(1.) IN the cadre of lower division assistants of the office of the Chief Engineer, roads and Buildings, Orissa. Sri Bishnu Charan Mohanty (Petitioner) was admittedly senior to Sarbasri G. N. Sarangi (O. P. No. 3) Sri A. C. Naik (O. P. No. 4), and Sri K. C. Patnaik (O. P. No. 5 ). Opposite parties 3, 4 and 5 were promoted to the posts of Grade II U. D. Assistants with effect from 16-8-63, 26-10-l964 and 4-1-1967 respectively to the Government (O. P. No. 1) against his supersession by opp. parties 3, 4 and 5. By letter dated 10-5-1969 (Annexure-1) the Under secretary in Works and Transport Department wrote to the Chief Engineer (Roads and Buildings) as follows:-
" with reference to your letter No. 3989 dated 7-2-1969 on the subject noted above, I am directed to say that Government have been pleased to order that Sri A. Naik (serial 12) and Sri K. C. Patnaik (serial 17) of the list furnished in your letter under reference who have already got promotion to the Grade II U. D. Assistant may be reverted to L. D. Asstt. Sri S. N. Naik (serial 9) and Sri B. C. Mohanty (Serial 10) who are senior to Sri A. Naik and Sri K. C. Patnaik may be promoted to Grade II U. D. Assistant with effect from the date from which Sri A. Naik and Sri K. C. Patnaik reverted to L. D. Assistant. The inter se seniority of those 10 assistants in the rank of U. D. Grade II assistant may be the same as in the rank of L. D. Assistants irrespective of their date of Promotion to the rank of U. D. Grade II assistants. As regards creation of extra Grade II posts you are advised to give proper facts and figures and sufficient justification for such creation separately. You are also requested to implement this order immediately without postponing it on this ground or that". It is to be noted that Government in annexure-1 did not direct reversion of opp. party No. 3. As the Chief Engineer (O. P. No. 2) did not implement annexure-1, the petitioner and Sri Sachida-nanda Naik, another aggrieved lower division assistant filed O. J. C. No. 792 of 1969 (Sachidananda Naik and another v. Chief engineer, Roads and Buildings ). In that case this very Bench passed the following order (annexure-2) on 2nd April, 1970, substantive part of which is extracted hereunder: "in Paragraph 7 of the Counter, it is admitted on behalf of the opposite parties that the Government allowed the representation of the petitioners, but that the matter is still pending consideration of the government, and that steps are being taken to dispose it of as expeditiously as possible. It would, however, appear from annexure-F dated 10-6-1969 that the Chief Engineer, Roads and Buildings, was asked to implement that order immediately, without postponing it on this ground or that. Though this writ application was filed on 19-2-1969 there has been no compliance of the order till now. We are satisfied that the opposite parties 1 and 2 are unnecessarily delaying the matter. We accordingly allow the writ application and direct the opp. parties 1 and 2 to fix the inter se seniority of the petitioners and opp. parties 3 to 5 within three months from today. There would be no order as to costs. " this direction in annexure-2 was given on the basis of the counter filed by opposite parties 1 and 2 in O. J. C. No. 792 of 1969 which had been filed on 2810-1969. In between 28-10-1969 and 2-4-1970 when the judgment in the O. J. C. 792/69 was delivered, the Government had already rejected the representation filed by the petitioner and cancelled the order, annexure-1, as would appear from the letter annexure-A from the Government of Ori-ssa to the Chief Engineer. The material part of annexure-A dated 24th Nov. . 1969, is extracted hereunder:
"in continuation of this Department fetter No. 28629 dated 15-10-1969, i am directed to say that on further consideration of the promotion case of Sri B. C. Mohanty. L. D. Assistant, Government have been pleased to decide that the promotion given by the Chief Engineer was in accordance with the rules and normal practice followed. The Political and Services department also hold the view that merit and suitability are the prime criteria in matters of Promotion though seniority cannot be given a go by. In view of the criteria for promotion stated above, Sri B. C. Mohanty was not found suitable and was eliminated on the basis of merit and suitability and Sri K. C. Patnaik was therefore rightly promoted. The previous Government order issued in this Department letter No. 15418 dated 20-8-1968 and No. 10531 dated 10-5-1969 stand cancelled. "
(2.) AS annexure-1 was cancelled, the petitioner along with another filed O. J. C. No. 709/70. Therein, the petitioner pleaded that though more than three months had elapsed from 2nd April. 1970 when annexure-2 was passed, the inter se seniority in Grade II of the petitioner vis-a-vis opp. parties 3 to 5 had not been fixed, and the petitioner had not been promoted as a Grade II U. D. Assistant. The prayer in that writ application was for issuing a writ of mandamus or any other appropriate writ to implement annexure-2. In this O. J. C. on behalf of opposite parties 1 and 2 a memo, with an affidavit was filed on 12-8-1970 stating that the Inter se seniority of the petitioner and opposite parties 3 to 5 had been fixed on 10-8-1970 as per the direction of this Court. On 17-8-1970, on behalf of the petitioner, a memo was filed to the following effect:
"i am instructed that the opposite parties have fixed the inter se seniority of the petitioners as L. D. Assistant and not in U. D. Grade II assistant. Therefore the opp. parties be directed to furnish the gradation list and state specifically about the above. Sd/- S. N. Mitra. Adv. for petitioner. On 2-9-1970 on behalf of the opp. parties 1 and 2 the following memo, (an-nexure-3) was filed "in this matter a memo, has been filed by the petitioner dated 17-81970 alleging that the opposite Party has not supplied the inter se seniority list of the petitioner in Grade II assistant. In the previous writ O. J. C. No. 792/69 this opposite party was directed to fix the inter se seniority of the petitioner and accordingly a writ was issued from the Honourable High Court. In accordance with the writ the opp. party has fixed the inter se seniority in the L. D. Assistant post in which the petitioner is continuing which has been filed in court on 12-8-1970. The petitioner has never been promoted to the post of Grade II Assistant. Hence the fixing of inter se seniority in Grade II of the petitioner does not arise. " on 21-9-1970 a memo, to the following effect was filed on behalf of the petitioner. O. J. C. No. 709/70 sachidananda v. Chief Engineer (R and B) The aforesaid case has in the meantime become infructuous, so it may kindly be withdrawn. Sd/- S. N. Mitra. Adv. for the petitioner. " On the basis of this memo. a Bench of this Court passed the following order on the very day. "mr. Raniit Mohanty. Advocate, states that this writ application has become infructuous and be permitted to be withdrawn. In this respect he files a memo. signed by Mr. S. N. Mitra, Advocate. In view of the above submissions, this writ application is permitted to be withdrawn. " the petitioner was promoted as Grade II assistant on 1-11-1970 (annexure-4 dated 18-12-1970 ). Though in the gradation list (annexure-7) for the lower division assistants, the petitioner had been shown senior to opp. parties 3 to 5 in the gradation list for grade II upper division assistants he has been shown junior to them (see annexure-5, the gradation list of the ministerial staff of the office of the Chief Engineer, Roads and Buildings, Orissa, as on 1-1-1970 ). Opposite party no. 2 intimated the petitioner by his letter, annexure-8 dated 6th January. 1970, that annexure-1 had been cancelled and that his representation had been rejected.
(3.) THE petitioner's case is that in the cadre of lower division assistants he is senior to opposite parties 3 to 5 and they were promoted on different dates without taking into consideration his case for promotion. The writ application has been filed under Articles 226 and 227 of the Constitution for quashing annexure-A dated 24th November, 1969, which was communicated to the petitioner by annex-8, and for issuing a writ of mandamus directing opp. parties 1 and 2 to consider the case of the petitioner for promotion to Grade II upper Division as on dates when opp. parties 3 to 5 were promoted.;