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2017 DIGILAW 915 (ORI)

State of Orissa v. Pradipta Kumar Behera

2017-08-21

S.N.PRASAD, SANJU PANDA

body2017
JUDGMENT : S.N. Prasad, J. In both the writ petitions common order passed by the Tribunal is under challenge, hence both the writ petitions are being heard together and disposed of by the common order. 2. The order dated 3.11.2016 passed by the Odisha Administrative Tribunal, Principal Bench, Bhubaneswar in O.A.No.1576 of 2013 and O.A.No.1351 of 2013 is under challenge whereby and whereunder the Tribunal quashed the order dated 26.4.2013 as well as the consequential orders under Annexures 8 and 9 i.e. final gradation list dated 15.7.2013 being held to be not in accordance with law, hence quashed. 3. Brief facts of the case is that both the applicants joined in Prison Department as Assistant Jailors on 5.9.1997 and 5.6.2000 respectively. They passed Drill test and other prescribed departmental examinations and became eligible to be promoted as Jailor and in due course got promotion to the rank of Jailor and are continuing in that capacity. Posts of Assistant Matron and Matron of Nari Bandi Niketan, Samalpur are not posts in the cadre of the applicants, they had demanded for to be included in the jail cadre, however Home department vide its notification dated 30.5.2009 decided not to encadre the posts of Matron and Assistant Matron of Nari Bandi Niketan, Sambalpur in to the cadre of Jailor and Assistant Jailor as it would not be expedient and create problems for the existing staff and will be contrary to the provision of Jail manual. Assistant Jailor is a cadre post, recruitment to which is done as per Rule 5(b) of the Odisha Jail Service (Method of Recruitment and Conditions of Service) Rules 2012 , hereinafter referred to as ‘the Rule 2012’, framed under Article 309 of the Constitution of India. According to them, any merger of Assistant Matron and Matron will be contrary to the statutory rules. Grievance of the applicants is that the authorities vide letter dated 9.7.2009 have rejected the proposal, the Director of Prisons and Correctional Services, Odisha has passed a final gradation list of Jailor in which the applicant in O.A.No.1576 of 2013 is at serial no.48 along with others, being Scheduled Caste candidate was in verve of getting next promotion, but the authorities have come out with an order dated 26.4.2013 to merge the post of Assistant Matrons and Matrons in the corresponding post of jail cadre. The applicants have raised their grievance by taking help of the provisions of the Rule 2012 which provide for a cadre for jail services from the rank of Assistant Jailor to Deputy Inspector General of Prisons. Rule 5(a) provides for recruitment to the post of Assistant Jailor or equivalent ranks, the promotional channel and Rules for such promotion. There is no provision of merger of Assistant Matron and Matron in the schedule and therefore merging such posts without following the provision of Rule 2012 is ultra vires and hit by Articles 14 and 16 of the Constitution of India. According to them, Assistant Matron and Matrons are not so recruited or deployed. They have not been regularly recruited as per Rules and as such they cannot be equated with the regularly recruited Assistant Jailor and Jailor. The applicants being aggrieved with the order dated 26.4.2013 have approached the Tribunal. 4. State/respondents have appeared before the Tribunal and defended the stand of the State Government by submitting that there is no error in the decision taken by the authorities since the Government has got authority to merge one cadre to another and as such the Government has taken decision in this regard and thereafter the Deputy Secretary to Government, Home Department has come out with a decision to merge the post like Matron and Assistant Matron created for Nari Bandi Niketan, Sambalpur with the post of Jailor and assistant Jailor respectively. The State Government has taken a stand that rule has been framed in the year 2012 under the provision of Article 309 of the Constitution of India and as such the Assistant Matron and Matron has also been given benefit of protection of the said Rule by bringing them in the cadre of jail service since according to them, the post of Assistant Matron or Matron is equivalent in the rank of Assistant Jailor and Jailor respectively, hence they will be said to be in the cadre of Jail service and taking into consideration of this aspect of the matter they have been merged under the Orissa Jail Service and in consequence to that decision the Government has come out with letter dated 26.4.2013, hence there is no infirmity. Further ground taken by the State of Odisha before the Tribunal is that reference in the Rule 2012 is regarding equivalent post which will be construed to the post of Assistant Matron and Matron, hence there is no ambiguity in the decision of the State authorities in merging the post of Assistant Matron and Matron to that of Assistant Jailor and Jailor respectively. 5. The Tribunal, after taking into consideration the rival submissions of the parties, has passed order by quashing the letter dated 26.4.2013 and in consequence thereof, the final gradation list wherein Assistant Matron and Matron have been included in the gradation list along with the members of Jail service. The order passed by the Tribunal is under challenge in this writ petition is under judicial scrutiny before this Court. 6. The petitioners in W.P.(C) No.21249 of 2016 who are beneficiaries of letter dated 26.4.2013 have challenged the said order along with the State of Odisha who has filed W.P.(C) No.7473 of 2017 reiterating the ground which they have taken before the Tribunal. 7. Learned senior counsel representing the petitioner in W.P.(C) No.21249 of 2016 and the learned Additional Government Advocate representing the petitioners in W.P.(C) No.7473 of 2017 have submitted that the State has got prerogative to take decision to merge one cadre to another cadre since there is no embargo upon the State. They have submitted that the letter dated 26.4.2013 is the decision taken by the State under the provision of Article 162(3) of the Constitution of India and as such it is by way of executive instruction and this power is well within the jurisdiction of the State Government, hence there is no illegality in the said decision. They further submitted that the ground taken by the Tribunal to take decision in accordance with law to merge the cadre of Assistant Matron and Matron to that of Assistant Jailor and Jailor respectively who are in the cadre under the provision of Rule 2012 enshrined under Article 309 of the Constitution of India and it is well within the jurisdiction of the State Government to take decision under the provisions of Article 162 of the Constitution of India under the delegated power. Learned Additional Government Advocate has produced the original record as directed by this Court in order to satisfy that the decision to merge the cadre of Assistant Matron and Matron to that of the cadre of Assistant Jailor and Jailor has been taken with the approval of the Chief Minister and as such it will be said to be decision of the State Government. They further submits that the equivalent post of Assistant Matron and Matron have been included in the Jail service in view of the fact that the post of Assistant Matron and Matron has been decided to be taken into the purview of jail service as would be evident from the communication dated 30.12.1997 issued by the Inspector General of Prisons & D.C., Orissa wherein Nari Bandi Niketan, Sambalpur has been declared as a Jail by the Home Department Notification No.36377 dated 3.5.1996, hence officers and staff working in the Nari Bandi Niketan can be termed as Jail officers under Chapter-5 of Orissa Jail Manual, Vol.I. Since they are coming under the definition, they are being termed as Jail service, hence they are also in the cadre under the provisions of Rule 2012 which defines meaning of service of Orissa Jail Service. 8. Learned senior counsel representing the applicants before the Tribunal, opposite parties herein, submits that there is no dispute about the settled proposioin that the State has got authority to merge one cadre to another but it must be in accordance with law. 8. Learned senior counsel representing the applicants before the Tribunal, opposite parties herein, submits that there is no dispute about the settled proposioin that the State has got authority to merge one cadre to another but it must be in accordance with law. He further submits that the Assistant Jailor and Jailor is coming under the meaning of the Orissa Jail Service as per the definition of Rule 2(1) of the Rule 2012 and as per the composition of service, definition under the provision of Rule 3 which consists of categories of posts which include Assistant Jailor, Jailor, Superintendent of District Jail, Senior Superintendent of Circle Jail, Deputy Inspector General of Prisons and accordingly method of recruitment has been provided under the provision of Rule 5, hence any decision which is to be taken by the State authority must be in consonance with the Article 309 of the Constitution of India since making Assistant Matron and Matron in the Orissa Jail service amounts to interfering with the statutory rule enshrined by the State Government under the provisions of Article 309 of the Constitution of India which cannot be done by way of executive instruction taking Article 162 of the Constitution of India. He further submits that Article 162 of the Constitution of India is the power conferred upon the State Government to issue executive instruction in absence of any statutory rule while Article 309 of the Constitution of India confers power upon the State Government to frame statute covering recruitment rule. He submits that rule under the provisions of Article 309 of the Constitution of India has got its statutory power while executive instructions issued under the provisions of Article 162 of the Constitution of India override the provisions made under Article 309 of the Constitution of India. He further submits that even decision taken by the authority dated 26.4.2013 cannot be said to be decision by the State Government since there is no approval by His Excellency the Governor of the State rather it is only the Hon’ble Chief Minister who has approved to take decision in this regard but the said decision having not been approved by His Excellency the Governor of Odisha, it cannot be termed as the decision taken under the provision of Article 162 of the Constitution of India. He submits that the Tribunal has not gone into the powers of the State Government in merging one cadre to another cadre rather the Tribunal has only said in the order that the decision taken by the authority dated 26.4.2013 is contrary to law and as such the same has been set aside. He further submits that the State Government can take decision in accordance with law in this regard, there is no bar. 9. We have heard learned counsel for the parties and perused the materials available on record. 10. We, after hearing the learned counsel for the parties, on perusal of the documents available on record as well as the order passed by the Tribunal, have come to conclusion that the power of the State Government has been questioned by the parties before the Tribunal regarding its power under Articles 162 and 309 of the Constitution of India. 11. Article 309 of the Constitution of India confers power upon the State Government to regulate the recruitment, and conditions of service of persons appointed, to public services and posts in connection with the affairs of the Union or of any State, while the provision of Article 162 of the Constitution of India confers power upon the State to make laws provided that in any matter with respect to which the Legislature of a State and Parliament have power to make laws, the executive power of the State shall be subject to, and limited by, the executive power expressly conferred by this Constitution or by any law made by Parliament upon the Union or authorities thereof. It is evident from Article 309 of the Constitution of India that Governor of the State have been empowered to make rules regulating the recruitment and the conditions of service of persons appointed to such services and posts until provision in that behalf is made by or under an Act of the legislature. It is also evident that Rule framed under Article 309 of the Constitution of India confers statutory powers while provision under Article 162 of the Constitution of India provides for extension of executive power of the State to the matters with respect to which Legislature of the State has power to make rules. 12. It is also evident that Rule framed under Article 309 of the Constitution of India confers statutory powers while provision under Article 162 of the Constitution of India provides for extension of executive power of the State to the matters with respect to which Legislature of the State has power to make rules. 12. It is settled that the Rules framed under Article 309 of the Constitution of India having its statutory powers and any Government decision taken under the provision of Article 162 of the Constitution of India is only supplemental to the Rules already framed under Article 309 of the Constitution of India. It is further settled that no Government order, notification or circular can be a substitute of the statutory rules framed with the authority of law. Reference in this regard may be made to the judgments rendered by the Hon’ble Apex Court in the cases of S.L. Sachdev and another vs. Union of India and others, reported in (1980)4 SCC 562 ; Union of India and others vs. Somasundaram Viswanath and others, reported in (1989)1 SCC 175 ; Paluru Ramkrishnaiah and others vs. Union of India and another, reported in (1989)2 SCC 541 ; Comptroller & Auditor General of India and others vs. Mohan Lal Mehrotra and others, reported in (1992)1 SCC 20 ; O.P.Lather and others vs. Satish Kumar Kakkar and others, reported in (2001)3 SCC 110 ; Dr. Rajinder Singh vs. State of Punjab and others, reported in (2001)5 SCC 482 . It is settled that official memorandum reflects but a policy decision which cannot have the force of a rule made under Article 309 of the Constitution of India, reference in this regard may be made to the judgment rendered by the Hon’ble Apex Court in the case of S. Ramaswamy vs. Union of India and others, reported in (1976)4 SCC 79 . 13. The fact of the case in hand is that the applicants in W.P.(C)No.21249 of 2016 who are discharging duties as Assistant Matron and Matron in Female Prison at Sambalpur by virtue of the posts created vide letter dated 25.2.1989 as contained in letter No.11451 and 11460, we on perusal of these letters have found that the Assistant Matron and Matron posts have been created in the rank of Assistant Jailor and Jailor respectively. It is evident that the Government has framed Rule under the provisions of Article 309 of the Constitution of India known as ‘Odisha Jail Service (Method of Recruitment and Conditions of Services) Rule, 2012. The said Rule refers definition of Service which means Odisha Jail Service under rule 2(1)(l). Said rule further stipulates composition of service which consists of five categories of posts namely, (a) Assistant Jailor, (b) Jailor, (c) Superintendent of District Jails, (d) Senior Superintendent of Circle Jails, (e) Deputy Inspector General of Prisons. Method of recruitment has been provided under the provision of Rule 5 which speaks filling up the posts by following the recruitment process in respect of Assistant Jailor and other posts of equivalent rank. Rule 12 of Rule 2012 provides provision to consult with the Orissa Public Service Commission before granting promotion to the rank of Assistant Jailor and Jailor and posts of equivalent rank. It is admitted position that the said rule has been enshrined under Article 309 of the Constitution of India. 14. It is admitted that the government has taken decision not to merge the cadre of Assistant Matron and Matron on earlier occasions which would be evident from the letter No.25987 dated 30.5.2009 issued by the Principal Secretary to Government, Home Department which relates to Assistant Matron to be incorporated in the gradation list of Assistant Jailors and likewise decision as taken on 8.7.2009 as contained in letter No.31553 wherein government has not agreed to merge cadre of Matron to the cadre of Jailor. However, subsequently Government has come with letter dated 26.4.2013 issued by the Deputy Secretary to Government, Home Department and decision was taken with reference to the Prisons Directorate letter No.9091 dated 14.3.2013 taking decision to merge the post like Matron and Assistant Matron created for Nari Bandi Niketan, Sambalpur with the corresponding grade of custodial posts of Jailor and Assistant Jailor respectively and on merger the seniority of the staff of Nari Bandi Niketan, Sambalpur shall be maintained taking into account their date of joining in the present post. The said order was challenged before the Tribunal and the tribunal after taking note of scope of Articles 162 and 309 of the Constitution of India has set aside the order holding therein that the decision to merge cadre of Assistant Matron and Matron has not been taken in accordance with law. 15. The said order was challenged before the Tribunal and the tribunal after taking note of scope of Articles 162 and 309 of the Constitution of India has set aside the order holding therein that the decision to merge cadre of Assistant Matron and Matron has not been taken in accordance with law. 15. Argument has been advanced at this juncture by the learned Additional Government Advocate representing the State that Assistant Matron and Matron are coming under the purview of the equivalent posts as referred to under the provisions of Rule 2012 and within the meaning of definition of Jail service, since Nari Bandi Niketan, Sambalpur has been considered to be Jail, hence they will be governed by virtue of the provisions of Article 309 of the Constitution of India enshrined in the Rule 2012. It is very surprising that if that is so, then question is that why Government has come out with letter dated 26.4.2013 by taking decision to merge the post of Assistant Matron and Matron to the cadre of Assistant Jailer and Jailer, issuance of this letter suggests that the post of Assistant Matron and Matron have been treated to be separate cadre with that of the cadre of Assistant Jailer and Jailer. We have also examined the Orissa Jail Manual, in view of the reference having been made in this regard under the communication dated 30.12.1997 and from its perusal the officers and staff working in the Nari Bandi Niketan can be termed as Jail officers under Chapter-5 of the Orissa Jail Manual, Vol.I, but the question is that even if Nari Bandi Niketan termed as Jail officers, but the State should have taken decision to merge them in the cadre under the Jail service by following the same procedure as has been done with respect to the provisions of Orissa Jail Service but instead of doing so, the Government has come out a letter having been issued by the Deputy Secretary to Government dated 26.4.2013. Learned Additional Government Advocate has impressed upon the Court that the letter dated 26.4.2013 is by virtue of the decision of the State Government. Learned Additional Government Advocate has impressed upon the Court that the letter dated 26.4.2013 is by virtue of the decision of the State Government. We have examined the original records which has been produced by the learned Additional Government Advocate as has been directed by this Court and from its perusal, it is evident that the decision to merge the cadre of Assistant Matron and Matron have been taken by the authorities, the said decision has been approved by the Hon’ble Chief Minister of the State but there is no approval of His Excellency the Governor of the State, hence it cannot be said to be the decision of the State Government as required under Article 162 of the Constitution of India, simple reason is that the decision of the State Government will be said to be the decision of the State if it is in the name of His Excellency the Governor of the State and it would only be the order by the Governor of the State if it would have been approved by the Governor, but we have not found anything from the original record that the letter dated 26.4.2013 has been approved by the Governor of the State, hence it cannot be said to be the order passed under Article 162 of the Constitution of India. We have also examined the Orissa Government Rules of Business made under Article 166 of the constitution of India wherein under instruction no.14(2)(xiv) it has been referred that all cases relating to the issue of Rules regulating the recruitment and conditions of service of persons appointed to public services and posts in connection with affairs of the State, made in pursuance of Article 309 of the Constitution of India shall by the Chief Minister to the Governor before passing of order. From this specific provision it is evident that the decision dated 26.4.2013 cannot be said legal even passed under the Rules of Business incorporated by virtue of Article 166(3) of the Constitution of India. 16. From this specific provision it is evident that the decision dated 26.4.2013 cannot be said legal even passed under the Rules of Business incorporated by virtue of Article 166(3) of the Constitution of India. 16. In that view of the matter and as per the discussions made herein above, according to our considered view and as per the settled proposition of law, scope of Articles 162 and 309 of the Constitution of India is that any rule enshrined under Article 309 of the Constitution of India cannot be supplemented by executive instruction framed under Article 162 of the Constitution of India, but it is supplemented by taking decision vide letter dated 26.4.2013. It has been argued by the learned counsel representing the State in W.P.(C) No.21249 of 2016 that the applicants/opposite parties have got no locus standi to challenge the order dated 26.4.2013 for the reason that they have already been granted promotion to the post of Jailor and as such they cannot be said to be aggrieved party so far as it relates to merger of post of Assistant Matron to the post of Assistant Jailor is concerned. Learned senior counsel representing the applicants rebutting to the argument has submitted that they are the necessary party since the decision of the Deputy Secretary dated 26.4.2013 stipulates a decision to maintain seniority taking into account their date of joining in the present post and in that view of the matter if they would be inducted in the cadre of Assistant Jailer they would be enlisted in the seniority list as per their date of appointment of Assistant Matrons and hence they will made to be suffered, hence they are the necessary party. We, after hearing the rival submissions of the parties in this regard, are of the considered view that the letter dated 26.4.2013 since it relates to merger of the post of Assistant Matron to the post of Assistant Jailor and the post of merger to the post of Matron to the post of Jailor along with maintaining their seniority after merger in the jail service on the basis of date of appointment, hence the applicants/opposite parties being in the cadre of jail service holding the post of Assistant Jailer prior to their promotion would certainly be made to suffer if Assistant Matron will be inducted in the seniority list by merging the said post in the post of Assistant Jailer and on that account the Assistant Jailer will be made to suffer depending upon their entry in the service, hence in our opinion that they are the necessary party having locus standi to raise dispute before the court of law and accordingly they have raised it. We have examined the order passed by the Tribunal dated 3.11.2016 in the light of the settled proposition as discussed herein above along with the factual aspects and have found that the Tribunal has not committed any error in quashing the order dated 26.4.2013, hence we decline to interfere with the order of the Tribunal. Before parting with the order it is being observed that it is up to the State Government to take decision in accordance with law for merger of the posts of Assistant Matron or/and Matron to the cadre of Assistant Jailor or/and Jailor and inter-se-seniority. Office is directed to return the original records to the learned Additional Government Advocate forthwith. 17. With the observations and direction, the writ petitions are disposed of.