3rd June, 2025 B.P. Routray, J.

1. All the above 10 (ten) writ petitions are involving the same issue of inter-se seniority in the ministerial cadre of Assistant Section Officer (in short, "ASO") in Odisha Secretariat Service. These writ petitions can be broadly divided into two categories. First category consisting of 7 (seven) writ petitions, i.e. W.P.(C) Nos.24191, 24192, 24193, 24194, 26739 and 36496 of 2020 involve the dispute of inter-se seniority among two batch of direct recruits, and Second category comprising 3(three) writ petitions, i.e. W.P.(C) Nos.17311, 29089 and 36444 of 2020 involve dispute of inter-se seniority between the promotees and inductee appointees versus direct recruits.

2. To deal with the first category, the facts described succinctly are that, two advertisements to fill up the posts of ASO were issued in the year 2012-13 and the year 2015-16. Advertisement No.08 dated 6.10.2012 was issued by the Odisha Public Service Commission (in short, 'OPSC') inviting applications to fill up 811 vacancies for the post of ASO through direct recruitment. Since some dispute arose relating to number of reserved posts leading to filing of judicial proceedings, a corrigendum was issued on 21.8.2014 modifying category-wise vacancies and extending the last date of application with stipulation that the candidates, who had already applied, are not W.P.(C) No.37471 of 2020 and batch Page 5 of 68 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: A.R.-Cum-Sr.Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 03-Jun-2025 15:45:15 required to reapply. Subsequently on 14.05.2015, Advertisement No.06 of 2015-16 was issued by the OPSC to conduct a recruitment drive for ST category candidates for 140 vacancies in total and all the posts were reserved for Scheduled Tribe candidates only.

The recruitment process pursuant to Advertisement No.08, dated 6.10.2012 could not be completed due to some unavoidable reasons including filing of judicial proceedings and in the meantime, the recruitment process in respect of Advertisement No.06, dated 14.5.2014 was completed with recommendation of 139 candidates by the OPSC on 22.12.2015. Amongst said recommendees, 136 candidates were issued with appointment order vide Home Department Order No.3148/OSS dated 27.1.2016. Subsequently on 10.9.2016, the OPSC sent the list of 810 select candidates in respect of the vacancies in Advertisement No.08 of 2012-13. Amongst those recommendees, 787 candidates were issued with appointment order on 5.10.2016 vide Home Department Order No.35258/OSS.

3. It is to be mentioned here that prior to 30.9.2008 "Junior Assistant" was the entry level post in the ministerial service cadre in Odisha State Secretariat in terms of the Odisha Secretariat Service (Method of Recruitment and Conditions of Service of Junior Assistants of Departments of Odisha Secretariat) Rules, 1951 (in short, '1951 Rules'). On 30.9.2008, W.P.(C) No.37471 of 2020 and batch Page 6 of 68 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: A.R.-Cum-Sr.Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 03-Jun-2025 15:45:15 the positions of "Junior Assistant" and "Senior Assistant" in Odisha Secretariat Service was merged into one base level cadre and re-designated as Assistant Section Officer (ASO). On 6.4.2010, the Odisha Secretariat Service (Method of Recruitment and Conditions of Service of Assistant Section Officers) Rules, 2010 (in short, "2010 Rules") came into force repealing the earlier 1951 Rules. Again, the Odisha Secretariat Service (Method of Recruitment and Conditions of Service) Rules, 2016 (in short, "2016 Rules") came into force on 11.1.2017 superseding 2010 Rules.

On 12.4.2018, the tentative Gradation List of ASOs as on 1.1.2018 was published inviting objections and consequent thereto, the final Gradation List of ASOs as on 1.1.2018 was published on 11.6.2020 vide Letter No.20286/OSS of Home Department. Said final Gradation List dated 11.6.2020 is the subject matter of challenge in all the writ petitions with regard to placement of different candidates inter-se.

4. The Petitioners in 7(seven) writ petitions (hereinabove stated as first category) are the candidates appointed on 27.1.2016 (on 18.5.2016 for one more candidate) selected pursuant to Advertisement No.06, dated 14.5.2016. It is their submission that, they being appointed prior to those direct recruits of ASOs selected pursuant to Advertisement No.08 of 2012-13, they should be placed above in the Gradation List in terms of their seniority in service. Their further case is that, their W.P.(C) No.37471 of 2020 and batch Page 7 of 68 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: A.R.-Cum-Sr.Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 03-Jun-2025 15:45:15 appointment being made under 2010 Rules, their seniority in service must be counted in terms of the provisions of 2010 Rules. Therefore, the placement of those direct recruits selected pursuant to Advertisement No.08 of 2012-13 and appointed on 5.10.2016 (on 9.11.2016, 13.12.2016 and 26.12.2016 in respect of 12 more candidates) above the candidates appointed earlier is completely illegal and against the prevalent provisions of 2010 Rules. Similar is the case of the promotes/inductees in other three writ petitions (hereinabove stated as second category) that, they being appointed much prior to the appointment of those direct recruits selected pursuant to the Advertisement No.08 of 2012-13 and 06 of 2015-16, they should be placed in higher position than those candidates.

5. The facts being complicated in nature are sorted chronologically below for better appreciation.

 On 30.9.2008 the erstwhile posts of Junior Assistant and Senior Assistant in Odisha Secretariat Service were merged into one base level cadre and re-designated as "ASO".

 The Odisha Secretariat Service (Method of Recruitment and Conditions of Service of Assistant Section Officers) Rules, 2010 came into force on 07.04.2010 repealing earlier 1951 Rules.

 Requisitions for regular recruitment to 811 vacant posts of ASO was sent by the Home Department vide Letter W.P.(C) No.37471 of 2020 and batch Page 8 of 68 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: A.R.-Cum-Sr.Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 03-Jun-2025 15:45:15 No.41522/CC dated 26.9.2011 and Letter No.42011/CC dated 30.9.2011 to OPSC.

 The OPSC issued Advertisement No.08 of 2012-13 on 6.10.2012 inviting applications for direct recruitment to 811 vacant posts of ASOs.

 The Odisha Administrative Tribunal (OAT) issued a direction on 18.10.2012 in OA No.1417/2012 ( Amar Chhatoi vs. State ) not to exceed reserved category vacancies more than 50% in respect of Advertisement No.08 of 2012-13.

 The Home Department vide Letter No.13883/CC dated 6.4.2013 communicated revised category-wise vacancy of posts in respect of Advertisement No.08 of 2012-13. Further in another Letter No.13884/CC dated 6.4.2013 (on the same date) requested the OPSC to conduct another recruitment drive for Scheduled Tribe category candidates.

 The OAT in order dated 12.12.2013 while disposing of OA No.1417/2012 ( Amar Chhatoi vs. State ), quashed Notification dated 7.2.2009 of Odisha Government regarding the Odisha Reservation of Posts and Services Act, 2008 and directed the State and OPSC to modify Advertisement No.08 of 2012-13 to ensure total reservation for ST, SC and SEBC categories not exceeding 50% in total.

 The Government of Odisha issued Resolution bearing No.17025 on 24.5.2014 mentioning the reservation of W.P.(C) No.37471 of 2020 and batch Page 9 of 68 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: A.R.-Cum-Sr.Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 03-Jun-2025 15:45:15 posts and services in favour of SEBC to the extent of 11.25%.

 Pursuant to the request of Government in Home Department, the OPSC issued a corrigendum on 21.8.2014 modifying the category-wise vacancy for the posts of ASO in respect of Advertisement No.08 of 2012-13 while keeping all other conditions unaltered, but extending the last date of application with stipulation that the candidates already applied need not re-apply.

 The OPSC issued Advertisement No.06 of 2015-16 on 14.5.2015 to conduct recruitment drive for ST category of candidates only against 140 vacancies of ASO posts in total.

 The OPSC recommended the names of 139 ST candidates on 22.12.2015 selected pursuant to Advertisement No.06 of 2015-16.

 The Home Department issued appointment order in respect of 136 ST candidates on 27.1.2016 and in respect of another ST candidate subsequently.

 The OPSC recommended the names of 810 candidates on 10.9.2016 in respect of Advertisement No.08 of 2012-13.  The State Government in Home Department issued appointment orders in respect of 787 candidates on 5.10.2015 selected pursuant to Advertisement No.08 of 2012-13 and further, issued three other appointment orders dated 9.11.2016, 13.12.2016 and 26.12.2016 in respect of one candidate, 10 candidates and one candidate W.P.(C) No.37471 of 2020 and batch Page 10 of 68 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: A.R.-Cum-Sr.Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 03-Jun-2025 15:45:15 respectively selected pursuant to the Advertisement No.08 of 2012-13.

 The Odisha Secretariat Service (Method of Recruitment and Conditions of Service) Rules, 2016 came into force on 11.1.2017 superseding the Odisha Secretariat Service (Method of Recruitment and Conditions of Service of Assistant Section Officers) Rules, 2010 saving in respect of things done or omitted to be done before such supersession.

 The tentative Gradation List of ASOs as on 1.1.2018 was published on 12.4.2018 inviting objections.  The final Gradation List of ASOs as on 1.1.2018 was published on 11.6.2020.

6. In the conspectus of facts narrated above, the dispute relating inter se seniority in the cadre of ASO arose. Let us see first the provisions of 2010 Rules and 2017 Rules governing inter-se seniority among the employees in the cadre of ASO. The relevant provisions of both 2010 Rules and 2016 Rules are re- produced below.

2010 Rules The 6th April 2010 No.15678-CC-G-03/10/CC.--In exercise of the powers conferred by the proviso to Article 309 of the Constitution of India, the Governor of Orissa is pleased to make the following rules regulating the method of recruitment and conditions of service of the persons appointed to the cadre of Assistant Section Officer in the Departments of Government, namely : --

Signed by: CHITTA RANJAN BISWAL Designation: A.R.-Cum-Sr.Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 03-Jun-2025 15:45:15 PART - I PRELIMINARY

1.Short title and commencement (1) These rules may be called the Orissa Secretariat Service (Method of Recruitment and Conditions of Service of Assistant Section Officers) Rules, 2010.

(2) They shall come into force on the date of their publication in the Orissa Gazettee.

xxx xxx xxx

3.Constitution of Service The service shall consist of the cadre of Assistant Section Officers in the Departments of Government.

Subject to other provisions made in these rules recruitment to the cadre shall be made by following methods, namely :--

(2) They shall come into force on the date of their publication in the Odisha Gazettee.

xxx xxx xxx

3. Constitution of the Service:-The Service shall consist of the following posts, namely:--

PART - II METHOD OF RECRUITMENT

4. Method of recruitment:-Subject to other provisions made in these rules, recruitment to different grades in the service shall be made by the following methods, namely:-

(2) The willing candidates shall undergo a test in Computer Application as per the syllabus specified in the Schedule.

xxx xxx xxx PART-V OTHER CONDITIONS OF SERVICE

17. Inter-se Seniority:-

(1) The inter-se seniority of the Assistant Section Officers of the service in respect of a particular recruitment year shall be in the following manner, namely:-

clause(ii) of clause (a) of rule-4 shall en-bloc be senior to those W.P.(C) No.37471 of 2020 and batch Page 16 of 68 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: A.R.-Cum-Sr.Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 03-Jun-2025 15:45:15 appointed by direct recruitment under sub-clause (i) of clause

(a) of rule-4.

(2) The inter-se seniority of the officers in grades other than the Assistant Section Officer in the service shall be in the order in which their names appear in the approved select list formed under rule 16.

18. Appointment to the Posts in the Service:--(1) Appointment to the posts in the service by direct recruitment shall be made in the order in which the names of the persons appear in the merit list furnished by the Commission.

(2) Appointment to the posts in the service by promotion shall be made in accordance with the rules framed and procedure outlined by the Government from time to time.

xxx xxx xxx

21. Other Conditions of Service:- The conditions of service in regard to matters not covered by these rules shall be the same as are or as may from time to time be prescribed by the Government."

7. It is the contention of Petitioners, appointed pursuant to the selection in respect of Advertisement No.06 of 2015-16, that the Rules prevailing, i.e. 2010 Rules, on the date of their appointment has to be counted for determining their seniority in service. They further rely on the principles propounded with regard to inter-se seniority in the case of K. Meghachandra Singh and others vs. Ningam Siro and others , 2020 (5) SCC

689. Similar contentions are also advanced by the promotee- Petitioners to place their seniority above the direct recruits in the Gradation List. Conversely, it is submitted on behalf of the direct recruits selected pursuant to the Advertisement No.08 of 2012- 13 that, the provisions in 2010 Rules as well as 2017 Rules speak in their favour to determine their seniority above the promotes W.P.(C) No.37471 of 2020 and batch Page 17 of 68 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: A.R.-Cum-Sr.Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 03-Jun-2025 15:45:15 and direct recruits selected pursuant to Advertisement No.06 of 2015-16.

8. Before delving into the factual aspects vis-à-vis the rival contentions of the parties, it is required to see the principles propounded in different judgements of Apex court governing inter-se seniority among the employees in the same cadre.

9. In Mervyn Coutindo and others vs. Collector of Customs, Bombay and others , 1966 SCC OnLine SC 13, it is held by the Supreme Court as follows:-

Signed by: CHITTA RANJAN BISWAL Designation: A.R.-Cum-Sr.Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 03-Jun-2025 15:45:15

10. In Direct Recruit Class II Engineering Officers' Association vs. State of Maharashtra and others , (1990) 2 SCC 715, it is held as follows:-

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."

11. In Jagadish Ch. Patnaik and others vs. State of Orissa and others , (1998) 4 SCC 456, it is held as follows:-

(2) Between the two groups of promoted officers, those promoted from the rank of Sub-Assistant Engineers shall en bloc be senior to those promoted from the rank of Junior Engineers.

(3) Subject to provision of sub-rules (1) and (2) seniority of officers shall be determined in accordance with the order in which their names appear in the lists prepared by the Commission."

The very scheme of recruitment under the Rules, as indicated above, unequivocally indicates that in the case of direct recruits the final authority lies with the State Government who issues appointment orders from amongst the persons found eligible by the Public Service Commission and further who have been found medically fit by the Medical Board. Even such an appointee is also required to undergo probation for two years and thereafter he can be confirmed in the service. Under Rule 26, which is the Rule for determining inter se seniority between promotees and direct recruits when the expression used is "officers are recruited by promotion and by direct recruitment" necessarily it means that when they are appointed as Assistant Engineers by the State Government. To import something else into the Rule will neither be in the interest of justice nor is it necessary in any manner and it would tantamount to legislation by the Court. It is a well-known principle of construction of a statute that when the language used in the statute is unambiguous and on a plain grammatical meaning being given to the words in the statute, the end result is neither arbitrary, irrational or contrary to the object of the statute, then it is the duty of the court to give effect to the words used in the statute as the words declare the intention of the law-making authority best. In that view of the matter we do not see any justification to go into the question of quota meant for direct recruits and promotees nor is it necessary to find out as to the year in which the vacancy arose against which the recruitment is made. On an analysis of the scheme of the Rules, as narrated earlier, we are of the considered opinion that the expression "recruited" would mean appointed and the expression "during the same year" in Rule 26 would mean during the calendar year and, therefore, direct recruits recruited during the calendar year would be junior to the promotee recruits recruited during the said calendar year.

Signed by: CHITTA RANJAN BISWAL Designation: A.R.-Cum-Sr.Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 03-Jun-2025 15:45:15 x xx xxx xxx

32. The next question for consideration is whether the year in which the vacancy accrues can have any relevance for the purpose of determining the seniority irrespective of the fact when the persons are recruited? Mr Banerjee's contention on this score is that since the appellant was recruited to the cadre of Assistant Engineer in respect of the vacancies that arose in the year 1978 though in fact the letter of appointment was issued only in March 1980, he should be treated to be a recruit of the year 1978 and as such would be senior to the promotees of the years 1979 and 1980 and would be junior to the promotees of the year 1978. According to the learned counsel since the process of recruitment takes a fairly long period as the Public Service Commission invites application, interviews and finally selects them whereupon the Government takes the final decision, it would be illogical to ignore the year in which the vacancy arose and against which the recruitment has been made. There is no dispute that there will be some time lag between the year when the vacancy accrues and the year when the final recruitment is made for complying with the procedure prescribed but that would not give a handle to the Court to include something which is not there in the rules of seniority under Rule 26. Under Rule 26 the year in which vacancy arose and against which vacancy the recruitment has been made is not at all to be looked into for determination of the inter se seniority between direct recruits and the promotees. It merely states that during the calendar year direct recruits to the cadre of Assistant Engineer would be junior to the promotee recruits to the said cadre. It is not possible for the Court to import something which is not there in Rule 26 and thereby legislate a new rule of seniority. We are, therefore, not in a position to agree with the submission of Mr Banerjee, the learned Senior Counsel appearing for the appellants, on this score."

12. In M. Subba Reddy and others vs. A.P. State Road Transport Corporation and others , (2004) 6 SCC 729, it is held as follows:-

13. In Pawan Pratap Singh and others vs. Reevan Singh and others , (2011) 3 SCC 267, it is held as follows:-

Signed by: CHITTA RANJAN BISWAL Designation: A.R.-Cum-Sr.Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 03-Jun-2025 15:45:15

14. In Union of India and others vs. N.R. Parmar and others , (2012) 13 SCC 340, it is held as follows:-

15. In P. Sudhakar Rao and others vs. U. Govinda Rao and others , (2013) 8 SCC 693, it is held as follows:-

Seniority amongst members of the same grade must be counted from the date of their initial entry into the grade. It was held:

It is well settled by several decisions of this Court that amongst members of the same grade seniority is reckoned from the date of their initial entry into the service. In other words, seniority inter se amongst the Assistant Engineers in Bihar Engineering Service, Class II will be considered from the date of the length of service rendered as Assistant Engineers. This being the position in law Respondents 6 to 23 cannot be made senior to Respondents 1 to 5 by the impugned government orders as they entered into the said service by promotion after Respondents 1 to 5 were directly recruited in the quota of direct recruits. The judgment of the High Court quashing the impugned government orders made in Annexures 8, 9 and 10 is unexceptionable."

xxx xxx xxx

47. However, the mere existence of a vacancy is not enough to enable an employee to claim seniority. The date of actual appointment in accordance with the required procedure becomes important in such a case. This was so held in State of Uttaranchal v. Dinesh Kumar Sharma [(2007) 1 SCC 683 :

92, para 34) W.P.(C) No.37471 of 2020 and batch Page 38 of 68 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: A.R.-Cum-Sr.Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 03-Jun-2025 15:45:15 "34. Another issue that deserves consideration is whether the year in which the vacancy accrues can have any relevance for the purpose of determining the seniority irrespective of the fact when the persons are recruited. Here the respondent's contention is that since the vacancy arose in 1995- 1996 he should be given promotion and seniority from that year and not from 1999, when his actual appointment letter was issued by the appellant. This cannot be allowed as no retrospective effect can be given to the order of appointment order under the Rules nor is such contention reasonable to normal parlance. This was the view taken by this Court in Jagdish Ch. Patnaik v. State of Orissa [(1998) 4 SCC 456 : 1998 SCC (L&S) 1156] ."

48. More recently, and finally, in Pawan Pratap Singh v. Reevan Singh [(2011) 3 SCC 267 : (2011) 1 SCC (L&S) 481] all relevant precedents on the subject were considered, including the Constitution Bench decision in Direct Recruit Class II Engg. Officers' Assn. v. State of Maharashtra [(1990) 2 SCC 715 : 1990 SCC (L&S) 339 :

Signed by: CHITTA RANJAN BISWAL Designation: A.R.-Cum-Sr.Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 03-Jun-2025 15:45:15

(iii) Ordinarily, notional seniority may not be granted from the backdate and if it is done, it must be based on objective considerations and on a valid classification and must be traceable to the statutory rules.

(iv) The seniority cannot be reckoned from the date of occurrence of the vacancy and cannot be given retrospectively unless it is so expressly provided by the relevant service rules. It is so because seniority cannot be given on retrospective basis when an employee has not even been borne in the cadre and by doing so it may adversely affect the employees who have been appointed validly in the meantime."

49. In a separate but concurring opinion, Aftab Alam, J. reiterated the position but referred to some more precedents on the subject. It was then said: ( Reevan Singh case [(2011) 3 SCC 267 : (2011) 1 SCC (L&S) 481] , SCC p. 286, para 63) "63. To the decisions referred to on this point in the main judgment I may add just one more in Suraj Parkash Gupta v. State of J&K [(2000) 7 SCC 561 : 2000 SCC (L&S) 977] . The decision relates to a dispute of seniority between direct recruits and promotees but in that case the Court considered the question of antedating the date of recruitment on the ground that the vacancy against which the appointment was made had arisen long ago. In SCC para 18 of the decision the Court framed one of the points arising for consideration in the case as follows: (SCC p. 578) '18. ... (4) Whether the direct recruits could claim a retrospective date of recruitment from the date on which the post in direct recruitment was available, even though the direct recruit was not appointed by that date and was appointed long thereafter?' This Court answered the question in the following terms:

Again, in A. Janardhana v. Union of India [(1983) 3 SCC 601 : 1983 SCC (L&S) 467] it was held that a later direct recruit cannot claim seniority from a date before his birth in the service or when he was in school or college. Similarly it was pointed out in A.N. Pathak v. Ministry of Defence [1987 Supp SCC 763 : 1988 SCC (L&S) 370 : (1988) 6 ATC 626] that slots cannot be kept reserved for direct recruits for retrospective appointments.'"

16. In Bhupendra Nath Hazarika and others vs. State of Assam and others , (2013) 2 SCC 516, it is held as follows:-

17. In Ganga Vishan Gujrati and others vs. State of Rajasthan and others , (2019) 16 SCC 28, it is held as follows:-

(ii) Inter se seniority in a particular service has to be determined as per the Service Rules. The date of entry in a particular service or the date of substantive appointment is the safest criterion for fixing seniority inter se between one officer or the other or between one group of officers and the other recruited from different sources. Any departure therefrom in the statutory rules, executive instructions or otherwise must be consistent with the requirements of Articles 14 and 16 of the Constitution.

(iii) Ordinarily, notional seniority may not be granted from the backdate and if it is done, it must be based on objective considerations and on a valid classification and must be traceable to the statutory rules.

(iv) The seniority cannot be reckoned from the date of occurrence of the vacancy and cannot be given retrospectively unless it is so expressly provided by the relevant Service Rules. It is so because seniority cannot be given on retrospective basis W.P.(C) No.37471 of 2020 and batch Page 45 of 68 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: A.R.-Cum-Sr.Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 03-Jun-2025 15:45:15 when an employee has not even been borne in the cadre and by doing so it may adversely affect the employees who have been appointed validly in the meantime."

This view has been re-affirmed by a Bench of three Judges of this Court in P. Sudhakar Rao v. U. Govinda Rao [P. Sudhakar Rao v. U. Govinda Rao, (2013) 8 SCC 693 : (2014) 1 SCC (L&S) 690]".

18. In K. Meghachandra Singh and others vs. Ningam Siro and others , (2020) 5 SCC 689, it is held as follows:-

Patnaik v. State of Orissa , (1998) 4 SCC 456 : 1998 SCC (L&S) 1156] the Court considered the question whether the year in which the vacancy accrues can have any bearing for the purpose of determining the seniority irrespective of the fact when the person is actually recruited. The Court observed that there could be time-lag between the year when the vacancy accrues and the year when the final recruitment is made. Referring to the word "recruited" occurring in the Orissa Service of Engineers Rules, 1941 the Supreme Court held in Jagdish Ch. Patnaik [Jagdish Ch. Patnaik v. State of Orissa , (1998) 4 SCC 456 : 1998 SCC (L&S) 1156] that person cannot be said to have been recruited to the service only on the basis of initiation of process of recruitment but he is borne in the post only when, formal appointment order is issued.

xxx xxx xxx

30. We may also benefit by referring to the judgment in State of U.P. v. Ashok Kumar Srivastava [State of U.P. v. Ashok Kumar Srivastava, (2014) 14 SCC 720 : (2015) 3 SCC (L&S) 536] . This judgment is significant since this is rendered after the N.R. Parmar [Union of India v. N.R. Parmar, (2012) 13 SCC 340 : (2013) 3 SCC (L&S) 711] decision. Here the Court approved the ratio in Pawan Pratap Singh v. Reevan W.P.(C) No.37471 of 2020 and batch Page 46 of 68 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: A.R.-Cum-Sr.Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 03-Jun-2025 15:45:15 Singh [Pawan Pratap Singh v. Reevan Singh , (2011) 3 SCC 267 : (2011) 1 SCC (L&S) 481] , and concurred with the view that seniority should not be reckoned retrospectively unless it is so expressly provided by the relevant Service Rules. The Supreme Court held that seniority cannot be given to an employee who is yet to be borne in the cadre and by doing so it may adversely affect the employees who have been appointed validly in the meantime. The law so declared in Ashok Kumar Srivastava [State of U.P. v. Ashok Kumar Srivastava , (2014) 14 SCC 720 : (2015) 3 SCC (L&S) 536] being the one appealing to us, is profitably extracted as follows : (SCC p. 730, para 24) "24. The learned Senior Counsel for the appellants has drawn inspiration from the recent authority in Pawan Pratap Singh v. Reevan Singh [Pawan Pratap Singh v. Reevan Singh, (2011) 3 SCC 267 :

281-82, para 45) '45. (ii) Inter se seniority in a particular service has to be determined as per the service rules. The date of entry in a particular service or the date of substantive appointment is the safest criterion for fixing seniority inter se between one officer or the other or between one group of officers and the other recruited from different sources. Any departure therefrom in the statutory rules, executive instructions or otherwise must be consistent with the requirements of Articles 14 and 16 of the Constitution.

xxx xxx xxx

(iv) The seniority cannot be reckoned from the date of occurrence of the vacancy and cannot be given retrospectively unless it is so expressly provided by the relevant service rules. It is so because seniority cannot be given on retrospective basis when an employee has not even been borne in the cadre and by doing so it may adversely affect the employees who have been appointed validly in the meantime.' "

36. From the above, it is not only apparent that the above OM was only to be given prospective effect from 1-1-2018 but it contains an express acknowledgment that this was not the position prior to the issuance of the OM and that a different rule was followed earlier in the State. The conclusion is, therefore, inevitable that at least prior to 1-1-2018, direct recruits cannot claim that their seniority should be reckoned from the date of initiation of recruitment proceedings and not from the date of actual appointment.

37. When we carefully read the judgment in N.R. Parmar [Union of India v. N.R. Parmar, (2012) 13 SCC 340 :

38. At this stage, we must also emphasise that the Court in N.R. Parmar [Union of India v. N.R. Parmar, (2012) 13 SCC 340 : (2013) 3 SCC (L&S) 711] need not have observed that the selected candidate cannot be blamed for administrative delay and the gap between initiation of process and appointment. Such observation is fallacious inasmuch as none can be identified as being a selected candidate on the date when the process of recruitment had commenced. On that day, a body of persons aspiring to be appointed to the vacancy intended for direct recruits was not in existence. The persons who might respond to an advertisement cannot have any service-related rights, not to talk of right to have their seniority counted from the date of the advertisement. In other words, W.P.(C) No.37471 of 2020 and batch Page 49 of 68 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: A.R.-Cum-Sr.Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 03-Jun-2025 15:45:15 only on completion of the process, the applicant morphs into a selected candidate and, therefore, unnecessary observation was made in N.R. Parmar [Union of India v. N.R. Parmar, (2012) 13 SCC 340 : (2013) 3 SCC (L&S) 711] to the effect that the selected candidate cannot be blamed for the administrative delay. In the same context, we may usefully refer to the ratio in Shankarsan Dash v. Union of India [Shankarsan Dash v. Union of India, (1991) 3 SCC 47 : 1991 SCC (L&S) 800] , where it was held that even upon empanelment, an appointee does not acquire any right.

39. The judgment in N.R. Parmar [Union of India v. N.R. Parmar, (2012) 13 SCC 340 : (2013) 3 SCC (L&S) 711] relating to the Central Government employees cannot in our opinion, automatically apply to the Manipur State Police Officers, governed by the MPS Rules, 1965. We also feel that N.R. Parmar [Union of India v. N.R. Parmar, (2012) 13 SCC 340 : (2013) 3 SCC (L&S) 711] had incorrectly distinguished the long-standing seniority determination principles propounded in, inter alia, Jagdish Ch. Patnaik [Jagdish Ch. Patnaik v. State of Orissa , (1998) 4 SCC 456 : 1998 SCC (L&S) 1156] , Suraj Parkash Gupta v. State of J&K [Suraj Parkash Gupta v. State of J&K, (2000) 7 SCC 561 : 2000 SCC (L&S) 977] and Pawan Pratap Singh v. Reevan Singh [Pawan Pratap Singh v. Reevan Singh, (2011) 3 SCC 267 : (2011) 1 SCC (L&S) 481] . These three judgments and several others with like enunciation on the law for determination of seniority makes it abundantly clear that under service jurisprudence, seniority cannot be claimed from a date when the incumbent is yet to be borne in the cadre. In our considered opinion, the law on the issue is correctly declared in Jagdish Ch. Patnaik [Jagdish Ch. Patnaik v. State of Orissa , (1998) 4 SCC 456 : 1998 SCC (L&S) 1156] and consequently we disapprove the norms on assessment of inter se seniority, suggested in N.R. Parmar [Union of India v. N.R. Parmar, (2012) 13 SCC 340 : (2013) 3 SCC (L&S) 711] . Accordingly, the decision in N.R. Parmar [Union of India v. N.R. Parmar, (2012) 13 SCC 340 : (2013) 3 SCC (L&S) 711] is overruled. However, it is made clear that this decision will not affect the inter se seniority already based on N.R. Parmar [Union of India v. N.R. Parmar, (2012) 13 SCC 340 : (2013) 3 SCC (L&S) 711] and the same is protected. This decision will apply prospectively except where seniority is to be fixed under the relevant rules from the date of vacancy/the date of advertisement."

Signed by: CHITTA RANJAN BISWAL Designation: A.R.-Cum-Sr.Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 03-Jun-2025 15:45:15

19. In State of Bihar and others vs. Arbind Jee , 2021 SCC OnLine SC 821, it is held as follows:-

20. In Ajay Kumar Shukla vs. Arvind Rai , (2022) 12 SCC 579, it is held as follows:-

46. The Division Bench of the High Court also relied upon another judgment of this Court in Prabodh Verma v. State of U.P. [Prabodh Verma v. State of U.P., (1984) 4 SCC 251 :

(emphasis supplied)

47. The third case relied upon by the Division Bench for the above proposition, namely, State of Uttaranchal v. Madan Mohan Joshi [State of Uttaranchal v. Madan Mohan Joshi, (2008) 6 SCC 797 : (2008) 2 SCC (L&S) 197] was again a case where none of the affected parties were impleaded not even in the representative capacity. In such circumstances, this Court remanded the matter to the High Court leaving it open to the original petitioners therein to move an appropriate application for impleading some of the affected teachers in their representative capacity.

48. The fourth case relied upon by the Division Bench on the above proposition is Indu Shekhar Singh v. State of U.P. [Indu Shekhar Singh v. State of U.P., (2006) 8 SCC 129 : 2006 SCC (L&S) 1916] In this case also, the affected parties were not impleaded and this Court relied upon the judgment of this Court in Prabodh Verma [Prabodh Verma v. State of U.P. , (1984) 4 SCC 251 : 1984 SCC (L&S) 704] .

49. In Tridip Kumar Dingal v. State of W.B. [Tridip Kumar Dingal v. State of W.B., (2009) 1 SCC 768 : (2009) 2 SCC (L&S) 119] , C.K. Thakker, J., held that the case falls within the ambit of non-joinder of necessary parties as none of the 66 candidates against whom the complaint was made, were made parties. It further held that some of the respondents should have been arrayed in representative capacity. Para 41 is reproduced below : (SCC p. 780) W.P.(C) No.37471 of 2020 and batch Page 53 of 68 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: A.R.-Cum-Sr.Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 03-Jun-2025 15:45:15 "41. Regarding protection granted to 66 candidates, from the record it is clear that their names were sponsored by the employment exchange and they were selected and appointed in 1998-1999. The candidates who were unable to get themselves selected and who raised a grievance and made a complaint before the Tribunal by filing applications ought to have joined them (selected candidates) as the respondents in the original application, which was not done. In any case, some of them ought to have been arrayed as the respondents in a "representative capacity". That was also not done. The Tribunal was, therefore, wholly right in holding that in absence of selected and appointed candidates and without affording opportunity of hearing to them, their selection could not be set aside."

51. The present case is a case of preparation of seniority list and that too in a situation where the appellants (original writ petitioners) did not even know the marks obtained by them or their proficiency in the examination conducted by the Commission. The challenge was on the ground that the Rules on the preparation of seniority list had not been followed. There were 18 private respondents arrayed to the writ petition. The original petitioners could not have known who all would be affected. They had thus broadly impleaded 18 of such Junior Engineers who could be adversely affected. In matters relating to service jurisprudence, time and again it has been held that it is not essential to implead each and every one who could be affected but if a section of such affected employees is impleaded then the interest of all is represented and protected. In view of the above, it is well settled that impleadment of a few of the affected employees would be sufficient compliance of the principle of joinder of parties and they could defend the interest of all affected persons in their representative capacity. Non-joining of all the parties cannot be held to be fatal.

52. The Division Bench has also dealt with an issue which according to us was totally irrelevant and alien to the adjudication of the present appeals. In para 45 of the judgment [ Rajesh Kumar Singh v. Rajeev Nain Upadhyay , 2019 SCC OnLine All 4782] of the Division Bench there is a reference to an issue where a party takes calculated chances of participating W.P.(C) No.37471 of 2020 and batch Page 54 of 68 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: A.R.-Cum-Sr.Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 03-Jun-2025 15:45:15 in selection/appointment process and later turns around after being unsuccessful would be hit by doctrine of estoppel. For the said proposition, the Division Bench made detailed discussions in paras 46, 47, 48 and 49 of the judgment [ Rajesh Kumar Singh v. Rajeev Nain Upadhyay , 2019 SCC OnLine All 4782] and relied upon a number of case laws. In our considered view, this issue was not at all relevant. The said issue does not arise in the present case. The appellants/original writ petitioners had never challenged the selection process. The challenge was only to preparation of the seniority list. As such, this discussion by the Division Bench is totally irrelevant."

21. In Hariharan and others vs. Harsh Vardhan Singh Rao and others , (2022) SCC OnLine SC 1717, it is held as follows:-

The affidavit refers to the interim order dated 13th July 2018 in the Civil Appeal arising out of S.L.P. (C) No.16161 of 2018, by which status quo as of that date with respect to the posts held, was ordered to be maintained. The affidavit notes that as a result of the interim order, the promotion to the cadre of Income Tax Officers from the cadre of Income Tax Inspectors could not take place. As a result, 33.33% of posts in the cadre of Income Tax Officers are vacant as the same cannot be filled in. As noted earlier, the decision in the case of K.Meghachandra applies prospectively i.e. from 19th November 2019. Prima facie, the seniority fixed based on the decision in the case of N.R. Parmar has to be given effect. Therefore, while we are recommending a reference to a larger Bench, interim relief will have to be vacated and seniority will have to be fixed on the basis of the impugned judgment, W.P.(C) No.37471 of 2020 and batch Page 59 of 68 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: A.R.-Cum-Sr.Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 03-Jun-2025 15:45:15 subject to the final outcome of the appeal or the decision of the larger Bench, as the case may be.

35. Hence, we pass the following order:

It held that the date of entry in a particular service or the date of substantive appointment is the safest criterion for fixing seniority inter se between one officer or the other or between one group of officers and the other recruited from different sources. It further held that any departure therefrom in the statutory rules, executive instructions or otherwise must be consistent with the requirements of Articles 14 and 16 of the Constitution of India. It further held that the seniority cannot be reckoned from the date of occurrence of the vacancy and cannot be given retrospectively unless it is so expressly provided by the relevant service rules. It held that the seniority cannot be given on retrospective basis when an employee has not even been borne in the cadre and by doing so it may adversely affect the employees who have been appointed validly in the meantime.

28. A Bench of three learned Judges of this Court in P. Sudhakar Rao v. U. Govinda Rao [P. Sudhakar Rao v. U. Govinda Rao, (2013) 8 SCC 693 : (2014) 1 SCC (L&S) 690] has approved the law as laid down by this Court in Pawan Pratap Singh [Pawan Pratap Singh v. Reevan Singh , (2011) 3 SCC 267 : (2011) 1 SCC (L&S) 481]"

24. As seen from the aforesaid rulings, the picture still leaves with some grey spots particularly when the decision in K. Meghachandra Singh and others (supra) has been referred to a larger Bench in Hariharan and others (supra). However it is found settled, without further quarrel, that in the matters of inter- se seniority the provisions of concerned service rules are to be looked into first. What is there in the service rule fixing seniority inter-se the employees in the cadre has to be followed scrupulously. In this regard, looking to the relevant rule for the cases at hand, there are two sets of rules, one 2010 Rules and the other, 2016 Rules superseding 2010 Rules. It is also the submission of the State in Home Department that the impugned Gradation List dated 11.6.2020 has been prepared in terms of the provisions contained in 2016 Rules. It is the specific stand of State-Opposite Parties, common in all the cases, that by conjoint reading of Rule 2(1)(m), Rule 6(2) and Rule 17 of 2016 Rules as well as the principles decided by the apex Court in the case of N.R. Parmar and others (supra), the inter-se seniority have been determined with reference to the recruitment years 2011 and 2015. But the thing does not stand as simple as answered by the State-Opposite Parties.

25. It is the accepted principle that for determining inter-se seniority in the cadre, the relevant provisions of the concerned W.P.(C) No.37471 of 2020 and batch Page 62 of 68 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: A.R.-Cum-Sr.Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 03-Jun-2025 15:45:15 service rule will hold the field. In the instance case, as stated earlier, 2010 Rules came into force w.e.f. 07.04.2010 and continued to govern the field till 10.01.2017. 2016 Rules was brought in supersession of 2010 Rules w.e.f. 11.01.2017. All the parties were appointed prior to coming into force of 2016 Rules. Here the specific case of all the Petitioners is that, their service seniority is governed under the provisions of 2016 Rules that was in force on the date of their appointments and they further contend that, the cadre Rule came into force after their appointments cannot be made applicable to determine their service seniority retrospectively. So it becomes imperative to answer the applicability of respective rules at the first instance.

26. Seniority in service has to be reckoned from the date of first appointment. An employee gains his seniority by the length of service he renders. Therefore, the Rule prevailing on the date of initial appointment of an employee is relevant to count his seniority in service and not that the Rule that come in force from a prospective date than the initial appointment date because by gaining every date in service an employee stocks each date of seniority in his favour to reckon for. Undoubtedly in the present cases, every party has already gained service seniority by the date of coming into force of 2016 Rules on 11.1.2017. So the action of State-Opposite Parties to count the service seniority of the parties as on 1.1.2018 in terms of the provisions of 2016 Rules that was in force on 1.1.2018, by ignoring the provisions of 2010 Rules which was prevalent on the date of initial W.P.(C) No.37471 of 2020 and batch Page 63 of 68 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: A.R.-Cum-Sr.Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 03-Jun-2025 15:45:15 appointment of each party, is completely on faulty side. So in my humble opinion, the relevant rules applicable to determine service seniority of each ASO appointed prior to 11.1.2017 and after 7.4.2010 has to be reckoned in terms of the provisions contained in 2010 Rules.

27. Next is to see the relevant provisions under 2010 Rules relating to inter-se seniority of ASOs. Rule 17 of 2010 Rules, as quoted above, prescribes that the inter-se seniority of the officers appointed to the service in a particular year shall be in the order in which their names appear in the select list, and those appointed by promotion/selection under clause (b) of rule-5 shall be en-bloc senior to those appointed by limited departmental examination under clause (c) of rule-5, who shall in turn en-bloc be senior to those appointed by direct recruitment under clause

(a) of rule-5. Here the relevant words are 'appointed to service in a particular year' and "year" means a calendar year (as per the definition in Section 2(1)(j)). The difference in the meaning of word 'recruitment' and 'appointment' has been explained in Prafulla Kumar Swain vs. Prakash Chandra Misra and others , (1993) Suppl 3 SCC 181, as recruitment is not the actual appointment. It is held as follows:-

"28. At this stage, we will proceed to decide as to the meaning and effect of the words "recruitment" and "appointment". The term "recruitment" connotes and clearly signifies enlistments, acceptance, selection or approval for appointment. Certainly, this is not actual appointment or posting in service. In contradistinction W.P.(C) No.37471 of 2020 and batch Page 64 of 68 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: A.R.-Cum-Sr.Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 03-Jun-2025 15:45:15 the word "appointment" means an actual act of posting a person to a particular office.

29. Recruitment is just an initial process. That may lead to eventual appointment in the service. But, that cannot tantamount to an appointment. No doubt, Rule 5 talks of recruitment to Class II service. We consider these are two sources of recruitment. Nowhere in the Recruitment Rules of 1959 it is specified that the services of a direct recruit under the Government shall be reckoned from the date of selection in the competitive examination. On the contrary, Regulation 12(c) is very clear that the period of training is not to be reckoned as Government service. It is admitted before us that after the successful completion of training when the appointment order is issued the direct recruits are put on probation. Similar is in the case of the promotes. Both of them undergo probation. Therefore, in the light of these provisions it is not possible for us to accept the contention advanced on behalf of the direct recruits that their seniority must be reckoned from the date of their recruitment."

Further, in In K. Narayanan and others vs. State of Karnataka and others , 1994 Supp (1) SCC 44, it is stated that :-

Signed by: CHITTA RANJAN BISWAL Designation: A.R.-Cum-Sr.Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 03-Jun-2025 15:45:15 So all the Petitioners in second category of cases, i.e. W.P.(C) Nos.17311, 29089 and 36444 of 2020, who were appointed by promotion/induction in terms of clause (b)(c) of rule-5 shall be treated en-bloc senior to those appointed by direct recruitment. Therefore, the case of those Petitioners in second category is as simple as it is in Rule 17 to treat them senior over the direct recruits for being they (promotees/inductees) were appointed earlier to the direct recruits. As such, the Petitioners in three writ petitions, i.e. W.P.(C) No. 17311, 29089 and 36444 of 2020 are treated senior to the direct recruits appointed subsequently to their appointments and their seniority in the Gradation List are required to be modified accordingly.

28. So far as the dispute of inter-se seniority between the Petitioners in other seven writ petitions inter-se with those other direct recruits are concerned, the provisions of Rule 17 are not as much clear as in respect of promotees/inductees vis-à-vis direct recruits. Here is the case of inter-se seniority between two batches of direct recruits. It is stated by the State in their reply that the appointees selected pursuant to the Advertisement No.6 of 2015-16 are Special Drive recruits and the appointees selected pursuant to the Advertisement No.08 of 2012-13 are General Recruits. It is of course for the reason that, Advertisement No.6 of 2015-16 was meant for recruitment of ST category candidates only, whereas the Advertisement No.08 of 2012-13 was meant for all categories of candidates, i.e. both un-reserved and W.P.(C) No.37471 of 2020 and batch Page 66 of 68 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: A.R.-Cum-Sr.Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 03-Jun-2025 15:45:15 reserved categories. But it is never stated in the reply of the State that the vacancies notified for the Advertisement No.6 of 2015- 16 are all such vacancies fall after the vacancies notified for the Advertisement No.08 of 2012-13. However, I am not the said aspect of date of vacancies. What is mentioned in Rule 17 of 2010 Rules is that, 'appointed to the service in a particular year' where "year" means a calendar year. The provisions of Rule 17 of 2010 Rules is restated here that inter-se seniority of the officers appointed to the service in a particular year shall be in the order in which their names appear in the select list. Of course here are two select lists prevailing for two sets of direct recruits. Here is a case where two select lists are there and the question is which select list is to be treated first in order ? The answer would be, in my humble opinion, the select list first came into existence. In other words, the select list which was acted first has to be reckoned first in order and in the instant case it is the select list dated 22.12.2015 of the OPSC pursuant to which the appointment orders dated 27.1.2016 was issued first. The select list pursuant to the Advertisement No.08 of 2012-13 is dated 10.9.2016 based on which the appointment orders dated 5.10.2016 was issued.

29. It is true that, the principles in K. Meghachandra Singh and others (supra) has not been unsettled in Hariharan and others (supra) despite the matter is referred for adjudication to a larger Bench. Nonetheless, the question is of two sets of employees in the same cadre when appointed in the same calendar year, their W.P.(C) No.37471 of 2020 and batch Page 67 of 68 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: A.R.-Cum-Sr.Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 03-Jun-2025 15:45:15 merit has to be ascertained in order of their appointments made in the same year. So the conclusion is whoever saw the light of day earlier came into existence early than the other who came later and accordingly, the persons appointed earlier are treated as senior to those appointed later. The submissions of private Opposite Parties to stretch the meaning of the word 'year' as a 'recruitment year' other than the meaning defined in Section 2(1)(j) of the Rules is not found acceptable. So the seniority of the persons appointed to the cadre earlier on 27.1.2016 and 18.5.2016 are treated to be senior to the persons appointed subsequently in the same year. Thus the impugned Gradation List dated 11.6.2020, which is the subject matter of challenge in all the writ petitions, needs to be revised accordingly.

30. In terms of the observations stated above, all the writ petitions are thus allowed and the seniority of all such Petitioners are to be re-fixed in the Gradation List above the private Opposite Parties in the order that the Promotees/Inductees be placed en-bloc senior to the direct recruits of the particular year and among the direct recruits, the Petitioners appointed on 27.1.2016 and 18.5.2016 are to be placed above the persons appointed subsequently.

(B.P. Routray) Judge B.K. Barik/Secretary W.P.(C) No.37471 of 2020 and batch Page 68 of 68