Orissa High Court
Afr Sri Sukanta Sethi vs State Of Odisha & Others ..... Opp. ... on 7 October, 2021
Author: B.R.Sarangi
Bench: B.R.Sarangi
ORISSA HIGH COURT: CUTTACK
W.P.(C) NO. 15960 OF 2021
In the matter of an application under Articles 226 and
227 of the Constitution of India.
---------------
AFR Sri Sukanta Sethi ..... Petitioner
-Versus-
State of Odisha & others ..... Opp. Parties For Petitioners : M/s. Sameer Kumar Das, P.K. Behera & N. Jena, Advocates For Opp. Parties : Mr. A.K. Sharma, Addl. Govt. Advocate.
[ O.Ps. 1 to 3] M/s. Susanta Kumar Dash, Ananta Kumar Otta, Swetlana Das, Narendra Kumar Das, Asutosh Sahoo, Elina Dash & Prabin Das, Advocates.
[ O.P No.4) P R E S E N T:
THE HONOURABLE DR. JUSTICE B.R.SARANGI Date of hearing : 27.09.2021 :: Date of judgment: 07.10.2021 DR. B.R. SARANGI, J. The petitioner, by means of this writ petition, seeks to quash the final gradation list of Chief Fire Officers published by opposite party no.1 in letter no. 15658/CD dated 15.04.2021 under Annexure-5, and to issue direction to opposite party no.1 to restore the seniority of the petitioner over and above the opposite party no.4 and consider him for promotion to such higher post and to grant him all consequential service and financial benefits within a stipulated period.
2. The factual matrix of the case, in short, is that the State Government issued an advertisement, which was published during the year 1984 to fill up vacancies of Station Officer in Odisha Fire Service Organization. The recruitment process was conducted by the Central Selection Board on 9th and 10th February, 1984. In the said recruitment process, 13 candidates were short listed for appointment to the post of the Station Officer in Odisha Fire Service. They were appointed in two dates, i.e., on 24.02.1984 (ten candidates) and 29.03.1984 (three candidates), pursuant to which they joined on 07.03.1984 and Page 2 of 47 30.03.1984 respectively. The petitioner joined on 07.03.1984 and the opposite party no.4 joined on 30.03.1984. The petitioner and opposite party no.4 belonged to one select list prepared by the Central Selection Board. After fulfilling the official procedure, all 13 candidates were put to prescribed Station Officers' course of training in a single batch, i.e. 8th batch of Station Officer Course of training at Odisha Fire Service Training Institute, Bhubaneswar. After completion of training course, the final examination was conducted, in which opposite party no.4 secured 1st position, whereas petitioner secured 11th position. 2.1. As per Police Order No. 110, the inter se seniority of the passed out Station Officers was fixed basing upon their marks secured in the final examination of training. As such, Odisha Fire Service being a wing of Police, is governed by PMR, and accordingly the inter-se seniority of Station Officers of 8th batch was determined as per their marks secured in the final examination where the opposite party no.4 Page 3 of 47 stood first position and the petitioner placed at sl.no.11 in the list prepared by the authority. After completion of requisite training course, all the 13 officers were posted to different Fire Stations. The gradation list of 8th batch was published vide office order no. 17/FS, dated 22.01.1995 and D.O. No. 359/OFS, dated 02.02.1985. All the officers were communicated with a copy of gradation list and the same was reflected in their respective service books. In the meanwhile, with due adherence Orissa Reservation of Vacancies in Post of Services (for Schedule Casts and Schedule Tribes) Act, 1975 (hereinafter referred to as "ORV Act, 1975") the petitioner got promotion to the rank of Asst. Fire Officer (AFO) on 20.02.1997, being a schedule caste candidate, even though he was placed in the lower place in the initial gradation list. By virtue of the benefits of reservation quota, the petitioner was allowed to officiate as Deputy Fire Officer, Fire Officer and Chief Fire Officer w.e.f. 31.10.2005, 07.08.2008 and 10.06.2013 respectively by superseding the general category Page 4 of 47 candidates like that of opposite party no.4, and now continuing as such. Whereas, being an unreserved/general category candidate, opposite party no.4 did not avail any reservation facilities. Consequentially, he was promoted to the rank of Asst. Fire Officer, Deputy Fire Officer, Fire Officer and Chief Fire Officer w.e.f. 09.06.2008, 16.07.2012, 14.02.2014 and 16.05.2019 respectively on his own merit without any leverage.
2.2 The opposite party no.4 was not placed in the same rank with that of the petitioner until dated 15.05.2019. On 16.05.2019, when opposite party no.4 was promoted to the rank of Chief Fire Officer, was placed in the same footing with the petitioner and basing on "catch up" rule, he was placed over the petitioner on the basis of seniority in the initial grade. Therefore, the final gradation list of Chief Fire Officers in Odisha Fire Service has been prepared in Annexure- 5 dated 15th April, 2021 by the Government with due adherence to the decision of the apex Court regarding Page 5 of 47 "catch up" principles. Being aggrieved by such fixation of seniority, pursuant to Annexure-5 dated 15.04.2021 placing the opposite party no.4 senior to the petitioner, this application has been filed.
3. Mr. S.K.Das, learned counsel for the petitioner argued with vehemence that pursuant to the advertisement issued by the State for filling up of 10 numbers of Station Officers in the Fire Service, the petitioner applied for, got selected and was appointed, along with 9 others, vide office order no. 12/FS dated 24.02.1984, and joined the post on 07.03.1984. The position of the petitioner in the said list was at serial no.9, whereas the name of the opposite party no.4 was not at all found place therein, though he had applied pursuant to the same advertisement. But subsequently, the opposite party no.4 was appointed as Station Officer on 29.03.1984 and he joined on 30.03.1984 against a subsequent vacancy, which was not advertised in the initial advertisement or in any further advertisement. Therefore, it is contended that the entry Page 6 of 47 into service of opposite party no.4 is void ab initio, as he was not appointed against 10 nos. of advertised post. As the opposite party no.4 was appointed against the created or fall vacant post beyond the advertised vacancy, his appointment is illegal. It is further contended that the petitioner is senior to opposite party no.4 in entry grade as well as subsequent promotional posts till he was promoted to Chief Fire Officer and at all the stages the opposite party no.4 was shown as junior to the petitioner having promoted subsequently.
It is contended that the post of Deputy Fire Officer belongs to Grade -A (Class-I) post. As per Section 4(2) of the ORV Act, 1975, the reservation policy shall be applied to the promotions up to the lower rung of Class-I Post. All other Class-I posts (Group-A posts) are to be filled up by the Departmental Selection or on the basis of selection from amongst the officers in the lowest rung thereof. Therefore, promotion of the petitioner to the Deputy Fire Officer can be said to be on the basis of the reservation, as the petitioner Page 7 of 47 belonged to Scheduled Caste Category, but subsequently, his promotion to the post of Fire Officer and above is only due to his merit and suitability, but not on reservation and, as such, the law relating to reservation has no application once he joined in the cadre of Deputy Fire Officer on 07.08.2008. It is emphatically urged by learned counsel for the petitioner that the opposite party no.4 was not senior to the petitioner at the entry grade, because his appointment was made against a subsequent vacancy, beyond the advertised vacancies, and as such, he could not reach the cadre of Deputy Fire Officer or Fire Officer when the petitioner was continuing in those ranks/cadre. Therefore, "catch up" rule could not be applicable, as the petitioner was senior to the opposite party no.4 at the entry level. Further, assuming that "catch up" rule is applicable, then also the opposite party no.4 cannot claim seniority over the petitioner, after the petitioner got promotion to the post of Fire Officer/Chief Fire Officer which are higher rung Group-A (Class-I) posts Page 8 of 47 and such promotions of the petitioner were not because he is a scheduled caste, rather he got such promotions on his own merit and suitability. The opposite partyno.4 got promotion to the post of Chief Fire Officer on 16.05.2009, whereas the petitioner is continuing in the said post w.e.f. 10.06.2013. Therefore, the opposite party no.4 cannot be construed to be senior to the petitioner. Even otherwise also taking into consideration the date of birth of the petitioner-vis-à-vis the opposite party no.4, the opposite party no.4 cannot and could not be declared senior to the petitioner as the petitioner's date of birth is 10.10.1961, whereas the date of birth of opposite party no.4 is 04.04.1962. Thereby, it is contended that the inter se seniority pursuant to Annexure-5 dated 15.04.2021 declaring the opposite party no.4 senior to the petitioner cannot sustain in the eye of law and the same should be quashed. To substantiate his contention he has relied upon the judgments in Batakrushna Adhikari v. State of Odisha and others Vol. 106 (2008) CLT-212; Page 9 of 47 Lagnajit Ray v. State of Odisha and others , 2011 (I) OLR-689.
4. Mr.A.K.Sharma, learned Addl.
Government Advocate appearing for the State opposite parties contended that pursuant to advertisement published during the year 1984 to fill up the vacancies of Station Officer in Odisha Fire Service Organization, a recruitment process was conducted by the Central Selection Board on 9th and 10th February, 1984 and in the recruitment process, 13 candidates were shortlisted for appointment to the post of Station Officer. They were appointed in two dates, i.e. on 24.02.1984 (ten candidates) and 29.03.1984 (three candidates), pursuant to which, they joined on 07.03.1984 and 30.03.1984 respectively. The petitioner joined on 07.03.1984 and the opposite party no.4 joined on 30.03.1984. All the 13 candidates were put to prescribed Station Officers course of training in a single batch, i.e. 8th batch of Station Officer Course of training at Odisha Fire Service Training Institute, Bhubaneswar. Page 10 of 47 As per Police Order No. 110, the inter se seniority of the passed out Station Officers was fixed basing upon their marks secured in the final examination of training. As such, Odisha Fire Service being a wing of Police, is governed by PMR, and accordingly the inter-se seniority of Station Officers of 8th batch was determined as per their marks secured in the final examination. The opposite party no.4 stood first securing highest mark in the training, whereas the petitioner's position was at serial no. 11. Accordingly, the seniority list was prepared on the mark secured in the final examination of the training. The petitioner got promotion, being a scheduled caste candidate, in adherence to the ORV Act, 1975, though he was placed in the lower place in the initial gradation list. By virtue of benefits of reservation quota, the petitioner was allowed to officiate as Deputy Fire Officer, Fire Officer and Chief Fire Officer w.e.f. 31.10.2005, 07.08.2008 and 10.06.2013 respectively by superseding the general category candidates like that of opposite party no.4. Page 11 of 47 Subsequently, the opposite party no.4 promoted to the post of Asst. Fire Officer, Deputy Fire Officer, Fire Officer and Chief Fire Officer w.e.f. 09.06.2008, 16.07.2012, 14.02.2014 and 16.05.2019 respectively on his own merit without any leverage. The opposite party no.4 was not placed in the same rank with that of the petitioner until dated 15.05.2019. It is only on 16.05.2019, when the opposite party no.4 got promoted to the post of Chief Fire Officer, he was placed in the same footing with the petitioner and basing on "catch up" rule, he was placed over the petitioner on the basis of seniority in the initial grade. Thereby, no illegality or irregularity has been committed by fixing the seniority of opposite party no.4 over and above the petitioner maintaining seniority fixed in the initial entry into service pursuant to the marks secured in the training as per PMR-110. To substantiate his contention he has relied upon the judgment of Union of India v. Virpal Singh Chauhan, AIR 1999 SC 448 : (1995) 6 SCC 684: Page 12 of 47
1995 (II) OLR 616 and Lagnajit Ray v. State of Odisha and others , 2011 (I) OLR-689.
5. Mr. Susanta Kumar Dash, learned counsel appearing for the opposite party no.4 contended that the petitioner has raised an issue that appointment of opposite party no.4 as Station Officer pursuant to office order dated 29.03.1984 is ab-initio void. Such a challenge is made on erroneous assumption of fact and law and has suppressed the fact that against the very same advertisement for direct recruitment, both the petitioner and opposite party no.4 were appointed. The petitioner and opposite party no.4 were appointed as Station Officer subject to completion of training and after having undergone such training, the rank in the gradation list was arranged in terms of the result of the final examination of the 8th batch of Station Officers of 1984, wherein the petitioner stood at 11th position and the opposite party no.4 bagged 1st position. As per PMR-110, the seniority has to be fixed on the basis of the mark secured in the training.Page 13 of 47
Thereby, the opposite party no.4 having secured highest mark, stood first in the training ahead of the petitioner. Taking advantage of the reservation if the petitioner was given promotion ahead of opposite party no.4, that itself cannot give rise to any presumption at all that the opposite party no.4 is junior to the petitioner in all the grades. When the office order was issued on 22.01.1985 fixing the rank in the gradation list serially as per marks secured in Fire Service Training and the same having not been challenged till date, is not available to be unsettled after more than thirty-five years. It is further contended that such gradation/seniority position in the post of the Station Officer was not only published but also entered in the service book of the employees. Non-disclosure of such fact amounts to material suppression and the same would obviously disentitle the petitioner to claim the relief for the reason that the writ jurisdiction is always discretionary. It is further contended that the petitioner got promotion to the post of Chief Fire Officer prior to Page 14 of 47 the promotion of one Brajendu Bhusan Das in the gradation/seniority list prepared by the Government, where the petitioner was placed next to him. Inter-se seniority was determined by office order dated 21.04.2017. It was never challenged by the petitioner, by which he lost his seniority to Brajendu Bhusan Das, getting promotion to the post of Chief Fire Officer subsequent to his promotion. Both Brajendu Bhusan Das and the opposite party no.4 had joined in the post of Fire Officer on 17.09.2014, i.e. the post next below in the rung. Inter se seniority having been fixed under the touchstone, the petitioner is placed below the opposite party no.4 in the impugned gradation list. It is further contended that the petitioner has proceeded on misleading statement of facts regarding inter-se seniority of the petitioner and opposite party no.4 vis-à- vis those of 1984 batch. Assertion was made by the petitioner that ten posts were to be filled up against the advertisement and the appointment of opposite party no.4 was against subsequent vacancy and beyond the Page 15 of 47 post advertised, but nothing has been placed on record to substantiate the same. Thereby, falsity of the assertion would be evident from the fact that in his representation, the petitioner had categorically stated that both the petitioner and the opposite party no.4 had applied for appointment as against one and the same advertisement. Therefore, the question of irregular/illegal appointment of opposite party no.4 after 35 years cannot sustain in the eye of law and such grievance is hit by delay and laches.
It is further contended that the petitioner, being a person belonging to scheduled caste, got extra promotion, as such, the post of Deputy Fire Officer is a Group-A (Class-I) post and the reservation policy in terms of Section 4(2) of the Act, 1975 is applicable to promotion up to the said post and that higher posts are to be filled up by way of selection from the officers in the lower rung. Therefore, promotion up to the said post of Deputy Forest Officer, in which he joined on 07.08.2008, can be said to be on the basis of the Page 16 of 47 reservation, but he cannot claim seniority over the candidates who were senior in the entry grade. It is further contended that both the petitioner and opposite party no.4 have reached the zone of consideration for promotion to the post of Chief Fire Officer (Superior Administrative Grade) newly created under Resolution of the Government in its Home Department on 07.06.2021. The final gradation list of the Chief Fire Officers of Odisha Fire Service Organization, as on 01.01.2020, was published by the opposite party no.1 on 15.04.2021. The petitioner though had submitted objection on 28.12.2020, at Annexure-4 to the draft gradation list, but has not submitted any representation or appeal against the final gradation list. In absence of any such demand, the claim of the petitioner cannot sustain in the eye of law. It is further contended that due to suppression of fact the writ petition is liable to be dismissed as the opposite party no.4 reached the same rank applying the "catch up"
rule and he was placed above the petitioner on the Page 17 of 47 strength of the law laid down by the apex Court in Virpal Singh Chauhan and also Lagnajit Ray (supra). It is further contended that the "catch up" rule has been applied since the State Government has not made any such rule or resolution conferring the benefit of promotion with consequential seniority even as on date of filing of the counter affidavit. In view of such position, it is contended that the writ petition should be dismissed having no merit.
To substantiate his contention he has relied upon the judgments in K.A.Abdul Majeed Vs. State of Kerala & others, (2001) 6 SCC 292: AIR 2001 SC 3194; Kishore Samrite Vs. State of Uttar Pradesh & others, 2013 (2) SCC 398; Union of India Vs. Virpal Singh (1995) 6 SCC 684: AIR 1996 SC; Ajit Singh Juneja Vs. State of Punjab,(1996) 2 SCC 715:
AIR 1996 SC 1189; Ajit Singh -II & others Vs. State of Punjab,(1999) 7 SCC 209: AIR 1999 SC 3471; M. Nagaraj & others Vs. Union of India, (2006) 8 SCC 212: AIR 2007 SC 71; and Amir Chand Nayak Vs. Page 18 of 47 Special Secretary , G.A. Department & others, 2012 (2) ILR CUT 295.
6. This Court heard Mr. Sameer Kumar Das, learned counsel for the petitioner: Mr. A.K. Sharma, learned Addl. Government Advocate appearing for the State; and Mr. Susanta Kumar Dash, learned counsel appearing for opposite party no.4 by hybrid mode. Pleadings having been exchanged between the parties and with the consent of the learned counsel for the parties, this writ petition is being disposed of finally at the stage of admission.
7. On the basis of the factual matrix, as delineated above, and in view of the rival contentions raised by learned counsel for the parties, the following questions emerge for consideration:
(i) Whether the petitioenr is senior to opposite party no.4 in the entry grade post of Station Officer or not? and
(ii) Whether the 'catch-up' rule is applicable, and if so, the placement of opposite party Page 19 of 47 no.4 over and above the petitioner is justified or not?
8. While answering question no. (i), the petitioner emphatically claims that the appointment of opposite party no.4 is void ab-initio but there is no dispute with regard to the fact that both had applied against the advertisement published during the year 1984 to fill up the vacancies of Station Officer in Odisha Fire Service Organization. Accordingly, the recruitment process was conducted by the Central Selection Board on 9th and 10th February, 1984. In the said recruitment process, 13 candidates were shortlisted for appointment to the post of Station Officer in Odisha Fire Service. They were appointed in two dates i.e., on 24.02.1984 (ten candidates) and on 29.03.1984 (three candidates) pursuant to which they joined on 07.03.1984 and 30.03.1984 respectively. The petitioner had joined on 07.03.1984 and the opposite party no.4 joined on 30.03.1984. After fulfilling the official procedure, all the 13 candidates were put to Page 20 of 47 prescribe Station Officers course of training in a single batch i.e. 8th batch of Station Officer course of training at Odisha Fire Service Training Institute, Bhubaneswar. After completion of training course, the final examination was conducted, in which the opposite party no.4 secured 1st position, whereas the petitioner secured 11th position.
9. As per Police Order No. 110, the inter -se seniority of the passed out Station Officers was fixed basing upon their marks secured in the final examination of training. As such, Odisha Fire Service being a wing of Police is governed by PMR and accordingly the inter se seniority of Station Officers of 8th batch was determined as per their marks secured in the final examination. The contention raised, that the opposite party no.4 was appointed beyond the post advertised, has not been substantiated by the petitioner by filing any document. Even the advertisement of the year 1984 has not been produced in support of such contention. Therefore, in absence of any such material Page 21 of 47 this Court takes into consideration Annexure-1, the office order no. 12/FS dated 24.02.1984, by which the petitioner was appointed, but it does not indicate that all the posts, for which advertisement was made, were filled up. Rather, it clearly speaks about appointment of the candidates temporarily until further orders and it further transpires that the candidates are required to undergo training course for a period of six months at the Fire Service Training School, Bhubaneswar and on their joining at the training centre they are required to execute a bond in Pr Form No. 106 (A). As the petitioner and opposite party no.4 were applicants for the post of Station Officer, pursuant to a single advertisement, and both of them were selected by one Board, appointed from one select list and undergone training in same batch, there is no scope to consider them as appointees of different batches. The petitioner has not produced any gradation list in the post of Station Officer, though has annexed the gradation lists of Deputy Fire Officer and Fire Officer under Annexure-2 series. The Page 22 of 47 contention of the petitioner, as regards his seniority vis- a-vis the opposite party No. 4 in the post of Station Officer, is that "As it further understood as the opposite party No. 4 has secured more marks in the 1st selection than the reserve category candidates, but less mark than the selected/appointed UR candidates, he is shown senior to the petitioner". As per the marks awarded in the training, the opposite party no.4 stood no.1 and the petitioner no.11, as is evident from the gradation list dated 22.01.1982, which is annexed as Annexure-D/3 to the counter affidavit filed on behalf of opposite parties no. 1 to 3 and Annexure-A/4 to the counter affidavit filed by opposite party no.4. The said document has not been disputed by the petitioner, nor has he denied the specific assertion made by opposite party no.4 that gradation list in respect of Station Officer was determined and it was reflected in the service book of all those Station Officers. Such fixation of seniority has also been clarified in the counter affidavit filed on behalf of opposite parties no. 1 to 3 Page 23 of 47 that Odisha Fire Service being a wing of Police, is governed by PMR and accordingly as per Police Order no. 110, inter se seniority of Station Officers of 8th batch was determined on the basis of marks secured by them in the final examination. Accordingly, gradation list of Station Officers was published vide office order no. 17/FS dated 22.01.1985 and D.O. No. 395/OFS dated 02.02.1985 and the rank published therein was reflected in their respective service book. In the said gradation list, the petitioner's name finds place at serial no. 11 and opposite party no.4 finds place at serial no.
1.
10. Chapter-1 of the Orissa Police Rules, which were made under Section 12 of the Police Act (Act-V of 1861), deals with "Organization". Rule-1-B thereof, which deals with "Branches of the Orissa Police", reads as follows:
"1-B. Branches of Orissa Police:- Police Officer stationed in Orissa may be-
xx xx xx
(11) the Fire Service;
Page 24 of 47
In view of the aforesaid provisions, it is made clear that under sub-rule (11) of Rule-1-B, fire service has been included and treated as police officer stationed in Orissa.
11. The Orissa Fire Service Act, 1993 was enacted to provide for the fire prevention and fire safety measures in the State and for the constitution of a State Fire Service to carry out fire-fighting measures. Sub- Section (3) of Section-1 of the Orissa Fire Service Act, 1993 being relevant for the purpose of this case is extracted hereunder:
" (3) This section and Sections 2, 3, and 4 shall come into force at once, and the remaining provisions of this Act shall come into force on such date as the State Government may, by Notification, appoint and different dates may be appointed for different provisions of this Act and for different areas, and any reference in any such provision to the commencement of this Act shall, in relation to an area, be construed as a reference to the coming into force of that provision in that area :
Provided that in any area to which fire prevention or fire safety measures have been extended prior to the commencement of this section by the existing Fire Service Branch of Orissa Police administered and regulated by the Orissa Police Manual, it shall come into force in that area on the appointed day.
XX XX XX"Page 25 of 47
In view of the foresaid proviso it is made clear that any area to which fire prevention or fire safety measures have been extended prior to the commencement of this section by the existing Fire Service Branch of Orissa Police administered and regulated by the Orissa Police Manual, it shall come into force in that area on the appointed day.
12. As such, Section-26 of the Orissa Fire Service Act, 1993 deals with power to make rules. Under sub- Section (3) of Section 26 it is specifically mentioned as follows:
"26. Power to make rules. -
xx xx xx (3) Until Rules are made under this section, the Rules in force immediately before the appointed day and applicable to the Officers and staff of the Fire Service Branch of the Orissa Police shall, so far as they are not inconsistent with the provisions of this Act, continue in force and apply to the members."
In view of the aforementioned provision, the service condition applicable to the petitioner vis-à-vis the opposite party no.4 is being protected. Therefore, the fire service, being a branch of Orissa Police, as per Chapter- Page 26 of 47 1 of the Police Manual, and in absence of any rule made for the fire service, the police manual is applicable, so far as the petitioner and opposite party no.4 are concerned. But, after enactment of the Orissa Fire Service Act, 1993, to give effect to the provisions of the Act, a resolution dated 25.09.2008 was issued by the Home Department, in exercise of powers conferred by sub-Section (2) of Section 46 of the Police Act, 1861, sub-section (2.8) of Section 59 of the Prisons Act, 1894 and clause (c) sub-section (2) of Section 26 of the Orissa Fire Service Act, 1993, to regulate the combined recruitment of Group-C posts of Orissa Police Service, Orissa Prisons Service and Orissa Fire Service, making the Orders, namely, "Combined Competitive Recruitment Examination for Group-C posts of Orissa Police Service, Orissa Fire Service Orders, 2008". Vide Notification dated 04.02.2021 the Government of Odisha in Home Department, in exercise of power conferred by sub-Section (2) of Section 46 of the Police Act, 1861, sub-section (2.8) of Section 59 of the Prisons Act, 1894 Page 27 of 47 and clause (c) sub-section (2) of Section 26 of the Orissa Fire Service Act, 1993 and in supersession of the relevant provisions of the Combined Competitive Recruitment Examination for Group-C posts of Orissa Police Service, Orissa Prisons Service and Orissa Fire Service Orders, 2008, to regulate the combined recruitment to Group-B posts of SI and equivalent rank made the Orders, namely, "Combined Competitive Recruitment Examination for Group-B posts of Orissa Police Service, Orissa Fire Service Orders, 2021". An advertisement was issued on 27.12.2017 for Combined Police Service Examination-2017 by the Odisha Staff Selection Commission for recruitment of SI of Police, SI of Police (Armed), Station Officer (Fire Service) and Assistant Jailor. These are suggestive of the fact that Police Orders/Police Manual applies proprio vigore to determine seniority in the posts of fire service branch of Odisha Police and Fire Service Branch is being administered and regulated by the Odisha Police Manual. It is also inferred that the subsequent Act, Page 28 of 47 resolutions and notifications issued in respect of the fire service are only applicable prospectively and, as such, the recruitment made prior to the commencement of such Act, resolutions an notifications are also protected under the said Act, resolutions and notifications issued by the Government.
13. In absence of any rules applicable to the employees of Fire Services, the rules applicable to the police officers will also be applicable to them. Therefore, as per Police Order No. 110, the inter se seniority of the passed out Station Officers was fixed basing on the marks secured in the final examination of training. As such, Odisha Fire Service, being a wing of Police, is governed by PMR and accordingly, the inter se seniority of Station Officers of 8th batch was determined as per their marks secured in the final examination of training. Such fixation of seniority made, vide office order no. 17/FS dated 22.01.1985 and D.O. No. 395/OFS dated 02.02.1985, although was communicated to all concerned with a copy of gradation list and the same Page 29 of 47 was reflected in their respective service books, the petitioner never challenged such fixation of seniority at relevant point of time. Therefore, the contention so raised after lapse of 36 years, cannot sustain in the eye of law. Furthermore, the petitioner has suppressed the material facts before this Court and has not come to the Court with clean hands. Therefore, he is not entitled to get any relief as claimed in the writ petition. As such, the suppression of facts goes to the root of the matter, therefore the writ petition has to be dismissed on that score.
14. In The Ramjas Foundation v. Union of India, AIR 1993 SC 852, the apex Court held that when a person approaches a Court of equity in exercise of its extraordinary jurisdiction under Article 226/227 of the Constitution, he should approach the Court not only with clean hand but also with clean mind, clean heart and clean objective.
15. In Agricultural and Processed Food Products vs. Oswal Agro Furane, AIR 1996 SC 1947 : Page 30 of 47
(1996) 4 SCC 297, the apex Court had taken a serious objection in a case filed by suppressing the material facts and held that if a person is guilty of suppression of very important fact, his case cannot be considered on merits. Thus, a litigant is bound to make "full and true disclosure of facts"
16. As regards expressing distorted facts before the Court and not approaching with clean hands, in R. v. Kensington, Income Tax Commissioner, (1917) 1 KB 486 at page 506, it has been held as follows:
"The prerogative writ is not a matter of course; the applicant must come in the manner prescribed and must be perfectly frank and open with the Court."
17. In State of Haryana v. Karnal Distillery, AIR 1977 SC 781, the apex Court refused to grant relief on the ground that the applicant has misled the Court.
18. In Chancellor v. Bijayananda Kar, AIR 1994 SC 579, the apex Court held that a writ petition is liable to be dismissed on the ground that the petitioner did not approach the Court with clean hands. Page 31 of 47
19. Taking into consideration the above judgments, this Court, in Netrananda Mishra v. State of Orissa, 2018 (II) OLR 436, came to hold in paragraph-26 of the judgment as under:-
"............. For suppression of facts and having not approached this Court with a clean hand, the encroacher is not entitled to get any relief, particularly when the valuable right accrued in favour of the petitioner is being jeopardized for last 43 years for no fault of him, on which this Court takes a serious view. ........"
Similar view has also been taken by this Court in Swapna Pradhan v. State of Orissa and others, 2020 (I) OLR 93.
20. In view of such position, the contention raised with regard to validity of appointment, after long lapse of time cannot sustain in the eye of law. More so, the materials relating to preparation of gradation list at the entry grade and its corresponding entry in the service book were deliberately suppressed by the petitioner.
21. In K.A. Abdul Majeed (supra), the apex Court held that after a long lapse of time, the question of initial appointment cannot be re-opened at the instance Page 32 of 47 of private opposite parties and that too for altering the seniority.
22. As regards the consequence of suppression of material facts, e.g. the preparation of gradation list in the post of station officer and the corresponding entry in the respective service book, besides non-challenge to application of catch-up rule following the subsequent promotion of one Barjendu Bhusan Das from unreserved category to the post of Fire Officer, by which the petitioner was placed below him, such fact was not disputed in the rejoinder affidavit submitted in response to the counter affidavit filed by opposite party No. 4.
23. In Kishore Samrite (supra), the writ petition, apart from being not fit to be entertained, was dismissed with punitive costs, being abuse of the process of court. Relevant paragraph of the said judgment is extracted here-in-below.
"Abuse of the process of Court:
29. Now, we shall deal with the question whether both or any of the Petitioners in Civil Page 33 of 47 Writ Petition Nos. 111/2011 and 125/2011 are guilty of suppression of material facts, not approaching the Court with clean hands, and thereby abusing the process of the Court. Before we dwell upon the facts and circumstances of the case in hand, let us refer to some case laws which would help us in dealing with the present situation with greater precision. The cases of abuse of the process of court and such allied matters have been arising before the Courts consistently. This Court has had many occasions where it dealt with the cases of this kind and it has clearly stated the principles that would govern the obligations of a litigant while approaching the court for redressal of any grievance and the consequences of abuse of the process of court. We may recapitulate and state some of the principles. It is difficult to state such principles exhaustively and with such accuracy that would uniformly apply to a variety of cases.
These are:
(i) Courts have, over the centuries, frowned upon litigants who, with intent to deceive and mislead the Courts, initiated proceedings without full disclosure of facts and came to the courts with 'unclean hands'. Courts have held that such litigants are neither entitled to be heard on the merits of the case nor entitled to any relief.
(ii) The people, who approach the Court for relief on an ex parte statement, are under a contract with the court that they would state the whole case fully and fairly to the court and where the litigant has broken such faith, the discretion of the court cannot be exercised in favour of such a litigant.Page 34 of 47
(iii) The obligation to approach the Court with clean hands is an absolute obligation and has repeatedly been reiterated by this Court.
(iv) Quests for personal gains have become so intense that those involved in litigation do not hesitate to take shelter of falsehood and misrepresent and suppress facts in the court proceedings. Materialism, opportunism and malicious intent have over-shadowed the old ethos of litigative values for small gains.
(v) A litigant who attempts to pollute the stream of justice or who touches the pure fountain of justice with tainted hands is not entitled to any relief, interim or final.
(vi) The Court must ensure that its process is not abused and in order to prevent abuse of the process the court, it would be justified even in insisting on furnishing of security and in cases of serious abuse, the Court would be duty bound to impose heavy costs.
(vii) Wherever a public interest is invoked, the Court must examine the petition carefully to ensure that there is genuine public interest involved. The stream of justice should not be allowed to be polluted by unscrupulous litigants.
(viii) The Court, especially the Supreme Court, has to maintain strictest vigilance over the abuse of the process of court and ordinarily meddlesome bystanders should not be granted "visa". Many societal pollutants create new problems of unredressed grievances and the Court should endure to take cases where the justice of the lis well-justifies it. [Refer: Dalip Singh v. State of U.P. and Ors.: (2010) 2 SCC 114; Amar Singh v. Union of India and Ors.:
(2011) 7 SCC 69 and State of Uttaranchal v.Page 35 of 47
Balwant Singh Chaufal and Ors.: (2010) 3 SCC 402]."
In view of such position, it cannot be construed that appointment of opposite party no.4 as Station Officer in 1984 is void. Thereby, there is no basis to accept the contention of the petitioner that he is senior to opposite party no.4 on any count. Consequentially, the first question is answered against the petitioner with the finding that the opposite party no.4 is senior to the petitioner in the entry grade post of Station Officer of 1984 batch.
24. Moving to question no. (ii), the "catch up"
rule is applicable as a panacea for the candidates of unreserved category for not losing their seniority to reserved category candidates, in the event of their promotion to the higher posts ahead of them.
Consequential seniority is not covered by Article 16(4A) of the Constitution of India, 1950, following the 77th Amendment of the Constitution, which became effective on 07.06.1995 i.e. after the judgment in the case of Page 36 of 47 Indra Sawhney etc. etc. & others v. Union of India and others, etc. 1992 Supp.(3) SCC 217 wherein it was held that Article-16(4) does not permit reservation in the matter of promotion.
25. The apex Court in a series of cases, namely, in Virpal Singh, Ajit Singh Juneja and in Ajit Singh - II (supra) introduced the "catch up" rule. By 85th amendment of the Constitution, which became effective on 04.01.2002, consequential seniority was sought to be given in favour of candidates promoted on the basis of reservation w.e.f. 16.06.1995 i.e. immediately before the effective date of 77th Amendment of the Constitution. Constitutional validity of both 77th and 85th amendment of the Constitution came to be assailed in several cases.
26. In the case of M. Nagaraj (supra), while upholding the constitutional validity of the amendments, the apex Court made it clear that the State Governments may frame rule in respect of reservation in promotion with consequential seniority, Page 37 of 47 but only after quantifying the data. Unless it is done, no such rule relating to promotion with consequential seniority can be introduced.
27. In view of the aforesaid scenario, in the counter affidavit filed by opposite party no.4, it is specifically contended that the State Government has not made any such rule or resolution conferring the benefit of promotion with consequential seniority even as on the date of filing of the said counter affidavit. Thus, the "catch-up" rule is applicable proprio vigore. Under the "catch up" rule, the reserved candidate even though promoted earlier has to be placed below the general candidate promoted later, in case the general candidate was above the reserved candidate in the entry grade of service.
28. The petitioner while contending that the "catch up" rule is not applicable, referring to paragraph- 8 (iv) of the writ petition stated that the petitioner and the opposite party No.4 never continued in any promotional posts up to the post of Fire Officer and that Page 38 of 47 he got promotion to the posts above Deputy Fire Officer (Lowest rung in Class-I post) and that his subsequent promotions to the post of Fire Officer and Chief Fire Officer were on strength of merit and suitability, but the same has no basis in view of the judgment of the apex Court in Ajit Singh Juneja (supra). In paragraph-21, the apex Court held as follows:
"21. We respectfully concur with the view in Union of India v. Virpal Singh Chauhan (supra) that seniority between the reserved category candidates and general candidates in the promoted category shall continue to be governed by their panel position i.e. with reference to their inter se seniority in the lower grade. The rule of reservation gives accelerated promotion, but it does not give the accelerated 'consequential seniority'. If a Scheduled Caste/Scheduled Tribe candidate is promoted earlier because of the rule of reservation/roster and his senior belonging to the general category candidate is promoted later to that higher grade the general category candidate shall regain his seniority over such earlier promoted scheduled caste/tribe candidate.
As already pointed out above that when a scheduled caste/tribe candidate is promoted earlier by applying the rule of reservation/roster against a post reserved for such scheduled caste/tribe candidate, in this process he does not supersede his seniors belonging to the general category. In this Page 39 of 47 process there was no occasion to examine the merit of such scheduled caste/tribe candidate vis-a-vis his seniors belonging to the general category. As such it will be only rational, just and proper to hold that when the general category candidate is promoted later from the lower grade to the higher grade, he will be considered senior to candidate belonging to the scheduled caste/tribe who had been given accelerated promotion against the post reserved for him. Whenever a question arises for filling up a post reserved for scheduled caste/tribe candidate in still higher grade then such candidate belonging to scheduled caste/tribe shall be promoted first but when the consideration is in respect of promotion against the general category post in still higher grade then the general category candidate who has been promoted later shall be considered senior and his case shall be considered first for promotion applying either principle of seniority cum merit or merit cum seniority. If this rule and procedure is not applied then result will be that majority of the posts in the higher grade shall be held at one stage by persons who have not only entered in service on basis of reservation and roster but have excluded the general category candidates from being promoted to be posts reserved for general category candidates merely on the ground of their initial accelerated promotions. This will not be consistent with the requirement or the spirit of Article 16(4) or Article 335 of the Constitution.
(underlining is the emphasis supplied) Page 40 of 47
29. In Amir Chand Nayak (supra), it has been observed that if the "catch-up" principle is applied then, the inter-se seniority between the petitioner and the opposite party No. 4 in the feeder cadre has to be maintained on promotion.
30. In Pravakar Mallick Vs. State of Odisha & others, AIR 2020 SC 2122: 2020 (I) OLR (SC) 625, while repelling the submission that the benefit of reservation in promotion is given in the services for scheduled caste and scheduled tribe officers as per Section 10 of Orissa Act 38 of 1975, it was held that for the reason that such Act was enacted by the State of Orissa in the year 1975, no provision was brought in the said Act, for giving the benefit of seniority for the promotees who were promoted in reserved vacancies.
31. The petitioner lost his seniority to one Brajendu Bhusan Das, a candidate from the unreserved category who was promoted later to the post of Chief Fire Officer. The opposite party No. 4 specifically stated in the counter affidavit, annexing the relevant Office Page 41 of 47 Order No. HOME-FS-GRDN-0037-2017/CD, dated 21.04.2017 as Annexure-B/4, as follows:
""As a matter of fact though the petitioner got promotion to the post of Chief Fire Officer earlier to the promotion of one Brajendu Bhusan Das, in the gradation/seniority list prepared by the Government, the petitioner was placed next to him. Inter-se seniority was determined by Office Order No. HOME-FS-GRDN-0037-2017/CD, dated 21.04.2017. It may be pertinent to state that the petitioner never challenged the said office order by which he lost his seniority to Brajendu Bhusan Das, getting promotion to the post of Chief Fire Officer subsequent to his promotion. Both Brajendu Bhusan Das and this opposite party had joined the post of Fire Officer on 17.02.2014, i.e. the post next below in the rung. Inter-se seniority having been fixed under the same touchstone, the petitioner is placed below this opposite party in the impugned gradation list."
The aforesaid contention has not been denied by the petitioner in the rejoinder affidavit explaining as to how on the basis of the "catch up" rule, he was placed below to Brajendu Bhusan Das and did not dispute that opposite party no.4 and Brajendu Bhusan Das were promoted to the post of Fire Officer on 17.02.2014. Page 42 of 47
32. Much reliance has been placed on the provisions contained under Clause (c) of the second proviso to Sub-Section (2) of Section-4 of the ORV Act, 1975, which reads as follows:
"4. Reservation and the percentage thereof
- (1) xx xx xx (2) The reservation of vacancies in posts and services shall be at such, percentage of the total number of vacancies as the State Government may, from time to time, by order, determine:
xx xx xx Provided further that no reservation of vacancies to be filled up by promotion where -
Xx xx xx
(c) the vacancies have occurred in Class-I posts which are above the lowest rung thereof, and are to be filled upon the basis of selection."
To substantiate the same, reliance has also been placed on the judgment of this Court in Lagnajit Ray (supra), wherein observation has been made that reservation in promotional post under the State Service is available only in respect of Class-I post at the lowest rung as per Clause (c) of the second proviso to Sub-Section (2) of Section-4 of the ORV Act, 1975 and not any higher Class-I post in the service. The factual matrix of the said case, if will be taken into consideration, as has Page 43 of 47 been indicated, there is no dispute that the impugned provisional gradation list under Annexure-7 to the said case was prepared giving consequential seniority to the SC & ST roster point by following "catch up" rule. The basis of preparation of such provisional gradation list was the provisions of Rule 10(2) of the OAS-A (JB) Recruitment and Appointment Promotion Rules, 1977. Therefore, if the gradation list has been prepared by applying the "catch up" principle, the law that governs the reservation vacancies in past service in favour of the SC and ST, i.e, ORV Act and Rules, 1975 and 1977 shall apply in the matter of promotion of OAS (1) JB. Thereby, the judgment of Lagnajit Ray mentioned supra has been decided on its own facts and circumstances of the case which has no application to the present context.
33. In Batakrushna Adhikari (supra), this Court held that power to be exercised in accordance with law and with a fair procedure, not qualified for the post and not following any selection process make the Page 44 of 47 appointment inherently illegal. These principles have no application to the present context and thereby, the judgment is distinguishable.
34. In Amir Chand Nayak (supra), referring to the judgments in Ajit Singh, M. Nagaraj and Lagnajit Ray (supra), this Court held that if "catch up" rule is applied then, the inter se seniority between the petitioner and opposite party no.4 in the feeder cadre has to be maintained on promotion. Therefore, in the feeder cadre, if the opposite party no.4 was senior to the petitioner, then he can be treated as senior by applying the "catch up" principle. While analyzing the "catch up"
principle, relying upon the judgments of the apex Court, this Court has held that roster point promotees (reserved category) cannot count their seniority in the promoted category from the date of their continuous officiation in the promoted post, vis-a-vis the general candidates who were senior to them in the lower category and who were later promoted. On the other hand, the senior general candidate at the lower level, if Page 45 of 47 he reaches the promotional level later but before the further promotion of the reserved candidate he will have to be treated as senior, at the promotional level, to the reserved candidate even if the reserved candidate was earlier promoted to that level. Thereby, the aforesaid judgment is applicable to the case of opposite party no.4 not to the case of the petitioner. Thus the contention raised that the "catch up" principle is not applicable, cannot sustain in the eye of law. In view of the above, the second question is also answered against the petitioner.
35. In view of the facts and law, as discussed above, this Court is of the considered view that opposite party no.4, having stood first in the training examination held as per Police Rule 110, on the basis of the marks secured therein, was senior to the petitioner in the feeder cadre, and such fixation of seniority having been entered into service book and the same having not been called in question by the petitioner at the relevant point of time, the seniority of Page 46 of 47 opposite party no.4 has to be retained in promotional post by following "catch up" rule. Consequentially, the relief sought by the petitioner in the present writ petition cannot sustain in the eye of law. As a result, the writ petition is devoid of any merit and the same is hereby dismissed. No order as to costs.
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DR. B.R. SARANGI, JUDGE Orissa High Court, Cuttack The 7th October, 2021, Ajaya/GDS Page 47 of 47