ANANTA KUMAR Vs. STATE OF ORISSA

JUDGEMENT

(1.) The three petitioners, who were initially appointed as Sub-Deputy Collectors (members of Orissa Subordinate Administrative Service, for short O. S. A. S.-III) and were integrated into Orissa Administrative Service Class-II (for short O. A. S.-II) by Government Resolution dated 21-12-73 (Annexure-2), have prayed for quashing of the Government decision regarding their seniority as contained in Annexure-14 and for a direction that they should be placed over the direct recruits as well as the promotees of the years 1970 and 1971.

(2.) The petitioners' case is as follows:- Prior to 7-1-1972 there were two cadres, namely, O. A. S.-II and O. S. A. S.-III. The members of O. A. S.-II were known as Deputy Collectors and those of O. S. A. S.-III as Sub-Deputy Collectors. Recruitment to O. A. S.-II was regulated by a set of rules known as Orissa Administrative Service Class-II (Recruitment) Rules, 1959 (in short the Recruitment Rules of 1959) and recruitment to O. S. A. S.-III was regulated by Orissa Subordinate Administrative Service (Recruitment) Rules, 1959. Petitioner No. 1 (who has retired from service in the meantime) was appointed as a Sub-Deputy Collector (O. S. A. S.-III) on 29-4-54. Petitioner No. 2 was similarly appointed on 31-8-1955 and petitioner No. 3 on 4-5-57. Opposite party Nos. 4 to 18 and Nos. 30 to 56 became members of O. A. S.-II on and from 21-12-1973 by virtue of the resolution (Annexure-2) along with the petitioners. Opposite party Nos. 19 to 29 and Nos. 57 to 80 are the direct recruits to O. A. S. II and they were treated as recruits of the years 1970 and 1971 respectively. (Opposite party Nos. 6, 64 and 77 died during the pendency of this writ petition). The petitioners were senior to opposite party Nos. 4 to 18 and Nos. 30 to 56 in O. S. A. S.-III cadre as also in O. A. S.-II (Junior Branch). According to the petitioners an artificial discrimination was being maintained before the O. A. S.-II and O.S.A.S. III cadres, there being no real difference between the officers inasmuch as they discharged identical duties. A persistent demand was being made to abolish the distinction to have a single cadre. A high power Committee was, therefore, constituted by the Government consisting of the Chief Secretary, Additional Development Commissioner, Secretaries of the Finance and Revenue Departments to consider the rationalisation of the two cadres. The Committee after its deliberations recommended to have a single cadre known as the O.A.S.-II with a senior branch (S. B.) and a junior branch (J. B.) so that all the existing O. A. S. officers should be absorbed in O.A.S.-II (S. B.) and all O.S.A.S.-III officers should be absorbed in O.A.S.-II (J. B.). It was decided that the total integration of the two branches was to be completed in a phased manner within a period of about ten years which would be achieved progressively by not filling up the vacancies in the junior branch that would arise on account of promotion to the senior branch as also on account of retirement etc. and that further recruitment to the O.A.S.-II (J. B.) would be completely stopped. In this context Government of Orissa (0. P. No. 1) in the Political and Services Department passed a resolution dated 7-1-72 (Annexure-1). The main features of Annexure 1 were that the aforesaid two separate cadres were abolished and single cadre of O.A.S.-II with a senior and a junior branch was constituted. The incumbents of the existing O.A.S.-II cadre were absorbed in O.A.S.-II (S. B.), and those of O.S.A.S.-III cadre were absorbed in O. A. S.-II (J. B.). The total integration of these two branches was contemplated to be completed in a phased manner in a period of about ten years. This was to be achieved progressively by not filling up the vacancies in the junior branch to be caused on account of promotion to the senior branch and also on account of retirement etc. The cadre strength in the senior branch was fixed at 698 and in junior branch at 412. In fact there were 441 officers in the O.A.S.-II (S. B.) and 621 officers in O.A.S.-II (J. B.). Thus there were 257 vacancies in O. A. S.-II (S. B.) and 209 officers in excess of the prescribed cadre strength in the O.A.S.-II (J. B.). Government's action in not filling up the 257 vacancies in the O. A. S.-II (S. B.) by promotion from O.A.S. II (J. B.) was from the very inception mala fide and motivated. Even after the resolution dated 7-1-72. a distinction was sought to be maintained within the cadre itself between the senior branch and the junior branch. The continuance of the distinction was not very much to the liking of the 'O.A.S.-II (J. B.) officers and their discontentment did not abate. The continuance of the distinction was considered irrational; since having accepted in principle that the two branches would be merged because of their inherent identity in all aspects it was not longer possible to have postponed the complete merger and put all officers in part in the unified cadre. This mistake was realised by the State Government and instead of waiting for the phased manner of integration for a period of ten years, a complete merger was effected by Resolution No. 119468-Gen. dated 21-12-1973 (Annexure 2). A complete integrated cadre was constituted which was known as O.A.S.-II. In view of this resolution all the officers holding posts borne in the cadre of O.A.S.II (J. B.) or the posts treated as temporary addition to the said cadre were to be absorbed with immediate effect in the cadre to be styled as O.A.S.-II. The officer borne in O.A.S.-II (J. B.) and holding posts treated as temporary addition to the said cadre would be assigned positions in the gradation list in the new cadre of O. A.S. II below the last officer holding the post in O.A.S.-II (S. B.). It was, however, subject to the condition that the officers whose cases were before the Orissa Public Service Commission (for short O.P.S.C.) and who would be considered suitable for promotion to the O.A.S.-II (S. B.) against the promotion quota of 1970 and 1971 would be assigned appropriate positions later in accordance with rules. The inter se seniority of other officers borne in the cadre of O.A.S.-II (J. B.) as it stood on the date of merger would be maintained. It was further laid down that the officers borne in O. A. S.-II (S. B.) and O.A.S. II (J. B.) who had been confirmed in the respective cadres on the date of issue of the resolution would be deemed to have been confirmed in the new cadre of O.A.S.-II. According to the petitioners, in the year 1970 the O.P.S.C. advertised two vacancies of O.A.S.-II and four vacancies of O.A.S.-III to be filled up by direct recruitment. For this purport written examination was held in 1971 and viva voce in 1972, as would appear from the extract of the annual report of O.P.S.C. for the year 1971-72 (Annexure-3). Against the above notified vacancies, eleven Deputy Collectors and no Sub-Deputy Collectors were recruited directly vide Government notification dated 16-3-73 (Annexure-4). The above direct recruits are opposite party Nos. 19 to 29. They joined the O.A.S.-II (S. B.) service between 23-3-1973 and 7-4-73. Similarly, for the year 1971, ten vacancies of O.A.S.-II and five vacancies of O.S.A.S.-III were advertised to be filled up by direct recruitment for which written examination was held in 1972 and viva voce in 1973 as would appear from the extract of the annual report of the O.P.S.C for the year 1973-74 (Annexure-7). Against the above notified vacancies, twenty-seven Deputy Collectors and no Sub-Deputy Collectors were recruited directly. Out of them twenty-four direct recruits (opposite party Nos. 57 to 80) joined their service between 9-5-74 and 21-9-74. The cases of 105 O.A.S.-II (J. B.) officers were referred to the O. P. S. C. on 6-9-73 for consideration and recommendation for promotion to O.A.S.-II (S. B.) against the promotion quota of 1970 and 1971. The O.P.S.C. recommended the names of 52 O.A.S.-II (J. B ) officers as suitable for promotion to O.A.S.-11 (S. B.), as would appear from the extract of the annual report of O P.S.C. for the year 1975-76 (Annexure-13). The Government fixed the ranking of the officers, i.e. promotees of 1970 and 1971 (opposite party Nos. 4 to 18 and Nos. 30 to 56) and the direct recruits of the said years (opposite party Nos. 19 to 29 and Nos. 57 to 80) in the following mariner: -

(3.) Opposite party Nos.1 (State of Orissa), 2 (Secretary, Political and Services Department),11, 19, 22, 26, 36, 57, 60, 63, 66, 76, 78 and 79 have filed their counters. They have challenged the writ petition mainly on the following grounds amongst others:- The resolution in Annexure-1 did not provide for abolition of O.A.S.-II cadre or repeal of the Recruitment Rules of 1959. It provided for the principle of integration of Sub-Deputy Collectors to O.A.S.-II, The name of the cadre was temporarily changed as O.A.S.-II (S. B.) and O.A.S.-II (J. B.) for maintaining distinction between the two classes. The ultimate object was to retain O.A.S.-II in which the Sub-Deputy Collectors were to be integrated. Despite the Government resolution, O.A.S-I1 cadre continued to exist, though under a different name, i.e., O.A.S.-II (S. B.), Recruitment to O.A.S.-II continued to be made in accordance with the Recruitment Rules of 1959 until such Rules were repealed in 1978. By the resolution dated 21-12-1973 (Annexure-2) integration of O.S.A.S.III (Sub-Deputy Collectors) into O.A.S.-II was made and the O.A.S.-II (J. B.) was abolished. The operation of the Recruitment Rules of 1959 was not affected, except that a part of the said Rules dealing with recruitment to the service by promotion from among the members of O.S.A.S.-III became infructuous and inoperative. The provision in R. 11 of the Recruitment Rules of 1959 that the promotees of any year should be placed above the direct recruits of the said year was maintained. The petitioners were not promoted to O.A.S.-II in accordance with the procedure prescribed in the Recruitment Rules of 1959 and the regulations made thereunder, i.e. Orissa Administrative Service Class-II (Appointment by Promotion, Transfer and Selection) Regulations, 1959, as such they were not classified as promotees. Their status cannot be equated with 'promotees' or 'direct recruits'. Accordingly, their placement in Annexure-14 below all the officers who on applying the principle of 'year of allotment' have been treated as direct recruits or promotees of the years 1970 and 1971 is correct. The provision that the promotees of a particular year should be placed above the direct recruits and the express provision for determining the year of allotment of the promotees clearly show that the 'year of allotment' of the direct recruits should also be determined on the basis of vacancies that arise in the service. This practice of determining the year of allotment of direct recruits has been traditionally followed in all previous years. Similarly, the provisions of Orissa Administrative Service Class-II (Appointment by Competitive Examination) Regulations, 1959 and the Orissa Administrative Service Class-II (Appointment to the Selection Grade) Rules, 1967 go to prove the 'year of allotment' assigned to the officers. In the civil list also it would be found that both in respect of the promotees and direct recruits, the date of appointment as well as the year of allotment is separately mentioned. Annexure-14 has been prepared giving due regard to R. 11 of the Recruitment Rules of 1959 as well as the special provision contained in the resolution (Annexure-2). Keeping in view the principles, opposite party Nos. 4 to 18, who were recommended by the O.P.S.C. for promotion for the year 1970, have been placed above the direct recruits of that year. Similarly, opposite party Nos. 30 to 56, who were recommended by the O.P.S.C. for promotion for the year 1971, have been placed above the direct recruits of that year. On applying the principle of 'year of allotment', opposite party numbers 19 to 20 and Nos. 57 to 80 have been treated as the direct recruits of the years 1970 and 1971 respectively. The opposite parties, therefore, assert that the writ petition has no merit and should be dismissed.