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Orissa High Court · body

2018 DIGILAW 788 (ORI)

Susanta Kumar Rath v. State of Orissa

2018-09-20

G.R.PUROHIT, M.M.PRAHARAJ

body2018
ORDER HON’BLE G.R. PUROHIT, MEMBER (JUDL.):- All these O.As. involves common question of facts and law and we have heard all these O.As. analogously. The first case O.A. No. 866/2004 is treated as lead case. In all these cases the applicants of OA No. 866/2004, OA 1391(c)/2004, P.P. 212/2006 are Engineers (C) of Irrigation (Major and Medium) cadre working under the department of Water Resources (DOWR), Orissa, who is the appointing and cadre controlling authority. The prayer in O.A. 866/2004, OA 1931(c)/2004 and P.P.212/2006 are same and identical. The applicants have prayed to quash the gradation list of Asst. Engineers of Minor Irrigation cadre dt. 18.06.2004 on the plea that there is no separate cadre called Minor Irrigation cadre. On the other hand, in OA No. 1990(c)/2016 the applicants who belongs to Engineer (C) of Irrigation cadre have challenged the rejection order of the Chief Secretary, Orissa, Bhubaneswar dt. 20.05.2016 at Annex. 11 and the order dt. 05.04.2016 of DOWR at Annx. 10 regarding holding of DPC for consideration of promotion of Deputy Executive Engineers of M.I. cadre to the post of Executive Engineer. Though lengthy pleadings have been advanced in all the O.As. by the applicants but the only issue involved is whether the cadre of Minor Irrigation (MI) is a separate and independent cadre in DOWR or not. Stand has been taken by the applicants that in 1996 the MI wing, which was under the control of Rural Development was transferred to the control of DOWR and accordingly in the first schedule of Orissa Govt. Rules of Business, the words “and M.I.” was deleted. The resolution No. 30097, dt. 26.8.1996 of the WR contains the constitution and formation of MI Divisions/Circles like many other Circles/wing of WR but it was never a separate cadre under the DOWR and, therefore, there should be a common gradation list of all the Civil Engineers i.e. Irrigation as well as Minor Irrigation Wing and there should not any separate gradation list for the Engineers of M.I. wing. Before deviling to this stand of the applicants, it will be profitable to mention the stand taken by the State Respds. in their counter in OA No. 866/2004. Similar counter has also been filed in OA No. 1931(c)/2004. 2. The stand of Respd. No. 1 in his counter are as follows:- In the resolution No. 15006, dt. Before deviling to this stand of the applicants, it will be profitable to mention the stand taken by the State Respds. in their counter in OA No. 866/2004. Similar counter has also been filed in OA No. 1931(c)/2004. 2. The stand of Respd. No. 1 in his counter are as follows:- In the resolution No. 15006, dt. 21.06.1980 (Annx.1) functions of M.I. organization (Ex-REO) of R.D. Dept., which was abolished were allocated to I & P Deptt. (Now Deptt. Of Water Resources). The Cadre of SAE/JE and Asst. Engineer was transferred to the control of the Chief Engineer, Irrigation and I & P Deptt. respectively as per the said resolution but nowhere in the resolution it is mentioned that the Engineering personnel belonging to erstwhile REO cadre lost their identity and merged with the Irrigation cadre. On the other hand, the Ministerial Cadre of the abolished R.D. Deptt., Chief Engineer, REO and territorial circles were merged in the equivalent cadre of I & P Deptt., Chief Engineer, Irrigation and territorial circles respectively. In para-2 of the aforesaid resolution it is mentioned that establishment of the Chief Engineer, Minor Irrigation (MI), three M.I. Circles, eighteen M.I. working Division, three M.I. Investigation Divisions and one M.I. store and mechanical Division along with staff (both gazette & non-gazetted) were transferred from the administrative control of I & P Deptt. to the administrative control of newly created R.D. Deptt. Prior to the abolition of REO during 1980 there were technical cadre up to SAE, J.E. and A.E. in the REO under the administrative control of R.D. Deptt. but no order after abolition has so far been issued integrating the engineering personnel belonging to erstwhile REO with Engineering cadre of the then Chief Engineer, Irrigation (now EIC, Water Resources). After the creation of new Department namely R.D. Deptt. during 1990 the entire field formation of M.I. wing was transferred to the R.D. Deptt. from I & P Deptt. vide resolution No. 26805, dt. 28.06.1990 (Annx.2). For administrative convenience and to safeguard the interest and promotion prospect of Engineering personnel of M.I. organization the Govt. in R.D. Deptt. had constituted a permanent technical cadre comprising the post of Asst. Engineer (C) to that of the Superintending Engineer in M.I. organization vide resolution No. 17805 dt. 04.08.1994 (Annx.3). Next year Govt. in R.D. Deptt. decided to constitute a separate cadre of Jr. in R.D. Deptt. had constituted a permanent technical cadre comprising the post of Asst. Engineer (C) to that of the Superintending Engineer in M.I. organization vide resolution No. 17805 dt. 04.08.1994 (Annx.3). Next year Govt. in R.D. Deptt. decided to constitute a separate cadre of Jr. Engineer vide Resolution No. 23207, dt. 28.11.1995 (Annx.4) Accordingly, Jr. Engineers born in erstwhile REO were treated as incumbents of M.I. cadre. During 1996 the Govt. decided to transfer M.I. organization from the control of R.D. Dept. to Water Resources Deptt. and on transfer to the control of DOWR, a post of Superintending Engineer, Level-II was created exclusively for KBK districts (i.e. K.B.K. MI circle). Accordingly, all the M.I. Circles, were reorganised and existing M.I.Division were redistributed among southern M.I.Circle Berhampur. K.B.K. M.I.Circle, Bhawanipatna, Northern M.I. Circle, Sambalpur and Central M.I. Circle, Bhubaneswar Nothing has been indicated in Resolution No. 26805 dt. 28.06.1990 (Annx.2) or orders of the Govt. regarding complete extinction of technical cadre of M.I. Organization and its merger in the cadre of engineers of Water Resources Deptt. i.e. E.I.C. (WR) cadre and, therefore, the plea of the applicants that the M.I. cadre i.e. from the rank of A.E. to C.E. was merged in EIC (WR) cadre, is not true. As the M.I. cadre had not been merged with EIC (WR) cadre, the seniority of Engineering personnel of EIC (WR) cadre, and that of Engineering Personnel of M.I. cadre of DOWR will be considered separately in their respective cadre. Notification No. 377, dt. 03.02.1996 (Annex.7) does not speak of merger of Engineering cadre of M.I. organization with that EIC (WR) cadre and, therefore, the claim of the applicants are not justified. The Engineering personnel of both the cadres have availed the promotional benefits in their respective cadres during 1980 to 1990 and 1996 onwards as both the cadres are separate entities even though both cadres are functioning under administrative control of DOWR. 94 adhoc Asst. Engineers allotted to MI organization have been regularized in M.I. cadre through Validation Act, 2002 against the sanctioned posts of 99 SC & ST candidates have been appointed as Asst. Engineer (C) and all have been included in a single cadre i.e. E.I.C. (WR) cadre as per the recommendation of the OPSC vide notification No. 15017, dt. 04.05.2004 (Annex.8), out of which 81 Asst. Engineer (C) and all have been included in a single cadre i.e. E.I.C. (WR) cadre as per the recommendation of the OPSC vide notification No. 15017, dt. 04.05.2004 (Annex.8), out of which 81 Asst. Engineers have been posted in different offices under administrative control of E.I.C Water Resources and rest 18 have been placed under the Chief Engineer, M.I. on deputation basis. Thereafter Govt. in the Deptt. of Water Resources have issued another notification No. 17799, dt. 29.5.2004 for detail posting in M.I. organization. The aforesaid facts indicate the M.I. cadre is a separate cadre from E.I.C. (Water Resources) cadre though both the cadres are under the administrative control of DOWR. The gradation list of M.I. Asst. Engineers published on 18.06.2004 is not contrary to law and has been published basing on rules and regulations. The stipendiary Engineers were appointed as an Asst. Engineer on adhoc basis in the Deptt. of Water Resources but that does not mean that all are appointed in E.I.C. (Water Resources) cadres post. 288 nos. of Stipendiary Engineers had been posted against the posts of E.I.C, Water Resources cadre and 94 nos. of Stipendiary Engineers posted against M.I. cadre and later their services have been regularized against the post of respective cadre though Validation Act, 2002. As both the Irrigation and M.I. cadre are two separate cadre, the promotion of Engineering personnel of M.I. cadre is not detrimental to the interest of Asst. Engineer of E.I.C., Water Resources cadre. 3. We have heard Mr. J.S. Mohapatra, and Mr. G. Sinha, learned counsel appearing on behalf of the applicants and Mr. G.R. Dora, learned Sr. Counsel and Mr. P.K. Mishra, learned counsel for the private respondents and Mr. H.K. Panigrahi, learned Addl. Standing Counsel. 4. Learned counsel for the applicants has placed much reliance in the first schedule of Orissa Govt. Rules of Business and submitted that words “and MI” was deleted when in 1996 the M.I. wing was brought from the administrative control of R.D. Deptt. to the administrative control of DOWR. He further submitted that in O.A. 1843(c)/2014, which was disposed of on 03.03.2016 by the Division Bench of the Tribunal, the issue with regard to fixation of cadre in Minor Irrigation is left open to be decided in the present O.As. to the administrative control of DOWR. He further submitted that in O.A. 1843(c)/2014, which was disposed of on 03.03.2016 by the Division Bench of the Tribunal, the issue with regard to fixation of cadre in Minor Irrigation is left open to be decided in the present O.As. But on the other hand, the learned counsel for the private respondents have submitted that whether Minor Irrigation cadre is a separate cadre from Irrigation cadre has already been adjudicated by the Division Bench of the Tribunal vide order dt. 10.7.2014 in OA No. 2646(c)/2009, order dt. 03.03.2016 in OA No. 1843(c)/2014 and order dt. 26.2.2018 in OA No. 134/2017. 5. O.A. No. 1843(c)/2014 had been filed by the applicant Muralidhar Panda and Sisir Kumar Pattnaik to declare that the order dt. 10.7.2014 of OA No. 2626(c)/2009 is not applicable to the applicants and other similarly situated persons and the same be recalled/set aside and to quash the office notification dt. 17.7.2014 issued by DOWR relating to the final gradation list of Asst. Executive Engineer (C) under Annx. 10 of that case and to direct the Respd. No. 2 to prepare fresh gradation list treating the Irrigation cadre and M.I. cadre as one cadre under Water Resources Department. But the Division Bench of the Tribunal in OA No. 1843(c)/2014 vide order dt. 03.03.2016 at para-21 has observed that “M.I. cadre had not merged with the Irrigation cadre under the Water Resources Deptt. and accordingly held in para-25 that there is no scope to set aside or recall the judgment passed in OA 2646(c)/2009 and accordingly dismissed the O.A. Learned Acting Chairman, who is a Judicial Member, had also separately observed in para-31 that “xxxx the applicants in OA No. 866/2004 and in other O.As., have challenged the gradation list and the said gradation list has been prepared by the Govt. in the concerned department, which clearly indicates that Govt. has constituted a separate cadre for Minor Irrigation. Unless the said decision of the Govt. is set aside, the preparation of the gradation list separately for Minor Irrigation cannot be treated otherwise. As indicated above, the said issue is still subjudice. In the meantime, the judgment of the Hon’ble Apex Court in the case of Amarendra Mohapatra came, which has been followed by the Tribunal while passing the order in O.A. No. 2646(c)/2009, on the basis of which the gradation list of Asst. As indicated above, the said issue is still subjudice. In the meantime, the judgment of the Hon’ble Apex Court in the case of Amarendra Mohapatra came, which has been followed by the Tribunal while passing the order in O.A. No. 2646(c)/2009, on the basis of which the gradation list of Asst. Executive Engineers in Minor Irrigation has been prepared. The applicants are admittedly in the cadre of Executive Engineer and they have come up to challenge the gradation list of the lower grade, i.e. of the Asst. Executive Engineer. Now next question is whether they can challenge, the said judgment and gradation list being person aggrieved. It is to be noted here that the applicants will not be affected in any manner, if the gradation list of Asst. Executive Engineer (Civil) of Minor Irrigation are either quashed or modified. Law is well settled that only a person who suffered or suffers from legal injury can challenge the action/orders etc. in a Court of law. The person aggrieved does not include a person, who suffers from psychological or imaginary injury and persons aggrieved must therefore, necessarily one, whose right or interest has been adversely affected or jeopardized. As indicated above, the applicants being with higher in rank i.e. in the post of Executive Engineer are not likely to suffer or will be adversely affected by the preparation of the gradation list pursuant to the order of the Tribunal in O.A. No. 2646(c)/2009. Thus, they have no enforceable right so as to challenge the judgment in OA No. 2646(c)/2009. In view of the above discussion, the O.A. is not maintainable. However, the issue with regard to fixation of cadre in Minor Irrigation is left open to be decided in O.A. No. 866/2004, OA No. 1931(c)/2004 and P.P. No. 212/2006.” 6. During argument, Mr. G. Dora, learned Senior Counsel for the private respondents has brought to our notice the observation of the Tribunal at para-9, 10 and 21 of O.A. No. 1843(c)/2014 which is quoted below for better appreciation of the adjudication of the dispute between the Engineers of Irrigation cadre and M.I. Cadre. “9. In the counter filed on behalf of the State Respds., it is stated that Minor Irrigation is separate and distinct cadre. There are four Nos. of engineering cadres functioning under the administrative control of Water Resources Deptt. “9. In the counter filed on behalf of the State Respds., it is stated that Minor Irrigation is separate and distinct cadre. There are four Nos. of engineering cadres functioning under the administrative control of Water Resources Deptt. i.e. Engineers of Irrigation cadre (Major and Medium), Engineers of Minor Irrigation cadre, Engineers of Mechanical cadre and Engineers of Ground Water Organization and the members of each cadre are getting their legitimate claims within their own cadre. The Rules of business and it amendments have nothing to do with constitution/transfer of a cadre… So, the engineering personnel belonging to the erstwhile REO cadre were never merged with the Irrigation cadre. Basing on the gradation lists of the year 1988 and 1998 at Annx.II and Annx. III engineering personnel of Minor Irrigation wing got promotion periodically. The applicants being in service under I & P Deptt. much before 1988 had never challenged the gradation lists of 1988 and 1998. The G.A. notification dt. 03.02.1996 was issued since the M.I. organization was transferred from I & P Deptt. to the control of R.D. Deptt. in the year 1990. On 12.2.1996 i.e. after 03.02.1996 the M.I. organization was transferred to the administrative control of Water Resources Department on “as is where is” basis and the cadre of engineering personnel of M.I. organization was not integrated or merged with Irrigation cadre. Since a separate cadre for M.I. engineers was created through Resolution published in the year 1991, the Govt. has approved separate gradation lists of the Asst. Engineers of M.I. wing in the year 1988 and accordingly promoted the engineers belonging to M.I. cadre from 1988 onwards till 2014. The Water Resources Deptt. is not maintaining the once parent cadre of civil engineers since there are four cadres like Engineers of Irrigation cadre (Major and Medium), Engineers of Minor Irrigation cadre, Engineers of Mechanical cadre and Engineers of Minor Irrigation cadre, Engineers of Mechanical cadre and Engineers of Ground Water Organization and separate gradation lists for each cadre have been maintained by the Water Resources Deptt. The Govt. has full power to create/Reorganize/review the cadres but the Govt. never merged M.I. cadre with any other cadre. 10. ….. The Govt. in Water Resources Deptt. published Resolution dt. 22.11.2011 at Annx. 7 to O.A. restricting the existing cadres of engineers of Irrigation (Major and Medium) wing, Minor Irrigation wing and mechanical wing. The Govt. has full power to create/Reorganize/review the cadres but the Govt. never merged M.I. cadre with any other cadre. 10. ….. The Govt. in Water Resources Deptt. published Resolution dt. 22.11.2011 at Annx. 7 to O.A. restricting the existing cadres of engineers of Irrigation (Major and Medium) wing, Minor Irrigation wing and mechanical wing. After recruitment on the recommendation OPSC, 21 candidates belonging to SC/ST candidates were appointed as Asst. Engineers (Civil) in Minor Irrigation wing vide notification No. 4039, dt. 9.2.2009. 21. It is contended by the applicants that by way of amendment relating to the Deptt. of Water Resources in the Rules of Business under the heading ‘State Subject’ vide notification dt. 03.02.1996 at Annx.3, the words “and M.I.” appearing in the bracket in item No. 2 against Branch No. 1 “appointment” have been deleted and corresponding to the said notification dt. 03.02.1996, the G.A Deptt. had made necessary amendments in the matter of transfer of Minor Irrigation works and its personnel to the water Resources Deptt. vide notification No. 162, dt. 12.2.1996, thereby the Minor Irrigation cadre has been automatically merged with the Irrigation cadre. According to the respondents the notification dt. 03.02.1996 as at Annex. 3 was issued while the MI. organization was under the administrative control of R.D. Deptt. on transfer from the erstwhile I & P Deptt. in 1990. The M.I. organization was transferred to the administrative control of Water Resources Deptt. (Created after bifurcation of Irrigation & Power Deptt. as separate entity) on 12.2.1996 i.e. after 03.02.1996. further in the notification at annex. 3 there is no mention of merger of engineering personnel of M.I. cadre with the engineering personnel of Irrigation cadre under the Water Resources Deptt. There is no document to show that on transfer of engineering personnel of M.I. organization from R.D. Deptt. to Water Resources Deptt. the M.I. cadre was merged with the Irrigation cadre. The General Administration Deptt. in their letter dt. 07.9.2015 enclosed to the written argument filed by the private respondents referring to the earlier resolutions clarified as follows: “Minor Irrigation cadre is functioning as a separate cadre and O.E.S. Rules of the State are followed for M.I. cadre, Water Resources Deptt. have been allotted with Branch-I of State Subjects in item No. 3 ‘control of Officers serving in the Deptt. in Chapter XVII of Odisha Govt. Rules of Business. have been allotted with Branch-I of State Subjects in item No. 3 ‘control of Officers serving in the Deptt. in Chapter XVII of Odisha Govt. Rules of Business. Hence, there is no necessity as to issue of any further notification or Govt. orders in this regard. Minor Irrigation wing as a separate cadre will come under the coverage of the item No. 3 of Branch-I of the State subjects to chapter XVII of Odisha Govt. Rules of Business. In view of the above clarification, it is evident that M.I. cadre was not merged with the Irrigation cadre under the Water Resources Deptt.” 7. This issue has also crept up before this Division Bench in OA No. 134/2017 wherein all the relevant Govt. resolutions and rules has been analysed and finding has been given that M.I. cadre is distinct cadre from the Irrigation cadre though both the cadre are under DOWR. For better appreciation, para-19 of O.A. No. 134/2017 is quoted below: “This is an extreme case of illegality committed against the applicant in particular and Engineers of M.I. cadre in general as the Respd. No. 1 and 2 directly violating the Govt. resolution of No. 1991 (Annx.1), resolution dt. 4.8.1994 (Annex.2), dt. 11.9.1998 (Annx.3) has filled up the promotional post of Superintending Engineer and Chief Engineer of Minor Irrigation Cadre by deputing the Engineers of the Irrigation cadre by giving periodical promotions to the Engineers of Irrigation cadre. From Annex.1, 2 & 3 and so also Annx. 19 and the order dt. 3.3.2016 in OA No. 1843(c)/2014” referred in Annx. A to the counter and so also stand taken in the counter, it is crystal clear that Minor Irrigation is a distinct cadre and, therefore, the promotional post of Minor Irrigation Cadre is to be filled up by giving promotion to the Engineers of Minor Irrigation cadre only and not by deputing the Engineers of Irrigation cadre. In the instance case the applicant being the senior most in the Minor Irrigation cadre was promoted to the post of Executive Engineer vide Govt. of Orissa, Deptt. of Water Resources notification No. 30863, dt. 9.10.2006 (Annex.12), but subsequently wrongly the same order has been withdrawn vide subsequent notification dt. 16.9.2009 (Annx.13). If the applicant could have continued pursuant to his promotion to the post of Executive Engineer vide notification dt. of Orissa, Deptt. of Water Resources notification No. 30863, dt. 9.10.2006 (Annex.12), but subsequently wrongly the same order has been withdrawn vide subsequent notification dt. 16.9.2009 (Annx.13). If the applicant could have continued pursuant to his promotion to the post of Executive Engineer vide notification dt. 9.10.2006, then he might have retired as the Chief Engineer of Minor Irrigation Organization, but most unfortunately he was made to retire in the cadre of Executive Engineer w.e.f. 31.1.2017. So, great injustice has been committed against him and it seems such type of injustice must have been committed against the other 12 persons, who had been promoted to the post of Executive Engineer vide notification dt. 9.10.2006. The power, prestige and job satisfaction, which the applicant would have derived on his promotion, now cannot be compensated after his retirement from Govt. service, but at least some mental satisfaction and financial benefit can be given to him by giving promotion retrospectively to which he was entitled to had he been not reverted vide order dt. 16.9.2009 and if the promotional post of Superintending Engineer and Chief Engineer would not have been filed up by deputation.” 8. One of the main stands of the applicants was the deletion of “and M.I.” in the first schedule of Orissa Govt. Rules of Business but the same has been explained by the Tribunal in para-21 of OA No. 1931(C)/2004 and, therefore, the stand of the applicants citing Govt. Rules of Business is not acceptable and no finding can be given that Irrigation cadre and Minor Irrigation cadre are same cadre under the DOWR. Rules of Business is nothing to do for constitution of new cadre and cadre structure. Rule-11 of Orissa Service Code mandates that cadre means the strength of service of part of a service sanctioned as a separate unit. Learned counsel for the applicants submitted that the applicant of OA No. 866/2004, OA 1931(C) of 2004, P.P. 212/2006 and O.A. 1990(C)/2016 have already been promoted to higher ranks in the cadre of Irrigation (Major and Medium) from gradation list maintained separately for Irrigation cadre. But on the other hand, by initiating several litigations they have blocked the promotion prospect of the Engineers of M.I. cadre, which has already been reflected by the Tribunal in its order dt. 26.2.2018 of OA No. 134/2017. We find the contention of the learned counsel for the applicants to be true. But on the other hand, by initiating several litigations they have blocked the promotion prospect of the Engineers of M.I. cadre, which has already been reflected by the Tribunal in its order dt. 26.2.2018 of OA No. 134/2017. We find the contention of the learned counsel for the applicants to be true. 9. On going through the Annx. XI of OA No. 1990(C)/2016, we find that in pursuance to the order of the Tribunal passed in OA No. 657/2016, the Chief Secretary of Orissa by reasoned legal order has rejected the representation of the applicant Muralidhar Panda by holding that Minor Irrigation and Irrigation are two separate cadre and the promotion of Sri Panda in his cadre i.e. Irrigation cadre will in no way be affected in the event of promotion of Engineers (C) of Minor Irrigation cadre against the sanctioned post meant for Minor Irrigation for the reason that both Irrigation cadre and Minor Irrigation cadre are separate and distinct cadre under the administrative control of DOWR. We uphold this order passed by the Chief Secretary vide Annx.11. 10. Hence, in view of the discussion made above, we are of the firm view that the Irrigation cadre and Minor Irrigation cadre are separate and district cadre under the administrative control of department of Water Resources. Therefore, all the O.As. have got no merit and accordingly stands dismissed. I agree. Sd/- M.M. Praharaj Sd/- G.R. Purohit Acting Chairman Member, Judicial. O.A’s. dismissed.