IN THE HIGH COURT OF ORISSA AT CUTTACK

W.P.(C) Nos. 36470 & 36490 of 2021, W.P.(C) Nos.

9137 & 25137 of 2022 and W.P.(C) No. 3113 of 2026

W.P.(C) No. 36490 of 2021

In the matter of an application under Articles 226 & 227 of the

Constitution of India.

………………

Hemabanti Patra & Ors. …. Petitioners

-versus-

State of Odisha & Ors. …. Opposite Parties

For Petitioners : Mr. S.K. Das, Advocate

For Opp. Parties : Mr. A. Tripathy,

Addl. Govt. Advocate

Mr. N. Rath, Advocate

(Opp. Party No. 2)

Ms. P. Rath, Sr. Advocate

along with

Ms. S. Prusty, Advocate

(Private Opp. Parties)

PRESENT:

THE HON’BLE JUSTICE BIRAJA PRASANNA SATAPATHY

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Date of Hearing: 18.03.2026 & Date of Judgment: 05.05.2026

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Biraja Prasanna Satapathy, J.

1. Since the issue involved in the present batch of writ petitions is

identical and the preliminary issue is with regard to fixation of

seniority in between the appointees to the rank of OAS Gr-A (JB) vide

notification dt.04.03.2016 by way of direct recruitment and the

promotees vide notification dt.17.10.2015, all the maters were heard

analogously and disposed of by the present common judgment.

However, for the sake of brevity W.P.(C) No. 36490 of

2021 is taken as the leading case for the purpose of dealing with the

pleadings and the annexures.

2. While W.P.(C) Nos. 36490 & 36470 of 2021 have been filed

challenging office order dtd.15.11.2021 so passed by Opp. Party No. 1

under Annexure-9 and with a further prayer to direct the Opp. Parties

to upheld the final gradation list of OAS Group-A (JB) published on

08.03.2019 under Annexure-7, with regard to fixation of inter se

seniority between the direct recruitees and the promotee officers,

W.P.(C) No. 9137 of 2022 has been filed with a prayer to finalize the

gradation list of OAS Group-A (JB) so published on 22.12.2021 in

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terms of order dtd.15.11.2021 taking into account the view of the Law

Department.

Similarly, W.P.(C) No. 25137 of 2022 has been filed inter

alia challenging order dtd.21.09.2022, wherein Govt. called for the

status of the vigilance proceeding/criminal proceeding pending against

the Officers continuing in the rank of OAS Group-A (JB) for their

promotion to the rank of OAS Group-A (SB).

W.P.(C) No. 3113 of 2026 was lastly filed with a prayer to

strike down Para 6 & 7 of G.A. Department Resolution

dtd.09.09.2021.

3. Learned counsel appearing for the Petitioners contended that

Odisha Public Service Commission (in short Commission) issued an

advertisement vide Advertisement No. 05/2011-12 on 17.11.2011, for

conducting the recruitment of OCS Examination-2011 under

Annexure-1. Subsequently, while issuing a corrigendum on

16.12.2011, the vacancy position was enhanced.

3.1. It is contended that challenging the advertisement so published by

the Commission on 17.11.2011, a writ petition was filed in W.P.(C)

No. 18471 of 2012 and with a prayer to allow the Petitioners therein to

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take part in the recruitment examination, as there is no recruitment

held from the year 2007 to 2010. The writ petition was allowed by this

Court vide order dtd.30.08.2013 and accordingly, OPSC issued the 2

nd

corrigendum on 10.10.2013 by allowing the candidates those who are

eligible for their recruitment as against the recruitment year 2007 to

2010 to participate in the selection process.

3.2. It is contended that while the matter stood thus, Private Opp.

Parties were given the benefit of ad hoc promotion from the rank of

ORS Group-B to the rank of OAS Group-A (JB), against the

recruitment year 2015 vide notification dtd.17.10.2015 under

Annexure-3. Similarly, on completion of the recruitment process so

initiated vide Advertisement dtd.17.11.2011, Petitioners were

appointed as against the post of OAS Group-A (JB), vide notification

dtd.04.03.2016 under Annexure-2 series. The promotees who were

appointed on promotion on ad hoc basis vide notification

dtd.17.10.2015, were appointed on regular basis after concurrence of

the OPSC vide notification dtd.25.04.2017 under Annexure-4.

3.3. It is contended that by the time Petitioners were appointed as

direct recruitees, basing on the advertisement dtd.17.11.2011 as

against the recruitment year 2011 vide notification dt.04.03.2016 and

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the Private Opp. Parties got the benefit of promotion to the rank of

OAS Group-A (JB) as against the recruitment year 2015 vide

notification dtd.17.10.2015, the State Govt. vide notification

dtd.25.06.2011 under Annexure-5, had already notified the Odisha

Administrative Service (Method of Recruitment & Conditions of

Service) Rules, 2011 (in short 2011 Rules). As provided under the

aforesaid 2011 Rules, more particularly under Rule 4, 50% of the

posts in the OAS Group-A (JB) was required to be filled up by way of

direct recruitment through competitive examination and 50% by way

of promotion from amongst the members belonging to the Odisha

Revenue Service (ORS).

3.4. However, Rule 11 of the said Rules, deals with the inter se

seniority of such OAS Group-A (JB) Officers in respect of a particular

recruitment year and the same reads as follows:-

“11. Inter se seniority:- (1) The inter se seniority of OAS Group

'A' (JB) officers in respect of a particular recruitment year shall

be in the following order and in each category the inter se

seniority shall be determined in the following manner:

(i) Promotee officers shall be ranked inter se in the order in

which their names appear in the select list.

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(ii) Direct Recruit officers shall be ranked inter se in the order

in which their names appear in the merit list prepared by the

commission.

(2) The inter se seniority of the officers in other grades shall be

in the order in which their names appear in the select list.”

3.5. It is contended that taking into account the provisions contained

under Rule 11 of the 2011 Rules, a tentative gradation list of OAS

Group-A (JB) was published by the Opp. Party No. 1 on 25.08.2018

under Annexure-6. In the said tentative gradation list, Petitioners who

are the appointees as against the recruitment year 2011, were placed

above the Private Opp. Parties, who were promoted as against the

recruitment year 2015. The tentative gradation list so published on

25.08.2018, was made final with issuance of the final gradation list on

08.03.2019 under Annexure-7. In the said final gradation list,

Petitioners were also placed above the promotee OAS Group-A (JB)

Officers.

3.6. It is contended that challenging such placement of the Private

Opp. Parties in the final gradation list published on 08.03.2019, they

approached this Court by filing W.P.(C) No. 19346 of 2019. This

Court vide order dtd.29.07.2021, when permitted the Private Opp.

Parties to raise their grievance before Opp. Party No. 1 and for its

consideration, the impugned order was passed by Opp. Party No. 1 on

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15.11.2021 under Annexure-9. Vide the said impugned order; Private

Opp. Parties were directed to be placed above the Petitioners, inter

alia with the finding that inter se seniority is to be governed on the

basis of the date of joining and not on the basis of the recruitment

year.

3.7. Learned counsel appearing for the Petitioners while assailing the

impugned order dtd.15.11.2021, vehemently contended that since

Petitioners were appointed as against the post of OAS Group-A (JB)

for the recruitment year 2011, in terms of the advertisement issued by

the Commission on 17.11.2011 vide notification dtd.04.03.2016 under

Annexure-2, and Private Opp. Parties were only promoted to the rank

of OAS Group-A (JB) vide notification dtd.17.10.2015 under

Annexure-2 series as against the recruitment year 2015, in view of the

decision of the Hon’ble Apex Court in the case of Union of India &

Ors. Vs. N.R. Parmar & Ors., (2012) 13 SCC 340, they were placed

rightly above the Private Opp. Parties in the final gradation list

published on 08.03.2019 under Annexure-7.

3.8. But without proper appreciation of the position of the Petitioners

vis-à-vis Private Opp. Parties so reflected in the final gradation list

dtd.08.03.2019, vide the impugned order dt.15.12.2021 under

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Annexure-9, the same was reversed by giving seniority to the Private

Opp. Parties above the Petitioners without following the decision in

the case of N.R. Parmer. Hon’ble Apex Court in the case of N.R.

Parmar in Para 23, 33, and 50 to 52 has held as follows:-

“23. The General Principles for determining seniority in

the Central Services are shown to have been laid down in an

annexure to an Office Memorandum dated 22-12-1959 issued

by the Government of India, Ministry of Home Affairs

(hereinafter referred to as “the OM dated 22-12-1959”).

Para 6 of the annexure, referred to above, laid down the

manner of determining inter se seniority between direct

recruits and promotees. Para 6 is being extracted hereunder:

“6. Relative seniority of direct recruits and promotees.—

The relative seniority of direct recruits and of promotees

shall be determined according to the rotation of vacancies

between direct recruits and promotees which shall be based

on the quotas of vacancies reserved for direct recruitment

and promotion respectively in the Department Rules.”

It is apparent from the above extract of the OM dated 22-12-

1959, that the “quota” between promotees and direct recruits

was to be read into the seniority rule. The OM also provided

for a definite rotation of seniority points (“rota”) between

promotees and direct recruits. The rotation provided for was

founded on the concept of rotation of quotas between

promotees and direct recruits. It is therefore apparent, that

under the OM dated 22-12-1959 inter se seniority between

the promotees and direct recruits was based on the “quota”

and “rota” principle. The same has been meaningfully

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described as “rotation of quotas” in some of these

instruments.

xxx xxx xxx

33. The same is being extracted hereunder:

“Department of Personnel and Training

Estt.(D) Section

Notes from p. 17/ante may please be seen with reference

to our earlier note on pp. 9-10 ante.

With reference to ‘X’ on p. 18 and ‘Y’ on p. 19/ante, it

will be clear from our note on pp. 9-10/ante that if action for

the Recruitment Year 1986-1987 has been initiated at any

time during that recruitment year even if the exam is held in

1988 and the results are declared in 1989 and the candidate

join only in 1990, since the action for recruitment was

initiated in 1986-1987 itself merely because the process of

recruitment took so long for which the candidates cannot be

blamed and since the responsibility for the delay in

completing the process of recruitment squarely lies with the

administration, it would not be appropriate to deprive the

candidates of their due seniority of 1986-1987. Consequently,

if action was initiated during the Recruitment Year 1986-

1987 even if it culminates in the joining by the selected

candidates only in 1990, they will get seniority of 1986-1987.

This applies equally to DRs as well as promotees. In other

words, if such DRs of 1986-1987 ultimately join in 1990 yet

they will be rotated with promotees of 1986-1987.

As regards Point (1) on p. 19/N, it is clarified that

‘initiation of action for recruitment/initiation of recruitment

process’ would refer to the date of sending the requisition to

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the recruiting authority for a particular recruitment year in

question.

Points (2) and (3) are the concern of Estt.(B).

As regards Point (4), it is clarified that as already stated

the concept of initiation of action for recruitment is

applicable equally to direct recruits and promotees.

As regards Point (5), it may be stated that even if DoPT is

also one of the respondents, it is for the Administrative

Ministry/Department who are concerned with the persons

involved in the CAT court case to take necessary action on

behalf of DoPT also. In any case, our comments are already

contained in our earlier note as well as this note. It is for the

Administrative Ministry/Department to incorporate them

suitably in the counter-reply. Hence, the counter-reply on pp.

159-75/Cor. may be suitably modified in the light of our

advice on pp. 9-10/ante as already advised at ‘X’ on p.

10/ante and this note.

In future, the Department of Revenue, if they want our

advice, refer such cases well in time (instead of making such

reference at the eleventh hour) to enable us to consider the

matter in its proper perspective without any time constraint.

Estt.(B) may please see for comments on Points (2) and

(3) on pp. 19-20/ante before the file is returned to the

Department of Revenue.

sd/-

(Under-Secretary)

2-2-2000.”

(emphasis supplied)

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xxx xxx xxx

50. The seniority rule applied in Jagdish Ch. Patnaik

case [(1998) 4 SCC 456 : 1998 SCC (L&S) 1156] has been

extracted in para 24 of the said judgment. The seniority rule

in question, inter alia expressed, that seniority would be

determined with reference to the date of recruitment. In Suraj

Parkash Gupta case [(2000) 7 SCC 561 : 2000 SCC (L&S)

977] , the relevant seniority rule was extracted in para 53

which provided, that seniority would be determined with

reference to the date of first appointment. The rule itself

expressed that the words “date of first appointment” would

mean the date of first substantive appointment against a clear

vacancy. In Pawan Pratap Singh case [(2011) 3 SCC 267 :

(2011) 1 SCC (L&S) 481] the question which arose for

consideration, related to determination of inter se seniority

between two sets of direct recruits. The first set comprised of

vacancies advertised in 1987 which came to be filled up in

1994, and the second set comprised of vacancies of the year

1990 which came to be filled up in the year 1991. The

controversy in Pawan Pratap Singh case [(2011) 3 SCC 267

: (2011) 1 SCC (L&S) 481] was conspicuously different from

the controversy in hand. In view of the fact that the seniority

rules, as also the factual matrix in the cases relied upon was

substantially at variance with the relevant OMs dated 7-2-

1986 and 3-7-1986 (which are the subject of interpretation

insofar as the present case is concerned), as also the facts of

the cases in hand, it is apparent, that the judgments relied

upon by the learned counsel are inapplicable to determine

the present controversy.

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51. One finds attracted to the observations recorded

in Jagdish Ch. Patnaik case [(1998) 4 SCC 456 : 1998 SCC

(L&S) 1156] wherein it was observed: (SCC p. 464, para 24)

“24. … 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 [because] the words declare the intention of the

law-making authority best.”

We are of the view that the aforesaid observations are fully

applicable to the present controversy. We may add that

various ONs and letters issued by the DoPT (referred to

above) do not leave room for any ambiguity.

52. Having interpreted the effect of the OMs dated 7-2-

1986 and 3-7-1986 (in paras 25 to 29 hereinabove), we are

satisfied, that not only the requisition but also the

advertisement for direct recruitment was issued by SSC in the

recruitment year in which direct recruit vacancies had

arisen. The said factual position, as confirmed by the rival

parties, is common in all matters being collectively disposed

of. In all these cases the advertised vacancies were filled up

in the original/first examination/selection conducted for the

same. None of the direct recruit Income Tax Inspectors

herein can be stated to be occupying carried-forward

vacancies, or vacancies which came to be filled up by a

“later” examination/selection process. The facts only reveal

that the examination and the selection process of direct

recruits could not be completed within the recruitment year

itself. For this, the modification/amendment in the manner of

determining the inter se seniority between the direct recruits

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and promotees, carried out through the OM dated 7-2-1986,

and the compilation of the instructions pertaining to seniority

in the OM dated 3-7-1986, leave no room for any doubt, that

the “rotation of quotas” principle would be fully applicable

to the direct recruits in the present controversy. The direct

recruits herein will therefore have to be interspaced with

promotees of the same recruitment year.”

3.9. It is also contended that the impugned order dtd.15.11.2021 under

Annexure-9 was passed relying on the decision rendered by the

Hon’ble Apex Court in the case of K. Meghachandra Singh & Ors.

vs. Ningam Siro & Ors., (2020) 5 SCC 689 and the notification issued

by the G.A. & P.G. Department on 09.09.2021 under Annexure-10.

As per the said notification, G.A. & P.G. Department issued the

guideline for fixation of inter se seniority of the employees in terms of

the judgment in the case of K. Meghachandra Singh. Hon’ble Apex

Court in Para 39 of the Judgment in the case of K. Meghachandra

Singh however has held as follows:-

“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

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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.”

3.10. Learned counsel appearing for the Petitioners accordingly

contended that since Petitioners were appointed as against the post of

OAS Group-A (JB) against the recruitment year 2011 and that too

pursuant to the advertisement issued by the Commission on

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17.11.2011 under Annexure-1 and the Private Opp. Parties were only

promoted as against the recruitment year 2015 vide notification

dtd.17.10.2015 under Annexure-2 series and were regularly appointed

vide notification dtd.25.04.2017 under Annexure-4, following the

decision in the case of K. Meghachandra Singh so reflected in Para

39, the Private Opp. Parties could not have been placed above the

Petitioners, so held in the impugned order dtd.15.11.2021 under

Annexure-9, as the decision in the case of K. Meghachandra Singh is

to apply prospectively and the seniority already fixed basing on the

decision in the case of N.R. Parmer is not to be interfered with.

3.11. It is also contended that since final gradation list published on

08.03.2019 was published in terms of the decision in the case of N.R.

Parmar so cited (supra), in view of the decision in the case of K.

Meghachandrda Singh, more particularly so reflected in Para 39,

seniority so fixed is protected and it cannot be changed relying on the

decision in the case of K. Meghachandra Singh. It is accordingly

contended that with quashing of the impugned order dtd.15.11.2021,

the final gradation list published on 08.03.2019, be treated as the final

gradation list of the Petitioners vis-a-vis the Private Opp. Parties in the

rank of OAS Group-A (JB).

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4. Ms. P. Rath, learned Sr. Counsel appearing for the Private Opp.

Parties on the other hand while supporting the impugned order

dtd.15.11.2021, made her submission contending inter alia that

Petitioners though participated in the direct recruitment basing on the

advertisement issued by the Commission on 17.11.2011 under

Annexure-1, but they were only appointed on completion of the

selection process vide notification dtd.04.03.2016 under Annexure-2

series. Prior to such appointment of the Petitioners vide notification

dtd.04.03.2016, Private Opp. Parties had already got the benefit of

promotion to the rank of OAS Group-A (JB) vide notification

dtd.17.10.2015 under Annexure-2 series.

4.1. It is contended that since Private Opp. Parties admittedly joined in

the rank of OAS Group-A (JB) ahead of the Petitioners, they are

eligible and entitled to be placed above the Petitioners, who are the

direct recruitees. But in the final gradation list published on

08.03.2019 under Annexure-7, when the Private Opp. Parties were

placed below the direct recruitees/Petitioners, the same was

challenged by the Private Opp. Parties before this Court in W.P.(C)

No. 19346 of 2019. Pursuant to the order passed by this Court on

29.07.2021 and while considering the representation made pursuant to

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such order of this Court, Private Opp. Parties have been rightly placed

above the Petitioners as per the impugned order dtd.15.11.2021 under

Annexure-9.

4.2. While supporting the impugned order, learned Sr. Counsel

appearing for the Private Opp. Parties contended that neither the

decision in the case of N.R. Parmar nor the decision in the case of K.

Meghachandra Singh are applicable to the service disputes in the

State of Odisha, as in both the decisions, the issue was with regard to

the ROTA-QUOTA Rules of determination of seniority so laid down

for service cadre, under the Rules governing the cadre.

4.3. It is contended that judgment in the case of N.R. Parmar was

with regard to determination of the inter se seniority between the

direct recruitees and the promotees of Income Tax Inspectors in the

Income Tax Department. The issue in the case of N.R. Parmar was

with regard to interpretation of office memorandum issued by the

Department and it has got no general applicability to the State of

Odisha. It is accordingly contended that since the decision in the case

of N.R. Parmar is not applicable to the issue involved with regard to

fixation of seniority in the State of Odisha, stand taken by the

Petitioners that final gradation list published on 08.03.2019 under

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Annexure-7 relying on the decision in the case of N.R. Parmar is not

to be interfered with is not acceptable. Similarly, the decision in the

case of K. Meghachandra Singh, is also not applicable as in the said

decision similar office memorandum issued by the Central Govt. of

the Income Tax Department was the issue therein.

4.4. It is accordingly contended that, since neither the decision in the

case of N.R. Parmar nor the decision in the case of K.

Megahachandra Singh is applicable with regard to fixation of the

seniority of the Officers in the rank of OAS Group-A (JB) in the State

of Odisha, the said decisions have got no general applicability and

stand taken by the Petitioners that they are protected by the decision in

the case of N.R. Parmar, so upheld in Para 39 of the Judgment in the

case of K. Meghachandra Singh is not acceptable.

4.5. It is also contended that relying on the decision in the case of K.

Meghachandra Singh, notification issued by the G.A. & P.G.

Department on 09.09.2021 under Annexure-10, has also got no

applicability.

4.6. Learned Sr. Counsel further contended that since admittedly the

Private Opp. Parties were promoted to the rank of OAS Group-A (JB)

vide notification dtd.17.10.2015 and Petitioners were appointed vide

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notification dtd.04.03.2016, taking into account the date of the joining

of the Private Opp. Parties earlier than the Petitioners and in view of

the decisions of the Hon’ble Apex Court in the case of :-

(i) Jagdish Chandra Pattanaik Vs. State of Odisha,

(1998) 4 SCC 456

(ii) State of Bihar & Ors. Vs. Arbind Jee, 2021 SCC

OnLine SC 821

(iii) Pawan Pratap Singh & Ors. Vs. Reevan Sing & Ors.,

2011 (3) SCC 267

(iv) Gangra Vishan Gujrati & Ors. Vs. State of

Rajasthan, 2019 (16) SCC 28

(v) P. Sudhakar Rao Vs. U. Govinda Rao & Ors., 2013

(8) SCC 693, Petitioners have been rightly directed to be

placed below the Private Opp. Parties in the impugned

order dt.15.11.2021.

4.7. Hon’ble Apex Court in Para 2, 3, 6, 8, 24, 32 & 36 of the

judgment in the case of Jagdish Chandra Pattanaik has held as

follows:-

“2. This appeal is directed against the order dated 25-10-

1994 of the Orissa Administrative Tribunal in Miscellaneous

Petition No. 3229 of 1992, arising out of Original

Application No. 73 of 1989. The appellants are graduates in

civil engineering and had been recruited as Assistant

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Engineers in the Irrigation Wing in the Irrigation and Power

Department in the State of Orissa after being duly selected by

Orissa Public Service Commission in accordance with Orissa

Service of Engineers Rule, 1941 (hereinafter referred to as

“the Rules”). The respondents are promotees to the post of

Assistant Engineers from amongst the Junior Engineers and

Sub-Assistant Engineers. OA No. 78 of 1979 had been filed

by the direct recruited Assistant Engineers claiming inter alia

that the appointments of such direct recruits having been

made against vacancies of the year 1978 they should be

treated as appointees of the year 1978 and consequently their

seniority should be determined on that basis under the

promotee Assistant Engineers of that year notwithstanding

the fact that they were factually appointed as Assistant

Engineers in the year 1980. The Tribunal allowed the said

application by order dated 29-6-1992. It may be stated that

the promotee Assistant Engineers of the years 1979 and 1980

had not been arrayed as party to the said proceedings. As the

order of the Tribunal dated 29-6-1992 adversely affected the

seniority of the promotee Assistant Engineers who had been

promoted in the years 1979 and 1980 they filed a

miscellaneous petition which was registered as

Miscellaneous Petition No. 3229 of 1992 for reviewing the

order dated 29-6-1992. They also filed a direct petition

before the Tribunal which was registered as OA No. 2325 of

1992. The Tribunal disposed of both the original application

as well as the miscellaneous petition by the impugned

judgment and came to hold that the original application

would not be maintainable since the question of inter se

seniority has been decided in OA No. 73 of 1989 by order

dated 29-6-1992. It, however, came to the conclusion that the

review of the said order is maintainable particularly when

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the affected persons had not been arrayed as parties to the

earlier decision. Thereafter by interpreting the rule of

seniority, particularly Rule 26 of the Rules, it came to hold

that the direct recruits cannot be held to be recruits of the

year 1978 and on the other hand, must be held to be recruits

of the year 1980 when the State Government by notification

appointed those direct recruits as Assistant Engineers in

March 1980. It further came to hold that such direct recruits,

therefore, cannot be held to be senior to the promotees of the

year 1979 and will be juniors to promotees of the year 1980.

The aforesaid order of the Tribunal reviewing the earlier

order dated 29-6-1992 is the subject-matter of challenge in

this appeal. The promotees whose Original Application No.

2325 of 1992 was dismissed as not maintainable also filed a

special leave petition by way of abundant caution and that

special leave petition was also taken on board and was heard

along with the present appeal.

3. The brief facts culminating in the impugned order of

the Tribunal may be stated as hereunder:

That in the year 1978 forty vacancies were available in

the post of Assistant Engineer in the Irrigation Wing of the

Irrigation Department of the State of Orissa out of which 10

posts were to be filled up by direct recruitment in accordance

with Rule 7 of the Rules. Orissa Public Service Commission

issued an advertisement inviting applications from the

candidates eligible for appointments to the service in the year

1979 and after completing the process of selection prepared

a list of selected candidates in accordance with Rule 13 of the

Rules and submitted the same to the State Government

sometime in November 1979. The State Government finally

made the final selection in accordance with Rule 15 and

// 22 //

Page 22 of 60

required the selected candidates to undergo medical

examination and issued letters of appointment in March

1980. Thereafter the appointees joined as Assistant

Engineers. The respondents who are Junior Engineers had

been promoted as Assistant Engineers in accordance with

Rules on different dates in 1979 and 1980, namely, 27-8-

1979, 27-11-1979, 4-2-1980, 4-11-1980 and 27-12-1980.

Jagdish Patnaik, Appellant 1, who was a direct recruit to the

post of Assistant Engineer filed Original Application No. 78

of 1989 in the State Administrative Tribunal seeking the relief

that he should be given the seniority in the rank of Assistant

Engineer below the promoted Assistant Engineers in the year

1978 since he has been recruited to the said post against a

vacancy which has arisen for the year 1978 and for the delay

caused by the department he should not be made to suffer.

The Tribunal was persuaded to accept the said contention

raised on behalf of Shri Patnaik and it came to hold that

since he has been selected against a vacancy of the year 1978

his seniority in the cadre of Assistant Engineer should be

determined treating him to be a recruit of the year 1978

notwithstanding the fact that he was appointed as an

Assistant Engineer by notification dated 29-3-1980. The

Tribunal, therefore directed the State Government to fix the

seniority of the said Shri Patnaik below the promoted

Assistant Engineers of the year 1978. It may be stated at this

stage that under Rule 26 of the Rules which deals with the

inter se seniority of the Assistant Engineers as between direct

recruits and promotees, the promoted officers recruited

during the year would be considered senior to the officers

directly recruited during the year. Since the implementation

of the aforesaid direction of the Tribunal adversely affected

the seniority of the promotee Assistant Engineers who had

// 23 //

Page 23 of 60

been promoted during the year 1979-80 they approached the

Tribunal both by filing an application for review and by filing

an original application, as already stated, and the Tribunal

disposed of the same by the impugned order.

xxx xxx xxx

6. Mr Raju Ramachandran, learned counsel appearing

for some of the interveners who are direct recruits, supported

the submissions made by Mr Banerjee, learned Senior

Counsel and contended that there is a distinction between the

expressions “recruitment” and “appointment” in service

jurisprudence. The expression “recruitment” signifies a stage

prior to the issuance of an actual appointment order,

therefore, when the seniority rule contained in Rule 26 uses

the expression “direct recruitment” there is no justification

to construe that it is the actual year of appointment that

would govern the seniority and in this view of the matter the

impugned order of the Tribunal is erroneous in law.

According to Mr Ramachandran, learned Senior Counsel the

expression “direct recruitment” in Rule 26 of the Rules refers

to the commencement of the process of recruitment which is

fixed and ascertainable and not the date of actual

appointment which for several reasons can be indefinitely

delayed in a given case and there is no justification for

construing Rule 26 in that manner.

xxx xxx xxx

8. Mr P.N. Mishra, learned counsel appearing for the

State of Orissa, supported the submissions made by Mr

Sanghi and contended that the actual year during which the

appointment is made to the cadre of Assistant Engineer, be it

on promotion or be it on the basis of direct recruitment is the

// 24 //

Page 24 of 60

governing factor for determination of inter se seniority as is

apparent from the language used in Rule 26 of the Rules. Mr

Mishra, learned counsel further contended that under the

scheme of the Rule, it is the State Government who has the

final power of selection both for an appointment under direct

recruitment as well as appointment under promotion and

until that power is exercised no person can claim to have

been recruited to the service and that being the position the

year in which the vacancies arose and against which the

recruitment made is irrelevant for the purpose of determining

the seniority. Mr Mishra, learned counsel further submitted

that Rule 5 which deals with recruitment to service is also

indicative of the fact that a person can be said to be recruited

only on being appointed to the rank of Assistant Engineer

and therefore it is not possible to construe that for the

purpose of determining the seniority any date anterior to the

said appointment can at all be a germane consideration. Mr

Mishra, learned counsel also submitted that the word “year”

having been defined to mean a calendar year under Rule 3(f)

of the Rules and Rule 26 being categorical to the effect that

among the officers recruited by promotion and by direct

recruitment during the same calendar year the promoted

officers would be considered senior to the direct recruited

officers, it is only logical to hold that when they are

appointed to the post of Assistant Engineer which would be

taken into account for the purpose of seniority and not

otherwise.

xxx xxx xxx

24. Rule 26 with which we are really concerned in the

present case is the rule of seniority. It would be appropriate

to extract the said Rule 26 in extenso:

// 25 //

Page 25 of 60

“26. Seniority.—(1) When officers are recruited by

promotion and by direct recruitment during the same year,

the promoted officers shall be considered senior to the

officers directly recruited irrespective of their dates of

joining the appointment.

(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

// 26 //

Page 26 of 60

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.

xxx 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

// 27 //

Page 27 of 60

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.

36. In view of the decision in CA No. 9108 of 1995, the

appeal arising out of SLP No. 7017 of 1998 does not survive

and no further order is required to be passed therein.”

4.8. Hon’ble Apex Court in Para 12 of the Judgment in the case of

Arbind Jee has held as follows:-

“12. The principles enunciated in Shitla Prasad

Shukla [Shitla Prasad Shukla v. State of U.P., 1986 Supp

SCC 185 : 1986 SCC (L&S) 584] are applicable to the case

at hand. The compassionate appointment of the respondent is

not being questioned here but importantly he is claiming

seniority benefit for 10 years without working for a single

// 28 //

Page 28 of 60

day during that period. In other words, precedence is being

claimed over other regular employees who have entered

service between 1985 to 1996. In this situation, the seniority

balance cannot be tilted against those who entered service

much before the respondent. Seniority benefit can accrue

only after a person joins service and to say that benefits can

be earned retrospectively would be erroneous. Such view was

expressed in many cases and most recently in Ganga Vishan

Gujrati v. State of Rajasthan [Ganga Vishan Gujrati v. State

of Rajasthan, (2019) 16 SCC 28 : (2021) 1 SCC (L&S) 403] .

Dr D.Y. Chandrachud, J. speaking for the Court opined as

under : (Ganga Vishan Gujrati case [Ganga Vishan

Gujrati v. State of Rajasthan, (2019) 16 SCC 28 : (2021) 1

SCC (L&S) 403] , SCC p. 52, para 45)

“45. A consistent line of precedent of this Court follows

the principle that retrospective seniority cannot be granted to

an employee from a date when the employee was not borne

on a cadre. Seniority amongst members of the same grade

has to be counted from the date of initial entry into the grade.

This principle emerges from the decision of the Constitution

Bench of this Court in Direct Recruit Class II Engg. Officers'

Assn. v. State of Maharashtra [Direct Recruit Class II Engg.

Officers' Assn. v. State of Maharashtra, (1990) 2 SCC 715 :

1990 SCC (L&S) 339] . The principle was reiterated by this

Court in State of Bihar v. Akhouri Sachindra Nath [State of

Bihar v. Akhouri Sachindra Nath, 1991 Supp (1) SCC 334 :

1991 SCC (L&S) 1070] and State of Uttaranchal v. Dinesh

Kumar Sharma [State of Uttaranchal v. Dinesh Kumar

Sharma, (2007) 1 SCC 683 : (2007) 1 SCC (L&S) 594] .””

// 29 //

Page 29 of 60

4.9. Hon’ble Apex Court in Para 33, 37, 45(i)-(iii), 45(1)(b) of the

Judgment in the case of Pawan Pratap Singh & Ors. has held as

follows:-

“33. Rule 4(h) defines “substantive appointment” as an

appointment, not being an ad hoc appointment, on a post in

the cadre of service, made after selection in accordance with

the service rules relating to that service. It, thus, becomes

abundantly clear that for determination of inter se seniority

between the two rival groups (the 1991 and the 1994

appointees by direct recruitment) what is relevant is the date

of the order of their substantive appointment and since the

substantive appointment of the 1991 appointees is much prior

in point of time, they must rank senior to the 1994 appointees.

37. In Ram Janam Singh v. State of U.P. [(1994) 2 SCC

622 : 1994 SCC (L&S) 716 : (1994) 27 ATC 166] this Court

reiterated that the date of entry into a service is the safest

rule to follow while determining the inter se seniority

between one officer or the other or between one group of

officers and the other recruited from different sources. It was

observed that this is consistent with the requirement of

Articles 14 and 16 of the Constitution. It was, however,

observed that if the circumstances so require, a group of

persons can be treated a class separate from the rest for any

preferential or beneficial treatment while fixing their

seniority, but, normally such classification should be by

statutory rule or rules framed under Article 309.

45. From the above, the legal position with regard to

determination of seniority in service can be summarised as

follows:

// 30 //

Page 30 of 60

(i) The effective date of selection has to be understood in

the context of the service rules under which the appointment

is made. It may mean the date on which the process of

selection starts with the issuance of advertisement or the

factum of preparation of the select list, as the case may be.

(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.”

4.10. Hon’ble Apex Court in Para 17, 18, 22, 26.2, 26.4, 35, 44 & 45

of the Judgment in the case of Ganga Vishan Gujrati & Ors. has held

as follows:-

“17. The 1960 Rules were made to govern the

recruitment and other conditions of service of persons

appointed to the subordinate service in various departments

of the State other than posts regarding which separate

service rules had been or would be promulgated. Rule 9

provided for a year-wise determination of vacancies on 1

// 31 //

Page 31 of 60

April of each year by the appointing authorities. Rule 9 of the

1960 Rules stipulated thus:

“9. Determination of vacancies.—(1)(a) Subject to the

provisions of these Rules, the appointing authority shall

determine on 1st April every year, the actual number of

vacancies occurring during the financial year.

(b) Where a post is to be filled in by a single method as

prescribed in the rule or schedule, the vacancies so

determined shall be filled in by that method.

(c) Where a post is to be filled in by more than one

method as prescribed in the Rules or Schedule, the

apportionment of vacancies, determined under clause (a)

above, to each such method shall be done maintaining the

prescribed proportion for the overall number of posts already

filled in. If any fraction of vacancies is left over, after

apportionment of the vacancies in the manner prescribed

above, the same shall be apportioned to the quota of various

methods prescribed in a continuous cyclic order giving

precedence to the promotion quota.

(2) The appointing authority shall also determine the

vacancies of earlier years year-wise which were required to

be filled in by promotion, if such vacancies were not

determined and filled earlier in the year in which they were

required to be filled in.”

xxx xxx xxx

18. On 2-3-2001, the Rajasthan Subordinate Services

(Recruitment and Other Service Conditions) Rules, 2001 (the

2001 Rules) were notified under the proviso of Article 309 of

the Constitution. Rule 13 of the 2001 Rules requires the

// 32 //

Page 32 of 60

appointing authority to determine the vacancies actually

occurring on 1st April of every financial year:

“13. Determination of vacancies.—(1) Subject to the

provisions of these Rules, the appointing authority shall

determine on 1st April every year, the actual number of

vacancies occurring during the financial year.

(2) Where a post is to be filled in by a single method as

prescribed in the Rule or Schedule, the vacancies so

determined shall be filled in by that method.

(3) Where a post is to be filled in by more than one

method as prescribed in Rules or Schedule, the

apportionment of vacancies, determined under sub-rule (1)

above, to each such method shall be done maintaining the

prescribed proportion for the overall number of post(s)

already filled in. If any fraction of vacancies is left over, after

apportionment of the vacancies in the manner prescribed

above, the same shall be apportioned to the quota of various

methods prescribed in a continuous cyclic order giving

precedence to the promotion quota.

(4) The appointing authority shall also determine the

vacancies of earlier years year-wise which were required to

be filled in by promotion, if such vacancies were not

determined and filled earlier in the year in which they were

required to be filled in.”

xxx xxx xxx

22. Rule 347-B of the 1957 Rules contains a reference to

the 1972 Rules. The 1972 Rules comprised of six rules, which

are extracted below:

// 33 //

Page 33 of 60

“1. Short title and commencement.—(1) These Rules

may be called the Rajasthan Services (Recruitment by

Promotion against Vacancies of earlier years) Rules, 1972.

(2) They shall come into force at once.

2. Where a service rule, regulating recruitment and

condition of service made under the proviso to Article 309 of

the Constitution of India, provides for recruitment by both

direct recruitment and promotion and where promotion quota

of any earlier year could not be filled up in the absence of

recommendations of the Departmental Promotion Committee

appointed under the rule pertaining to the service the

appointing authority shall determine the number of vacancies

which were required to be filled up by promotion specifying

the year with reference to which the vacancies are to be filled

up.

3. The Departmental Promotion Committee, appointed

under the service rules referred to in Rule 2 shall make their

recommendation within a period of three months from the

date the competent authority makes the determination of the

number of vacancies and specifies the year of vacancies of

earlier years under the said rule whereupon the appointing

authority shall giving due regard to the recommendations of

the Departmental Promotion Committee, make the

appointments by promotion in the promotion quota vacancies

relevant to the year specified under Rule 2.

4. When the appointing authority makes appointments by

promotion under Rule 3, it shall specify the year in which

such promotion shall be deemed to have been made.

// 34 //

Page 34 of 60

5. Where any vacancy existed in the promotion quota in a

year earlier than that in which an appointment by promotion

was made on the recommendation of the Departmental

Promotion Committee the appointing authorities shall modify

the appointment order by specifying the year in which such

promotion shall be deemed to have been made.

6. Where any appointment by promotion has been made

under Rule 3 or where the appointing authority has specified

the year of promotion under Rule 5, the person who has been

so promoted shall not be entitled to claim any arrears of pay

for any period during which he has not actually performed

the duties of the post to which he has been promoted.”

Rule 2 contemplates a situation in which the service rules

framed under the proviso to Article 309 for regulating

recruitment and conditions of service provide for both direct

recruitment and promotion. Where the promotional quota of

any earlier year is not filled in the absence of a

recommendation of the Departmental Promotion Committee

(DPC), the appointing authority has to determine the

vacancies which were required to be filled up by promotion.

Thereupon, the DPC has to make its recommendation within

three months of the determination by the competent authority

specifying the number and the year of vacancies. The

appointing authority is then required to make appointments

by promotion in the promotion quota vacancies relevant to

the year specified in Rule 2. While making an appointment

under Rule 3 by promotion, the appointing authority has to

specify the year in which the promotion shall be deemed to

have been made. Consequently, where a vacancy existed in

the promotion quota in an earlier year, prior to the year in

which the appointment by promotion is made, the appointing

// 35 //

Page 35 of 60

authority has to specify the year in which the promotion shall

be deemed to have been made. However, in such a case, no

arrears of pay for the period during which the appointed

candidate has not worked are payable.

xxx xxx xxx

26.2. Though vacancies arose in years 2008-2009, 2009-

2010 and 2010-2011 on the post of LRI, selections were not

held in time. These vacancies were to be filled up in the

proportion of 80% for seniority-cum-merit and 20% by

competitive examination. The selection process for these

vacancies was not held year-wise and the vacancies for all

the three years were clubbed together. Appointment orders

for the 80% seniority-cum-merit vacancies were issued in

2012, while those for the 20% competitive exam vacancies

were issued on 31-3-2014.

26.4. The right to seniority based on the year of vacancy

flows statutorily from the provisions of the 1972 Rules and

the 2001 Rules. These Rules provide for “deemed

appointment”, a “deemed date of officiation/experience” and

for promotions that relate back to the year of vacancy.

xxx xxx xxx

35. Rule 9 of the 1960 Rules required the appointing

authority to determine the actual number of vacancies

occurring during the financial year, on 1st April every year.

Under Rule 9, where a post is filled up by more than one

method prescribed in the Rules or schedule, an

apportionment of vacancies to every such method was to be

done for maintaining the required proportion. The appointing

// 36 //

Page 36 of 60

authority was also duty-bound to determine the year-wise

vacancies of earlier years, which were required to be filled in

by promotion, if such vacancies were not determined and

filled earlier in the year in which they were required to be

filled in. Rule 9 in specific terms contemplated a year-wise

determination of vacancies, allocation of vacancies to

different methods of appointment and the determination of

vacancies of earlier years which were not filled in the

relevant year. However, Rule 9 did not, in express terms,

provide for deemed seniority or a deemed date of promotion.

xxx xxx xxx

44. It is evident from Part V of the 2001 Rules more

particularly, the rules governing promotion contained in

Rules 34 and 35 that the deeming fiction envisaged in Rule

35(6) applies to promotions made under the auspices of a

DPC. In the case of such promotions, Rule 35 mandates that

the Committee constituted under Rule 34 must consider the

cases of persons who were eligible in the year to which the

vacancy relates irrespective of the year in which the meeting

of the Committee is held. The underlying rationale for Rule

35(6) is that on the determination of year-wise vacancies,

rights are crystallised with reference to the year in which the

vacancy has arisen. Consequently, the delay on the part of

the DPC in convening its meeting should not result in a

prejudice to those candidates who were eligible for

promotion and ought to have been promoted but were not

considered with reference to the year in which the vacancy

arose. This principle in Rule 35(6) is in the nature of a

deeming fiction. Undoubtedly, once a deeming fiction comes

into being, full effect must be given to its ambit. Equally, a

deeming fiction can apply to the extent to which and in a

// 37 //

Page 37 of 60

situation where the law mandates that it be applied. In the

present case, it is evident that the deeming fiction which

applies in the context of a DPC having been convened

beyond the year in which the promotional vacancy arose has

no application to candidates who are recruited on the basis

of a competitive examination for the grant of accelerated

promotion. There is a fundamental reason why the deeming

fiction cannot be extended to the situation implicated in Rule

284(ii). In order to appear in the competitive examination

contemplated by Rule 284(ii), a candidate must fulfil the

conditions of eligibility prescribed in Rule 286. Rule 286

stipulates that in-service Patwaris must have a minimum

service of five years before they can appear at the

competitive examination under Rule 284(ii). Conferment of a

deemed seniority may result in a situation where a candidate

secures seniority with effect from an anterior date on which

he or she was neither borne on the cadre nor was qualified.

Such a consequence would be impermissible, at least in the

absence of an express statutory provision to that effect.

45. A consistent line of precedent of this Court follows the

principle that retrospective seniority cannot be granted to an

employee from a date when the employee was not borne on a

cadre. Seniority amongst members of the same grade has to

be counted from the date of initial entry into the grade. This

principle emerges from the decision of the Constitution

Bench of this Court in Direct Recruit Class II Engg. Officers'

Assn. v. State of Maharashtra [Direct Recruit Class II Engg.

Officers' Assn. v. State of Maharashtra, (1990) 2 SCC 715 :

1990 SCC (L&S) 339] . The principle was reiterated by this

Court in State of Bihar v. Akhouri Sachindra Nath [State of

Bihar v. Akhouri Sachindra Nath, 1991 Supp (1) SCC 334 :

1991 SCC (L&S) 1070] and State of Uttaranchal v. Dinesh

// 38 //

Page 38 of 60

Kumar Sharma [State of Uttaranchal v. Dinesh Kumar

Sharma, (2007) 1 SCC 683 : (2007) 1 SCC (L&S) 594] .

In Pawan Pratap Singh v. Reevan Singh [Pawan Pratap

Singh v. Reevan Singh, (2011) 3 SCC 267 : (2011) 1 SCC

(L&S) 481] , this Court revisited the precedents on the

subject and observed : (SCC pp. 281-82, para 45)

“45. … (i) The effective date of selection has to be

understood in the context of the Service Rules under which

the appointment is made. It may mean the date on which the

process of selection starts with the issuance of advertisement

or the factum of preparation of the select list, as the case may

be.

(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 when an employee has not even

// 39 //

Page 39 of 60

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] .”

4.11. Hon’ble Apex Court in Para 49 & 51 of the judgment in the case

of P. Sudhakar Rao has held as follows:-

“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

// 40 //

Page 40 of 60

direct recruit was not appointed by that date and was

appointed long thereafter?’

This Court answered the question in the following terms:

(Suraj Parkash Gupta case [(2000) 7 SCC 561 : 2000 SCC

(L&S) 977] , SCC p. 599, paras 80-81)

‘Point 4

Direct recruits cannot claim appointment from the date of

vacancy in quota before their selection

80. We have next to refer to one other contention raised

by the respondent direct recruits. They claimed that the direct

recruitment appointment can be antedated from the date of

occurrence of a vacancy in the direct recruitment quota, even

if on that date the said person was not directly recruited. It

was submitted that if the promotees occupied the quota

belonging to direct recruits they had to be pushed down,

whenever direct recruitment was made. Once they were so

pushed down, even if the direct recruit came later, he should

be put in the direct recruit slot from the date on which such a

slot was available under the direct recruitment quota.

81. This contention, in our view, cannot be accepted. The

reason as to why this argument is wrong is that in service

jurisprudence, a direct recruit can claim seniority only from

the date of his regular appointment. He cannot claim

seniority from a date when he was not borne in the service.

This principle is well settled. In N.K. Chauhan v. State of

Gujarat [(1977) 1 SCC 308 : 1977 SCC (L&S) 127] ,

Krishna Iyer, J. stated: (SCC p. 325, para 32)

Later direct recruit cannot claim deemed dates of

appointment for seniority with effect from the time when

// 41 //

Page 41 of 60

direct recruitment vacancy arose. Seniority will depend upon

length of service.

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.’”

xxx xxx xxx

51. From the various decisions referred to and from the

facts of the case, it is clear that to pass the scrutiny of Article

14 of the Constitution, the seniority of the Supervisors should

be reckoned only from the date on which they satisfied all the

real and objective procedural requirements of the Andhra

Pradesh Engineering Service Rules and the law laid down by

this Court. This has not happened in the present appeals

creating a situation of unreasonableness and unfairness.”

4.12. It is also contended that the stand of the Petitioners that they

were appointed as against the recruitment year 2011 and the Private

Opp. Parties were promoted as against the recruitment year 2015 and

accordingly they are to be placed above the Private Opp. Parties is

also not legal and justified, as the term ‘recruitment year’ has not been

defined under the 2011 Rules. As provided under Rule 11(1) of the

Rules, direct recruitees and promotee officers so appointed/promoted

// 42 //

Page 42 of 60

in respect of a particular recruitment year are to be placed as provided

under Sub Rule 1(i), (ii) & (iii). Since the Rule is silent with regard to

fixation of inter se seniority in between the direct recruitees and the

promotees appointed/promoted as against different recruitment year.

Rule 11 has no applicability to the issue involved.

4.13. However, as per the decision of the Hon’ble Apex Court in the

case of K. Narayan & Ors. Vs. State of Karnataka & Ors. reported in

1994 Supp (1) SCC 44 and V. Siva Kumar & Ors. Vs. SECY.,

Ministry of Defence & Ors. reported in (2008) 2 SCC 99, the word

‘Recruitment’ only means ‘to enlist’. Hon’ble Apex Court in Para 6 &

16 of the judgment in the case of K. Narayan & Ors. & V. Siva

Kumar & Ors. has held as follows:-

“6. Article 309 of the Constitution empowers the

appropriate Legislature to frame rules to regulate

recruitment to public services and the post. ‘Recruitment’

according to the dictionary means ‘enlist’. It is a

comprehensive term and includes any method provided for

inducting a person in public service. Appointment, selection,

promotion, deputation are all well-known methods of

recruitment. Even appointment by transfer is not unknown.

But any rule framed is subject to other provisions of the

Constitution.”

xxx xxx xxx

// 43 //

Page 43 of 60

16. In K. Narayanan v. State of Karnataka [1994 Supp (1)

SCC 44 : 1994 SCC (L&S) 392 : (1994) 26 ATC 724] , SCC

at para 6 it was noted as follows : (SCC p. 54)

“6. Article 309 of the Constitution empowers the

appropriate legislature to frame rules to regulate recruitment

to public services and the post. ‘Recruitment’ according to

the dictionary means ‘enlist’. It is a comprehensive term and

includes any method provided for inducting a person in

public service. Appointment, selection, promotion, deputation

are all well-known methods of recruitment. Even appointment

by transfer is not unknown. But any rule framed is subject to

other provisions of the Constitution.”

4.14. It is contended that since the word ‘Recruitment’ has not been

defined under the 2011 Rules and the Petitioners which is not

disputed, were appointed vide notification dtd.04.03.2016 i.e. after the

promotion of the Private Opp. Parties vide notification

dtd.17.10.2015, in view of the decision in the case of Jagdish

Chandra Pattanaik & Ors and followed in other decisions, so cited

(supra), Private Opp. Parties being born in the cadre of OAS Group-A

(JB) ahead of the Petitioners, they are eligible and entitled to be

placed above the Petitioners, so held in the impugned order

dtd.15.11.2021.

4.15. Since Petitioners were not borne in the cadre of OAS Group-A

(JB) when the Private Opp. Parties joined in terms of notification

// 44 //

Page 44 of 60

dtd.15.10.2015, by no stretch of imagination it can be held that

Petitioners are senior to the Private Opp. Parties. It is contended that

Rule 11 of 2011 Rules has only prescribed the fixation of inter se

seniority of the direct recruitees and the promotees in respect of a

particular recruitment year. Since Petitioners were appointed as

against the recruitment year 2011 vide notification dtd.04.03.2016 and

the Private Opp. Parties were appointed vide notification

dtd.17.10.2015 against the recruitment year 2015, they have been

rightly held to be placed above the Petitioners vide the impugned

order dtd.15.11.2021.

4.16. It is also contended that even though Private Opp. Parties were

given ad-hoc promotion vide notification dtd.17.10.2015 under

Annexure-2 and regular promotion vide notification dtd.25.04.2017

under Annexure-4, but such regular promotion cannot be taken as the

date of joining in the cadre as Private Opp. Parties basing on Anexure-

2 notification joined in the cadre of OAS Group-A (JB) and such date

of joining in the cadre is admittedly earlier than the joining of the

Petitioner.

4.17. Since it is not disputed that the Private Opp. Parties were

promoted and joined earlier than the Petitioners in the rank of OAS

// 45 //

Page 45 of 60

Group-A (JB), even though their ad hoc promotion was regularized

vide notification dtd.25.04.2017 under Annexure-4, but that cannot

take away the very joining in the cadre ahead of the Petitioners. In

support of the aforesaid submission reliance was placed to a decision

of the Hon’ble Apex Court in the case of Ajit Kumar Rath Vs. State

of Odisha reported in (1999) 9 SCC 596. Hon’ble Apex Court in Para

16, 18 to 26 and 28 of the judgment has held as follows:-

“16. The only contention which was accepted by the

Tribunal and on the basis of which it reviewed its earlier

judgment was, that the appellant and Respondent 12 were not

entitled to reckon their seniority with effect from the date on

which they were promoted on ad hoc basis in 1972 as the

amendment introduced in the rules in 1974 was not

retrospective in nature and the unamended rule allowed

seniority only with effect from the date of substantive

appointment. The Tribunal found that since the appellant and

Respondent 12 were given substantive appointment on the

concurrence of the Orissa Public Service Commission in 1976

they cannot reckon their seniority from 1972 and, therefore,

would be junior to the respondents. It was on this basis that the

Tribunal reviewed its earlier judgment and did not follow the

Constitution Bench decision of this Court in Direct Recruit

Class II Engg. Officers' Assn. case [(1990) 2 SCC 715 : 1990

SCC (L&S) 339 : (1990) 13 ATC 348 : (1990) 2 SCR 900 : AIR

1990 SC 1607] . We do not agree with the reasoning of the

Tribunal.

xxx xxx xxx

18. The appellant and Respondent 12 were promoted to the

post of Assistant Engineer on ad hoc basis by order dated 7-8-

1972 for a period of six months or till the concurrence of the

Orissa Public Service Commission to their appointments was

available, whichever was earlier. Their case was referred to the

Public Service Commission which gave its concurrence to their

appointments and consequently by order dated 17-7-1976, they

were appointed on regular basis.

// 46 //

Page 46 of 60

19. In the same year, namely in 1972, the respondents were

appointed as Assistant Engineers by direct recruitment. But the

Tribunal while determining the inter se seniority of promotees

and direct recruits, applied the unamended Rule 26 and held

that since the appellant and Respondent 12 were appointed only

on ad hoc basis in 1972 and theirs was not a substantive

appointment, they, in view of Rule 26, would be junior to the

respondents who were directly recruited as Assistant Engineers.

The Tribunal held that they could reckon their seniority only

from 1976 when they were substantively appointed as Assistant

Engineers.

20. The manner and method of recruitment by promotion on

the post of Assistant Engineer is contained in the rules. Rule

16(a) provides that the Chief Engineer of the department

concerned would nominate officers from the cadre of Junior

Engineers and Subordinate Engineering Service separately for

appointment to the service in the vacancies to be filled up by

promotion during the year. It is further provided in that rule that

the basis of nomination by the Chief Engineer would be merit

and suitability of the officer with due regard to seniority.

According to the proviso to Rule 16(a), a Junior Engineer who

has not completed two years of service, or Sub-Assistant

Engineers, who are not diploma-holders and have not completed

ten years of service, would not be considered for promotion. The

second proviso says that if an examination was prescribed by

the Government and such examination had not been passed by

that person, he would not be considered for promotion.

21. The list of officers nominated by the Chief Engineer for

promotion is required to be sent to the Government where the

cases of individual officers are required to be scrutinised by the

Departmental Committee on the basis of their service record

and interview, if necessary. The Departmental Committee would

then prepare a separate list of Junior Engineers and Sub-

Assistant Engineers considered by the Committee to be fit for

promotion. Thereafter, the Government would send such list to

the Public Service Commission along with complete record of

all the officers who are proposed to be promoted. The

Commission would then scrutinise the list and prepare two lists;

one for Junior Engineers and the other for Sub-Assistant

Engineers, arranged in the order of their suitability for

promotion and advise the Government accordingly. Under Rule

18, final selection of officers to be promoted is to be made by the

Government after considering the recommendations made by the

Commission.

// 47 //

Page 47 of 60

22. It appears that on the basis of these rules, the appellant

as also Respondent 12 were promoted to the post of Assistant

Engineer on ad hoc basis subject to the concurrence of the

Public Service Commission. This was done on 8-2-1972. On

receipt of the concurrence from the Orissa Public Service

Commission, a fresh notification was issued on 17-7-1976, by

which the appellant as also Respondent 12 were appointed on

regular basis as Assistant Engineers.

23. The Tribunal, while disposing of the case by its main

judgment, had noticed the counter-affidavit filed by the State

and it had observed that none of the opposite parties had come

forward to say that the promotion of the appellant and

Respondent 12 was not as per their eligibility and was purely

fortuitous in nature. It further observed:

“The counter filed by the State clearly discloses that both

the petitioners were promoted in the year 1972 to fill up the

permanent vacancies and as in most cases, where it is required

to take the advice of the Public Service Commission, they were

given ad hoc promotion subject to concurrence by the

Commission. There was admittedly delay in receipt of

concurrence from the Commission but both the petitioners

uninterruptedly continued in the promotional post till the

concurrence by the Commission was received by the State

Government.”

24. These facts clearly indicate that the promotion of the

appellant was a regular, though provisional, promotion made

against a permanent vacancy in accordance with the Service

Rules. The Chief Engineer was the officer authorised under the

rules to make the selection on the basis of merit. In the instant

case, such selection was made by the Chief Engineer and

pending concurrence of the Commission, the selected persons

were appointed by the Government on ad hoc basis. It has

already been indicated above that the Government is the final

authority in making the selection of officers for promotion to the

post of Assistant Engineer on the basis of the recommendations

made by the Commission. There is no dispute that the appellant

and Respondent 12 were appointed as Assistant Engineers by

the Government in 1972 and four years later, that is to say, in

1976 they were appointed on a regular basis on the

recommendation of the Orissa Public Service Commission.

25. It is thus clear that the appellant was promoted on a

regular, though provisional, basis pending concurrence from the

Orissa Public Service Commission. The promotion having been

made in accordance with the rules, the entire period of ad hoc

// 48 //

Page 48 of 60

service beginning from 1972 to 1976, when the appellant was

appointed on a regular basis on the concurrence of the

Commission, would have to be counted towards the seniority of

the appellant vis-à-vis the contesting respondents. The Tribunal,

in these circumstances, had rightly invoked the principles laid

down by this Court in Direct Recruit Class II Engg. Officers'

Assn. case [(1990) 2 SCC 715 : 1990 SCC (L&S) 339 : (1990)

13 ATC 348 : (1990) 2 SCR 900 : AIR 1990 SC 1607] . There

was no scope to deviate from this rule as it has been clearly laid

down by this Court in principles (A) and (B) set out therein as

under: (SCC p. 745, para 47)

“47. (A) Once an incumbent is appointed to a post

according to rule, his seniority has to be counted from the date

of his appointment and not according to the date of his

confirmation.

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 stopgap 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 regularisation of his service in

accordance with the rules, the period of officiating service will

be counted.”

On these principles, the Tribunal had held, and in our opinion

rightly, that the appellant and Respondent 12 were senior to the

respondents.

26. In O.P. Singla v. Union of India [(1984) 4 SCC 450 :

1984 SCC (L&S) 657] even prior to the decision in Direct

Recruit Class II Engg. Officers' Assn. case [(1990) 2 SCC 715 :

1990 SCC (L&S) 339 : (1990) 13 ATC 348 : (1990) 2 SCR 900 :

AIR 1990 SC 1607] a Bench of 3 Judges had held that the

seniority of direct recruits and promotees, if appointed under

the rules, has to be determined on the basis of the dates on

which the direct recruits were appointed and the dates from

which the promotees had been officiating continuously, either in

the temporary posts or against substantive vacancies. It may be

pointed out that the Constitution Bench decision in Direct

Recruit Class II Engg. Officers' Assn. case [(1990) 2 SCC 715 :

1990 SCC (L&S) 339 : (1990) 13 ATC 348 : (1990) 2 SCR 900 :

AIR 1990 SC 1607] was considered by a three-Judge Bench of

this Court in State of W.B. v. Aghore Nath Dey [(1993) 3 SCC

371 : 1993 SCC (L&S) 783 : (1993) 24 ATC 932] and principles

(A) and (B) were explained as under: (SCC p. 382, para 22)

“22. There can be no doubt that these two conclusions have

to be read harmoniously, and conclusion (B) cannot cover cases

// 49 //

Page 49 of 60

which are expressly excluded by conclusion (A). We may,

therefore, first refer to conclusion (A). It is clear from

conclusion (A) that to enable seniority to be counted from the

date of initial appointment and not according to the date of

confirmation, the incumbent of the post has to be initially

appointed ‘according to rules’. The corollary set out in

conclusion (A), then is, that ‘where the initial appointment is

only ad hoc and not according to rules and made as a stopgap

arrangement, the officiation in such posts cannot be taken into

account for considering the seniority’. Thus, the corollary in

conclusion (A) expressly excludes the category of cases where

the initial appointment is only ad hoc and not according to

rules, being made only as a stopgap arrangement. The case of

the writ petitioners squarely falls within this corollary in

conclusion (A), which says that the officiation in such posts

cannot be taken into account for counting the seniority.”

xxx xxx xxx

28. The Constitution Bench decision was followed in Keshav

Deo v. State of U.P. [(1999) 1 SCC 280 as also in L.

Chandrakishore Singh v. State of Manipur [(1999) 8 SCC 287.”

4.18. Similarly, reliance was placed to another decision of the

Hon’ble Apex Court in the case of Direct Recruit Class II

Engineering Officers’ Association vs. State of Maharashtra & Ors.

reported in (1990) 2 SCC 715. Hon’ble Apex Court in Para 47(A) &

47(B) has held as follows:-

“A) Once an incumbent is appointed to a post according

to rule, his seniority has to be counted from the date of his

appointment and not according to the date of his

confirmation. 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.

// 50 //

Page 50 of 60

(B) If the initial appointment is not made by following the

procedure laid down by the rules but the appointee

continues in in the past uninterruptedly till the

regularization of his service in accordance with the rules,

the period of officiating service will be counted.”

4.19. It is further contended that as per the Rules of Business of the

Govt. of Odisha, only the view of the Law Department is to be

followed and not of any other Department. Hence view expressed by

the G.A. P.G. Department under Annexure-10, cannot be treated as a

view as per the Rules of Business.

4.20. In support of the same, reliance was placed to the instruction

issued by the Govt. at different point of time regarding the Rules of

Business of the Govt.. As provided under Rule 14 of the Rules r.w.

Article 166 of the Constitution of India, it is contended that if any

other Department other than the Law Department proposed to issue

any statutory rule, notification or order, the draft should be referred to

the Law Department for its opinion and all Administrative

Departments shall consult the Law Department with regard to

construction of Statutes, Acts, Regulations and Statutory Rules,

Orders & notifications.

4.21. It is further contended that during pendency of W.P.(C) Nos.

36470 & 36490 of 2021, when Govt.-Opp. Party No. 1 vide order

// 51 //

Page 51 of 60

dtd.21.09.2022 under Annexure-8 sought for the status of the

vigilance proceeding/criminal proceeding pending against the Officers

continuing in the rank of OAS Group-A (JB) for consideration of their

promotion to the rank of OAS Group-A (SB), the matter was assailed

in W.P.(C) No. 25137 of 2022.

4.22. Even though initially this Court restrained the Opp. Parties from

giving any promotion to the rank of OAS Group-A (SB), but such

interim order was modified vide order dtd.29.09.2022, wherein

permission was given to the State to extend the benefit of promotion

to eligible Officers continuing in the cadre of OAS Group-A (JB) to

the rank of OAS Group-A (SB). However, subject to the outcome of

the writ petition and other writ petitions pending by that time with a

further observation that all such promotees will not claim any equity

and the same be indicated in the order of promotion. Relevant extract

of order dtd.29.09.022 reads as follows:-

“11. Having heard learned counsel for the Parties and after going

through the materials available on record as well as the submission

made by the learned Advocate General that as against the available

vacancies of 322 in OAS Group-A(SB) since the Petitioners of both

the Groups i.e. Direct Recruitees of 2011 and Promotees of 2015

will all be accommodated with extension of promotion, this Court in

modification of its order dtd.24.09.2022 pass the following order:-

// 52 //

Page 52 of 60

“(i) The promotion given from OAS Group-A(JB) to

OAS-Group A(SB) during pendency of the matter will

not confer any equity in favour of any of Promotees and

that will be subject to the final outcome of all the writ

Petitions to be heard analogously by this Court.”

(ii) The aforesaid stipulation shall be indicated in the

order of promotion also.””

4.23. It is also contended that seeking quashing of Para 6 & 7 of the

G.A. Department Resolution dtd.09.09.2021, W.P.(C) No. 3113 of

2026 has been filed.

4.24. Making all these submissions learned Sr. Counsel appearing for

the Private Opp. Parties contended that Private Opp. Parties have been

rightly given the benefit of seniority over the Petitioners vide the

impugned order dtd.15.11.2021 under Annexure-9 and it requires no

interference.

4.25. Since the decision taken by the G.A. & P.G. Department vide

notification dtd.09.09.2021 under Annexure-10, has been issued

without due consultation of the Law Department, the said notification

is contrary to the Rules of Business of the Govt. and could not have

been issued.

5. To the submissions made by the learned Sr. Counsel appearing for

the Petitioners, Mr. S.K. Das, learned counsel appearing for the

// 53 //

Page 53 of 60

Petitioners made further submission contending inter alia that since

Petitioners were all appointed as against the recruitment year 2011 and

because of the delay involved, they were only appointed vide

notification dtd.04.03.2016, in view of the decision in the case of K.

Meghachandra Singh so followed in Annexure-10, they were rightly

placed above the Private Opp. Parties in the final gradation list

published on 08.03.2019 under Annexure-7. But without proper

appreciation of the decision in the case of K. Meghachandra Singh,

more particularly Para 39 of the said decision, since the impugned

order has been passed directing for placement of the Private Opp.

Parties above the Petitioners in the rank of OAS Group-A (JB), the

same requires interference of this Court.

5.1. It is also contended that since by the time the final gradation list

was published on 08.03.2019, the decision in the case of N.R. Parmar

was governing the field, such fixation of seniority is protected by the

subsequent decision of the Apex Court in the case of K.

Meghachandra Singh, so delivered on 19.11.2019. It is accordingly

reiterated that impugned order is liable for interference of this Court.

6. To the submission made by the learned counsel appearing for the

Petitioners, learned Sr. Counsel appearing for the Private Opp. Parties

// 54 //

Page 54 of 60

and learned counsel appearing for the Petitioner in connected W.P.(C)

No. 9137 of 2022, contended that as per the Rules of Business, since

view of the Law Department is to be given priority, the Law

Department in the present case while giving its view in the relevant

file on 25.09.2021, clearly opined that direct recruitees who have been

placed above the promotee officers in the final gradation list

dtd.08.03.2019, are not protected by the judgment in the case of K.

Meghachandra Singh, as the gradation list was not prepared as per

the judgment in the case of N.R. Parmar.

6.1. It is also contended that final gradation list published on

08.03.2019, cannot be taken as the gradation list attaining finality in

the eye of law and protected as per the judgment in the case of K.

Meghachandra Singh, as immediately after publication of the final

gradation list on 08.03.2019, Private Opp. Parties challenged the same

by filing W.P.(C) No. 19346 of 2019.

6.2. Therefore, it cannot be said that final gradation list published on

08.03.2019 even in terms of the decision in the case of N.R. Parmar is

the final gradation list, which has attained finality and protected as per

the decision in the case of K. Meghachandra Singh. It is accordingly

contended that since Private Opp. Parties have joined in the cadre

// 55 //

Page 55 of 60

earlier than the Petitioners, in view of the decision in the case of

Jagdish Chandra Pattanaik & Ors, Arbind Jee, Pawan Pratap Singh

& Ors., Vishan Gujrati & Ors. & P. Sudhakar Rao so cited (supra),

Private Opp. Parties are liable to be placed above the Petitioners and

the same has been rightly held by Opp. Party No. 1 with passing of the

order td.15.11.2021 under Annexure-9, which is the subject matter of

challenge in the present writ petition.

7. Having heard learned counsel appearing for the Parties and

considering the submission made, this Court finds that to fill up

various posts coming under Odisha Civil Service, an advertisement

was issued by the Commission on 17.11.2011 under Annexure-1. The

advertisement was issued for recruitment against the posts coming

under Odisha Civil Service for the recruitment year 2011 under

Annexure-1.

7.1. However, Petitioners who participated in the selection process

pursuant to such advertisement issued on 17.11.2011, were only

appointed vide notification dtd.04.03.2016 under Annexure-2 series.

Prior to such appointment of the Petitioners as against the post of OAS

Group-A (JB) vide notification dtd.04.03.2016, Private Opp. Parties

were already promoted to the rank of OAS Group-A (JB) vide

// 56 //

Page 56 of 60

notification dtd.17.10.2015 under Annexure-3 as against the

recruitment year 2015. Promotion of the Private Opp. Parties on ad-

hoc basis was made regular vide notification dtd.25.04.2017 under

Annexure-4.

7.2. It is found that after such appointment of the Petitioners vide

notification dtd.04.03.2016 and of the Private Opp. Parties vide

notification dtd.17.10.2015, in the final gradation list of OAS Group-

A (JB) published on 08.03.2019, Petitioners were placed above the

Private Opp. Parties. However, such placement of the Private Opp.

Parties below the Petitioners was assailed by such promotees by filing

W.P.(C) No. 19346 of 2019. This Court vide order dtd.29.07.2021

while disposing the writ petition, permitted the Private Opp. Parties to

move Opp. Party No. 1 for consideration of their claim with regard to

fixation of the inter-se seniority in between them and the Petitioners.

7.3. It is found that on consideration of such grievance raised by the

Private Opp. Parties, Opp. Party No. 1 vide order dtd.15.11.2021

under Annexure-9 held the Private Opp. Parties entitled to be placed

above the Petitioners in the gradation list of OAS Group-A (JB). The

said decision of Opp. Party No. 1 passed on 15.11.2021 under

Annexure-9, is under challenge in W.P.(C) No. 36490 of 2021. As

// 57 //

Page 57 of 60

found from the impugned order, Opp. Party No. 1 took such a decision

to place the Private Opp. Parties above the Petitioners, relying on the

decision of the Hon’ble Apex Court in the case of K. Meghachandra

Singh and the notification issued by the G.A. & P.G. Department on

09.09.2021 under Annexure-10.

7.4. It is not disputed that inter se seniority of the direct recruitees and

promotees in the rank of OAS Group-A(JB) is governed under Rule

11 of the 2011 Rules. It is also found that the word ‘recruitment year’

is not defined under the 2011 Rules and Rule 11 only prescribes the

fixation of inter-se seniority of the promotees and direct recruitees

who were appointed and/or promoted as against a particular

recruitment year. But in the case in hand Petitioners were appointed as

direct recruitees as against the recruitment year 2011, and the Private

Opp. Parties were promoted to the rank of OAS Group-A (JB) as

against the recruitment year 2015. Therefore, it is the view of this

Court that Rule 11 of the Rules since is silent so far as fixation of inter

se seniority where such appointment and promotion is made as against

different recruitment year, Rule 11 cannot be relied on, so far as the

present dispute is concerned.

// 58 //

Page 58 of 60

7.5. It is also found that Private Opp. Parties were promoted to the

rank of OAS Group-A (JB) vide notification dtd.17.10.2015 under

Annexure-3 and Petitioners were so appointed vide notification

dtd.04.03.2016 under Annexure-2. It is also not disputed that the

Private Opp. Parties joined in the cadre of OAS Group-A (JB),

pursuant to their promotion vide notification dtd.17.10.2015, ahead of

the Petitioners, who were only appointed vide notification

dtd.04.03.2016.

7.6. Since the Private Opp. Parties admittedly have joined in the cadre

of OAS Group-A (JB) ahead of the Petitioners, though they were

regularly appointed vide notification dtd.25.04.2017 under Annexure-

4, it is the view of this Court that they are required to be placed above

the direct recruitees, in view of the decision of the Hon’ble Apex

Court in the case of Jagdish Chandra Pattanaik & Ors, Arbind Jee,

Pawan Pratap Singh & Ors., Vishan Gujrati & Ors. & P. Sudhakar

Rao so cited (supra).

7.7. It is also the view of this Court that final gradation list published

on 08.03.2019 since was challenged before this Court in W.P.(C) No.

19346 of 2019, it cannot be said that the final gradation list published

on 08.03.2019 under Annexure-7 in terms of the decision in the case

// 59 //

Page 59 of 60

of N.R. Parmer, had attained finality in the eye of law, by the time

judgment in the case of K. Meghachandra Singh was delivered on

19.11.2019. Therefore, it is the view of this Court that, view expressed

by the Hon’ble Apex Court in Para 39 of the decision in the case of K.

Meghachandra Singh, is not applicable to the case of the Petitioners.

It is however the view of this Court that ratio of the decision in the

case of N.R. Parmer as well as K. Meghachandra Singh, is

applicable even with regard to the dispute regarding fixation of

seniority in between the direct recruitees and promotees in the State of

Odisha.

7.8. In view of the aforesaid analysis, this Court is of the view that the

impugned order has been rightly passed and it requires no

interference. Accordingly, this Court is not inclined to interfere with

the impugned order dtd.15.11.2021 under Annexure-9 and dismiss the

writ petition in W.P.(C) No. 36490 of 2021.

7.9. In view of the dismissal of the writ petition in W.P.(C) No. 36490

of 2021, the writ petition in W.P.(C) No. 36470 of 2021 also stands

dismissed. The writ petition in W.P.(C) Nos. 25137 of 2022 and

W.P.(C) No. 9137 of 2022 stand disposed of with a direction on the

Opp. Party No. 1, to take consequential action in terms of the interim

// 60 //

Page 60 of 60

order passed on 29.09.2022 in W.P.(C) No. 25137 of 2022 and

upholding of order dtd.15.11.2021, so passed by the Opp. Party No. 1.

This Court however is not inclined to strike down Para 6 & 7 of G.A.

Department Resolution dtd.09.09.2021 and dismiss W.P.(C) No. 3113

of 2026.

Photo copy of the order be placed in the connected case records.

(BIRAJA PRASANNA SATAPATHY)

Judge

Orissa High Court, Cuttack

Dated the 5

th

May, 2026/Sneha