LAGNAJIT RAY Vs. STATE OF ORISSA

JUDGEMENT

(1.) The Petitioners in this batch of writ petitions challenge the orders passed by the Orissa Administrative Tribunal dated 17.4.2008 in O.A. No. 904 (C) of 2008, dated 1.12.2009 in O.A. No. 3006 (C) of 2009, dated 21.4.2008 in O.A. No. 979(C) of 2008 and dated 9.5.2008 in O.A. No. 1097 (C) of 2008, vide Annexure-12, and also the resolution of the General Administration Department of the State Government dated 20.3.2002, vide Annexure-5, and the gradation list of the Orissa Administrative Services, Class-I (Junior Branch) (in short "OAS-I (JB)") dated 3.3.2008, vide Annexure-7. Since common questions of fact and law are involved in the writ petitions, they were heard together and are being disposed of by this common judgment.

(2.) The Petitioners were appointed to O.A.S-II posts being selected by the Orissa Public Service Commission. Some of them were recruited in 1983 and some others in 1984 and 1987. They were assigned different ranks in the merit lists prepared for their respective batches by the OPSC. In the respective merit list, persons belonging to S.C. & S.T. category, who were appointed as against reserved vacancies, were placed much below in the list than the Petitioners. Thus, in terms of the merit list/panel, the Petitioners were senior to the appointees belonging to S.C. & S.T. category recruited in the same recruitment year. After rendering service in the post of OAS-II, the Petitioners having been found suitable by the D.P.C. were promoted and appointed to the next higher rank, i.e., O.A.S-I (JB) vide Government Notification dated 26.8.2000 (Annexure-2). The Petitioners joined the promotional posts and have been continuing as such since then. However, many junior OAS Officers belonging to the SC & ST category recruited along with the Petitioners or even in subsequent batches in different recruitment years were also given promotion to the rank of O.A.S.-I (JB) against reserved vacancies in between 1995 and 2000 as per the Orissa Reservation of Vacancies in Posts and Services (for Scheduled Castes and Scheduled Tribes) Act and the Rules, 1975 and 1976 (in short, "O.R.V. Act & Rules"). It is stated by the Petitioners that the promotions made both in favour of reserved categories and unreserved categories including the Petitioners have not yet been concurred by the OPSC since the principles determining seniority inter se and the gradation list prepared from time to time of the officers in the rank of O.A.S.-II and O.A.S.-I (JB) became the subject-matter of several protracted litigations. However, the roster point promotees belonging to the SC & ST category were given promotion to the rank of O.A.S.-I (JB) against reserved vacancies earlier irrespective of their original seniority below the general category recruits like the Petitioners. But the original seniority position in the cadre of O.A.S.-II prepared by the OPSC was retained in the O.A.S.-I (JB) without any changes on the basis of the law laid down by the Hon'ble Apex Court in the case of Union of India and Ors. v. Virpal Singh Chauhan and Ors., 1996 AIR(SC) 448. Hence, irrespective of getting promotion in subsequent years, the inter se seniority of the Petitioners vis-?-vis the S.C. & S.T. roster point promotees in the rank of O.A.S.-I (JB) was maintained in the seniority/disposition list prepared for the rank of O.A.S-I (JB) in the year 2002 and also in the year 2004 as per the panel position prepared by the OPSC for the cadre of O.A.S.-II. The copy of the seniority list dated 16.5.2001-of officers of O.A.S-I (JB) cadre has been filed as Annexure-3. Such seniority list was maintained in view of the 'Catch Up Rule' evolved by the Hon'ble Apex Court in the case of Virpal Singh Chauhan (supra), which was also set at rest by the Apex Court in the case of Ajit Singh and Ors. v. The State of Punjab and Ors., 1999 AIR(SC) 3471 (herein after "Ajit Singh Januja-II"). It is stated that Article 16(4A) was incorporated in the Constitution by way of 77th and 85th Amendment of the Constitution enabling the State to grant accelerated promotion along with consequential seniority to SC & ST reserved category employees. While the validity of such constitutional amendments was pending adjudication before the Hon'ble Apex Court in several writ petitions, the Government of India in the Department of Personnel, Public Grievances and Pension (D.O.P&T) by its Memorandum dated 21.1.2002 under Annexure-4 decided to grant benefit of accelerated promotion along with consequential seniority in favour of roster point promotees belonging to the S.C. & S.T. category employees under the Central Government in accordance with the constitutional amendment. It is alleged that the Government of Orissa without appreciating the justification for grant of additional benefit of accelerated seniority to S.C. & S.T. category promotees working in different cadres of civil services/posts, decided to grant such benefit by mechanically accepting or adopting the D.O.P.T Office Memorandum under Annexure-4 and issued the G.A. Department resolution dated 20.3.2002 granting such benefit of accelerated promotion with consequential seniority to S.C. & S.T. promotees under Annexure-5.

(3.) It is further stated by the Petitioners that the aforesaid G.A. Department resolution dated 20.3.2002 under Annexure-5 was challenged before the Hon'ble Apex Court in W.P.(C) No. 453 of 2002 by present Petitioner No. 5-Srimanta Mishra and some others wherein by order dated 2.9.2002 the Hon'ble Apex Court while directing the writ petition to be heard analogously with W.P.(C) No. 61 of 2002 M. Nagraj and Ors. v. Union of India and Ors. as an interim measure further directed the State-Respondents not to affect the standing seniority of the Petitioners during the pendency of the said writ petition. It is not disputed that subsequent to disposal of the writ petition in the case of M. Nagraj and others, W.P.(C) No. 453 of 2002 was disposed of by the Hon'ble Supreme Court on 11.3.2010 giving liberty to the Petitioners to move the High Court and while the matter stood thus, the State Government in the Revenue Department prepared a provisional gradation list of officers of O.A.S.-I (JB) by taking the very Government Resolution dated 20.3.2002 (Annexure-5) as its basis. By virtue of grant of consequential seniority to the S.C. & S.T. reserved promotees, the provisional gradation list has been recast and placed for circulation on 3.3.2008 changing/unsettling the original seniority position in the cadre to the detriment of the Petitioners. The provisional gradation list dated 3.3.2008 has been filed as Annexure-7. The Petitioners filed objections to the provisional gradation list challenging the very basis of its preparation and citing the principles decided by the Hon'ble Apex Court in the case of M. Nagaraj and Ors. v. Union of India and Ors., 2006 8 SCC 212. While during the pendency of the representations the Petitioners apprehended that their objections would be mechanically rejected and promotion to the next higher cadre would be considered by the D.P.C. at short notice, they filed Original Application No. 904(C) of 2008 before the Orissa Administrative Tribunal, Cuttack Bench, Cuttack, inter alia for quashing the Government Resolution dated 20.3.2002 under Annexure-5 and the provisional gradation list dated 3.3.2008 under Annexure-7. Vide order under Anneuxre-12, the Tribunal disposed of the Original Application holding the same as premature and directed the State-Respondent to dispose of the Petitioners' objections.