Orissa High Court
Debabrata Mohanty vs Rabindra Kumar Mishra And Others on 11 April, 2017
Author: S.N.Prasad
Bench: Sujit Narayan Prasad
HIGH COURT OF ORISSA: CUTTACK.
W.P.(C) Nos.3740 of 2017, 19084 of 2016.
In the matter of application under Articles 226 and 227 of the Constitution
of India.
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W.P.(C) No.3740 of 2017
Debabrata Mohanty ...... Petitioner.
- Versus-
Rabindra Kumar Mishra and Others ...... Opposite Parties.
Counsel for Petitioners : M/s. Ashok Mohanty (Sr. Advocate), B. K.
Nayak, S. K. Jena and L. Pradhan.
Counsel for Opp.Parties : Additional Government Advocate.
W.P.(C) No.19084 of 2016
State of Odisha and Another ...... Petitioners.
- Versus-
Rabindra Kumar Mishra & Others ...... Opposite Parties.
Counsel for Petitioners : Additional Government Advocate.
Counsel for Opp.Parties : M/s.Alok Prasad Nanda, S. D. Mishra, S.
Mishra, K. Sarangi, P.K. Dalai, S. Baral, J.
Pattnaik, S. C. Nayak (for O.P. No.1)
Mr.U. C. Pattnaik.
M/s. Ashok Mohanty (Sr. Advocate), B. K.
Nayak, S. K. Jena (for O.P. No.3)
M/s. K. C. Kanungo, B. M. Kar, H.V.B.R.K.
Dora;
M/s. B. K. Sharma, A. V. Senapati, S. K.
Singh, S. Palai;
2
M/s.P. K. Rath, R. N. Parija, A. K. Rout, S. K.
Pattnaik, A. Behera, P. K. Sahoo, S. K.
Behera and B. K. Dash.
PRESENT:
THE HONOURABLE KUMARI JUSTICE SANJU PANDA
&
THE HONOURABLE SHRI JUSTICE SUJIT NARAYAN PRASAD
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Date of hearing : 11.04.2017 ; Date of judgment :
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S. N. Prasad, J.Both these writ petitions, having common issue regarding fixation of inter se seniority of In-Service Degree Holder Junior Engineers, promoted as Asst. Engineers on ad hoc basis, the Stipendiary Engineers regularized in terms of the Orissa Service of Engineers (Validation of Appointment) Act, 2002 and the promotees Asst. Engineers promoted in pursuance to Orissa Service of Engineers‟ Rules, 1941 (herein after referred to as the Rules, 1941).
The issue has been raised before the Odisha Administrative Tribunal, Bhubaneswar wherein the Asst. Engineers appointed / promoted in pursuance to Rules, 1941 have been held to be senior, which is impugned in these writ petitions.
2. Brief facts of the case, in narrow compass, is that the State of Odisha has formulated a statute known as "Odisha Service of Engineers‟ Rules, 1941 for filling up of the post of Asst. Engineers, on regular basis.
The State Government had decided to appoint unemployed degree holders in various branches of engineering who had passed out from several engineering colleges since the year 1984 against the 741 posts to be designated 3 as Junior Engineers / Stipendiary Engineers in the first phase on consolidated stipend of Rs.2000/- per month with the stipulation for their absorption as engineers on regular basis after 2 years, after assessing their performance, not in pursuance to the provisions of the Rules, 1941.
The candidates who have been found to be eligible, appointed, appointment orders have been issued to the candidates, selected candidates had accepted the terms and conditions of the offer of appointment and given their joining in their respective places on respective posts. The state Government while doing so, did not proposed to reduce the 33% quote reserved for promotees, out of the remaining 67%, meant for direct recruitment, it proposed to carve out what was described as selection quota of 30% for absorption of Stipendiary Engineers to the extent of 25% of the vacancies and Degree Holder Junior Engineers against the remaining 5% vacancies. The balance of 37% of the vacancies was left to be filed up by direct recruitment from the open market. The candidates have been appointed after following the due procedures having got concurrence of the Odisha Public Service Commission.
The State Government has come out with a Legislation enacted in the name of Orissa Service of Engineers (Validation of Appointment) Act, 2002, providing therein the provision for validation of services of 799 Asst. Engineers belonging to the discipline of Civil, 57 Asst. Engineers belonging to the discipline of Mechanical and 25 Asst. Engineers belonging to the discipline of Electrical, as specified in the schedule of their names, date of birth, dates of 4 appointment and the names of department under which they are working on ad hoc basis since the date of such appointment, shall be deemed to be validly and regularly appointed under their respective department of the Government against the direct recruitment quota of the service with effect from the date of commencement of this Act.
The aggrieved persons, who were in the regular cadre of Asst. Engineers having been appointed / promoted under the Odisha Service of Engineers‟ Rules, 1941, had challenged the validity of the Validation Act, 2002 by filing series of writ petitions before this Court and this Court, while allowing the writ petitions vide order dtd.15.10.2008, has struck down the impugned legislation on the ground that the same brought about discrimination between Asst. Engineers similarly situated and therefore violative of Articles 14 and 16 of the Constitution of India. The issue went before the Hon‟ble Apex Court and the Hon‟ble Apex Court, while upholding the validity of the Act, 2002 in the case of Amarendra Kumar Mohapatra and others vrs. State of Orissa reported in 2014(4) SCC 583, has formulated the parameter to fix the seniority.
The State Government, in pursuance to the order passed by the Hon‟ble Apex Court in the case of Amarendra Kumar Mohapatra and others vrs. State of Orissa (supra), has issued a communication to the competent authorities vide communication No.10580 dtd.23.4.2014 for preparation of gradation list of Asst. Executive Engineers (re-designated), basis upon which a gradation list was prepared, in which the promotee Asst. Engineers (regular) have been shown below than that of the In-service Degree Holder Junior 5 Engineers as Asst. Engineers ad hoc and Stipendiary Engineers appointed under 5% quota, the said gradation list was challenged before the Tribunal, the Tribunal has quashed the gradation list on the ground that the same is in the teeth of the order passed by the Hon‟ble Apex Court since the Hon‟ble Apex Court, in specific terms, has formulated the parameter to fix inter se seniority wherein the promotee Asst. Engineers, promoted under Rules, 1941, have been directed to be ranked on the top, the gradation list having not been found to be in consonance with the direction of Hon‟ble Apex Court, has been quashed with a direction to the authority to recast the gradation list on the basis of parameter fixed by Hon‟ble Apex Court in the case of Amarendra Kumar Mohapatra (supra).
3. The State of Orissa as well as the private opposite parties / petitioners, being aggrieved with the order passed by the Tribunal are before this court by way of these writ petitions challenging the order of the tribunal on the following grounds:-
(i) The Hon‟ble Apex court has confirmed the validity of the Validation Act, 2002 and as such the provision contained therein is applicable for the purpose of fixation of inter se seniority on the basis of length of service and for other financial benefits as provided Under section 3 of the Act, 2002.
(ii) The Hon‟ble Apex Court, while dealing with the subject, has treated the validation as regularization in service and when there is regularization in 6 service, in no stretch of imagination the past services rendered by the engineers who are coming under the parameter of the Validation Act, 2002, can be taken away, otherwise there would be no meaning of regularization of their services.
(iii) The Hon‟ble Apex Court has observed in the order by fixing parameter for fixation of inter se seniority and that is in the light of the provision of the Validation Act, 2002 as contained in Section 3 and keeping that provision into consideration the authorities have formulated policy decision on 23.4.2014, prepared a gradation list which cannot be said to be not in consonance with the order passed by the Hon‟ble Apex Court.
(iv) If the order of the Tribunal will be held to be legal, then the provision as contained in Section 3 would become redundant since the provision of Section 3(1) stipulates that the Asst. Engineers belonging to these groups, specified in the schedule, working under the department on ad hoc basis since the date of such appointment shall be deemed to be validly and regularly appointed under their respective department of the Government against the direct recruitment quota of the service with effect from the date of commencement of this Act, while the provision of Sec.3(2) speaks that the fixation of inter se seniority of Asst. Engineers, whose appointments are so validated, shall be determined according to their dates of appointment on ad hoc basis as mentioned in the schedule and they shall be enblock junior to the Asst. Engineers of that year 7 appointed to the service in the respective discipline in their cadre in accordance with the provisions of the Recruitment Rules.
This provision for fixation of inter se seniority clearly stipulates that the regularly appointed Asst. Engineers under recruitment Rules, 1941 will be senior to that of the Engineers whose reference is made U/s.3(1) of the Validation Act, 2002, if appointed in that year, which itself suggests that if the ad hoc Engineers are appointed prior to the date of appointment of the Asst. Engineers appointed under the recruitment Rules, 1941, they will rank senior on the basis of principle of determination of seniority and on the basis of the provision as contained in Sec.3(1) which stipulates that the service rendered on ad hoc basis shall be deemed to be validly and regularly appointed.
Further Sec.3(3) also stipulates that the past services rendered by the Asst. Engineers whose services have been validated, would be counted for the purpose of their pension, leave and increment and for no other purpose.
This provision clearly stipulates the fact that if the appointment of the regular Asst. Engineers made under the recruitment Rule, 1941 in a particular year and if the ad hoc Engineers, whose services are sought to be validated by the Act, 2002, have been appointed in that year, in view of the provision of Sec.3(2), the regularly appointed / promoted Asst. Engineers would be senior to the ad hoc Engineers, but the fact would 8 be otherwise if the ad hoc Asst. Engineers appointed on ad hoc basis prior to the regularly promoted as Asst. Engineers and since their services having been validated / regularized with effect from the date of ad hoc appointment, the seniority would be counted from the date of initial appointment and they would be senior, but the Tribunal, while dealing with the issue, has not appreciated this aspect of the matter and simply considered by treating the ad hoc period rendered by the Asst. Engineers under Validation Act by considering the regular service from the date of implementation of the Validation Act, 2002 i.e. 15.2.2003 and ranked them junior by ignoring the intents of the judgment of Hon‟ble Apex court and the Validation Act, 2002.
(v) If the order of the Tribunal would be said to be correct, then all the promotees, who would be appointed even thereafter, would be treated to be senior than that of the ad hoc Engineers.
4. While on the other hand, learned counsel representing the opposite parties who are the promotee Asst. Engineers having been promoted under the provision of Rules, 1941 have vehemently argued by opposing the submission of the learned counsels by submitting:-
(i) That the Hon‟ble Apex Court, in specific term, has fixed parameter for fixing inter se seniority as would be evident from paragraph 78 wherein Hon‟ble Apex Court has been pleased to hold that:9
"all such regularized Asst. Engineers from stipendiary stream and from Junior Engineer category would together ranked below the prmotee Asst. Engineers"
This observation, having no ambiguity, the promotee Asst. Engineers ought to have been ranked above than the regularized Asst. Engineers from stipendiary stream and from Junior Engineer category, but while preparing the seniority list this specific finding has been given go bye by the authority, the Tribunal, after taking note of this, has quashed the gradation list, hence the same has got no infirmity.
(ii) The learned counsel have put reliance on paragraph 82.2 of the judgment rendered by Hon‟ble Apex Court wherein the parameter for fixation of seniority has been laid down by holding that "In-service Degree Holder Junior Engineers promoted as Asst. Engineers on ad hoc basis shall be placed below the promotes and above the Stipendiary Engineers regularized in terms of the impugned Legislation. The inter se seniority of the Stipendiary Engineers regularized as Asst. Engineers under the impugned legislation and Junior Engineer Degree Holders regularized in terms of the order shall be determined on the basis of their first appointment as Asst. Engineers on ad hoc basis." This specific parameter having been laid down by the Hon‟ble Apex Court also clarifies the position that in all the cases the promotee Asst. Engineers would rank senior to the Stipendiary Engineers and the Junior Engineer Degree Holders regularized in terms of the order, but the gradation list is also contrary to the parameter fixed by Hon‟ble Apex Court.
(iii) The Stipendiary Engineers or the Junior Engineer Degree Holders cannot be given weightage over and above the regularly appointed or 10 promoted Asst. Engineers under the recruitment Rules, 1941 since they have been appointed not under the strength of the recruitment rules 1941, hence they cannot cause prejudice to the regularly appointed / promoted Asst. Engineers appointed under the provision of Rules, 1941.
In the backdrop of these rival submissions these writ petitions have been heard by us at length.
We have perused the relevant documents available on record, appreciated the argument advanced on behalf of the parties.
5. The core question raised by the parties regarding
(i) Fixation of inter se seniority in between the promotee Asst. Engineers promoted in pursuance to the Rules, 1941 vis-à-vis the In-service Degree Holder Junior Engineers promoted as Asst. Engineers on ad hoc basis and Stipendiary Engineers under 5% quota; and
(ii) What would be the date of fixation of seniority in these two groups.
We thought it proper to discuss the factual aspect before answering the issues:-
The State of Odisha has formulated a Rule known as Orissa Service of Engineers‟ Rules, 1941 in exercise of power conferred by clause (b) of the sub-sections (1) and (2) of Section 241 of Government of India Act, 1935 to regulate the recruitment and the conditions of service, pay, allowances and 11 pension of Orissa Service of Engineers which came into effect from the 1 st day of January 1942.
Rule 6 of the Rules, 1941 contains provision for recruitment to the rank of Asst. Engineers which shall be made partly by direct recruitment in accordance with Rules 8 to 15 and partly by promotion from the cadre of Junior Engineers in accordance with Rule 16 to 18.
Rule 7 provides the Government to decide the number of vacancies to be filled up in each year.
Rule 22 contains provision for fixation of seniority. Sub-Rule (1) of Rule 22 stipulates the provision with respect to officers recruited by promotion and by direct recruitment during the same year, the promoted officers shall be considered senior to the officers directly recruited irrespective of their dates of joining Sub-Rule (2) of Rule 22 contains provision subject to the provision of Sub-Rule (1,) the inter se seniority of officers shall be determined in accordance with the order in which their names appear in the list prepared by the Commission and approved by the Government.
The State of Odisha has appointed several Assistant Engineers on ad hoc basis by following the due process and with the concurrence of the Odisha Public Service Commission but of course by not inviting applications widely.12
Subsequently the State Government has come out with a legislation to validate their services, known as Orissa Service of Engineers (Validation of Appointment) Act, 2002 which comprises of 3 sections, the relevant section is Sec.3 which reads as under.
"3. Validation.- (1) Notwithstanding anything contained in the Recruitment Rules, seven hundred ninety-nine Asst. Engineers belonging to the discipline of Civil, fifty-seven Asst. Engineers belonging to the discipline of Mechanical and twenty-five Asst. Engineers belonging to the discipline of Electrical as specified in the Schedule with their names, dates of birth, dates of appointment and the names of the Departments under which they are working on ad hoc basis since the date of such appointment shall be deemed to be validly and regularly appointed under their respective Department of the Govt. against the direct recruitment quota of the service with effect from the date of commencement of this Act and, accordingly, no such appointment shall be challenged in any court of law merely on the ground that such appointments were made otherwise than in accordance with the procedure laid down in the Recruitment Rules.
(2) The inter se seniority of the Asst. Engineers whose appointments are so validated shall be determined according to their dates of appointment on ad hoc basis as mentioned in the Schedule and they shall be unblock (sic en bloc) junior to the Asst. Engineers of that year appointed to the service in the respective discipline in their cadre in accordance with the provisions of the Recruitment Rules.
(3) The services rendered by the Asst. Engineers whose appointments are so validated, prior to the commencement of this Act shall, subject to the provisions in sub-section (2), count for the purposes of their pension, leave and increment and for no other purpose."
The validation Act, 2002 had been challenged by the regular Asst. Engineers in series of writ petitions before this court, this court while allowing the writ petitions, has quashed the impugned legislation on the ground of discrimination between Asst. Engineers similarly situated being held to be contrary to the principle laid down under Articles 14 and 16 of the Constitution, the high court has observed as follows:- 13
"There is no reason as to why appointments of a few persons working as Asst. Engineers on ad hoc basis have been validated ignoring the other similarly situated persons working on ad hoc basis as Asst. Engineers. There cannot be discrimination or classification amongst the persons working on ad hoc basis or the post of Asst. Engineers. Once unequal became equal, the State has no authority to discriminate them and make equals as unequal."
The aggrieved party, having been benefited by the Act, 2002 have approached the Hon‟ble Apex Court by filing Special Leave Petitions which subsequently converted into Civil Appeals and the Hon‟ble Apex Court has decided the appeals vide judgment pronounced on 19th Feb. 2014 in the case of Amarendra Kumar Mohapatra (supra). The Hon‟ble Apex Court, while dealing with the situation regarding validity of the Act, 2002, while setting aside the order of this court, has been pleased to focus on the justification of the enactment of the Validation Act, it has been observed by their Lordships that the Validation Act although is a legislation, but it is a Law which grants the benefit of regularization, law relating to regularization of incumbents holding public office on ad hoc or temporary basis, much in the same way as regularization of such temporary appointments as ordered in terms of a scheme for that purpose. The only difference is that while a regularization scheme can be framed by the Government in exercise of its executive power, the regularization ordered by way of enactment of the Act, 2002, is by way of legislation.
It is trite that what can be achieved by the Government in exercise of its executive power can certainly be achieved by legislation. The Hon‟ble Apex Court has observed the same taking into consideration the factual aspect regarding the basis of a selection which was on the basis of merit through the 14 concurrence of the Public Service Commission due to the compelling situation existing in the State and also the State was in requirement of the work of the engineers who even after holding the eligibility condition, were sitting idle and as such the Government has taken a decision to fill up the post, pursuance to the same, the posts have been filed up, the candidates have participated in the selection process, there after they have been selected.
The Hon‟ble Apex Court has also taken note of the fact that the appointment of those engineers cannot be categorized under the category of illegal appointment, at best it is an irregular appointment and as such by making reference to the judgment rendered by its Constitutional Bench in the case of State of Karnataka Vrs. Uma Devi reported in (2006) 4 SCC page 1 has been pleased to decline from interfering with the legislative enactment as would be evident from para 48 to 50 and 55 of the said judgment.
The Hon‟ble Apex Court while doing so, has fixed the parameter to fix the seniority as would be evident from paragraph 82.2 which is being reflected herein below-
"82.2. Writ Petitions No.9514/2003, 12494/2005, 12495/2005, 12627/2005, 12706/2006 and 8630/2006 filed by the degree holders Junior Engineers working as Assistant Engineers on ad hoc basis are also allowed but only to the limited extent that the services of the writ-petitioners and all those who are similarly situated and promoted as ad hoc Assistant Engineers against the proposed 5% quota reserved for in- service Junior Engineers degree holder shall stand regularized w.e.f. the date Orissa Service of Engineers (Validation of Appointment) Act, 2002 came into force. We further direct that such in-service degree holder Junior Engineers promoted as Assistant Engineers on ad hoc basis shall be placed below the promotees and above the Stipendiary Engineers regularized in terms of the impugned legislation. The inter se seniority of the Stipendiary Engineers regularized as Assistant Engineers under the impugned Legislation and Junior Engineer degree holders regularized in terms of this order shall be 15 determined on the basis of their date of first appointment as Assistant Engineers on ad hoc basis."
It is evident from the parameter fixed by Hon‟ble Apex Court regarding fixation of seniority the promotee Asst. Engineers have been held to be on the top of the seniority list below it in-service degree holder Junior Engineers promoted as Asst. Engineer on ad hoc basis have been directed to be retained and thereafter the Stipendiary Engineers under 5% quota.
So far as the inter se seniority of Stipendiary Engineers regularized as the Asst. Engineers and Junior Engineer degree holders appointed on ad hoc basis, which shall be directed to be determined on the basis of their first appointment as Asst. Engineers on ad hoc basis.
In the backdrop of these statutory and legal position, the argument advanced on behalf of the parties needs to be appreciated.
6. The main contention raised by the State of Orissa and the opposite parties who have been benefited from the Validation Act, 2002 is that since by virtue of the provision of Sec.3(1) their seniority ought to have been counted from the date when their services have been deemed to be validly and regularly appointed, in this case since they have been appointed on ad hoc basis prior to the promotee Asst. Engineers, hence they will stand senior to them.
Contention raised by referring to the provision of Sec.3(2) of the Act, 2002 that if the appointment of these engineers having been benefitted under the Act, 2002 and promoted as Asst. Engineers under the Rules, 1941 16 would have been in a particular year, then certainly in view of the provision of sec.3(2) of the Act, 2002 the promotee Asst. Engineers under Rules, 1941 would rank senior to the engineers who have been benefited from the validation Act, 2002 but when they have been appointed on ad hoc basis prior to the date of promotion of the regular Asst. Engineers, they cannot be placed below them in the seniority list otherwise it would be contrary to the provision of Sec.3(1) as also 3(2) which stipulates a condition that their services on ad hoc basis will be deemed to be validly and regularly appointed.
While on the other hand the contention raised by the promotee Asst. Engineers is that since the validation Act has been given effect to w.e.f.15.2.2003, hence whatever be the date of ad hoc appointment that will not be counted for the purpose of counting seniority rather the material date would be the date of commencement of this Act, i.e. 15.2.2003 and that is the direction passed by the Hon‟ble Apex Court in the case of Amarendra Kumar Mohapatra (supra).
Their case is that since they have been granted promotion w.e.f. 18.07.2003, notionally and the ad hoc Engineers have been validated in service w.e.f. 15.2.2003, i.e. the date of enactment of Validation Act, 2002, hence the promotees would be senior considering the fact that promotion and appointment is in the same year.
Their further case is that although they have been granted promotion w.e.f.16.06.2005 but subsequently it was modified by granting 17 notional promotion w.e.f. 18.07.2003, as such that would be the material date for fixing inter se seniority.
7. We have examined the rival submissions of the parties and after going through the provision of Section 3 of the Validation Act, 2002, it is evident that the specific stipulation has been made therein that the engineers working on ad hoc basis since the date of such appointment shall be deemed to be validly and regularly appointed under their respective department of the government against the direct recruitment quota of the service with effect from the date of commencement of this Act, on examination of this provision the judgment rendered by the Hon‟ble Apex Court in the case of Amarendra Kumar Mohapatra (supra) wherein the Hon‟ble Apex Court has taken into consideration the validity of the appointment as their regularization hence taking note of the judgment rendered in the case of Uma Devi (supra) has uphold the Validation Act and thereafter fixed the parameter of seniority.
We, after taking into consideration this aspect of the matter and on examination of the provision of sec.3(1) have found that the past services rendered by the Asst. Engineers on ad hoc basis have been directed to be validly and regularly counted, which means that services rendered by them on ad hoc basis would be counted for the purpose of counting seniority once the service having been validated but the second part, i.e. the same would be effected from the date of commencement of this Act, which suggests the intent of legislation, that the substantial benefit of service like promotions, upgradation of pay scale, etc. of cadre would be granted to such category of 18 employees only after the validation Act came into effect i.e. 15.2.2003, the date when such category of employees have been directed to be inducted in regular cadre to get the benefit of the cadre, this can be illustrated by an illustration suppose an employee was appointed on ad hoc basis in the year 1990 he can only be entitled to get the substantial service benefit only after implementation of Validation Act, 2002 and not before that.
This can also be corroborated from the conjoint reading of sec.3(2) which speaks regarding fixation of inter se seniority of Asst. Engineers who have been appointed on ad hoc basis and they shall be held to be en block junior to the Asst. Engineers of that year appointed to the service in the respective discipline. This is also provided under Rule 22 of Rules, 1941. The word „that year‟ has significance and the intent of Legislation is that if in a particular year the Direct recruit to a post would rank junior to the promotees as has been settled in the case of Direct Recruit Class II Engineering Officers' Association Vrs. State of Maharashtra, reported in (1990) 2 SCC
715. But this principle would not be applicable if Direct recruits are in the cadre prior to the promotees, in such a situation the general principle of determining seniority would be applicable, i.e. the date of entering into the cadre.
In the given facts , since the services of ad hoc appointees has been validated under the Validation Act, 2002, which has been considered by 19 Hon‟ble Apex court as Regularization, hence the period rendered by such category of employees under ad hoc basis will be counted which is also the provision of Section 3(1) of Validation Act.
The provision of Section 3(3) further stipulates that the past services rendered prior to commencement of the Act, shall be counted for the purpose of their pension, leave and increment and for no other purpose, which suggests that apart from pension, leave and increment, the past services would not be counted that is for getting the substantial service benefit if eligible to get prior to the Validation Act, 2002.
The Hon‟ble Apex Court has uphold the validity of the Validation Act by making a specific observation at paragraph 77 of the said judgment by holding therein that "in the light of what we have said above, we do not see any illegality or constitutional infirmity in the provisions of Sections 3(2) or 3(3) of the impugned legislation".
At paragraph 78 it has been observed by the Ho‟ble Apex Court, which has been given much emphasis by the learned counsel representing the promotee Asst. Engineers that in view of the observation to the effect that "all such regularized Asst. Engineers from Stipendiary stream and from Junior Engineer category would together rank below the promote Asst. Engineers" and in that view of the matter there is no dispute according to them in holding the promotee Asst. Engineers junior to the regular Asst. Engineers from the stipendiary stream and from Junior Engineer category, but we are not in 20 agreement with this argument reason being that in paragraph 78 whatever observation has been made by Hon‟ble Apex Court the same cannot be read out in isolation, rather it is to be read out along with the provision of Sections 3(1), 3(2) or 3(3) of the impugned legislation which has been upheld by Hon‟ble Apex Court as would be evident from paragraph 77 of the judgment quoted above and Section 3 of the Act, 2002 is clear regarding validity of the past services of such ad hoc appointees.
The Hon‟ble Apex Court in the light of the discussion made in the said judgment, has come with the finding at paragraph 82.2 which has been quoted herein above and the learned counsel representing the promotee Asst. Engineers has given emphasis in this paragraph by referring to the observation that "we further direct that such in service degree holder Junior Engineers promoted as Asst. Engineers on ad hoc basis shall be placed below the promotes."
By giving emphasis on the word „pormotees', it has been submitted that in view of this the promotee Asst. Engineers would always be ranked senior irrespective of the date of appointment but this cannot be the correct interpretation of the judgment of Hon‟ble Apex Court in its entirety read with the provisions of Validation Act, 2002 as has been interpreted by the learned counsel appearing for promotee Asst. Engineers, reason being that if that would be said to be perfect interpretation, then all the promotees who have been promoted even after the date when the Validation Act came into effect, i.e. 15.2.2003 would rank senior, e.f. suppose a Junior Engineer has been 21 promoted in the year 2004, 2005 and 2006 etc. then they would rank senior to that of the Stipendiary Engineers or the Junior Engineer category having been benefited under the Validation Act, 2002 irrespective of their initial date of appointment.
The learned counsel has tried to impress upon the court by placing the observation made by Hon‟ble Apex Court in paragraph 82.2 in isolation but the judgment cannot be interpreted by reading one or two paragraphs in isolation, rather the entire judgment is to be read out in its entirety along with the Validation Act, 2002 and then a conclusion is to be arrived at, according to us, what has been observed by Hon‟ble Apex Court at paragraphs 77, 78 and 81 is also to be read out along with paragraph 82.2 and with the provisions as contained in Sec.3 of the validation Act, 2002.
We are also of the view that the services once regularized / validated, the said category of employees will be said to be regularly appointed and on account of irregularity they cannot be subjected to be differentiated with the employees having appointed on regular basis under the prevailing statute.
It needs to clarify that in case of notional promotion the effective date for entering into cadre would be date of notional promotion.
In the instant case the promotees have initially been granted promotion w.e.f. 16.6.2005 but subsequently order granting promotion was modified by granting notionally w.e.f. 18.07.2003 which has attained its 22 finality since none has assailed it. As such we have examined the issue taking the date of notional promotion, i.e. 18.07.2003.
8. It is also important to note here that the whole limb of argument of the promotee Asst. Engineers is that since they have been promoted under the strength of Rules, 1941 and the ad hoc engineers have been appointed not under the strength of Rules, 1941 rather they have been appointed by the order of the Government, hence even after their services having been validated by the Validation Act, 2002, they would not claim any parity with them, but we are not in agreement with this submission, reason being that the ad hoc engineers have been appointed by the Government due to exigency of work against sanctioned vacant post by following due procedure, except the wide paper publication, the State taking note of this aspect, has come out with the Validation Act, 2002 validating their services, the Validation Act, 2002 having been affirmed by the Hon‟ble Apex Court, as such the ad hoc engineers once have been given protection under the statutory provision by the Legislation of a State by enactment of the Validation Act which has also been affirmed by the Hon‟ble Apex Court, according to us, they cannot be differentiated with the regularly appointed / promoted Asst. Engineers under the strength of Rules, 1941 otherwise there would be no meaning of the service having been validated by the State Legislature.
9. We, after appreciating the fact and the legal position as discussed above, are of the considered view that 23
(i) The Junior Engineer promoted as Asst. Engineers in a particular year, would rank senior to that of the ad hoc engineers having been given benefit of Validation Act, 2002 if appointed in that year;
(ii) If the Junior Engineers promoted in a year and the ad hoc engineers regularized by the Validation Act, 2002 having been appointed prior to the date of promotion of the Junior Engineers as Asst. Engineers, the date of appointment would be the material date for fixation of seniority as per the provision of Sec.3 of the Validation Act, 2002, in other words the Engineers having been benefited by virtue of validation Act, 2002 would rank senior to the promotees Asst. Engineer under the Rules, 1941 on the basis of their date of appointment on ad hoc basis.
Accordingly, the issue raised is answered.
10. In this parameter when the Apex Court has disposed of the writ petition, the State of Orissa has come out with a communication as contained in letter No.10580 and instructed the authorities to fix the seniority in the light of the judgment pronounced in the case of Amarendra Kumar Mohapatra vis-à- vis the Validation Act, 2002, basing upon which the gradation list has been prepared, which has been quashed by the Tribunal, but before quashing the gradation list the Tribunal has failed to appreciate the provision of Validation Act, 2002 and the intent of legislation, the judgment rendered by Hon‟ble Apex Court and the principle of regularization as has been discussed by Hon‟ble Apex Court in the case of Amarendra Kumar Mohapatra by taking into 24 consideration the judgment rendered in the case of Uma Devi as also the Government instruction dtd.23.4.2014 which has never been questioned by the parties. The Tribunal further erred in questioning the seniority list without having been questioned by the aggrieved party the decision of the Government dtd.23.4.2014 since it is settled that if the basis is in existence, its consequence cannot go.
In view of the discussion made herein above, we are of the considered view that the tribunal has erred in passing the order, accordingly we are not in agreement with the finding given by the Tribunal and as such the order passed in O.A. No.783 of 2014 dtd.09.09.2016 is not sustainable in the eye of law, hence set aside.
In the result the gradation list prepared by the Government dtd.28.6.2014 is restored.
Accordingly both the writ petitions stand disposed of. All the misc. cases, if not disposed of, are disposed of.
.........................
S.N.Prasad, J.
Sanju Panda, I agree.
.........................
Sanju Panda, J.
Orissa High Court, Cuttack,
Dated the April, 2017/mkp