PETITIONER:
PRAHALLAD BARAL
Vs.
RESPONDENT:
GOVERNMENT OF ORISSA & ORS.
DATE OF JUDGMENT: 03/03/1997
BENCH:
K. RAMASWAMY, G.T. NANAVATI
ACT
HEADNOTE
JUDGMENT
THE 3RD DAY OF MARCH 3, 1997 Present:
Hon’ble Mr.Justice K. Ramaswamy
Hon’ble Mr.Justice G.T.Nanavati B.A.Mohanty, Sr.Adv., Ms.Kirti Mishra, Adv. with him for the appellant A.K. Panda, P.N. Misra, Advs. for the Respondents
ORDER
The following Order of the Court was delivered:
Live granted. We have heard learned counsel on both sides.
This appeal by special leave arises from the order of the Central Administrative Tribunal, Bhubaneswar, made on February 8, 1996 in Application No.6/91.
The respondents-employees were appointed to the posts of L.D.C in 1970-71. The appellant was later appointed in 1972-73. The question of their inter se seniority had come up before the Government. The Government in its order dated February 4, 1971 prescribed the minimum educational qualification, viz., intermediate, for recruitment to the post of L.D.C in the district and subordinate offices. The contesting respondents-employees are only Matriculates while the appellant has Intermediate educational qualifications. On the basis of their educational qualifications, the Government have issued instructions for fixation of their inter se seniority as under:
"(a) All L.S. Clerks who have
passed Matriculation or any
equivalent examination shall be
deemed to have validly and
regularly recruited and appointed
as such and they shall not be
required to pass the Recruitment
Examination or any special
qualifying test in lieu thereof
prescribed by Government.
(b) The seniority of the L.D.
Clerks under category (a) above
shall be fixed taking into account
their services from the date of
appointment as L.D. Clerks but in
the gradation list of L.D. Clerks
they shall rank immediately below
the L.D. Clerks recruited during
the same year with the minimum
educational qualification
prescribed by Government in Finance
Department Resolution No.3968F dt.
4.2.71. According to the revised
gradation list to be prepared as
above, they may be confirmed
against permanent posts if
available, provided they fulfil all
other conditions necessary for
confirmation.
(c) Refixation of seniority of
these clerks as mentioned in (b)
above shall not entitle them to any
promotional benefits
retrospectively.
(d) The L.D. Clerks so regularised
will be entitled to draw their pay
as per the principles laid down in
Finance Department Resolution
No.3968F dt. 4.2.71 read with
Finance Department Resolution
No.90F. dt. 2.1.73 from the date of
their appointment to such posts."
A reading of it would clearly indicate that all L.D.Cs. who have passed Matriculation or any equivalent examination shall be deemed to have been validly and regularly recruited to pass the Recruitment Examination or any special qualifying test. But in the matter of preparation of their seniority, it postulates that seniority will be given to those who have got the minimum educational qualification. In other words, those possessed of Intermediate qualification, will rank as senior to Matriculates. As a consequence, the appellant, though appointed later, became senior to the respondents. the departmental Promotion Committee Constituted for the purpose of selection for promotion to the post of U.D.C. had considered the appellant’s claim and found him fit. It regularised his services and has given him the promotion as he was senior to the respondents. Subsequently, when the respondents’ claim came up for consideration, the D.P.C. recommended for demotion of the appellant and confirmation of the respondents, Consequently, in the gradation list, the respondents were placed above the appellant. On appeal, Government reversed it. As a consequence, the respondents approached the Tribunal. The Tribunal in the impugned order has held thus:
"Petitioners who were regularised
in service by Govt. order dated
21.10.81 in which all the L.D.
Clerks who had passed Matriculation
or equivalent examination were
deemed to have been validly and
regularly recruited and appointed
as such and they were not required
to pass the recruitment examination
or any special qualifying test in
lieu Thereof prescribed by
Government. Opposite Parties 4 to 6
who came to be appointed much later
than the petitioners were promoted
without prejudice to the claims of
their seniors (Petitioners) to the
rank of U.D. Clerk in the year
1980, 1981 to the post of U.D.
Clerk. On their promotion as per
the conditions, Opposite Parties 4
to 6 were reverted to the post of
U.D. Clerk in the year 1981. From
1981 till this litigation was filed
in the year 1991 petitioners are
continuing uninterruptedly in the
promotional post of U.D. Clerk and
Opposite Parties 4 to 6 are
continuing as L.D. Clerks. None
years after in the year 1990 under
the impugned order U.D. Clerks was
ordered to be set aside. Was it
justified? Even on the ground that
the representation of the Opposite
Parties was disposed of in the year
1990."
The appellant was regularised in service by Government Order dated 8.10.1981. All the L.D.Cs. who had passed Matriculation or equivalent examination were deemed to have been validly and regularly recruited and appointed as such. They were not required to entitle to pass the Recruitment Examination or any qualifying test in lien thereof prescribed by the Government. On that basis, the direction was given in paragraph 13 which reads as under:
"In the premise for the reasons
stated above and discussions made,
the orders at Annexures-9 and 10
are unsustainable and are,
therefore, liable to be set aside,
which are hereby set aside.
Petitioners shall continue in the
promotional post without any
disturbance in the seniority list."
This direction is obviously inconsistent with the orders issued by the Government as indicated above. Since the respondent-employees did not possess minimum educational qualification, viz., Intermediate, they are not entitled to rank senior to the qualified appellant. Thus, the contesting respondents 4 and 5 in this appeal shall be junior to the appellant.
However, their continuance in the respective posts for promotion may not be disturbed since all the parties have been further promoted in which posts their inter se seniority would be the appellant is senior to them for further promotions.
The appeal is accordingly allowed. But in the circumstances without costs.