Case: DEBABRATA MOHANTY Vs. RABINDRA KUMAR MISHRA &amp; ORS

2. The undisputed facts in the present case are that the appellant herein was initially appointed on 16.5.1994 as a Stipendiary Engineer in the services of the State Government. He was thereafter appointed as an ad-hoc Assistant Engineer on 26.6.2001. Respondent No.1– Rabindra Kumar Mishra was initially appointed as a regular Junior Engineer on 18.11.1982 and was thereafter promoted as an Assistant Engineer (against the promotional quota) with effect from 16.6.2005. The respondent was, by Notification dated 30.7.2008, given notional promotion as an Assistant Engineer with effect from 18.7.2003, which benefit was also given to other similarly situated persons3. Under the provisions of the Orissa Service of Engineers (Validation of Appointment) Act, 2002, (hereinafter referred to as the ?Validation Act of 2002?), which was passed by the Orissa Legislative Assembly on 24.12.2002 and was published in the official Gazette on 15.2.2003, the appointment of Stipendiary Engineers got regularized with effect from the date of their promotion to the post of Assistant Engineers, including ad-hoc Assistant Engineers. The appellant, though appointed as a Stipendiary Engineer in the year 1994 was given appointment as ad-hoc Assistant Engineer on 26.6.2001, and as such, by virtue of Section 3 of the Validation Act of 2002, the appellant was given the benefit of seniority with effect from 26.6.2001, i.e. the date of his appointment as ad-hoc Assistant Engineer, and not from the date of regularization under the Validation Act of 2002, i.e., with effect from 15.2.20034. The respondent - Rabindra Kumar Mishra, had challenged the seniority given to the appellant herein with effect from 26.6.2001, which according to him should have been from 15.2.2003. The Orissa State Administrative Tribunal allowed the Original Application filed by the respondent, which order was challenged, both by the State Government and the appellant herein before the Orissa High Court by way of writ petitions, which were initially allowed, but subsequently in Review Petition No.130/2017, the relief granted in the writ petition was modified by order dated 9.8.2013 to the extent that the appellant herein was to be treated as junior to the appellant, after holding that his seniority was to be considered with effect from 15.2.2003 (the date of coming into force of Validation Act of 2002) and not from 26.6.2001 (the date on which the appellant was initially appointed as ad-hoc Assistant Engineer). Challenging the same, this appeal has been preferred by the appellant.

Reasoning: 8. This Court has already upheld the proposition (B) of the direct recruitment and has found that the seniority to the Stipendiary Engineers be given with effect from the date they were appointed as ad-hoc Assistant Engineers and would be placed below the promotee Assistant Engineers of that year. Hence in the case of the appellant herein (who would also be covered by Proposition B), the seniority to him has been given of the year 2001, as he was appointed as ad-hoc Assistant Engineer on 26.6.2001 and has been placed below the promoted Assistant Engineers of 20019. Respondent No.1 was admittedly appointed as an Assistant Engineer in the year 2005, but was given seniority with effect from 18.7.2003. As such, at best he could be treated to be promoted as Assistant Engineer in the year 2003. The appellant having been appointed prior to the year 2003, i.e., in the year 2001, would be entitled to the benefit of sub-Sections (2) & (3) of Section 3 of the Validation Act of 2002 and would thus be senior to the Respondent No.1. The view taken by the High Court while deciding the review petition would thus not be the correct view, as the said order had been passed on wrong interpretation of the judgment of this Court in the case of Amarendra Kumar Mohapatra (supra)There is no dispute about the said provision under Rule. However, the appellant would be entitled to the benefit of his ad-hoc promotion given in the year 2001 as per provision made in the Validation Act of 2002, whereas the notional promotion as an Assistant Engineer given to Respondent No.1 was in the year 2003. Since Sub-section (1) of Section 3 of the Validation Act of 2002 clearly provides ?Notwithstanding anything contained in the Recruitment Rules,…...?, as such the provisions of the Validation Act of 2002 would override the provisions of the Rules 1941. Thus, we are of the considered opinion that such submission as advanced by Shri Debasis Mishra, learned counsel appearing for Respondent No.1 does not hold force.