Orissa High Court
Chira Kumar Mohapatra vs State Of Odisha on 30 July, 2024
ORISSA HIGH COURT : CUTTACK
W.P.(C) No.14328 of 2023
In the matter of an Application under
Articles 226 and 227 of the Constitution of India, 1950
***
Chira Kumar Mohapatra
Aged about 59 years,
Son of Late Binayaka Mohapatra
Under Secretary,
Forest, Environment &
Climate Change Department
Bhubaneswar
District: Khordha. ... Petitioner.
-VERSUS-
1. State of Odisha
Represented through
Additional Chief Secretary to Government
Home Department, Bhubaneswar
Khordha.
2. Additional Chief Secretary to Government
Forest, Environment &
Climate Change Department
Bhubaneswar
District: Khordha. ... Opposite parties.
Counsel appeared for the parties:
For the Petitioner : M/s. Bhabani Sankar Tripathy,
Atul Tripathy and Amit Sahoo,
Advocates
W.P.(C) No.14328 of 2023 Page 1 of 79
For the Opposite parties : Mr. Jyoti Prakash Patnaik,
Government Advocate
P R E S E N T:
HONOURABLE
MR. JUSTICE MURAHARI SRI RAMAN
Date of Hearing : 02.07.2024 :: Date of Judgment : 30.07.2024
J UDGMENT
MURAHARI SRI RAMAN, J.--
CLAIM OF THE PETITIONER:
Alleging it to be erroneous decision contained in the
Order dated 02.02.2023 of the Additional Chief Secretary
to Government of Odisha in Home Department, opposite
party No.1, in refusing to antedate the promotion in the
post of Under Secretary with effect from 25.02.2021 and
to revise the Gradation List of Under Secretaries and
accordingly, failure to grant consequential promotion to
the rank of Deputy Secretary in the Odisha Secretariat
Service Cadre, the petitioner has approached this Court
by way of filing this writ petition invoking provisions
under Article 226/227 of the Constitution of India with
the following prayer(s):
"On the facts and in the circumstances stated above, your
petitioner, therefore, humbly prays that this Hon‟ble Court
be pleased to:
W.P.(C) No.14328 of 2023 Page 2 of 79
i) quash the impugned Order dated 02.02.2023 in
Annexure-9 by holding the same as bad, illegal and
contrary to law;
and thereby
ii) direct the opposite parties to antedate the promotion
of the petitioner to the post of Under Secretary with
effect from 25.02.2021 in terms of the decision of the
Hon‟ble Supreme Court under Annexure-3 Series
and to allow him consequential promotion to the post
of Deputy Secretary with effect from 31.01.2023, i.e.
the date of promotion of his juniors in service vide
Annexure-11 with consequential restoration of his
inter se seniority in the cadre of Under Secretary by
modifying Notification dated 17.11.2021 as well as
Gradation List published on 05.01.2022;
iii) pass such other order(s) as deemed fit and proper in
the bona fide interest of justice and fair play and for
which act of your kindness, the petitioner shall as in
duty bound, ever pray."
THE FACTS:
2. The relevant facts as adumbrated in the writ petition are
narrated.
2.1. The petitioner entered into the Secretariat Service as
direct recruit in the post of Junior Assistant on
24.08.1992 being selected through the process of
selection conducted by the Odisha Public Service
Commission ("OPSC", for brevity) against the vacancies
W.P.(C) No.14328 of 2023 Page 3 of 79
of recruitment years 1982-83 and 1983-84.
Subsequently, the petitioner was promoted to the post of
the Senior Assistant (presently Assistant Section Officer)
on 11.11.1997 being recommendation of the
Departmental Promotion Committee ("DPC", as well
known) made under the prevalent Odisha Secretariat
Service Rules, 1980 (hereinafter called "OSS Rules").
Subsequently, the petitioner joined as Assistant Law
Officer ("ALO", abbreviated) in Fisheries and Animal
Resources Development Department on 04.06.2010.
2.2. It is a matter of record that at that point of time when
the petitioner joined as ALO no cadre rule was in vogue
for ALO/Law Officer of the Secretariat other than the
Law Department.
2.3. While the matter stood thus, OSS Rules, 1980 was
amended by virtue of the Odisha Secretariat Service
(Amendment) Rules, 2001 and the provisions of Rules 5
and 7 of the OSS Rules, 1980 as amended by the said
OSS (Amendment) Rules, 2001 were the subject matter
of challenge in a batch of Original Applications before
the learned Odisha Administrative Tribunal in which the
leading case was OA No.l235(C) of 2001, which came to
be disposed of on 12.05.2011 by holding that the
aforesaid provisions are ultra vires Articles 14 and 16 of
the Constitution of India. Striking down the same, there
W.P.(C) No.14328 of 2023 Page 4 of 79
was a direction that the promotional vacancies (21 in
numbers) of Under Secretary, which were existed prior to
promulgation of the OSS (Amendment) Rules, 2001,
would be filled up through DPC adhering to the OSS
Rules, 1980.
2.4. The Order dated 12.05.2011 of the Odisha
Administrative Tribunal passed in O.A. No.l235(C) of
2001 and batch, being challenged in the writ
applications before this Court at the behest of the
Government of Odisha, was upheld by a common
Judgment dated 01.08.2018 reported at 2018 (II) ILR-
CUT 416 as State of Odisha Vrs. Sarada Kanta Tripathy.
This Court issued further direction to the State of
Odisha to convene Review DPC for the applicants and
other eligible Officers for promotion to the cadre of
Under Secretary as per the provisions of OSS Rules,
1980 in respect of the vacancies in the year 2001 and
also for subsequent years with all consequential benefits
within a period of 3 months.
2.5. The State of Odisha further proceeded to challenge the
decision of this Court before the Hon‟ble Supreme Court
of India and, SLP(C) No.6168-6173 of 2019 have been
disposed of vide Order dated 01.10.2020.
2.6. As due regard had not been extended to the petitioner
for promotion to the post of Under Secretary, he
W.P.(C) No.14328 of 2023 Page 5 of 79
approached this Court by way of a writ petition, being
W.P.(C) No.12807 of 2021, seeking direction by calling
upon the opposite parties therein to hold review DPC for
promotion to the post of Under Secretary in accordance
with OSS Rules, 1980. Said writ petition was disposed of
vide Order dated 09.04.2021, as modified vide Order
dated 28.07.2021 passed in I.A. No.6320 of 2021,
required the Additional Chief Secretary to Government,
Home Department to work out the said direction dated
09.04.2021. As there was non-compliance of the
aforesaid direction in W.P.(C) No.12807 of 2021, the
present petitioner filed CONTC No.5937 of 2021, which
came to be disposed of on 08.10.2021 with liberty to the
petitioner to file an application for fixation of time limit
for compliance of that order and the contempt
proceeding was dropped. In view of leave granted by the
aforesaid Order dated 08.10.2021, the petitioner filed
I.A. No.l5451 of 2021(arising out of W.P.(C) No.l2807 of
2021) seeking modification of the Order dated
09.04.2021 passed in W.P.(C) No. 12807 of 2021 to the
extent of fixing a time limit for disposal of the
representation of the petitioners under Annexure-9
series therein in the manner indicated in the said Order
dated 09.04.2021. Said application got disposed of fixing
compliance of Order dated 09.04.2021 within a period of
15 days from the date of communication of the certified
W.P.(C) No.14328 of 2023 Page 6 of 79
copy of the order by the petitioners and to submit
compliance report before the Registry of this Court
within a period of seven days thereafter.
2.7. The Additional Chief Secretary obtaining the views of
Law Department and the opinion of the learned Advocate
General, Odisha on the issue of compliance of direction
in W.P.(C) No.12807 of 2021, considered the case of the
petitioner along with another Sri Prafulla Kumar
Mohanty for initial promotion to the post of Law Officer
on completion of 7 years of service as Assistant Law
Officers as per Home Department Resolution dated
30.10.2001 and thereafter to the post of Under Secretary
on completion of 10 years as Assistant Law Officer and
Law Officer taking together with effect from 01.01.2021
through Review DPC held on 09.11.2021. However, while
issuing the order of promotion vide Home Department
Notification No.40459-- PT1-HOME-OSS-CASE1-0018-
2021/OSS, dated 17.11.2021, the Additional Chief
Secretary had given prospective effect to such promotion
of the petitioner and Sri Prafulla Kumar Mohanty.
2.8. Being aggrieved by such prospective promotion, and
finding his seniority in the cadre of Under Secretary
being fixed below all the Under Secretaries promoted
earlier in the Gradation List of Under Secretaries
published on 05.01.2022, the petitioner has filed
W.P.(C) No.14328 of 2023 Page 7 of 79
representation dated 13.06.2022 seeking modification of
the said Notification dated 17.11.2021 for antedatation
of his promotion to the rank of Under Secretary
retrospectively as has been done in the case of other Law
Officers as per Order dated 01.10.2020 of the Hon‟ble
Supreme Court referred to above with effect from
29.02.2020, when his immediate junior was given such
promotion to the rank of Under Secretary vide
Notification No.10386, dated 29.02.2020 of Home
Department and for re-fixation of his inter se seniority in
the post of Under Secretary over his juniors.
2.9. In the meanwhile, the ad hoc promotion of the petitioner
in the rank of Under Secretary was regularized on the
concurrence of OPSC with effect from the date of his
joining in the rank of Under Secretary, i.e., 17.11.2021
as per Home Department Notification dated 22.07.2022.
Pending consideration of his representation dated
13.06.2022, the petitioner has appeared before the Chief
Secretary on 02.08.2022 in Grievance Cell through his
petition dated 01.08.2020 and highlighted his grievance
reiterating his prayer for promotion to the post of Under
Secretary retrospectively with consequential fixation of
his inter se seniority by modifying the Notification dated
17.11.2021 appropriately so that his case for promotion
to the rank of Deputy Secretary could be considered by
W.P.(C) No.14328 of 2023 Page 8 of 79
modifying Gradation List of Under Secretaries published
on 05.01.2022.
2.10. By a Letter No.27588, dated 12.08.2022, the Joint
Secretary to Government, Home Department
communicated that the said representation of the
petitioner was rejected, which gave rise to filing of
W.P.(C) No.36580 of 2022 before this Court, which came
to be disposed of on 04.01.2023 by quashing the Order
dated 12.08.2022. This Court remitted the matter to the
Additional Chief Secretary to reconsider the
representation of the petitioner dated 01.08.2022.
2.11. In consideration thereof, the Additional Chief Secretary
by Order No.4159-- HOME-OSS-CASE1-0003-2023/
OSS, dated 02.02.2023 rejected the claim of the
petitioner on the ground that granting seniority to the
petitioner on the basis of initial counterpart of OSS
Cadre would be illegal and void in the eye of the law as
the petitioner was given deemed promotion to the post of
Law Officer and simultaneously promoted to the rank of
Under Secretary as a special case due to hardship faced
by him.
2.12. The petitioner has also approached the Promotion Adalat
in Case No.Home-OSS-PG-4-0007-2020/3 seeking
promotion to the rank of Deputy Secretary with effect
from his eligibility by restoring his seniority by way of
W.P.(C) No.14328 of 2023 Page 9 of 79
modification of the Gradation List of Under Secretaries
in the OSS Cadre published on 05.01.2022. The Pension
Adalat rejected the petitioner‟s prayer on the ground that
the claim has no merit.
COUNTER AFFIDAVIT FILED ON BEHALF OF OPPOSITE PARTY NO.1:
3. Clarifying the position of provisions for promotion, it has
been delineated that:
i. prior to the OSS (Amendment) Rules, 2001 came to
force, recruitment to Odisha Secretariat Service
and promotion were governed by the Odisha
Secretariat Service Rules, 1980, and the
amendments made to it from time to time, whereby
and whereunder the post of Under Secretary was
being filled up by way of promotion from the ranks
of the Section Officer Level-I and the Law Officer.
Service experience of 10 years was the eligibility
criteria for the Law Officers (as ALO and LO taken
together) and the Section Officer Level-I (as Section
Officer Level-II and Level-I taken together) for
consideration of promotion to the rank of Under
Secretary.
ii. provisions of the OSS Rules, 1980 was amended
vide Home Department Notification No. 22056--
OSS/I-12/2000-OSS dated 12.04.2001 [vide
W.P.(C) No.14328 of 2023 Page 10 of 79
Odisha Gazette, Extraordinary No.623, dated
18.04.2001], wherein the promotion of Law Officers
was modified with a provision that no Assistant
Law Officer or Law Officer in any Department of
Government recruited from the Common Cadre
except in case of the Law Department shall be
considered for inclusion in the list of officers for
consideration for promotion to the post of Under
Secretary in the service unless his counterpart in
the Common Cadre having held the post of Junior
Assistant/Senior Assistant, Section Officer, Level-
II/Section Officer, Level-I is eligible for such
consideration.
iii. the amendments carried in the provisions of Rule 5
and Rule 7 by virtue of the OSS (Amendment)
Rules, 2001, being held to be discriminatory
without providing quota for promotion to the rank
of Under Secretary from the stream of the Assistant
Law Officer/Law Officer by the Odisha
Administrative Tribunal in O.A. No.1235 (C) of
2001 vide Order dated 12.05.2001, was confirmed
by this Court in W.P.(C) No.9546 of 2012 vide 2018
(II) ILR-CUT 416 and affirmed by the Hon‟ble
Supreme Court vide Order dated 01.10.2020 in
S.L.P.(C) No. 6168-6173 of 2019 with certain
clarifications and directions.
W.P.(C) No.14328 of 2023 Page 11 of 79
3.1. The opposite party No.1 with the aforesaid background
of the OSS (Amendment) Rules, 2001 sought to submit
that the Order dated 01.10.2020 of the Hon‟ble Supreme
Court of India referred to above relates to the persons
who were already working as Law Officers at that
relevant point of time and the term "eligible officers"
used in the said order is limited to the Law Officer and
not applicable to the existing ALOs like the petitioner, as
there was no recruitment rule for the post of ALOs
working in different Departments other than Law
Department.
4. Adding to the above, the opposite party No.1 has placed
subsequent developments being carried out with regard
to avenues for the Assistant Law Officers.
4.1. The Odisha State Legal Service (Method of Recruitment
and Conditions of Service) Rules, 2016 ("OSLS Rules",
for brevity) has been promulgated in exercise of powers
conferred under proviso to Article 309 of the
Constitution of India by Home Department Notification
No.743--HOME-OSS-RULES-0001/2014/HD, dated
07.01.2017 [published in Odisha Gazette, Extraordinary
No.72, dated 11.01.2017].
4.2. Rule 5 of the OSLS Rules has been amended by virtue of
the Odisha State Legal Service (Method of Recruitment
and Conditions of Service) Amendment Rules, 2021 vide
W.P.(C) No.14328 of 2023 Page 12 of 79
Home Department Notification No.21609--HOME-OSS-
RULE-0001/2017/HOME, dated 22.06.2021 [published
in Odisha Gazette, Extraordinary No.921, dated
23.06.2021] to create promotional prospects of the ALOs
up to the rank of Director (Law). As per Rule 5(a-2) of the
OSLS Rules, 2016, existing ALOs working in different
Departments under the Government, those who have
rendered at least 10 years of continuous service are to
be absorbed as Assistant Director (Law).
4.3. Due to shortage of service experience-- as 10 years was
the prevailing norm prior to coming into force the Odisha
State Legal Service (Method of Recruitment and
Conditions of Service) Amendment Rules, 2021-- in the
rank of Assistant Law Officer for absorption in the Legal
Service Cadre, the petitioner had to wait till completion
of 10 years along with others and the petitioner had
completed 10 years of service as ALO on 03.06.2020. On
the other hand, all the Offices of Government had been
requested vide Home Department Letter No. 13846,
dated 31.03.2021 to absorb the existing ALOs and Law
Officers as Assistant Director (Law) against the posts
created.
4.4. The Odisha State Legal Service (Amendment) Rules,
2021, came into force with effect from 23.06.2021
whereby and whereunder it is provided that all the ALOs
W.P.(C) No.14328 of 2023 Page 13 of 79
who have rendered seven years of continuous service as
such and all Law Officers working in different
Departments of Government or Heads of the
Departments shall be absorbed in the post of Assistant
Director (Law).
4.5. In order to avoid absorption under the Legal Service
Cadre, the petitioner and three other ALOs filed writ
petition, being W.P.(C) No. 12807 of 2021, with a prayer
to consider their cases for promotion to the rank of
Under Secretary in view of Order dated 01.10.2020 of
the Hon‟ble Supreme Court in S.L.P.(C) No.6168-6173 of
2019 [State of Odisha Vrs. Sarada Kanta Tripathy]. This
Court while disposing the said writ petition on
09.04.2021 as modified on 28.07.2021 directed the
authority to consider the representation of the petitioner
and take a decision.
4.6. Despite the OSS Rules, 1980 providing that Section
Officer (Level-I) and Law Officers are eligible for
promotion to the rank of Under Secretary, since the
petitioner was continuing as ALO and not Law Officer
and had no eligibility for promotion to the post of Under
Secretary, taking into account the entire service period
rendered by him, he was accorded deemed promotion to
the rank of "Law Officer" and then promoted to the rank
of "Under Secretary" on the same day as "special case"
W.P.(C) No.14328 of 2023 Page 14 of 79
on the ground of "hardship faced by him" vide
Notification No.40459--PT1-HOME-OSS-CASE1-0018-
2021/OSS, dated 17.11.2021 (Annexure-5).
4.7. It is asserted that no ALO junior to the petitioner
(unreserved category) has been granted promotion to the
post of Under Secretary till date.
REJOINDER OF THE PETITIONER:
5. There are provisions for promotion of ALOs to LOs after
completion of 7 years vide Notification dated 30.10.2001
of Home Department. There was no further promotion of
Law Officers to the next higher post in said notification.
Home Department has been dealing with the promotion
of ALOs to LOs and for consequential promotions under
the OSS Rules up to the rank of Additional Secretary
along with Officers in OSS cadre. The petitioner claims
his eligibility for promotion to the post of LO with effect
from 04.06.2017. The Home Department made
provisions under Rules 5 and 7 of the OSS Rules for
promotion of Legal Assistant including Junior Law
Officers (now, ALOs/Law Officers) to the post of Under
Secretary. Further, in the Odisha Secretariat Service
(Amendment) Rules, 1987, the length of service period of
ALOs/LOs have been incorporated in second proviso to
Rule 7 for considering the residency period of ALOs/LOs
to the post of Under Secretary, i.e., 10 years as ALOs/
W.P.(C) No.14328 of 2023 Page 15 of 79
LOs. Hence, in the said Rules, it is mentioned at Rule
5(2) that in case of LOs, means it includes ALO/LO both
taken together, since there was no Cadre Rules for
ALOs/LOs and regular promotion of ALOs were not
accorded by the Home Department.
HEARING:
6. Pleadings, being completed, on the consent of counsel
for both the sides, heard Sri Bhabani Sankar Tripathy,
learned counsel appearing for the petitioner and Sri
Jyoti Prakash Patnaik, learned Government Advocate for
the opposite parties on 02.07.2024 finally.
RIVAL CONTENTIONS AND SUBMISSIONS:
7. Sri Bhabani Sankar Tripathy, learned counsel for the
petitioner has submitted that after the judgment of this
Court rendered in the case of Sarada Kanta Tripathy
vide 2018 (II) ILR-CUT 416 got affirmed by the Hon‟ble
Supreme Court vide Order dated 01.10.2020 in S.L.P.(C)
No. 6168-6173 of 2019 with certain clarifications and
directions, the petitioner, ALO, approached this Court in
W.P.(C) No.12807 of 2021 seeking promotion to the rank
of Under Secretary based on order of the Hon‟ble
Supreme Court and said matter was disposed of on
09.04.2021 as modified by Orders dated 28.07.2021 and
03.11.2021 with the direction to consider the
W.P.(C) No.14328 of 2023 Page 16 of 79
representation of the petitioner and take a lawful
decision in the matter taking into consideration the
grounds stated in the writ petition and the documents
furnished in support thereof along with the ultimate
decision of the Hon‟ble Supreme Court.
7.1. As a consequence thereto, the case of present petitioner
has been considered as special case for the purpose of
according promotion to the rank of Under Secretary. The
case of the petitioner to the rank of Law Officer has been
considered as deemed promotion and then he was
granted promotion to the rank of Under Secretary vide
Notification dated 17.11.2021.
7.2. It is submitted by learned counsel for the petitioner that
the promotion so accorded to the petitioner was delayed
(as his case could have been considered along with other
Law Officers), and that the promotion to the rank of
Under Secretary would have been granted effective from
2016 by virtue of Review DPC held on 27.11.2020.
8. Per contra, Sri Jyoti Prakash Patnaik, learned
Government Advocate would submit that at the time of
consideration of promotion to the post of Under
Secretary pursuant to Order dated 01.10.2020 passed
by the Supreme Court, the eligible officers for
promotions to the cadre of Under Secretary essentially
meant eligible Law Officers. At the relevant point of time
W.P.(C) No.14328 of 2023 Page 17 of 79
the petitioner was serving as ALO, but not LO. It is
manifest from Notification dated 17.11.2021 (Annexure-
5) that the petitioner was first "deemed to be promoted
to the rank of Law Officer and then promoted to the rank
of Under Secretary on ad hoc basis for a period of one
year or till regular promotion is made". In the said
notification it has been clarified that on such promotion
his inter se seniority in the rank of Under Secretary is
fixed below all the existing Under Secretaries promoted
earlier. In such view of the matter, the claim of the
petitioner for antedating the promotion has justifiably
been rejected by the Additional Chief Secretary to the
Government of Odisha in Home Department by Order
dated 02.02.2023.
RELEVANT STATUTORY PROVISIONS AND NOTIFICATIONS AT A GLANCE:
9. The Odisha Secretariat Service Rules, 1980:
"3. Constitution of cadre.--
The cadre of the service shall consist of the following
categories of posts in the departments of
Government, namely:
(i) Under Secretary to Government;
(ii) Deputy Secretary to Government;
(iii) Joint Secretary to Government;
(iv) Additional Secretary to Government;
W.P.(C) No.14328 of 2023 Page 18 of 79
And
(v) Such other post or posts as Government may,
from time to time by a Resolution direct.
4. Cadre strength.--
The cadre strength of the service shall consist of
such number of permanent and temporary posts of
the categories as specified in Rule 3, as the
Government may from time to time, by Resolution,
direct.
5. Method of recruitment.--
(1) All the first appointment to the service shall be
made in the rank of Under Secretaries to
Government.
1[(2) The following categories of Officers shall be
eligible for consideration for first appointment
to the Service namely:
(a) Section Officers, Level-I appointment under the
Odisha Secretariat Service Class-II (Group-II)
Rules, 1986; and
(b) Assistant Law Officers appointed from the
common cadre or Law Officers in different of
Departments of Government other than the
Law Department as and when their
1 Substituted by Rule 3 of the Odisha Secretariat Service (Amendment) Rules,
2001, published in Odisha Gazette Extraordinary No.623, dated 18.04.2001.
Prior to substitution, sub-rule (2) of Rule 5 of the OSS Rules, 1980 stood thus:
[(2) The following categories of Officers shall be eligible for consideration for
first appointment to the Service namely:
(a) Section Officers, Level-I appointment under the Orissa Secretariat
Service Class-II Rules, 1986;
(b) Law Officers of Departments of Government except in the Law
Department.]
W.P.(C) No.14328 of 2023 Page 19 of 79
counterparts in the common cadre on being
promoted to the rank of Section Officer, Level-I
become eligible for such consideration.]
(3) Appointment to the rank of Deputy Secretaries, Joint
Secretaries and Additional Secretaries shall be
made by promotion from the ranks of Under
Secretaries, Deputy Secretaries and Joint
Secretaries, respectively.
6. Furnishing particulars for consideration of first
appointment.--
(1) The Departments of Government shall furnish to
Home Department not later than 31st January of
each calendar year the particulars of each officer
eligible for consideration for first appointment to the
service in the pro forma prescribed in Appendix-l and
a list of all Officers eligible for consideration for such
appointment arranged in order of their seniority
separately in respect of each category as specified in
sub-rule (2) of Rule 5, in the pro forma prescribed in
Appendix-II.
NOTES:
The Departments of Government shall furnish
information in the pro forma prescribed in Appendix-I
in quadruplicate and the information prescribed in
Appendix-II in duplicate.
(2) On receipt of requisition from the Home Department,
the General Administration Department shall furnish
to the Home Department the up-to-date Confidential
Character Roils in original of each Officer eligible to
be considered for first appointment to the Service
together with three attested copies of the same
W.P.(C) No.14328 of 2023 Page 20 of 79
7. Preparation of consolidated list.--
The Home Department on receipt of information, lists
and documents specified in Rule 6 shall prepare a
consolidated list of officers eligible for consideration
for promotion to the rank of Under Secretaries and
the names of such Officers shall be arranged on the
basis of the total length of their continuous valid
officiation in the eligible grades.
2[Provided that no Section Officer, Level-I shall be
considered for promotion to the post of Under
Secretary in the Service unless on the date the
Selection Board meets he/she has rendered 7
(seven) years of continuous service in the rank of
Section Officer, Level-II and Section Officer, Level-I
taken together:
Provided further that no Assistant Law Officer or
Law Officer in any Department of Government
recruited from the Common Cadre except in case of
the Law Department shall be considered for
inclusion in the list of Officers for consideration for
promotion to the post of Under Secretary in the
service unless his counterpart in the Common Cadre
2 Substituted by Rule 4 of the Odisha Secretariat Service (Amendment) Rules,
2001, published in Odisha Gazette Extraordinary No.623, dated 18.04.2001.
Prior to substitution, proviso to Rule 7 of the OSS Rules, 1980 stood thus:
[Provided that the total length of continuous valid officiation in the eligible grade of
Section Officer Level-I appointed under the Odisha Secretariat Service Class-II
Rules, 1986 for the purpose of this rule, shall be taken into consideration from the
date of completion of ten years of service in the post of Section Officer Level-II
appointed under the Odisha Secretariat Service (Junior) Rules, 1981 and the total
length of continuous valid officiation as Section Officer Level-I, both taken
together.
In the case of Law Officers except in the Law Department the total length of
continuous valid officiation for the purpose of this rule, shall be taken into
consideration from the date of completion of ten years of service in the post of
Legal Assistant/Junior Law Officer and the total length of continuous valid
officiation as Law Officer, both taken together.]
W.P.(C) No.14328 of 2023 Page 21 of 79
having held the post Junior Assistant/Senior
Assistant/Section Officer, Level-II/Section Officer,
Level-I is eligible for such consideration.]
8. Constitution of Selection Board.--
(1) There shall be constituted separate Selection Boards
for selection of Officers for promotion to the different
categories of posts in the services.
(2) (a) For selection of Officers for promotion to the
rank of Under Secretaries The Selection Board
shall consist of the following members, namely:
(i) Secretary Home Department
(ii) Special Secretary, General Administration
Department
(iii) Secretary, Finance Department.
(b) The senior-most Secretary among the members
shall preside over the meetings.
(c) For selection of Officers for promotion to the
rank of Deputy Secretary and Joint Secretary,
the Selection Board shall consist of:
(i) Chief Secretary or in his
absence the Additional Chief
Secretary to Government Chairman
(ii) Secretary to Government,
Home Department Member
(iii) A Secretary to the Government
nominated by the Chairman Member
W.P.(C) No.14328 of 2023 Page 22 of 79
(d) For selection of Joint Secretaries for promotion
to the rank of Additional Secretaries the
Selection Board shall consist of:
(i) Chief Secretary to Government. Chairman
(ii) Additional Chief Secretary to
Government Member
(iii) Development Commissioner and
Secretary to Government Planning
and Co-ordination Department Member
(iv) Secretary to Govemment,
Home Department Member
(3) The Chairman shall preside over the meeting of the
Selection Board. The Deputy Secretary or the Joint
Secretary of Home Department, as the case may be,
dealing with the subject shall act as the Secretary of
the Board without participating in the Selection and
decision.
9. Meeting of the Selection Board.--
The Selection Board constituted under Rule 8 shall
ordinarily meet once in a calendar year and at
intervals ordinarily not exceeding fifteen months.
Provided that the Board may meet more than once in
a calendar year if the select list relating to any grade
has been exhausted or for any other good and
sufficient reason to be recorded in writing.
10. Preparation by the Selection Board of lists suitable
officers for promotion to the service.--
W.P.(C) No.14328 of 2023 Page 23 of 79
(1) Every Selection Boart constituted under rule shall
prepare a list of Officers found suitable for promotion
to the next higher rank for the selection for which
such Board has been constituted.
(2) For preparation of the list of officers fit for promotion
to the rank of Under Secretaries list prepared under
Rule 7 shall be placed before the Board and for
preparation of lists of officers fit for promotion to
other ranks in the service the gradation list of the
eligible grade shall be placed before the Board.
(3) (a) Zone of consideration for promotion to different
posts shall be determined in accordance with
the provisions as contained in the Odisha Civil
Services (Zone of Consideration for Promotion)
Rules, 1988.
Provided that no officer shall be considered for
inclusion in the list of Officers it for promotion
to the higher posts in the service unless he has
worked, including the period of ad hoc
officiation, if any, under sub-rule (2) of Rule 14
in the respective eligible grade for a period of
one year.
(b) For preparation of the list of officers fit for
promotion to the different categories of posts
specified under Rule 3, the Selection Board
shall consider the cases of eligible officers
coming within the zone of consideration as
provided in clause (a) above.
(4) The Selection Board shall not ordinarily recommend
less than double the expected number of vacancies
in each grade.
W.P.(C) No.14328 of 2023 Page 24 of 79
Provided that the Board may recommend less than
double the number of expected vacancies, if
adequate number of officers suitable for promotion to
any of categories of posts in the service are not
available or for reasons to be recorded in writing, the
Board consider it in expedient to recommend double
the number of expected vacancies as aforesaid.
(5) Selection of officers for inclusion in the lists
specified in sub-rule (1) shall be based on merit
and suitability with due regard to seniority
and experience.
(6) Names of officers considered fit for promotion to any
grade in the service shall ordinarily be arranged in
the order of their respective position in the list
prepared under Rule 7 or in the gradation list of
eligible grade, as the case may be.
Provided that any officer, who is of exceptional merit
may be assigned a place higher than that of officers
senior to him in the list prepared under Rule 7 or in
the gradation list of the eligible grade, as the case
may be.
14. Appointment to service.--
(1) Appointment to different ranks in the service
shall be made in the order in which the names
appear in the continuing select list as well as
Select Lists for the time being in force.
(2) When a select list is not in force or has been
exhausted and it is necessary to make temporary
appointments urgently, appointments may be made
different grade of the service on ad hoc basic for a
W.P.(C) No.14328 of 2023 Page 25 of 79
period not exceeding one year on the basis of the
lists prepared by the selection Board under Rule 10.
Provided that ad hoc appointments made under this
sub-rule may be extended beyond the aforesaid
period with the prior concurrence of the Commission.
(3) Officers appointed to any grade of the service for the
first time on the basic of select lists prepared under
these rules shall be on probation for a period of one
year.
Provided that the period of ad hoc appointment
made under sub-rule (2) shall not count towards the
period of probation.
(4) Government may for good and sufficient reason
extend the period of probation of any officer.
19. Reservation of vacancies of Scheduled Castes and
Scheduled Tribes.--
Vacancies shall be reserved for appointment and
promotion in favour of candidates belonging to
Scheduled Castes and Scheduled Tribes and shall
be filled up as prescribed in the Odisha Reservation
of Vacancies in Posts and Services (for Scheduled
Castes and Scheduled Tribes) Act, 1975 and rules
made thereunder.
3[21. Relaxation.--
Where the State Government are of the opinion that
it is necessary or expedient to do so, they may, by
order and for reasons to be recorded in writing, relax
3 Added by Rule 5 of the Odisha Secretariat Service (Amendment) Rules, 2001,
published in Odisha Gazette Extraordinary No.623, dated 18.04.2001.
W.P.(C) No.14328 of 2023 Page 26 of 79
any of the provisions of the rules in respect of any
Class of category of employees in the interest of the
public service in consultation with the OPSC."
10. The Odisha State Legal Service (Method of Recruitment
and Conditions of Service) Rules, 2016:
[2. Definitions.--
(c) DEPARTMENT means a Department of Govrnment as
specified in the First Schedule of the Odisha
Government Rules of Business made under clauus
(3) of Article 166 of the Constitution of India and
shall not include the Law Department;
(e) GOVERNMENT means the Government of Odisha;
4[(f) OFFICE means Departments of Government and
Heads of Department;]
(g) HEADS OF DEPARTMENT means the Heads of
Department as mentioned in Appendix-3 of the
Odisha Service Code and shall no include the Heads
of Department under the Law Department;
5[(h) ***]
(l) SERVICE means the Odisha State Legal Service;
4 Substituted for "(f) Office means different offices of the Government, Heads of
Department and includes Departments of Government;" by Rule 2(1) of the
Odisha State Legal Service (Method of Recruitment and Conditions of Service)
Amendment Rules, 2021, published in Odisha Gazette Extraordinary No.921,
dated 23.06.2021.
5 Omitted for "District Office means the Office of the Collector and District
Magistrate of a Revenue District as well as district level offices of other
Departments of Government;" by Rule 2(2) of the Odisha State Legal Service
(Method of Recruitment and Conditions of Service) Amendment Rules, 2021,
published in Odisha Gazette Extraordinary No.921, dated 23.06.2021.
W.P.(C) No.14328 of 2023 Page 27 of 79
(2) All other words and expressions used in these rules
but not specifically defined shall have the same
meaning as respectively assigned to them in the
Odisha Service Code.
3. Constitution of Service.--
(1) The Service shall consist of the persons recruited to
the Service in accordance with the provisions of
these rules.
(2) The Service shall consist of the following posts in the
6[Departments of Government and Heads of
Department] namely:
(i) Assistant Director (Law) in Group „B‟:
(ii) Deputy Director (Law) in Group „A‟ (Junior);
(iii) Joint Director (Law) in Group „A‟ (Senior);
(iv) Additional Director (Law);
(v) Director (Law), and
(vi) Such other post as Government may, from time
to time, by notification, decide.
(3) The Cadre shall consist of such number of
permanent and temporary posts of each category as
specified under sub-rule (2), as the Government may,
from time to time, by notification, determine and
includes the posts which are to be reserved for
6 Substituted for "Departments of Government, Heads of Department and District
Offices" by Rule 3 of the Odisha State Legal Service (Method of Recruitment and
Conditions of Service) Amendment Rules, 2021, published in Odisha Gazette
Extraordinary No.921, dated 23.06.2021.
W.P.(C) No.14328 of 2023 Page 28 of 79
deputation to quasi-judicial Bodies as the State
Government may decide from time to lime
4. Cadre Controlling Authority.--
The recruitment and appointment to the Service shall
be under the administrative control of the Home
Department.
5. Method of recruitment to the Service.--
Subject to the other provisions made in these rules,
the recruitment to the posts in the service shall be
made by the following methods, namely:
(a) recruitment to the posts of Assistant Director
(Law) shall be made by the Commission by
way of direct recruitment through competitive
examination:
7[(a-1) All Assistant Law Officers who have
rendered seven years of continuous service as
such and all Law Officers working in different
Departments of Government or Heads of
7 Substituted for the first and second proviso to clause (a) of Rule 5 by Rule 4 of
the Odisha State Legal Service (Method of Recruitment and Conditions of
Service) Amendment Rules, 2021, published in Odisha Gazette Extraordinary
No.921, dated 23.06.2021. Prior to substitution, said provisos stood thus:
[Provided that after commencement of these rules, twenty-five percentum of the
posts of Assistant Director (Law) shall be filled up by way of absorption--
(i) from among the existing Law Officers working in different offices under
the Government in the scale of pay of Rs.9300-34,800/- with Grade Pay of
Rs.4600/- and
(ii) from among the existing Assistant Law Officers working in different offices
under the Government, those who have rendered at least 10 (ten) years of
continuous service as such.
(iii) those who do not meet the standards should not be promoted and they
may be reverted back to their parent cadre.
Provided further that twenty-five percentum of the posts meant for absorption
shall cease to operate on completion of such absorption of all the existing Law
Officers and Assistant Law Officers and accordingly all the vacant posts of
Assistant Director (Law) arising thereafter shall be filled up by way of direct
recruitment, by the Commission;]
W.P.(C) No.14328 of 2023 Page 29 of 79
Departments shall be absorbed in the post of
Assistant Director (Law):
Provided that the Assistant Law Officers who
have not rendered seven years of continuous
service as such shall be absorbed in the post of
Assistant Director (Law) on completion of seven
years of continuous service.
(a-2) The process of absorption shall cease to
operate after all the existing Assistant Law
Officers and Law Officers are finally absorbed
in the post of Assistant Director (Law).]
(b) recruitment to the posts of Deputy Director
(Law) shall be made by way of promotion from
the eligible Assistant Directors (Law), who have
put in not less than seven years of continuous
service as such;
8[Provided that the officers so absorbed in the
post of Assistant Director (Law) having
completed seven years of continuous service
from the date of availing Pay Level-10 of pay
matrix under the Odisha Revised Scale of Pay
Rules, 2017 shall be eligible for promotion to
the post of Deputy Director (Law) after
completion of one year of continuous service in
the post of Assistant Director (Law).]
(c) recruitment to the posts of Joint Director (Law)
shall be made by way of promotion from the
eligible Deputy Directors (Law) who have put in
8 Inserted proviso by Rule 5 of the Odisha State Legal Service (Method of
Recruitment and Conditions of Service) Amendment Rules, 2021, published in
Odisha Gazette Extraordinary No.921, dated 23.06.2021.
W.P.(C) No.14328 of 2023 Page 30 of 79
not less than five years of continuous service
as such;
(d) recruitment to the post of Additional Director
(Law) shall be made by way of promotion from
the eligible Joint Directors (Law) who have put
in not less than three years of continuous
service as such;
(e) recruitment to the post of Director (Law) shall
be made by way of promotion from the eligible
Additional Directors Law) who have put in at
least one year of continuous service as such:
Provided that in case of non-availability of suitable
persons for promotion to the post of Additional
Director (Law) and the post of Director (Law), it shall
be filled up by way of deputation for such periods as
the post of Director (Law) and the post of Director
(Law), it shall be filled up by way of deputation for
such periods as the Government may deem fit by
suitable officers from the Odisha Superior Judicial
Service Cadre and from any other service, if the
Government so decide.
6. Reservation.--
Notwithstanding anything contained in these rules
reservation of vacancies or posts, as they may be,
for;
(a) Scheduled Castes and Scheduled Tribes shall
be made in accordance with the provisions of
the Odisha Reservation of Vacancies in Posts
and Services (for Scheduled Castes and
W.P.(C) No.14328 of 2023 Page 31 of 79
Scheduled Tribes) Act, 1975 and the rules
made thereunder; and
(b) SEBC, Women, Sportsmen, Ex-servicemen and
Persons with Disabilities shall be made in
accordance with the provisions made under
such Act, Rules, Orders or Instructions issued
in this behalf by the Government, from time to
time.
8. Inter se Seniority.--
(1) The inter se seniority in the rank of Law Officers as
well as Assistant Law Officers working in different
offices under the Government shall be fixed on the
basis of the date of joining in respective posts.
(2) The officer appointed by way of absorption in a year
to the post of Assistant Director (Law) shall be
enblock senior to the officer appointed through direct
recruitment under Rule 7.
10. Constitution of Selection Committee.--
(1) There shall be separate Selection Committees for
selection of Officers for promotion to different
categories of posts specified in sub-rule (2) of Rule 3.
(2) For the purpose of promotion to the rank of Assistant
Director (Law), Deputy Director (Law), Joint Director
(Law) and Additional Director (Law), the Committee
shall consist of the following members, namely:
(i) Secretary to Government,
Home Department Chairman
W.P.(C) No.14328 of 2023 Page 32 of 79
(ii) Secretary to Government
Law Department Member
(iii) Special Secretary to Government,
GA Department Member
(iv) Additional Secretary Joint Secretary,
Home Department Member-Convenor
(3) For the purpose of promotion to the rank of Director
(Law), the Committee shall consist of the following
members, namely:
(i) Chief Secretary Chairman
(ii) Secretary to Government,
Home Department Member
(iii) Secretary to Government,
Law Department Member
(iv) Special Secretary to Government,
GA Department Member
(v) Addl. Secretary Joint Secretary,
Home Department Member-Convenor
(4) The Committee shall meet at least once in a year
preferably in the month of January to prepare a list
of officers suitable for promotion to the next higher
grade.
(5) The Committee while considering the
promotion cases of suitable officers and
preparation of the list shall follow the
provisions of--
W.P.(C) No.14328 of 2023 Page 33 of 79
(a) the Odisha Reservation of Vacancies in Posts
and Services (for Scheduled Castes and
Scheduled Tribes) Act, 1975 and the rules
made thereunder wherever necessary;
(b) the Odisha Civil Services (Zone of
Consideration for Promotion) Rules, 1988;
(c) the Odisha Civil Services (Criteria for
Promotion) Rules, 1992 and
(d) the Odisha Civil Servicse (Criteria for Selection
for Appointment including Promotion) Rules,
2003.
(6) The recommendation of the Committee shall be valid
and can be acted upon notwithstanding the absence
of any one of its members other than the Chairman:
Provided that the member so absenting was duly
invited to attend the meeting of the Committee and
the majority of members of the Committee attended
the meeting.
11. Consultation with the Commission.--
(1) The recommendation of the Committee under sub-
rule (6) of Rule 10 shall be referred to the
Commission along with following documents,
namely:
(a) Gradation list with service particulars of the
officers coming under zone of consideration:
(b) The Confidential Character Rolls of all officers
considered by the Committee:
W.P.(C) No.14328 of 2023 Page 34 of 79
(c) Up-to-date position of disciplinary/Criminal
Proceedings and vigilance enquines pending
against officers under consideration.
(2) The Commission shall consider the list along with
the Service particulars received under sub-rule (1)
and shall furnish its recommendations to the
Government.
12. Select List.--
(1) The recommendations of the Commission in respect
of reference made to it under sub-rule (1) of Rule 11
shall be considered by the Government and the list
approved by Government with changes, if any, shall
form the Select List.
(2) The Select List shall ordinarily remain in force for a
period of one year with effect from the date of its
approval by the Government or until another Select
List is prepared, whichever is earlier.
13. Appointment to the Service.--
Appointment to different posts in the service shall be
made in the order in which the names of officers
appear in the select list.
14. Inter se Seniority.--
Save as provided in sub-rule(2) of rule 8, the inter-se
seniority of the officers appointed to any post in the
service shall be in the order in which their names
appear in the select list under sub-rule (7) of Rule 7
and of sub-rule (1) of Rule 12.
16. Other Conditions of Services.--
W.P.(C) No.14328 of 2023 Page 35 of 79
The conditions of services of the members of the
Service in regard to matters not covered by these
rules shall be the same as may, from time to time, be
prescribed by the Government.
17. Relaxation.--
Where the Government are of the opinion that it is
necessary or expedient so to do, may by order for
reasons to be recorded in writing, relax any of the
provisions of these rules in respect of any class or
category of employees in the interest of the Public
Service in consultation with the Commission.
18. Interpretation.--
If any question arises relating to the interpretation of
these rules, it shall be referred to Government whose
decision thereon shall be final."
BACKGROUND AND STATUS OF AMENDMENT TO RULES 5 AND 7 OF THE
OSS RULES, 1980 BY VIRTUE OF THE OSS (AMENDMENT) RULES,
2001:
11. This Court, while dealing with vires of amendment to
Rules 5 and 7 of the OSS Rules, 1980 by virtue of the
OSS (Amendment) Rules, 2001 in the case of State of
Odisha Vrs. Sarada Kanta Tripathy, 2018 (II) ILR-CUT
416 in a challenge against the Order dated 12.05.2011
of the Odisha Administrative Tribunal, Cuttack Bench,
Cuttack in Original Application being O.A. Nos.1235(C)
of 2001, 3462(C) of 2001 and 1113(C) of 2001, held as
follows:
W.P.(C) No.14328 of 2023 Page 36 of 79
"5. *** Thus, it is clear from the above provisions of Rule
7 of Rules, 1980 that Section Officer Level-I shall be
considered for promotion to the cadre of Under
Secretary on completion of 10 years of service in the
cadre of Section Officer Level-I and Section Officer
Level-II taken together. Likewise, Law Officers
except in the Law Department can be considered for
promotion to the cadre of Under Secretary on
completion of 10 years service in the cadre of Legal
Assistant/Junior Law Officer (Assistant Law Officer)
and Law Officer taken together.
***
12. Admittedly, the promotional post of Under
Secretary in the Odisha Secretariat has two
feeder cadres, namely, Ministerial Cadre and
Cadre of Law Officers. As discussed earlier, the
Section Officer Level-I and Law Officers of the
Departments of Government (except Law
Department) are the feeder cadre posts to be
promoted to the cadre of Under Secretary. Their
scale of pay is same. In Rules, 1980, both feeder
cadres were given equal weightage, but by virtue of
the Amendment Rules, 2001, the experience of 10
years for the Ministerial Cadre has been reduced to
7 years and the employees belonging to the cadre of
Law Officer were made to wait till his counterpart in
the common cadre of ministerial officers become
eligible for such consideration. Learned Government
Advocate, in order to substantiate its averments in
the counter affidavit, produced the memorandum
dated 06.01.2001 of the Home Department in course
of hearing, which deals with the object behind
amendment of Rules 5(2) and 7 of Rules, 1980. It is
W.P.(C) No.14328 of 2023 Page 37 of 79
stated, inter alia that, after introduction of common
cadre in the level of Junior Assistant to the level of
Section Officer in the Secretariat and due to
imposition of ban on creation of new posts, the
promotional avenue available to the Secretariat
employees have been narrowed, as a result of
which, Senior Assistant of different Departments of
the Secretariat are promoted to the post of Section
Officer Level-II after rendering more than 20 years of
service in the rank of Senior Assistant. As a result,
experienced officers in the OSS Cadre could not be
considered for promotion to the rank of Under
Secretary as they could not acquire the requisite
experience of 10 years of service in the rank of
Section Officer Level-II and Section Officer Level-I
taken together. Whereas the Law Officers having 10
years of service experience in the rank of Assistant
Law Officer and Law Officer got a march over the
ministerial cadre. Further, it is the memorandum
which contained that the Law Officers cannot lay
any legitimate claim for accelerated promotion solely
on the basis of their additional qualification of Law.
It further appears from the memorandum that the
object behind the amendment of Rules, 1980 was
that no regular or uniform procedure was followed
by different Department in selecting Legal Assistant
(presently Assistant Law Officer or Law Officer).
Thus, the amendment of Rules 5(2) and Rule 7 of
Rules, 1980 was expedient.
13. From a close scrutiny of the memorandum dated 6 th
January, 2001, it appears that the amendment of
Rules, 1980 became expedient as the ministerial
cadre could not get equal opportunity for promotion
W.P.(C) No.14328 of 2023 Page 38 of 79
to the post of Under Secretary. The situation of ban
imposed by the State Government to creation of new
posts was temporary and cannot be a ground for
amendment of the Rules. Further, other two grounds
stated in the memorandum are also equally
untenable for the reason it does not meet the
scrutiny of reasonableness. Both the Ministerial
Cadre and the cadre of Law Officer have their
distinct entity. The Senior Assistant having a
degree in Law and 5 years of service experience
has to appear in a selection test for
appointment as Assistant Law Officer and on
being appointed as such, he ceases to be a
member in the Ministerial Cadre. They have
their own hierarchy of promotion. Further, the
terms 'common cadre' and 'counterpart' etc.
becomes misnomer and misleading after a
Senior Assistant leaves the Ministerial Cadre
by joining the cadre of Law Officer. Thus,
keeping the cadre of Law Officer waiting till an
employee in the Ministerial Cadre becomes
eligible, is by itself an attempt to make the
unequals equal which is forbidden under law
and does not stand to the scrutiny of
classification making the differentia, as held
in Ajay Hasia, AIR 1981 SC 487 = (1981) 2 SCR
79. Further, it is sheer arbitrary and unreasonable
legislative action of the State by curtailing
promotional avenue of the Law Officers even if they
are otherwise eligible for the same. The Amendment
Rules, 2001 is otherwise ambiguous and does not
stand to the scrutiny of Article 16 of the Constitution
as it does not make any provision for promotion of
direct recruits into the cadre of Law Officers.
W.P.(C) No.14328 of 2023 Page 39 of 79
14. In that view of the matter, while upholding the
impugned order passed by learned Tribunal, we
declare the Amendment Rules, 2001 to be ultra vires
of Articles 14 and 16 of the Constitution of India and
strike down the same.
The State-Respondents are directed to convene
review DPC for the Applicants and other eligible
officers for promotion to the cadre of Under Secretary
as per the provisions of Rules, 1980 in respect of the
vacancies of the year 2001 and also for subsequent
years and grant all consequential benefits within a
period of three months hence."
11.1. Said matter was further carried to the Hon‟ble Supreme
Court by the State of Odisha in S.L.P.(C) Nos.6168-6173
of 2019, which came to be dismissed on 01.10.2020 with
the following direction:
"The conclusions drawn by the High Court, while holding
the concerned Rules to be ultra vires, in our considered
view, are absolutely right. We, therefore, affirm the view
insofar as the issue of vires is concerned.
As regards, the directions granting consequential benefits,
it is clarified:
a) In terms of directions issued in the latter part of para
14, review DPC for the applicants and other eligible
officers for promotion to the cadre of Under Secretary
as per provisions of Rules, 1980, in respect of the
vacancies of the year 2001 and for subsequent
years shall be held within two months from the date
of this Order.
W.P.(C) No.14328 of 2023 Page 40 of 79
b) In terms of such review DPC, the orders granting
benefit of fixation of pay and consequential benefits
on that account shall be finalized within a month
thereafter.
c) The applicants and other eligible officers shall be
entitled to benefits in terms of such fixation as
under:
(i) If the concerned applicants and other eligible
officers had attained the age of superannuation
on or before 01.08.2018, that is the day the
decision of the High Court was rendered, their
last drawn pay shall be refixed in terms of
such fixation and the concerned applicants and
other eligible officers shall be entitled to
consequential benefits in terms of upward
revision of their retiral dues on and with effect
from 01.08.2018.
(ii) In case of the applicants and other eligible
officers had not attained the age of
superannuation on or before 01.08.2018, all
the monetary benefits on account of such
fixation shall be granted to them on and with
effect from 01.08.2018.
(iii) It is made clear that for the period prior to
01.08.2018 the applicants and other eligible
officers will be entitled to only notional benefits
and not monetary benefits.
d) As a result of such review DPC, no person shall be
reverted and all administrative instructions issued
and steps undertaken by the Department shall hold
good and any monetary benefits availed by such
W.P.(C) No.14328 of 2023 Page 41 of 79
person shall stand protected and secured. However,
the seniority of such person in the cadre of Under
Secretary shall be refixed in keeping with the
decision of the High Court.
With aforestated directions, the Special Leave Petitions
are dismissed."
THE IMPUGNED ORDER DATED 02.02.2023 DENYING CLAIM OF THE
PETITIONER:
12. Following Order has been passed on 02.02.2023 by the
Additional Chief Secretary to the Government of Odisha
in Home Department:
"Government of Odisha
Home Department
ORDER
Bhubaneswar Dated the 02/02/2023 No. HOME-OSS-CASE1-0003-2023--4159/OSS Whereas Sri Chira Kumar Mohapatra, an Officer in the rank/Cadre of Under Secretary and posted at present at Forest & Environment Department, Government of Odisha, has filed WP(C) No 36580/2022 in the Hon‟ble High Court of Orissa with a prayer to quash the Annexure-14 and to antedate his promotion to the post of Under Secretary with effect from 29.02.2020 as per decision of the Hon‟ble Apex Court dated 01.10.2020 in SLP(C) No 6168-6173/2019 and to allow him the consequential promotion to the post of Under Secretary with effect from 29.02.2020 with consequential fixation of inter-se seniority in the cadre of Under Secretary.
W.P.(C) No.14328 of 2023 Page 42 of 79And whereas the Hon‟ble High Court has disposed of the Writ Petition vide their Order dated 04.01.2023 with a direction to consider the representation dated 01.08.2022 filed by the petitioner under Annexure-13 of the Writ Petition in accordance with law within a period of eight weeks from the date of production of certified copy the order.
And whereas in obedience to the direction of the Hon‟ble High Court dated 04.01.2023 in WP(C) No. 36580/2022, the petitioner submitted a certified copy of the order alongwith representation and requested for consideration of his representation.
And whereas the petitioner while working as Assistant Law Officer along with 03 others had filed WP(C) No. 12807/2021 for considering their cases for promotion to the rank of Under Secretary with consequential benefits in accordance with the OSS Rules, 1980, which was disposed of by the Hon‟ble Court on Dt.09.04.2021 with a direction to the O.P. to take lawful decision on the prayer of the petitioners.
And whereas after careful examination of the provisions contained in Rule 5 of OSS Rules, 1980, it is found that only the Law Officers and Section Officers, Level-I (Re- designated as Desk Officer) in the feeder grade are eligible for promotion to the rank of Under Secretary. The petitioner being an Assistant Law Officer was not eligible for promotion. However considering the period of service rendered by the petitioner as Assistant Law Officer, it was decided to consider the cases of the petitioner alongwith Sri Prafulla Kumar Mohanty for promotion to the rank of Under Secretary as a special case due to the hardships W.P.(C) No.14328 of 2023 Page 43 of 79 faced by them. Accordingly, the above Assistant Law Officers were given deemed promotion to the rank of Law Officer and then promoted to the rank of Under Secretary vide Home Department Notification No. 40459/OSS dated 17.11.2021 with prospective seniority. Such promotion has been challenged before the Hon‟ble High Court of Orissa in WP(C) No. 38855/2021 and WP(C) No 38857/2021.
And whereas the Hon‟ble Apex Court vide order dated 01.10.2020 in SLP(C) No. 6168-6173/2019 has struck down the provision of counterpart concept of OSS (Amendment) Rules, 2001. Hence, granting seniority to the petitioner on the basis of initial counterpart of OSS Cadre is illegal and void in the eye of the Law.
And the Government after careful consideration of the representation of the petitioner Sri Chira Kumar Mohapatra, the OSS Rules, 1980 and order of Hon‟ble Apex Court in SLP(C) No.6168-6173/2019, is of view that the claim of the petitioner for antedation of his promotion in the post of Under Secretary with effect from 29 02.2020 with all consequential benefits sans any merit and reject the same.
Sd/-
Additional Chief Secretary to Government"
ANALYSIS AND DISCUSSIONS:
13. Being sponsored by the Home Department vide Letter No.42113/CC/PSC, dated 27.07.1992, the petitioner was appointed as Junior Assistant in General Administration Department by Letter No.OE/1-23/92--W.P.(C) No.14328 of 2023 Page 44 of 79
32405/Gen., dated 22.08.1992 and claims to have joined on 24.08.1992 and got promoted to the post of Senior Assistant (now, Assistant Section Officer) on 11.11.1997.
13.1. He was appointed as Assistant Law Officer by an Office Order, which is reproduced hereunder:
"Government of Odisha Fisheries and ARD Department OFFICE ORDER 6055-I Estt.104/2009/FARD, Bhubaneswar, dated the 01.06.2010 Sri Chira Kumar Mohapatra, Assistant Section Officer of Law Department is appointed as Assistant Law Officer in Fisheries & ARD Department in the Scale of Pay Rs.9300- 34800/- + Grade Pay Rs.4200/- in the Pay Band-2 with usual D.A. and other allowances as admissible to State Government employees from time to time with effect from the date he actually joins in the post.
This appointment is provisional and subject to clearance of GA (Vig) Department.
By order of Principal Secretary K.N. Jena Joint Secretary to Govamment"
13.2. After Rules 5 and 7 of the OSS Rules, 1980, as amended by virtue of the OSS (Amendment) Rules, 2001, being declared ultra vires in State of Odisha Vrs. Sarada Kanta Tripathy, 2018 (II) ILR-CUT 416 and set at rest by W.P.(C) No.14328 of 2023 Page 45 of 79 dismissal of S.L.P.(C) Nos.6168-6173 of 2019 filed at the behest of State of Odisha, the Government has undertaken the process as directed in the Order dated 01.10.2020 by the Hon‟ble Supreme Court. Said case was relating to promotional prospects of the Law Officers, but not the Assistant Law Officers.
13.3. It has been affirmed that since there was no cadre rules in vogue, with effect from 11.01.2017 the Odisha State Legal Services Rules, 2016 came into force with promotional prospects up to the rank of Director (Law). As per Rule 5(a)(ii) of the OSLS Rules, twenty-five percent of Assistant Directors (Law) is to be filled up by way of absorption from among the existing Law Officers working in the Scale of Pay of Rs.9300-34800/- with Grade Pay of Rs.4600/- and from among the existing Assistant Law Officers working in different offices under the Government, those who have rendered at least 10 years of continuous service as such.
13.4. The petitioner completed 10 years as the Assistant Law Officer on 03.06.2020. Needless to observe that the subsequent amendment, viz., the Odisha State Legal Service (Method of Recruitment and Conditions of Service) Amendment Rules, 2021, by virtue of which in terms of clause (a-1) of Rule 5 of the OSLS Rules, 2016 "All Assistant Law Officers who have rendered seven W.P.(C) No.14328 of 2023 Page 46 of 79 years of continuous service as such and all Law Officers working in different Departments of Government or Heads of Departments shall be absorbed in the post of Assistant Director (Law) and it is also provided that the Assistant Law Officers who have not rendered seven years of continuous service as such shall be absorbed in the post of Assistant Director (Law) on completion of seven years of continuous service" has no application to the present case inasmuch as the said Amendment Rules has come into force with effect from 23.06.2021. Before the said Amendment Rules, 2021 came to be effective, the petitioner completed 10 years continuous service as Assistant Law Officer.
13.5. On 31.03.2021, the Home Department created the posts of Assistant Director (Law) under the OSLS Cadre. Relevant portion of the communication of the Home Department runs as follows:
"Government of Odisha Home Department No. HOME-OSS-CRTN1-0001-2017--13846/OSS dated 31.03.2021 From R.L. Singh, OAS (SB) Deputy Secretary to Government W.P.(C) No.14328 of 2023 Page 47 of 79 To The Principal Accountant General (A&E) Odisha, Bhubaneswar Sub.: Creation of posts of Assistant Director (Law) under Odisha State Legal Service Cadre.
Sir, In supersession of this Department Notification No.4374 dt. 29.01.2020, Government, after careful consideration, have been pleased for creation of total 90 (Ninety) posts of Assistant Director (Law) in Level- 10 Pay Matrix under ORSP Rules, 2017 under Odisha State Legal Service Cadre in the Departments of Government.
Each such Administrative Department shall create the required number of posts of Assistant Director (Law) assigned against them as specified in the list at Annexure-A. They shall be entitled for usual D.A and other allowances as applicable to State Government employees.
Keeping in view the integration of HoDs with Administrative Departments, the Administrative Departments shall distribute the posts to their HoDs as per their requirement while retaining for their own.
With the creation of posts of Assistant Director (Law) by the Administrative Departments; the Assistant Law Officers completing the prescribed residency period of service under Odisha State Legal Service Rules, 2016 in their Departments/HoD as well as W.P.(C) No.14328 of 2023 Page 48 of 79 the Law Officers of Departments/HoD as per the said Rule shall be deemed to be absorbed in the post of Assistant Director (Law) with prospective effect and the corresponding post(s) of Law Officer and Assistant Law officer shall stand abolished and they shall be re-designated as Assistant Director (Law) counting their previous service period.
Concurrence of Finance Department has been obtained in OSWAS file No.HOME-OSS-PMTN-0015- 2019 and No. HOME-OSS-CRTN1-0001-2017.
Yours faithfully, Sd/-
Deputy Secretary to Government"
13.6. In the counter affidavit it has been clarified by the opposite parties that, under the Odisha Secretariat (Junior Branch) Rules, 1980 the promotional post of Under Secretary in the Odisha Secretariat has two feeder grades, namely Section Officer, Level-I and Law Officer of the Department of Government (except Law Department). This Court on analysis of relevant rules observed in State of Odisha Vrs. Sarada Kanta Tripathy, 2018 (II) ILR-CUT 416 that the promotional post of Under Secretary in the Odisha Secretariat has two feeder cadres, namely, Ministerial Cadre and Cadre of Law Officers and in OSS Rules, 1980, both the feeder cadres were given equal weightage.W.P.(C) No.14328 of 2023 Page 49 of 79
13.7. The factual matrix of this case borne on record depict that the petitioner was appointed as Junior Assistant on 24.08.1992 and was promoted to the post of Senior Assistant as per the Odisha Ministerial Service (Method of Recruitment and Conditions of Service of Junior Assistants in the Offices of Departments of Secretariat) Rules, 1951 and, subsequently got promoted to the post of Assistant Law Officer in terms of the OSS Rules, 1980 on 04.06.2010. Therefore, the Junior Assistant who gets promoted to the post of Senior Assistant and thereafter Section Officer (Level-II and Level-I) cannot be treated to be equal to the Junior Assistant who got promoted to the post of ALO.
13.8. In such view of the matter, this Court finds force in the submission of learned Government Advocate that the grievance of the petitioner was considered treating to fall under "special case". At this juncture the Home Department Notification dated 17.11.2021 is reproduced hereunder for ready reference:
"Government of Odisha Home Department NOTIFICATION Bhubaneswar, Dated the 17-11-2021 No. PT1-HOME-OSS-CASE1-0018-2021--40459/OSS, W.P.(C) No.14328 of 2023 Page 50 of 79 In obedience to the Order dated 09.04.2021 and 28.07.2021 of the Hon‟ble High Court, Orissa in WP(C) No. 12807/2021, the cases of the following 02 ALOs are considered for promotion as a special case due to hardship faced by them. They are deemed to be promoted to the rank of Law Officer and then promoted to the rank of Under Secretary on an ad hoc basis for a period of one year or till regular promotion is made in consultation with the Odisha Public Service Commission or till the date of their retirement whichever is earlier.
On promotion to the rank of Under Secretary, they are posted as follows:
Sl. Name of the Officer Present place Place of posting on promotion
No. of Posting
1 Sri Prafulla Kumar Finance Finance Department (Against the
Mohanty Department post transferred vide this
Department Notification No.40443,
dated 17.11.2021
2 Sri Chira Kumar Forest and Forest & Environment Department
Mohapatra Environment (Against the post transferred vide
Department this Department Notification
No.40444, dated 17.11.2021
On such promotion, their inter-se-seniority in the rank of Under Secretary is fixed below all the existing Under Secretaries promoted earlier.
By Order of the Governor Sd/- 17.11.2021 Joint Secretary to Govemment"
13.9. As relied on by Sri Bhabani Sankar Tripathy, learned Advocate for the petitioner on the Home Department Memorandum dated 08.11.2021 regarding "Meeting of the Selection Board for selection of Assistant Law W.P.(C) No.14328 of 2023 Page 51 of 79 Officers for promotion to the rank of Law Officer/Under Secretary in Odisha Secretariat Service Cadre", in the review DPC it has been observed that pursuant to direction of this Court in Order dated 09.04.2021 passed in W.P.(C) No.12807 of 2021, the promotion of the petitioner to the post of Under Secretary was considered as "special case" and on "hardship ground".
13.10. It has been stipulated under Rule 10 of the OSS Rules, 1980 with regard to preparation of selection list of suitable officers for promotion to different posts is required to be determined in accordance with the provisions as contained in the Odisha Civil Services (Zone of Consideration for Promotion) Rules, 1988. Nonetheless, as consideration of the petitioner to the rank of Under Secretary was a "special case", the requirement of consideration of "zone of consideration"
did get dispensed with and in the review DPC, in view of Rule 3 of the Odisha Civil Services (Criteria for Promotion) Rules, 1992 the Performance Appraisal Report/Confidential Character Rolls for the years 2015- 16 to 2019-20 as per General Administration & Public Grievance (SE) Department Clarification No.1103/SE, dated 19.05.2020 read with Clarification No.5906/Gen., dated 24.02.2005 was taken into consideration. While doing so, it was suggested by the Additional Secretary to Government as follows:W.P.(C) No.14328 of 2023 Page 52 of 79
"Accordingly, they may be deemed to be promoted to the rank of Law Officer on completion of seven years. On such promotion, they are eligible for promotion to the rank of Under Secretary on completion of ten years as ALO/LO taken together. As such they are eligible for promotion to the post of Under Secretary with effect from 01.01.2021 as a special case on the condition that they cannot claim any seniority from retrospective effect. Accordingly, Under Secretary DPC dated 19.01.2021 may be reviewed and their seniority may be fixed below the existing Under Secretaries on the date of their promotion.
*** The Selection Committee may peruse the PARs/CCRs along with other service records of the candidates and recommended the suitable ALOs for their promotion to the post of Law Officer (notionally) on completion of 7 years and subsequently to the post of Under Secretary on completion of 10 years from the date of their joining as ALO."
13.11. The Selection Board in its Meeting held on 09.11.2021 considered the promotion of the petitioner, ALO, to the rank of Law Officer (deemed promotion) and then Under Secretary, ignoring the provisions of the Odisha Civil Services (Zone of Consideration for Promotion) Rules, 1988.
14. Such being the consideration of the case of the petitioner for promotion to the rank of Under Secretary after treating deemed promotion to the post of LO from ALO, W.P.(C) No.14328 of 2023 Page 53 of 79 nothing is pointed out regarding statutory or binding rule which mandates or lays down a time limit for filling up of the existing vacancies in the post of Under Secretary.
14.1. The right of an employee to be considered for promotion accrues only on the date of consideration of eligible candidates by the Department and not before or if the Rules provide for a particular time-frame in which the selection process is to be concluded. No right accrues to the candidates upon occurrence of vacancies.
14.2. In State of Bihar Vrs. Akhouri Sachindra Nath, (1991) 2 SCR 410, it was held that no person can be promoted with retrospective effect from a date when he was not borne in the cadre so as to adversely affect others.
14.3. It is pertinent to have regard to Director, Lift Irrigation Corporation Ltd. Vrs. Pravat Kiran Mohanty, (1991) 1 SCR 341, wherein it has been stated thus:
"The contention of the appellants is that the respondent has no right to be kept in a particular wing. The Corporation, with a view to create two categories, namely, Mechanical and Electrical sought to amalgamate the third Composite Mechanical/Electrical Wing and sought for options from the persons holding the composite posts. This was taken due to administrative exigency. The Corporation has power to carve out by amalgamating three sections, into two divisions and to prepare the W.P.(C) No.14328 of 2023 Page 54 of 79 seniority lists from the respective date of their initial appointment, etc. The High Court, therefore, was unjustified to quash the Gradation Lists. It was contended for the respondent by Sri Misra, his learned counsel, that the persons from the three wings are only deputationists holding lien on Government posts. The Corporation did not frame any scheme of its own to appoint its own employees, nor given options to all the deputationists for confirmation as its employees. So long as the employees are continuing on deputation, they are entitled to have seniority in the respective wings. The writ petitioner admittedly has been working on the Electrical Wing and was No.2 in the order of seniority as Sub-Assistant Engineer (Electrical). His right to seniority, cannot be disturbed by taking Mechanical Supervisor into the Electrical Wing, offending his right to promotion enshrined under Articles 14 and 16 of the Constitution. The writ petitioner holds only Diploma in Electrical Engineering. S/Shri Bidura Charan Mohapatra and Parijat Ray hold double diploma of Mechanical and Electrical Engineering. It is settled law that the Government or the Corporation, due to administrative exigencies, is entitled to and has power to reorganise the existing cadres of amalgamate some or carve out separate cadres. The pre-existing three separate cadres, namely, Electrical, Mechanical and the composite cadre, namely, Electrical-Mechanical were sought to be amalgamated into two cadres by absorbing the personnel working in the composite cadre, namely, Electrical-Mechanical in either Electrical cadre or Mechanical cadre. Options have been called for in that regard from all the persons working in the Electrical- Mechanical cadre, and the appellants exercised their options for absorption in Electrical cadre. The employees working in the Electrical and Mechanical cadres were also W.P.(C) No.14328 of 2023 Page 55 of 79 aware of the same. It was, therefore, open to the respondent, to raise any objection to the policy at that stage. But he failed to so. The decision to amalgamate the existing cadres by reorganising into two cadres was a policy decision taken on administrative exigencies. The policy decision is not open to judicial review unless it is mala fide, arbitrary or bereft of any discernible principle. On account of the amalgamation and adjusting the composite Electrical-Mechanical cadre in either of the Electrical or Mechanical cadre as per the options given, the order of seniority of the employees working in Electrical or Mechanical cadres is likely to be reviewed. When the persons in the composite Electrical-Mechanical cadre opted to the Electrical cadre, they are entitled to be considered for their fitment to the cadre as per the seniority from the date of their initial appointment vis-a- vis their scale of pay. This was the procedure adopted by the Corporation in fixing the inter se seniority. The procedure adopted is just, fair and reasonable and beneficial to all the employees without affecting their scales of pay or loosing the seniority from the date of initial appointment. Undoubtedly, in this process the respondent/writ petitioner lost some place in seniority which is consequential to amalgamation. He has not been deprived of his right to be considered for promotion, only his chances of promotion have been receded. It was not the case of the respondent that the action was actuated by mala fide or colourable exercise of power. There is no fundamental right to promotion, but an employee has only right to be considered for promotion, when it arises, in accordance with the relevant rules. From this perspective in our view the conclusion of the High Court that the Gradation List prepared by the W.P.(C) No.14328 of 2023 Page 56 of 79 Corporation is in violation of the right of the respondent/writ petitioner to equality enshrined under Article 14 read with Article 16 of the Constitution, and the respondent/writ petitioner was unjustly denied of the same is obviously unjustified."
14.4. In Dinesh Kumar Sharma, (2004) 10 SCC 734, the following is the observation:
"Another issue that deserves consideration is whether the year in which the vacancy accrues can have any relevance for the purpose of determining the seniority irrespective of the fact when the persons are recruited. Here the respondent's contention is that since the vacancy arose in 1995-1996, he should be given promotion and seniority from that year and not from 1999, when his actual appointment letter was issued by the appellant. This cannot be allowed as no retrospective effect can be given to the order of appointment order under the Rules nor is such contention reasonable to normal parlance. This was the view taken by this Court in Jagdish Ch. Patnaik Vrs. State of Orissa, (1998) 4 SCC 456."
14.5. In Uttaranchal Forest Rangers‟ Assn. (Direct Recruit) Vrs.
State of U.P., (2006) 10 SCC 346, the following is the observation of the Hon‟ble Supreme Court of India:
"37. We are also of the view that no retrospective promotion or seniority can be granted from a date when an employee has not even been borne in the cadre so as to adversely affect the direct recruits appointed validly in the meantime, as decided by this Court in Keshav Chandra Joshi Vrs. Union of W.P.(C) No.14328 of 2023 Page 57 of 79 India, 1992 Supp (1) SCC 272 held that when promotion is outside the quota, seniority would be reckoned from the date of the vacancy within the quota rendering the previous service fortuitous. The previous promotion would be regular only from the date of the vacancy within the quota and seniority shall be counted from that date and not from the date of his earlier promotion or subsequent confirmation. In order to do justice to the promotees, it would not be proper to do injustice to the direct recruits. The rule of quota being a statutory one, it must be strictly implemented and it is impermissible for the authorities concerned to deviate from the rule due to administrative exigencies or expediency. The result of pushing down the promotees appointed in excess of the quota may work out hardship, but it is unavoidable and any construction otherwise would be illegal, nullifying the force of the statutory rules and would offend Articles 14 and 16(1) of the Constitution.
38. This Court has consistently held that no retrospective promotion can be granted nor any seniority can be given on retrospective basis from a date when an employee has not even borne in the cadre particularly when this would adversely affect the direct recruits who have been appointed validly in the meantime. In State of Bihar Vrs. Akhouri Sachindra Nath, 1991 Supp (1) SCC 334 this Court observed that: (SCC pp. 342-43, para 12) „12. In the instant case, the promotee Respondents 6 to 23 were not borne in the cadre of Assistant Engineer in the Bihar Engineering Service, Class II at the time when Respondents 1 to 5 W.P.(C) No.14328 of 2023 Page 58 of 79 were directly recruited to the post of Assistant Engineer and as such they cannot be given seniority in the service of Assistant Engineers over Respondents 1 to 5. It is well settled that no person can be promoted with retrospective effect from a date when he was not borne in the cadre so as to adversely affect others. It is well settled by several decisions of this Court that amongst members of the same grade seniority is reckoned from the date of their initial entry into the service. In other words, seniority inter se amongst the Assistant Engineers in Bihar Engineering Service, Class II will be considered from the date of the length of service rendered as Assistant Engineers. This being the position in law Respondents 6 to 23 cannot be made senior to Respondents 1 to 5 by the impugned Government orders as they entered into the said service by promotion after Respondents 1 to 5 were directly recruited in the quota of direct recruits. The judgment of the High Court quashing the impugned government orders made in Annexures 8, 9 and 10 is unexceptionable.‟ ***"
14.6. Nani Sha Vrs. State of Arunachal Pradesh, (2007) 15 SCC 406, proceeded to observe that mere existence of a vacancy is not sufficient for an employee to claim seniority and the date of actual appointment has to be in accordance with the prescribed procedure.
W.P.(C) No.14328 of 2023 Page 59 of 7914.7. In Sunaina Sharma Vrs. State of Jammu and Kashmir, (2017) 10 SCR 261, following observations of the Hon‟ble Supreme Court are worthy of keeping note of:
"8. At this stage, it would be pertinent to mention that it is a settled principle of law that normally no person can be promoted with retrospective effect from a date when he was not borne in the cadre. Seniority has to be reckoned only from the date the person entered into that service. *** Thereafter, in Kaushal Kishore Singh Vrs. Dy. Director of Education, (2002) 9 SCC 634 this Court held as follows:
„5. The claim of seniority of the employee is always determined in any particular grade or cadre and it is not the law that seniority in one grade or cadre would be dependent on the seniority in another grade or cadre. ***‟ ***
15. It is well settled that retrospective promotion to a particular group can violate Article 14 and 16 of the Constitution of India. Even if the Rules enable the State to make ·retrospective promotion, such promotion cannot be granted at the cost of some other group. Therefore, the only reasonable interpretation can be that the promotees can get promotion from an anterior date only if they have worked against the said post even if it be on temporary or officiating, or ad-hoc basis etc."
W.P.(C) No.14328 of 2023 Page 60 of 7914.8. Against claim for retrospective promotion and promotional benefit, the Hon‟ble Supreme Court of India in Union of India Vrs. Manpreet Singh Poonam, (2022) 2 SCR 764 held as follows:
"14. The High Court also fell in error in taking note of the delay in considering the case of the respondents to the promotional post of JAG-I. No officer has a vested right to a promotional post, which is restricted to that of consideration according to law. The law on this aspect is settled by this Court in the case of Ajay Kumar Shukla Vrs. Arvind Rai, 2021 SCC OnLine SC 1195 = (2022) 12 SCC 579:
„37. This Court, time and again, has laid emphasis on right to be considered for promotion to be a fundamental right, as was held by K. Ramaswamy, J., in the case of Director, Lift Irrigation Corporation Ltd. Vrs. Pravat Kiran Mohanty, (1991) 2 SCC 295 in paragraph 4 of the report which is reproduced below:
„4. *** There is no fundamental right to promotion, but an employee has only right to be considered for promotion, when it arises, in accordance with relevant rules. From this perspective in our view the conclusion of the High Court that the gradation list prepared by the Corporation is in violation of the right of respondent/writ petitioner to equality enshrined under Article 14 read with Article 16 of the Constitution, and the respondent/writ petitioner was unjustly W.P.(C) No.14328 of 2023 Page 61 of 79 denied of the same is obviously unjustified."
38. A Constitution Bench in case of Ajit Singh Vrs.
State of Punjab, (1999) 7 SCC 209, laying emphasis on Article 14 and Article 16(1) of the Constitution of India held that if a person who satisfies the eligibility and the criteria for promotion but still is not considered for promotion, then there will be clear violation of his/her‟s fundamental right. Jagannadha Rao, J. speaking for himself and Anand, CJI., Venkataswami, Pattanaik, Kurdukar, JJ., observed the same as follows in paragraphs 21 and 22 and 27:
„21. Articles 14 and 16(1): is right to be considered for promotion a fundamental right
22. Article 14 and Article 16(1) are closely connected. They deal with individual rights of the person. Article 14 demands that the „State shall not deny to any person equality before the law or the equal protection of the laws‟. Article 16(1) issues a positive command that "there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State‟.
It has been held repeatedly by this Court that clause (1) of Article 16 is a facet of Article 14 and that it takes its roots from W.P.(C) No.14328 of 2023 Page 62 of 79 Article 14. The said clause particularises the generality in Article 14 and identifies, in a constitutional sense „equality of opportunity in matters of employment and appointment to any office under the State‟. The word „employment‟ being wider, there is no dispute that it takes within its fold, the aspect of promotions to posts above the stage of initial level of recruitment. Article 16(1) provides to every employee otherwise eligible for promotion or who comes within the zone of consideration, a fundamental right to be 'considered' for promotion. Equal opportunity here means the right to be „considered‟ for promotion. If a person satisfies the eligibility and zone criteria but is not considered for promotion, then there will be a clear infraction of his fundamental right to be „considered‟ for promotion, which is his personal right. „Promotion based on equal opportunity and seniority attached to such promotion are facets of fundamental right under Article 16(1) ***
27. In our opinion, the above view expressed in Ashok Kumar Gupta [(1997) 5 SCC 201] and followed in Jagdish Lal [(1997) 6 SCC 538] and other cases, if it is intended to lay down that the right guarantee to employees for being „considered‟ for promotion according to W.P.(C) No.14328 of 2023 Page 63 of 79 relevant rules of recruitment by promotion (i.e. whether on the basis of seniority or merit) is only a statutory right and not a fundamental right, we cannot accept the proposition. We have already stated earlier that the right to equal opportunity in the matter of promotion in the sense of a right to be „considered‟ for promotion is indeed a fundamental right guaranteed under Article 16(1) and this has never been doubted in any other case before Ashok Kumar Gupta right from 1950.‟
15. On facts, we find that promotions could be given for the reason that the migration of the then incumbent in the post of JAG-I, despite being in the select list to the cadre of IAS, did not take place and thus, they were working in the said post till the date of notification paving way. The aforesaid factual position not disputed, the rigour of Rule 4 would certainly come into play. We do not find the proviso to Rule 4 helping the case of the respondents. The post of JAG-I is certainly a promotional post from the feeder cadre of the JAG-II.
16. It is trite law that once an officer retires voluntarily, there is cessation of jural relationship resorting to a "golden handshake" between the employer and employee. Such a former employee cannot seek to agitate his past, as well as future rights, if any, sans the prescription of rules. This would include the enhanced pay scale. The Respondent in Civil Appeal No.517 of 2017 was rightly not considered in the DPC in 2012 since he was no longer in service at the W.P.(C) No.14328 of 2023 Page 64 of 79 relevant point of time. The High Court has committed an error in relying upon a circular, which has got no application at all, particularly in the light of our finding that we are dealing with a case of promotion simpliciter as against up-gradation of any nature.
17. On facts, there is no dispute that Respondent in Civil Appeal No.518 of 2017 was given promotion after the successful consideration by the DPC. On such clearance the appellant has rightly fixed the promotion with the year of actual vacancy, as per rules. Thus, the Respondent neither on facts nor on law can claim retrospective promotion, and that too from the year 2009 being the year in which he was placed in the select list against a notional vacancy, especially when the then existing vacancy accrued only in the year 2011, when the JAG-I officers were actually inducted into IAS, against which he was promoted. As such, the promotion cannot be granted retrospectively and extended to give benefit and seniority from the date of notional vacancy, causing violence to Rule 4 and 7 of the 2003 Rules.
18. A mere existence of vacancy per se will not create a right in favour of an employee for retrospective promotion when the vacancies in the promotional post is specifically prescribed under the rules, which also mandate the clearance through a selection process. It is also to be borne in mind that when we deal with a case of promotion, there can never be a parity between two separate sets of rules. In other words, a right to promotion and subsequent benefits and seniority would arise only with respect to the W.P.(C) No.14328 of 2023 Page 65 of 79 rules governing the said promotion, and not a different set of rules which might apply to a promoted post facilitating further promotion which is governed by a different set of rules. In the present case, the authority acting within the rules has rightly granted promotion after clearance of DPC on 17.04.2012 with effect from 01.07.2011, when the actual vacancies arose, which in any case is a benefit granted to the Respondent in Civil Appeal No.518 of 2017. In our view, this exercise of power by the authority of granting retrospective promotion with effect from the date on which actual vacancies arose is based on objective considerations and a valid classification.
19. This Court in the case of Union of India Vrs. K.K. Vadhera, 1989 Supp (2) SCC 625 has clearly laid down that the promotion to a post should only be granted from the date of promotion and not from the date on which vacancy has arisen, and has observed that:
„5. *** We do not know of any law or any rule under which a promotion is to be effective from the date of creation of the promotional post. After a post falls vacant for any reason whatsoever, a promotion to that post should be from the date the promotion is granted and not from the date on which such post falls vacant. In the same way when additional posts are created, promotions to those posts can be granted only after the Assessment Board has met and made its recommendations for promotions being granted. If on the contrary, promotions are directed to become effective W.P.(C) No.14328 of 2023 Page 66 of 79 from the date of the creation of additional posts, then it would have the effect of giving promotions even before the Assessment Board has met and assessed the suitability of the candidates for promotion. In the circumstances, it is difficult to sustain the judgment of the Tribunal.‟
20. Similarly, this Court in the case of Ganga Vishan Gujarati Vrs. State of Rajasthan, (2019) 16 SCC 28 has held that:
„45. A consistent line of precedent of this Court follows the principle that retrospective seniority cannot be granted to an employee from a date when the employee was not borne on a cadre. Seniority amongst members of the same grade has to be counted from the date of initial entry into the grade. This principle emerges from the decision of the Constitution Bench of this Court in Direct Recruit Class II Engg. Officers‟ Assn. Vrs. State of Maharashtra, (1990) 2 SCC 715. The principle was reiterated by this Court in State of Bihar Vrs. Akhouri Sachindra Nath, 1991 Supp (1) SCC 334 and State of Uttaranchal Vrs. Dinesh Kumar Sharma, (2007) 1 SCC 683. In Pawan Pratap Singh Vrs.
Reevan Singh, (2011) 3 SCC 267 = (2011) 2 SCR 831, this Court revisited the precedents on the subject and observed: (SCC pp. 281-82, para 45) „45. *** W.P.(C) No.14328 of 2023 Page 67 of 79
(i) The effective date of selection has to be understood in the context of the Service Rules under which the appointment is made. It may mean the date on which the process of selection starts with the issuance of advertisement or the factum of preparation of the select list, as the case may be.
(ii) Inter se seniority in a particular service has to be determined as per the Service Rules. The date of entry in a particular service or the date of substantive appointment is the safest criterion for fixing seniority inter se between one officer or the other or between one group of officers and the other recruited from different sources. Any departure therefrom in the statutory rules, executive instructions or otherwise must be consistent with the requirements of Articles 14 and 16 of the Constitution.
(iii) Ordinarily, notional seniority may not be granted from the backdate and if it is done, it must be based on objective considerations and on a valid classification and must be traceable to the statutory rules.
(iv) The seniority cannot be reckoned from the date of occurrence of the vacancy and cannot be given retrospectively unless it is so expressly provided by the relevant W.P.(C) No.14328 of 2023 Page 68 of 79 Service Rules. It is so because seniority cannot be given on retrospective basis when an employee has not even been borne in the cadre and by doing so it may adversely affect the employees who have been appointed validly in the meantime.‟ This view has been re-affirmed by a Bench of three Judges of this Court in P. Sudhakar Rao Vrs. U. Govinda Rao, (2013) 8 SCC 693."
21. For the aforesaid reasoning, we are unable to give our imprimatur to the reasoning of the High Court."
14.9. With the aforesaid view of the Hon‟ble Supreme Court of India, it may be worthwhile to take cognizance of the fact that the promotion of the petitioner from ALO (as there was no cadre rules at the relevant point of time) to LO was granted as "deemed promotion" and on the very same date of such promotion vide Notification No.17.11.2021 (Annexure-5), he was promoted to the rank of Under Secretary on ad hoc basis for a period of one year "as a special case due to hardship faced" by him. Furthermore, by way of a petition, being I.A. No.4507 of 2024, enclosing therewith a Notification dated 05.01.2024, it has been brought to the notice of this Court that promotion to the rank of Deputy Secretary has been accorded to the petitioner, the content of such notification is reproduced hereunder:
W.P.(C) No.14328 of 2023 Page 69 of 79"Government of Odisha Home Department Notification Bhubaneswar, dated the 5th January, 2024 No. HOME-OSS-PMTN-0009-2023--609/OSS Sri Chira Kumar Mohapatra, Under Secretary to Government, Forest, Environment and Climate Change Department is hereby promoted to the rank of Deputy Secretary in OSS Cadre in the Level-13 of Pay Matrix of Odisha Revised Scale of Pay Rules, 2017 against the post kept vacant in pursuance of the Order dated 11.07.2023 of the Hon‟ble High Court in W.P.(C) No.14238 of 2023 on ad hoc basis for a period of one year or till regular promotion on the concurrence of the OPSC or till the date of his retirement whichever is earlier subject to the final outcome of O.A. No.1017/2010, O.A. No.102/2011, O.A. No.150/2011, O.A. No.152/2011, O.A. No.153/2011, O.A. No.154/2011, O.A. No.155/2011, O.A. No.156/2011, W.P.(C) No.6837/2022, W.P.(C) No.6841/2022, W.P.(C) No.4216 of 2023, W.P.(C) No.14328 of 2023 and other related cases, if any.
On promotion, he is posted as Deputy Secretary in Forest, Environment and Climate Change Department.
By Order of the Governor
. Sd/- 05.01.2024
Joint Secretary
to Government."
Conclusion and decision:
15. There seems no arbitrariness in action of the Additional Chief Secretary to the Government of Odisha in Home W.P.(C) No.14328 of 2023 Page 70 of 79 Department while deciding the matter of antedating promotion in the post of Under Secretary in the impugned Order dated 02.02.2023 passed in pursuance of the direction of this Court vide Order dated 04.01.2023 in W.P.(C) No.36580 of 2022.
15.1. The petitioner being promoted in the rank of Under Secretary on ad hoc basis by virtue of Notification dated 17.11.2021 in consideration of "hardship faced" by him treating his promotion to the post of Law Officer on the said date as "deemed promotion", in view of Sunaina Sharma Vrs. State of Jammu and Kashmir, (2017) 10 SCR 261 the petitioner-promotee cannot get promotion from an anterior date.
15.2. In furtherance to what has been observed above, it is requirement of Rule 3 of the OSS Rules, 1980 that for granting promotion to the rank of Under Secretary zone of consideration was to be ascertained in consonance with the provisions of the Odisha Civil Services (Zone of Consideration for Promotion) Rules, 1988. It is also not emanating from record whether in terms of Rule 19 of the OSS Rules, the provisions of the Odisha Reservation of Vacancies in Posts and Services (for Scheduled Castes and Scheduled Tribes) Act, 1975 and rules made thereunder have been adhered to. As the petitioner was granted promotion to the rank of Under Secretary as W.P.(C) No.14328 of 2023 Page 71 of 79 special case, the DPC ignored said provisions of statute. Record reveals that he was granted deemed promotion to the post of Law Officer and on the same date he was promoted to the rank of Under Secretary.
15.3. It is also noticed that preparation of list of officers found suitable for promotion by the Selection Board as per clause (5) of Rule 10 of the OSS Rules would be based on merit and suitability with due regard to seniority and experience. In this context it may be apposite to refer to Rule 3(b) of the Odisha Civil Services (Criteria for Promotion) Rules, 1992, whereby and whereunder selection for such promotion was to be made on the basis of merit and suitability in all respect with due regard to seniority and the names of persons included in the Select List shall be arranged in order of seniority in the feeder service or grade. Nothing is put forth in this regard on record.
15.4. However, there is an indication in the "Minutes of the Review Selection Board Meeting held on 09.11.2021" for consideration of promotion of the petitioner in the rank of Under Secretary from Assistant Law Officer, the Committee comprising of the Additional Chief Secretary to Government, Home Department; Additional Secretary to Government, Finance Department; and Additional Secretary to Government, General Administration & W.P.(C) No.14328 of 2023 Page 72 of 79 Public Grievance Department considered PARs/CCRs of preceding 3 years and 2 years back periods, as the PARs/CCRs of preceding 5 years were not available.
15.5. As is required under Rule 3 of the Odisha Civil Services (Criteria for Promotion) Rules, 1992, the available Confidential Character Rolls/Performance Appraisal Reports are to be taken into consideration for promotion which shall include C.C.Rs./P.A.Rs. covering at least a period of three years in preceding five years. It has been clarified in said rules that, the expression „preceding five years‟ means the five years preceding the year which the officer‟s performance is, in accordance with the relevant Recruitment Rules, first evaluated.
15.6. On analysis of available material, the Review Selection Board assessed the performance of the petitioner as „fit‟ for promotion to the rank of Under Secretary in OSS Cadre and his seniority has been fixed below the existing Under Secretaries on the date of his promotion.
15.7. Though fundamental right is attracted for consideration for promotion subject to eligibility so far as the right to equal opportunity is concerned as envisaged under Articles 14 and 16 of the Constitution of India, such a right cannot be construed to enure vested right for being necessarily promoted to the promotional post, as mere existence of a vacancy is not sufficient for an employee W.P.(C) No.14328 of 2023 Page 73 of 79 to claim seniority and the date of actual appointment has to be in accordance with the prescribed procedure. It may also be observed that there happens to be some time lag between the year when the vacancy accrues and the year when the final appointment in the promotional post is made for complying with the procedure prescribed, but that would not give a handle to the Court to include something which is not there in the rules.
15.8. Under the aforesaid premise, the prayer of the petitioner to "quash the impugned Order dated 02.02.2023 in Annexure-9" does not warrant indulgence, as the said order is rational and has been made within the parameters of legal perspective delineated by the Hon‟ble Supreme Court of India as discussed supra.
16. So far as next prayer of the petitioner is concerned, i.e., to antedate the promotion of the petitioner to the post of Under Secretary with effect from 25.02.2021 in terms of the decision of the Hon‟ble Supreme Court under Annexure-3 series and to allow him consequential promotion to the post of Deputy Secretary with effect from 31.01.2023, i.e., the date of promotion of his juniors in service vide Annexure-11 with consequential restoration of his inter se seniority in the cadre of Under Secretary by modifying Notification dated 17.11.2021 as well as Gradation List published on 05.01.2022 is W.P.(C) No.14328 of 2023 Page 74 of 79 concerned, this Court is not persuaded to grant relief to the petitioner.
16.1. In the first place, this Court in the instant case vide Order dated 11.07.2023 has issued notice to the opposite parties and directed that, "As an interim measure, it is directed that one post of Deputy Secretary shall not be filled up till the next date."
16.2. In pursuance thereof, the petitioner, who was due to get retired on attaining the age of superannuation on 30.06.2024, got promoted to the rank of Deputy Secretary in OSS Cadre in the Level-13 vide Home Department Notification dated 05.01.2024.
16.3. As the petitioner has been granted the relief sought for in the second prayer made in the writ petition, this Court does not feel it expedient to modify the Notification dated 17.11.2021 and Gradation List published on 05.01.2022.
16.4. Another reason for non-interference is that intermeddling with the Gradation List at this distance of time would disturb the seniority of other employees whose names have already been shown above the petitioner.
W.P.(C) No.14328 of 2023 Page 75 of 7916.5. The position of seniority has been succinctly propounded as follows in the case of R. Prabha Devi Vrs. Governmen of India, (1988) 3 SCR 147:
"The prescribing of an eligibility condition for entitlement for consideration for promotion is within the competence of the rule-making authority. This eligibility condition has to be fulfilled by the Section Officers including senior direct recruits in order to be eligible for being considered for promotion. When qualifications for appointment to a post in a particular cadre are prescribed, the same have to be satisfied before a person can be considered for appointment. Seniority in a particular cadre does not entitle a public servant for promotion to a higher post unless he fulfils the eligibility condition prescribed by the relevant rules. A person must be eligible for promotion having regard to the qualifications prescribed for the post before he can be considered for promotion. Seniority will be relevant only amongst persons eligible. Seniority cannot be substituted for eligibility nor it can over-ride it in the matter of promotion to the next higher post."
16.6. The petitioner was not in the cadre of Law Officer while other eligible Law Officers were being considered for promotion to the rank of Under Secretary. At this juncture, reference to Rule 11 of the Odisha Service Code may not be inept to be referred to in order to ascertain the true purport of the term "cadre". The term is defined as "the strength of a service or part of service sanctioned as a separate unit". Normally, an ex-cadre W.P.(C) No.14328 of 2023 Page 76 of 79 post means a post outside the cadre posts comprised in a service and all posts in the service whether permanent or temporary are generally regarded as cadre posts. (See, O.P. Singla Vrs. Union of India, (1985) 1 SCR 351).
16.7. In Jaskaran Singh Brar Vrs. State of Punjab, 2004 SCC OnLine P&H 1029 = ILR (2005) 1 P&H 143 = (2005) 1 SLR 792, it has been noticed by the Punjab and Haryana High Court as follows:
"This takes us to question No. 4, namely, what is an ex- cadre post and where does it stand vis-à-vis a cadre post. "Cadre" is a well-defined connotation in the service jurisprudence. Invariably, a service and/or posts created in relation to the affairs of the Union and/or States, are governed by either the legislative enactments or the Rules framed by the subordinate legislation in exercise of its powers under proviso to Article 309 of the Constitution of India. In the Acts/Rules, as the case may be, the "service"
and the "posts" which are governed by such Acts/Rules are defined. Since the posts are created for running an efficient administration, namely, in public interest, the total strength of such posts is also invariably reflected in the Acts/Rules governing such posts. The strength of "service" or the posts, namely, a part of "service", along with their identified nomenclature as well as the mode of their recruitment and/or eligibility conditions required to be possessed to man the same, are normally known as the "cadre posts". However, in the administrative exigencies and to meet urgent requirements and/or to deal with a situation having arisen due to unforeseen circumstances, sometimes posts are created which appear W.P.(C) No.14328 of 2023 Page 77 of 79 to be similar to some existing cadre posts either due to their deceptive nomenclature or in the nature of the duties attached to such posts, which are known as the "ex-cadre posts". Since these posts do not form a part of the total strength of posts governed under the Act/Rules, as the case may be, obviously these posts are not treated as cadre posts and are thus strictly not governed by the Act/Rules meant for the cadre posts. Normally, an "ex- cadre post" is a diminishing cadre and once the incumbent goes, the post also stands abolished. It is for this precise reason that the incumbent of an "ex-cadre post" is always an outsider to the "cadre" and does not have any right either for fixation of inter se seniority in the cadre nor can claim pay scale, promotions and other incidental perks admissible to the incumbents of the cadre posts for the obvious reason that both are not governed by the same set of Act/Rules."
16.8. The decision in Dr. Chakradhar Paswan Vrs. State of Bihar, (1988) 2 SCC 214, clarifies the position that it is open for the Government to constitute two distinct cadres in any particular service as it may choose according to administrative convenience and expediency. It is also well-established principle vide State of Maharashtra Vrs. Purushottam, (1996) 8 SCC 266 that services rendered by an employee in one cadre cannot be taken into account for determining the seniority in another cadre unless by any rules of seniority this privilege is conferred.
W.P.(C) No.14328 of 2023 Page 78 of 7916.9. Taking cue from the above discussions with respect to understanding of "cadre", "service" and "post", when the petitioner was not borne on the cadre till he was considered for promotion to the post of Law Officer from Assistant Law Officer, which was done simultaneously while granting him promotion to the rank of Under Secretary as special case on account of hardship faced, the claim of the petitioner to modify the Gradation List is unreasonable. Hence the prayer of the petitioner is liable to be rejected and, hereby rejected.
17. In the result, the writ petition fails and, accordingly, the same is dismissed with no order as to costs.
(MURAHARI SRI RAMAN) JUDGE Signature Not Verified Digitally Signed Signed by: ASWINI KUMAR SETHY Designation: Personal Assistant (Secretary-in-charge) Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 30-Jul-2024 19:14:37 High Court of Orissa, Cuttack The 30th July, 2024//ASWINI/SUCHITRA W.P.(C) No.14328 of 2023 Page 79 of 79