- (1.) Pravanjan Patnaik, respondent in the appeal herein, was working as Upper Division Assistant Grade II in the ministerial service of the State of orissa. He qualified the final accounts examination in December 1966 and was promoted to the post of Upper Division Assistant Grade I on 23/1/1967. Sixteen Upper Division Assistants who were senior to Patnaik and who had not qualified the final accounts examination had already been promoted as Upper Division Assistants Grade I on various dates earlier to the promotion of Patnaik. Patnaik was placed junior to the sixteen officials in the cadre of Upper Division Assistants Grade 1. He challenged his seniority position before the orissa Administrative tribunal on the ground that having qualified the examination earlier to the sixteen officials, he was entitled to be placed senior to them in the cadre of Upper Division Assistants Grade I despite his being junior to them in the lower cadre. It is not disputed that the sixteen officials were not impleaded as parties before the tribunal. The tribunal allowed the contention of Patnaik and declared him senior to the sixteen officials. This appeal by the State of orissa is against the judgment of the tribunal.
(2.) Promotion to the post of Upper Division Assistant Grade I is governed by the rules called orissa Ministerial Service (Method of Recruitment and Conditions of Service of Clerks and Assistants in the District Offices and Offices of the Heads of Department) Rules, 1963 (the Rules). Rules 18 (2, 21 (1 (b) , 24 (2 and 25 which are relevant are reproduced hereunder: "18.(2 The seniority inter se of the Upper Division Grade II Assistants or the Upper Division Grade I Assistants shall be determined with reference to the date of issue of the order of their promotion to the posts of Upper Division Grade II Assistant or Grade I Assistant, as the case may be: Provided that if the date of issue of the order of promotion is the same in respect of two or more such Assistants, their seniority inter se shall be determined according to the total length of their service under government. 21. (1 (A) Promotion to the higher posts in the cadre of the Ministerial Service of the offices of Heads of Department shall be subject to the passing of the departmental examinations and shall be based on merit and suitability in all respects with due regard to seniority and be made in the following manner namely: * * * (B) promotion to the posts of Upper Division Grade I Assistants shall be made from amongst the Upper Division Grade II Assistants who have passed the Final Accounts Examination laid down in Rule 24. 24. (2 The Junior Upper Division Clerks of the District Offices and the Upper Division Grade II Assistants of the Offices of the Heads of Department shall be required to pass the Final Accounts Examination which is held by the Board of Revenue, within five years from the date of their promotion. 25. Where any Clerk or Assistant in the Lower Division or Upper Division fails to pass the preliminary or final accounts examination as the case may be within the required period, he shall not be allowed to cross the efficiency bar in the time-scale of pay. "
(3.) Learned counsel for the appellants has further invited our attention to another set of rules called "the orissa Ministerial Service (Regularisation of Recruitment and Conditions of Service of Irregular Recruits in the Offices of Heads of Department, District Offices and Subordinate Offices) Rules, 1975" (the 1975 Rules). Rule 5 (3 of the 1975 Rules which is relevant is as under: "5.(3 Where the candidate has not passed the Accounts Examination prescribed in Rule 24 of Recruitment Rules he shall be allowed two chances to pass the requisite examination, after these rules come into force and if he passes the examination within these chances, he shall retain his seniority inter se as an Upper Division Assistant retrospectively from the date of joining in the grade in case of direct recruits and from the date of promotion in case of promotees. In case of failure to pass the Accounts Examination within the chances specified above, he shall be reduced to the next lower rank and shall not be considered for promotion in future,";