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2017 DIGILAW 853 (ORI)

Rabindra Kumar Mishra v. State of Odisha

2017-08-09

SANJU PANDA, SUJIT NARAYAN PRASAD

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JUDGMENT : S. N. Prasad, J. 1. The instant review petition is for seeking review of the order passed in W.P.(C) No. 3740 of 2017 and 19084 of 2016 dated 21.04.2017. 2. Learned counsel for the petitioner has submitted that this Court while disposing of the writ petition has made an observation at Para-9(ii) but while making such observation some error has been creped up and as such same needs modification by modifying it in the light of the order passed by the Hon’ble Supreme Court in the case of Amarendra Kumar Mohapatra vrs. State of Orissa and others reported in the 2014 (4) SC 583. Learned counsel for the review petitioner further submits that this Court has restored the gradation list which has been quashed by the Tribunal but the proper course would be to direct the State authorities to examine the matter afresh in preparing the gradation list so that it may be in consonance with the observation and direction made in the instant writ petition. 3. The instant review petition was heard by this Court, this Court has directed the learned counsel appearing for the review petitioner who served a copy of the review petition vide order dated 20.07.2017 upon learned counsel representing the writ petitioners as also directed to serve copy upon learned Addl. Govt. Advocate, in terms thereof it has been informed by the learned counsel for the review petitioner that the copies of the review petition has already been served upon them. We have heard learned counsel for the parties and perused the documents available on record. 4. The subject matter of writ petition was to scrutinize the order passed by the Tribunal wherein the gradation list prepared by the State authorities has been quashed and also to scrutinize the State action whether the gradation list prepared is in consonance with the order passed by the Hon’ble Supreme Court in the case of Amarendra Kumar Mohapatra vrs. State of Orissa and others reported in the 2014 (4) SC 583. At the time of disposal of the writ petition that this Court has made an observation in para-9(ii), considering the seniority of the ad-hoc engineers in the light of the provision of Section 3 of the Validation Act, 2002 which provides to consider their seniority from the date of their appointment of ad-hoc basis. At the time of disposal of the writ petition that this Court has made an observation in para-9(ii), considering the seniority of the ad-hoc engineers in the light of the provision of Section 3 of the Validation Act, 2002 which provides to consider their seniority from the date of their appointment of ad-hoc basis. The Hon’ble Supreme Court while testing the Validation Act, 2002 has specifically directed at para-82.2 validating the service of the ad-hoc Asst. Engineers against the proposed 5% quota reserved for in-service Junior Engineers degree-holders w.e.f. the date the Orissa Service of Engineers (Validation of Appointment) Act, 2002 came into force. 5. As per this specific direction, the ad-hoc Engineers who have been inducted in service would be counted under the regular establishment from the date when the Validation Act has come into effect i.e. w.e.f. 15.02.2003. it has been observed at para-9(ii) by this Court that the ad-hoc Engineers would be treated to be in service from the date of their initial appointment and as such their seniority would be counted from the date of their induction in service by way of ad-hoc basis as per the provision of Section 3 of the Validation Act, 2003 but according to us that finding needs review in the light of the direction passed by the Hon’ble Supreme Court in the case of Amarendra Kumar Mohapatra vrs. State of Orissa and others (supra) wherein the Hon’ble Supreme Court has been pleased to validate the services of the ad-hoc Engineers w.e.f. the date when the Validation Act came into force i.e. w.e.f. 15.02.2003. Meaning thereby, the crucial date for determining the seniority for ad-hoc Engineers would be 15.02.2003. In that view of the matter, the para-9(ii) shall be replaced by the following direction; (i) The seniority of the ad-hoc Engineers would be counted from the date from which their services has been directed to be validated by the Hon’ble Supreme Court at 82.2 of the judgment rendered in the case of A.N Mohapatra i.e. w.e.f. 15.02.2003. In that view of the matter, the para-9(ii) shall be replaced by the following direction; (i) The seniority of the ad-hoc Engineers would be counted from the date from which their services has been directed to be validated by the Hon’ble Supreme Court at 82.2 of the judgment rendered in the case of A.N Mohapatra i.e. w.e.f. 15.02.2003. (ii) So far as the second contention that relates to restoration of the original gradation list, we have found force in the argument advanced on behalf of the learned counsel for the review petitioner that after passing of the order by this Court in the writ petition the competent authority of the State requires to give a fresh look upon the gradation list to verify as to whether the gradation list prepared by them is in consonance with the observation made by this Court in the order dated 21.02.2017 passed in W.P.(C) No.3740 of 2017 and W.P.(C) No.19084 of 2016 also as per the order passed by the Hon’ble Supreme Court in the case of Amarendra Kumar Mohapatra vrs. State of Orissa and others (supra) specifically at para 82.2 of the said judgment. 6. Considering this aspect of the matter, the part of the order by which the gradation list has been directed to be restored is hereby modified by directing the State authorities to prepare the gradation list scrutinizing the individual case in the light of the order passed in the writ petition and instant review petition. 7. It is made clear that if the State authority will find that gradation list which has been directed to be restored in the order passed in the writ petition is in consonance with the observation made by this Court in the writ petition as well as the review petition, they will take no further exercise for preparation of fresh one. It is also made clear that since the seniority list is under question and the promotion depends upon the finalisation of the seniority list, accordingly the State authorities are directed to complete exercise forthwith so that the matter of promotion may not be held up. Accordingly, with this observation and direction, the review petition stands disposed of.