Orissa High Court
Sri Sanatana Sahoo vs State Of Odisha & Others .... Opposite on 10 June, 2025
Author: R.K. Pattanaik
Bench: R.K. Pattanaik
IN THE HIGH COURT OF ORISSA AT CUTTACK
AFR W.P.(C) No.29172 of 2020
Sri Sanatana Sahoo .... Petitioner
Mr. B.S. Tripathy-1, Senior Advocate
-Versus-
State of Odisha & others .... Opposite
Parties
Mr. U.R. Jena, AGA
CORAM:
JUSTICE R.K. PATTANAIK
DATE OF JUDGMENT:10.06.2025
1.Instant writ petition is filed by the petitioner challenging the final gradation list dated 24th September, 2020 as at Annexure-3 and for a direction to opposite party Nos.1 and 2 to redraw the same on the basis of inter se seniority among the Junior Data Entry Operators (Jr. DEOs) on the grounds stated.
2. In fact, the petitioner questions the impugned decision with respect to the final gradation list of Jr. DEOs posted in different Departments of the W.P.(C) No.29172 of 2020 Page 1 of 29 Secretariat as on 1st September, 2020. According to the petitioner, a provisional gradation list was prepared and he was placed at Serial No.1 therein with the date of joining in the rank of Jr. DEO on 30 th June, 2011, yet in the final gradation list, opposite party Nos.3 to 18, who joined as Jr. DEOs much after were placed above him. The plea of the petitioner is that he could not have been superseded and placed below the said opposite parties and therefore, seniority as per the provisional gradation list (Annexure-2) is required to be restored.
3. The petitioner for having a qualification of Post Graduate Diploma Computer Application was engaged as a Computer Operator in PH, Sub- Division, Baripada under the Executive Engineer, RWSS, Balasore on 1st September, 1995 and thereafter, the Chief Engineer, PH (Urban) by Office order dated 6th November, 2002 to the Financial Advisor-cum-Joint Secretary to Government, Housing and Urban Development Department intimated that the petitioner has been directed to work as such on a consolidated salary of Rs.7000/-. It is the case of the petitioner that he requested the authorities of PH, Division and Housing and Urban W.P.(C) No.29172 of 2020 Page 2 of 29 Development Department for his regularization in service, whereafter, on the basis of instructions received from the Chief Engineer, PH (Urban), the Executive Engineer, PH, Baripada furnished a list of employees mentioning his name therein for such regularization. It is further pleaded that proposals were mooted to create posts of Data Entry Operators and to regularize the petitioner as such post was not available earlier. In the meanwhile, according to the petitioner, opposite party No.2 requested the Finance Department in 2004 to consider the case of the petitioner and the latter concurred creating of two posts of Jr. DEOs in Housing and Urban Development Department, however, such posts were filled up through service providers and as a result, he had to approach the Odisha Administrative Tribunal, Bhubaneswar in OA No.3421 of 2013 with a direction to Government to regularize or absorb him in the post of Jr. DEO or Computer Operator with all service and financial benefits as has been extended to others, who are similarly situated and the same was disposed of by an order dated 14th May, 2015 rejecting the plea for regularization, as against which, W.P.(C) No.14365 of 2015 was filed and it was disposed of by a judgment dated 1st November, 2017 W.P.(C) No.29172 of 2020 Page 3 of 29 with the order of the Tribunal set aside and the matter being remitted back to the authorities concerned to regularize his service. It is also pleaded that the petitioner filed CONTC No.556 of 2018 as the direction in W.P.(C) No.14365 of 2015 was not carried out, whereafter, he was appointed as Jr. DEO in the scale of pay as admissible under the Rules against the vacant post of Jr. DEO with effect from 30th June, 2011. A copy of the order of appointment is at Annexure-1.
3.1. After the services of the petitioner was regularized in the cadre of Jr. DEO, opposite party No.1 published the provisional gradation list i.e.Annexure-2 of Jr. DEOs working in different departments of Odisha State Secretariat as on 1st February, 2020 and it was later finalized and on 24th September, 2020, the final gradation list was released, wherein, contrary to the provisional list, the petitioner was placed at Serial No.17 below other Jr. DEOs joined in 2013 and after ignoring the fact that his date of joining in the rank of Jr. DEO was on and from 30th June, 2011. A copy of the final gradation list is at Annexure-3. The contention of the petitioner is that inter se seniority among the Jr. DEOs is governed by W.P.(C) No.29172 of 2020 Page 4 of 29 Rule 13 of the Odisha Secretariat Data Entry Operators (Method of Recruitment and Conditions of Service) Rules, 2008 (hereinafter referred to as 'the Rules'). The further contention is that the petitioner joined in service having been directly recruited and joined on 6th November, 2002 and thereafter, in the rank of Jr. DEO with effect from 30th June, 2011 and in that year of 2011, there was no induction into the cadre by way of promotion, whereas, opposite party Nos.3 to 18 have been brought into the cadre between 2013 and 2018, which is much after his entry into the cadre and in that view of the matter, he could not have been placed below them in the final gradation list and same even does not stand to any reason and hence, in view of the impugned decision of the Government upon publication of the final gradation list dated 24th September, 2020, he has been unfairly discriminated and thus, cannot be sustained in law.
4. Heard Mr. Tripathy, learned Senior Advocate for the petitioner and Mr. Jena, learned AGA for the State.
5. Mr. Tripathy, learned Senior Advocate for the petitioner would submit that such a decision of the Government is not in consonance with the Rules and W.P.(C) No.29172 of 2020 Page 5 of 29 that apart, it has not been preceded by any Government order, circular or guidelines, inasmuch as, the seniority among Jr. DEOs cannot and could not have been on the basis of an opinion of the GA Department. It is contended that the petitioner was appointed as Jr. DEO with effect from 30th June, 2011 and was regularized vide order dated 17th September, 2018 of Housing and Urban Development Department and much before opposite party Nos.3 to 18 joined in the cadre, hence, ought not to have been placed below them. The contention is that all the Jr. DEOs were brought into the cadre by the decision of the Government and it is not that the petitioner was inducted into the cadre as an ex-cadre Jr. DEO and placed alongside the other Jr. DEOs being already in the cadre by then and therefore, any such decision of the Government with a final gradation list as per Annexure-3 cannot be countenanced. The further contention is that the regularization of the petitioner in service on 30th June, 2011 shall have to be held as the date of entry into the cadre in view of Annexure-1 and as he joined earlier to opposite party Nos.3 to 18, opposite party Nos.1 and 2 could not have placed him below in the final gradation list i.e. Annexure-3 and that too when, the decision is based on the opinion of W.P.(C) No.29172 of 2020 Page 6 of 29 the GA Department, Government of Odisha and not on account of any Government order, circular or guidelines in terms of Articles 162 and 164 of the Constitution of India and therefore, Annexure-B/1 to the counter affidavit of the Government has no application to consider determination of seniority of Jr. DEOs in the Secretariat. In support of such contention as to absence of any executive instructions, order or circular of the Government and hence, the opinion of the GA Department, Government of Odisha could not have been the basis to determine the inter se seniority of Jr. DEOs, Mr. Tripathy, learned Senior Advocate relies on the following decisions, such as, Shiba Shankar Mohapatra and others Vrs. State of Orissa and others AIR 2010 SC 706 and Pimpri Chinchwad New Township Development Authority Vrs. Vishnudev Cooperative Housing Society and others (2018) 8 SCC 215 with the submission is that the final gradation list placing the petitioner at Serial No.17 must have to be held as contrary to the settled principles of law, hence, to be modified in the lines of the provisional gradation list at Annexure-2.
W.P.(C) No.29172 of 2020 Page 7 of 296. On the other hand, Mr. Jena, learned AGA for the State referring to the counter affidavit submits that the petitioner was brought into the cadre of Junior DEOs vide Home Department Resolution No.27986 dated 24th August, 2020. The submission is that the Home Department is the Cadre Controlling Authority (CCA) and therefore, his seniority in service has been counted from the date of entry into the cadre and refers to the said resolution at Annexure-A/1. The further submission is that the petitioner has been rightly placed in the final gradation list of Jr. DEOs in the cadre and the fixation seniority has been prepared after obtaining view of the GA Department and also Law Department, Government of Odisha and on account of the general principle that encadre should find their position below the persons, who are already in the cadre and in support of such a plea, Mr. Jena, learned AGA refers to relevant extract of the opinion of the GA Department at Annexure-B/1. The contention is that as per the 1st schedule under Rule 4 of the Rules of Business, Odisha, the matter was referred to the Law Department which offered the view that petitioner is eligible to be brought into the cadre along with others having been regularized in service from the date of their regularization in a W.P.(C) No.29172 of 2020 Page 8 of 29 chronological manner to determine inter se seniority in the cadre and since 09 (nine) Date Entry Operators were working in different Departments of the Government against the posts created by the respective departments and all were regularized thereafter, the petitioner and such other Data Entry Operators have been brought into the fold of the cadre of the Secretariat for which Home Department, Government of Odisha is the CCA. It is also contended that all the Data Entry Operators have been re-designated as Jr. DEOs after such encadrement and are to be governed by the Rules as amended from time to time. A copy of the notification dated 30 th December, 2008 of the Home Department, Government of Odisha with regard to the Rules is at Annexure-C/1. It is claimed that the petitioner was initially engaged as a Computer Operator temporarily in Housing and Urban Development Department on a daily wage basis and as he was a hand receipt employee under PH, Division, Baripada, his case was not considered against two newly created posts of Jr. Data Entry Operator in Secretariat Establishment of Housing and Urban Development Department, however, in view of the dismissal of SLP(C) No.011911 of 2018 for being withdrawal and in W.P.(C) No.29172 of 2020 Page 9 of 29 compliance of the judgment in W.P.(C) No.14365 of 2015, the services rendered by him was regularized with effect from 30th June, 2011. It is reiterated by Mr. Jena, learned AGA that the provisional gradation list was prepared and after receiving the objections from other Jr. DEOs and in view of the opinion received from GA Department, Government of Odisha in the light of the general principles to be followed in encadring outsiders, the petitioner was rightly placed in the final gradation list i.e. Annexure- 3 below opposite party Nos.3 to 18 and hence, there is no any illegality committed, as a result.
7. A rejoinder affidavit is filed by the petitioner followed by a reply affidavit of opposite party Nos.1 and 2 to such rejoinder and same are gone through. Referring to the rejoinder affidavit dated 18th June, 2021, Mr. Tripathy, learned Senior Advocate for the petitioner submits that by Office order dated 17th September, 2018 as at Annexure-1, the petitioner's service was regularized with effect from 30th June, 2011 as a Jr. DEO in the scale of pay of Rs.5,200/- to 20,200/- with a Grade pay of Rs.1900/- (pre-revised) carrying usual DA and other allowances admissible under the Rules and such appointment was made W.P.(C) No.29172 of 2020 Page 10 of 29 against a vacant post of Jr. DEO sanctioned by Housing and Urban Development Department, Government of Odisha vide No.15677/H &UD dated 30th June, 2011, the stand of the Govt. that it was a case of encadrement by a resolution dated 24th August, 2020 is not correct. The further reply is that the guidelines issued by the GA Department, Government of Odisha as referred to is only a guiding principle and the intent was to avoid merger of cadres of Junior Grade Typist with Jr. Data Entry Operator since it has been clearly stated therein that in the event of such merger, it would lead to unavoidable litigations and hence, the advice was for a separate common cadre of DEOs to be created by the Home Department being the CCA which was followed by a decision of the Government to create a common cadre under Rule 3 of the Rules, according to which, while preparing the gradation list, inter se seniority as per Rule 13 thereof is to be followed and since in the case at hand, the petitioner being an earlier appointee in the rank of Jr. DEO, he was required to be placed above others joined later and brought into the cadre and therefore, any such opinion or view or clarification received from GA Department to apply W.P.(C) No.29172 of 2020 Page 11 of 29 to the case of the Jr. DEOs in a common cadre is completely misunderstood and wholly misplaced.
8. In response to the above, referring to the affidavit dated 7th October, 2021 of opposite party Nos.1 and 2 in reply to the rejoinder, it is contended by Mr. Jena, learned AGA that the petitioner was initially engaged as a hand receipt employee with effect from 1st September, 1995 and was directed to work as a Computer Operator on a temporary basis, hence, neither joined as a Jr. DEO on a regular recruitment process nor inducted from Group-D posts through a departmental examination, hence, therefore, he has been considered as a outsider or ex-cadre but was regularized with effect from 30th June, 2011 in view of the judgment in W.P.(C) No.14365 of 2015 upon dismissal of the SLP. The further contention is that the Home Department being the CCA of DEOs cadre of the Secretariat, no such post of Jr. DEO was allotted to the Housing and Urban Development Department to absorb the petitioner as Jr. DEO and in so far as other Jr. DEOs are concerned, they have been inducted or brought into to cadre by promotion and with regard to the petitioner with others DEOs, who have joined as Jr. DEOs without following due W.P.(C) No.29172 of 2020 Page 12 of 29 process of recruitment and subsequently regularized have been encadred with the Jr. DEOs cadre and therefore, the stand taken by GA Department by resolution as per Annexure-A/1 is appropriate and without any flaw and furthermore, the petitioner has been rightly placed in the final gradation list of the cadre without any such wrong interpretation of the guidelines of the GA Department as it is very common that in a gradation list, the ex-cadres are placed below the cadre employees. The contention is that the date from which the services of the petitioner was regularized cannot be taken as the date of entry into the cadre and as per the views of the Law Department, he along with others eligible persons standing on the same footing were brought into to the cadre and the dates of their regularization have been mentioned in a chronological manner to determine their seniority in the cadre. It is once again claimed that the petitioner and eight other computer personnel working in Government Departments with different designations and scale of pay were regularized by the concerned Department and have been brought into the cadre in view of the Home Department's decision dated 24th August, 2020 and since then, he is governed by the cadre rules and that he had not been W.P.(C) No.29172 of 2020 Page 13 of 29 adjudged against any posts created by the Home Department by order No.40220 dated 2nd December, 2015 as at Annexure-A/1 to the reply affidavit to the rejoinder. With the above pleading on record and stand of the Government, Mr. Jena, learned AGA would finally submit that the writ petition is devoid of any merit, hence, liable to be dismissed.
9. Admittedly, the petitioner was engaged as a Computer Operator in P.H. Sub-division, Baripada under Executive Engineer, RWSS, Balasore in the year 1995 whereafter his service was placed at the disposal of P.H. Division, Baripada and thereafter, he was directed to work in Housing & Urban Development Department. In fact, the petitioner joined in service on a consolidated remuneration w.e.f. 6th November, 2002. The aforesaid facts as revealed from the record are not in dispute. It is also not in denial that while serving in such capacity as a Computer Operator ever since 2002, the P.H. Division as well as Housing & Urban Development Department considered regularization of service of the petitioner with the proposals submitted to create posts of Data Entry Operators as it was required after computerization of official work and ultimately, such W.P.(C) No.29172 of 2020 Page 14 of 29 regularization was achieved, of course, by the direction of this Court in W.P.(C) No. 14365 of 2015 and upon dismissal of SLP by the Apex Court. At the cost of repetition, it is to be stated that the petitioner joined on a daily wage basis in 1995 and was allowed to work in the P.H. Division and thereafter, as a Computer Operator in Housing & Urban Development Department on and from 6th November, 2002 and finally, was regularized as a Junior Data Entry Operator w.e.f. 30th June, 2011.
10. The dispute is related to the placement of the petitioner in the final gradation list of Junior DEOs as per Annexure-3. Initially, the petitioner was at Serial No.1 of the provisional gradation list prepared as on 1st February, 2020 but it was followed by Annexure-3 by placing him below at Serial No.17. The claim of the petitioner is that since he was regularized on 30th June, 2011 and others, who are juniors to him and joined in 2013 and thereafter, could not have been placed above him in the final gradation list as per Annexure-3. The further claim is that the petitioner joined as a Junior Data Entry Operator in the year 2011 having been regularized in the scale of pay admissible under the Rules in Housing & Urban W.P.(C) No.29172 of 2020 Page 15 of 29 Development Department against a vacant post of Junior DEO sanctioned by the Government, hence, senior to others, who joined in the year 2013 and later. But the stand of the opposite party Nos. 1 & 2 is that he was not in the cadre and being an ex-cadre employee and encadred pursuant to the decision of the Government in G.A. Department w.e.f. 24th August, 2020, he was appropriately placed in the final gradation list on the general principle that the employees encadred should find their position below others, who are already in the cadre. In fact, a distinction is sought to be made with the counter claim that the petitioner is an ex-cadre and hence, had to be placed below the Junior DEOs, who, even though, joined in 2013 and afterwards.
11. Mr. Tripathy, learned Senior Advocate for the petitioner submits that the other Junior DEOs since joined much after the petitioner, whose service was regularized w.e.f. 2011 could not have been placed above him and such seniority cannot be considered on and from 24th August, 2020 in view of the resolution of the Home Department with a plea that he was brought into the cadre as a Junior DEO upon such decision of the CCA. The contention is that the other W.P.(C) No.29172 of 2020 Page 16 of 29 employees were not even born in the cadre by the time the service of the petitioner as a Junior Data Entry Operator was regularized w.e.f. 30th June, 2011. It is submitted by Mr. Tripathy, learned Senior Advocate that the petitioner was brought into the cadre upon such regularization and joined as a Junior Data Entry Operator with a scale of pay admissible as per the Rules against a sanctioned post created in favour of Housing & Urban Development Department vide order No. 15677/HUD dated 30th June, 2011.
12. Mr. Jena, learned AGA, however, contradicts the above claim referring to the counter affidavit of opposite party Nos. 1 & 2 and also Annexure-A/1 of the reply affidavit to the rejoinder with the submission that such regularization was not against any sanctioned post. It is made to understand that the sanctioned posts created were filled up without regularizing the services of the petitioner. But, from Annexure-1, it is made to reveal that the petitioner's service was regularized w.e.f. 30th June, 2011 as a Junior DEO against a post sanctioned in favour of Housing & Urban Development Department as W.P.(C) No.29172 of 2020 Page 17 of 29 already mentioned earlier in the scale of pay admissible under the Rules.
13. Mr. Tripathy, learned Senior Advocate for the petitioner refers to Rule 3 of the Rules and submits that such entry into service as a Junior DEO on and from 30th June, 2011 shall have to be held as joining in the cadre service. In other words, the contention is that the petitioner cannot be claimed to be an ex- cadre upon such regularization of service, inasmuch as, the date of regularization in the post of Junior DEO by him is the date of entry into the cadre. To further buttress the argument over placement of the petitioner in the final gradation list, Mr. Tripathy, learned Senior Advocate referred to the decision of the Apex Court in K. Meghachandra Singh & others Vrs. Ningam Siro & others (2020) 5 SCC 689 to contend that the other Junior DEOs since not even born in the cadre by the time the petitioner's service was regularized, they cannot be placed above him in the final gradation list.
14. A cadre post is a permanent position within a structured service while an ex-cadre post is a temporary one created for a specific purpose usually outside the regular cadre and is typically filled on W.P.(C) No.29172 of 2020 Page 18 of 29 deputation or temporary basis. A permanent post is a core position within a service listed in the cadre strength having a defined hierarchy and pay structure with promotional avenues, whereas, an ex-cadre post is meant for a specific and temporary purpose and not a part of the regular structured cadre and may not have the same promotional pathways, which means, usually no formal promotion is available within any such ex-cadre post. To further elaborate, an ex-cadre post refers to a temporary position often at the same rank as a cadre post but created for specific purposes outside of the regular recognized service cadre, hence, it is distinct from a permanent cadre post and such a post is often filled by officers, who already hold positions within a cadre usually through deputation or on a temporary basis. Having described the clear distinction between the cadre and ex-cadre posts, the question would arise whether the petitioner can be considered as an outsider or an ex-cadre as it has been claimed by the Government while justifying the final gradation list at Annexure-3?
15. Briefly to recapitulate, the petitioner was a Computer Operator engaged in the Housing & Urban Development Department on a temporary basis with a W.P.(C) No.29172 of 2020 Page 19 of 29 consolidated remuneration of Rs.7,000/- per month. Initially, the petitioner joined as a hand receipt in the year 1995 on a daily wage basis and thereafter, as a Computer Operator on and from 6th November, 2002. The service of the petitioner was regularized in view of the judgment in W.P. (C) No. 14365 of 2015 dated 1st November, 2017 as the SLP filed by the Government was withdrawn and hence, stood dismissed. The regularization of the petitioner's service was accomplished in 2018 pursuant to the Office order of the Housing & Urban Development Department, Government of Orissa as per Annexure-
1. Though, the recruitment of the petitioner was not as per the Rules, the service rendered by him was regularized keeping in view the decision of the Apex Court in Secretary, State of Karnataka & others Vrs. Uma Devi (3) and others (2006) 4 SCC 1 further clarified in State of Karnataka & others Vrs. M.L. Kesari & others (2010) 9 SCC 247.
16. It is not that the petitioner upon such regularization held an ex-cadre post. As already discussed before, ex-cadre posts are normally filled up through deputation or on temporary basis. It is a fact that the petitioner was engaged with a temporary W.P.(C) No.29172 of 2020 Page 20 of 29 appointment as a Computer Operator in 2002. Even such a temporary appointment, after regularization, is not automatically converted into an ex-cadre post. Such is not the case of the petitioner either, who rather joined against a temporary post created for a specific purpose and was finally absorbed as the Junior Data Entry Operator against a sanctioned post as evident from Annexure-1. It is not understood how someone's service regularized in 2011 can be said to be encadred in 2020. As far as the Rules in place is concerned, Rule 2(b) thereof defines 'Cadre' constituted under Rule 3, according to which, the service shall consist of the following cadres, such as, Junior DEOs and Senior DEOs. As per Chapter-II of the Rules, recruitment to the cadre of Junior DEOs is made by a competitive examination. In fact, Rule 4 deals with the direct recruitment to the cadre of Junior DEOs. Rule 13 of the Rules stipulates that inter se seniority of the candidates appointed as Junior DEOs shall be as per the select list but the one's appointed under Rule 4(4) shall enbloc be senior to the direct recruitees in a particular year. As it is made to reveal from the record, the other DEOs have been appointed through promotion and have been placed above the petitioner in the final gradation W.P.(C) No.29172 of 2020 Page 21 of 29 list including one joined under RAS so made to appear from Annexure-3. It is not that the other Junior DEOs joined in service in the year in which the petitioner was regularized. Such regularization of the services of the petitioner has taken place in 2011 much prior to others, who joined and appointed as Junior DEOs either under RAS or through induction by promotion from Group-D. If the Rules is read properly, recruitment in a particular year vis-à-vis inter se seniority among the Junior DEOs shall be governed by Rule 13 thereof. In the instant case, as earlier discussed, the other Junior DEOs, who have been placed above the petitioner joined in 2013 and afterwards and not in the same year i.e. 2011. Had there been such a situation with the appointment of all Junior DEOs in a particular year, the petitioner would have been placed below since in view of Rule 13, the appointees as per Rule 4(4) of the Rules shall have to be enbloc senior to others inducted through a direct recruitment under Rule 4(1) thereof.
17. It is claimed in the counter affidavit of opposite party Nos. 1 & 2 that the service of the petitioner was not placed in Housing & Urban Development Department by any Government order rather he was W.P.(C) No.29172 of 2020 Page 22 of 29 directed to join as a Computer Operator temporarily on a daily wage basis. It is also averred that the case of the petitioner does not lie within the purview of the resolutions of the G.A. & P.G. Department and he was not appointed against any such post created in the Secretariat Establishment of Housing & Urban Development Department, however, in view of the dismissal of SLP and for complying the judgment in W.P. (C) No. 14365 of 2015, his services was regularized w.e.f. 30th June, 2011. But, upon a reading of Annexure-1 and since such a plea having not been clearly demonstrated, it has to be held that the petitioner's service was regularized from the appointed date as a Junior DEO in the scale of pay admissible under the Rules against a sanctioned or vacant post of Junior DEO. In such view of the matter, according to the Court, it would not be proper to claim that the petitioner to be an ex-cadre or outsider, he having been duly appointed as a Junior DEO against a regular sanctioned post.
18. Mr. Tripathy, learned Senior Advocate for the petitioner submits that the guidelines issued by the G.A. & P.G. Department is only a guiding principle and it was intended to avoid merging of cadres of W.P.(C) No.29172 of 2020 Page 23 of 29 Junior Grade Typists and Junior DEOs, as on a reading of the same, it is clearly made to understand that in the event of any such merger, the same is likely to lead to various anomalies and litigations and hence, advised to have a separate common cadre for Data Entry Operators by the Home Department and thus, it was imperative that to form a common cadre, Rule 3 of the Rules is to govern and while preparing the gradation list, the inter se seniority among the Junior DEOs shall be as per Rule 13 and in the case at hand, the petitioner being an earlier appointee in the cadre, he is required to be placed above all subsequent entrants to the cadre and therefore, any such reliance placed on the G.A. Department clarification as per Annexure-B/1 is wholly misplaced and misunderstood. In the given context, as some Data Entry Operators may find place above Junior Grade Typists already promoted to the rank of Senior Grade Typists thereby giving rise to question of reversion and some appears much below the Junior Grade Typists already appointed from the select list of 1987, any such inclusion of the Data Entry Operators in the cadre of Junior Grade Typists, it was the opinion of the G.A. Department that the same would give rise to unavoidable litigations and W.P.(C) No.29172 of 2020 Page 24 of 29 therefore, suggested the Administrative Departments to have a common cadre of Data Entry Operators with the Home Department as the CCA outlining the general principle to be followed in encadring outsiders placing them below the cadre employees. As far as the case of the petitioner is concerned, the Court finds that he joined in service in 2002 and was regularized in service as a Junior DEO w.e.f. 30th June, 2011 and such appointment is held to be against a sanctioned or vacant post. A regular appointment is always made against a substantive post. The regularization of service of the petitioner could not have been allowed without a sanctioned or vacant post being available. The Court finds from Annexure- 1 that the petitioner's service was regularized against a sanctioned post though it has been denied by opposite party Nos. 1 & 2 but without being duly demonstrated or explained away. The date of joining in the rank of Junior DEO as per the final gradation list vis-à-vis the petitioner is stated to be 30th June, 2011. If such is the case and the petitioner was appointed as a Junior DEO from the appointed date apparently against a sanctioned or vacant post, to claim that it was not an entry into the regular cadre is unacceptable. One who is regularized in 2011 cannot W.P.(C) No.29172 of 2020 Page 25 of 29 be placed below others, who joined later with a plea that the encadrement has taken place in 2020. If such an exercise is undertaken despite the fact that the petitioner's service was regularized in 2011, it would place him below other Junior DEOs, who joined long thereafter. The Court is of the further view that once the petitioner's service was regularized w.e.f. 30th June, 2011 and appointed as a Junior DEO in the scale of pay admissible as per the Rules against an available post claimed to be sanctioned and also revealed from Annexure-1, his seniority in juxtaposition to others shall be governed by Rule 13 of the Rules. To postpone the seniority until 2020 claiming that the date of encadrement is to govern the seniority with reference to Annexure-B/1 and any such opinion of the Law Department, Government of Odisha would be an erroneous decision for the fact that the petitioner's entry into the cadre shall have to be treated w.e.f. 30th June, 2011, he having been appointed as a Junior Data Entry Operator against a vacant or sanctioned post in the scale of pay as admissible under Rules.
19. The other Junior DEOs joined on and after 2013 and all such appointments including the petitioner W.P.(C) No.29172 of 2020 Page 26 of 29 have not taken place in a particular year, otherwise, in such an eventuality, Rule 13 of the Rules would have been applicable. It is of course not a case that the petitioner was appointed as a direct recruitee, as is so claimed but him having joined in the cadre as a Junior DEO w.e.f. 30th June, 2011 and that too, against a sanctioned post could not have been placed below others in the final gradation list. Furthermore, the other Junior DEOs inducted into the cadre by way of promotion in 2013 and thereafter and not in the year of appointment of the petitioner. Though, the petitioner cannot be treated as a direct recruitee but since appointed in 2011 as a Junior DEO and by then others had not even been born in the cadre and the recruitment with the appointments having not taken place in a particular year, he shall have to be placed above the latter in the final gradation list and the same cannot be denied with a plea that such induction in to the cadre is in 2020. In other words, the petitioner having joined as Junior DEO with the regularization of services w.e.f. 30th June, 2011 is definitely to be unfairly treated, if held not to have been encadred as per the Rules and therefore, the claim of opposite party Nos. 1 & 2 about such encadrement of 2020 to govern the seniority among W.P.(C) No.29172 of 2020 Page 27 of 29 the Junior DEOs with references to Annexures A/1 and B/1 cannot be justified.
20. That apart, the opinion of the Government Departments in absence of any statutory rules or Executive instructions is not worth acceptance as held time and again and reiterated by the Apex Court in Shiba Shankar Mohapatra and Pimpri Chinchwad New Township Development Authority (supra). In the present case, no any Executive instruction has ever been issued but the inter se seniority is being determined on the strength of the opinion of the GA and Law Departments. Any such opinion of a Government Department cannot be conferred the status of a statutory rule or Executive instruction as further held in the decisions referred to herein above. So, therefore, the inevitable conclusion is that the impugned decision vis-à-vis the seniority of Jr. DEOs shall have to be set at naught being contrary to the settled position of law.
21. Hence, it is ordered.
22. In the result, the writ petition stands allowed. As a necessary corollary, the impugned final gradation list as per Annexure-3 is hereby set aside with a direction W.P.(C) No.29172 of 2020 Page 28 of 29 to opposite party Nos. 1 and 2 to align it in the lines of the provisional gradation list as at Annexure-2 assigning the seniority of the petitioner as Jr. DEO placing him above opposite party Nos. 3 to 18.
(R.K. Pattanaik) Judge Kabita/Tudu Signature Not Verified Digitally Signed Signed by: THAKURDAS TUDU Designation: Sr. Steno Reason: Authentication Location: OHC,CTC Date: 10-Jun-2025 16:17:40 W.P.(C) No.29172 of 2020 Page 29 of 29