PARAMESWAR DAYAL Vs. STATE OF ORISSA

JUDGEMENT

(1.) FACTS of this O.A., bereft of unnecessary details, are that the applicant, with Matric and ITI qualifications, was appointed as Helper in the work -charged establishment under the Rengali Irrigation Project vide office order No. 13 of 79 -80 dtd. 25.7.1979 (Annexure -1). He was promoted as Crane Operator, Grade -II, as per office order No. 2176 dt. 15.3.1980 of the Superintending Engineer, Rengali Dam Circle, (Annexure -3). A common seniority list upto 31.12.1986 of work charged Crane Operators Grade -II was published, (Annexure -4), as per which the applicant is at Sl. No.7, and Trinath Behera, Respondent No.6, at Sl. No.8. The applicant was subsequent transferred as Crane Operator Grade -III from the Rengali Dam Project to the Subarnarekha Irrigation Project in November, 1991, (Annexure -5). On coming to know that Trinath Behera, Respondent No.6, who was junior to him as per the aforesaid gradation list upto 31.12.1986 has been promoted as Crane Operator Grade -II, the applicant filed representation dtd. 18.9.1995, (Annexure -6). However, in response a stand was taken by the authorities that as Trinath Behera, Respondent No.6, had been promoted that as Crane Operator Grade -II in the Rengali Irrigation Project no decision is possible, and the matter was referred to the Superintending Engineer, Rengali Dam Circle, who vide his letter dtd. 9.8.1996 disposed the matter stating that as the applicant had not represented for promotion though the applicant was admittedly senior by one day to respondent No. 6, the same cannot be considered. The applicant represented against such promotion allowed to respondent No.6 as Crane Operator Grade -II with effect from 21.5.1981 on 7.1.2002, and then filed O.A. No. 2919 (C)/2002 which was referred to the authorities for appropriate orders on merit vide order dtd. 6.1.2003, (Annexure -11). However, in response the Government respondents passed order No. IRC -81/2003 -135 1911 WR Dtd. 17.4.2004 (Annexure -12), rejecting the claim of the applicant for promotion after the applicant's retirement on 28.4.2004, which he has sought to impugn in this case stating that the said order is not a speaking order. In this O.A. the applicant has impugned the said order dtd. 17.4.2004, (Annexure -12), and prayed for retrospective promotion as Crane Operator Grade -II with effect from 21.5.1981 with all service benefits.

(2.) COUNTER dtd. 13.11.2006 has been filed by the state respondents in this case, submitting that the applicant was appointed as Helper under the Work -charged establishment on 26.7.1979, but his education certificate could not have been produced at the time of his appointment as the same was issued on 28.9.1981 only. He was then promoted as Crane Operator, Grade -III, on 15.3.1980. It is stated that prior to introducing a common seniority list of work -charged personnel, project authorities of each project were allowing promotion to their work -charged employees on the basis of merit cum suitability and accordingly Respondent No.6 was promoted as Crane Operator, Grade -II, vide Order No. 4092 dtd. 21.5.1981 before introduction of the Common Seniority List for work -charged Crane Operator Grade -III. It is contended that the applicant did not represent for such promotion but submitted his representation to respondent No.4 on 18.5.1995 whereas respondent No.6 had already been promoted vide order No. 4092 dtd. 21.5.1981, though it is plausible that such order may not have been communicated to the applicant. It is also stated that the claim of the applicant for promotion has since been rejected after the matter was referred by the O.A.T. in order No.5 dated 6.1.2003 in O.A. 2919 (C)/2002.

(3.) HEARD learned counsel for the applicant. He submits that the applicant's case shall not be affected by limitation as promotion allowed to his junior, i.e. respondent No.6, vide Order No. 4092 dtd. 21.5.1981 was not adequately circulated. The applicant represented for such promotion only on coming to know about such promotion of his junior. He further states that the applicant has approached this Tribunal before expiry of the limitation period after rejection of his representation for promotion in order dated 17.4.2004, (Annexure -12), which he has impugned in this O.A. Learned counsel refers to the decision of the Hon'ble Apex Court in the case of Y.Ramanjaneyulu v. State of A.P., AIR 1985 SC 928, submitting that the applicant is entitled to compensatory payment in the higher grade from the date the respondent No.6, who is admittedly junior to him was promoted as Crane Operator Grade -II, ignoring the claim of the applicant. He further states that the settled seniority is not likely to be affected as the applicant who has since retired is likely to be benefited monetarily only in case this O.A. is allowed. Heard learned Addl. Standing Counsel. He points out that the applicant has neither moved the authorities or this Tribunal in time against promotion of Respondent No.6 on 21.5.1981, but represented against such allegedly incorrect promotion of Respondent No.6 for the first time on 1.8.5.1995. Hence he submits that the settled seniority of Respondent No.6 cannot be disturbed at this stage.