AMIR CHAND NAYAK Vs. SPECIAL SECRETARY, G A DEPT

JUDGEMENT

(1.) This writ application has been filed challenging order of the Orissa Administrative Tribunal, Cuttack Bench, Cuttack in O.A.No.392(C) of 2010. The petitioner was respondent no.4 before the Tribunal and opposite party no.4 was the applicant.

(2.) Case of opposite party no.4 is that he was appointed as O.F.S. Class-II officer on 31.10.1988 whereas the petitioner was appointed as O.F.S. Class-II officer on 12.12.1988. The seniority of opposite party no.4 as per office order dated 1.2.1989 was fixed at serial no.8 whereas seniority of the present petitioner was fixed at serial no.34. The provisional gradation list was issued by the Finance Department in respect of all the officers belonging to O.F.S. Class-II cadre as on 31.3.1997 and was circulated amongst the employees on 5.11.1997. In the said provisional gradation list, opposite party no.4 was placed at serial no.105 whereas petitioner was placed at serial no.128. The Selection Board prepared a list of officers for promotion from O.F.S. Class-II to O.F.S. Class-I (Junior Branch) on 21.8.1998. The Board recommended the name of both the petitioner and opposite party no.4 but the petitioner was promoted conditionally to O.F.S. Class-I (Junior Branch) pending final decision in the matter of fixation of seniority of O.F.S. Officers. Opposite party no.4 was promoted to O.F.S. Class-I (Junior Branch) on ad hoc basis by notification dated 5.9.2002. Subsequently, opposite party no.4 was promoted on regular basis to O.F.S. Class-I (Junior Branch) in consultation with O.P.S.C. in the year 2005. By that time the petitioner was working as O.F.S. Class-I (Junior Branch). A decision was taken that opposite party no.4 along with others would maintain their inter se seniority as per the feeder cadre. Surprisingly, the Finance Department prepared a disposition list of O.F.S. Class-I (Junior Branch) Officers on 1.10.2006 in which opposite party no.4 was placed at serial no.57 and the petitioner was placed at serial no.17. Earlier decision for fixation of inter se seniority as per the feeder cadre was not taken into account for which opposite party no.4 filed an application ventilating his grievances on 2.1.2007 claiming for proper placement in the disposition list basing on the ratio of the decision of the Hon'ble Supreme Court in the case of M. Nagaraj and others. Since the representation of opposite party no.4 was not considered, he approached the Tribunal in O.A.No.976(C) of 2007. The said Original Application was disposed of directing the State authorities to take a decision on the representation within a specified time. No decision having been taken on the said representation in spite of the order of the Tribunal, opposite party no.4 approached the Tribunal in the present Original Application. Prayer in the Original Application was for a declaration that the notification dated 10.2.2010 whereby the petitioner was promoted to the post of O.F.S. Class-I Super Time Scale on ad hoc basis, is not only violative of Articles 14 and 16 of the Constitution of India, ORV Act, 1975 but also violative of the Orissa Finance Service Rules, 1979. A further prayer was made to restore the inter se seniority in the feeder cadre i.e. O.F.S. Class-II. A prayer was also made on behalf of opposite party no.4 not to give the petitioner further promotion until finalization of inter se seniority. Opposite party no.4 before the Tribunal relied on decision of the Hon'ble Supreme Court in the case of Ajit Singh and others Vrs. State of Punjab and others, 1999 AIR(SC) 3471, M. Nagraj and others Vrs. Union of India and others, 2006 8 SCC 212, Suraj Bhan Meena and another Vrs. State of Rajasthan and others (S.L.P.(Civil) No.6485 of 2010 and the decisions of Orissa High Court in the case of Man Mohan Mishra and others Vrs. State of Orissa and others, 2011 1 ILR(Cut) 41and Lagnajit Ray and others Vrs. State of Orissa and others, 2011 1 OrissaLR 689. The stand of the State authorities before the Tribunal was that as per the General Administration Department Resolution dated 20.3.2002, the Government servants belonging to SC/ST category on promotion to higher grade i.e. up to lowest rank of O.F.S. Class-I(Junior Branch) will retain their seniority there. Since O.F.S. Class-I(Junior Branch) is the lowest rank, O.F.S Class-I, the inter se seniority of the petitioner was fixed from the date of his promotion to O.F.S. Class-I (Junior Branch) grade. The 'catch up' principle having been withdrawn vide General Administration Department Resolution dated 20.3.2002 with effect from the date 17.6.1995, candidates belonging to unreserved category cannot claim seniority in O.F.S. Class-I (Junior Branch) grade on the ground of being senior in the base level post i.e. O.F.S. Class- II. The petitioner having been promoted to O.F.S. Class-I (Junior Branch) prior to opposite party no.4 by virtue of rule of reservation, he has been treated as senior to opposite party no.4. Similar is the stand taken by the petitioner before the Tribunal.

(3.) The undisputed facts are that in O.F.S. Class-II, the petitioner was appointed on 12.12.1988 whereas opposite party no.4 was appointed on 31.10.1988. In the provisional gradation list on 31.3.1997, opposite party no.4 was placed at serial no.105 whereas petitioner was placed at serial no.128. Therefore, in the cadre of O.F.S. Class-II, opposite party no.4 was senior to the petitioner. So far as promotion to O.F.S. Class-I (Junior Branch) is concerned, the petitioner was promoted in the year 1998 whereas opposite party no.4 was promoted in the year 2002. It is also not in dispute that while the petitioner was continuing in the cadre of O.F.S. Class-I (Junior Branch), opposite party no.4 was promoted to the said cadre. In the case of Ajit Singh and others Vrs. State of Punjab and others, 1999 AIR(SC) 3471it was held that roster point promotees (reserved category) cannot count their seniority in the promoted category from the date of their continuous officiation in the promoted post, vis- -vis the general candidates who were senior to them in the lower category and who were later promoted. On the other hand, the senior general candidate at the lower level, if he reaches the promotional level later but before the further promotion of the reserved candidate he will have to be treated as senior, at the promotional level, to the reserved candidate even if the reserved candidate was earlier promoted to that level. The above decision of the Hon'ble Supreme Court is popularly known as 'catch up' principle.