MUKTI RANJAN ACHARYA Vs. STATE OF ORISSA

JUDGEMENT

(1.) THE present opposite party Nos.3 to 13 filed Original Application No.1187 (C) of 2009 before the State Administrative Tribunal, Cuttack Bench, Cuttack under Section 19 of the Administrative Tribunals Act, 1985. Their case in the said Original Application is that they all are members of Orissa Subordinate Finance Service (in short 'OSFS') and presently working as Assistant Commercial Tax Officers, which is otherwise known as Inspector of Commercial Tax and are entitled to be promoted to Orissa Finance Service, Class -II. Recruitment to Orissa Finance Service is governed by the Orissa Finance Service Rules, 1979 (in short 1979 Rules') framed by the Government of Orissa in exercise of power under Article 309 of the Constitution of India. Recruitment to Junior Branch, of Orissa Finance Service, Class -II (in short 'OFS -II') is made from three sources, i.e., 50% by direct recruitment, 30% by way of promotion from the cadre of Orissa Subordinate Finance Service (Commercial Tax Branch), Orissa Subordinate Finance Service (Audit Branch) and Orissa Subordinate Finance Service (Treasury Branch), in the ratio of 5:4:1 and the rest 20% of the posts are to be filled up by way of selection from amongst other employees working in the Finance Department and in the Commercial Tax and other Subordinate Officers. It is also provided in Rule -18 of the Rules that the persons appointed by promotion shall be en bloc senior to the persons appointed by way of direct recruitment and selection in a Financial Year. As per the gradation list dated 09.12.2003 names of the applicants appear at SI.Nos.101, 106 to 113, 119 and 132 respectively. They have also passed departmental examination as required under the 1979 Rules. They were entitled to be promoted to OFS -II and that promotions from their cadre to OFS -II has been given upto SL. No.100 of their gradation list leaving persons from SI.No.101 onwards. The last promotion order was issued on 18.04.2007. On 23.10.2008, a letter was issued to the Commissioner of Commercial Tax, Orissa (opposite party No.2) calling for CCRs of ACTOs up to SI.No.140 of the gradation list. It was also indicated therein that the total number of promotional vacancies meant for ACTOs is 20. In pursuance of such letter, opposite party No.2 forwarded up to date list of ACTOs. The Government letter and up to date gradation list have been filed as Annexure -3 series to the Original Application. In the meantime, on 08.12.2008 and 28.02.2009 appointment to OFS -II by way of selection have been made but the case of the applicants for promotion remained pending. It is stated that since the process for filling up the promotional vacancies in OFS -II for the years 2006 -07 and 2007 -08 had already been started, there was no justification on the part of the opposite parties not to fill up the promotional vacancies, while posts in OFS -II are being filled up by selection. It is the further case of the applicants that while the matter stood thus, the Government suddenly issued a resolution dated 28.02.2009 (Annexure 7 to the Original Application) deciding to restructure the cadre of Orissa Finance Service and to constitute a new service known as Orissa Taxation and Accounts Service (in short the 'OT & AS), upgrading OFS Class -II to OFS Class -I (Junior). The OT and AS was proposed to be filled up 50% by way of direct recruitment and 50% by lateral selection of Officers of outstanding merit from amongst the Orissa Subordinate Finance Service cadre and the other eligible subordinate cadres of employees as may be prescribed by the Government from time to time. The resolution under Annexure -7 was given immediate effect without bringing any amendment in the 1979 Rules and without framing the proposed OT and AS Rules. It is stated that by issuing the resolution the Government made an attempt to supplant the existing Service Rules, 1979 which is in violation of Article 14 of Constitution. It is contended that the resolution cannot have the effect of taking away the rights of the applicants for promotion to OFS -II, the process for which had already been started and therefore, the resolution can have no application to the promotional vacancies in OFS -II of the years 2006 -07 and 2007 -08, to the detriment of the applicants, who are continuing in their cadre since the last 17 to 18 years without getting any promotion.

(2.) WITH the aforesaid assertions and contentions the applicants sought for the following reliefs in the Original Application:

(3.) BY order No.3 dated 04.01.2010, this Court passed the following interim order in Misc. Case No.56 of 2010 :