Orissa High Court
Pramodini Jena vs The Registrar Civil Courts Jajpur And ... on 13 October, 2017
Author: B.K.Nayak
Bench: B.K.Nayak
HIGH COURT OF ORISSA,CUTTACK
W.P. (C) No.16282 of 2015
In the matter of an application under Articles 226 and 227 of the
Constitution of India, 1950.
-------
Pramodini Jena ......... Petitioner
Versus
The Registrar, Civil Courts, Jajpur
and others ......... Opposite Parties
For Petitioner : M/s.Aurovinda Mohanty, P.K.Pasayat and
K.Sahoo
For Opp. Parties : Bibhu Prasad Tripathy
Additional Government Advocate
.........
PRESENT :
THE HON'BLE MR. JUSTICE B.K.NAYAK
AND
THE HON'LE DR. JUSTICE D.P.CHOUDHURY
---------------------------------------------------------------------------------
Date of judgment:13.10.2017
---------------------------------------------------------------------------------
Dr. D.P.Choudhury, J. The petitioner, in this writ petition, assails the
order dated 19.05.2015 giving promotion to the opposite party no.3 to
the post of Senior Stenographer and the action of the opposite parties in
not giving promotion to her.
2. FACTS
The filtrated factual matrix leading to the case of the
petitioner is that the petitioner was appointed as Junior Stenographer in
pursuance of the appointment letter dated 19.12.2005 vide Annexure-1
by the learned District Judge, Cuttack and she joined in the said post on
02.01.2006. The opposite party no.3, who is similarly situated, was -2- appointed as Junior Stenographer earlier to the petitioner by the learned District Judge, Cuttack. After the judgeship of Cuttack got bifurcated by giving birth to the judgeship of Jajpur in 2012, the petitioner found her name at Serial No.2 of the gradation list in the judgeship of Jajpur. But the name of the opposite party no.3 did not find place there. The opposite party no.3 was promoted to the post of Senior Stenographer in the judgeship of Cuttack in 2010 on ad hoc basis being posted in the Fast Track Court. But, due to abolition of Fast Track Courts, she was reverted to the post of Junior Stenographer and it has been alleged by the petitioner that said reversion of opposite party no.3 is illegal.
3. Be it stated that the opposite party no.1 purportedly issued draft gradation list on 9.2.2015 vide Annexure-3 for the judgeship of Jajpur wherein the name of the petitioner finds place at Serial No.3 in the grade of Junior Stenographer and the name of the opposite party no.3 was found at Serial No.2 with the remark "Foregone Promotion". When it is a "Foregone Promotion", the petitioner expected her promotion to the post of Senior Stenographer, but the learned District Judge, Jajpur published the final gradation list on 06.04.2015 vide Annexure-4 wherein the words, i.e, "Foregone Promotion" have been removed.
4. Be it stated that injustice has been caused by the opposite parties in preparing the gradation list because when the opposite party no.3 has been promoted to the post of Senior Stenographer, it is not proper to show that she has been posted as Grade-III Stenographer -3- again by the opposite party no.3 in the gradation list. However, on the disposal of the representation made by the petitioner, the opposite parties informed that said "Foregone Promotion" has been inadvertently typed out and the same has been deleted subsequently, which is also challenged by the petitioner. The petitioner came to know that in the redeployment while the judgeship of Jajpur was separated from the judgeship of Cuttack, the opposite party no.3 was transferred as Junior Stenographer to the judgeship of Jajpur. But, the petitioner arrayed the same as illegal because the opposite party no.3 after foregoing promotion has informed the concerned authority for her transfer to the judgeship of Jajpur and the same has been considered resulting her transfer to the judgeship of Jajpur. So, she claimed that the case of the opposite party no.3 is an inter-judgeship transfer where she has to remain in the bottom of the cadre of Junior Stenographer.
5. The petitioner inter alia alleged that the opposite party no.2, while did not consider the case of the similarly situated stenographers, namely, Alok Prava Dalei and Chandrasekhar Pradhan, but considered the case of the opposite party no.3 for her redeployment and the same took place after the cut off date for which there is reason to believe that this is a case of inter-judgeship transfer and the opposite party no.3 has to remain in the bottom of the gradation list below the petitioner.
6. It is further averred by the petitioner that the opposite party no.3 was again promoted in the judgeship of Jajpur to the post of Senior Stenographer when she has foregone her promotion at the first instance -4- and reverted to the post of Junior Stenographer. So, her case is also otherwise illegal and improper. On the other hand, in order to deprive the petitioner from getting promotion, the opposite parties have committed illegality by preparing false and incorrect documents, which are de hors the law. The petitioner had made representation but the same has been rejected vide Annexure-8 illegally. So, she filed the instant writ petition to quash the impugned orders passed under Annexures-4, 6, 8 and 11 and to give her promotion to the post of Senior Stenographer, Gade-II with all consequential service benefits from the date opposite party no.3 was promoted.
7. Per contra, opposite party no.1 has filed counter affidavit refuting the allegations made in the writ petition. The opposite parties claimed that as per the Service Book, the opposite party no.3 entered into service as Junior Stenographer in the undivided judgeship of Cuttack on 23.03.1998 whereas the petitioner entered into service in the same judgeship on 02.01.2006, which implies that opposite party no.3 is senior to the writ petitioner in the undivided judgeship of Cuttack.
8. Be it stated that on 28.06.2012, there was bifurcation of Cuttack judgeship and the new Jajpur judgeship was formed. Redeployment of the Group-„C‟ and Group-„D‟ staff were made by the learned District Judge, Cuttack taking into consideration the representation made by the employees of undivided judgeship of Cuttack and G.A. Department Office Memorandums Dated 13.12.1996 -5- and 22.12.1997. Vide letter dated 30.01.2013, this Court in the administrative side directed learned District Judge, Cuttack and Jajpur to hold a joint meeting and in obedience to such direction, meeting was held on 15.05.2013 and as an outcome of such meeting, leaned District Judge, Cuttack, vide letter dated 03.09.2013, redeployed the service of opposite party no.3 in the judgeship of Jajpur and opposite party no.3 joined in the establishment of Civil Judge (Junior Division) in the judgeship of Jajpur on 10.09.2013 FN. Since the opposite party no.3 is senior to the writ petitioner, her name was placed above the petitioner in the gradation list circulated vide letter dated 06.04.2015 (Annexure- H/1) by the authority and accordingly, when the next vacancy arose in the cadre of Senior Stenographer, the office of the learned District Judge, Jajpur placed the name of opposite party no.3 before the Departmental Promotional Committee for promotion to the said post. It is also the case of the opposite party that in the remark column of draft gradation list in respect of opposite party no.3, due to typographical error, it was mentioned as "foregone promotion", but in the final gradation list, the same has been rectified being deleted.
9. The petitioner filed rejoinder affidavit reiterating the averments made in the writ petition stating that it is not a deployment posting of opposite party no.3 but a inter-judgeship transfer for which the opposite party no.3 should be placed below the petitioner and in the event of promotion, the petitioner should be promoted to the post of Senior Stenographer in the judgeship of Jajpur. In the rejoinder affidavit -6- filed by the petitioner, it has been already stated that the opposite party no.3 has submitted her representation on 22.06.2012 before the opposite party no.2 for her posting in the judgeship of Jajpur even at the cost of foregoing promotion, if no post of Senior Stenographer is available in the judgeship of Jajpur. She also made another representation on 04.07.2012 reiterating the same to get herself posted in the judgeship of Jajpur, she is ready and willing to forego her promotional post. Be it stated that since the willingness of opposite party no.3 was given to work in the judgeship of Jajpur after the cut off date, i.e, 28.06.2012, the deployment of opposite party no.3 should be treated as inter-judgeship transfer instead of deployment in the judgeship of Jajpur. So, the preparation of final gradation list and giving promotion to opposite party no.3 on such basis is not only illegal but also de hors the principle settled by judicial pronouncement.
10. In the rejoinder affidavit, the petitioner claims that the plea of the opposite parties that the words, i.e, "foregone promotion"
mentioned in the remarks column of gradation list in respect of opposite party no.3 was an error is deliberate suppression of truth and cannot be a typographical error. It is specifically stated that the opposite party no.3 was promoted on ad hoc basis to the post of Senior Stenographer to work in the Fast Track Court, but subsequently reverted to the post of Junior Stenographer with effect from 01.04.2013 is also against the principle of law as the reversion to the post of Junior Stenographer was without any reason. Again her promotion to the post of Senior -7- Stenographer in the judgeship of Jajpur amounts to double promotion to the same cadre by an employee which is against the service jurisprudence.
11. SUBMISSIONS Mr.Mohanty, learned counsel for the petitioner submitted that the case of the petitioner should be considered in the light of the position of law. Although, opposite party no.3 is senior to the petitioner in their initial joining, but the name of the petitioner finds place at Serial No.2 of the draft gradation list in the judgeship of Jajpur and the case of the opposite party no.3 was considered later under inter-judgeship transfer and accordingly, the name of the opposite party no.3 should find place at the bottom of the gradation list for Junior Stenographer, but the same has been done in this case illegally. When the opposite party no.3 has got promoted to the rank of Senior Stenographer, the posting of opposite party no.3 in the judgeship of Jajpur should be below other stenographers of Grade-III.
12. Mr.Mohanty, learned counsel for the petitioner further submitted that the opposite party no.3, being promoted to the post of Senior Stenographer and posted in the Fast Track Court, cannot be reverted to the post of Junior Stenographer, Grade-II when no necessity of reversion. According to him, after being reverted to the post of Junior Stenographer, she cannot claim further promotion to the next higher post as she has foregone the same. On the other hand, the name of -8- opposite party no.3 should have been placed below the name of petitioner while being deployed in the judgeship of Jajpur.
13. Mr.Tripathy, learned Additional Government Advocate submitted that the writ petition is not maintainable because the petitioner has assailed the promotion of opposite party no.3 although she is much junior to her having been recruited in the year 2006. Moreover, the opposite party no.3 was promoted to the post of Senior Stenographer on ad hoc basis being posted in the Fast Track Court, which is also temporary cadre under FTC Scheme. When that Court was abolished, the opposite party no.3 was reverted to the post of Junior Stenographer, Grade-III in the year 2013 and there is no bar in law for reversion of an ad hoc employee to the original post. So, the contention of Mr.Mohanty, learned counsel for the petitioner that the reversion was unholy and de hors the law is untenable.
14. Mr.Tripathy, learned Additional Government Advocate further submitted that by the cut off date, the opposite party no.3 has made representation for her posting in the judgeship of Jajpur as Junior Stenographer, Grade-III even if the post of Senior Stenographer, Grade- II was not available in that judgeship and the same fact has only been reiterated in further representation made on 04.07.2012. So, it cannot be said that the representation was made after the cut off date, as submitted by the learned counsel for the petitioner. He further contended that it is the prerogative of the employer to consider the representation when the representations of opposite party no.3 were -9- basically for deployment in the judgeship of Jajpur and this Court has allowed both the District Judges to have a joint meeting and consider the representations of the employees consequent upon which the deployment of opposite party no.3 in the post of Junior Stenographer was made in the judgeship of Jajpur, which is absolutely within the provisions of law and the same cannot be termed as illegal or improper.
15. Mr.Tripathy, learned Additional Government Advocate further asserted that since the post of opposite party no.3 is based on deployment in the judgeship of Jajpur on her parent cadre as Junior Stenographer, Grade-III, the principles of inter-judgeship transfer per se is not applicable in her case. Since the petitioner and the opposite party no.3 were born in the same judgeship initially and the opposite party no.3 is senior to the petitioner in the parent cadre, the final gradation list showing the opposite party no.3 above the petitioner cannot be said to be as illegal and improper. Therefore, the contention of learned counsel for the petitioner bears no merit and the same should be rejected.
16. POINTS FOR DETERMINATION The main points for determination are; (1) Whether the transfer of opposite party no.3 as Junior Stenographer, Grade-III to Jajpur is an inter-judgeship transfer? and (2) Whether the petitioner is entitled to promotion to the post of Senior Stenographer when the opposite party no.3 got promoted to the said post in the judgeship of Jajpur?
- 10 -
17. DISCUSSIONS POINT No.(1) It is the admitted fact that the opposite party no.3 was appointed on 23.03.1998 whereas the petitioner was appointed on 02.01.2006 in the undivided judgeship of Cuttack. It is not in dispute that both were working in the undivided judgeship of Cuttack till the new judgeship of Jajpur was separated from Cuttack on 28.06.2012. It is also not in dispute that with regard to redeployment of Class-III employees in the judgeship of Cuttack and Jajpur, a joint meeting was convened by both the District Judges on the direction of this Court and the employees were redeployed.
18. It is the case of the petitioner that the opposite party no.3 was regularly promoted to the post of Senior Stenographer, Grade-II as per Annexure-10, but while reverted to the post of Junior Stenographer, Grade-III as per Annexure-11, her promotion to the post of Senior Stenographer, Grade-II was shown on ad hoc basis. It is also the contention of the learned counsel for the petitioner that although the Fast Track Court was abolished but the posting of opposite party no.3 along with similarly situated employees were withdrawn and posted in other Courts, but not reverted like the opposite party no.3. Here, the opposite party no.3 has never challenged her reversion order (Annexure-11) whereas the same is challenged by the writ petitioner. When the reversion order is not challenged by the opposite party no.3 and by such reversion, the position of the petitioner in the parent cadres is not affected, the petitioner has no locus standi to make prayer to get
- 11 -
it set aside. Even if Annexure-10 is not properly worded, but the words, i.e., "ad hoc" having been used in Annexure-10, the promotion of the opposite party no.3 has been considered by the employer as ad hoc basis because of temporary Fast Track Court Scheme. The employer can take decision where and how the employee would be required to be promoted and posted and it is the concerned employee(s) whose interest is affected by such promotion or the reversion having immediate effect may challenge.
19. Relying upon the counter affidavit, it is clarified by Mr.Tripathy, learned Additional Government Advocate that in the remark column of the draft gradation list, it is mentioned that the opposite party no.3 has foregone promotion, but it was inadvertent one. At the same time, that typographical error has been rectified subsequently in the final gradation list but the petitioner challenged the same as intentional or deliberate one and her claim is based on the representation of the opposite party no.3 vide Annexures-13 and 14.
20. On going through Annexure-13, it appears that on 22.06.2012, opposite party no.3 made a request to deploy her in the judgeship of Jajpur even in the post of Junior Stenographer, if she would not be accommodated in the post of Senior Stenographer that she was enjoying by then for any administrative reason. This letter cannot be termed as foregoing promotion. Annexure-14 also shows that on 04.07.2012, she also made similar request. On going through both the annexures, it appears that they cannot be read as letter of foregoing
- 12 -
promotion. Under the service jurisprudence, an employee can forego promotion when he/she is offered the same. Here, in this case there is no offer of promotion to the opposite party no.3 for which question of foregoing promotion does not arise. These annexures are nothing but request to deploy her in the judgeship of Jajpur.
21. When Annexure-11 dated 30.03.2013 shows that opposite party no.3 has been reverted to the post of Junior Stenographer, Grade- III, as it appears from the proceeding of the joint meeting vide Annexures-C/1 her request for her deployment placed and both the District Judges decided to place her service in the judgeship of Jajpur, the case of the opposite party no.3 was considered on the basis of deployment in the judgeship of Jajpur on 15.05.2013. Accordingly, Annexures-D/1, E/1 and F/1 show that subsequently opposite party no.3 was posted in the judgeship of Jajpur and she resumed her duty as Junior Stenographer, Grade-III in the Court of the learned Civil Judge, Senior Division, Jajpur on 10.09.2013.
22. Learned counsel for the petitioner claimed that the aforesaid posting was nothing but inter-judgeship transfer. Now, question arises what is inter-judgeship transfer? The inter-judgeship transfer for Group- „C‟ staff at first was formulated on 16.10.1985. We take cognizance of the letter of this Court dated 16.10.1985 where the District and Sessions Judges were asked to forward the applications of the intending candidates who fulfil the prescribed terms and conditions. Such terms and conditions are as under:
- 13 -
"Terms & Conditions:
1. He must have served not less than 5 years in the present post.
2. He must have cleared all the Departmental Examination.
3. He must undertake not to claim his seniority in the Judgeship where he intends to serve.
4. In no case, applications of the employees other than Jr. Clerks, Jr. Typists and Jr. Stenographers will be considered."
The aforesaid letter of this Court dated 16.10.1985 has also been reiterated by issuing another letter of this Court dated 31.03.2015. Not only this but also the inter-judgeship transfer has been also recognized by Rule-13 of Orissa District and Sub-ordinate Courts‟ Non- Judicial Staff Services (Method of Recruitment and Conditions of Service) Rules, 2008 (hereinafter called as "the Rules, 2008"), which speaks as under:
"13.Transfer of Clerks:-
(1) Any person in the post of Junior Clerk/Senior Clerk, Senior Clerk (Head Clerk Grade), Typist, Copyist and Stenographer Grade-III or Stenographer Grade-II shall ordinarily be transferred to any other office or seat within the administrative control of the District Judge on completion of three years period in any particular office or seat and the District Judge shall be the competent authority to pass such orders of transfer.
(2) The Chief Justice of the Court shall be competent to pass order of transfer of the Subordinate Court‟s Non-Judicial staff of a District Court to another District Court within the State of Orissa on the terms and conditions fixed by him.
The Chief Justice of the Court may also on the request of any member of Class-III and Class-IV service of the High Court, permit him/her to be absorbed in the ministerial service of the District and Subordinate Courts within the administrative control
- 14 -
of the District Judge in the base level post and his/her seniority will be fixed at the bottom of the cadre, provided the concerned District has no objection and the employee concerned is willing to forgo his seniority and join as the junior most in the category in which he/she is to be absorbed. In such event, the service rendered by such employee in the establishment of the High Court shall be taken into account for the purpose of computing it as qualifying service for the purpose."
From the aforesaid rule and the notification of this Court, it is clear that the inter-judgeship transfer can be made for Group-„C‟ staff, who have completed five years of service in the present post, must have completed departmental examination and must undertake not to claim any seniority in the judgeship where he/she intends to serve and after all, the Hon‟ble Chief Justice has got the prerogative for transfer of one Group-„C‟ employee from one judgeship to another judgeship within the State of Orissa. In the event of inter-judgeship transfer, the employee transferred cannot claim seniority. Obviously, it is understood that he/she would be junior most in the same cadre in the other judgeship to which place he/she transferred. But the transfer on deployment is different from inter-judgeship transfer because deployment only occurs where new district is created and it is governed by G.A. Department circular, as aforesaid. In that circular, there are no such terms and conditions.
23. Applying the above principle, in the instant case, it appears that no order of Hon‟ble the Chief Justice is available about inter- judgeship transfer of opposite party no.3 to the judgeship of Jajpur. When there is no order of Hon‟ble the Chief Justice for transfer to the
- 15 -
judgeship of Jajpur under Rule-13 of the Rule, 2008, the principles of inter-judgeship transfer are not applicable in the case of opposite party no.3.
24. On the other hand, the deployment of the staff having been made under the order of this Court in administrative side, as per the decision taken by both the District Judges of regular employee including the opposite party no.3, the posting of opposite party no.3 in the judgeship of Jajpur is on deployment but not as inter-judgeship transfer. The Point No.(1) is answered accordingly.
25. POINT NO.(2) It is the case of the petitioner that the opposite party no.3 was promoted to the post of Senior Stenographer, Grade-II in the judgeship of Jajpur after the gradation list was published on 06.04.2015 vide Annexure-4. On going through the same, it appears that the name of opposite party no.3 finds place at Serial No.2 whereas the name of the petitioner finds place at Serial No.3. It is also found from Annexure- 6 that the opposite party no.3 has been promoted on 19.05.2015 to the post of Senior Stenographer in the judgeship of Jajpur. No doubt, the same was challenged by the present petitioner but the authority has rejected the same.
26. It is needless to say that the opposite party no.3 is much senior to the petitioner on her initial appointment in the undivided judgeship of Cuttack. It appears from the material that the petitioner was also posted in Jajpur judgeship before deployment order issued and
- 16 -
by that order, her deployment remained in new judgeship of Jajpur. It is reiterated that opposite party no.3, being deployed in the judgeship of Jajpur as Junior Stenographer, Grade-III, remained above the petitioner as per gradation list and her posting is not under the inter-judgeship transfer rule. So, as per Rule-11 of the Rules, 2008, opposite party no.3 has been rightly promoted to the post of Senior Stenographer, Grade-II on the principle of merit-cum-seniority. But the case of the petitioner can be considered for promotion only in the next vacancy occurred in the cadre of Senior Stenographer, Grade-II. The Point No.(2) is answered accordingly.
27. CONCLUSION In the writ petition, the petitioner has prayed for setting aside the impugned orders under Annexures-4, 6, 8 and 11 with a further prayer to direct the opposite party no.1 to give her promotion to the post of Senior Stenographer, Grade-II as per Annexure-12 with all consequential service benefits from the date when opposite party no.3 got promoted. It has been already held that the transfer of opposite party no.3 to the judgeship of Jajpur is not on inter-judgeship transfer but on deployment basis by the concerned judgeships. So, the question of applying bottom principle does not arise. Apart from this, it has been already held that the opposite party no.3, has been rightly promoted to the post of Senior Stenographer, Grade-II in the judgeship of Jajpur. Thus, the petitioner‟s claim for such post superseding opposite party no.3 is unjustified. Hence, the reliefs claimed by the petitioner in the
- 17 -
present writ petition are devoid of merits and accordingly, we decline to grant the same.
In the result, the writ petition is dismissed.
....................................
Dr.D.P.Choudhury,J.
B.K.Nayak,J. I agree
....................................
B.K.Nayak,J.
Orissa High Court: Cuttack
Dated 13th October, 2017/Nayak