Saroj Kumar Mishra Vs. State of Orissa Represented Through Secretary, Works Department and ors. - Court Judgment

I.M. Quddusi, J.

1. This writ application has been filed against the judgement and order dated 17.1.2005 passed by the Orissa Administrative Tribunal, Cuttack Bench, Cuttack in O.A. No. 20 (C) of 2005 dismissing the same at the stage of admission.

2. The brief facts of the case are that the petitioner belongs to the general category whereas opposite parties 3 to 9 belong to the reserved category. They were all initially appointed as Assistant Engineer which is a class-ll post. The petitioner was appointed as Assistant Engineer in the year 1982 and Opp. Parties 3 to 9 in the year 1984. The next promotional post is the Assistant Executive Engineer which is a class-l post in the lowest rung of the cadre. The promotion to the post of Assistant Executive Engineer is governed by Orissa Reservation of Vacancies in posts and Services (for Scheduled Caste and Scheduled Tribe) Act, 1975 according to which the promotion to class-l post in the lowest rung is governed by the Act meaning thereby that the reservation clause would be applicable to the post of Assistant Executive Engineer. Further it has been provided that the promotion to the post of Executive Engineer is given on the basis of seniority in the lower rank class-l post to which promotion is given on the basis of reservation roster, but the principle of catch up could be applicable meaning thereby that if promotion is made in respect of a candidate from reserved category to the post of Assistant Executive Engineer and subsequently a candidate from General category who was senior to the candidate from reserved category is promoted as Assistant Executive Engineer, he will regain his seniority after his promotion to the post of assistant Executive Engineer. There is no dispute that the Opposite Parties .3 to 9 were promoted as Assistant Executive Engineer in the year, 1999 and the petitioner was so promoted subsequently. However, under the above mentioned Rule 9, he had to regain his seniority over Opp. Parties 3 to 9. Further, the petitioner was promoted as Executive Engineer on 15.4.2000 whereas the Opp. Parties 3 to 9 were promoted to that post later, i.e., on 19.7.2001. But after the 85th amendment to the Constitution of India, the Govt. of India issued a circular to the State Govt. and the State Govt. thereafter passed a resolution due to which inter se seniority between the petitioner and Opp. Parties 3 to 9 is to be re-fixed.

3. In the counter affidavit filed by Opp. Party No. 1 State of Orissa, it has been averred that vide resolution dated 20.3.2002 issued by State of Orissa it has been provided that Govt. servants belonging to S.C./S.T. category shall retain their seniority in the case of promotion by virtue of rules of reservation but it appears from perusal of Para-19 of the counter-affidavit filed on behalf of the State that inter se seniority position of the petitioner and Opp. Parties 3 to 9 has not been fixed so far on the basis of the resolution dated 20.3.2002. However, vide letter dated 6.12.2004 Opp. Party No.1 decided to hold D.P.C. to consider promotion of Opp. Parties 3 to 9 along with general category Executive Engineers to the rank of Superintending Engineer level-II and asked the Deputy Secretary to the Govt. of Orissa in G.A. (S.E.) Department to send CCRs of those officers where after the dispute in question has arisen.

4. It is a well settled principle that no promotion can be considered without settlement of the seniority position of the officers who are likely to be considered in the D.P.C. Therefore, it is necessary to peruse Paragraph-19 of the counter affidavit filed on behalf of the State which is quoted as under :

That it is humbly submitted that the Opp. Party No.1 is well aware that reservation is not applicable for filling up post of Executive Engineer and posts above Executive Engineer. But the inter se seniority position in the rank of Executive Engineer has to be fixed on the basis of resolution dated 20.3.2002 which has been issued keeping in view the 85th amendment of the Constitution. The Opp. Parties 3 to 9 being senior to the petitioner in the rank of Assistant Executive Engineer are eligible to be placed above the petitioner in the rank of Executive Engineer and accordingly to be considered for promotion to the rank of S.E. Level-ll along with other eligible candidates on the basis of the placements given to them keeping in view the 85th amendment of the Constitution.

5. A perusal of the above quoted contents of paragraph-19 of the aforesaid counter affidavit shows that inter se seniority position of the officers in the rank of Executive Engineer has not been settled so far on the basis of resolution dated 20.3.2002 Therefore, in our opinion it would not be proper at this stage to hold D.P.C. and consider the promotion of the petitioner or Opp. Parties 3 to 9 without finalizing the inter se seniority position of these officers. It goes without saying that the general rule of finalisation of seniority is to be followed, i.e., first of all a tentative list is to be circulated inviting objections to the same and thereafter only final list is to be circulated.

6. The Hon'ble Apex Court in the case of Indra Sawhney v. Union of India reported in : AIR1993SC477 laid down that no reservation can be made in the promotional posts. But thereafter 85th amendment in the Constitution came into force w.e.f. 17.6.1995 amending Article 16(4)(A) which is reproduced as under :

(4A) Nothing in this article shall prevent the State from making any provision for reservation in matters of promotion, with consequential seniority, to any class or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which in the opinion of the State are not adequately represented in the services under the State.

7. In view of the above mentioned facts and circumstances, the writ application is allowed in part. The impugned order and judgment dated 17.1.2005 passed by the Orissa Administrative Tribunal, Cuttack Bench, Cuttack is quashed. Opp. Party No. 1 is directed to determine the inter se seniority position of the officers holding the post of Executive Engineer and thereafter only consider the promotion of the eligible candidates to the post of Superintending Engineer Level-II in accordance with law. They shall also consider whether the resolution dated 20.3.2002 would have retrospective or prospective effect as this aspect has not been considered by this Court since it was not an issue before us.

Pradip Mohanty, J.

8. I agree.