Orissa High Court
Dhobei Pati vs Union Of India & Ors. ......... ... on 18 March, 2011
L.MOHAPATRA, J & S.K.MISHRA, J.
O.J.C. NO.4001 OF 2000 (Decided on 18.03.2011)
DHOBEI PATI ..... .... Petitioner.
.Vrs.
UNION OF INDIA & ORS. ......... Opp.Parties,
For Petitioner - M/s. A.Mohanty, T.Rath, S.Natia, H.K.Tripathy,
J.Patra & J.Sahoo.
For Opp.Parties - Sri S.D.Das, Assistant Solicitor General of India
(for Opp.Party Nos.1 to 4)
Mr. P.K.Padhi, B.Mohanty-I, S.Patra &
P.K.Mohanty
(for Opp.Party No.5)
L.MOHAPATRA, J.This writ application is directed against the order dated 14.3.2000 of the Central Administrative Tribunal, Cuttack Bench, Cuttack passed in O.A. Nos.607 of 1992 and 673 of 1993. The petitioner was the applicant in O.A. No.673 of 1993 and opposite party No.5 was the applicant in O.A. No.607 of 1992.
2. The facts leading to filing of the two Original Applications before the Tribunal are that the petitioner was appointed as a Junior Stenographer on 17.11.1981 whereas opposite party No.5 was appointed as a Junior Stenographer on 14.7.1983. The next promotional post is the post of Senior Stenographer. Out of the total number of posts of Senior Stenographers, 50% are to be filled up by way of direct recruitment, 25% are to be filled up through limited Departmental Competitive Examination and the rest 25% are to be filled up on the basis of speed test from amongst eligible Junior Stenographers who have completed six years of service on the basis of seniority-cum-fitness. On 24.7.1991 applications were called for from the eligible Junior Stenographers for promotion to the post of Senior Stenographers through speed test. On 22.9.1991 the test was conducted and the petitioner and opposite party No.5 participated in the test. On 23.9.1991 result was published and three candidates were declared to have passed. Opposite party No.5 was placed at sl.No.1, the petitioner was placed at sl.No.2 and one G.C. Tripathy was placed at sl.No.3. All the three of them were directed to appear before the D.P.C. on 25.9.1991 and after the interview the opposite party No.5 was selected and was appointed on officiating basis by order dated 28.9.1991 as a Senior Stenographer with effect from 26.9.1991. By order dated 1.10.1992, the probation period of opposite party No.5 as Senior Stenographer was completed and he was granted the first increment. On the basis of the representation filed by the present petitioner, the opposite party No.5 was reverted back to the post of Stenographer (Junior) on the ground that such promotion was through a Limited Departmental Competitive Examination and inadvertently the written examination having not been conducted, the opposite party No.5 had been wrongly given promotion. The order of reversion was passed on 21.11.1992. Thereafter on 25.11.1992 applications were 2 called for to fill up the post of Senior Stenographer through a Limited Departmental Competitive Examination from amongst the Junior Stenographers who had completed three years of continuous service as on 1.1.1993. Opposite party No.5 challenged the order of reversion before the Tribunal in O.A. No.607 of 1992. Two interim prayers were made in the said Original Application, one for a direction to the authorities not to hold any written test for promotion through the Limited Departmental Competitive Examination and also to keep the order of reversion in abeyance. The Tribunal kept the order of reversion in abeyance by way of interim measure. The petitioner filed an application for intervention in the said Original Application and prayed for vacating the interim order. Though his application for being impleaded as a party was allowed, the interim order was not vacated and it continued till hearing of the Original Application. The petitioner having failed to get the interim order vacated, filed another Original Application vide O.A. No.673 of 1993 on 12.11.1993 challenging the promotion of opposite party No.5 to the post of Senior Stenographer and also prayed for a direction to the Department to promote him to the post of Senior Stenographer from 26.9.1991 on the basis of the speed test conducted against seniority-cum-fitness quota. He also prayed for quashing the notice dated 25.11.1992 calling for applications to hold the Limited Departmental Competitive Examination to fill up the post of Senior Stenographer.
3. The Department filed a counter affidavit stating therein that the test conducted in September, 1991 was a Limited Departmental Competitive Examination but by oversight the written examination could not be conducted. This mistake was detected only after receipt of a representation from the present petitioner after which a decision was taken to revert opposite party No.5 and hold a fresh test to fill up the post of Senior Stenographer through Limited Departmental Competitive Examination. The stand of opposite party No.5 was that in the speed test conducted in response to notification dated 24.7.1991 he stood first and thereafter all the three candidates selected in the test appeared before the D.P.C. The D.P.C. also selected him for which he was given promotion. He was kept under probation and after completion of probation period, he was granted increment. The further case of opposite party No.5 is that he having been promoted to a substantive post could not have been reverted without any notice to show cause or in absence of a proceeding. The Tribunal came to a finding that the promotion effected in the year 1991 was through a speed test and on the basis of seniority-cum- fitness. However, the Original Application filed by the petitioner was dismissed on the ground of limitation.
4. Shri Ashok Mohanty, the learned Senior Counsel appearing for the petitioner submitted that it was the case of the petitioner all through that the test that was conducted in the year 1991 was a speed test and the promotions were to be effected on the basis of seniority-cum-fitness. Undisputedly the petitioner, opposite party No.5 and one G.C. Tripathy were selected in the speed test. The petitioner being admittedly senior to opposite party No.5 and he having qualified in the speed test, the Departmental Promotion Committee should have recommended for his promotion. According to Shri Mohanty, the learned Senior Counsel appearing for the petitioner, when the promotion is to be effected on the basis of seniority-cum-fitness, if some candidates are found fit for promotion, the senior most amongst them has to be given promotion. On this principle, a prayer is made to quash the promotion of opposite party No.5 and promote the petitioner to the post of Senior Stenographer. So 3 far as delay is concerned, it was contended by Shri Mohanty, the learned Senior Counsel appearing for the petitioner that there was practically no delay in filing the Original Application and the Tribunal misdirected itself while dealing with the question of delay. Shri Biswajit Mohanty, the learned counsel appearing for opposite party No.5 submitted that the Original Application was grossly barred by time and therefore, the Tribunal was justified in dismissing the Original Application on the ground of limitation. It was also contended by Shri Biswajit Mohanty, the learned counsel appearing for opposite party No.5 that the promotions were effected in the year 1991 and in the meantime nineteen years have passed. Therefore, the long standing seniority position should not be disturbed. Similar contentions were also advanced by Shri S.D. Das, the learned Assistant Solicitor General appearing for the Department.
5. The facts having been narrated earlier, it is not necessary to repeat the same. The Tribunal undisputedly arrived at a finding that the test conducted in the year 1991 promoting opposite party No.5 to the post of Senior Stenographer was through a speed test meant for seniority-cum-fitness quota. There is also no dispute that in the selection test not only opposite party No.5 but also the petitioner and one G.C. Tripathy were selected. Undisputedly the petitioner is also senior to opposite party No.5 in the grade of Junior Stenographer. When promotions are effected on the basis of seniority-cum- fitness, seniority plays a major role and if a senior is found fit along with his juniors, his seniority cannot be ignored. Under these circumstances, normally the petitioner should have been given promotion to the post of Senior Stenographer. However, D.P.C. did not recommend his name and recommended the case of opposite party No.5 for promotion which was given effect to. Opposite party No.5 was promoted to the post of Senior Stenographer with effect from 26.9.1991, completed his probation period and was also granted one annual increment. The petitioner challenged such promotion of opposite party No.5 only on 12.11.1993, i.e., almost two years after such promotion was given effect to. From the Annexures attached to the writ petition, it appears that challenging the promotion of opposite party No.5, the petitioner had submitted representation and such representation had been rejected in Annexure-16 on 9.4.1992. Subsequently in Annexure-22 he had again been informed that his earlier representation had been rejected. The representation of the petitioner having been rejected on 9.4.1992 in Annexure-16, he should have approached the Tribunal within one year there from. However, he filed the Original Application before the Tribunal only on 12.11.1993 and accordingly there was delay in filing the Original Application. No petition was also filed by the petitioner before the Tribunal for condonation of delay even though the Tribunal had the jurisdiction to condone the delay. Therefore, the Tribunal dismissed the Original Application on the ground of limitation. Such findings of the Tribunal so far as it relates to the question of limitation does not suffer from any infirmity.
6. Shri Ashok Mohanty, the learned Senior Counsel had cited the decisions in the cases of R.N. Nanjundappa v. T. Thimmaiah and another, reported in AIR 1972 Supreme Court 1767; Government of India and another v. C.A. Balakrishnan and others, reported in AIR 1975 Supreme Court 1498; Sher Singh and others v. Surinder Kumar and others, reported in AIR 1998 Supreme Court 2289 and Ramesh Chandra Sharma v. Udham Singh Kamal and others, reported in AIR 1999 Supreme Court 3837 relating to merit of the case. We have already observed that ordinarily the petitioner should have been given promotion being senior to opposite 4 party No.5 by D.P.C. when both the petitioner and opposite party No.5 were found fit, the petitioner admittedly being senior to opposite party No.5. Because of the delay in filing the Original Application, his grievance could not be redressed. In the meantime, nineteen years have passed. The Hon'ble Supreme Court in a series of decisions has held that long standing seniority should not be disturbed. The Court also held in several decisions that if a party approaches the Court long after promotions are effected, right accrues in favour of the person promoted and therefore, such vested right regarding seniority, rank and promotion should not be disturbed because of delay and laches. Reference in this connection may be made to the decisions of the Hon'ble Supreme Court in the cases of Ramchandra Shanker Deodhar & others v. State of Maharashtra & others, AIR 1974 SC 259; R.S. Makashi v. I.M. Menon & others, AIR 1982 SC 101 and B.S. Bajwa v. State of Punjab & others, AIR 1998 SC 1510.
7. In view of the above, we find no infirmity in the impugned order of the Tribunal and accordingly dismiss the writ application.
Writ petition dismissed.