ORISSA HIGH COURT: CUTTACK
WRIT PETITION (CIVIL) No.21449 of 2011
In the matter of an application under Article 226 and 227 of the Constitution of India.
Jatindra Prasad Das ......... Petitioner -versus-
State of Orissa & others ......... Opp.Parties _______________
For petitioner : M/s.Bijan Ray & Yashobanta Das, Sr. Counsel along with Sri B.Mohanty,
D.Chhotray, D.R.Das, S.Mohanty &
For opp.parties : Mr. Ashok Mohanty, Advocate General (for O.Ps.1 & 2)
M/s.Ashok Kumar Parija, Sanjit Mohanty,
Senior Counsel along with Sri S.P.Sarangi,
P.K.Dash, R.K.Tripathy, B.C.Mohanty,
P.P.Mohanty, D.K.Das, A.K.Kanungo,
L.Swain, A.Pattnaik, and B.R.Sarangi
M/s. J.Patnaik Sr. Counsel along with Sri
B.Mohanty, H.M.Dhal, T.K.Pattnaik,
A.Pattnaik, R.P.Ray, Smt.S.Pattnaik,
B.S.Rayaguru, and M.S.Rizbi
THE HONOURABLE THE CHIEF JUSTICE SHRI V.GOPALA GOWDA AND
THE HONOURABLE SHRI JUSTICE H.S.BHALLA
Date of hearing : 27.10.2011 & Date of judgment : 15.11.2011 H.S.Bhalla, J. Before adverting to the facts of the present writ petition, we would like to observe that the plight of the petitioner is akin to the 2
passengers, who have been forced to board a ship, which is surrounded by stormy winds, having a ray of hope to reach its destination safely and in order to dispel those stormy winds, the writ petitioner is claiming seniority over and above the opposite parties no. 3 and 4, which has been denied by the decision of the Full Court on administrative side, by knocking at the door of this Court through the instant petition filed on judicial side.
2. The facts required to be noticed for disposal of this writ petition are that the petitioner submitted a representation on 13.11.2009 praying for fixation of his seniority over the opposite parties 3 and 4 with a consequential prayer to treat the period of his service as Additional District Judge, Fast Track Court as continuity of service in the promoted cadre of Orissa Superior Judicial Service (Senior Branch). The representation of the petitioner was rejected by the Full Court of the High Court of Orissa and the letter dated 8.8.2011 was communicated to the petitioner denying his due promotion and seniority vis-à-vis opposite parties 3 and 4. The impugned letter dated 8.8.2011 runs as under: "With reference to your letter no. 2215 dated 13.11.2009 on the above subject, I am directed to say that on careful consideration of the matter the Court are pleased to reject the representation dtd.13.11.2009 of Shri J.P.Das, Ex-District Judge, Khurda at present Registrar General, Orissa High Court, Cuttack.
Shri Das be informed accordingly."
3. As per the case of the petitioner, the letter in question and the decision of the Full Court is directly contrary to the direction of the apex 3
Court rendered in the case of Brij Mohanlal v. Union of India and others, AIR 2002 S.C. 2096. He has further pointed out that the direction issued by the apex Court in the aforesaid case is binding on the High Court in terms of Article 141 of the Constitution of India. The petitioner has categorically pleaded that his initial appointment as Additional District Judge, Fast Track Court having been made by following statutory procedure prescribed under the Orissa Superior Judicial Service Rules, 1963, hereinafter to be referred to as "Rules, 1963", in short and the Orissa Judicial Service (Special Scheme) Rules, 2001, hereinafter to be referred to as "Scheme Rules, 2001", in short, and the petitioner having continued in the said post on promotion uninterruptedly till regularization in accordance with the prescribed law, the period of such service shall have to be construed as regular service under the law and has to be taken into account for considering his seniority and as such seniority under the law has to be counted from the date of his initial appointment and not from the date of his confirmation as per the ratio laid down by the Constitution Bench of the apex Court in the case of the Direct Recruit Class-II Engineering Officers' Association and others v. State of Maharastra and others, AIR 1990 S.C. 1607. It was further pleaded that the petitioner's initial appointment as Addl. District Judge (Fast Track) in the cadre of Superior Judicial Service (Senior Branch) being in pursuance of a lawful recruitment process statutorily prescribed under the Rules and 2001 Scheme and the petitioner having continued in the said post uninterruptedly till regular absorption, the period of his service in such 4
higher cadre cannot be ignored while considering his seniority under the law and the opposite parties 3 and 4 cannot be construed as seniors to the petitioner as they were not born in the cadre of Orissa Superior Judicial Service (Senior Branch) at the time of petitioner's initial appointment as Additional District Judge (Fast Track Court). It was finally pleaded that the petitioner having been denied seniority over and above the opposite parties 3 and 4, the petitioner had no other option but to file this writ petition invoking the jurisdiction of this Court with a direction for quashing Annexures-2 and 10 and to place the petitioner as senior above the opposite parties 3 and 4 in the gradation list and the petitioner has also prayed necessary Super Time Scale accordingly.
4. On the other hand, the writ petition was opposed by the opposite parties and they opted to file separate counter affidavits. Opposite party no.1 has pointed out that in pursuance of 11th Finance Commission Award to set up Fast Track Courts to regulate the appointments therein, the Government of Orissa in Home Department published a notification on 7.4.2001 notifying the Scheme Rules, 2001. The said Rules came into force from the date of its publication in the Orisssa Gazette, i.e., with effect from 10.2.2001 and by establishment of Fast Track Court, there was no increase or addition in the cadre strength of O.S.J.S (Senior Branch). It is further pleaded that appointment was made on ad hoc and purely temporary basis for implementation of the scheme. It is also pleaded that the petitioner's appointment under 5
Annexure-3 was not in accordance with Rules, 1963 and when the petitioner was appointed as Additional District Judge (Fast Track Court), there was no cadre post available in the Orissa Superior Judicial Service to be filled up by way of promotion and by denying most of the assertions raised in the writ petition, opposite party no.1 finally prayed for dismissal of the same.
5. Opposite party no.2 categorically pleaded that rejection of the representation of the petitioner under Annexure-1 is legal and justified and is in consonance with the established canons of service jurisprudence. It is further categorically pleaded that the law laid down in the case of Brij Mohanlal (supra) cannot ipso facto entitle the petitioner to claim seniority. It is further pointed out that on 1.10.1993 there was an existing vacancy in the cadre of O.S.J.S.(S.B.) to be filled up by direct recruitment, but on account of retirement of Sri P.B.Patnaik there was an anticipated vacancy and taking into these two vacancies, the Full Court of this Court in its deliberations dated 29.9.1999 decided to fill up these two vacancies by direct recruitment and the opposite parties 3 and 4 were recruited and joined the cadre on 3.2.2003 and 7.2.2003 respectively. This opposite party no.2 has also taken similar stand as pleaded by opposite party no.1 in its counter denying most of the assertions raised in the petition and finally prayed for dismissal of the writ petition.
6. Opposite parties 3 and 4 have filed separate counter affidavit but in a similar fashion and they both have categorically pleaded that they 6
were appointed under Rule 8 of the Rules, 1963 by direct recruitment as Additional District & Sessions Judge and they were allowed ad-hoc promotion on regular basis under Rules, 1963 and selection grade was also conferred on them in the year 2008 whereas the selection grade was released to the petitioner with effect from 22.10.2009 vide notification dated 29.10.2009 (Annexure-11) and the petitioner did not challenge either the seniority shown in the gradation list of O.S.J.S (Senior Branch) or the conferment of the selection grade to the answering opposite parties. They have opposed the petition by pleading in their written reply categorically that the contention of the petitioner is misconceived and cannot be sustained inasmuch as the opposite parties 3 and 4 have been appointed in the cadre of O.S.J.S (Senior Branch) against the sanctioned posts whereas the petitioner was appointed as Additional District & Sessions Judge in Fast Track Court under the Scheme Rules, 2001. They have further pointed out that the claim of the petitioner for getting his continuity of service with effect from 26.4.2002 and seniority over them is not tenable and his representation has rightly been rejected. They have further pointed out that the petitioner was appointed as Additional District & Sessions Judge in Fast Track Courts in conformity with Rules 3, 4 and 5 of the Scheme Rules, 2001 and the alleged ad-hoc promotion is not under the cadre strength under Rule 4(2) of the Rules, 1963 and not in accordance with the provisions of the Rules, 1963. Therefore, his ad-hoc promotion under the Scheme Rules, 2001 cannot be treated as promotion to the cadre of O.S.J.S (Senior Branch) under Rule 9 of the Rules, 1963. 7
The petitioner was given ad hoc promotion under the Scheme Rules, 2001 with the object as stated in the Rules and the service rendered by the petitioner in the Fast Track Courts being for a short duration, neither can be treated as service in O.S.J.S (Senior Branch) nor can be characterized as uninterrupted service precisely for the reason that the service rendered by the petitioner in the Fast Track Court was not an appointment in the cadre of O.S.J.S (Senior Branch). By denying other assertions raised in the writ petition, both the opposite parties have finally prayed for dismissal of the writ petition.
7. We have heard learned Senior Counsel Mr.Bijan Ray along with Mr.Y.Das appearing for the petitioner, Mr.Sanjit Mohanty for opp.party no.3, Mr.Jagannath Patnaik for opp.party no.4, and Mr.Ashok Mohanty, learned Advocate General appearing on behalf of opp.parties no.1 and 2 at length and also have gone through the entire record produced before us meticulously.
8. The moot question that emerges for consideration before this Court is as to whether the service rendered by the petitioner in Fast Track Court as Additional District Judge is to be taken into account while fixing his seniority after regularization of his service in accordance with the Rules in the parent cadre and whether the decision taken by the Full Court of this Court is liable to be set aside and if so, its effect.
9. The record clearly spells out that a Committee was constituted on 23.12.2009 by the Full Court in order to consider the representation of 8
the petitioner along with the representation of other officers and vide report dated 3.3.2011 the Committee rejected the representation of the petitioner by way of majority whereas one member of the said Committee gave his dissenting view. In the Full Court meeting held on 2.8.2011, majority members of the Full Court accepted the report of the Committee constituted for the purpose and thereafter, the impugned letter rejecting the representation of the petitioner, reproduced above, was communicated to the petitioner. In order to effectively decide the matter in issue, it is necessary to reproduce the relevant portion of the report of the Committee, which runs as under :
" Considered the representation of Shri J.P.Das, Registrar General of the Court.
Shri Das claims seniority over and above Shri D.Dash and Shri S.Pujhari as he was appointed as Ad hoc Addl.Sessions Judge prior to them. Shri Dash and Shri Pujhari were appointed in regular cadre vacancy of 44 against the available direct recruit quota of 2 (11 being the total quota). When Shri Dash and Shri Pujhari were appointed, no quota to the promotees was available either in the cadre or in the ex-cadre (44+36). So no substantive vacancy was available for being filled up from the promotion quota. When Shri Das was not born in the cadre of substantive vacancy of District Judge (which includes cadre + ex-cadre) and also even no vacancy was available to absorb him in the cadre then, his claim for seniority in the cadre by no stretch of imagination be allowed.
(1990 Supreme Court Constitution Bench decision on Direct Recruit has settled the law in this regard).
The period of service rendered in F.T.Court as Ad hoc Addl. Sessions Judge cannot be taken into consideration as on earlier occasions also the Full Court considered the same and refused to take the same into consideration.
(1) While giving confirmation, the length of service in substantive cadre is considered and not the period of service rendered in F.T.Court as Ad hoc Addl. Sessions Judge.
(Full Court Resolution dated 17.1.2009 with the Committee Report)
(2) While giving Selection Grade, period of service rendered in F.T. Court as Ad hoc Addl. Sessions Judge is not taken into consideration for calculation of the length of service of 5 years.
(3) Shri B.C.Rath was given Selection Grade when he completed 5 years in substantive post (Resolution of the Full Court dated 30.7.2010).
(4) Shri J.P.Das and other Officers were granted Selection Grade by Full Court only after their completing 5 years in the substantive cadre. No grievance was made in not taken into consideration the period of service rendered in F.T.Court as Ad hoc Addl. Sessions Judge.
(5) The Committee also rejected the representation of Shri G.P.Sahu today on such analogy.
When Officers appointed in the junior cadre are promoted simultaneously on their promotion, they maintain the inter se seniority in the junior cadre.
The case of Shri G.P.Sahu and Shri G.S.Panigrahi was considered for promotion along with their batch-mates, who were junior to them. But they were not found suitable for regular vacancy and were appointed against Ad hoc vacancy available in the F.T. As they were not promoted to the regular cadre even though they were appointed as Ad hoc Addl. Sessions Judge, inter se seniority in the junior cadre was not given to them.
The aforesaid being the prudent for the Full Court and also the settled position of law, in case of Direct Recruit vis-à- vis Promotee, the representation of Shri J.P.Das deserves to be rejected."
10. It is admitted case of both parties that petitioner and opposite parties 3 and 4 were working in the Judicial Service of the Orissa State. The petitioner was promoted vide notification dated 5 th January, 2002 and posted as Addl. Sessions Judge in the Fast Track Court, vide another notification dated 11.4.2002 the petitioner was transferred vice Sri S.K.Patnaik to the Additional District Judge Court at Bargarh. The 10
record further spells out that the promotion of the petitioner had been done after following a due and proper procedure as applicable for promotion to the Superior Judicial Service. The petitioner continued to officiate as Additional District Judge (Fast Track) till he was regularized and substantively appointed on 15.12.2003. The opposite parties 3 and 4 were appointed to the Senior Branch of the Orissa Superior Judicial Service by direct recruitment vide notification dated 13.01.2003 and 22.01.2003. It is further admitted case that the seniority in the service is to be determined under Rule 17 of the Rules, 1963, which clearly provides that in case a promotee officer has continuously officiated on a posts from a date prior to the appointment of a direct recruit and if he is subsequently appointed substantively in the service without reversion to his parent service, he would take seniority in the cadre over such direct recruits. In the present case the petitioner has been officiating on promotion against the post of Addl. District Judge (Fast Track) prior to the direct recruits and having been substantively appointed without any reversion to his parent cadre, would be entitled to seniority over the direct recruits appointed later. This position is further fortified by the directions of the apex Court in Brij Mohanlal (supra), wherein direction contained at paragraph 14 specifically stated that the service rendered in Fast Track Court will be deemed to be service rendered in the parent cadre and in case an officer is promoted to higher grade in parent cadre during his tenure in Fast Track Courts, the service rendered in Fast Track Court would be counted as service in such higher grade and the petitioner 11
is thus entitled to count his service in the Fast Track Court towards his seniority in the Orissa Superior Judicial Service (Senior Branch). To our mind the High Court has wrongly interpreted the claim of the petitioner. The petitioner is claiming his seniority on the strength of officiating service prior to substantive appointment and therefore, the date of substantive appointment cannot be made a ground to ignore his claim. Moreover, there can be no estoppel against statutes and the Statutory Provisions and therefore, the said statutory provisions cannot be ignored on the grounds of an earlier administrative decision or precedent. The stand taken by majority of judges is contrary to the statutory provisions of the Rules, 1963 and 2007 and also contrary to the law laid down by the apex Court in State of Bihar and others v. Project Uchcha Vidya, Sikshak Sangh and others, (2006) 2 SCC 545, in which it was laid down as under: "We do not find any merit in the contention raised by the learned counsel appearing on behalf of the respondents that the principle of equitable estoppel would apply against the State of Bihar. It is now well known, the rule of estoppels has no application where contention as regards a constitutional provision or a statute is raised. X x x x "
The aforesaid view also finds support from the decision of the apex court in Air India v. Nergesh Meerza and others, AIR 1981 Supreme Court, 1829, wherein the Supreme Court held as under:
"x x x It is well settled that there can be no estoppel against a statute much less against constitutional provisions. X x x "
11. The selection grade when it became due to the petitioner would not debar him from claiming seniority to which he is legally entitled 12
to. The grounds taken for denying him seniority by the Committee constituted for the purpose are erroneous as two wrongs would not make a right. In respect of fixation of seniority of an officer, it is settled law that it is the continuous length of service of such officer that would govern seniority on the post and the officiating service has to be counted. The case of Brij Mohanlal (supra) is fully applicable to the facts of the case in hand as per the direction contained at paragraph no.14 issued by the apex Court, which runs as under:
"14. No right will be conferred on Judicial Officers in service for claiming any regular promotion on the basis of his/ her appointment on ad-hoc basis under the Scheme. The service rendered in Fast Track Courts will be deemed as service rendered in the parent cadre. In case any Judicial Officer is promoted to higher grade in the parent cadre during his tenure in Fast Track Courts, the service rendered in Fast Track Courts will be deemed to be service in such higher grade."
12. On perusal of the records, it reveals that the petitioner in his representation under Annexure-1 has clearly pointed out that his case is squarely covered by the decision in Brij Mohanlal (supra), but for the reasons best known to the Committee, they have not assigned any reason as to why the said case is not applicable to the case of the petitioner.
13. At this stage we would like to examine the case of the petitioner and opposite parties 3 and 4 from a different angle. As per the case of the opposite parties 3 and 4 in view of Rule 7 of the 2001 Scheme, the petitioner cannot claim regular promotion in the regular cadre on the basis of his appointment made under the 2001 Scheme. But the Rules framed under the 2001 Scheme are meant for special purposes 13
and cannot over-ride the provisions contained in Rule 17 of Rules, 1963. It is settled law that if the appointee continues in the post uninterruptedly till regularization of service in accordance with the Rules, the period of officiating service shall be counted as per the law laid down by the apex Court in the Brij Mohanlal's case referred to supra. If the incumbent is appointed as is in the case of the petitioner to a post, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation, meaning thereby where initial appointment is only ad-hoc and the person continued and promoted to a higher grade in the parent cadre, then the service rendered by him on ad-hoc basis is required to be counted for the purpose of his seniority. In the instant case, the petitioner was promoted to the post of Addl. District Judge (Fast Track) on 26.4.2002 and continued uninterruptedly till his appointment in the parent cadre and as such, the period of his service in the Fast Track Courts shall be counted for reckoning his seniority. In Shri O.P. Singla and another v. Union of India and others, reported in 1984(4) S.C.C., 450, a Bench of three Judges of the apex Court has held that seniority of direct recruits and promotees, if appointed under Rules, has to be determined on the basis of dates from which the promotees have been officiating continuously either in the temporary post or against a substantive vacancies. The relevant portion of the said judgment is quoted below:
"xx x x Promotees who are appointed to the Service under either of these two Rules must be considered as belonging to the same class as direct recruits appointed under Rule 5(2). 14
They perform similar functions, discharge identical duties and bear the same responsibilities as direct recruits. They are appointed on a regular basis to posts in the Service in the same manner as direct recruits are appointed, the only distinction being that whereas the latter are appointed on the recommendation of the High Court, promotees are appointed in consultation with the High Court. Therefore, no distinction can be made between direct recruits on one hand and promotees appointed to the Service on the other, in the matter of their placement in the seniority list. Exclusion from the seniority list of those promotees who are appointed to posts in the Service, whether such appointment is to temporary posts or to substantive vacancies in a temporary capacity, will amount to a violation of the equality rule since, thereby, persons who are situated similarly shall have been treated dissimilarly in a matter which constitutes an important facet of their career." The aforesaid view is also fortified by the decision of the apex Court in Direct Recruit Class-II Engineering Officers' Association and others v. State of Maharashtra and others, AIR 1990 SC 1607, the relevant portion of which is quoted below:
"If the initial appointment is not made by following the procedure laid down by the rules but the appointee continues in the post uninterruptedly till the regularization of his service in accordance with rules, the said period of officiating service will be counted."
14. Though the promotion of the petitioner was ad-hoc, the petitioner's initial appointment as Additional District Judge (Fast Track), Bargarh was after the High Court recommended the petitioner's suitability for promotion to the cadre of O.S.J.S (Senior Branch) by following statutory provisions of the Rules which was notified by the Government under the orders of the Governor of Orissa (Annexure-3 & 4), and after having rendered uninterrupted service, such ad-hoc promotion was regularized by the Home Department vide notification No. 54392/ HS dated 15.12.2003 under the provisions of the Rules, 1963 and the 15
petitioner was posted as Addl. District Judge, Bargarh vide Court's notification dated 19.1.2004. The petitioner joined as Additional District & Sessions Judge, Bargarh on 3.2.2004 on regular basis. The said notifications are filed as Annexures-5 and 6 respectively.
15. The contention of the opposite parties 3 and 4 that the promotion/ appointment of the petitioner has been done under the Scheme Rules, 2001 and not under the Rules, 1963, is liable to be noticed for the sake of rejection. It appears that before developing this argument, the opposite parties have not gone through the record. Their contention is against the record and in fact the petitioner was considered along with two other officers, namely, Sri G.R.Purohit and Sri M.K.Panda and after consideration by the Full Court in its meeting held on 14.12.2001 at 4.00 P.M. in the Conference Hall of the Orissa High Court, Cuttack, the petitioner along with two other officers was found fit for the purpose of his promotion to the cadre of O.S.J.S. (Senior Branch). It was further resolved that these officers are found suitable for promotion to the cadre of O.S.J.S. (Sr. Branch) and their names were recommended to the State Government for promotion to the cadre of O.S.J.S. (Sr. Branch). At this stage it is necessary to re-produce the relevant portion of the minutes of the meeting of the Full Court against Agenda No.3, which runs as under: "3. Any other matter with the
permission of Hon'ble Chief Considered the Judicial and administrative Justice. capabilities along with C.C.Rs. of the following officers in the cadre of Orissa
Promotion of officers of Superior Judicial Service (Jr.Br.) for the O.S.J.S. (Jr.Br.) to the purpose of their promotion to the cadre of cadre of O.S.J.S. (Sr.Br.) Orissa Superior Judicial Service 16
for their posting as ad hoc (Sr.Branch).
Additional District Judges
against Fast Tract Courts. 1. Shri G.R.Purohit, Secretary, Consumer Disputes Redressal Commission,
2. Shri M.K.Panda, Deputy Secretary,
Orissa Legal Services Authority,
3. Shri J.P.Das, Adviser, O.E.R.C.,
Resolved that all the above named
officers are found suitable for
promotion to the cadre of O.S.J.S. (Sr.
Branch) and accordingly their names
be recommended to the State
Government for promotion to the cadre
of O.S.J.S. (Sr. Branch) for their
appointment against the Fast Track
Courts on ad-hoc basis."
The aforesaid Full Court meeting was presided over by the then Chief Justice (Justice P.K.Balasubramanyan) wherein the promotion of the petitioner and two other officers were considered taking into their judicial and administrative capabilities along with their confidential reports and thereafter the name of the petitioner was recommended to the State Government for promotion to the cadre of O.S.J.S. (Sr. Branch) and such promotion can only be granted under the Rules, 1963 and therefore, the contention of the learned counsel for the opposite parties referred to supra is liable to be rejected and the proceedings of the Full Court reproduced above demolishes the case of the opposite parties, who have taken the plea that the promotion of the petitioner was under the Scheme Rules, 2001. This plea and contention is contrary to factual position as revealed from the resolution of the Full Court of this Court, the relevant portion of which is entra-cited above.
16. It is crystal clear that the petitioner has undergone a regular, lawful and statutory procedure when he was appointed as Addl. District Judge (Fast Track), Bargarh, albeit on ad-hoc promotion. Therefore, his uninterrupted service in the cadre of Orissa Superior Judicial Service (Senior Branch) is to be counted with effect from 26.4.2002, on which date he joined the post initially and his subsequent regularization pursuant to Annexures-5 and 6 shall be deemed to be effective from the date of his initial appointment on promotion on ad-hoc basis. The period of service spent by him in the Fast Track Court cannot be thrown to winds and not counting this period for the purpose of seniority would be putting the petitioner to slow fire, which is not permissible under law as discussed above, in view of the petitioner's uninterrupted service till he was absorbed in his parent cadre. The scheme of Fast Tract Court came up for consideration before the apex Court in Brij Mohanlal's case, in which the apex Court has given directions. The relevant direction given in the said case is reproduced in paragraph 11 of this judgment.
17. The aforesaid direction of the apex Court clearly lays down the mandate that the promotees' service in such Fast Track Courts shall be counted towards regular service. Moreover, the appointment of the petitioner was never on officiating basis for any particular period, but was a final selection in accordance with the Rules, 1963 and Scheme Rules 2001 and that is why the apex Court directed for filling up all the consequential vacancies in the lower cadre from which the promotions are 18
given in Fast Track Courts simultaneously. Moreover, it was also made clear that the persons appointed under the Scheme shall get all service benefits which are applicable to the members of Judicial Service of the State on equivalent status. The State Government took cognizance and promoted the incumbents like the petitioner from the cadre of Orissa Superior Judicial Service (Junior Branch) to Orissa Superior Judicial Service (Senior Branch) by following the prescribed procedure. The opposite parties 3 and 4 joined in Orissa Superior Judicial Service (Senior Branch) as direct recruits as contemplated under Rules 5 and 8 of the Rules, 1963. They were appointed as Addl. District Judges vide Home Department Notification Nos. 2495 and 2496 dated 13.01.2003, copy of which is filed as Annexure-8 to the writ petition and the High Court notifications dated 22.1.2003, filed as Annexure-9 and 9-A respectively. The opposite parties 3 and 4 joined in their respective posts on 3.2.2003 and 7.2.2003 respectively, meaning thereby they were born in the cadre of Orissa Superior Judicial Service (Senior Branch) after about 10 months of the petitioner entering into such cadre on promotion to the post. But even then the opposite parties 3 and 4 were given selection grade with effect from 3.2.2008 and 7.2.2008 respectively vide Court's notification no. 79 and 80 dated 22.2.2008, copy of which is annexed as Annexure- 10, thereby ignoring the claim of the petitioner with regard to his seniority. All this clearly spells out that the petitioner and other officers were superseded by the opposite parties 3 and 4 and on the other hand the petitioner was promoted to the cadre of Selection grade with effect 19
from 22nd October, 2009 vide notification no. 899 dated 29.10.2009 of the High Court (Annexure-11) and in this manner the period of service as Addl. District Judge (Fast Track) was not taken into consideration ignoring the settled law of the apex Court.
18. The law quoted by the learned counsel for the contesting opposite party no.1 titled as Ajit Prasad Verma and others v. The State of Jharkhand through the Law Secretary-cum-Legal Remembrancer, Govt. of Jharkhand and others, W.P.(S) No. 4957 of 2004 is on a different footing i.e. under the Jharkhand Superior Judicial Service (Recruitment, Appointment and Conditions of Service) Rules, 2001 whereas Rules, 1963 is totally different. Moreover, the petitioners in the case of Ajit Prasad Verma (supra) were appointed till continuance of the Fast Track Courts. In that case the recommendation letter clearly indicated that promotion is against ex-cadre post and till the posts are brought under the Jharkhand Superior Judicial Service and till continuance of the Fast Track Courts. Paragraph 19 of that judgment clearly spells out with regard to the fact that the petitioners were promoted for a specific purpose and for a particular period whereas in the case of the present petitioner, no such rider was created while promoting him and moreover, he continued uninterruptedly in the post till the order was passed in his favour by virtue of which he was promoted under the Rules, 1963. A reading of the said case would show that it bears no resemblance to the facts in the instant case and does not in any manner support the point canvassed on behalf of the opposite parties in the context of the nature and 20
circumstances of the instant case. Moreover, determination of seniority is important for an employee. His promotion is dependent on this and the fixation of seniority must be based on some sound legal principles, which are just and fair. This is the mandate of Articles 14 and 16 of the Constitution of India. The reasons assigned by the Committee constituted by the High Court which disposed of the representation of the petitioner are misconceived in the facts of the case. Moreover, the Scheme Rules, 2001 cannot override the provisions of the Rules, 1963. Rule 17 of the Rules, 1963 clearly spells out that seniority of officers in the service shall be determined in accordance with the dates of substantive appointment to the service and if the promoted officer, who may have been allowed to continuously officiate from a date prior to the date of appointment of a direct recruit, shall, if he is subsequently substantively appointed in the service without reversion to his parent service, take his seniority in the cadre over such direct recruits.
19. The opposite parties are trying to build a castle on the sandy foundation by referring to various Rules, particularly, Scheme Rules, 2001 and Rules, 1963. But to our mind no interpretation of Rules is involved in the instant case. The point involved is whether the period of service rendered in the Fast Track Courts by the petitioner as an Additional District Judge is to be counted as service in the parent cadre, particularly when the petitioner served continuously in the cadre uninterruptedly. The Scheme Rules, 2001 neither conceive nor empower the authority to give 21
any promotion to any inservice candidate. The promotions are effected only by the parent rule, i.e., Rules, 1963 and thereafter appointment under the Scheme Rules, 2001. Moreover, the petitioner has not claimed any promotion during his tenure in Fast Track Court, but he was promoted by the Government on due consultation with the High Court on 5.1.2002 and the same was made under Rules, 1963 but not under Scheme Rules, 2001. He continuously officiated in the Senior Branch until regularized on 15.12.2003 (Annexure-5) and thereafter without reversion to Junior Branch, in terms of Rule 17 proviso to Rules, 1963 the petitioner carried his seniority in the cadre of Senior Branch for all purposes. As already discussed, but at the cost of repetition, Rule 17 proviso to Rules, 1963 clearly spells out the continuous officiation and as per this Rule, if promoted officer is allowed to officiate continuously from a date prior to the date of appointment of direct recruits and if he is subsequently substantively appointed in the service without reversion to his parent service, takes a seniority in the cadre over such direct recruit. Moreover, through notification dated 5.1.2002 (Annexure-3) the petitioner and two other officers were allowed ad hoc promotion on the basis of the recommendation of the Full Court and pursuant to this notification, the High Court by notification dated 11.4.2002 (Annexure-4) transferred and appointed the petitioner as Ad-hoc Additional District Judge in the Additional District Judge Courts established out of the 11th Finance Commission Award in the Judgeship and Sessions division of Sambalpur- Bargarh-Deogarh-Jharsuguda with headquarters at Bargarh.In view of all 22
this, it is crystal clear that the petitioner was promoted under the Rules, 1963 and there is no provision under the Scheme Rules,2001 for promotion of an officer from Junior Branch to Senior Branch of the service. After promotion, he was appointed under the Scheme Rules, 2001 as Fast Track Courts were created under the scheme. In view of the law laid down in Direct Recruit Class-II Engineering Officers' Association (supra), the petitioner's seniority has to be counted from 5.1.2002, the date of his initial appointment to Senior Branch and not from the date when he was regularized. The notification issued by the Government in Home Department dated 15.1.2003(Annexure-5) further strengthens the case of the petitioner with regard to his promotion under Rules, 1963. If the petitioner was promoted and appointed under the Scheme Rules, 2001, issuance of the notification by the Government of Orissa in Home Department would not arise. We have gone through this notification, which clearly spells out that the petitioner, who was allowed ad-hoc promotion to the Senior Branch of the Orissa Superior Judicial Service vide Home Department notification dated 5.1.2002, was allowed to officiate in the said Branch on regular basis and was performing judicial function of hearing appeal under the Code of Civil Procedure and conducting sessions trial under the Code of Criminal Procedure and in fact while performing his duties, he was having the same jurisdiction as is being exercised by the regular cadre officers of the Senior Branch and he had the jurisdiction to entertain arbitration petitions under Section 34 of the Arbitration and Conciliation Act, 1996. Even appointment to an ad-hoc 23
post for long duration would be sufficient to hold that such person was holding the post in a substantive capacity. To approximate to the official diction used in this connection, we may well say that a person is said to hold a post in a substantive capacity when he holds it for an indefinite period especially for long duration in contradistinction to a person who holds for a definite or temporary period or holds it on probation subject to confirmation. The Committee was not justified by relying upon the earlier order for rejecting the representation of the petitioner.
20. Admittedly on 5.1.2002 the petitioner under Annexure-5 was promoted to the post of ad-hoc Additional District Judge in the District Judge cadre and as already discussed above, the petitioner was promoted by the Government in consultation with the High Court and that is why the notification was issued and as such, the issue relating to non- existence of any substantive vacancy in the post of the cadre on the date of appointment of opposite parties 3 and 4 is wholly academic. In the Civil List published in 2006 the petitioner's entry in the cadre has been shown as 26.4.2002, i.e., the date of joining, whereas the opposite party nos. 3 and 4 were appointed on 3.2.2003 and 7.2.2003 respectively and therefore, the matter was not considered by the competent authority with regard to the vacancy, if any in January, 2002 when the petitioner was promoted to the Post of Additional District Judge and appointed by the State Government on the basis of the resolution of the Full Court of this Court referred to supra in the Fast Track Court and was posted as 24
Additional District Judge. Moreover, the question of non-existence of any vacancy in the post of the cadre was not an issue either before the Committee or before the Full Court or for that matter in the present writ petition. The petitioner's promotion was regularized on 15.12.2003 (Annexure-6) when he was brought to regular cadre or in other words in the substantive cadre as referred to by the authorities. The apex Court in the said Direct Recruit Class-II Engineering Officers' Association (supra) in paragraphs 44 (A) & (B) has held that presumption should be raised that there was relaxation when there is a deviation from the quota rule. The decision of the Committee and the Full Court of this Court is contrary to law as propounded by the apex Court in Brij Mohanlal (supra) and Direct Recruit Class-II Engineering Officers' Association (supra). The three Judges Bench of the apex Court while considering the scheme framed for Fast Track Courts gave direction in para 10, sub-para-14, page 2101, which has already been reproduced in para 11 of this judgment. The opposite parties also raised an untenable contention that the petitioner was promoted under the Scheme Rules, 2001 and therefore, the services for such period is not available to be computed or reckoned as service in the parent cadre specially when the apex Court has settled the law relating to the issue. The direction issued by the apex Court in that case is binding on all courts and other authorities.
21. In so far as promotion to selection grade of the opposite parties 3 and 4 is concerned, the same is governed by the Orissa Superior 25
Judicial Service Rules, 1963. The petitioner was allowed promotion on the recommendation of the High Court and notification dated 5.1.2002 was issued by the State Government in this regard. After issuance of this notification, the petitioner joined as Additional District Judge (Fast Track Court), Bargarh on 26.4.2002. Thus, applying the five years rule, the petitioner became entitled to be considered for such promotion to the selection grade on 25.4.2007, whereas the opposite parties 3 and 4 were appointed as Additional District Judge on 3rd and 7th February, 2003 respectively and thus, became eligible for consideration for their promotion to selection grade only in February, 2008, i.e., long after the petitioner earned his eligibility in April, 2007. All this clearly spells out that the promotion of opposite parties 3 and 4 to the selection grade prior to the petitioner is illegal. Thus, the petitioner has to be considered for promotion only prior to the opposite parties 3 and 4. The contention of the learned Senior Counsel on behalf of the opposite parties 3 and 4 that the promotion was fortuitous is fallacious. The Constitution Bench in the case of Rudra Kumar Sain and others v. Union of India and others, AIR 2000 SC 2808 in para 20 held that :
"In the Service Jurisprudence, a person who possesses the requisite qualification for being appointed to a particular post and then he is appointed with the approval and consultation of the appropriate authority and continues in the post for a fairly long period, then such appointment cannot be held to be 'stop gap or fortuitous or purely ad hoc". In this view of the matter, the reasoning and basis on which the appointment of the promotees in the Delhi Higher Judicial Service in the case in hand was held by the High Court to be 'fortuitous/ ad hoc stop-gap" are wholly erroneous and therefore, exclusion of those appointees to have their continuous length of service for seniority is erroneous." (underline is made by this Court)
22. The contention of the opposite parties with regard to non- joinder of necessary parties is liable to be noticed only for the sake of rejection. It has been alleged on behalf of the opposite parties that the petitioner's case suffers from non-joinder of necessary parties since he has not arrayed the officers senior to him as necessary parties in his writ petition. After having gone through the record, we find that the gradation list as prepared by the High Court for the present purpose is as follows:
1. Sri Debabrata Dash (Opp.party No.3)
2. Sri Shatrughna Pujahari (Opp.Party No.4)
3. Sri Sarat Chandra Mishra
4. Sri Bijaya Narayan Mishra
5. Sri Gyana Ranjan Purohit
6. Sri Manoj Kumar Panda
7. Sri Jatindra Prasad Das ( writ petitioner)
8. Sri Saroj Kumar Mohapatra
The officers at Sl.Nos.3 to 6 are undisputedly senior to the present petitioner and they stand on the same platform and on similar footing like the petitioner. Their period of service in the Fast Track Courts much prior to the joining of opposite parties 3 and 4 have not been taken into consideration and all of them including the petitioner have been made junior to opposite parties 3 and 4. The petitioner is not affecting their seniority right in any manner and he does not have any grievance or cause of action against the officers at Sl.Nos.3 to 6. The petitioner has assailed the principle of not calculating his services rendered in the Fast 27
Track Courts in the length of regular service as has been adopted by the High Court. In case the prayer of the petitioner is allowed, the opposite parties 3 and 4 presently at Sl.Nos.1 and 2 would be below Sri Saroj Kumar Mohapatra at Sl.No.8 and in that event the officers at Sl.Nos.3 to 6 being undisputedly senior officers to the petitioner would be rather benefited in getting seniority instead of being affected in any manner. In other words, it can be stated that the officers at Sl.Nos.3 to 6 being no way to be affected by the decision of the present writ petition can never be said to be necessary parties to the proceedings. No list or order fixing seniority of the petitioner vis-à-vis other individual except opposite parties 3 and 4 is being challenged. Moreover, a necessary party is one without whom no order can be made effectively. A proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision. The contention raised on behalf of the opposite parties no.3 and 4 is not sustainable and in the instant case the name of the officers mentioned at Sl.Nos.3 to 6 are neither necessary nor proper parties. They are not the parties without whom no order can be passed as the principle to be decided in this case will either benefit them or maintain their status quo. It is also well settled that beneficiaries are neither proper nor necessary parties.
23. Learned Senior Counsel, Mr.Sanjit Mohanty, appearing on behalf of opposite party no.3 vehemently argued that the writ petition is barred by delay and latches and he further submitted that on this short 28
ground alone, the writ petition is liable to be dismissed. In order to lend support to this contention, he further submitted that the petitioner did not challenge the conferment of selection grade released in favour of opposite parties 3 and 4 on 22/23.2.2008 and the petitioner remained silent and did not chose to challenge any of the aforesaid order on any permissible grounds. He waived his right to question the seniority of opposite parties 3 and 4. The above contention of the learned Senior counsel for opposite party no.3 is against the record since we find that the petitioner filed the representation on 13.11.2009 where he has categorically challenged the selection grade granted to the opposite parties 3 and 4 vide notification nos.79 & 80 dated 23.02.2008. The record further spells out that the opposite parties 3 and 4 were born in the cadre of O.S.J.S. (Senior Branch) with effect from 3rd and 7th February, 2003 respectively when they joined as Additional District Judges, i.e. 10 months after joining of the petitioner in the cadre and both of them have been given promotion to selection grade District Judge on 3rd and 7th February, 2008 respectively. This fact was categorically pleaded by the petitioner in his representation dated 13.11.2009, which was filed after about one year seven months from the date when the selection grade was released to the opposite parties 3 and 4. The matter remained pending with the High Court for more than twenty months as the representation was filed on 13.11.2009 and the same was rejected on 8.8.2011. It is not a case where relief could be declined only on the ground of latches or delay and then again there is no delay in filing the present writ petition as the 29
representation was rejected on 8.8.2011 and the present writ petition has been filed on the same day, i.e., on 8.8.2011. The mere fact that the petitioner did not challenge the selection grade passed in favour of the opposite parties 3 and 4 by way of writ petition and challenged the same through representation does not dis-entitle him to claim seniority through the present writ petition, which has been filed on the same date when the representation was rejected. The cause of action really arose to the petitioner for moving the writ petition after he was communicated with the impugned order rejecting his representation.
24. In view of the foregoing analysis and reasons, in our opinion, therefore, there has been no unreasonable delay on the part of the petitioner to challenge the impugned order and consequently, the order by virtue of which the opp.parties 3 and 4 were granted selection grade.
25. It is now well settled that even in the case of probotion or officiating appointment, which are followed by confirmation unless contrary rule is shown, the service rendered as officiating appointment or probation cannot be ignored for reckoning the length of continuous officiating service for determining the place in the seniority list. Even if the first appointment is made by not following the prescribed procedure and such appointment is approved later on, the approval would mean confirmation by the authority and shall relate back to the date on which his appointment was made by the State Government on the basis of the Full Court resolution and the entire service will have to be computed in 30
reckoning the seniority according to the length of continuous officiation of the petitioner. This view of ours is also supported by the judgment of the apex Court in S.L.Chandrakishore Singh v. State of Manipur and others, AIR 1999 Supreme Court, 3616, the relevant portion of which is quoted below:
"For the reasons aforestated, this writ petition is allowed with a direction to the respondents to treat the date of officiating appointment of the petitioner as the date of his regular appointment and refix his seniority in terms of the direction, consequently, the seniority list published under Rule 28 of the rules by notification dated 30.3.1990 (Annexure-7) and the impugned order dated 16.8.1989 (Annexure-3) are hereby set aside in so far petitioner is concerned."
26. Seen from any angle, we are of the opinion that majority view of Full Court of the High Court has erroneously accepted the report of the Committee by wrongly interpreting the provisions of law applicable in the case and ignoring the judgments in Brij Mohanlal (supra) and Direct Recruit Class-II Engineering Officers' Association (supra), which squarely cover the matter involved in the present writ petition in favour of the petitioner.
27. Having thus considered the version of the contesting parties and deliberating over the arguments advanced by the learned Senior Counsel and learned Advocate General in the light of the record produced before us, it clearly led us to the irresistible conclusion that the Committee fell in error in rejecting the representation of the petitioner and thereafter the Full Court erroneously accepted the report of the majority view of the Committee and finally passed the impugned order 31
and the petitioner being senior to the opposite parties 3 and 4 was liable to be released selection grade with effect from 25.4.2007 prior to the opposite parties 3 and 4 and as such, the notification under Annexure-10 is liable to be set aside.
28. In view of our conclusions, as aforesaid, we quash the report of the Committee dated 3.3.2011 and the letter Annexure-2 by virtue of which the petitioner was communicated that his representation has been rejected and the notification dated 22.2.2008 (Annexure-10). The writ petition filed by the petitioner is allowed. The opposite party no.2 is directed to treat the period of service rendered by the petitioner in the Fast Track Court for the purpose of his seniority from the date of his appointment i.e. 26.4.2002 and re-fix his seniority in terms of the observation made in this judgment. Since the future of the officers to a great extent depends on seniority and many may be on the verge of superannuation, the High Court would do well in finalizing the seniority within a period of two months from the date of receipt of a copy of this judgment. A fresh seniority list shall be prepared in the light of our direction by following the judgments of the apex Court referred to above along with consequential benefits under law.
29. In the facts and circumstances of the case, there shall be no order as to cost.
V.Gopala Gowda, C.,J. I agree.
Orissa High Court, Cuttack
November 15, 2011/ PKSahoo