Akshay Kumar Jena vs State of Orissa and Others

R.N. Misra, J.—The State of Orissa took over the Bhadrak Engineering School as an institution of the State with effect from 1-4-1961, where Petitioner in each of these cases was a lecturer. Upon such take over, each of there Petitioners was absorbed in Government service. Opposite parties 4 and 5 joined similar service on 9-8-1964 and 9-1-1965 respectively. The Orissa Industries Service Rules, 1971, framed under the Proviso to Article 309 of the Constitution came into force with effect from 23-4-1971. On 21.4.1972, the appointment of Petitioner in 0.J.C. No. 908 of 1977 as Lecturer in Humanities was regularised ; similarly the appointment of Petitioner in the connected case as Lecturer in Mathematics and Science was also regularised. Between May and June of 1975, the two Petitioners were promoted to Class I (Junior) Service on ad hoc basis, and they continued to hold such post till 22-2-1977. Opposite parties 4 and 5 were promoted to Class I (Junior) Service in December, 1975. In July, 1976, the gradation list was changed. Opposite parties 4 to 11 who had hitherto been shown as junior to each of the Petitioners were taken above them and the Petitioners were, shown below. Their reversion from the officiating Class I post was as a result of the change in the position of seniority. On 22-2-1977, opposite parties 6 to 11 were promoted to Class I (Junior) post though they were recruits of the years 1965 and 1966. Each of the Petitioners challenged the change in the gradation list and claimed seniority and having not obtained any relief from the employer have filed these two writ applications asking for declaration that each of them is senior to opposite parties 4 to 11 and, therefore, the gradation list should be altered and Petitioners should be given their legitimate service benefits.

Opposite parties 4 to 11 have not appeared in the proceedings in spite of notice. A common counter affidavit has been filed on behalf of opposite parties 1 to 3, wherein the main stand has been that under the rules, the placement in the seniority list has to be according to the position assigned by the Public Service Commission and the State Government referred the matter to the Public Service Commission and on the basis of its recommendation have made the alteration in the seniority list. Since the change has been under the statutory rules, Petitioners are not entitled to make grievance and the promotion accorded to opposite parties 4 to 11 is justified on the basis of their appropriate seniority.

Reliance has been placed by Mr. Patnaik for the Petitioners on a judgment of this Court in Nirmal Chandra Mohanty v. State of Orissa and Ors. O.J.C. No. 40 of 1977-D/6-9-1977, to which one of us was party. Therein, it was observed:

The question for consideration is whether a person who has been earlier selected and appointed should be given preference or parsons who have been recruited later in course of the same year but have fared better in the interview granted by the Commission. Obviously the department has altered the gradation list because it found that the performance of Opposite parties 3 to 9 was better than the performance of the Petitioner as they appeared in one year but in different batches. This to us seems not proper. Firstly because, one who has joined earlier in service should be given due credit for his earlier appointment. Secondly because, and which is more important is that absolute uniformity in selection is impossible if candidates are interviewed in different batches with intervals, even though the body granting interview does not vary. Even if the same body, sits at different times it may adopt different standards of marking. The proper test should have been to fix inter se seniority between candidates appearing in the same batch but not appearing in the same year in different batches. In this case, admittedly the Petitioners an earlier recruit and so had been shown senior to opposite parties 3 to 9. In would be Improper to ascertain their seniority on the basis of the marks received when the interview was not in one batch. As already indicated, the same standard of marking cannot be assured when interviews are made at Intervals.

In this case, we may also point out that the Rules (Orissa Industries Service Rules) referred to above came in the year 1971. The appointment of the Petitioner was in 1965 and therefore this Rule cannot apply to his case retrospectively....

Learned Standing Counsel does not dispute the position that the Orissa Industries Service Rules, 1971 are not retrospective. Therefore, the ordinary rule that seniority depends upon the date of recruitment cannot be varied by relying on the aforesaid Rules. Admittedly, the two Petitioners were recruited before opposite

parties 4 to 11. Rule 21(i) of the Rules provides:

Seniority shall ordinarily he determined according to the position assigned by the Orissa Public Service Commission.

This provision is obviously with reference to Rules 4 to 6 and would cover cases of recruitment under the Rules. Since Petitioners were not recruited under the Rules, the question of assigning seniority in terms of Rule 21 does not arise. Again, there is no provision in the Rules of referring the dispute of seniority to the Public Service Commission for determination. The papers had obviously been sent to the Commission for obtaining approval for promotion .granted on ad hoc basis. On that occasion, the State Government had no justification to rake up the dispute of inter se seniority and the .commission had no authority to enter into a consideration of such an aspect.

We would accordingly quash the alteration made in the seniority list and direct that the seniority list be re-drawn on the basis of the date of joining so far as Petitioners and opposite parties 4 to 11 are concerned. On the basis of the seniority list to be drawn up in accordance with our direction, Petitioners are entitled to all service benefits. In case, they were reverted on the basis of the change in the place of seniority, their claim should be re-considered and appropriate service benefits should be extended to them. A writ of mandamus shall issue to the opposite parties 1 to 3 requiring compliance with the aforesaid direction within three months from the late of service of the writ. Each of the Petitioners shall have his costs. Hearing fee is assessed at rupees one hundred in each case.

B.K. Ray, J.

I agree.

Writ petitions allowed.