KRUPASINDHU NAYAK Vs. GOVERNMENT OF ORISSA

JUDGEMENT

(1.) THE subject matter of challenge in this writ petition is a judgment and order -dated 24.09.2002 passed by the Orissa Administrative Tribunal, Bhubaneswar (hereinafter referred to as "the Tribunal"). By the said judgment and order, the Tribunal allowed the Original Application filed by one Keshab Chandra Behera, who is opposite party No.4 in this writ petition. The dispute was between the said Keshab Chandra Behera and the present petitioner Krupasindhu Nayak who was respondent No.4 in the Original Application before the Tribunal.

(2.) THE material facts of the case are enumerated below : - Both the petitioner (Krupasindhu Nayak) and opposite party No.4 (Keshab Chandra Behera) were working as Senior Assistants in the office of the Orissa Public Service Commission, Cuttack. The seniority of Shri Nayak in the rank of Senior Assistant over Shri Behera is not disputed and has virtually been conceded as recorded in the judgment and the order of the Tribunal. It is also not in dispute that Shri Nayak has been confirmed in the post of Senior Assistant prior to Shri Behera. But the dispute arose when Shri Nayak, being a Law Graduate, was sent on deputation as Legal Assistant/Assistant Law Officer in the same office, since the said post had fallen vacant. It may be noted that while Shri Nayak was working as a Legal Assistant, his lien in the previous post of Senior Assistant was maintained. This fact is also not disputed. In the meantime, the question of promotion to the post of Section Officer Level -II (Tabulator) came up for consideration and in that post, Shri Nayak was promoted some time in the year 1996. This gave rise to the Original Application (O.A. No.1944 of 1996) being filed by Shri Behera.

(3.) IN this writ petition, Mr. Rath, learned counsel for the petitioner specifically challenged those directions of the Tribunal on various grounds. The first ground of challenge was that the Tribunal cannot, in exercise of its power of judicial review, direct who is to be promoted at what point of time to which post. It is specifically averred that since the Tribunal has not set aside the promotion of Shri Nayak, the direction that Shri Behera would be senior to Shri Nayak is improper. Learned counsel submitted that at the relevant point of time there was only one vacancy in the post of Section Officer (Level II) which has been occupied by Shri Nayak in 1996 by virtue of his promotion. Since his promotion has not been set aside, another person, namely, Shri Behera cannot be directed to be promoted by the Tribunal to that post in the absence of any vacancy.