Debabrata Dash & Anr vs Jatindra Prasad Das & Ors

5. The brief facts leading to the controversy are these: The writ petitioner joined the judicial service in the State of Orissa as Munsiff on probation on 15.07.1981 under the Orissa Judicial Service Rules, 1964. He was promoted to the Junior Branch of the Superior Judicial Service on 19.07.1999. On 05.01.2002, the writ petitioner, who was continuing as a member of Superior Judicial Service (Junior Branch), was appointed, on ad hoc basis, as Additional District Judge in the Fast Track Court. Pursuant to the above order of appointment, on 11.04.2002 writ petitioner was posted as an ad hoc Additional District Judge in the Fast Track Court at Bargarh where he joined on 26.04.2002.

6. On 13.01.2003, the appellants were appointed in the Senior Branch cadre of Orissa Superior Judicial Service by way of direct recruitment under the 1963 Rules. Pursuant to the posting order dated 22.01.2003, they joined as Additional District and Sessions Judges at Cuttack and Behrampur on 03.02.2003 and 07.02.2003 respectively.

8. By a notification dated 15.12.2003, the writ petitioner was allowed to officiate in the Senior Branch of the Superior Judicial Service on regular basis on account of a vacancy that arose due to retirement of an officer of the Senior Branch on 31.07.2003. The writ petitioner was posted on 19.01.2004 as Additional District and Sessions Judge, Bargarh pursuant to the notification dated 15.12.2003 to which post the writ petitioner joined on 03.02.2004.

9. Appellant no. 1 was confirmed in the cadre of Senior Branch, Superior Judicial Service with effect from 03.02.2004 while appellant no. 2 was confirmed with effect from 07.02.2004. The appellants were conferred selection grade with effect from 03.02.2008 and 07.02.2008 respectively.

10. The writ petitioner was substantively appointed in the cadre of District Judge with effect from 17.01.2007 and he was granted selection grade with effect from 22.10.2009.

12. A committee to consider the representation of the writ petitioner was constituted. The committee by majority opined that the writ petitioner’s representation was liable to be rejected. On 02.08.2011 the Full Court of the High Court considered the report of the committee. The representation of the writ petitioner was rejected on 08.08.2011. It was this administrative decision of the High Court that was challenged by the writ petitioner before the High Court on the judicial side.

No. 993/Sri Jatindra Prasad Das, an officer of Orissa Superior Judicial Service (Junior Branch) at present Adviser, Orissa Electricity Regularity Commission Orissa, Bhubaneswar is allowed adhoc promotion to the Senior Branch of the said service in the scale of pay of Rs. 10,650-325-15,850/- with effect from the date he joins as such until further order in pursuance of Rule 3,4 & 5 of Orissa Judicial Service, (Special Scheme) Rules, 2001 for his appointment as adhoc Additional District Judge in the Fast & Track Court established out of 11th Finance Commission Award.”

No. 150/A: On being reverted to the general line, Shri Jatindra Prasad Das, an officer of Orissa Superior Judicial Service (Junior Branch) at present Adviser, Orissa Electricity Regulatory Commission, Bhubaneswar, who has been allowed ad hoc promotion to the Senior Branch of the said service vide Home Department Notification No. 1933 dated 05.1.2002 is transferred and appointed to be the Ad hoc Additional District Judge in the Additional District Judge Court established out of the 11th Finance Commission Award in the Judgeship and Sessions Division of Sambalpur Bargarh Deogarh Jharsuguda with headquarters at Bargarh Vice Shri Susanta Kumar Patnaik transferred on promotion.”

Resolved that all the above named officers are found suitable for promotion to the cadre of O.S.J.S. (Sr. Branch) and accordingly their names be recommended to the State Government for promotion to the cadre of O.S.J.S. (Sr. Branch) for their appointment against the Fast Track Courts on ad-hoc basis.”

The corollary of the above rule is that where the initial appointment is only ad hoc and not according to rules and made as a stop gap arrangement, the officiation in such post cannot be taken into account for considering the seniority. (B) 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 the rules, the period of officiating service will be counted.

(C) When appointments are made from more than one source, it is permissible to fix the ratio for recruitment from the different sources, and if rules are framed in this regard they must ordinarily be followed strictly.

51. We have already indicated above that on 05.01.2002 or 26.04.2002, there was no vacancy in the cadre of Superior Judicial Service (Senior Branch) for being filled up by promotion. Such vacancy in the Senior Branch cadre of the service occurred on 15.12.2003 and from that date the writ petitioner has been given benefit of his service rendered in the Fast Track Court. The administrative decision by the Full Court is in accord with the 1963 Rules, the 2001 Rules and the legal position already indicated above. The view of the Division Bench in the impugned judgment is legally unsustainable. The impugned judgment is liable to be set aside and is set aside.

52. Appeal is allowed, as above, with no order as to costs.