HIGH COURT OF ORISSA CUTTACK W.P.(C) NOs.6781 & 7359 of 2008, 17375 of 2009 & 1638 of 2010 In the matter of applications under Articles 226 and 227 of the Constitution of India. W.P.(C) No.6781 of 2008 Lagnajit Ray & others ………. Petitioners versus State of Orissa & others ….…. Opp. Parties For Petitioners : Shri R.K. Rath, Sr. Advocate, & Shri B. B. Mohanty, Advocate For Opp.Parties : Shri Ashok Mohanty, Advocate General & Shri J.P.Patnaik, Add.Govt.Advocate (for Opp.Party nos.1 to 3), Shri N.C.Panigrahi & Shri B.Routray, Sr.Advocates, (for Opp.Party nos.4 & 5), Shri S. K. Nayak-I, Sr. Advocate, (for intervenors) W.P.(C) No.7359 of 2008 Rashid Khan & others ………. Petitioners versus State of Orissa & others ……….. Opp.Parties For Petitioners : Shri B. B. Mohanty, Advocate For Opp. Parties : Shri J. P. Patnaik, Add. Govt. Advocate (for Opp.Party nos.1 to 3) W.P.(C) No.17375 of 2009 Pramod Kumar Dash & others ………. Petitioners versus State of Orissa & others ……….. Opp.Parties For Petitioners : Shri Sanjit Mohanty, Sr. Advocate, & Shri B.B. Mohanty, Advocate For Opp.Parties : Shri J.P. Patnaik, Add. Govt. Advocate (for Opp.Party nos.1 to 3) W.P.(C) No.1638 of 2010 Bijaya Kumar Nayak ………. Petitioner versus State of Orissa & others ……….. Opp.Parties For Petitioner : Shri Jaganath Patnaik, Sr. Advocate & Shri B.B. Mohanty, Advocate For Opp.Parties : Shri J.P. Patnaik, Add. Govt. Advocate (for Opp.Party nos.1 to 3) THE HON’BLE SHRI JUSTICE B. P. DAS A N D THE HON’BLE KUMARI JUSTICE SANJU PANDA ----------------------------------------------------------------------------------------------- Date of hearing : 17.12.2010 : Date of judgment : 24.12.2010 B. P. Das, J. The petitioners in this batch of writ petitions challenge the orders passed by the Orissa Administrative Tribunal dated 17.4.2008 in O.A. No.904 (C) of 2008, dated 1.12.2009 in O.A. No.3006 (C) of 2009, dated 21.4.2008 in O.A. No.979(C) of 2008 and dated 9.5.2008 in O.A. No.1097 (C) of 2008, vide Annexure-12, and also the resolution of the General Administration Department of the State Government dated 20.3.2002, vide Annexure-5, and the gradation list of the Orissa Administrative Services, Class-I (Junior Branch) (in short “OAS-I (JB)”) dated 3.3.2008, vide Annexure-7. Since common questions of fact and law are involved in the 2 writ petitions, they were heard together and are being disposed of by this common judgment. 2. The petitioners were appointed to O.A.S-II posts being selected by the Orissa Public Service Commission. Some of them were recruited in 1983 and some others in 1984 and 1987. They were assigned different ranks in the merit lists prepared for their respective batches by the OPSC. In the respective merit list, persons belonging to S.C. & S.T. category, who were appointed as against reserved vacancies, were placed much below in the list than the petitioners. Thus, in terms of the merit list/panel, the petitioners were senior to the appointees belonging to S.C. & S.T. category recruited in the same recruitment year. After rendering service in the post of OAS-II, the petitioners having been found suitable by the D.P.C. were promoted and appointed to the next higher rank, i.e., O.A.S-I (JB) vide Government Notification dated 26.8.2000 (Annexure-2). The petitioners joined the promotional posts and have been continuing as such since then. However, many junior OAS Officers belonging to the SC & ST category recruited along with the petitioners or even in subsequent batches in different recruitment years were also given promotion to the rank of O.A.S.-I (JB) against reserved vacancies in between 1995 and 2000 as per the Orissa Reservation of Vacancies in Posts and Services (for Scheduled Castes and Scheduled Tribes) Act and the Rules, 1975 and 1976 (in short, “O.R.V. Act & Rules”). It is stated by the petitioners that the promotions made both in favour of reserved categories and unreserved categories including the petitioners have not yet been concurred by the OPSC since the principles determining seniority inter se and the gradation list prepared from time to 3 time of the officers in the rank of O.A.S.-II and O.A.S.-I (JB) became the subject-matter of several protracted litigations. However, the roster point promotees belonging to the SC & ST category were given promotion to the rank of O.A.S.-I (JB) against reserved vacancies earlier irrespective of their original seniority below the general category recruits like the petitioners. But the original seniority position in the cadre of O.A.S.-II prepared by the OPSC was retained in the O.A.S.-I (JB) without any changes on the basis of the law laid down by the Hon’ble Apex Court in the case of Union of India & others v. Virpal Singh Chauhan & others; AIR 1996 S.C. 448. Hence, irrespective of getting promotion in subsequent years, the inter se seniority of the petitioners vis-à-vis the S.C. & S.T. roster point promotees in the rank of O.A.S.-I (JB) was maintained in the seniority/disposition list prepared for the rank of O.A.S-I (JB) in the year 2002 and also in the year 2004 as per the panel position prepared by the OPSC for the cadre of O.A.S.-II. The copy of the seniority list dated 16.5.2001-of officers of O.A.S-I (JB) cadre has been filed as Annexure-3. Such seniority list was maintained in view of the ‘Catch Up Rule’ evolved by the Hon’ble Apex Court in the case of Virpal Singh Chauhan (supra), which was also set at rest by the Apex Court in the case of Ajit Singh & others v. The State of Punjab & others, AIR 1999 S. C. 3471 (herein after “Ajit Singh Januja-II”). It is stated that Article 16(4A) was incorporated in the Constitution by way of 77th and 85th Amendment of the Constitution enabling the State to grant accelerated promotion along with consequential seniority to SC & ST reserved category employees. While the validity of such constitutional amendments was pending adjudication before the Hon’ble Apex Court in several writ petitions, the Government of India in 4 the Department of Personnel, Public Grievances and Pension (D.O.P&T) by its Memorandum dated 21.1.2002 under Annexure-4 decided to grant benefit of accelerated promotion along with consequential seniority in favour of roster point promotees belonging to the S.C. & S.T. category employees under the Central Government in accordance with the constitutional amendment. It is alleged that the Government of Orissa without appreciating the justification for grant of additional benefit of accelerated seniority to S.C. & S.T. category promotees working in different cadres of civil services/posts, decided to grant such benefit by mechanically accepting or adopting the D.O.P.T Office Memorandum under Annexure-4 and issued the G.A. Department resolution dated 20.3.2002 granting such benefit of accelerated promotion with consequential seniority to S.C. & S.T. promotees under Annexure-5. 3. It is further stated by the petitioners that the aforesaid G.A. Department resolution dated 20.3.2002 under Annexure-5 was challenged before the Hon’ble Apex Court in W.P.(C) No.453 of 2002 by present petitioner no.5-Srimanta Mishra and some others wherein by order dated 2.9.2002 the Hon’ble Apex Court while directing the writ petition to be heard analogously with W.P.(C) No.61 of 2002 (M.Nagraj & others v. Union of India & others), as an interim measure further directed the State- respondents not to affect the standing seniority of the petitioners during the pendency of the said writ petition. It is not disputed that subsequent to disposal of the writ petition in the case of M. Nagraj and others, W.P.(C) No.453 of 2002 was disposed of by the Hon’ble Supreme Court on 11.3.2010 giving liberty to the petitioners to move the High Court and while the matter 5 stood thus, the State Government in the Revenue Department prepared a provisional gradation list of officers of O.A.S.-I (JB) by taking the very Government Resolution dated 20.3.2002 (Annexure-5) as its basis. By virtue of grant of consequential seniority to the S.C. & S.T. reserved promotees, the provisional gradation list has been recast and placed for circulation on 3.3.2008 changing/unsettling the original seniority position in the cadre to the detriment of the petitioners. The provisional gradation list dated 3.3.2008 has been filed as Annexure-7. The petitioners filed objections to the provisional gradation list challenging the very basis of its preparation and citing the principles decided by the Hon’ble Apex Court in the case of M. Nagaraj & others v. Union of India & others; (2006) 8 SCC 212. While during the pendency of the representations the petitioners apprehended that their objections would be mechanically rejected and promotion to the next higher cadre would be considered by the D.P.C. at short notice, they filed Original Application No.904(C) of 2008 before the Orissa Administrative Tribunal, Cuttack Bench, Cuttack, inter alia for quashing the Government Resolution dated 20.3.2002 under Annexure-5 and the provisional gradation list dated 3.3.2008 under Annexure-7. Vide order under Anneuxre-12, the Tribunal disposed of the Original Application holding the same as premature and directed the State-respondent to dispose of the petitioners’ objections. 4. It is submitted by the learned counsel for the petitioners that the petitioners were placed higher in the merit position in the select list above all the S.C. & S.T. candidates in their respective batches at the time of recruitment to O.A.S.-II and, therefore, they were senior to such S.C. & S.T. category Officers. Though such junior S.C. and S.T. Officers were promoted 6 to O.A.S.-I(JB) in respect of S.C & S.T. reserved vacancies as per the O.R.V. Act and Rules earlier than the petitioners, who were originally senior to them, by virtue of the ‘Catch up principle’ laid down in the case of Virpal Singh Chauhan & others (supra), as affirmed in the case of Ajit Singh Januja-II (supra), which was accepted by the State Government in the resolution dated 2.11.2000, the petitioners’ seniority after their promotion to O.A.S.-I (JB) was restored and accordingly gradation list under Annexure-3 has been prepared and that it being the settled principle, as has been held by the Hon’ble Apex Court in the case of M. Nagaraj (supra) that the Constitution 77th and 85th Amendment of Article 16(4A) merely enables the State to enforce such constitutional provision by making law after satisfying the parameters, such as, the backwardness of S.C. & S.T. employees, inadequacy of their representation in the promotional cadre, to be determined on the basis of quantifiable data and maintenance of administrative efficiency in the service, the State Government without making any law could not have issued the provisional gradation list by recasting the seniority position by giving consequential seniority to the S.C. & S.T. promotees from the date of their promotion. It is submitted that without legislating any law after determining the aforesaid parameters, it is not open to the State to implement the provision of Article 16(4A) merely on the basis of Government Resolution under Annexure-5 which cannot be said to be a law. It is contended on behalf of the petitioners that since the Government Resolution under Annexure-5 on the basis of which the provisional list was issued was challenged before the Tribunal, the Tribunal 7 has gone wrong in disposing of the Original Application holding it to be premature. 5. On behalf of opposite party no.2 representing the State Government a counter affidavit has been filed stating that, as rightly observed by the Administrative Tribunal, the writ petition is premature inasmuch as it was filed challenging the provisional gradation list under Annexure-7 before it reached finality. While admitting that the original seniority of general category candidates was restored in the gradation list of O.A.S.-I (JB) dated 16.5.2001 (Annexure-3) on the basis of the ‘Catch up principle’ laid down by the Hon’ble Apex Court in the case of Virpal Singh Chauhan & others (supra) and Ajit Singh Januja-II (supra) and G.A. Department Resolution No.21260 dated 16.6.2000, it is stated in the counter that after the 85th Constitutional Amendment introducing accelerated promotion along with consequential seniority in favour of S.C. & S.T. employees, the Government Resolution dated 20.3.2002 (Annexure-5) was issued superseding the earlier resolution dated 16.6.2000 and that subsequently the validity of the said Constitutional Amendment having been upheld by the Apex Court in the case of M. Nagaraj (supra), the Government Resolution under Annexure-5 cannot be faulted. It is stated that there is no necessity of bringing out any law with regard to grant of accelerated seniority and determination of inter se seniority of general caste promotees vis-à-vis S.C. & S.T. roster point promotees inasmuch as the parameters or compelling reasons, as laid down in M. Nagaraj (supra), are necessary to be satisfied for future cases of promotion and it has no retrospective effect. It is stated that the principle of inter se seniority of the 8 Officers of O.A.S.-I (JB) is available in the O.A.S.-I (JB) Recruitment and Appointment by Promotion Rules, 1977 and the provisional gradation list has been prepared in accordance with Rule 10 (2) of the said Rules, as the State Government has not embarked upon any policy for S.C. & S.T category employees. It is also stated that the persons whose names find place in the provisional gradation list are necessary parties to the writ petition and they having not been arrayed as parties, the writ petition suffers from the defect of non-joinder of necessary parties. 6. Opposite party nos. 4 and 5 have filed a counter affidavit contending that the provisional gradation list has been prepared in accordance with Rules 10 & 11 of the O.A.S.-I (JB) Recruitment and Appointment by Promotion Rules,1977 and the O.R.V. Act, 1975 which are State enactments. It is also stated that there is nothing wrong on the part of the Government in issuing resolution dated 20.3.2002 (Annexure-5), as it set the matter right by withdrawing the earlier faulty resolution dated 16.6.2000 issued by the Government. It is stated that the provisional gradation list is prepared on the basis of the aforesaid Rules and not on the basis of the G.A. Department Resolution under Annexure-5 or the Constitution 85th Amendment of Article 16 (4A). 7. While issuing notice to the opposite parties on 13.5.2008 this Court passed the following interim order : “Till next listing, no action shall be taken on the basis of the provisional gradation list against which objections have already been invited, without leave of this Court. However, this will not debar the opposite parties to dispose of the objections. But 9 the same shall be subject to further orders of this Court. If the gradation list is finalized, the same shall be produced before this Court prior to it is given effect to.” During the course of hearing it was submitted by the learned State counsel that in view of the interim order, as noted above, the provisional gradation list has been finalized without any change and objections filed by the petitioners and others to the provisional gradation list have been rejected. As per direction of the Court dated 4.10.2010 the learned State counsel has produced the concerned records which show that the objections filed by the petitioners have been rejected and order has been passed to finalize the provisional gradation list dated 3.3.2008 without any change therein. 8. It may be noted that the reason for which the impugned provisional gradation list (Annexure-7) has been prepared is borne out from the note-sheet of the Government in Revenue and Disaster Management Department File No.Con.R-6/08, copy whereof obtained by the petitioners under the R.T.I. Act has been filed as Annexure-10. It is revealed from Annexure-10 that note was put up to prepare a gradation list of Officers of OAS-I (JB), as on 1.1.2008, for the purpose of conducting D.P.C. for promotion of such officers to the next higher cadre of O.A.S.-I(SB) as the earlier gradation list of Officers of O.A.S.-I (JB) dated 16.5.2001 (Annexure- 3) is stated to have been locked up in litigation. Accordingly, the provisional gradation list (Annexure-7) was prepared and placed for the approval of the Commissioner-cum-Secretary, Revenue Department. It appears further that 10 on 20.2.2008, the Commissioner-cum-Secretary, i.e., opposite party no.2, stated in the note-sheet to the following effect : “The promote SC/ST officers within Class-I are to be arranged in the seniority in compliance to Apex Court Nagraj Judgment i.e., based on 85th Constitutional Amendment, without ‘sliding down’. Please confirm whether it has been done accordingly.” Thereafter, the query was answered by the Additional Secretary on 29.2.2008 stating that the provisional gradation list has been prepared without adhering to ‘catch up principle’ restoring the original position of general category officers after their promotion to O.A.S.-I(JB) and that the S.C. and S.T. Officers are arranged as per their position at the time of promotion without any change. Accordingly, the file was put up before opposite party no.2 for approval of the draft gradation list. Opposite party no.2, thereafter, approved the draft provisional gradation list which was issued by office order dated 3.3.2008 vide Annexure-7. 9. It is apparent that the aforesaid provisional gradation list has been prepared giving a go-bye to the ‘catch up principle’ laid down by the Hon’ble Apex Court and following the Constitution 85th Amendment of Article 16 (4A) giving consequential seniority to the S.C. & S.T. O.A.S. Officers, who were, though initially junior to the general caste officers, promoted earlier than them to the next higher cadre of OAS-I(JB) against roster vacancies. So, there is no manner of doubt nor any denial that the seniority position of the petitioners and other general caste officers, which had been restored in the gradation list dated 16.5.2001 of O.A.S.-I(JB) by 11 applying the ‘catch up principle’, has been given a go-bye and their seniority position has been changed in the impugned provisional gradation list. 10. Keeping in view the averments made by the parties in their pleadings and the contentions raised by them, the following issues arise for determination; (i) whether the ‘catch up principle’ evolved by the Hon’ble Apex Court still governs the field after the constitution 85th Amendment and whether the judgment of the Apex Court in the case of M. Nagaraj (supra) that upheld the validity of the constitutional amendment has given a go bye to the ‘catch up rule’ ? (ii) Whether in absence of any law made by the State in exercise of enabling power conferred under Article 16(4) and 16 (4A) after satisfying the necessary parameters laid down in M. Nagaraj (supra), it is open to the State Government to abandon the ‘catch up principle’ by issuing the resolution dated 20.3.2002 (Annexure-5) ? (iii) Whether the impugned provisional gradation list that abandoned the earlier gradation list dated 16.5.2001 has been prepared in pursuance of the provisions of the ORV Act 1975 and/or Rule 10(2) of the O.A.S.(I) Recruitment Rules,1977 ? (iv) Whether the provisional gradation list is legally valid and justified ? (v) Whether the finding arrived at by the Orissa Administrative Tribunal, Cuttack Bench, Cuttack that the Original Application was premature and not maintainable is justified and legally sustainable 12 and whether the writ petition in the present form is maintainable or not ? Issue No.(iii) : 11. It is apposite to consider issue no.(iii) at first. It is seen earlier that the State Government in its counter affidavit admitted that the original seniority of general category officers was restored in the gradation list of O.A.S.-I (JB) dated 16.5.2001 on the basis of the ‘chatch up rule’ laid down by the Hon’ble Apex Court in the case of Virpal Singh and Ajit Singh Januja-II (supra) and G. A. Department Resolution No.21260 dated 16.6.2000. It is also admitted in the counter that in view of the Constitution 85th Amendment introducing accelerated promotion along with consequential seniority in favour of S.C. & S.T. employees, the validity of which was upheld in the case of M. Nagraj (supra), the Government Resolution dated 23.3.2002 (Annexure-5) was issued superseding the earlier resolution dated 16.6.2000. There is no dispute that the impugned provisional gradation list under Annexure-7 has been prepared giving consequential seniority to the S.C. and S.T. roster point promotees by recasting the gradation list dated 16.5.2001 which had been prepared following the ‘catch up rule’. The basis of preparation of such provisional gradation list is said to be the provision in Rule 10(2) of the O.A.S.-I (JB) Recruitment and Appointment by promotion Rule 1977 (in short “1977 Rules”). Similarly, private opposite party nos. 4 and 5 have stated in their counter affidavit that the provisional gradation list has been prepared in accordance with Rules 10 and 11 13 of the 1977 Rules and the provisions of the O.R.V. Act and Rules, 1975 and 1976. Rule 11 of the 1977 Rules provides that notwithstanding anything contained in the Rules, vacancies shall be reserved for promotion in favour of candidates belonging to Scheduled Caste and Scheduled Tribe in accordance with the existing laws in force. In other words, the law that governs reservation of vacancies in posts and services in favour of S.Cs. & S.Ts, i.e., the O.R.V. Act and Rules,1975 and 1976 shall apply in the matter of promotion to O.A.S.- I (JB). Rule 11 of 1977 Rules, however, does not make any provision for inter se seniority in the cadre of O.A.S.-I(JB). Reservation in promotional post under the State Services is available only in respect of Class-I post at the lowest rung as per clause-(c) of the second proviso to sub-section (2) of Section 4 of the O.R.V. Act,1975 and not to any higher Class-I post in the service. With reference to the Orissa Administrative Service, therefore, vacancies are reserved in O.A.S.- I(JB), which is the lowest rung of the Class-I posts, to the extent provided under the O.R.V. Act and Rules. The O.R.V. Act and Rules, however, do not make any provision for determining seniority or inter se seniority of reserved candidates and general candidates in the promotional cadre. Rule 10(1) of the 1977 Rules provides that appointment to the service shall be made in the order in which the names of members of the O.A.S. Class-II appear in the ‘select list’. Rule 10(2) provides that the inter se seniority of officers appointed to the service shall be determined by the order indicated in the select list. Preparation of select list by the Selection Board for the purpose of 14 appointment by promotion to O.A.S.-I(JB) has been provided for in Rule-5 of 1977 Rules which is quoted hereunder : “5. Conditions of eligibility for promotion- (1) The Selection Board shall ordinarily meet at intervals of not less than six months and not more than one year and prepare a list of such members of Orissa Administrative Service, Class-II as are held by them to be suitable for appointment to the service. The number of members of the Orissa Administrative Service, Class-II, included in the list shall not be more than twice the number of vacancies anticipated in the course of a period of twelve months commencing from the date of preparation of the list or ten per cent of the posts available in the cadre, whichever is greater. (2) The Selection Board shall consider for inclusion in the said list the cases of the members of the Orissa Administrative Service, Class-II, in order of seniority, up to a number not more than thrice the number referred to in sub-rule(1) : Provided that the Selection Board shall not consider the case of a member of the Orissa Administrative Service, Class-II unless on the first day of January of the year when it meets, he is substantive in the Orissa Administrative Service, Class-II and has completed not less than six years of service (whether officiating or substantive) in a post of Orissa Administrative Service, Class-II: Provided further that a member of Orissa Administrative Service, Class-II who has already been appointed as “probationer” in the Orissa Administrative Service, Class-I (Junior) or appointed to officiate in the Orissa Administrative Service, Class-I shall not be 15 considered by the Selection Board for their appointment to the Orissa Administrative Service, Class-I (Junior Branch). (3) The Selection for inclusion in the list shall be based on merit and suitability in all respects with due regard to seniority. (4) The names of the officers included in the list shall be arranged in order of seniority in the Orissa