Orissa High Court
Jayasen Patra & Others vs Orissa Power Generation Corporation on 9 October, 2013
Author: A.K.Rath
Bench: M.M.Das, A.K.Rath
HIGH COURT OF ORISSA: CUTTACK.
O.J.C. NO. 15035 of 1998
In the matter of an application under Articles 226 & 227 of the Constitution
of India.
Jayasen Patra & others ....... Petitioners
Versus
Orissa Power Generation Corporation
Limited & others ....... Opp.Parties
For petitioners : M/s S.Ray, S.Dey, A.Mohanty &
S.P.Das.
For Opp. parties 1 &2: Mr. P.N.Mohapatra.
P R E S E N T:
THE HON'BLE MR. JUSTICE M.M.DAS
AND
THE HON'BLE DR. JUSTICE A.K.RATH
Date of hearing: 24.09.2013 Date of Judgment: 09.10.2013
________________________________________________________________________
Dr. A.K.Rath,J. In this writ application under Article 226 of the Constitution
of India, the petitioners have challenged the promotion of opposite party
nos. 3 to 10 to the post of Senior Assistants, inter alia, on the ground
that they are juniors to the petitioners and to promote them to the post
of Senior Assistants with effect from the date on which the opposite party
nos. 3 to 10 were promoted.
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2. Adumbrated in brief the case of the petitioners is that
pursuant to the interview they were appointed as Junior Assistants by
the Orissa Power Generation Corporation Limited-opposite party no. 1 on
regular basis with effect from 25.09.1989, 25.09.1989, 25.09.1989,
25.09.1989, 27.09.1989 and 30.09.1989 respectively. They are
discharging their duties to the utmost satisfaction of the authorities
concerned. The further case of the petitioners is that opposite party nos.
3 to 9 had initially joined under opposite party no. 1 on NMR basis
without following the due selection process. But then their services were
regularized as Jr. Assistants with effect from 12.07.1990, 12.12.1990,
28.09.1991, 28.09.1991, 28.09.1991, 30.09.1991, 1.10.1991 and
1.10.1991 respectively. It is further stated that the post of Junior
Assistant is the feeder post for promotion to the grade of Senior
Assistant. The Orissa Power Generation Corporation Limited- opposite
party no. 1 (hereinafter referred to as "OPGC") and the General Manager
(P & A), OPGC-opposite party no. 2 have not framed any Rules to
regulate the method and manner for promotion to the higher grade. In
the absence of any Rules, seniority becomes the sole criteria for
promotion to the higher post. It is further stated that opposite party nos.
1 and 2 vide office order No. 865 dated 29.01.1994 promoted opposite
party nos. 3 to 9 to the post of Sr. Assistants provisionally for a period of
one year without considering the case of petitioners promotion to the
said post. While promoting the opposite party nos. 3 to 9, no gradation
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list was prepared. It is further stated that though promotion under
Annexure-1 was made provisionally for a period of one year, but then
after completion of one year, opposite party nos. 3 to 9 have continued in
the post of Senior Assistants. Thereafter, the petitioner no. 1 made a
representation to opposite party nos. 1 and 2. The Senior Assistant
General Manager (Personnel) vide order dated 5.08.1996 under
Annexure-2 informed petitioner no. 1 that the Grievance Committee had
decided to consider his case in due course of time. It is further stated
that opposite party no.10 initially entered into Corporation service
through back door method without facing any interview and joined in the
Orissa Power General Corporation on 11.09.1993. In order to regularize
his service, records were prepared from the retrospective date and his
service was regularized as a Jr. Assistant with effect from 1.10.1992
though on the said date he had not joined in the Corporation (OPGC).
3. Pursuant to issuance of notice, opposite party nos. 1 and 2
have entered appearance and filed a counter affidavit. The case of the
opposite party nos.1 and 2 is that the OPGC was incorporated in the year
1984. The Corporate Office of OPGC situates at Bhubaneswar and the
power generating units i.e., Ib Thermal Power Station (for the sake of
brevity "ITPS") are located at Banharpalli in the district of Jharsuguda.
Opposite party nos.3 and 5 to 9 were engaged on NMR basis in the year
1985, 1986 & 1987 respectively at ITPS, when the construction of the
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project was started. The opposite party no.4 being a land oustee was
absorbed in the regular cadre of Junior Assistant on 12.12.1990 as a
part of rehabilitation policy. Since the project activities were coordinated
and monitored from the Corporate Office, Bhubaneswar, NMR employees
were also engaged at the Corporate Office to cater to the increased work
load. Some of the NMR employees engaged in the Corporate Office were
regularized during the year 1989. Subsequently depending on the
progress in the project activities some NMR employees including the
opposite party nos. 3 and 5 to 9 were regularized in the year 1990 and
1991 against the sanctioned vacancies. Since there was resentment
among the NMR employees engaged at the ITPS, the OPGC considered to
regularize the services of opposite party nos. 3 and 5 to 9. It is further
stated that opposite party nos. 3 to 9 are land-oustees and affected local
people of the project site. Further case of opposite party nos. 1 and 2 is
that though no Rules for promotion were framed by the OPGC, the
promotions were effected on such basis as were deemed just and
equitable under the circumstances prevailing then. It is further stated
that when the project work of the ITPS was on the verge of completion,
the Board in its 52nd meeting held on 5.01.1994 decided to give
promotion from the grade of Junior Assistant to the grade of Senior
Assistant. The DPC constituted for considering the promotional cases of
Junior Assistant decided that the period of service as NMR by various
employees will be taken into account so far as seniority is concerned. It
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was further resolved that the need of including NMR period of service of
the employees in view of the fact that the Site Office, which is the hub of
the project activities initially recruited a number of persons in the year
1986 on ad hoc basis and thereafter their services had been regularized
during the year 1991, whereas the persons recruited in the Corporate
Office during the year 1987 had been regularized in the year 1989. The
Board further resolved that in recognition of long record of services by
the NMR employees they were to be considered for promotion taking into
account the services rendered by the said NMR employees. It is further
stated that in accordance with the principle decided by the DPC, the
NMR period of the employees were taken into account for determining
the seniority. So far as opposite party no.10 is concerned, it is stated
that he had faced the interview along with other candidates whose names
were sponsored by the District Employment Exchange, Khurda. Opposite
party no.10 joined the OPGC on 18.07.1990 on ad hoc basis with a
consolidated salary and he was subsequently appointed as Junior
Assistant on 1.10.1991.Much emphasis has been laid in the counter that
the promotion to the post of Senior Assistant was effected on a just and
equitable basis and as such the grievance of the petitioners does not
deserve any consideration. In spite of valid service of notices, none
appeared for opposite party nos. 3 to 10.
4. In course of hearing Mr. S.Ray, learned counsel for the
petitioners submitted that opposite party nos. 3 to 10 are appointed as
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Junior Assistants at the later point of time than that of the petitioners
and as such they are juniors. He further submitted that the OPGC
committed illegality in promoting the Junior Assistants to the post of
Senior Assistants ignoring the case of the petitioners. Mr. Ray placed
reliance on the decision of the Hon'ble Supreme Court in the case of
Secretary, State of Karnataka and others v. Umadevi and others, AIR
2006 SC 1806 and in the case of K.Madalaimuthu and another v. State
of Tamil Nadu and others, AIR 2006 SC 2662.
5. Mr. P.N.Mohaptra, learned counsel for opposite party nos.1
and 2 submitted that though opposite party nos. 3 and 5 to 9 were
engaged on NMR basis in the year 1985, 1986 and 1987 at ITPS, but
their services were regularized in the year 1990 and 1991 against the
sanctioned vacancies. He further submitted that since the project
activities were coordinated and monitored from the Corporate Office at
Bhubaneswar, the NMR employees were engaged at the Corporate Office.
Some of the NMR employees engaged at the Corporate Office were
regularized during the year 1989 and as such there was resentment
amongst the NMR employees at IPTS, hence, the OPGC considered for
regularizing the services of the NMR employees including opposite party
nos. 3 and 5 to 9. Mr. Mohapatra further submitted that the DPC in its
meeting held on 5.01.1994 took a decision to take into account the
period of services of the NMR employees towards their seniority for
promotion to the post of Senior Assistant. He further submitted that
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promotion was made to the post of Senior Assistant on a just and
equitable basis. He also submitted that the promotion of the opposite
party nos. 3 to 10 were made on 29.01.1994 vide Annexure-1. However,
the writ application was filed after a lapse of four years and there is no
satisfactory explanation of the petitioners as to why they approached this
Court after a long lapse of time. He cited the decision of the Hon'ble
Supreme Court in the case of State of Uttaranchal and another v. Sri
Shiv Charan Singh Bhandari and others, (Civil Appeal Nos. 7328 -7329
of 2013), to buttress the submission that though there is no period of
limitation provided for filing a writ petition under Article 226 of the
Constitution of India, yet ordinarily a writ petition should be filed within
a reasonable time and that a person aggrieved by an order of promoting a
junior over his head should approach the Court at least within six
months or at the most a year of such promotion. Mr. Mohapatra further
cited the judgment of the Hon'ble Supreme Court in the case of
S.Sumnyan and others v. Limi Niri and others, AIR 2010 SC 2159 and
submitted that while promoting a person to higher post, the NMR period
of service should be taken into account.
6. On the rival pleadings of the parties, really two points arise
for our consideration:-
(i) Whether there is inordinate delay on the part
of the petitioners to approach this Court under
Article 226 of the Constitution India?
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(ii) Whether the services rendered by the opposite
parties 3 to 10 as NMR employees would be counted
towards seniority for the purpose of promotion to the
higher post?
7. There is no period of limitation for filing a writ application
under the Constitution of India, but then a writ application should be
filed within a reasonable time. In Shiv Charan Singh Bhandari case, the
respondents had filed a claim petition before the Public Services Tribunal
of Uttarakhand at Dehradun claiming that they were entitled to
promotion from SAS Group III to SAS Group II with effect from
15.11.1983, the date on which the junior was promoted. On a bare
reading of the said judgment it is crystal clear that the promotion was
made on 15.11.1983 but application filed after lapse of twenty years. In
the facts and circumstances of that case, their Lordships held that it
would be a sound and wise exercise of discretion for the Courts to refuse
to exercise their extraordinary powers under Article 226 in the case of
persons who do not approach it expeditiously for relief and who stand by
and allow things to happen and then approach the Court to put forward
stale claims and try to unsettle settled matters.
8. In the instant case promotion was made on 29.01.1994 vide
Annexure-1. On the basis of representation dated 29.03.1996 filed by
petitioner no. 1, on 5.08.1996 the OPGC intimated him that the
Grievance Committee had decided to consider his case in due course of
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time vide Annexure-2. The writ application was filed on 30.10.1998.
Thus, it cannot be said that there is inordinate delay on the part of the
petitioners to approach this Court. Therefore, the first point is answered
in favour of the petitioners.
9. In Umadevi's case (supra) the Hon'ble Supreme Court at
paragraph 39 held as follows:-
39. " xxx xxx xxx.Those who are working on daily
wages formed a class by themselves, they cannot claim that
they are discriminated as against those who have been
regularly recruited on the basis of the relevant rules. No
right can be founded on an employment on daily wages to
claim that such employee should be treated on a par with a
regularly recruited candidate, and made permanent in
employment even assuming that the principle could be
invoked for claiming equal wages for equal work. There is
no fundamental right in those who have been employed on
daily wages or temporarily or on contractual basis, to claim
that they have a right to be absorbed in service. As has
been held by this Court, they cannot be said to be holders
of a post, since, a regular appointment could be made only
by making appointments consistent with the requirements
of Arts. 14 and 16 of the Constitution. The right to be
treated equal with the other employees employed on daily
wages, cannot be extended to a claim for equally treatment
with those who were regularly employed. That would be
treating un-equals as equals. It cannot also be relied on to
claim a right to be absorbed in service even though they
have never been selected in terms of the relevant
recruitment rules. The arguments based on Articles 14 and
16 of the Constitution are therefore overruled."
In K.Madalaimuthu's case (supra) the Hon'ble Supreme
Court at partagraph 24 held as follows:-
24. "xxx xxx xxx. It stands to reason that a
person, who is appointed temporarily to discharge the
functions in a particular post without recourse to the
recruitment rules, cannot be said to be in service till such
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time as his appointment is regularized. It, therefore, follows
that it is only from the date on which his services are
regularized that such appointee can count his seniority in
the cadre."
10. The principle enunciated in the aforesaid decisions
applies with full force to the facts and circumstances of this case. The
ratio laid down in S.Sumnyan's case (supra) has no application to the
present case inasmuch as in the facts and circumstances of said case,
the judgment was rendered.
11. Applying the ratio laid down by the Hon'ble Supreme Court
in the decisions cited supra, we have examined the case at hand. There
is no dispute that opposite party nos. 3 to 10 were appointed on NMR
basis without following regular selection process and were regularized in
the post of Junior Assistants with effect from 12.07.1990, 12.12.1990,
28.09.1991, 28.09.1991, 28.09.1991, 30.09.1991, 1.10.1991 and
1.10.1991 respectively, i.e., at a later point of time than that of the
petitioners. They cannot, by no stretch of imagination, to be in service till
such time their appointments were regularized. It is only from the date
on which their services are regularized, their seniority in the cadre is to
be counted. Opposite parties 3 to 10, who were working on NMR basis
formed a class by themselves. No right can be founded on an
employment on daily wage basis to claim that such employees should be
treated at par with a regularly recruited candidates. They cannot be said
to be holder of posts.
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12. In view of the above, the promotion of opposite party nos. 3
to 10 to the post of Senior Assistant vide Annexure-1 is quashed and the
OPGC is directed to promote the petitioners with effect from 29.01.1994,
the date on which opposite party nos. 3 to 10 were promoted. We make it
clear that petitioners will not be entitled to get any arrear salary. The
said period shall be counted towards their seniority and other retiral
benefits.
13. The writ petition is accordingly allowed. There shall be no
order as to costs.
........................
Dr. A.K.Rath, J.
M.M.Das, J.I agree.
........................
M.M.Das, J.
ORISSA HIGH COURT, CUTTACK The 9th October, 2013/AKD