TaxTMI 
TaxTMI 
2011 (11) TMI 784
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....titioner 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....
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.... 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 appoin....
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....pointed 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. 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....
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....o 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. (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....
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....e 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 is thus entitled to count his service in the Fast Track Court towards his s....
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....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 and cannot over-ride the provisions contained in Rule 17 of Rules, 1963. It is settled law that if the app....
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.... 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 r....
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....ngly 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 aforesaid Full Court meeting was presided over by the then Chief Justice (Justice P.K.Balasubramanyan) wherein the promotion of the petitioner and two other officers were considered taking into their judicial and administrative capabilities along with their confidential reports and thereafter the name of the petitioner was recommended to the State Government for promotion to the cadre of O.S.J.S. (Sr. Branch) and such promotion can only be granted under the Rules, 1963 and therefore, the contention of the learned counsel for the opposite parties referred to supra is liable to be rejected and the proceedings of the Full Court reproduced above demolishes the case of the opposite parties, who have taken the plea that the promotion of the petitioner was under the Scheme Rules, 2001. This plea and contention is contrary to factual position as revealed from the resolution of the Full Court of this Court, the relevant portion of which is entra-cited above. 16. It is crystal clear that the petit....
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....writ petition and the High Court notifications dated 22.1.2003, filed as Annexure-9 and 9-A respectively. The opposite parties 3 and 4 joined in their respective posts on 3.2.2003 and 7.2.2003 respectively, meaning thereby they were born in the cadre of Orissa Superior Judicial Service (Senior Branch) after about 10 months of the petitioner entering into such cadre on promotion to the post. But even then the opposite parties 3 and 4 were given selection grade with effect from 3.2.2008 and 7.2.2008 respectively vide Court's notification no. 79 and 80 dated 22.2.2008, copy of which is annexed as Annexure- 10, thereby ignoring the claim of the petitioner with regard to his seniority. All this clearly spells out that the petitioner and other officers were superseded by the opposite parties 3 and 4 and on the other hand the petitioner was promoted to the cadre of Selection grade with effect from 22nd October, 2009 vide notification no. 899 dated 29.10.2009 of the High Court (Annexure-11) and in this manner the period of service as Addl. District Judge (Fast Track) was not taken into consideration ignoring the settled law of the apex Court. 18. The law quoted by the learned counsel fo....
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....h direct recruits. 19. The opposite parties are trying to build a castle on the sandy foundation by referring to various Rules, particularly, Scheme Rules, 2001 and Rules, 1963. But to our mind no interpretation of Rules is involved in the instant case. The point involved is whether the period of service rendered in the Fast Track Courts by the petitioner as an Additional District Judge is to be counted as service in the parent cadre, particularly when the petitioner served continuously in the cadre uninterruptedly. The Scheme Rules, 2001 neither conceive nor empower the authority to give any promotion to any inservice candidate. The promotions are effected only by the parent rule, i.e., Rules, 1963 and thereafter appointment under the Scheme Rules, 2001. Moreover, the petitioner has not claimed any promotion during his tenure in Fast Track Court, but he was promoted by the Government on due consultation with the High Court on 5.1.2002 and the same was made under Rules, 1963 but not under Scheme Rules, 2001. He continuously officiated in the Senior Branch until regularized on 15.12.2003 (Annexure-5) and thereafter without reversion to Junior Branch, in terms of Rule 17 proviso t....
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.... Code of Civil Procedure and conducting sessions trial under the Code of Criminal Procedure and in fact while performing his duties, he was having the same jurisdiction as is being exercised by the regular cadre officers of the Senior Branch and he had the jurisdiction to entertain arbitration petitions under Section 34 of the Arbitration and Conciliation Act, 1996. Even appointment to an ad-hoc post for long duration would be sufficient to hold that such person was holding the post in a substantive capacity. To approximate to the official diction used in this connection, we may well say that a person is said to hold a post in a substantive capacity when he holds it for an indefinite period especially for long duration in contradistinction to a person who holds for a definite or temporary period or holds it on probation subject to confirmation. The Committee was not justified by relying upon the earlier order for rejecting the representation of the petitioner. 20. Admittedly on 5.1.2002 the petitioner under Annexure-5 was promoted to the post of ad-hoc Additional District Judge in the District Judge cadre and as already discussed above, the petitioner was promoted by the Governm....
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.... is concerned, the same is governed by the Orissa Superior Judicial Service Rules, 1963. The petitioner was allowed promotion on the recommendation of the High Court and notification dated 5.1.2002 was issued by the State Government in this regard. After issuance of this notification, the petitioner joined as Additional District Judge (Fast Track Court), Bargarh on 26.4.2002. Thus, applying the five years rule, the petitioner became entitled to be considered for such promotion to the selection grade on 25.4.2007, whereas the opposite parties 3 and 4 were appointed as Additional District Judge on 3rd and 7th February, 2003 respectively and thus, became eligible for consideration for their promotion to selection grade only in February, 2008, i.e., long after the petitioner earned his eligibility in April, 2007. All this clearly spells out that the promotion of opposite parties 3 and 4 to the selection grade prior to the petitioner is illegal. Thus, the petitioner has to be considered for promotion only prior to the opposite parties 3 and 4. The contention of the learned Senior Counsel on behalf of the opposite parties 3 and 4 that the promotion was fortuitous is fallacious. The Const....
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....the length of regular service as has been adopted by the High Court. In case the prayer of the petitioner is allowed, the opposite parties 3 and 4 presently at Sl.Nos.1 and 2 would be below Sri Saroj Kumar Mohapatra at Sl.No.8 and in that event the officers at Sl.Nos.3 to 6 being undisputedly senior officers to the petitioner would be rather benefited in getting seniority instead of being affected in any manner. In other words, it can be stated that the officers at Sl.Nos.3 to 6 being no way to be affected by the decision of the present writ petition can never be said to be necessary parties to the proceedings. No list or order fixing seniority of the petitioner vis-à-vis other individual except opposite parties 3 and 4 is being challenged. Moreover, a necessary party is one without whom no order can be made effectively. A proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision. The contention raised on behalf of the opposite parties no.3 and 4 is not sustainable and in the instant case the name of the officers mentioned at Sl.Nos.3 to 6 are neither necessary nor proper parties. They are not the pa....
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.... 4 by way of writ petition and challenged the same through representation does not dis-entitle him to claim seniority through the present writ petition, which has been filed on the same date when the representation was rejected. The cause of action really arose to the petitioner for moving the writ petition after he was communicated with the impugned order rejecting his representation. 24. In view of the foregoing analysis and reasons, in our opinion, therefore, there has been no unreasonable delay on the part of the petitioner to challenge the impugned order and consequently, the order by virtue of which the opp.parties 3 and 4 were granted selection grade. 25. It is now well settled that even in the case of probotion or officiating appointment, which are followed by confirmation unless contrary rule is shown, the service rendered as officiating appointment or probation cannot be ignored for reckoning the length of continuous officiating service for determining the place in the seniority list. Even if the first appointment is made by not following the prescribed procedure and such appointment is approved later on, the approval would mean confirmation by the authority and sha....