government the names of officers arranged in order of merit, whom the Commission considers suitable for appointment in the service. The Odisha Public Service Commission considered the applicant as suitable for appointment to the service of O.A.S. Class-II but the Odisha Public Service Commission did not arrange the suitable candidates/the names of the officers in order of merit. The Odisha Public Service Commission considered the applicant as suitable for appointment to the service of O.A.S. Class-II but the Odisha Public Service Commission did not arrange the suitable candidates/the names of the officers in order of merit. The opposite party – applicant had challenged the recommendation of the Odisha Public Service Commission on various grounds by making series of representations before the competent authority but to no effect, in the meanwhile the opposite party – applicant was selected and promoted as O.A.S. Class-II for the recruitment year 1992. The applicant after being recruited as O.A.S. Class-II for the recruitment year 1992 had represented vide representation dtd.07.05.1998 praying therein his inter se seniority against the recruitment year 1987 instead of 1992. When the grievance of the petitioner has not been redressed, the opposite party – applicant has approached the Tribunal and the Tribunal while disposing of the original application has passed order taking into consideration that in the same list, the persons below him has been granted benefit of the recruitment as O.A.S. Class-II from the list prepared under Regulation 1987 for Emergency quota of the year 1987 which is being questioned by the State of Orissa in this writ petition. 3. The submission advanced by the learned Additional Government Advocate while assailing the order passed by the Tribunal that the Tribunal has not appreciated the material facts to the effect that the opposite party – applicant although was a candidate for the recruitment year 1987 under the Regulation 1987, but subsequently has been promoted under O.A.S. Class–II category for the recruitment year 1992 which he has accepted and as such he now cannot claim the benefit of his continuity in service under the O.A.S. Class-II cadre on the basis of recruitment year 1987 which has been initiated by virtue of Regulation 1987. He further submits that the ground which has been reflected by the Tribunal while allowing the prayer of the opposite party – applicant to the effect that the persons junior to him, have been granted the benefit of promotion to O.A.S. Class-II but that is not the actual fact reason being that the employee whose name at sl. no.122 namely Prahallad Kumar Sahoo, although was initially appointed by way of promotion under the Regulation 1987 under Emergency quota for the recruitment year 1987, but subsequently was reverted along with others. Mr. no.122 namely Prahallad Kumar Sahoo, although was initially appointed by way of promotion under the Regulation 1987 under Emergency quota for the recruitment year 1987, but subsequently was reverted along with others. Mr. Prahallad Sahoo has challenged the order of reversion before the Odisha Administrative Tribunal of its Cuttack Bench, Cuttack and the Tribunal, after taking into consideration entire aspect of the matter, has quashed the order of reversion and directed him to be reinstated in the post which he was holding prior to reversion, hence the case of the opposite party – application is quite different to that of Mr. Prahallad Sahoo, as such he cannot claim parity with him. 4. While on the other hand learned Sr. Cousel Mr. M. R. Mohanty appearing for opposite party – applicant has vehemently opposed the submission of learned Additional Government Advocate by submitting that the Regulation 5 of Regulation 1987 contains provision for recruitment to the post of O.A.S. Class-II from different categories, namely, (a) members of the Orissa Settlement and Consolidation Officer; (b) Block Development Officer (Ex-cadre); and (c) such other officers of gazetted rank as are generally eligible for consideration for promotion to service under the Rules. While Regulation 6(2)stipulates provision to the effect that the recommendations and the required particulars shall, on their receipt under sub-regulation (1) be set out in a tabular form and placed before the selection board for consideration and as per regulation 7(1) the Selection Board shall thereupon consider the recommendation, scrutinize the records and prepare a list of officers, who, in its opinion, are suitable for appointment to the service and as per regulation 7(2), the selection shall be based on merit and suitability in all respects and the names of the officers included in the list shall be arranged in order of merit. Regulation 8 provides provision for consultation with the Commission of the list prepared in accordance with regulation 7 and thereupon the Commission shall consider the list along with other documents and records relating to the officers considered by the Selection Board and recommend to the government the names of officers, arranged in order of merit, whom the Commission considers suitable for appointment to the service. Regulation 9 provides that the list of the names recommended by the Commission under sub-regulation (2) of regulation 8 shall be placed before the government and after approval of government with such modification, if any, as may be considered necessary for good and sufficient reasons to be recorded, shall comprise the select list from which appointments shall be made. Learned Senior Counsel have submitted that the list so prepared although initially the govt. has prepared a list in which the name of one Mr. Prahallad Sahoo was at sl. No.122 while the name of the petitioner was at sl. no.121, out of which the vacancy comprising of 82 was to be filled up by the general candidates but the government has appointed by way of promotion one Mr. Prahallad Sahoo even though he was sl. no.122, while the case of opposite – applicant has been ignored even though he was at sl. no.121 of the selected list. He further submitted that the list has time and again been rearranged and finally the position of the opposite party – applicant vis-a-vis Mr. Prahallad Sahoo shown at sl. no.93 and 96 respectively, meaning thereby, Mr. Prahallad Sahoo was below in the merit list, but he has been appointed under OAS-II category for the recruitment year 1987 ignoring his case, he approached the Tribunal and the tribunal, after taking note of this aspect of the matter regarding non-consideration of the candidature of opposite party - applicant even though on rearranged list he was above than Mr. Prahallad Sahoo under B category, (the list has been furnished by him by way of affidavit by serving copy of the same upon learned counsel representing the state), has passed the order directing the authorities to give continuity of service treating his promotion from the recruitment year 1987 i.e. the date when Mr. Prahallad Sahoo has been granted such promotion. He controverted the argument of learned Additional Government Advocate by submitting that the case of opposite party - applicant vis-a-vis Mr. Prahallad Sahoo is exactly same and the fact which is being taken by the State to differentiate his case to that of the case of Mr. Prahallad Sahoo by making a submission that Mr. He controverted the argument of learned Additional Government Advocate by submitting that the case of opposite party - applicant vis-a-vis Mr. Prahallad Sahoo is exactly same and the fact which is being taken by the State to differentiate his case to that of the case of Mr. Prahallad Sahoo by making a submission that Mr. Sahoo although was granted promotion but subsequently he was reverted and the reversion order having been quashed then only he was allowed the promotion of the recruitment year 1987 while the fact of the opposite party - applicant is otherwise, hence no parity can be claimed by him. While disputing this aspect of the matter submission has been made that at the initial stage Mr. Sahoo was granted promotion to OAS-II cadre ignoring his case and subsequently the government although has reverted him, but the order of reversion has been said to be illegal by Tribunal which has been accepted by the State and subsequently the order of promotion to the O.A.S.-II cadre has been restored which means that the case of Mr. Sahoo has been considered at the initial stage while he was at sl. no.122 but the case of the opposite party – applicant has not been considered even if he was at sl. no.121, as such it is a clear cut case of discrimination and in the teeth of Article 14 of the Constitution of India. 5. We have heard the learned counsels for the parties and perused the documents available on record. The fact which is not in dispute in this case is that the State of Orissa has formulated the recruitment rule known as the O.A.S. Class-II (Recruitment) Rules, 1978. The state of Orissa through its General Administration Department has come out with a notification on 10th March 1987 by enacting upon a regulation in exercise of power conferred to it under Rule 11 of OAS-II (Recruitment) Rules, 1978 in the name of the OAS Class-II (Appointment by Emergency Recruitment by way of Promotion) Regulations, 1987. The Regulations, 1987 stipulates the conditions of eligibility under Regulation 5, recommendation for selection under Regulation 6, the role of the Commission under Regulation 8 and the final select list under Regulation 9 which is being reflected herein below:- “5. The Regulations, 1987 stipulates the conditions of eligibility under Regulation 5, recommendation for selection under Regulation 6, the role of the Commission under Regulation 8 and the final select list under Regulation 9 which is being reflected herein below:- “5. Conditions of eligibility – The following categories of Officers shall be eligible to be considered for selection to the Service, namely:- (a) Members of the Orissa Settlement and Consolidation Service; (b) Block Development Officer (Ex-cadre); and (c) Such other officers of Gazetted rank as are generally eligible for consideration for promotion to the Service under the Rules. 6. Recommendations for selection – (1) On receipt of the letter calling for recommendations for selection to the Service, the concerned authorities shall forward then recommendations along with the required particulars which shall include confindential character rolls in respect of Officers whom they consider suitable for appointment to the Service, to the Secretary of the Selection Board in the following manner, namely:- (i) the recommendations in respect of the members of the Orissa Settlement and Consolidation Service shall be forwarded by the Board of Revenue Orissa in consultation with the Director of Consolidation, Orissa and the Director, Land Records and Survey, Orissa; (ii) the recommendations in respect of the Block Development Officers (Ex-cadre) shall be forwarded by the Community Development & Rulral Reconstruction Department; and (iii) the recommendations in respect of Gazetted Officers other than the officers specified in clauses (i) and (ii) shall be forwarded by the respective Administrative Departments. (2) The recommendations and the required particulars shall, on their receipt under sub-regulation (1) be set out in a tabular form and placed before the Selection Board for consideration. Cases in which complete particulars including confidential character rolls, are not received shall be summarily rejected and shall not be placed before the Selection Board. 7. Recommendations of the Selection Board – (1) The selection board shall thereupon consider the recommendations, scrutinize the record and prepare a list of officers who, in its opinion, are suitable for appointment to the Service. (2) The selection shall be based on merit and suitability in all respects and the names of the officers included in the list shall be arranged in order of merit. 8. (2) The selection shall be based on merit and suitability in all respects and the names of the officers included in the list shall be arranged in order of merit. 8. Consultation with the Commission –(1) The list prepared in accordance with regulation 7 shall be forwarded to the Commission along with the list and service records in respect of all the officers whose cases are considered by the Selection Board. (2) The commission shall consider the list along with the other documents and records relating to the officers considered by the Selection Board and recommend to Government the names of officers, arranged in order of merit, whom the commission considers suitable for appointment to the Service. 9. Select List – The list of the names recommended by the commission under sub-regulation (2) of regulation 8 shall be placed before the Government and after approval of Government with such modification, if any, as may be considered necessary for good and sufficient reasons to be recorded, shall comprise the select list from which appointments shall be made.” It is evident from these statutory provisions that the government has decided to formulate and enactment to fill up the post under the emergency recruitment by following the Regulations 1987 to grant promotion to the cadre of OAS-II from the following categories of officers, i.e. (a) Members of Orissa Settlement and Consolidation Service; (b) Block Development Officer (Ex-cadre); and (c) Such other officers of Gazetted rank as are generally eligible for consideration for promotion to the Service under the Rules. The provision further stipulates that the recommendation is to be sent from the respective heads of the departments with the detail particulars to be set out in a tabular form to be placed before the Selection Board for consideration. The Selection Board is to prepare the selection list based on the merit and suitability in all respect and the names of the officers included in the list shall be arranged in order of merit. The Selection Board is to prepare the selection list based on the merit and suitability in all respect and the names of the officers included in the list shall be arranged in order of merit. The list after being prepared by the competent authority shall be sent before the Commission for its consultation and the Commission is to consider the list along with other documents and arrange the name of the successful candidates in order of merit whom the Commission considers suitable for appointment to the service and thereafter the list of the names recommended by the commission shall be placed before the government and after approval of the government with such modification, if any, as may be considered necessary, to be recorded, shall comply the select list from which such appointment shall be made. The State of Odisha has decided to fill up the post for the Recruitment year 1987 under the provision of Regulations, 1987 and after following due procedure, prepared a list for fulfilling the OAS Class-II-1987 containing the names of 132 employees of various categories, i.e. A, B, C & D, the present case involves the dispute of ‘B’ category, total name of the employees in all the category comprise of 132 officers in which the name of the opposite party – applicant stands at sl. no.121 while name of Mr. Prahallad Sahoo stands at sl. No.122. The record shows that one Mr. Prahallad Sahoo having his name appears at sl. no.122 of the rearranged list of officers concurred by the Odisha Public Service Commission under emergency quota 1987, has been selected and engaged, but subsequently he has been reverted on the ground that his selection was found to be incorrect, Mr. Sahoo approached the Tribunal challenging the order of reversion, the Tribunal quashed the order of reversion and accordingly Mr. Sahoo has been allowed to continue under O.A.S. Class-II cadre the post in which he is still continuing, as has been stated by the learned counsel for the parties. 6. The case of the petitioner is that he also belongs to the ‘B’ category having his name found at sl. Sahoo has been allowed to continue under O.A.S. Class-II cadre the post in which he is still continuing, as has been stated by the learned counsel for the parties. 6. The case of the petitioner is that he also belongs to the ‘B’ category having his name found at sl. no.121 in the rearranged list of officers, concurred by the Odisha Public Service Commission under emergency quota, 1987 but his case has not been considered for appointment by way of promotion under OAS Class-II cadre and merely because he has not approached the court of law, the said benefit has been denied to him, which according to him is not correct and legal. We on appreciation of the factual aspect and scrutiny of the record, have found that the petitioner’s name initially was at sl. no.121 while the name of Mr. Prahallad Sahoo was at sl. no.122 as would be evident from the revised list having been concurred by the Odisha Public Service Commission, subsequently the list was again rearranged due to the death/retirement of the officers and the name of the petitioner found mentioned at sl. no.93 while the name of Mr. Prahallad Sahoo was at sl. no.96, as would be evident from the noting of the file annexed to the writ petition which has been concurred by the Odisha Public Service Commission, even the same was taken note by the Principal Secretary, Revenue and Excise Department who has recommended the name of the petitioner for appointment against the vacant post by its noting dtd.24.11.1992 and the same has been concurred even by the Hon’ble Chief Minister which suggests that the claim of the opposite party – applicant has been admitted by the respondents – state authorities, but even then the benefit has not been extended to the opposite party - applicant on the garb that he has already been granted the benefit of the post under the provision of recruitment rule 1978 from the year 1992. The petitioner being aggrieved, has approached the Tribunal vide O.A. no.1217(C) of 2010 and the learned Tribunal has directed the authorities to take decision and in pursuance thereto the authorities have taken decision on 28.12.2010 by which the claim of the opposite party – applicant has been rejected on the ground that the case of the opposite party – applicant is not similar to that of Mr. Prahallad Sahoo since Mr. Prahallad Sahoo since Mr. Sahoo has got the appointment under O.A.S.-II category on the strength of the order of learned O.A.T. setting aside the reversion to the former post and he is the only person below the selected list who was allowed to continue in the emergency recruitment 1987 hence the petitioner has been held to be not eligible to get the benefit of seniority against the emergency recruitment of 1987 accordingly representation filed by him, has been rejected. The said order has again being assailed before the Tribunal which is the subject matter of the instant writ petition and the Tribunal, after taking into consideration the fact that the petitioner has been subjected to discrimination by not appointing him under the emergency quota of the recruitment year 1987 even though the person junior to him has been allowed to get the benefit of the cadre of OAS-II, passed order in favour of the opposite party – applicant directing the authority to count the seniority from the date when his juniors have been given the benefit of the said post. We, after taking into consideration the factual aspect, are of the view that the reason assigned by the authorities while rejecting the claim of the petitioner making the case of Mr. Sahoo different to that of the case of opposite party – applicant cannot be said to be a fine reasoning reason being that it is not in dispute that Mr. Sahoo had been granted benefit of promotion by way of appointment for the recruitment year 1987 from a list in which his name was at sl. no.122 and the name of the petitioner was at sl. no.121. We are not in dispute with respect to the fact that the said seniority list has been prepared in accordance with merit which is in pursuance to the provision of Regulation 7(2) read with Regulation 8(2) of the Regulations, 1987. We are conscious of the fact that merely inclusion of name in panel does not confer any right to be appointed but the moment a person below in the merit list is having been appointed the person above cannot be denied the said benefit otherwise it will hit the provision laid down under Article 14 of the Constitution of India. We are conscious of the fact that merely inclusion of name in panel does not confer any right to be appointed but the moment a person below in the merit list is having been appointed the person above cannot be denied the said benefit otherwise it will hit the provision laid down under Article 14 of the Constitution of India. It is settled that an employee who is below in the merit list cannot be selected and engaged giving go bye to the candidate who is/are above and if that is so, the entire selection list will be said to be incorrect. However, the reasoning assigned by the competent State authority that the opposite party applicant cannot claim similarity with the case of Mr. Sahoo since he has been granted promotion under the recruitment regulation 1987 but subsequently he was reverted and the tribunal has quashed the order of reversion when it was questioned by him, hence it is on the strength of the order passed by the tribunal Mr. Sahoo has got the post of O.A.S.-II. We are not disputing this aspect but the fact remains that even assuming that there was reversion order against Mr. Sahoo but at the first instance, i.e. in the initial stage Mr. Sahoo being at sl. no.122, has been selected and engaged, however, subsequently he was reverted but again the tribunal has quashed the order of reversion and thereafter the authority while accepting the order of the tribunal, has allowed Mr. Sahoo to continue in service, meaning thereby the decision which the authorities have taken at the initial stage for appointment by way of promotion of Mr. Sahoo has been held to be legal and if that would be the position, then what has been contended by the learned Sr. Counsel representing the opposite party - applicant cannot be said to be an unreasonable argument, reason being that when Mr. Sahoo had been selected and engaged being at sl. no.122 the question is why and under what circumstances the candidature of opposite party - applicant has not been considered, as such the tribunal has rightly held that the authorities have committed illegality and taking into consideration the aspect regarding discrimination which has been meted out to the opposite party - applicant, has directed the authority to treat him in O.A.S.-II cadre from the year 1987. 7. 7. The other limb of argument of learned Additional Government Advocate that since the opposite party – applicant has been granted regular promotion under the strength of Recruitment Rule 1987, he cannot claim continuity on the basis of the selection list prepared by virtue of Regulation 1987, but that is also not acceptable to us, reason being that the recruitment under Regulation 1987 and Recruitment 1978 both are governed by different rules, while the Regulation 1987 deals with the recruitment under the Emergency quota, Recruitment rule 1978 deals with the regular promotion to fill up the post. If the opposite party-applicant has got his regular promotion under the strength of Rule 1978, merely on that account his right cannot be taken away for his promotion under the strength of regulation 1987 that too in the facts and circumstances of the instant case when junior to him, i.e. Mr. Prahallad Sahoo had been granted promotion even though he was below in the list. 8. We, on the basis of the factual aspect, as discussed herein above and settled proposition of law that if there is a merit list, it has to be followed strictly in accordance with the seniority and it is not in dispute that the list which has been placed on record is said to be merit list in the eye of the Regulation 7(2) read with Regulation 8(2) of the Regulations, 1987 and as such the authorities have committed gross illegality in denying the benefit of promotion by virtue of the list prepared under the Regulations 1987. 9. The Tribunal, after taking note of all these aspects of the matter, has passed an order by quashing the decision of the authority by which the claim of the petitioner has been rejected and directed the authorities to give the benefit of seniority treating him the appointee of the recruitment year 1987 under the provision of Regulation 1987. Accordingly we are in agreement with the finding of the Tribunal, hence we are not inclined to interfere with the same. In the result the writ petition stands dismissed.