Orissa High Court
Arun Kumar Biswal vs State Of Odisha on 18 June, 2024
Author: Murahari Sri Raman
Bench: Murahari Sri Raman
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.A. No.3028 of 2023
1. Arun Kumar Biswal, S/o- Late Lakshman Biswal presently
working as Assistant Conservator of Forests, O/o-Divisional
Forest Officer, Baripada Forest Division, PO-Baripada, PS-
Baripada Town, Dist-Mayurbhanj. (Opp. Party No.29 in the writ
petition)
2. Malay Ranjan Kalo, S/o- Hrusikesh Kalo presently working as
Assistant Conservator of Forests, O/o- Divisional Forest Officer,
Phulbani Forest Division, PO/PS-Phulabani, Dist-Kandhamal
(Opp. Party No.30 in the writ petition)
3. Ramachandra Murmu, S/o. Late Dulal Murmu, presently
working as Assistant Conservator of Forests, O/o-the Divisional
Forest Officer, Balasore Wild Life Division, Balasore, (Opp.
Party No.32 in the writ petition)
4. Khirod Kumar Behera, S/o- Lingaraj Behera presently
working as Sub-Divisional Forest Officer, Talcher, At/P.O./P.S.-
Talcher, Dist- Angul (Opp. Party No.33 in the writ petition)
5. Prafulla Kumar Malik, S/o. Late Brundaban Malik, Asst.
Conservator of Forests, O/O the Baliguda, Forest Division,
At/Po/PS:-Baliguda, Dist:-Kandhamal. (Opp. Party No. 34 in the
writ petition)
...Appellants
-Versus-
1. State of Odisha, Forest, Environment and Climate Change
Department, represented through its Additional Chief Secretary
W.A. No.3028 of 2023 Page 1 of 57
Kharavela Bhavan, Bhubaneswar, District-Khordha, Odisha,
Pin-751001 (Opp. Party No. 1 in the writ petition).
2. The Law Department, Govt. of Odisha, represented through
the Principal Secretary, Lok Seva Bhawan, Sachivalaya Marg,
Bhubaneswar, District-Khordha, Odisha-751 001. (Opp. Party
No.2 in the writ petition).
3. The ST & SC Development, Minorities & Backward Classes
Welfare Department, State of Odisha, represented through the
Principal Secretary (I/C), Lok Seva Bhawan (Odisha Secretariat)
Bhubaneswar-751 001 (Opp. Party No.3 in the writ petition).
4. Prakash Chandra Das, S/o- Late Bishnu Charan Das At-
Chandpur, PO-Rahama, Dist-Jagatsinghpur,Odisha-754140
presently working as SDFO (KL), Talcher, Office of the
Divisional Forest Officer, Angul (KL) Division, Dist-Angul,
Odisha (Petitioner No.1 in the writ petition).
5. Gouri Shankar Das, S/o- Late Bhaibananda Das, At-Kishore
Bhawan, Chatrabazar, P.O.-Arunodaya Market, District-Cuttack,
Odisha-753012 presently working as Assistant Conservator of
Forests, Athamallik, Office of the Divisional Forest Officer,
Athamallik (T) Division, Dist.- Angul, Odisha (Petitioner No.2
in the writ petition).
6. Sarat Kumar Mishra, S/o. Maheswar Mishra, at new Rajabati
road, PO-Nayagarh, District- Nayagarh, Odisha-752069 at
present working as Assistant Conservator of Forest, Chandaka
Wild Life Division, Gajabihar, Bhubaneswar, District-Khordha
(Petitioner No. 3 in the writ petition).
W.A. No.3028 of 2023 Page 2 of 57
7. A. Uma Mahesh, S/o. A. Bhanu Murty, at Jamal Road, PO-
Kotpad, District- Koraput, Odisha, at present working as
Assistant Conservator of Forest, Koraput Forest Division,
At/PO/District: Koraput, Odisha. (Petitioner No. 4 in the writ
petition)
8. Sisir Kumar Mishra, S/o. Niranjan Mishra, at Hariank, village-
Danpur, District- Kendrapara-7542210, Odisha, presently
working as Assistant Conservator of Forest, Office of
Directorate of Mines and Geology, Heads of the department
Building, Unit-V, Bhubaneswar- 767001, District: Khordha,
Odisha (Petitioner No.5 in the writ petition
9. Soubhagya Kumar Sahoo, S/o. Late Brundaban Sahoo, At/PO-
Barunadiha, village Rajkanika, District-Kendrapara, Odisha-
754220, at present working as Assistant Conservator of Forest,
Office of the Divisional Forest Officer, Cuttack Forest Division,
Ghatkala, Nuapara, District-Cuttack, Odisha. (Petitioner No. 6 in
the writ petition)
10. Bijay Kumar Parida, S/o. Late Bharat Chandra Parida, at
Belpada, PO-Muninda, PS-Delang, Disrtrict- Puri at present
working as Assistant Conservator of Forest, City Forest
Division, Sahid Nagar, Bhubaneswar, District: Khordha, Odisha.
(Petitioner No.7 in the writ petition)
11. Amareshnath Pradhan, S/o. Late Lokanath Pradhan, at Plot
No.-5727, Lane-3, Bhaktamadhu Nagar, PO- Khandagiri,
Bhubaneshwar - 751030, District-Khordha at present working as
Assistant Conservator of Forest, Office of Principal Chief
W.A. No.3028 of 2023 Page 3 of 57
Conservator of Forest, HoFF, Odisha, Bhubaneshwar on
deployment at Regional Plant Resource Centre Ekamrakanan
Nayapalli, Bhubaneswar, District: Khordha, Odisha. (Petitioner
No.8 in the writ petition)
...Respondents
12. Prasant Kumar Mandhata, S/o Bharambar Mandhata, at
present working as ACF, O/o Regional Chief Conservator of
Forest, Angul Circle, District- Angul, Odisha. (Opp. Party No. 4
of the writ petition)
13. Aditya Narayan Sethi, S/o-Kshetra Mohan Sethi, at present
working as Asst. Manager, O/o GM (Odisha Forest
Development Corporation), Bhubaneswar, Odisha, District-
Khordha. (Opp. Party No. 5 of the writ petition)
14. Pramod Kumar Behera, S/o Gangadhar Behera, at present
working as DM (1/C), Odisha Forest Development Corporation,
Bhawanipatna, District- Kalahandi, Odisha. (Opp. Party No. 6 of
the writ petition)
15. Biraj Mohan Mohanty, S/o Late Pramod Chandra Mohanty, at
present working as ACF, O/o WPO, Sambalpur, District-
Sambalpur, Odisha. (Opp. Party No. 7 of the writ petition)
16. Prasanta Kumar Swain, S/o. Sanatan Swain, at present
working as Assistant Conservator of Forest, O/o the Principal
Chief Conservator of Forest & Head of Forest Force,
Bhubaneswar, District- Khordha, Odisha.(Opp. Party No. 8 of
the writ petition).
W.A. No.3028 of 2023 Page 4 of 57
17. Tankadhar Behera, S/o. Late Nabakishor Behera, at present
working as Assistant Conservator of Forest, O/o the
District/Divisional Forest Officer, Rourkela Forest Division,
District-Sundergarh, Odisha. (Opp. Party No. 9 of the writ
petition).
18. Debendra Charan Khuntia, S/o. Late Kandumani Charan
Khuntia, at present working as Assistant Conservator of Forest,
O/o the District/Divisional Forest Officer, Cuttack, Forest
Division, District-Cuttack, Odisha.(Opp. Party No.10 of the writ
petition).
19. Suresh Mallick, S/o. Late Gunanidhi Mallik. At present
working as DM, Odisha Forest Development Corporation,
Keonjhar, District- Keonjhar, Odisha. (Opp. Party No.11 of the
writ petition).
20. Subhendu Prasad Behera, S/o. Bhima Charan Behera, At
present working as Assistant Conservator of Forest, O/o the
District/Divisional Forest Officer, Satkaosia (WL) Division,
District Cuttack, Odisha. (Opp. Party No. 12 of the writ petition)
21. Shiba Prasad Rath, S/o. Satrughna Rath, Assistant Conservator
of Forest, O/o Divisional Forest Officer, Khariar Forest Division,
District Nuapada, Odisha. ( Opp. Party No. 13 of the writ
petition)
22. Sarat Kumar Sahoo, S/o. Late Jagannath Sahoo, Assistant
Conservator of Forest, O/o Deputy Director, Nandankanan,
Bhubaneswar, District- Khordha, Odisha (Opp. Party No. 14 of
the writ petition).
W.A. No.3028 of 2023 Page 5 of 57
23. Rajendra Gochahyat, S/o. Late Upendra Gochhayat, Assistant
Conservator of Forest, O/o DFO, Baragarh, Forest Division,
District Bargarh, Odisha (Opp. Party No.15 of the writ petition).
24. Peter Tiga, S/o. Elias Tiga, ACF, O/o DFO, Deogarh Forest
Division, District-Deogarh, Odisha.(Opp. Party No.16 of the writ
petition).
25. Pabitra Behera, S/o. Late Sukadev Behera, SDFO (KL),
Sundergarh (KL) Division, District Sundergarh, Odisha, (Opp.
Party No.17 of the writ petition).
26. Pradeep Kumar Bhatra, S/o. Philiman Bhatra, ACF, O/o DFO,
Kalahandi South Forest Division, District-Kalahandi, Odisha.
(Opp. Party No.18 of the writ petition).
27. Ashok Kumar Behera, S/o. Kasinath Behera, ACF, O/o DFO,
Paralakhemundi Forest Division, District- Gajapati, Odisha
(Opp. Party No.19 of the writ petition).
28. Harekrushna Mallick, S/o. Krunkar Mallik, ACF, O/o DFO,
Athgarh Forest Division, District-Cuttack, Odisha, (Opp. Party
No.20 of the writ petition).
29. Kundan Singh, S/o. Late Mohan Singh, ACF, O/o DFO,
Malkangiri Forest Division, District-Malkangiri, Odisha, (Opp.
Party No. 21 of the writ petition).
30. Pravakar Nayak, S/o. Late Kashinath Nayak, ACF, O/o DFO,
Ghumsur South Forest Division, District- Ganjam, Odisha. (Opp.
Party No.22 of the writ petition).
W.A. No.3028 of 2023 Page 6 of 57
31. Jitendra Kumar Behera, S/o. Late Baishnab Charan Behera,
ACF, O/o DFO, Bamra (WL) Division, District-Sambalpur,
Odisha (Opp. Party No.23 of the writ petition).
32. Baidyanath Majhi, S/o. Late Saunte Majhi, ACF, O/o. DFO,
Rairangpur Forest Division, District-Mayurbhanj, Odisha (Opp.
Party No.24 of the writ petition).
33. Rupchand Soren, S/o Anpa Soren, ACF, O/o DFO, Rairakhol
(KL) Division, Dist:-Sambalpur, (Opp. Party No.25 of the writ
petition.
34. Jadumani Kerkete, S/o. Stanislas Kerketta, ACF, O/o Similapal
North (WL) Division, District;-Mayurbhanj, Odisha (Opp. Party
No.26 of the writ petition).
35. Ananta Kumar Pradhan, S/o. Balaram Pradhan, ACF, City
Forest Division, District- Khordha, Odisha. (Opp. Party No.27 of
the writ petition).
36. Naveen Chandra Nayak, S/o. Late Sukadev Naik, ACF, O/o
DFO, Rairangpur Forest Division, District-Mayurbhanj, Odisha,
(Opp. Party No. 28 of the writ petition).
37. Ranjan Kumar Nag, S/o. Laba Nag, ACF, Koraput Forest
Division, District-Koraput, Odisha, (Opp. Party No.31 of the
writ petition).
...Proforma Respondents
Advocates appeared in the case:
For the Appellants: Mr. N. K. Mishra, Sr. Advocate assisted
by Mr. Deepak Kumar Pani, Advocate.
W.A. No.3028 of 2023 Page 7 of 57
For Respondents No.1 to 3: Mr. R. N. Mishra, Addl. Govt. Advocate.
For Respondents No.4 to 11: Mr. Gautam Misra, Sr. Advocate assisted
by Mr. Anupam Dash & Mr. J.R. Deo,
Advocates.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE MURAHARI SRI RAMAN
JUDGMENT
18.06.2024 Chakradhari Sharan Singh, CJ.
This intra-Court appeal has been filed against a judgment and order dated 10.11.2023 passed by a learned Single Judge of this Court in W.P.(C) No.7388 of 2023.
2. The dispute in the present intra-Court appeal revolves around consideration of these appellants for promotion to OFS Group-A (Senior) who were granted promotion to the post of OFS Group-A (Junior) from the post of Forest Ranger by giving them the benefit of reservation as provided under Rule-5 of the OFS Group-A (Junior) Rules, much before the writ petitioners (respondents No.4 to 11 herein) were given such promotion though they were above in the seniority list of the Forest Ranger.
Facts in brief:-
3. So as to appreciate the core issue involved in the present appeal, it will be beneficial to take note of the respective joining dates of the appellants and the writ petitioners initially as Forest Rangers and W.A. No.3028 of 2023 Page 8 of 57 subsequent promotion to the post of ACF i.e., OFS Group-A (Junior), which in the following tabular form:-
Sl. Name Date of Date of Position in
No. entry into promotion the tentative
initial to ACF seniority list
service dated
29.04.2013
1 Prakash 02.08.1993 01.02.2018 247
Chandra Das
(Pet. No.1)/
Respondent
No.4
2 Gouri Shankar 08.08.1993 01.02.2018 248
Das
(Pet. No.2)/
Respondent
No.5
3 Sarat Kumar 04.08.1993 01.02.2018 252
Mishra (Pet.
No.3)/
Respondent
No.6
4 A. Uma 05.08.1994 01.02.2018 262
Mahesh (Pet.
No.4)/
Respondent
No.7
5 Sisir Kumar 03.08.1994 25.06.2018 263
Mishra (Pet.
No.5)/
Respondent
No.8
6 Soubhagya 01.08.1994 25.06.2018 264
Kumar Sahoo
(Pet. No.6)/
Respondent
No.9
7 Bijay Kumar 05.08.1994 25.06.2018 271
Parida (Pet.
No.7)/
Respondent
No.10
W.A. No.3028 of 2023 Page 9 of 57
8 Amareshnath 01.08.1994 25.06.2018 272
Pradhan
(Pet. No.8)/
Respondent
No.11
9 Subhendu Prasad 07.08.1993 30.05.2014 245
Behera
(Opp. Party
No.12) (SC)
10 Shiba Prasad 08.08.1993 30.05.2014 246
Rath (Opp. Party
No.13) (SC)
11 Sarat Kumar 06.08.1993 30.05.2014 254
Sahoo (Opp.
Party No.14)
(SC)
12 Rajendra 05.08.1993 26.09.2014 255
Gochahyat (Opp.
Party No.15)
(SC)
13 Peter Tiga (Opp. 05.08.1993 17.06.2017 256
Party No.16)
(ST)
14 Pabitra Behera 04.08.1993 26.09.2014 257
(Opp. Party
No.17) (SC)
15 Pradeep Kumar 06.08.1993 06.12.2013 258
Bhatra (Opp.
Party No.18)
(ST)
16 Ashok Kumar 05.08.1993 17.06.2017 259
Behera (Opp.
Party No.19)
(SC)
17 Harekrushna 07.08.1993 17.06.2017 260
Mallick
(Opp. Party
No.20) (SC)
18 Kundan Singh 09.08.1993 27.03.2018 261
(Opp. Party
No.21) (ST)
19 Pravakar Nayak 05.08.1994 17.06.2017 275
(Opp. Party
No.22) (SC)
W.A. No.3028 of 2023 Page 10 of 57
20 Jitendra Kumar 03.08.1994 16.05.2020 276
Behera (Opp.
Party No.23)
(SC)
21 Baidyanath 09.08.1994 06.12.2013 278
Majhi (Opp.
Party No.24)
(ST)
22 Rupchand Soren 06.08.1994 06.12.2013 279
(Opp. Party
No.25) (ST)
23 Jadumani 05.08.1994 06.12.2013 280
Kerkete (Opp.
Party No.26)
(ST)
24 Ananta Kumar 05.08.1994 06.12.2013 281
Pradhan
(Opp. Party
No.27) (ST)
29 Naveen Chandra 05.08.1994 06.12.2013 282
Nayak (Opp.
Party No.28)
(ST)
30 Arun Kumar 06.08.1996 06.12.2013 297
Biswal (Opp.
Party No.29)
(ST)/appellant
No.1
31 Malaya Ranjan 05.08.1996 12.06.2013 302
Kalo (Opp.
Party No.30)
(ST)/
appellant No.2
32 Ranjan Kumar 02.08.1996 17.06.2017 307
Nag (Opp. Party
No.31) (SC)
33 Rama Chandra 05.08.1996 06.12.2013 308
Murmu (Opp.
Party No.32)
(ST)/
appellant No.3
34 Khirod Kumar 05.08.1995 17.06.2017 309
Behera (Opp.
Party No.33)
(SC)/ appellant
No.4
W.A. No.3028 of 2023 Page 11 of 57
35 Prafulla Kumar 02.08.1997 04.09.2018 312
Malik (Opp.
Party No.34)
(SC)/ appellant
No.5
Relevant Statutory Provisions:-
4. The Odisha Forest Service Group-A (Junior Branch) (Method of Recruitment and Conditions of Service) Rules, 2013 (in short, "OFS Group-A (Junior Branch) Rules, 2013) framed under Article 309 of the Constitution of India by the State of Odisha to regulate method of recruitment and conditions of service of the persons appointed to the Odisha Forest Service (OFS), Group-A (Junior) consisting of the posts of Assistant Conservator of Forests (ACF). Rule-4 lays down the methods of recruitment which prescribes as under:
4. Methods of Recruitment:
Subject to other provisions of these rules recruitment to the posts in the service shall be made by the following methods, namely:-
(a) as nearly as may be but not less than one third (33.33%) of the posts shall be filled up by way of direct recruitment through a competitive examination in accordance with Rule 6; and
(b) as nearly as may be but not more than two third (66.66%) of the posts shall be filled up by promotion from among the Forest Rangers in accordance with Rule 15:
Provided that if adequate number of suitable candidates shall not be available for promotion the remaining vacancies in the year shall be filled up by way of direct recruitment.
5. Rule 5 provides for reservation of vacancies or posts which reads as under:
W.A. No.3028 of 2023 Page 12 of 575. Reservations:
Notwithstanding anything contained in these rules reservation of vacancies or posts, as the case may be, for the candidates,-
(i) belonging to the Scheduled Castes and Scheduled Tribes shall be made in accordance with the provisions of the Odisha Reservation of Vacancies in Posts and Services (For Scheduled Castes and Scheduled Tribes) Act, 1975 and the rules made thereunder; and
(ii) belonging to SEBC, Women, Sports person, Ex-
servicemen and Physically Handicapped Persons shall be made in accordance with the provisions made under such Act, Rules, Orders or Instructions issued in this behalf by Government from time to time.
6. Further, the Odisha Forest Service Group-A (Senior) (Method of Recruitment and Conditions of Service) Rules, 2015 (in short, "OFS Group-A (Senior) Rules, 2015") have been framed regulating method of recruitment and conditions of service of persons appointed to Odisha Forest Service (OFS), Group-A (Senior). The said service consists of following posts:-
(a) Group „A‟ (Senior Branch)
(b) Supertime Scale
(c) Superior Administrative Grade
7. Promotion from the post of OFS Group-A (Junior) is the only method of recruitment to the post of OFS Group-A (Senior) as is evident from Rules-4 and 5 of Part-II of OFS Group-A (Senior) Rules, 2015. Rule-5 lays down the eligibility criteria for promotion to OFS Group-A (Senior) which reads as under:
5.Eligibility criteria :- (1) No Officer shall be eligible for promotion to the post in Group-A W.A. No.3028 of 2023 Page 13 of 57 (Senior Branch) of the service unless he or she has completed five years of continuous service in the grade of Odisha Forest Service Group A (Junior Branch) as on the 1st day of January of the year in which the Board meets.
(2) Appointment to Supertime Scale in the service shall be made on promotion from amongst the officers who have, completed two years of service in Odisha Forest Service Group'A' (Senior Branch) as on the 1st day of January of the year in which the Board meets.
(3) Appointment to Superior Administrative Grade in the service shall be made on promotion from amongst the officers who have completed one year of service in Odisha Forest service (Supertime Scale), as on the 1st day of January of the year in which the Board meets.
8. The writ petitioners who are respondents No.4 to 11 in the present intra-Court appeal had admittedly entered into initial service to the post of Forest Ranger much before the appellants herein and were above in the tentative seniority list prepared on 29.04.2013. The contesting respondents No.4 to 11 were above the appellants.
9. There is a crucial aspect which is undisputed that at no point of time, grant of promotion in favour of these appellants to the post of OFS Group-A (Junior) by giving them benefit of reservation was not questioned by the writ petitioners or any other person.
10. It is pertinent to notice that the Odisha Reservation of Vacancies in Posts and Services (for Scheduled Castes and Scheduled Tribes) Act, 1975 (In short, the ORV Act) has been enacted to provide for adequate representation of Scheduled Castes and Scheduled Tribes in the posts and services under the Act. Section 4 of which reads thus:
W.A. No.3028 of 2023 Page 14 of 574. Reservation and the percentage thereof :- (1) Except as otherwise provided in this Act, the vacancies reserved for the Scheduled Castes and the Scheduled Tribes, shall not be filled up by candidates not belonging to the Scheduled Castes and Scheduled Tribes.
(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;
Provided that the percentage so determined shall in no case be less than the percentage of the persons belonging to the Scheduled Castes or the Scheduled Tribes as the case may be in the total population of the State:
Provided further that there shall be no reservation of vacancies to be filled up by promotion where-
(a) the element of direct recruitment in the grade or cadre in which the vacancies have occurred is more than sixty-six and two-third percent;
(b) the vacancies have occurred in Class I posts and are to be filled up by promotion, through limited departmental examination; or
(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].
Explanation- The expression "population" means the "population" as ascertained at the last census for which the relevant figures have been published. (3) Notwithstanding anything contained in this section, one third of the vacancies in Class II, Class III (including those specially declared to be Gazetted) and Class IV Services and Posts, reserved for the Scheduled Castes and Scheduled Tribes in a year, which are required to be filled up by direct recruitment, shall be reserved for women belonging to the respective communities and, in the event of non-availability or availability of insufficient number of eligible woman candidates belonging to any particular community, the vacancies or, as the W.A. No.3028 of 2023 Page 15 of 57 case may be, the remaining vacancies shall be filled up by male candidates of that community.
11. Through a communication dated 03.03.2023 issued by the Forest, Environment and Climate Change Department of the Government of Odisha addressed to the PCCF and HoFF Odisha, the latter was requested to intimate as to whether any disciplinary proceeding was pending against the ACF OSF Group-A (JB) Officers mentioned in the list at Annexure-1 of the said communication, with the present status of such case(s) forthwith, for presenting the same before the ensuing Department Promotional Committee (DPC) meeting. It is evident from the said communication that a DPC meeting was proposed to be held shortly for consideration of promotion of ACF, OFS Group-A (JB) to the rank of Deputy CF, OFS Group-A (SB).
12. Apparently, in view of the eligibility criteria under OFS Group- A (Senior) Rules, 2015 to the effect that an officer must have completed 5 years of continuous service in the grade of OFS Group-A (JB) as on the first day of January of the year in which the selection board meets, the names of only such officers figured in the list at Annexure-1 of the communication dated 03.03.2023 who has completed five years in OFS Group-A. Accordingly, whereas the names of the appellants figured in the said list because they had completed 5 years of continuous service in the grade of OFS Group-A (JB), as on 01.01.2023, names of the writ petitioners did not figure as they were granted promotion to the ACF after 01.01.2018 and had thus not completed 5 years of continuous service in OFS Group-A (JB). We reiterate here that grant of promotion to the appellants to the post of W.A. No.3028 of 2023 Page 16 of 57 ACF, OFS Group-A (JB) giving them benefit of reservation with effect from their respective dates were never under challenge nor challenged in the writ proceeding before the learned Single Judge.
13. Soon after issuance of the said communication, respondents No.4 to 11 filed the writ petition asserting in paragraph-1 of the writ petition as under:
"1. That the petitioners in the present writ petition are challenging the action of the opposite party no. 1 in extending reservation to O.P. Nos. 4 to 34 as regards promotion to the post of Deputy Conservator of Forests, OFS -Group A (SB), contrary to a catena of judgments of the Hon‟ble Supreme Court and contrary to Section 4 of The Orissa Reservation of Vacancies in Posts and Services (For Scheduled Castes & Scheduled Tribes) Act, 1975 (hereinafter, referred to as "ORV Act"). The action of the State Government is contrary to a series of judgments of the Hon‟ble Supreme Court as well as contrary to the ORV Act and thus the opposite parties may be directed to refrain from conducting any promotional exercises on the basis of the communication dated 03.03.2023. Copy of the said communication is annexed as ANNEXURE-1. It would be highly pertinent to mention that any exercise pursuant to Annexure-1 would run contrary to Section 4 (2) of the ORV Act which reads as follows:-
"4. Reservation and the percentage thereof:- (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;
[Provided that the percentage so determined shall in no case be less than the percentage of the persons belonging to the Scheduled Castes or the Scheduled Tribes as the case may be in the total population of the State :
W.A. No.3028 of 2023 Page 17 of 57Provided further that there shall be no reservation of vacancies to be filled up by promotion where-
(a) the element of direct recruitment in the grade or cadre in which the vacancies have occurred is more than sixty-six and two third percent;
(b) the vacancies have occurred in Class I posts and are to be filled up by promotion, through limited departmental examination; or
(c) the vacancies have occurred in Class I posts which are above the lowest rung thereof, and are to be filled up on the basis of selection. '' Furthermore, the purported promotional exercise runs contrary to the following judgements:-
I. Pravakar Mallick v. State of Orissa, (2020) 15 SCC 297, (Paras 15, 23 & 26) II. M. Nagaraj v. UOI, (2006) 8 SCC 212 (Paras 85, 121 to 123) III. Indra Sawhney v. UOI, AIR 1993 SC 477 (Para
700) IV. Uttar Pradesh Power Corporation Limited v.
Rajesh Kumar, (2012) 7 SCC 1 (Paras 81 to 86)"
14. Respondents No.4 to 11 were aggrieved by the said letter dated 03.03.2023 on the ground that their names were excluded from Annexure-1 of the communication dated 03.03.2023 despite the fact that they were above the appellants and the proforma respondents herein, in the seniority list, based on the respective dates of their initial appointment. The writ petitioners/respondents No.4 to 11 asserted in paragraph-10 of the writ petition as under:
"10. That it is pertinent to mention that the post of Deputy Conservator of Forest is a Class-I/Group A post and thus reservation should not be extended while filling the post. Further, since no exercise has been conducted by the State of Odisha in view of judgement of Supreme Court in M. Nagaraj v. U.O.I (2006) 8 SCC 212 , U.P. Power Corporation Limited v. Rajesh Kumar and Ors. (2012) 7 SCC 1, W.A. No.3028 of 2023 Page 18 of 57 Jarnail Singh v. Lachhmi Narain Gupta (2018) 10 SCC 396 and as admitted by the State of Odisha, the aforesaid exercise is not at all permissible in the eye of law and the same is violative of law laid down by the Hon‟ble Supreme Court and the underlying statute (ORV Act). Copy of the Resolution dated 07th June, 1999 by the General Administration Department, Govt, of Odisha showing the post of Deputy Conservator of Forests, OFS - Group A (SB) to be a Class- I/Group-A post is annexed as ANNEXURE-3."
15. As has been noted above, the promotion of the appellants to the post of ACF, OFS Group-A (JB) with effect from the respective dates by extending benefit of reservation remained unchallenged. Following table demonstrates the dates from which the appellants have been serving in the Grade of OFS Group-A (JB):
Appellant No.1 06.12.2013
(Arun Kumar Biswal)
Appellant No.2 12.06.2013
(Malay Ranjan Kalo)
Appellant No.3 06.12.2013
(Rama Chandra Murmu)
Appellant No.4 17.06.2017
(Khirod Kumar Behera)
Appellant No.5 04.09.2018
(Prafulla Kumar Malik)
W.A. No.3028 of 2023 Page 19 of 57
16. Similarly, the following table would demonstrate the respective dates with effect from which the writ petitioners (respondents No.4 to
11) are in continuous service in Grade of OFS Group-A (JB):
Respondent No.4/ 01.02.2018
writ petitioner No.1
(Prakash Chandra Das)
Respondent No.5/ 01.02.2018
writ petitioner No.2
(Gouri Shankar Das)
Respondent No.6/ 01.02.2018
writ petitioner No.3
(Sarat Kumar Mishra)
Respondent No.7/ 01.02.2018
writ petitioner No.4
(A. Uma Mahesh)
Respondent No.8/ 25.06.2018
writ petitioner No.5
(Sisir Kumar Mishra)
Respondent No.9/ 25.06.2018
writ petitioner No.6
(Soubhagya Kumar Sahoo)
Respondent No.10/ 25.06.2018
writ petitioner No.7
(Bijay Kumar Parida)
Respondent No.11 25.06.2018
/writ petitioner No.8
(AmareshnathPradhan)
Proceedings before the Writ Court:-
17. When the writ petition i.e. W.P. (C) No.7388 of 2023 was taken up by a learned Single Judge of this Court on 15.03.2023, following order was passed:
"1. This matter is taken up through Hybrid Arrangement (Virtual/Physical Mode).W.A. No.3028 of 2023 Page 20 of 57
2. Heard Mr. G. Misra, learned senior counsel for the Petitioners and Mr. T. Pattanaik, learned Additional Standing Counsel appearing for the State.
3. Mr.Misra, learned senior counsel appearing for the Petitioners, at the outset, submits that the petitioners have approached this Court by filing the present writ application challenging the gradation list prepared by the Opposite Parties and further prayed for a direction to the Opposite Party Nos.1, 2 and 3 not to give promotion to private Opposite Parties by resorting to the principle of reservation in promotion without recasting the gradation list under Annexure-2 keeping in view the judgment of Hon‟ble Supreme Court of India in the case of Pravakar Mallick and another vrs. State of Orissa and others :reported in (2020) 15 Supreme Court Cases 297 : 2020 SCC OnLine SC 375 and other judgments of the Hon‟ble Supreme Court.
4. Mr.Misra, learned senior counsel appearing for the petitioners further submits that by virtue of 85th Amendment to the Constitution of India, Clause-(4-A) of Article-16 was added and the vires of Article 16 (4-A) was challenged before the Hon‟ble Supreme Court in the case of M. Nagraj vrs. Union of India: reported in (2006) 8 SCC 212.
Although validity of clause-(4-A) was upheld by the Hon‟ble Supreme Court, the same was subject to State Government carrying out certain exercise for reservation for promotion. He further contended that so far as State of Odisha is concerned, a statement was made on behalf of the State before the Hon‟ble Supreme Court in the case of Pravakar Mallick and another vrs. State of Orissa and others(supra) to the effect that such exercise has not been carried in the State of Odisha and the same has been noted in the body of the aforesaid judgment.
5. In such view of the matter, learned senior counsel appearing for the petitioners submits that without carrying out such exercise as has been directed in the case of M. Nagraj vrs. Union of India (supra) and in the subsequent case of the Hon‟ble Supreme Court in Jarnail Singh vrs. Lachhmi Narain Gupta; (2018) 10 SCC 396, no W.A. No.3028 of 2023 Page 21 of 57 reservation can be provided in promotion. Therefore, the attempt of the Opposite Parties to give promotion to the Opposite Party Nos.4 to 34 by applying the principle of reservation in promotion is illegal, arbitrary and not in conformity with the law laid down by the Hon‟ble Supreme Court in the above noted cases.
6. Learned Additional Standing Counsel for the State seeks some time to take instruction as to whether such exercise has been carried out in the State of Odisha or not in the meantime. He is also directed to obtain instruction as to on what basis the Opposite Party Nos.4 to 34 are likely to be promoted to the next higher post as their names have been sent to the DPC for consideration.
7. In such view of the matter, this Court is inclined to issue notice to the Opposite Parties on the question of admission.
8. Since Mr. T. Pattanaik, learned Additional Standing Counsel accepts notice on behalf of the Opposite Party No.1, 2 and 3, three extra copies of the writ petition be served on him by tomorrow (16.03.2023).
9. So far as private Opposite Parties are concerned, notices to such private Opposite Parties are dispensed with for the time being.
10. List this matter on Tuesday (21.3.2023).
I.A. No.3308 of 202311. Heard.
12. Issue notice as above.
13. Copies of the I.A. be served on learned Additional Standing Counsel by tomorrow (16.03.2023), who shall obtain instruction in the matter and file his reply by Tuesday (21.03.2023).
W.A. No.3028 of 2023 Page 22 of 5714. As an interim measure, it is directed that the DPC may meet but the final decision of the DPC shall be kept in a sealed cover and shall not be given effect to without the leave of this Court.
Urgent certified copy of this order be granted on proper application."
(Underscored for emphasis)
18. Applications were filed on behalf of the State-respondents as well as these appellants for modification/vacating the interim order of stay, which were disposed of by an order dated 12.05.2023 passed by a learned Single in the following terms:
"I.A. Nos.3901, 3908 & 4421 of 2023
1. I.A. No.3901 of 2023 has been filed by the State-Opposite Party No.1 for modification of interim order dated 15.03.2023 passed by this Court in the above noted writ petition.
2. I.A. No.3908 of 2023 has been filed by the Opposite Parties No.12 to 14 for vacation of interim order dated15.03.2023 passed in the above noted writ petition.
3. I.A. No.4421 of 2023 has been filed by the Opposite Party No.24 representing the Opposite Parties No.18, 19, 27 and 30 with a prayer for vacation of interim order dated 15.03.2023 passed in I.A. No.3308 of 2023.
4. Since all the above noted interlocutory applications involve a prayer for modification/vacation of interim order dated15.03.2023 passed in I.A. No.3308 of 2023, they are heard together and the same are being disposed of by the following common order.
5. Heard Mr.Goutam Mishra, learned Senior Counsel appearing for the Petitioner and Mr.Budhadev Routray, learned Senior Counsel appearing for the Opposite Parties No.15, 24, 25 & 26 and Mr. K.P. Mishra, learned Senior Counsel appearing for the Opposite Parties No.12 to 14 and W.A. No.3028 of 2023 Page 23 of 57 Mr.Tarun Pattnaik, learned Additional Standing Counsel appearing for the State-Opposite Parties.
6. The above noted writ petition has been filed by the Petitioner with a prayer to quash the communication dated 03.03.2023 issued by the Opposite Party No.1 under Annexure-1, so far it relates to the promotion exercise of Opposite Party No.4 to 34 on the ground that the same is contrary to Section 4 of the O.R.V. Act and the judgment of the Hon‟ble Supreme Court in the case of Pravakar Mallick v. The State of Orissa, reported in (2020) 15 SCC 297 and for a further direction to Opposite Party No.1 to 3 not to promote Opposite Parties No.4 to 34 by resorting to reservations in promotions without recasting the gradation list under Annexure-2 keeping in view the judgment of the Hon‟ble Supreme Court in Pravakar Mallick‟s case (supra) and M. Nagraj v. UOI, reported in (2006) 8 SCC 212. The Petitioner has also prayed for a direction to the Opposite Party No.1 to issue a fresh communication for promotion to the post of Deputy Conservator of Forests OFC Group-A (SB) in the Forest, Environment and Climate Change Department, Government of Odisha without considering the aspect of reservation in promotion for such post and by considering the Petitioners seniority over the Opposite PartyNos.4 to 34.
7. Mr.Budhadev Routray and Mr. K.P. Mishra, learned Senior Advocates representing the private Opposite Parties at the outset submitted that the present writ petition is not maintainable at the instance of the present Petitioners. They further submitted that since the Petitioners do not have the requisite experience for promotion to the post of Deputy Conservator of Forests (in short „DCF‟) as required under the rules, therefore, they are not eligible for promotion to the post of DCF. Accordingly, it was submitted that since the Petitioners do not possess the requisite experience to become eligible for promotion to the post of DCF, the question of their getting promotion does not arise and they have no legal right to claim for such promotion. As such, the present writ petition at the behest of such ineligible candidates is not maintainable in law.
W.A. No.3028 of 2023 Page 24 of 578. Both the learned Senior Advocates representing the private Opposite Parties further contended that the State-Opposite Parties have not contravened the provisions of Section 4 of the O.R.V. Act as is evident from the counter affidavit filed by the Opposite Party No.1. Referring to the State counter affidavit, it was submitted by them that the State-Opposite Parties have categorically stated that law of reservation is not applicable for promotion from the post of ACF (Group-A) (JB) (lowest rung post) to the post of DCF Group-A (SB). In such view of the mater, both the learned Senior Advocates appearing for the private Opposite Parties contended that the argument of learned Senior Advocate appearing for the Petitioners is prima facie fallacious and untenable in the eye of law.
9. In course of their argument, both the learned Senior Advocates led much emphasis on the ground that the Petitioners do not have the requisites experience as provided under Rule-5 of the 2015 Rules to come within the zone of consideration for promotion to the post of DCF. On the contrary, the Private Opposite Parties have acquired such experience and, as such, they have the eligibility criteria as provided under Rule-5 of the 2015 Rules. Therefore, the private Opposite Parties are coming within the zone of consideration. Accordingly, it was argued that through the present writ petition, the Petitioners are making an attempt to stall the promotion of private Opposite Parties although they are eligible to be promoted to the next higher post of DCF. On such ground, learned Senior Advocates appearing for the private Opposite Parties submitted that the interim order dated 15.03.2023 passed in the present case be vacated.
10. Mr.Tarun Pattnaik, learned Additional Standing Counsel appearing on behalf of the Opposite Party No.1, on the other hand, submitted that large number of posts of DCF are lying vacant at the moment. He further submitted that there is a dearth of eligible officers for appointment as DCF. He further contended that since the private Opposite Parties have acquired five years of experience in the post of ACF, i.e., OFS (Group-A)(JB) as on 1st date of January, 2023, W.A. No.3028 of 2023 Page 25 of 57 which is in conformity withRule-5 of 2015 Rules, therefore, they are eligible to be promoted to the next higher post of DCF. Further, referring to Section 4 of the O.R.V. Act, learned Additional Standing Counsel submitted that in view of the provisions contained in Section 4 of the O.R.V. Act for promotion to the next higher post from the lowest rung post of the cadre, principle of reservation is not applicable.
11. In view of the above position, learned Additional Standing Counsel further submitted that the private Opposite Parties have been considered on the basis of their eligibility as provided under the Rules, 2015 and, accordingly, it has been decided to give them promotion from ACF to the post of DCF. So far the eligibility of the Petitioners are concerned, learned Additional Standing Counsel echoed the voice raised by the learned Senior Advocates appearing for the private Opposite Parties and, accordingly, submitted that the Petitioners have not yet acquired the eligibility to be considered for promotion to the post of DCF. Finally, learned Additional Standing Counsel submitted that since a large number of posts are lying vacant, unless such posts are allowed to be filled up, the Government would face difficulty in the normal functioning of the entire department. Therefore, it was prayed by learned Additional Standing Counsel that the entire order dated 15.03.2023 be vacated forthwith giving handle to the Government to go ahead with promotion and appointment to the post of DCF.
12. Mr.Goutam Mishra, learned Senior Counsel appearing on behalf of the Petitioners argued vehemently that admittedly the Petitioners are seniors to the Private Opposite Parties. He further contended that the Petitioners belong to unreserved category whereas the private Opposite Parties belong to the reserved category. With the aid of reservation policy, the Opposite Parties have been promoted ahead of the Petitioners. Although the Petitioners were promoted to the post of ACF subsequently, by applying the catch-up principle they have been kept above the private Opposite Parties in the common gradation list. Mr. Goutam Mishra further contended that the Petitioners were initially appointed prior to the private Opposite Parties and, therefore, all throughout W.A. No.3028 of 2023 Page 26 of 57 their service career they have been shown as senior to the private Opposite Parties in the common gradation list.
13. Learned Senior Counsel appearing for the Petitioners very fairly submitted that the Opposite Parties No.4 to 11 are senior to the Petitioners considering their date of entry into the service. Therefore, he submitted that he has no objection in the event their cases are considered for promotion to the post of DCF by the State-Opposite Parties. So far Opposite Parties No.12 to 34 are concerned, he further contended that such Opposite Parties have been given promotion illegally by ignoring the law laid down by the Hon‟ble Supreme Court in M. Nagraj‟scase (supra)and Jarnail Singh v. Lachhmi Narain Gupta, reported in (2018) 10 SCC 396. Mr.Goutam Mishra, learned Senior Counsel appearing for the Petitioners also relied upon the judgment of the Hon‟ble Supreme Court in Uttar Pradesh Power Corporation Limited v. Rajesh Kumar, reported in (2012) 7SCC 1 and submitted that the private Opposite Parties could not have been given promotion had the State-Opposite Parties followed the law laid down by the Hon‟ble Supreme Court in the above noted judgments.
14. Additionally, Mr. Mishra, learned Senior Counsel appearing for the Petitioners also argued that the Opposite Parties have taken an unfair and undue advantage and, accordingly, they are trying to steal a march over the Petitioners, especially the Opposite Parties No.12 to 34, who are admittedly juniors to the Petitioners at least as per the undisputed gradation list. In such view of the matter, learned Senior Counsel appearing for the Petitioners further contended before this Court that the interim order passed by this Court protecting the interest of the Petitioners is legally justified, otherwise the matter would become infructuous as the State-Opposite Parties are going to give promotion to the Opposite Parties forthwith.
15. Regard being had to the contentions raised by the learned Senior Counsels appearing for the respective parties and upon a prima facie examination of the records, this Court after taking into consideration the submission made by the W.A. No.3028 of 2023 Page 27 of 57 learned Senior Counsel appearing for the Petitioners as well as the learned Additional Standing Counsel that the Opposite Party No.4 to 11are admittedly senior to the Petitioners, this Court deems it proper and in the interest of justice to modify the interim order dated 15.03.2023 passed in I.A. No.3308 of 2023 to the extent that the State-Opposite Parties are permitted to consider the case of promotion of Opposite Parties No.4 to 11 to the post of DCF immediately.
16. So far private Opposite Parties No.12 to 34 are concerned, this Court on a careful analysis of the averments as well as the contentions raised before this Court, is of the considered view that the issue of seniority between the Petitioners vis-à-vis the private Opposite Parties No.12 to 34 needs to be further examined and the matter requires an elaborate hearing. Further, this Court is of the prima facie view that in the event the law of reservation is not applicable for promotion to the post of DCF, then the private Opposite Parties No.12 to 34, who have been promoted as A.C.F. prior to the Petitioners by applying the law of reservation would definitely steal a march over the Petitioners even though they are juniors to the Petitioners and that too without the reservation policy being applicable for promotion to the post of DCF. Therefore, this Court is also of the view that the promotion to the post of DCF, when the law of reservation is not applicable, has to take place on a fair field and by treating the Petitioners as well as the Opposite Party No.12 to 34 at par without their being any undue advantage accruing in favour of any of the officers on a level playing field. Any other approach would be hit by the underlying principles of Article 14 and 16 of the Constitution of India.
17. In such view of the matter, this Court deems it proper to further examine the issues raised by the learned counsel for the Petitioners, particularly keeping in view the seniority of the Petitioners as well as the private Opposite Party No.12 to
34. Hence, this Court is not inclined to modify the interim order dated 15.03.2023 passed in I.A. No.3308 of 2023, so far Opposite Parties No.12 to 34 are concerned. Accordingly, the interim order dated 15.03.2023 passed in I.A. No.3308 of W.A. No.3028 of 2023 Page 28 of 57 2023in respect of Opposite Parties No.12 to 34 shall continue till the next date.
18. List W.P.(C) No.7388 of 2023 on 27th June, 2023 for final hearing.
19. Parties are directed to complete their pleadings and exchange the same well before the next date of hearing.
20. Accordingly, the above noted I.As. are disposed of."
(Underlined for emphasis)
19. Later, by another order dated 04.09.2023, the interim orders, so far as they related to opposite parties No.12 and 13 were modified in the following terms:-
" xxx xxx xxx I.A. No.10103 of 2023
2. Heard Mr. K.P. Mishra, learned Senior Counsel appearing for the Opposite Party Nos.12 & 13. It is submitted by Mr. Mishra, learned Senior Counsel that admittedly both Opposite Party Nos.12 & 13 are senior to the Petitioners. Therefore, the Petitioners possibly cannot have any grievance if any promotion is granted to Opposite Party Nos.12 & 13.
3. Learned counsel appearing for the Petitioner, on the other hand contended that he has taken instruction from the Petitioners. He further submitted that it is a fact that the Opposite Party Nos.12 & 13 are Petitioners in I.A. No.10103 of 2023. Accordingly, the Petitioners will have no objection in the event the Interim order, so far the Opposite Party No.12 & 13 is vacated.
4. In such view of the matter, this Court disposes the I.A. application by modifying the interim order that the Interim order passed by this Court shall not bind for the Opposite Party Nos.12 & 13. Accordingly, their cases W.A. No.3028 of 2023 Page 29 of 57 may be considered for promotion subject to availability of vacancy recommended by the DPC.
5. With the aforesaid observation, the I.A. is disposed of.
xxx xxx xxx"
20. Finally, the writ petition came to be allowed by the impugned judgment of learned Single Judge dated 10.11.2023 after noticing Rule 5 of the Odisha Forest Service Group-A (Senior) (Method of Recruitment and Conditions of Service) Rules, 2015 (in short, "OFS Group-A (Senior) Rules, 2015) and the decisions in cases of M. Nagaraj (supra), Uttar Pradesh Power Corporation Ltd. (supra), Jarnail Singh (supra) and PravakarMallick (supra) concluded in paragraphs-17 to 19 as under:
"17. Now the question is, whether the principle of reservation is sought to be extended by the authorities in the proposed promotion. The impugned communication under Annexure-1, on the face of it does not say so. The State counsel as well as the learned Senior counsel appearing for the private Opposite Parties have emphatically argued that the principle of reservation is not sought to be extended for promotion to the rank of DCF, rather the promotion is sought to be made by invoking the eligibility clause. This being the fact situation, the decisions cited by Shri G. Misra in relation to the applicability or otherwise of Article 16(4A) of the Constitution would not be relevant at all. To amplify, the need of obtaining quantifiable data by the State regarding inadequacy of representation of reserved category persons in public service being sine qua non to apply the principles of promotion with consequential seniority to them as envisaged in M. Nagaraj, U.P. State Power, Jarnail Singh, PravakarMallick (supra) are rendered redundant.
18. Rule 5 of 2015 Rules reads as follows;W.A. No.3028 of 2023 Page 30 of 57
"Eligibility Criteria:- (1) No Officer shall be eligible for promotion to the post in Group-A (Senior Branch) of the service unless he or she has competed five years of continuous service in the grade of Odisha Forest Service Group „A‟(Junior Branch) as on the 1st day of January of the year in which the Board meets.
(2) Appointment to Supertime Scale in the service shall be made on promotion from amongst the officers who have completed two years of service in Odisha Forest Service Group „A‟ (Senior Branch)as on the 1st day of January of the year in which the Board meets.
(3) Appointment to Superior Administrative Grade in the service shall be made on promotion from amongst the officers who have completed one year of service in Odisha Forest Service (Supertime Scale) as on the 1 st day January of the year in which the Board meets."
Thus, the Rule provides that an Officer shall not be eligible for promotion to the post in Senior Branch unless he has completed 5 years of continuous service in the Junior Branch as on the first day of January of the year in which the Board meets. The proposed promotional exercise being scheduled to be held in the current year i.e. 2023, the relevant date for consideration of eligibility would be 1st January, 2023.Admittedly as on that date the private Opposite Parties had completed 5 years of continuous service whereas the Petitioners had not. Thus, prima facie, they are not eligible for being considered for promotion to the Senior Branch, but then if only the eligibility clause is harped upon and the proposed promotions are effected, it would entail a situation where the private Opposite Parties, who by virtue of the principle of reservation had been promoted to the Junior Branch earlier than the Petitioners (General Category candidates) would definitely steal a march over the Petitioners. Since on the face of it and on record the principle of reservation would not be applied in case of promotion to the post of DCF, the catch-up principle would also not be W.A. No.3028 of 2023 Page 31 of 57 applicable if and when the Petitioners are promoted to the Senior Branch. In other words, this would lead to a situation where the inherent seniority of the Petitioners restored by application of the catch-up principle in the year 2022 would be lost forever. It would be back to square one. To further elaborate, the private Opposite Parties, who are inherently junior to the Petitioners but had marched ahead of them by virtue of the principle of reservation would become seniors to them for all times to come. According to the considered view of this Court, this would be entirely contrary to the principle of equality enshrined under Articles 14 and 16(1) of the Constitution of India. Thus, as between the question of seniority and the eligibility criteria, this Court is of the view that the former shall take precedence over the latter as otherwise the balance between Articles 16(1) and 16(4A) of the Constitution would be disturbed.
19. In its judgment rendered in the case of Ajit Singh Januja v. State of Punjab; (1996) 2 SCC 715, the Supreme Court‟s following observations are noteworthy;
"Whenever a question arises for filling up a post reserved for Scheduled Caste/Tribe candidate in a 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 a 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."
(Emphasis added) Thus, the principle laid down is that the inherent seniority between reserved category candidates and general candidates in the promoted category shall continue to be governed by their interse seniority in the lower grade."
(Emphasis added) W.A. No.3028 of 2023 Page 32 of 57
21. Learned Single Judge relied on the Supreme Court‟s decision in case of State of Tamil Nadu and others v. K. Shyam Sundar and others; reported in (2011) 8 SCC 737 to reach a conclusion that what could not be done directly, the State was attempting to do so indirectly which was not conscionable in law. After having said so, learned Single Judge noticed the admitted position as regards number of vacancies in the rank of OFS Group-A (Senior) were available and respondent No.4 to 11 having been promoted to the OFS Group-A (JB) on different dates in the year 2018 and thus acquired or will be acquiring the eligibility on different dates in the said year itself, directed the State-respondents, "in public interest", to consider relaxation of Rule 5 in exercise of its power under Rule 14 of the Rule or in the alternative defer the promotional exercise to a date after 01.01.2024 so as to consider all the officers for promotion as per the gradation list available as on 09.09.2022. Learned Single Judge "quashed the communication dated 03.03.2023" (Annexure-1) and thus allowed the writ petition with a direction to the State-respondents to take necessary steps to fill up the posts in the cadre of OFS Group-A (Senior) in terms of the observations made in the judgment. Learned Single Judge, however, clarified, that if any promotion had been granted to any officer pursuant to the interim orders dated 12.05.2023 and 04.09.2023 passed by this Court, the same shall remain unaffected by the said judgment. The said judgment of the learned Single dated 10.11.2023, in the background of the facts as noted above is under challenge in the present intra-Court appeal.
W.A. No.3028 of 2023 Page 33 of 57Proceedings in the present intra-Court appeal
22. When this appeal was taken up by a Co-ordinate Bench of this Court on 14.12.2023, while issuing notices to the respondents including respondents No.4 to 11 (the writ petitioners), an interim order, the operation of the impugned judgment passed by the learned Single Judge was stayed till 11.01.2024, which order continued till 29.02.2024. On 29.02.2024, the following order was passed modifying the interim order of stay on an application (IA No.333 of 2024) filed on behalf of the State-respondents:
"xxx xxx xxx LA. No.333 of 2024
3. In the meanwhile, though the Departmental Promotion Committee (DPC), in terms of paragraph-21 of the judgment dated 10.11.2023 passed by the learned Single Judge in W.P.(C) No.7388 of 2023, may proceed with the matter of promotion, 5 posts shall be kept reserved so as to protect the interest of the appellants.
4. It goes without saying that any action of the respondents shall be subject to the final outcome of the present appeal."
23. The said order was passed in view of the stand taken on behalf of the State that filling up of vacant posts of Deputy Conservator of Forest, OFS Group-A (Senior Branch) was essentially required and because of the interim order passed in the present appeal, the State was not in a position to fill up the vacant posts of DCF, OFS Group-A (Senior Branch). It was categorically stated in the said application that as against the sanctioned strength of 84 DCF, only 49 persons were holding the post and 35 posts were lying vacant.
W.A. No.3028 of 2023 Page 34 of 5724. It is also noteworthy to mention at this stage that when the present appeal was being heard, the Court had required the State- respondents to file a short affidavit stating the stage of DPC meeting pursuant to the notice dated 03.03.2023, which notice was under
challenge in the writ proceeding. An affidavit has accordingly been filed on behalf of the State. It has been stated in the said affidavit that by said communication dated 03.03.2023 the State Government had requested the PCCF and HoFF, Odisha by forwarding a list of 31 officers under OFS Group-A (JB) for consideration of their promotion to the rank of DCF, OFS Group-A (Senior Branch) in which names of the appellants had figured at Sl. No.26 to 31. By an order dated 15.03.2023, a learned Single Judge of this Court had passed an interim order directing that the DPC may meet, but the final selection of DPC would be kept in a sealed cover and shall not be given effect to without leave of this Court. In the light of the order passed by the learned Single Judge, a meeting of the DPC was held on 20.03.2023 wherein 30 officers were found eligible, having completed 5 years of service in ACF cadre as on 01.01.2023 as required under Rule 5 of the OFS Group-A (Senior) Rules, 2015. Certain applications were filed for vacating the order of stay, which were rejected. An interim application was also filed by the pro-forma respondents No.20 and 21 (opposite parties No.12 and 13 in the writ proceeding). Modifying the interim order passed in the writ petition, by an order dated 04.09.2023 observed that the said interim order shall not apply for the cases of opposite parties No.12 & 13, and accordingly their cases might be considered for promotion subject to availability of vacancy recommended by the DPC.W.A. No.3028 of 2023 Page 35 of 57
25. It has also been stated that the proceeding of the DPC was held on 20.03.2023 and has been approved by the State Government on 19.10.2023 whereupon the eligible officers, namely, Subhendu Prasad Behera and Shiba Prasad Rath have been granted promotion to the rank of DCF as per the DPC held on 20.03.2023, in the light of the aforesaid interim order of the learned Single Judge dated 04.09.2023. It has also been stated that by the impugned judgment of the learned Single Judge dated 10.11.2023, the impugned communication dated 03.03.2023 was quashed and the State-respondents were directed to take necessary steps to fill up the post in the promotional cadre in DCF in terms of the observations made in the judgment and it was further made clear that if any promotion had been granted to any other officer pursuant to order dated 12.05.2023 and 04.09.2023, the same shall remain unaffected by the said judgment. Learned Single Judge had further observed that Government shall do well to consider relaxation of Rule 5 in exercise of its power under Rule 14 or in the alternative, to defer the promotional exercise to a date after 01.01.2024 so as to consider all officers as per the gradation list published as on 09.09.2022. It has been stated that during the pendency of the present appeal, the writ petitioners (respondents No.4 to 11) have also completed 5 years of service as ACF and moreover there are large number of vacancies available in DCF cadre.
26. It has also been stated that pursuant to the Court‟s order dated 29.02.2024 in the present appeal, a fresh DPC was also convened on 11.03.2024 and in the light of the observation made in paragraph-21 of the impugned judgment passed by the learned Single Judge, the DPC W.A. No.3028 of 2023 Page 36 of 57 has already considered the cases of eligible officers, who have completed 5 years of service as ACF as on 01.01.2024 and accordingly as against available vacancies the State Government has already promoted 36 eligible officers to the rank of DCF, OFS Group-A (SB) on adhoc basis, which have been made subject to outcome of the present writ appeal, in the light of this Court‟s order dated 29.02.2024. In the light of the said notification dated 13.03.2024, all the officers have already submitted their joining against promotional post and further 5 posts have already been kept reserved in respect of the appellants in terms of the order passed by this Court. It has also been stated in the said affidavit that the promotion order issued on 13.03.2024 has covered the most of the candidates who were found suitable as per the DPC held in 2023. Moreover, respondents No.4 to 11, except respondent No.7 (petitioners in the writ petition) have been given promotion to the rank of DCF. So far as the present appellants are concerned, 5 posts have already been kept reserved, whose cases shall be considered if they are found eligible.
27. An affidavit has been filed on behalf of the appellants on 17.03.2024 stating therein that in the meeting of the DPC held on 20.03.2023 for considering promotion against 30 vacancies, 30 officers including these appellants were found eligible. However, the decision of the DPC was kept in the sealed cover due to the interim order passed by this Court. It has further been stated that it has reliably been learnt that the said proceeding of the meeting dated 20.03.2023 of the DPC was approved by the State Government on 19.10.2023 from which two persons namely Subhendu Prasad Behera and Shiba Prasad Rath have been promoted in the light of an interim order passed by the learned W.A. No.3028 of 2023 Page 37 of 57 Single Judge in the writ proceeding. It has also been stated that the order of promotion dated 13.03.2024 contains names of such Officers who had not completed five years of continuous service as ACF as on 01.01.2024, contrary to Rule 5 (1) of the OFS Group-A (Senior) Rules, 2015.
28. We have heard Mr. N.K. Mishra, learned Senior Counsel assisted by Mr. Deepak Kumar Pani, learned counsel appearing on behalf of the appellants, Mr. R.N. Mishra, learned Additional Government Advocate (AGA) for respondents No.1 to 3-State and Mr. Gautam Misra, learned Senior Counsel for respondents No.4 to 11.
Argument on behalf of the appellants:-
29. Mr. N. K. Mishra, learned Senior Counsel appearing on behalf of the appellants has argued that the entire case of respondent Nos.4 to 11 in the writ petition was laid with a grievance that the State-respondents were intending to extend reservation in the matter of promotion to the rank of OFS Group-A (SB), a Class-1 post. Such exercise, as pleaded in the writ petition, was violative of Section 4 of the ORV Act. Further such exercise was contrary to law laid down by the Supreme Court in cases of M. Nagaraj (supra), Uttar Pradesh Power Corporation Ltd. (supra), Jarnail Singh (supra) and Pravakar Mallick (supra). Noticing the express provision under Rule 4 of the OFS Group-A (SB) Rules 2015, learned Single Judge, he contends, has rightly held in paragraph 17 that the said Supreme Court‟s decisions were inapplicable in the facts of the present case. He has further argued that the impugned judgment of the learned Single Judge has taken note of the Supreme Court‟s decision in case of Ajit Singh Januja v. State of Punjab W.A. No.3028 of 2023 Page 38 of 57 reported in (1996) 2 SCC 715, wherein it has been held that whenever a question arises for filling up a post reserved for Schedule Caste/Tribe candidate in a still higher grade then such candidate belonging to Schedule Caste/Tribe shall be promoted first but when the consideration is in respect of promotion against the General category post in a 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 the principle of seniority-cum-merit or merit-cum-seniority. He has however submitted that the said principle laid down in case of Ajit Singh Januja (supra) has been further elaborated in Ajit Singh Januja (II) v. State of Punjab reported in 1999 (7) SCC 209. He has submitted that it has been clearly held in Paragraphs-84 and 85 of the said decision that even if seniority for roster point alone does not count, yet experience of both the groups can be considered as per the merit for further promotion. He has argued that undisputably, the experience of the appellants as Assistant Conservator of Forests is more than that of respondents No.4 to 11 for which, the former being otherwise eligible for promotion as Deputy Conservator of Forests ahead of the said respondents, no illegality can be found in the process. He has further argued that direction by the learned Single Judge to defer the promotional exercise to another date after January, 2024 so as to consider all officers as per the Gradation list as on 09.09.2022 is unsustainable as it renders Rule 5 of the OFS Group-A (Senior) Rules, 2015 nugatory and redundant, which is impermissible.
W.A. No.3028 of 2023 Page 39 of 57Argument on behalf of respondents No.4 to 11:-
30. Mr. Gautam Misra, learned Senior Counsel has submitted, placing heavy reliance on the Supreme Court‟s decision in case of Pravakar Mallick (supra) to argue that the appellants were illegally granted benefit of reservation in promotion to the post of ACF, in contravention of the law laid down by the Supreme Court in case of M. Nagaraj (supra), Uttar Pradesh Power Corporation Ltd. (supra) and Jarnail Singh (supra) and therefore they should not be given advantage of such promotion for further promotion. He has contended that the learned Single Judge has rightly relied on the Supreme Court‟s decision in case of Ajit Singh Januja (supra) wherein it has been held that when a question arises for consideration of filling up of a post reserved for SC/ST, a candidate belonging to the SC/ST can be promoted first, but when the consideration is in the respect of promotion against a general category post and still higher grade, then the general category candidates 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. He has submitted that the learned Single Judge has rightly applied the law laid down by the Supreme Court in case of Ajit Singh Januja (supra) and K. Shyam Sundar (supra). He has argued that the State-respondents were clearly directed by an order of this Court dated 15.03.2023 to inform as to whether an exercise in terms of the Supreme Court‟s decision in case of M. Nagaraj (supra) and Jarnail Singh (supra) had been carried out or not. This specific query remained unanswered by the State-respondents. He has contended that the ultimate decision in the present case would be governed by the W.A. No.3028 of 2023 Page 40 of 57 Supreme Court‟s decision in case of M. Nagaraj (supra), Uttar Pradesh Power Corporation Ltd. (supra) Jarnail Singh (supra), Pravakar Mallick (supra) and Mukesh Kumar v. State of Uttarakhand, (2020) 3 SCC 1. He has submitted that the appellants are beneficiaries of illegal promotion orders. Relying on the aforesaid Supreme Court‟s decisions, he has submitted that the appellants and proforma respondents No.22 to 37 could not have been promoted to the post of ACF with effect from the dates they have been granted such promotion by giving them benefit of reservation without following the law laid down by the Supreme Court in case of in M. Nagaraj (supra). He has submitted that the writ petitioners were compelled to approach this Court by filing the writ petition since with the issuance of the letter dated 13.03.2023, the State Government had initiated the exercise for grant of promotion to the post of DCF. If that were to be allowed, that would have resulted into the appellants and proforma respondents No.22 to 37 marching ahead of the petitioners by virtue of being beneficiaries of promotion to the post of ACF, which is contrary to the aforesaid decision of the Supreme Court, without collecting the quantifiable data showing backwardness of the class and inadequacy of representation of that class in public employment, as held in the case of M. Nagaraj (supra). He contends that if the appellants and proforma respondents No.22 to 37 were to be promoted to the post of DCF, the respondents No.4 to 11 for all times to come will become the junior to them and therefore, the writ petitioners were definitely the persons aggrieved so far as the promotional exercise of the appellants as well as proforma respondents No.22 to 37 were concerned as they are junior to the writ petitioners at stage of initial entry into service as Forest W.A. No.3028 of 2023 Page 41 of 57 Ranger. This argument has been made to counter the stand taken by the appellants in the writ proceeding that the writ petitioners did not have the locus standi to question the selection process for promotion to the post of DCF, they being not eligible for consideration in terms of Rule 5 (1) of the OFS Group-A (Senior) Rules, 2015. He has submitted that the appellants as well as the proforma respondents were promoted to OFS Group-A (JB) from the post of Forest Ranger to ACF by resorting to reservation in promotions in gross violation of the Supreme Court‟s decisions.
Stand of the State of Odisha:-
31. The stand of the State Government is clear from the counter affidavit which was filed in the writ proceeding wherein it was stated that the State did not intend to resort to any reservation in the promotional post of OFS Group-A (Senior). The assertion of the writ petitioners with regard to reservation for promotion to the post of OFS Group-A (Senior) was disputed and denied. A plea was taken that there being no provision for reservation in promotion to the post of OFS Group-A (Senior), the judgments of the Supreme Court relied on by the petitioners were inapplicable in the present set of facts of the case. A plea was taken that the writ petitioners had not completed 5 years of service in the grade of OFS Group-A (JB) and therefore they had not been considered for promotion to OFS Group-A (Senior). In view of their ineligibility they did not have any locus standi to prefer the writ petition, the State had contended. A clear stand was taken that rules of reservation would not be applicable for filling up the posts of OFS Group-A (Senior).W.A. No.3028 of 2023 Page 42 of 57
32. The State relied on Rule-3 (b) of the Odisha Civil Services (Criteria for Promotion) Rules, 1992 which prescribes that selection for promotion to State Civil Services and Posts shall be made on the basis of the merit and suitability in all respects with due regard to seniority and the names of the persons included in the select list shall be arranged in the order of seniority in the feeder service or grade. It was stated in the counter affidavit that the writ petitioners had represented before the State on 06.02.2023 seeking relaxation of the residency period from 5 years to 2 years and 6 months and convening the DPC at an early date, knowing well that they did not satisfy the eligibility criteria of minimum 5 years of residency period. They did not disclose the said fact before this Court that they had represented the State for relaxation in eligibility criteria amounting to suppression of a material fact.
33. A stand was also taken that relaxation of residency period is not a matter of right, which could be considered only if there was urgency to fill up the promotional posts and enough eligible officers were not present in the feeder cadre.
34. We have carefully examined the pleadings and other documents available on records of the writ proceeding as well as the present intra-
Court appeal and have given our thoughtful consideration to the rival submissions advanced on behalf of the parties as noted above.
35. We need to record at the outset that there is no dispute over the legal position emerging from the provisions under the OFS Group-A (Senior) Rules, 2015 and the rival submissions made on behalf of the W.A. No.3028 of 2023 Page 43 of 57 parties that there is no provisions for grant of reservation in the matter of promotion to the rank of OFS Group-A (Senior). Though the writ petitioners asserted in the writ petition that the State-respondents were going to apply reservation policy for SC & ST candidates for promotion to OFS Group-A (Senior) for which DPC was subsequently held on 20.03.2023, it has clearly emerged from pleadings, the extant statutory provisions, pleadings and submissions advanced on behalf of parties that neither there is provision for reservation nor there was any move to apply reservation policy for such promotion.
36. In the aforesaid background, the Supreme Court‟s decisions in cases of M. Nagaraj (supra), Jarnail Singh (supra) and Pravakar Mallick (supra), in our considered view, have no application apropos promotion to the post of OFS Group-A (Senior) in view of the admitted position that no reservation policy is applicable for promotion under the said Rules. On close scrutiny of the facts as has been noticed hereinabove, we notice the appellants No.1, 2 and 3 were granted promotion to the Grade of OFS Group-A (JB) in 2013 from the post of Forest Rangers by following the reservation policy under OFS Group- A (JB) Rules, 2013. Similarly, appellants No.4 and 5 were granted such promotion with effect from 17.06.2017 and 04.09.2018. The writ petitioners were admittedly seniors as Forest Rangers than these appellants. The writ petitioners did not even question grant of promotion to OFS Group-A (Junior) to these appellants by extending them the benefit of reservation. The writ petitioners were promoted to OFS Group-A (JB) in 2018 much after the appellants No.1, 2 and 3, as can be seen from the table under Paragraph-5.
W.A. No.3028 of 2023 Page 44 of 5737. However, after the writ petitioners (respondents No.4 to 11) were given promotion to the OFS Group-A (JB), applying the catch-up rule evolved by the Supreme Court in case of Union of India and others v. Virpal Singh Chauhan and others reported in (1995) 6 SCC 684 and subsequently approved in case of Ajit Singh Januja(II) (supra), their seniority was restored and a tentative Seniority List was prepared. In the said tentative Seniority List, names of the writ petitioners figured accordingly. The promotions granted to the appellants by extending them benefit of reservation to the post of OFS Group-A (JB) with effect from respective dates remained unchallenged, even in the present writ petition/proceeding filed by respondents No.4 to 11, on the ground that such promotions were in the teeth of the Supreme Court‟s decisions in cases of M. Nagaraj (supra) and Jarnail Singh (supra). The appellants have thus continued to hold the post of OFS Group-A(Junior Branch), ACF with effect from the dates of their respective promotions to the said post. In the aforesaid background, accepting the arguments as advanced on behalf of respondents No.4 to 11 will amount to declaring the promotions granted to the appellants to the rank of ACF from their respective dates as illegal, without any challenge to such promotions. The question might have been different had there been any challenge to their promotions at appropriate stage before appropriate Court. As a matter of fact, no grievance of any sort was raised by the writ petitioners questioning grant of promotion to the appellants in OFS Group-A (JB).
38. In the absence of any challenge to the promotions of the appellants to the rank of OFS Group-A (JB) on the ground of such promotions being violative of the law laid down by the Supreme Court W.A. No.3028 of 2023 Page 45 of 57 in the case of M. Nagraj (supra) and Jarnail Singh (supra), their right to hold the said post with effect from such dates cannot be taken way without giving them an opportunity to defend the grant of such promotions. We are, thus, of the view that for all purposes the appellants shall have to be treated as promoted to the rank of OFS Group-A (JB) with effect from the respective dates i.e. 06.12.2013 (Appellant No.1), 12.06.2013 (Appellant No.2), 06.12.2013 (Appellant No.3), 17.06.2017 (Appellant No.4) and 04.09.2018 (Appellant No.5).
39. A considerable reliance has been placed on the Supreme Court‟s decision in the case of Pravakar Mallick (supra) on behalf of the writ petitioners/respondents No.4 to 11. The said decision, in our opinion, has no application in the present case. In the case of Pravakar Mallick (supra) by a Government resolution dated 20.03.2022, the Government of Odisha had issued instructions to the effect that the catch up principle adopted earlier by the State Government in General Administration Department vide resolution No.39374 dated 02.11.2000 shall not be followed any longer. The resolution further ordained that the Government servants of Odisha belonging to SCs/STs shall retain their seniority in the case of their promotion by virtue of a Rule of Reservation. It had further been clarified that the Government servants belonging to General/OBC category promoted later will be placed junior to SC/ST Government servants promoted earlier, by virtue of the Rule of Reservation. The said Government resolution and the consequential gradation list of Odisha Administrative Service, Class-I (JB) when put to challenge, this Court by a judgment and order dated 24.12.2010 passed in the case of Langjit Roy Vs. State of Odisha, reported in 2010 SCC Online Ori. 232, quashed the said resolution W.A. No.3028 of 2023 Page 46 of 57 dated 20.03.2002 and the consequential gradational list, following the law laid down by the Supreme Court in the case of Virpal Singh (supra) and Ajit Singh (II) supra. In the aforesaid background, the Supreme Court while dismissing the appeal in the case of Pravakar Malick (supra) held in paragraphs 24 and 25 as under:-
"24. The Government Resolution dated 20-3-2002 can neither be termed as law made in exercise of enabling power of the State under Article 16(4-A), nor does it satisfy the parameters laid down in the various decisions of this Court. The Resolution has no legal basis. The seniority/gradation list dated 16-5- 2001 of OAS I (JB) was prepared correctly by following the ratio laid down by this Court and in absence of any law or decision by way of executive order based on acceptable material for conferring additional benefit of consequential seniority, the gradation list dated 3-3-2008 was prepared by altering the positions which were maintained in the list dated 16-5-2001. While it is open for the State to confer benefit even through an executive order by applying mandatory requirements as contemplated under Article 16(4-A) but the Resolution dated 20-3-2002 is merely issued by referring to the instructions of the Union of India without examining the adequacy of representation in promotional posts, as held by this Court.
25. Further, the submission of the learned counsel Shri A. Subba Rao that the benefit of reservation in promotion is given in the services of OAS I for Scheduled Caste and Scheduled Tribe officers as per Section 10 of Orissa Act 38 of 1975, but the same cannot be countenanced for the reason that such Act was enacted by the State of Orissa in the year 1975 but no provision is brought to our notice in such Act for giving the benefit of seniority for the promotees who were promoted in reserved vacancies. In absence of any provision in the said Act for conferring the W.A. No.3028 of 2023 Page 47 of 57 benefit of seniority, and in absence of any amendment after the Constitution (85th Amendment) Act, 2001, by which Article 16(4-A) was amended, benefit of seniority cannot be extended relying on Section 10 of the Act."
40. In the present case, the dispute does not pertain to seniority of the respondents No.4 to 11 that has been maintained in the tentative seniority list applying the „catch up rule‟ in case of Virpal Singh Chauhan (supra) approved in case of Ajit Singh (II) supra.
41. Now coming back to the facts of the present case for the purpose of adjudication as regards the right of the appellants to be considered for promotion to the post of OFS Group-A (Senior) in accordance with the OFS Group-A (Senior Branch) Rules, 2013 as on 20.03.2023 when the DPC was held for the said purpose. We have, at the outset, noted the relevant statutory provisions under the said Rules, particularly Rule 5 thereof. Rule 7 of the OFS Group-A (Senior) Rules, 2015 prescribes that the Board within the meaning of Section 2(a) of the Rules shall ordinarily meet at least once in a year, preferably in the month of January, to prepare a list of officers as are held by the Board „suitable‟ for promotion to the next higher grade taking into account the existing and anticipated vacancies for the year. Sub-Rule (2) of Rule 7 lays down that the Board while considering the cases of promotion of „suitable‟ officers shall follow the provisions of the following Rules:-
"(a) The Odisha Civil Services (Zone of Consideration for promotion) Rules, 1988 (in short „Rules of 1988‟)
(b) The Odisha Civil Services (Criteria for Promotion) Rules, 1992; (in short, „Rules of 1992‟) and W.A. No.3028 of 2023 Page 48 of 57
(c) The Odisha Civil Services (Criteria for Selection for Appointment including promotion) Rules, 2003 (in short, „Rules of 2003‟)"
42. Rule 7, thus, requires the Selection Board/DPC to ordinarily meet at least once in a year preferably in the month of January. For the year 2023, a meeting of the DPC was admittedly held on 20.03.2023. The eligibility criteria under Rule 5 of the said Rules provides that no officer shall be eligible for promotion to the post of Group-A (SB) unless such officer has completed five years of continuous service in the Grade of OFS Group-A (JB) as on the 1st Day of January of the year in which the Board meets. Manifestly, such officers who had not completed five years of continuous service in Grade of OFS Group-A (JB) as on 01.01.2023 were not eligible for consideration and those who had completed five years of such continuous service were eligible.
43. As has been noticed above, the writ petition was filed questioning a communication dated 03.03.2023 which had indicated initiation of the process for holding DPC for promotion to such post. We have already quoted hereinabove an interim order passed by a learned Single Judge of this Court dated 15.03.2023 to the effect that though the DPC might meet but the outcome shall be kept in a sealed cover and shall not be given effect to without leave of the Court. The said order was passed in view of the submission that the attempt of the State of Odisha to grant permission to these appellants and others by applying the principle of reservation in promotion was illegal and not in conformity with the law laid down by the Supreme Court in the case of M. Nagaraj (supra) and Jarnail Singh (supra). We reiterate that it is an admitted position that no policy of reservation was being applied W.A. No.3028 of 2023 Page 49 of 57 for the process of selection for promotion to the post of OFS Group-A (Senior). In the light of an interim order passed in the writ proceeding dated 04.09.2023, in view of the admitted fact that opposite parties No.12 and 13 were senior to the writ petitioners and they (writ petitioners) did not have any grievance against them, an application filed on behalf of opposite parties No.12 and 13 in the writ petition was allowed with the observation that the interim order earlier passed in the writ proceeding shall not apply in their cases. Apparently, thus, the outcome of the meeting of the DPC held on 20.03.2023 was given effect to, to the extent it related to the opposite parties No.12 and 13 in the writ petition, namely, Suvendu Prasad Behera and Shiba Prasad Rath (Respondents No.20 and 21 herein). They have been granted promotion accordingly to the post of OFS Group-A (SB) based on a meeting of the DPC held on 20.03.2023.
44. It is not in dispute that the cases of these appellants were considered by the DPC held on 20.03.2023. However, the outcome of the said meeting qua such appellants, who had completed five years as on 01.01.2023, in the meeting held on 20.03.2023, is not available on record. The learned Single Judge, noticing the facts in the writ petition to the effect that the writ petitioners will be acquiring the eligibility on different dates in the year 2023 itself and as on 1 st January, 2024 they would have acquired the required eligibility, observed that the Government may relax the eligibility criteria in respect of the petitioners and effect promotion to the senior Branch based on final gradation list. This observation has been made with reference to Rule 14 of the OFS Group-A (Senior) Rules, 2015 which reads as under:-
W.A. No.3028 of 2023 Page 50 of 57"14. Relaxation- Whenever it is considered by the Government that it is necessary or expedient to do so in the public interest, it may, by order, for reasons to be recorded in writing, relax any of the provisions of these rules in respect of any class or category of officers in consultation with the Commission."
45. The learned Single Judge further observed that in the alternative, the State may defer the promotional exercise to a date after 01.01.2024 so as to consider all officers as per the gradation list as on 09.09.2022. After having observed, thus, the learned Single Judge sets aside the impugned communication dated 03.03.2023 with a direction to the take necessary steps to fill up the post in the promotional cadre in terms of the observations made in the judgment, saving the promotions granted to the officers namely, Suvendu Prasad Behera and Shiba Prasad Rath which was based on the DPC held on 20.03.2023.
46. Based on the discussions noted above, we conclude as under:
(i) We don‟t find any legal infirmity in the communication dated 03.03.2023 issued by the Government of Odisha in Forest, Environment and Climate Change Department seeking inputs for consideration of promotion of the eligible officers to the rank of OFS Group-A (Senior) in accordance with the Rules of 2015 by the DPC for the year 2023.
(ii) The writ petitioners/respondents No.4 to 11 did not fulfill the eligibility criteria as on 01.01.2023 in accordance with the Rules of 2015 for consideration of their promotion by the DPC held on 20.03.2023.W.A. No.3028 of 2023 Page 51 of 57
(iii) Denial of consideration of the cases of the appellants, who had completed five years of continuous service in the rank of OFS Group-A (JB) for their promotion in the rank of OFS Group-A (Senior), in the present set of facts amount to nullifying their promotions to the rank of OFS Group-A (JB) from the post of Forest Rangers, without following due procedure.
47. We are unable to concur with the view taken by the learned Single Judge in view of the clear provision under the OFS Group-A (Senior) Rules, 2015 which requires inter alia meeting of the DPC once in a year for preparing a list of the officers suitable for promotion to OFS Group-A (Senior). The communication dated 03.03.2023 was issued by the Government seeking information from the Chief Conservator of Forests for consideration of promotion in a meeting scheduled to be held in the year 2023. Rule 5, in no uncertain terms, prescribes that no officer shall be eligible for promotion to the post of OFS Group-A (SB) unless he has completed five years of continuous service in the grade of OFS Group-A (JB) as on the 1st Day of January of the year in which the Board meets i.e., in the present case 01.01.2023. The writ petitioners/respondents No. 4 to 11 were ineligible for consideration of promotion as they had not completed five years of service in OFS Group-A (Senior). Such appellants, who had completed five years in OFS Group-A (JB) were eligible for such promotion as on the date of issuance of the said letter dated 03.03.2023, which is an undisputed fact. It is true that the appellants were given promotion from the post of Forest Rangers to OFS Group- A (JB) by extending them the benefit of reservation. The said W.A. No.3028 of 2023 Page 52 of 57 promotions granted to them have not been recalled nor the same have been declared illegal by any Court. Their promotions were not challenged when they were granted several years back, on the ground of the same being in breach of the Supreme Court‟s decisions in the case of M. Nagaraj (supra) and Jarnail Singh (supra). In the writ petition, the petitioners did not seek any relief for declaring the promotions granted to these appellants to the rank of OFS Group-A (JB) by extending them the benefit of reservation illegal. In such view of the matter, they had a right to be considered for promotion in the DPC meeting held on 20.03.2023.
48. Further, we do not concur with the view taken by the learned Single Judge, to defer the promotional exercise to a date after 01.01.2024 so that all officers as per the gradation list as on 09.09.2022 are considered. Such direction is contrary to the scheme of the statutory OFS Group-A (Senior) Rules, 2015, Rule 7 of which contemplates holding of meeting of the DPC at least once in a year.
49. The effect of non-consideration of the cases of the writ petitioners for the promotion in question in the year 2023 and consideration of those appellants, who were granted promotions by extending benefit of reservation to the post of OFS Group-A (Senior) in the year 2023 would be that such appellants who are eligible in terms of Rule 5 of the OFS Group-A (Senior) Rules, 2015 shall be granted promotion, if found suitable, prior to the writ petitioners and, therefore, their seniority shall be fixed above the writ petitioners, if they are granted promotions later. The said grievance of the writ petitioners cannot be a basis for this Court to deny such of the W.A. No.3028 of 2023 Page 53 of 57 appellants who had completed five years of service in OFS Group-A (JB), their right to be considered for promotion in the DPC held on 20.03.2023, in accordance with Rules, having force of law.
50. In our considered opinion, the effect of the impugned order passed by the learned Single Judge is nullifying the entire exercise of DPC held on 20.03.2023, however, saving the recommendations made by the DPC in relation to Suvendu Prasad Behera and Shiba Prasad Rath. We respectfully disagree with this approach of the learned Single Judge as we do not find any illegality in the impugned communication dated 03.03.2023 and consideration of such officers who had completed five years of service in OFS Group-A (JB) for promotion to OFS Group-A (Senior) by the DPC in its meeting held on 20.03.2023. Such promotion is not hit by the law laid down by the M. Nagaraj (supra) and Jarnail Singh (supra) as no reservation policy is applicable for such promotion. The learned Single Judge has, however, referred to Rule 14 of the OFS Group-A (Senior) Rules, 2015 requiring the State Government to consider relaxation as regards eligibility criteria taking into account that the State Government had in past relaxed the eligibility condition of five years with the concurrence of OPSC for promotion to the rank of OFS Group-A (Senior).
51. In the given facts and circumstances of the case, for the reasons noted above, we consider it apt to dispose of the present writ appeal with the following directions:-
(i) Considering the peculiar facts and circumstances that the appellants were granted promotion to the rank of OFS Group-A (JB) from the post of Forest Rangers by extending W.A. No.3028 of 2023 Page 54 of 57 them the benefit of reservation, admittedly without following the law laid down by the Supreme Court in the case of M. Nagaraj (supra) and Jarnail Singh (supra) though they were appointed as Forest Rangers much after the writ petitioners, the State of Odisha shall consider grant of relaxation in eligibility criteria under Rule 14 of the OFS Group-A (Senior) Rules, 2015 in respect of the writ petitioners/respondents No.4 to 11 in consultation with the OPSC for the purpose of the DPC of the year 2023, which in the present case was held on 20.03.2023. Such decision must be taken within two months from today.
(ii) If such relaxation is granted by applying Rule 14 of the OFS Group-A (Senior) Rules, 2015, the Selection Board/DPC shall hold a meeting within one month after the decision on the point of relaxation is taken; as if the meeting was being held on 20.03.2023 to consider the cases of all eligible officers in accordance with the Rules 5 and 7 of the OFS Group-A (Senior) Rules, 2015 and proceed accordingly in accordance with the other provisions under the said Rules. In case the State Government decides not to grant such relaxation, it shall be required to pass a reasoned order and in such case the affected parties shall be at liberty to question the decision of the Government not to grant relaxation, before the appropriate forum including by way of filing writ petition under Article 226 of the Constitution of India.
W.A. No.3028 of 2023 Page 55 of 57(iii) Further, in the event the relaxation is not granted, the State-respondents shall proceed with the recommendation of the DPC held on 20.03.2023 which is said to have been approved by the Government and out of the select list so prepared by the DPC, two persons have been promoted. The State Government shall, in such a case, consider grant of promotion in accordance with the provisions under OFS Group-A (Senior) based on the recommendation made by the DPC in accordance with the OFS Group-A (Senior) Rules, 2015.
(iv) Soon after final outcome of the DPC held/deemed to have been held on 20.03.2023, another DPC meeting shall be held as if the said DPC was sitting on 11.03.2024 to consider the cases of such officers, who are eligible to be considered as on 01.01.2024 in terms of Rule 5 of OFS Group-A (Senior) Rules, 2015. Needless to say that the State Government shall take all possible steps to ensure that the promotions are granted to the suitable candidates in accordance with the provisions of the Rules as expeditiously as possible by completing the entire exercise preferably within three months from today.
52. We are of the view that the directions noted above, balance equities and at the same time, do not breach or deviate from any provision under the OFS Group-A (Senior) Rules, 2015. The appeal is allowed with the aforesaid directions and observations.
W.A. No.3028 of 2023 Page 56 of 5753. There shall be no order as to costs.
(Chakradhari Sharan Singh)
Chief Justice
M.S. Raman, J. I agree.
(M.S. Raman)
Judge
SK Jena, M.Panda/Secy.
SK Guin/PA
Signature Not Verified
Digitally Signed
Signed by: SANJAY KUMAR JENA
Designation: SECRETARY
Reason: Authentication
Location: High Court of Orissa, Cuttack.
Date: 18-Jun-2024 18:23:15
W.A. No.3028 of 2023 Page 57 of 57