ORISSA HIGH COURT: CUTTACK WRIT PETITION (CIVIL) No.21449 of 2011 In the matter of an application under Article 226 and 227 of the Constitution of India. ---------- Jatindra Prasad Das ……… Petitioner -versus- State of Orissa & others ……… Opp.Parties _______________ For petitioner : M/s.Bijan Ray & Yashobanta Das, Sr. Counsel along with Sri B.Mohanty, D.Chhotray, D.R.Das, S.Mohanty & B.Moharana For opp.parties : Mr. Ashok Mohanty, Advocate General (for O.Ps.1 & 2) M/s.Ashok Kumar Parija, Sanjit Mohanty, Senior Counsel along with Sri S.P.Sarangi, P.K.Dash, R.K.Tripathy, B.C.Mohanty, P.P.Mohanty, D.K.Das, A.K.Kanungo, L.Swain, A.Pattnaik, and B.R.Sarangi (for O.P.3) M/s. J.Patnaik Sr. Counsel along with Sri B.Mohanty, H.M.Dhal, T.K.Pattnaik, A.Pattnaik, R.P.Ray, Smt.S.Pattnaik, B.S.Rayaguru, and M.S.Rizbi (for O.P.4) P R E S E N T : THE HONOURABLE THE CHIEF JUSTICE SHRI V.GOPALA GOWDA A N D THE HONOURABLE SHRI JUSTICE H.S.BHALLA Date of hearing : 27.10.2011 & Date of judgment : 15.11.2011 H.S.Bhalla, J. Before adverting to the facts of the present writ petition, we would like to observe that the plight of the petitioner is akin to the passengers, who have been forced to board a ship, which is surrounded by stormy winds, having a ray of hope to reach its destination safely and in order to dispel those stormy winds, the writ petitioner is claiming seniority over and above the opposite parties no. 3 and 4, which has been denied by the decision of the Full Court on administrative side, by knocking at the door of this Court through the instant petition filed on judicial side. 2. The facts required to be noticed for disposal of this writ petition are that the petitioner submitted a representation on 13.11.2009 praying for fixation of his seniority over the opposite parties 3 and 4 with a consequential prayer to treat the period of his service as Additional District Judge, Fast Track Court as continuity of service in the promoted cadre of Orissa Superior Judicial Service (Senior Branch). The representation of the petitioner was rejected by the Full Court of the High Court of Orissa and the letter dated 8.8.2011 was communicated to the petitioner denying his due promotion and seniority vis-à-vis opposite parties 3 and 4. The impugned letter dated 8.8.2011 runs as under: “With reference to your letter no. 2215 dated 13.11.2009 on the above subject, I am directed to say that on careful consideration of the matter the Court are pleased to reject the representation dtd.13.11.2009 of Shri J.P.Das, Ex-District Judge, Khurda at present Registrar General, Orissa High Court, Cuttack. Shri Das be informed accordingly.” 3. As per the case of the petitioner, the letter in question and the decision of the Full Court is directly contrary to the direction of the apex 2 Court rendered in the case of Brij Mohanlal v. Union of India and others, AIR 2002 S.C. 2096. He has further pointed out that the direction issued by the apex Court in the aforesaid case is binding on the High Court in terms of Article 141 of the Constitution of India. The petitioner has categorically pleaded that his initial appointment as Additional District Judge, Fast Track Court having been made by following statutory procedure prescribed under the Orissa Superior Judicial Service Rules, 1963, hereinafter to be referred to as “Rules, 1963”, in short and the Orissa Judicial Service (Special Scheme) Rules, 2001, hereinafter to be referred to as “Scheme Rules, 2001”, in short, and the petitioner having continued in the said post on promotion uninterruptedly till regularization in accordance with the prescribed law, the period of such service shall have to be construed as regular service under the law and has to be taken into account for considering his seniority and as such seniority under the law has to be counted from the date of his initial appointment and not from the date of his confirmation as per the ratio laid down by the Constitution Bench of the apex Court in the case of the Direct Recruit Class-II Engineering Officers’ Association and others v. State of Maharastra and others, AIR 1990 S.C. 1607. It was further pleaded that the petitioner’s initial appointment as Addl. District Judge (Fast Track) in the cadre of Superior Judicial Service (Senior Branch) being in pursuance of a lawful recruitment process statutorily prescribed under the Rules and 2001 Scheme and the petitioner having continued in the said post uninterruptedly till regular absorption, the period of his service in such 3 higher cadre cannot be ignored while considering his seniority under the law and the opposite parties 3 and 4 cannot be construed as seniors to the petitioner as they were not born in the cadre of Orissa Superior Judicial Service (Senior Branch) at the time of petitioner’s initial appointment as Additional District Judge (Fast Track Court). It was finally pleaded that the petitioner having been denied seniority over and above the opposite parties 3 and 4, the petitioner had no other option but to file this writ petition invoking the jurisdiction of this Court with a direction for quashing Annexures-2 and 10 and to place the petitioner as senior above the opposite parties 3 and 4 in the gradation list and the petitioner has also prayed necessary Super Time Scale accordingly. 4. On the other hand, the writ petition was opposed by the opposite parties and they opted to file separate counter affidavits. Opposite party no.1 has pointed out that in pursuance of 11th Finance Commission Award to set up Fast Track Courts to regulate the appointments therein, the Government of Orissa in Home Department published a notification on 7.4.2001 notifying the Scheme Rules, 2001. The said Rules came into force from the date of its publication in the Orisssa Gazette, i.e., with effect from 10.2.2001 and by establishment of Fast Track Court, there was no increase or addition in the cadre strength of O.S.J.S (Senior Branch). It is further pleaded that appointment was made on ad hoc and purely temporary basis for implementation of the scheme. It is also pleaded that the petitioner’s appointment under 4 Annexure-3 was not in accordance with Rules, 1963 and when the petitioner was appointed as Additional District Judge (Fast Track Court), there was no cadre post available in the Orissa Superior Judicial Service to be filled up by way of promotion and by denying most of the assertions raised in the writ petition, opposite party no.1 finally prayed for dismissal of the same. 5. Opposite party no.2 categorically pleaded that rejection of the representation of the petitioner under Annexure-1 is legal and justified and is in consonance with the established canons of service jurisprudence. It is further categorically pleaded that the law laid down in the case of Brij Mohanlal (supra) cannot ipso facto entitle the petitioner to claim seniority. It is further pointed out that on 1.10.1993 there was an existing vacancy in the cadre of O.S.J.S.(S.B.) to be filled up by direct recruitment, but on account of retirement of Sri P.B.Patnaik there was an anticipated vacancy and taking into these two vacancies, the Full Court of this Court in its deliberations dated 29.9.1999 decided to fill up these two vacancies by direct recruitment and the opposite parties 3 and 4 were recruited and joined the cadre on 3.2.2003 and 7.2.2003 respectively. This opposite party no.2 has also taken similar stand as pleaded by opposite party no.1 in its counter denying most of the assertions raised in the petition and finally prayed for dismissal of the writ petition. 6. Opposite parties 3 and 4 have filed separate counter affidavit but in a similar fashion and they both have categorically pleaded that they 5 were appointed under Rule 8 of the Rules, 1963 by direct recruitment as Additional District & Sessions Judge and they were allowed ad-hoc promotion on regular basis under Rules, 1963 and selection grade was also conferred on them in the year 2008 whereas the selection grade was released to the petitioner with effect from 22.10.2009 vide notification dated 29.10.2009 (Annexure-11) and the petitioner did not challenge either the seniority shown in the gradation list of O.S.J.S (Senior Branch) or the conferment of the selection grade to the answering opposite parties. They have opposed the petition by pleading in their written reply categorically that the contention of the petitioner is misconceived and cannot be sustained inasmuch as the opposite parties 3 and 4 have been appointed in the cadre of O.S.J.S (Senior Branch) against the sanctioned posts whereas the petitioner was appointed as Additional District & Sessions Judge in Fast Track Court under the Scheme Rules, 2001. They have further pointed out that the claim of the petitioner for getting his continuity of service with effect from 26.4.2002 and seniority over them is not tenable and his representation has rightly been rejected. They have further pointed out that the petitioner was appointed as Additional District & Sessions Judge in Fast Track Courts in conformity with Rules 3, 4 and 5 of the Scheme Rules, 2001 and the alleged ad-hoc promotion is not under the cadre strength under Rule 4(2) of the Rules, 1963 and not in accordance with the provisions of the Rules, 1963. Therefore, his ad-hoc promotion under the Scheme Rules, 2001 cannot be treated as promotion to the cadre of O.S.J.S (Senior Branch) under Rule 9 of the Rules, 1963. 6 The petitioner was given ad hoc promotion under the Scheme Rules, 2001 with the object as stated in the Rules and the service rendered by the petitioner in the Fast Track Courts being for a short duration, neither can be treated as service in O.S.J.S (Senior Branch) nor can be characterized as uninterrupted service precisely for the reason that the service rendered by the petitioner in the Fast Track Court was not an appointment in the cadre of O.S.J.S (Senior Branch). By denying other assertions raised in the writ petition, both the opposite parties have finally prayed for dismissal of the writ petition. 7. We have heard learned Senior Counsel Mr.Bijan Ray along with Mr.Y.Das appearing for the petitioner, Mr.Sanjit Mohanty for opp.party no.3, Mr.Jagannath Patnaik for opp.party no.4, and Mr.Ashok Mohanty, learned Advocate General appearing on behalf of opp.parties no.1 and 2 at length and also have gone through the entire record produced before us meticulously. 8. The moot question that emerges for consideration before this Court is as to whether the service rendered by the petitioner in Fast Track Court as Additional District Judge is to be taken into account while fixing his seniority after regularization of his service in accordance with the Rules in the parent cadre and whether the decision taken by the Full Court of this Court is liable to be set aside and if so, its effect. 9. The record clearly spells out that a Committee was constituted on 23.12.2009 by the Full Court in order to consider the representation of 7 the petitioner along with the representation of other officers and vide report dated 3.3.2011 the Committee rejected the representation of the petitioner by way of majority whereas one member of the said Committee gave his dissenting view. In the Full Court meeting held on 2.8.2011, majority members of the Full Court accepted the report of the Committee constituted for the purpose and thereafter, the impugned letter rejecting the representation of the petitioner, reproduced above, was communicated to the petitioner. In order to effectively decide the matter in issue, it is necessary to reproduce the relevant portion of the report of the Committee, which runs as under : “ Considered the representation of Shri J.P.Das, Registrar General of the Court. Shri Das claims seniority over and above Shri D.Dash and Shri S.Pujhari as he was appointed as Ad hoc Addl.Sessions Judge prior to them. Shri Dash and Shri Pujhari were appointed in regular cadre vacancy of 44 against the available direct recruit quota of 2 (11 being the total quota). When Shri Dash and Shri Pujhari were appointed, no quota to the promotees was available either in the cadre or in the ex-cadre (44+36). So no substantive vacancy was available for being filled up from the promotion quota. When Shri Das was not born in the cadre of substantive vacancy of District Judge (which includes cadre + ex-cadre) and also even no vacancy was available to absorb him in the cadre then, his claim for seniority in the cadre by no stretch of imagination be allowed. (1990 Supreme Court Constitution Bench decision on Direct Recruit has settled the law in this regard). The period of service rendered in F.T.Court as Ad hoc Addl. Sessions Judge cannot be taken into consideration as on earlier occasions also the Full Court considered the same and refused to take the same into consideration. (1) While giving confirmation, the length of service in substantive cadre is considered and not the period of service rendered in F.T.Court as Ad hoc Addl. Sessions Judge. 8 (Full Court Resolution dated 17.1.2009 with the Committee Report) (2) While giving Selection Grade, period of service rendered in F.T. Court as Ad hoc Addl. Sessions Judge is not taken into consideration for calculation of the length of service of 5 years. (3) Shri B.C.Rath was given Selection Grade when he completed 5 years in substantive post (Resolution of the Full Court dated 30.7.2010). (4) Shri J.P.Das and other Officers were granted Selection Grade by Full Court only after their completing 5 years in the substantive cadre. No grievance was made in not taken into consideration the period of service rendered in F.T.Court as Ad hoc Addl. Sessions Judge. (5) The Committee also rejected the representation of Shri G.P.Sahu today on such analogy. When Officers appointed in the junior cadre are promoted simultaneously on their promotion, they maintain the inter se seniority in the junior cadre. The case of Shri G.P.Sahu and Shri G.S.Panigrahi was considered for promotion along with their batch-mates, who were junior to them. But they were not found suitable for regular vacancy and were appointed against Ad hoc vacancy available in the F.T. As they were not promoted to the regular cadre even though they were appointed as Ad hoc Addl. Sessions Judge, inter se seniority in the junior cadre was not given to them. The aforesaid being the prudent for the Full Court and also the settled position of law, in case of Direct Recruit vis-à- vis Promotee, the representation of Shri J.P.Das deserves to be rejected.” 10. It is admitted case of both parties that petitioner and opposite parties 3 and 4 were working in the Judicial Service of the Orissa State. The petitioner was promoted vide notification dated 5th January, 2002 and posted as Addl. Sessions Judge in the Fast Track Court, vide another notification dated 11.4.2002 the petitioner was transferred vice Sri S.K.Patnaik to the Additional District Judge Court at Bargarh. The 9 record further spells out that the promotion of the petitioner had been done after following a due and proper procedure as applicable for promotion to the Superior Judicial Service. The petitioner continued to officiate as Additional District Judge (Fast Track) till he was regularized and substantively appointed on 15.12.2003. The opposite parties 3 and 4 were appointed to the Senior Branch of the Orissa Superior Judicial Service by direct recruitment vide notification dated 13.01.2003 and 22.01.2003. It is further admitted case that the seniority in the service is to be determined under Rule 17 of the Rules, 1963, which clearly provides that in case a promotee officer has continuously officiated on a posts from a date prior to the appointment of a direct recruit and if he is subsequently appointed substantively in the service without reversion to his parent service, he would take seniority in the cadre over such direct recruits. In the present case the petitioner has been officiating on promotion against the post of Addl. District Judge (Fast Track) prior to the direct recruits and having been substantively appointed without any reversion to his parent cadre, would be entitled to seniority over the direct recruits appointed later. This position is further fortified by the directions of the apex Court in Brij Mohanlal (supra), wherein direction contained at paragraph 14 specifically stated that the service rendered in Fast Track Court will be deemed to be service rendered in the parent cadre and in case an officer is promoted to higher grade in parent cadre during his tenure in Fast Track Courts, the service rendered in Fast Track Court would be counted as service in such higher grade and the petitioner 10 is thus entitled to count his service in the Fast Track Court towards his seniority in the Orissa Superior Judicial Service (Senior Branch). To our mind the High Court has wrongly interpreted the claim of the petitioner. The petitioner is claiming his seniority on the strength of officiating service prior to substantive appointment and therefore, the date of substantive appointment cannot be made a ground to ignore his claim. Moreover, there can be no estoppel against statutes and the Statutory Provisions and therefore, the said statutory provisions cannot be ignored on the grounds of an earlier administrative decision or precedent. The stand taken by majority of judges is contrary to the statutory provisions of the Rules, 1963 and 2007 and also contrary to the law laid down by the apex Court in State of Bihar and others v. Project Uchcha Vidya, Sikshak Sangh and others, (2006) 2 SCC 545, in which it was laid down as under: “We do not find any merit in the contention raised by the learned counsel appearing on behalf of the respondents that the principle of equitable estoppel would apply against the State of Bihar. It is now well known, the rule of estoppels has no application where contention as regards a constitutional provision or a statute is raised. X x x x “ The aforesaid view also finds support from the decision of the apex court in Air India v. Nergesh Meerza and others, AIR 1981 Supreme Court, 1829, wherein the Supreme Court held as under: “x x x It is well settled that there can be no estoppel against a statute much less against constitutional provisions. X x x “ 11. The selection grade when it became due to the petitioner would not debar him from claiming seniority to which he is legally entitled 11 to. The grounds taken for denying him seniority by the Committee constituted for the purpose are erroneous as two wrongs would not make a right. In respect of fixation of seniority of an officer, it is settled law that it is the continuous length of service of such officer that would govern seniority on the post and the officiating service has to be counted. The case of Brij Mohanlal (supra) is fully applicable to the facts of the case in hand as per the direction contained at paragraph no.14 issued by the apex Court, which runs as under: “14. No right will be conferred on Judicial Officers in service for claiming any regular promotion on the basis of his/ her appointment on ad-hoc basis under the Scheme. The service rendered in Fast Track Courts will be deemed as service rendered in the parent cadre. In case any Judicial Officer is promoted to higher grade in the parent cadre during his tenure in Fast Track Courts, the service rendered in Fast Track Courts will be deemed to be service in such higher grade.” 12. On perusal of the records, it reveals that the petitioner in his representation under Annexure-1 has clearly pointed out that his case is squarely covered by the decision in Brij Mohanlal (supra), but for the reasons best known to the Committee, they have not assigned any reason as to why the said case is not applicable to the case of the petitioner. 13. At this stage we would like to examine the case of the petitioner and opposite parties 3 and 4 from a different angle. As per the case of the opposite parties 3 and 4 in view of Rule 7 of the 2001 Scheme, the petitioner cannot claim regular promotion in the regular cadre on the basis of his appointment made under the 2001 Scheme. But the Rules framed under the 2001 Scheme are meant for special purposes 12 and cannot over-ride the provisions contained in Rule 17 of Rules, 1963. It is settled law that if the appointee continues in the post uninterruptedly till regularization of service in accordance with the Rules, the period of officiating service shall be counted as per the law laid down by the apex Court in the Brij Mohanlal’s case referred to supra. If the incumbent is appointed as is in the case of the petitioner to a post, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation, meaning thereby where initial appointment is only ad-hoc and the person continued and promoted to a higher grade in the parent cadre, then the service rendered by him on ad-hoc basis is required to be counted for the purpose of his seniority. In the instant case, the petitioner was promoted to the post of Addl. District Judge (Fast Track) on 26.4.2002 and continued uninterruptedly till his appointment in the parent cadre and as such, the period of his service in the Fast Track Courts shall be counted for reckoning his seniority. In Shri O.P. Singla and another v. Union of India and others, reported in 1984(4) S.C.C., 450, a Bench of three Judges of the apex Court has held that seniority of direct recruits and promotees, if appointed under Rules, has to be determined on the basis of dates from which the promotees have been officiating continuously either in the temporary post or against a substantive vacancies. The relevant portion of the said judgment is quoted below: “xx x x Promotees who are appointed to the Service under either of these two Rules must be considered as belonging to the same class as direct recruits appointed under Rule 5(2). 13 They perform similar functions, discharge identical duties and bear the same responsibilities as direct recruits. They are appointed on a regular basis to posts in the Service in the same manner as direct recruits are appointed, the only distinction being that whereas the latter are appointed on the recommendation of the High Court, promotees are appointed in consultation with the High Court. Therefore, no distinction can be made between direct recruits on one hand and promotees appointed to the Service on the other, in the matter of their placement in the seniority list. Exclusion from the seniority list of those promotees who are appointed to posts in the Service, whether such appointment is to temporary posts or to substantive vacancies in a temporary capacity, will amount to a violation of the equality rule since, thereby, persons who are situated similarly shall have been treated dissimilarly in a matter which constitutes an important facet of their career.” The aforesaid view is also fortified by the decision of the apex Court in Direct Recruit Class-II Engineering Officers’ Association and others v. State of Maharashtra and others, AIR 1990 SC 1607, the relevant portion of which is quoted below: “If the initial appointment is not made by following the procedure laid down by the rules but the appointee continues in the post uninterruptedly till the regularization of his service in accordance with rules, the said period of officiating service will be counted.” 14. Though the promotion of the petitioner was ad-hoc, the petitioner’s initial appointment as Additional District Judge (Fast Track), Bargarh was after the High Court recommended the petitioner’s suitability for promotion to the cadre of O.S.J.S (Senior Branch) by following statutory provisions of the Rules which was notified by the Government under the orders of the Governor of Orissa (Annexure-3 & 4), and after having rendered uninterrupted service, such ad-hoc promotion was regularized by the Home Department vide notification No. 54392/ HS dated 15.12.2003 under the provisions of the Rules, 1963 and