E. China Babu and Sabitri Patra and Manjushree Tripathy V. Odisha Legislative Assembly

WP(C)/17095/2021

AI Insights

The case involves three writ petitions filed by different petitioners challenging the final gradation list of employees at the Odisha Legislative Assembly (OLA). The petitioners argued that their seniority was not correctly reflected in the gradation list compared to other employees who were appointed later or irregularly. The OLA defended the gradation list based on the merit and select lists prepared during the recruitment process. The court examined the rules governing the service conditions of OLA employees, particularly focusing on the absence of a merit list and the implications of the select list used for determining seniority. The court's decision was influenced by precedents and the interpretation of service rules, leading to the modification of the gradation list for two petitioners while rejecting the claims of the third.

• Counselvise Citation: [2024] 140 COUNSELVISE.COM (IT) 798162 (HC-MISC)
• Appeal Type: Others
• Pronouncement Date: 28-10-2024
• Assessment Year: misc
• Other Referred Cases: K. Meghachandra Singh and Others v. Ningam Siro and Others, Union of India and Others v. N.R. Parmar, State of Uttar Pradesh and Others v. Ashok Kumar Srivastava and Another, Pawan Pratap Singh and Others v. Reevan Singh and Others, Jagdish Chandra Patnaik v. State of Orissa
• Laws Referred To: Articles 226 and 227 of the Constitution of India
• Result in Favour of: Partly Allowed
• Court: HIGH COURT
• Department Lawyers: S PALIT; D P NANDA; S P MISHRA
• Assessee Lawyers: MADHUMITA PANDA; SADASIVA PATRA 1; D P NANDA; A N PATTNAIK
• Keywords: Gradation list; Inter-se seniority; Merit List; Select list; Recruitment process
• Section: 10

Judgement Text

" W.P.(C) No.24337 of 2022 and Batch Page 1 of 21 IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.24337 of 2022, 17095 and 39811 of 2021. (In the matter of applications under Articles 226 and 227 of the Constitution of India) In W.P.(C) No.24377 of 2022 E. China Babu …. Petitioner -versus- Odisha Legislative Assembly, represented through its Secretary, and Others …. Opposite Parties Advocate(s) appeared in this case:- For Petitioner : Ms. Madhumita Panda, Advocate For Opposite Parties : Mr. S. Palit, Senior Advocate for O.P. No.1 Mr. D.P. Nanda, Senior Advocate with Mr. A.N. Pattnaik, counsel for O.P. No.9. Mr. S.P. Mishra, Senior Advocate for O.P. 3 to 8. In W.P.(C) No.17095 of 2021 Sabitri Patra …. Petitioner -versus- Odisha Legislative Assembly, represented through its Secretary, and Others …. Opposite Parties Advocate(s) appeared in this case:- For Petitioner : Mr. Sadasiva Patra-1, Advocate For Opposite Parties : Mr. S. Palit, Senior Advocate for O.P.1 & 2. Mr. D.P. Nanda, Senior Advocate with Mr. A.N. Pattnaik, counsel for O.P. No.15. Mr. S.P. Mishra, Senior Advocate for O.P.3 to 14 & 17 & 19. Digitally Signed Signed by: MANAS KUMAR PANDA Reason: Authentication Location: OHC, Cuttack Date: 04-Nov-2024 18:19:41 Signature Not Verified W.P.(C) No.24337 of 2022 and Batch Page 2 of 21 In W.P.(C) No.39811 of 2021 Manjushree Tripathy …. Petitioner -versus- Odisha Legislative Assembly, represented through its Secretary, and Others …. Opposite Parties Advocate(s) appeared in this case:- For Petitioner : Mr. D.P. Nanda, Senior Advocate with Mr. A.N. Pattnaik, Advocate For Opposite Parties : Mr. S. Palit, Senior Advocate for O.P.1 & 2 Mr. S.P. Mishra, Senior Advocate for O.P. 3 to 12. CORAM: JUSTICE B.P. ROUTRAY JUDGMENT 28th October, 2024 B.P. Routray, J. 1. Heard Ms. M. Panda, learned counsel for the Petitioner in WP(C) No.24337 of 2022, Mr. S. Patra-1, learned counsel for the Petitioner in WP(C) No.17095 of 2021 and Mr. D.P. Nanda, learned senior counsel along with Mr. A.N. Pattnaik, learned counsel for Petitioner in WP(C) No.39811 of 2021 as well as Mr. S. Palit, learned Senior counsel for Odisha Legislative Assembly (OLA) in all the cases, Mr. D.P. Nanda, learned Senior counsel for Opposite Party No.9 in WP(C) No.24337 of 2022 and Opposite Party No.15 in WP(C) Digitally Signed Signed by: MANAS KUMAR PANDA Reason: Authentication Location: OHC, Cuttack Date: 04-Nov-2024 18:19:41 Signature Not Verified W.P.(C) No.24337 of 2022 and Batch Page 3 of 21 No.17095 of 2021 and Mr. S.P. Mishra, learned senior counsel for other private Opposite Parties in all the three writ petitions. 2. In the above three writ petitions the Petitioners have challenged the common impugned order dated 12th May 2021 along with the final gradation list appended to the same. The Petitioners in these three writ petitions have though taken different grounds to challenge the same order of preparing the gradation list, but all the writ petitions are heard together and disposed of by this common judgment. 3. The case of the Petitioner in WP(C) No.24337 of 2022 is that, the private Opposite Parties in the said writ petition being appointed after him in service should be placed below in the gradation list. The case of the Petitioner in WP(C) No.17095 of 2021 is that, the private Opposite Parties therein being appointed illegally and irregularly cannot be placed above her in the gradation list. According to said Petitioner, she is the only candidate appointed in due process of selection and all such private Opposite Parties named in her writ petition are illegally and irregularly appointed. The case of the Petitioner in WP(C) No.39811 of 2021 is that she being an appointee of the recruitment test and vacancy of the year Digitally Signed Signed by: MANAS KUMAR PANDA Reason: Authentication Location: OHC, Cuttack Date: 04-Nov-2024 18:19:41 Signature Not Verified W.P.(C) No.24337 of 2022 and Batch Page 4 of 21 1997, should have been treated as a recruitee of the year 1997 and consequently to be placed above in the gradation list to the recruitees of the year 1998. 4. All the Petitioners and private Opposite Parties in three writ petitions are the employees of OLA Secretariat, and were initially appointed as Junior Assistants or like posts and have been now re- designated as Assistant Section Officers. The date of joining of each of the parties mentioned in the gradation list, as impugned in the present writ petitions, is not disputed by either party. The Secretary of OLA who is the common Opposite Party in all the writ petitions has filed the counter affidavit in three respective cases. According to the Secretary of OLA, the gradation list has been finalized as per the merit of the candidates at the time of their initial appointment. It is further stated that in the matter of finalization of inter se seniority of the employees, the opinion of the Advocate General was sought for and based on his opinion the gradation list has been finalized upon rejection of the objections raised by the respective Petitioners to the draft gradation list. Digitally Signed Signed by: MANAS KUMAR PANDA Reason: Authentication Location: OHC, Cuttack Date: 04-Nov-2024 18:19:41 Signature Not Verified W.P.(C) No.24337 of 2022 and Batch Page 5 of 21 5. The Petitioner in WP(C) No.24337 of 2022 namely E. China Babu raised his serious objection to the effect that there was no merit list available with the employer for finalization of inter se seniority and based on the select list prepared on 17th August, 1998 for two batches of recruitees, i.e. 1997 and 1998, the seniority inter se has been fixed with the opinion of learned Advocate General. 6. Ms. Panda, learned counsel for Petitioner E. China Babu contends that the impugned order itself speaks clearly that the select list dated 17th August 1998 relied on by the authorities is never the merit list and therefore, the placement of the employees based on said select list in the gradation list is liable to be disturbed, since the persons entered to the service later to the Petitioner have been placed above the Petitioner in the gradation list. 7. The private Opposite Parties as well as OLA never denies the list dated 17th August, 1998 as mere select list, but admits it as the merit list. According to Mr. Palit, learned senior counsel for the Secretary of OLA and Mr. Mishra, learned senior counsel for the private Opposite Parties, they draw support to their contentions for treating the select list dated 17th August, 1998 as the merit list in terms of the contents of Digitally Signed Signed by: MANAS KUMAR PANDA Reason: Authentication Location: OHC, Cuttack Date: 04-Nov-2024 18:19:41 Signature Not Verified W.P.(C) No.24337 of 2022 and Batch Page 6 of 21 Annexure-A/1 which is the proceeding of the DPC held on 17th August, 1998. 8. Before entering into the controversy of inter se seniority of the parties, it is relevant to see the rules governing the service conditions of the staff of OLA Secretariat. The Orissa Legislative Assembly Secretariat (Recruitment and Conditions of Service) Rules, 1983 governs the service condition of the employees of Assembly Secretariat including the recruitment and promotion. Said rule does not specifically prescribe norms or measures for fixing inter se seniority. The only relevant rule according to learned counsels for the parties is Rule 10. Said Rule 10 reads as follows:- “10. (1) The Speaker shall constitute a Selection Committee to advise Secretary in the matter of appointment to be made to the Class III and Class IV posts of the service by direct recruitment and by promotion. (2) The Committee shall consist of more than one senior officer of the Secretariat, other than Secretary: Provided that the services of an expert to aid to the Committee in the matter of selection of candidates for appointment may be requisitioned as and when directed by the Speaker. (3) The Selection Committee may conduct tests and prepare list of candidates as per merit for direct recruitment to the post in the service. Digitally Signed Signed by: MANAS KUMAR PANDA Reason: Authentication Location: OHC, Cuttack Date: 04-Nov-2024 18:19:41 Signature Not Verified W.P.(C) No.24337 of 2022 and Batch Page 7 of 21 (4) The Selection Committee for recommending persons for appointment by promotion shall consider the C.C.Rs. of all eligible persons and prepare a list of candidates on the basis of merit and suitability with due regard to seniority.” 9. As evident from the above rule, sub-rule 3 speaks that the Selection Committee may conduct tests and prepare list of candidates as per merit for direct recruitment to the posts. So it is implied that a merit list must be prepared for direct recruitment. By relying on said Rule 10(3), Mr. Palit as well as Mr. Mishra contend that the select list dated 17th August 1998 under Annexure-2 or Annexure-A/1 is the merit list prepared by the Selection Committee and therefore, there should not be any doubt for fixing the inter se seniority. 10. I completely disagree with the submissions made by Mr. Palit as well as Mr. Mishra. It is for the reason that while Rule 10(3) speaks of preparation of merit list, the list prepared under Annexure-2 never says the same as merit list, but refers it as a select list instead. The list prepared under Annexure-2 is mentioned as select list as per the written test and it is kept in the order of unreserved candidates, then SEBC candidates, then ST candidates and then SC candidates. Therefore, the interpretation advanced by the employer as well as the private Opposite Parties that this is the merit list, but named as select Digitally Signed Signed by: MANAS KUMAR PANDA Reason: Authentication Location: OHC, Cuttack Date: 04-Nov-2024 18:19:41 Signature Not Verified W.P.(C) No.24337 of 2022 and Batch Page 8 of 21 list, is found unacceptable for the simple reason that candidates cannot be expected to be placed in merit serially according to the categories like UR, SEBC, ST and SC. Further, the document under Annexure- A/1 as referred to by the Opposite parties also speaks of merit list and never says about preparation of select list. The impugned order under Annexure-9 also speaks that the merit list of the recruitees of 1997 and 1998 batches of Junior Assistants (presently designated as Assistant Section Officers) is absent and therefore opinion of the Advocate General was sought for to fix inter se seniority. As reveals from said impugned order, the learned Advocate General finding the merit list of candidates absent has opined that, in absence of merit list / marks and further in absence of any executive directions / orders, the select list prepared by the Selection Committee dated 17th August, 1998 should be taken as merit list. Therefore, from bare perusal of the impugned order, it is clear that the select list dated 17th August, 1998 has been treated as the merit list to fix the seniority inter se between the parties based on the opinion of learned Advocate General in absence of any merit list / marks or other documents. From the above analysis it can thus be concluded that the select list dated 17th August, 1998 at Digitally Signed Signed by: MANAS KUMAR PANDA Reason: Authentication Location: OHC, Cuttack Date: 04-Nov-2024 18:19:41 Signature Not Verified W.P.(C) No.24337 of 2022 and Batch Page 9 of 21 Annexure-2 is not the merit list and in absence of the merit list and other documents, the select list has been treated as the merit list. 11. Accordingly the question falls for determination is, what should be the right modality for fixing inter se seniority of the employees in absence of the merit list ? 12. In such situation, where there is any merit list of the candidates is available to found out their order of merit, the rule relating inter se seniority has to be looked into first. As stated earlier, the Orissa Legislative Assembly Secretariat (Recruitment and Conditions of Service) Rules, 1983 is silent about inter se seniority of the candidates in absence of merit. According to Rule 10(3) a merit list has to be prepared for direct recruitment and since the same is absent in the present case, the rules are of no help in fixing the inter se seniority of the employees. Of course, had the merit of the employees being known there should not have been any dilemma in fixing the inter se seniority of the parties. The Hon’ble Supreme Court in the case of K. Meghachandra Singh and Others v. Ningam Siro and Others, (2020) 5 SCC 689 after taking note of several earlier decisions including Union of India and Digitally Signed Signed by: MANAS KUMAR PANDA Reason: Authentication Location: OHC, Cuttack Date: 04-Nov-2024 18:19:41 Signature Not Verified W.P.(C) No.24337 of 2022 and Batch Page 10 of 21 Others v. N.R. Parmar, (2012) 13 SCC 340, State of Uttar Pradesh and Others v. Ashok Kumar Srivastava and Another, (2014) 14 SCC 720, Pawan Pratap Singh and Others v. Reevan Singh and Others, (2011) 3 SCC 267 and Jagdish Chandra Patnaik v. State of Orissa, (1998) 4 SCC 456 and many other cases, have discussed as follows:- “28. Before proceeding to deal with the contention of the appellants' counsel vis-à-vis the judgment in N.R. Parmar [(2012) 13 SCC 340], it is necessary to observe that the law is fairly well settled in a series of cases, that a person is disentitled to claim seniority from a date he was not borne in service. For example, in Jagdish Ch. Patnaik v. State of Orissa, [(1998) 4 SCC 456] the Court considered the question whether the year in which the vacancy accrues can have any bearing for the purpose of determining the seniority irrespective of the fact when the person is actually recruited. The Court observed that there could be time-lag between the year when the vacancy accrues and the year when the final recruitment is made. Referring to the word “recruited” occurring in the Orissa Service of Engineers Rules, 1941 the Supreme Court held in Jagdish Ch. Patnaik v. State of Orissa, [(1998) 4 SCC 456] that person cannot be said to have been recruited to the service only on the basis of initiation of process of recruitment but he is borne in the post only when, formal appointment order is issued. 29. The above ratio in Jagdish Ch. Patnaik v. State of Orissa, [(1998) 4 SCC 456] is followed by this Court in several subsequent cases. It would however be appropriate to make specific reference considering the seniority dispute in reference to the Arunachal Pradesh Rules which are in parimateria to the MPS Rules, 1965 vide Nani Sha v. State of Arunachal Pradesh, [(2007) 15 SCC 406]. Having regard to the similar provisions, the Court approved the view that seniority is to be reckoned not from the date when Digitally Signed Signed by: MANAS KUMAR PANDA Reason: Authentication Location: OHC, Cuttack Date: 04-Nov-2024 18:19:41 Signature Not Verified W.P.(C) No.24337 of 2022 and Batch Page 11 of 21 vacancy arose but from the date on which the appointment is made to the post. The Court particularly held that retrospective seniority should not be granted from a day when an employee is not even borne in the cadre so as to adversely impact those who were validly appointed in the meantime. 30. We may also benefit by referring to the judgment in State of U.P. v. Ashok Kumar Srivastava [(2014) 14 SCC 720] . This judgment is significant since this is rendered after the N.R. Parmar [Union of India v. N.R. Parmar, (2012) 13 SCC 340] decision. Here the Court approved the ratio in Pawan Pratap Singh v. Reevan Singh (2011) 3 SCC 267, and concurred with the view that seniority should not be reckoned retrospectively unless it is so expressly provided by the relevant Service Rules. The Supreme Court held that seniority cannot be given to an employee who is yet to be borne in the cadre and by doing so it may adversely affect the employees who have been appointed validly in the meantime. The law so declared in State of U.P. v. Ashok Kumar Srivastava, (2014) 14 SCC 720 being the one appealing to us, is profitably extracted as follows : (SCC p. 730, para 24) “24. The learned Senior Counsel for the appellants has drawn inspiration from the recent authority in Pawan Pratap Singh v. Reevan Singh, (2011) 3 SCC 267 where the Court after referring to earlier authorities in the field has culled out certain principles out of which the following being the relevant are produced below : (SCC pp. 281-82, para 45) ‘45. (ii) Inter se seniority in a particular service has to be determined as per the service rules. The date of entry in a particular service or the date of substantive appointment is the safest criterion for fixing seniority inter se between one officer or the other or between one group of officers and the other recruited from different sources. Any departure therefrom in the statutory rules, executive instructions or otherwise must be consistent with the requirements of Articles 14 and 16 of the Constitution. *** Digitally Signed Signed by: MANAS KUMAR PANDA Reason: Authentication Location: OHC, Cuttack Date: 04-Nov-2024 18:19:41 Signature Not Verified W.P.(C) No.24337 of 2022 and Batch Page 12 of 21 (iv) The seniority cannot be reckoned from the date of occurrence of the vacancy and cannot be given retrospectively unless it is so expressly provided by the relevant service rules. It is so because seniority cannot be given on retrospective basis when an employee has not even been borne in the cadre and by doing so it may adversely affect the employees who have been appointed validly in the meantime.’ ” 31. With the above understanding of the law on seniority, the provisions of the MPS Rules, 1965 and more specifically Rule 28(i), Rule 28(iii) and Rule 16(iii) will now bear consideration. For ready reference they are extracted: “In the case of persons appointed on the result of competitive examination or by selection under clause (b) of sub-rule (1) of Rule 5, seniority in the service shall be determined by the order in which appointments are made to the service.” 31.2. Rule 28(iii) “The relative seniority of direct recruits and promotees shall be determined according to rotation of vacancies between direct recruits and promotees as determined under Rule 5 for that year and the additional direct recruits selected against the carried-forward vacancies of the previous year would be placed en bloc below the last promotees (or direct recruits, as the case may be). The seniority of the officer so appointed under sub-rule (3) of Rule 16, shall be counted from the date, he/she is appointed to the service.” 31.3. Rule 16(iii) “In the case of a person who had been appointed to a post which is subsequently declared as duty post he shall be deemed to have been appointed to the service from the date of encadrement of the post in the MPS Schedule.” Digitally Signed Signed by: MANAS KUMAR PANDA Reason: Authentication Location: OHC, Cuttack Date: 04-Nov-2024 18:19:41 Signature Not Verified W.P.(C) No.24337 of 2022 and Batch Page 13 of 21 (emphasis supplied) 32. As can be seen from the above, the MPS Rules, 1965 never provided that seniority should be counted from the date of vacancy. For those covered by the MPS Rules, 1965 the seniority for them will be reckoned only from the date of appointment and not from the stage when requisition for appointment was given. 33. In the above context, it is also necessary to refer to the relevant advertisement issued in 2005 for direct recruitment which allowed the aspirants to apply even if their result in the qualification examination is awaited. Even more intriguing and significant is the relaxation that those proposing to appear in the qualifying examination are also allowed to respond to the advertisement. If such be the nature of the process initiated (in the year 2005) for making direct recruitment, we can easily visualise a situation where, in the event of granting seniority from the stage of commencing the process, a person when eventually appointed, would get seniority from a date even before obtaining the qualification, for holding the post. 34. The judgment in Union of India v. N.R. Parmar, (2012) 13 SCC 340 is now to be considered in some detail as this is heavily relied on by the appellants' counsel. At the outset, it must however be cleared that the cited case had nothing to do with the MPS Rules, 1965 and that litigation related to the Income Tax Inspectors who were claiming benefits of various Central Government OMs (dated 22-12-1959, 7-2-1986, 3-7-1986 and 3-3-2008). The judgment was rendered in respect of the Central Government employees having their own Service Rules. The applicable Rules for the litigants in the present case however provide that the seniority in the service shall be determined by the order in which appointments are made to the service. Therefore, the memorandums concerned referred to in Union of India v. N.R. Parmar, (2012) 13 SCC 340 which deal with general principles for determination of seniority of persons in the Central Government service, should not according to us, have any overriding effect for the police officers serving in the State of Manipur. Digitally Signed Signed by: MANAS KUMAR PANDA Reason: Authentication Location: OHC, Cuttack Date: 04-Nov-2024 18:19:41 Signature Not Verified W.P.(C) No.24337 of 2022 and Batch Page 14 of 21 35. After the judgment in Union of India v. N.R. Parmar, (2012) 13 SCC 340 was delivered, the Union of India issued the Office Memorandum on 4-3-2014 defining the recruitment year to be the year of initiating the recruitment process against the vacancy year and that the rotation of quota, would continue to operate for determination of inter se seniority between direct recruits and promotees. This Memo was not made applicable to the State of Manipur till the issuance of the OM dated 21-12-2017, adopting the OM dated 4-3-2014 prospectively with effect from 1-1-2018. Significantly, the said OM specifically provided that “ … appointments/promotions made before the issue of this OM will not be covered by this OM. The seniority already fixed as per existing rules followed earlier in the State prior to the issue of this OM may not be reopened.” It was also specifically stated therein that “this OM will come into effect from 1-1-2018 with the publication in the Gazette.…” 36. From the above, it is not only apparent that the above OM was only to be given prospective effect from 1-1-2018 but it contains an express acknowledgment that this was not the position prior to the issuance of the OM and that a different rule was followed earlier in the State. The conclusion is, therefore, inevitable that at least prior to 1-1-2018, direct recruits cannot claim that their seniority should be reckoned from the date of initiation of recruitment proceedings and not from the date of actual appointment. 37. When we carefully read the judgment in Union of India v. N.R. Parmar, (2012) 13 SCC 340, it appears to us that the referred OMs (dated 7-2-1986 and 3-7-1986) were not properly construed in the judgment. Contrary to the eventual finding, the said two OMs had made it clear that seniority of the direct recruits be declared only from the date of appointment and not from the date of initiation of recruitment process. But surprisingly, the judgment while referring to the illustration given in the OM in fact overlooks the effect of the said illustration. According to us, the illustration extracted in Union of India v. N.R. Parmar, (2012) 13 SCC 340 itself, makes Digitally Signed Signed by: MANAS KUMAR PANDA Reason: Authentication Location: OHC, Cuttack Date: 04-Nov-2024 18:19:41 Signature Not Verified W.P.(C) No.24337 of 2022 and Batch Page 15 of 21 it clear that the vacancies which were intended for direct recruitment in a particular year (1986) which were filled in the next year (1987) could be taken into consideration only in the subsequent year's seniority list but not in the seniority list of 1986. In fact, this was indicated in the two OMs dated 7-2-1986 and 3-7- 1986 and that is why the Government issued the subsequent OM on 3-3-2008 by way of clarification of the two earlier OMs. 38. At this stage, we must also emphasise that the Court in Union of India v. N.R. Parmar, (2012) 13 SCC 340 need not have observed that the selected candidate cannot be blamed for administrative delay and the gap between initiation of process and appointment. Such observation is fallacious inasmuch as none can be identified as being a selected candidate on the date when the process of recruitment had commenced. On that day, a body of persons aspiring to be appointed to the vacancy intended for direct recruits was not in existence. The persons who might respond to an advertisement cannot have any service-related rights, not to talk of right to have their seniority counted from the date of the advertisement. In other words, only on completion of the process, the applicant morphs into a selected candidate and, therefore, unnecessary observation was made in Union of India v. N.R. Parmar, (2012) 13 SCC 340 to the effect that the selected candidate cannot be blamed for the administrative delay. In the same context, we may usefully refer to the ratio in Shankarsan Dash v. Union of India, (1991) 3 SCC 47, where it was held that even upon empanelment, an appointee does not acquire any right. 39. The judgment in Union of India v. N.R. Parmar, (2012) 13 SCC 340 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 Union of India v. N.R. Parmar, (2012) 13 SCC 340 had incorrectly distinguished the long-standing seniority determination principles propounded in, inter alia, Jagdish Ch. Patnaik v. State of Orissa, (1998) 4 SCC 456, Suraj Parkash Gupta v. State of J&K, (2000) 7 SCC 561 and Pawan Pratap Singh v. Reevan Singh Digitally Signed Signed by: MANAS KUMAR PANDA Reason: Authentication Location: OHC, Cuttack Date: 04-Nov-2024 18:19:41 Signature Not Verified W.P.(C) No.24337 of 2022 and Batch Page 16 of 21 (2011) 3 SCC 267. 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 v. State of Orissa, (1998) 4 SCC 456 and consequently we disapprove the norms on assessment of inter se seniority, suggested in Union of India v. N.R. Parmar, (2012) 13 SCC 340. Accordingly, the decision in N.R. Parmar (2012) 13 SCC 340 is overruled. However, it is made clear that this decision will not affect the inter se seniority already based on N.R. Parmar (2012) 13 SCC 340 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.” 13. In the instant cases, as discussed earlier, it is found that no merit list of the candidates is available with the employer. It is true that the date of joining in service of respective candidate as mentioned in the final gradation list under the impugned order is never disputed by either party. Therefore, their date of joining can be safely taken as their date of entry in the service and their seniority can be counted from said dates as they borne in to the service from that date. The principles, as settled in the afore-cited case, that the date of entry in the service is the safest criterion for fixing seniority inter se in absence of specific rule in the particular service regarding seniority. When the date of entry of respective candidates into the service is remaining an undisputed fact, the safest procedure would be to rely upon such undisputed fact to fix Digitally Signed Signed by: MANAS KUMAR PANDA Reason: Authentication Location: OHC, Cuttack Date: 04-Nov-2024 18:19:41 Signature Not Verified W.P.(C) No.24337 of 2022 and Batch Page 17 of 21 the inter se seniority between the parties. This principle is also found supported from the law discussed above in K. Meghachandra’ case (supra). 14. Accordingly the claim of the Petitioner E. China Babu in WP(C) No.24337 of 2022 is decided. 15. The case of the Petitioner Sabitri Patra in WP(C) No.17095 of 2021 is that she should be placed above the private Opposite Parties who have been illegally and irregularly appointed. To substantiate such contention of the Petitioner, Mr. Patra, learned counsel appearing for the Petitioner Sabitri Patra, submits that there was a proceeding initiated against the members of the Selection Committee and report was submitted by the then Secretary who has stated that the appointments of the Opposite Parties as irregular being not sponsored by the Employment Exchange validly. 16. To answer the contention raised on behalf of the Petitioner Sabitri Patra to accept the appointment of private Opposite Parties therein as illegal, it is found that such appointment of private Opposite Parties have never been questioned as illegal from their respective dates of appointment and now when the question of fixing of seniority Digitally Signed Signed by: MANAS KUMAR PANDA Reason: Authentication Location: OHC, Cuttack Date: 04-Nov-2024 18:19:41 Signature Not Verified W.P.(C) No.24337 of 2022 and Batch Page 18 of 21 inter se is raised, the Petitioner has come up to challenge such appointment of the private Opposite Parties as illegal. The documents produced in this regard to term the appointment of the private Opposite Parties as illegal are found without any sanctity since there is neither any decision taken on the part of the employer nor any direction of any competent authority is there to opine their appointments as illegal or irregular. Nonetheless, undisputedly such private Opposite Parties are continuing since 1997 or 1998 or subsequently, as the case may be, uninterruptedly till now and therefore it would be inappropriate on the part of the court at this stage to opine the appointments of those private Opposite parties as illegal or irregular only for the purpose of satisfaction of fixing of seniority of Petitioner (Sabitri Patra) above them. As such the claim of the Petitioner in WP(C) No.17095 of 2021 is without merit and rejected. 17. So far as the case of the Petitioner Manjushree Tripathy in WP(C) No.39811 of 2021 is concerned, she claims her seniority over the private Opposite Parties being a recruitee of 1997 batch. While opposing her prayer, it is submitted on behalf of the Secretary of OLA and the private Opposite Parties that the services of this Petitioner being found illegal was terminated earlier on 26th June, 2001 and Digitally Signed Signed by: MANAS KUMAR PANDA Reason: Authentication Location: OHC, Cuttack Date: 04-Nov-2024 18:19:41 Signature Not Verified W.P.(C) No.24337 of 2022 and Batch Page 19 of 21 challenging the same a writ petition bearing OJC No.8416 of 2001 was filed by her. This court by order dated 10th September, 2003 (reported in Vol.97 2004 CLT 111) confirmed said termination of the Petitioner and further directed her to participate for the post of Junior Assistant advertised in the year 2003 for her appointment to the post. Therefore the claim of the Petitioner Manjushree Tripathy to be placed above such Opposite Parties does not merit any consideration. 18. It is seen that under Annexure-1 & 2 in WP(C) No.39811 of 2021, the then Speaker has directed for reinstatement of the Petitioner after the judgment of this court dated 10th September, 2003. The then Speaker in his order dated 26th February, 2004 has directed that her termination is illegal as the same has been passed without any fault of the Petitioner and directed for her reinstatement as Junior Assistant. Subsequently on 10th February, 2009 an office order was issued by the Secretariat of OLA pursuant to the subsequent order of the Speaker not only reinstating the Petitioner in service but also restoring her seniority as a recruitee of the 1997 batch held pursuant to the written examination dated 30th November 1997, and also released all other consequential benefits in her favour. This office order of the Secretariat of OLA (Annexure-2) was never questioned till date by any one and Digitally Signed Signed by: MANAS KUMAR PANDA Reason: Authentication Location: OHC, Cuttack Date: 04-Nov-2024 18:19:41 Signature Not Verified W.P.(C) No.24337 of 2022 and Batch Page 20 of 21 stands as good till date, even after filing of the writ petition. Therefore, what is now submitted on behalf of Mr. Palit that such order of the Speaker reinstating the Petitioner in service along with restoration of her seniority with the recruitees of 1997 batch cannot be acted upon only for the purpose of fixing of seniority inter se between the parties, is found completely unacceptable. Had the seniority of the Petitioner been not restored along with her reinstatement in service by the authorities, the consideration would have been different for her seniority inter se. Since Annexure-2 clearly speaks that the seniority of the Petitioner has been restored as per the merit list of the batch of recruitees of 1997, no question of deviation there-from at the present stage arose. Since the seniority of the Petitioner has been settled since 2009 without being questioned by anyone, it would be illegal and gross injustice to her to not reckon her seniority as per said 1997 batch. 19. It needs to be mentioned that the candidates of 1997 batch has to be placed above to the candidates selected in 1998 for the reason that the advertisement and the vacancies of 1997 was earlier than 1998 and therefore, the candidates belonging to 1997 batch should be treated earlier to the candidates of 1998 batch. Undoubtedly, the select list under Annexure-2 reveals two separate select lists for 1997 batch and Digitally Signed Signed by: MANAS KUMAR PANDA Reason: Authentication Location: OHC, Cuttack Date: 04-Nov-2024 18:19:41 Signature Not Verified W.P.(C) No.24337 of 2022 and Batch Page 21 of 21 1998 batch respectively, and constitution of two Selection Committees for the written test held on 30th November, 1997 and 5th April, 1998. Therefore, as observed earlier, the Petitioner’s (Manjushree Tripathy) seniority should be fixed as per the 1997 batch, i.e. pursuant to the written test held on 30th November, 1997 mentioned in the select list dated 17th August, 1998 (Annexure-2 in WP(C) No.24337 of 2022). 20. In view of the discussions made above, the prayer of the Petitioner E. China Babu in WP(C) No.24337 of 2022 and Manjushree Tripathy in WP(C) No.39811 of 2021 has to be re-fixed in the final gradation list with suitable modification. The Opposite Parties are directed to modify the final gradation list accordingly within a period of 15 days from the date of receipt of certified copy of this judgment. 21. The prayer of the Petitioner Sabitri Patra in WP(C) No.17095 of 2021 is rejected. 22. In the result, WP(C) No.24337 of 2022 and 39811 of 2021 are disposed of as allowed and WP(C) No.17095 of 2021 is dismissed. (B.P. Routray) Judge M.K. Panda/P.A. Digitally Signed Signed by: MANAS KUMAR PANDA Reason: Authentication Location: OHC, Cuttack Date: 04-Nov-2024 18:19:41 Signature Not Verified "