ASWINI KUMAR DASPATTANAYAK AND ORS. Vs. THE HIGH COURT OF ORISSA AND ORS.
LAWS(ORI)-1988-6-12
HIGH COURT OF ORISSA
Decided on June 28,1988

Aswini Kumar Daspattanayak And Ors. Appellant
VERSUS
The High Court Of Orissa And Ors. Respondents


Referred Judgements :-

MANMOHAN KAUSIK V. STATE OF RAJASTHAN [REFERRED TO]
RAJENDRA SINHA AND ORS. V. THE STATE OF BIHAR AND ORS. [REFERRED TO]
PARSHOTAM LAL DHINGRA VS. UNION OF INDIA [REFERRED TO]
STATE OF PUNJAB VS. DHARAM SINGH [REFERRED TO]
S B PATWARDHAN K V RAMKRISHNA VS. STATE OF MAHARASHTRA:STATE OF GUJARAT [REFERRED TO]
BALESHWAR DASS ARHANT PRASAD JAIN VS. STATE OF UTTAR PRADESH [REFERRED TO]
O P SINGLA SADHU RAM VS. UNION OF INDIA [REFERRED TO]
G K DUDANI STATE OF GUJARAT VS. S D SHARMA:S D SHARMA [REFERRED TO]
G C GUPTA VS. N K PANDEY [REFERRED TO]
NIRMAL KUMAR CHOUDHARY VS. STATE OF BIHAR [REFERRED TO]
PRATAP CHANDRA ROUT VS. STATE OF ORISSA [REFERRED TO]


JUDGEMENT

H.L.Agrawal, J. - (1.)THE age old controversy of inter se seniority has once again fallen for consideration in this writ application under Article 226 of the Constitution of India. The dispute is between the 28 Petitioners, appointed .in the Orissa Judicial Service (Class -II) under the Emergency Recruitment Rules, 1974, and opposite parties 3 to 30, appointed under the regular 1964 Rules in the same branch during the same period.
(2.)THE facts:
After the coming into force of the new Code of Criminal Procedure, which contemplated separation of the judiciary from the executive, the scheme of separation was introduced in the State of Orissa phase -wise. In this case, we are concerned with the introduction of the scheme in the district of Phulbani, Koraput, Kalahandi and Balangir, where, criminal justice, which was administered under the old Code of Criminal Procedure by the Executive Magistrates, was to be performed by the Judicial Magistrate under the provisions of the new Code. That required recruitment/appointment of judicial officers in O. J. S. Class -II on emergency basis. The existing rules, namely, the Orissa Judicial Service Rules, 1964 (for short 'the 1964 Rules '), governing the appointment of Munsifs, contained a lengthy procedure of a written test and the like. Therefore, the High Court made a proposal to the State Government for adopting a different set of rules under the Court 's letter dated 22 -6 -1973 with request for sanctioning emergency recruitment of 35 temporary Munsifs to fill up the vacancies in the year 1973 -74. The draft rules of recruitment, known as the Orissa -Judicial Service, Class -II (Munsifs) (Emergency Recruitment) Rules, 1974 (for short 'the 1974 Rules ') were approved by the Government. I shall deal with the relevant rules and the details of the scheme of appointment under these rules hereinafter.

After the enforcement of these rules, the High Court in its letter dated 24 -9 -1974 recommended to the State Government for recruitment of 35 temporary Munsifs by way of temporary addition to the cadre. It may be mentioned here that the cadre strength of the Munsifs (O.J.S. Class -II) at that time was 161 and there were 65 vacancies.

Before the issuance of the advertisement for recruitment of temporary Munsifs (as per Annexure 1), the High Court had also recommended to the State Government for recruitment of 35 probationary Munsifs under the 1964 Rules in the year 1974 -75, and, in due course an advertisement (No. 14 of 1974 -75 dated 26 -12 -1974 (Annexure 3) was issued for recruitment of 30 probationary Munsifs. From the above facts, it is obvious that the proposal was to appoint 70 officers against the existing 65 vacancies in the cadre. Petitioners 1 to 28 and opposite parties 3 to 30 had submitted applications under the respective advertisements.

The 1964 Rules required the candidates to be not below 21 years and above 28 years of age on 1 -8 -1974. Any experience of practice at the Bar was not required. The 1974 Rules, on the other hand, required the candidates to be not below 28 years and above 42 years of age on 1 -8 -1974, and that they must have practised at the Bar for at least 5 years by the last date fixed for submission 'of the application, i.e., 12 -3 -1975. The mode of selection was not by any written examination but by only a viva voce test by the Orissa Public Service Commission.

The Public Service Commission, however, invited applications for recruitment of only 31 temporary Munsifs vide Advertisement No. 19 of 1974 -75 dated 27 -1 -1975 (Annexure 1).

The Petitioners were interviewed by the Commission from 2nd May to 16th May, 1975 and on being selected were appointed as temporary Munsifs (0. J. S. Class II). Similarly, opposite parties 3 to 30 appeared at the competitive examination and were appointed as Munsifs on probation.

Undisputedly, the Petitioners were appointed in batches under different Notifications issued between 1 -8 -1975 and 1 -5 -1976 and they joined their posts on different dates between 11 -8 -1975 and 12 -5 -1976. Since the appointees under the 1964 Rules (Opposite parties 3 to 30) had similarly joined similarly in different batches under Notifications issued between 21 -7 -1976 and 22 -8 -1976, in the Civil List of the year 1976, the Petitioners were placed above them. It is to be seen that under Rule 26 of the 1974 Rules, every temporary Munsif has to pass a departmental examination within one year from the date of his appointment and, on passing the departmental examination, he becomes eligible for absorption in the cadre, as also indicated in Rule 6 -B of the 1974 Rules.

(3.)FROM the facts stated, it would be evident that the Petitioners had already passed the departmental examination contemplated under the rules much before the probationary Munsifs had completed their period of probation and had not even put in more than a year of service from the date of their appointment.
We have seen that although there were substantive vacancies in the cadre right from the date of issuance of -the notifications and the Petitioners and most of the opposite parties had undergone all the requisite formalities which entitle confirmation, the matter of confirmation was considered by the Full Court only on 18th March, 1981, ''and it was decided that all the officers entitled for confirmation except Shri B. K. Aich and Shri A. C. Patnaik (Petitioner Nos. 27 and 28) whose cases were to be reviewed six months thereafter should be confirmed. The question of seniority, however, were not decided in this meeting.



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