Partly allowed

Bhimasen Behera v. State of Orissa

Orissa HC6 Jul 2017WP(C)/22716/2016

Case brief

AI extract

What is this about?

The High Court held that a selection list for promotion cannot remain valid indefinitely as it violates Article 14 and 16. The Tribunal's view that the list was valid until exhausted under Rule 660 of the Police Manual was set aside. The Court directed the State to formulate specific recruitment rules and refrain from granting further promotions from the 2007 list.

What did the court decide?

The Tribunal's order was set aside; the State was directed to formulate specific promotion rules within three months and not to grant any further promotions from the select list prepared in 2007.

Bhimasen Behera Vs State of Orissa — Pension and Retirement Benefits | Orissa HC (2017)

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HIGH COURT OF ORISSA: CUTTACK.

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W.P.(C) Nos.22716 of 2016, 13566, 4494, 776 & 920 of 2015

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In the matter of application under Articles 226 and 227 of the Constitution of India.

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Bhimasen Behera (in W.P.(C) No.22716 of 2016) Abhaya Kumar Swain (in W.P.(C) No.13566 of 2015) Harekrushna Mahapatra (in W.P.(C) No.4494 of 2015) Kailash Chandra Pradhan (in W.P.(C) No.776 of 2015) Akhil Kumar Sahoo (in W.P.(C) No.920 of 2015)

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…… Petitioners.

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Versus-

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State of Odisha and Others … Opposite Parties.

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Counsel for Petitioners : M/s. Panchanan Sahoo and C. Rout (in W.P.(C) Nos.22716 of 2016, 13566, 776 and 920 of 2015)

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M/s. Manoja Kumar Khuntia, G. R. Sethi, J. K. Digal and B. Pattnaik (in W.P.(C) No.4494 of 2015)

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Counsel for Opp.Parties : Mr. M. S. Sahoo, Additional Government Advocate.

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M/s. Asim Amitabh Dash, B. K. Parida, Prasanta Kumar Mahali, A. N. Pattanayak and M. Panda. M/s. Manoj Kumar Khuntia, J. K. Digal and Miss B. K. Pattnaik. Mr. Nirmal Chandra Das and Mr. Ashwini Kumar Mishra (in W.P.(C) No.13566 of 2015)

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M/s. Panchanan Sahoo and Smt. Chayarani Rout (in W.P.(C) No.4494 of 2015)

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PRESENT:

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THE HONOURABLE KUMARI JUSTICE SANJU PANDA & THE HONOURABLE SHRI JUSTICE SUJIT NARAYAN PRASAD

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Date of hearing and judgment : 06.07.2017

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S. N. Prasad, J. In these writ petitions since common issue involved, the same are being disposed of by this common order.

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This writ petition is under Articles 226 and 227 of the Constitution of India wherein the order passed by the Tribunal in O.A. No.625 (C) of 2012 dtd.19.12.2014 and the order dtd.24.6.2015 passed in O.A. No.751(C) of 2015 are under challenge whereby and where under the Tribunal, while disposing of the original applications by allowing the same, has quashed the order dtd.26.2.2015, i.e. the advertisement and given declaration that Rule 660 of Police Manual Rule do not prescribe any time limit, hence the select list under Annexure-2 shall be kept valid till it is exhausted.

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The case of the applicants – petitioners in brief is that they are working as leading Fireman and intend to be promoted to the post of Asst. Station Officer, accordingly they appeared in the written test held on 23.9.2007 but they failed in the result published on 16.10.2007, as such they have approached to the Tribunal with the following prayers:-

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(i) May direct the respondent to prepare a fresh list of candidates those who have secured 30% mark in aggregate and onwards declaring to have passed in written test to be nominated for promotion to Assistant Station Officer and Training.

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(ii) To direct the respondents not to give any effect to the selection list under Annexure-2 till a fresh selection list is prepared and declare promotion of O.P. No.4 and others bad and illegal.

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(iii) And to quash the order dtd.13.8.2007 vide Annexure-3.”

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The grievance of the petitioners that due to illegal decision of the authority taken by them under the decision dtd.13.8.2007 (Annexure-2) since the minimum qualifying mark is fixed at 50% to be secured in each subject, they could not be able to qualify. They have questioned the authority of the persons who have issued the letter dtd.13.8.2007 fixing minimum qualifying marks at 50% and in consequence thereof they have prayed to reduce it to 30%.

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Their further grievance is that the list prepared for pre-promotional test should not be allowed to continue indefinitely as has been directed by the Tribunal and if that would be allowed, the other aspirants, either fresher or the employees who have failed in the pre-promotional test, as that of the applicants, would be deprived from the promotional avenues which cannot be said to be proper decision of the authority.

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Learned Additional Govt. Advocate Mr. M. S. Sahoo, learned counsel appearing for the interveners Mr. Asim Amitabh Dash, Mr. Manoj Kumar Khuntia and Mr. Ashwini Kumar Mishra have vehemently opposed the prayer made on behalf of the petitioner by submitting that there is no infirmity in the order impugned.

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They have submitted that there is no Rule formulated by the State Government governing the Recruitment / Promotion Rules for the post of Asst. Station Officer. The Government, in such a situation, has adopted the provision of Rule 660(a) of the Police Manual.

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They have submitted that the provision of Rule 660(a) of the Police Manual does not contain any time limit, as such once the list would be prepared on the basis of pre-promotional test, it would remain valid till it exhausts.

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They have submitted that the Government instruction dtd.13.8.2007 cannot be said to be executive instruction in the strict sense of Law and the same cannot be said to be proper since it has been issued contrary to the provisions of Police Manual Rule wherein there is no provision of time limit of validity of the select list, but contrary to the said provision the instruction dtd.13.8.2007 contains a condition regarding validity of the select list based upon the results of the pre-promotional test to remain valid for a period of three years or till framing of the cadre rule by the Government, whichever is earlier. This condition since been not available in the Rule 660(a) of the Police Manual Rule, hence the instruction dtd.13.8.2007 is not sustainable in the eye of law so far validity of select list is concerned.

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It has further been submitted that the last selection was conducted in the year 2007 in which 543 in-service candidates have participated in the prepromotional test amongst which 310 have got success, out of which 175 candidates from the list have been granted promotion, as such still there is vacancies, hence the candidates who have been declared successful and their names figure in the pre-promotional select list ought to have been promoted since they have already completed training in the meanwhile.

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We have heard the learned counsels for the parties and perused the

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documents available on record.

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Before going into the factual aspect of the case, it is relevant to point out that the selection process in question is for the post of Asst. Station Officer under the Fire Service of the State of Odisha.

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It is admitted position that there is no recruitment rule having been framed by the State of Odisha governing the rules for promotion for the post of Asst. Station Officer in the Fire Service of the State, as such, the State of Odisha, through Inspector General of Police, Fire Service, Odisha, Cuttack, has come out with an instruction as contained in letter No.3962 dtd.13.8.2007 whereby and where under the authorities, after taking into consideration the fact that there is no statutory rule governing the recruitment / promotion process, has adopted the rule provided under the provision of Police Manual as contained in Rule 660(a) which provides provision for process of promotion to the post of Asst. SubInspector in the police force of the State from the post of constables, while deciding the same, the criteria for promotion has also been fixed by the authorities in the said instruction, for better appreciation, the contents of the letter is being quoted here under as –

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“Letter No.3962 dtd.13.8.2007 :- In order to fill up the existing and anticipated vacancies in the rank of A.S.O. by the end of 2007, a pre-promotional test is to be held shortly. As the draft Fire Service manual as well as draft O.F.S. (method of recruitment and conditions of services) Rules are yet to be approved by Government, the previous procedure followed for promotion to the rank of Asst.

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Station Officer as prescribed under Rule 660(a) of the Police Manual is decided to be adopted for filling up the post of A.S.O. in Orissa Fire Service. The criteria for

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promotion is as follows:-

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1. Matriculate and Non-Matriculate Fireman / Driver Havildar / L.F.M. must have completed 7 years of service after the period spent under training.

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2. A pre-promotional selection test (written) is to be conducted with the following subjects:-

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(a) Test on technical knowledge - 50 Marks – Duration one hour. (question be set in Oriya)

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(b) English & Oriya translation

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50 Marks – Duration one hour.

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3. If more than 200 candidates offer their willingness to appear in pre-promotional test, we may hold examinations at the Range Hdqrs. simultaneously which is permissible under P.M. Rule 660(a).

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4. The minimum qualifying marks is fixed at 50% to be secured in each subject.

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5. The results of pre-promotional test board shall remain valid for a period of three years or till the framing of the Cadre Rule by the Government, whichever is earlier.

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6. The nomination rolls of the qualifying candidates should be arranged according to the seniority and sent to F.S. Directorate in sealed cover along with their service records for holding of C.S.B.

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Xxxxxxxxxxxxxxxx”

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It is also relevant to refer the provision of rule 660(a) of the police

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manual rule which is being referred here under as :-

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“660. (a) Appointment of Assistant Sub-Inspectors – Assistant SubInspectors will be appointed ordinarily in the following manner:-

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(i) Matriculate constables who have passed the Writer Constables course of training or the constables’ course of training and have had at least three years service after the period spent under training will be eligible for deputation to the O.A.S.I.’s course of training for a period of six months commencing from January and July every year, or any other date fixed by the I.G. of Police.

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(ii) Non-Matric constable with a minimum service of three years after the period spent in constables’ course of training will also be eligible for deputation to the A.S.I.’s course of training.

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(iii) Deleted.”

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We, after going through the letter dtd.13.8.2007, have found that the

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process for selection by way of promotion to the post of Asst. Station Officer would

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depend upon the provision of Rule 660(a) of Police Manual Rule. It is evident from

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the provision of Police Manual Rule that the process of selection has been given for

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the post of Assistant Sub-Inspectors, as per the provision of Rule 660(a) the

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process of appointment has been provided that the candidate has to participate in the written test and thereafter their CCR will be considered and it is only thereafter they would be directed to go for training for the post of Assistant SubInspectors, likewise the same process has been decided to be adopted for the post of Asst. Station Officers, but we find from the instruction dtd.13.8.2007 that the criteria for promotion has been reflected in the said letter by directing to conduct pre-promotional selection test with the following subjects, i.e.:-

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(i) Test on technical knowledge of 50 marks and

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(ii) English and Oriya translation of 50 marks,

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The minimum qualifying marks was fixed to 50% to be secured in each subject with the further condition that the results of pre-promotional test board shall remain valid for a period of three years or till the framing of the Cadre Rule by the Government, whichever is earlier.

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We, after going through the letter dtd.13.8.2007 as also the provision of Rule 660(a) of Police Manual Rules, are of the view that under the provision of Police Manual Rule, there is no stipulation regarding validity of the select list while in letter dtd.13.8.2007 there is stipulation of continuation of the list for a period of three years or till the framing of the Cadre Rule by the Government, whichever is earlier.

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The factual aspect of the case in hand is that the applicants / petitioners have approached this court by way of these writ petitions deprecating the decision of the Government, i.e. for fixing the minimum qualifying marks at 50% to be secured in each subject.

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The applicants, however, have challenged the letter dtd.13.8.2007 to quash the part of the decision of the authority by which the qualifying mark has been fixed at 50% but before the Tribunal they have not questioned the decision of the authority regarding validity period of the select list, and that cannot be, reason being that they are also part and parcel of the said select list to which they were also seeking direction from the Tribunal to figure them in the select list on the basis of reducing the minimum qualifying marks from 50% to 30% in each subject and that being the reason the stipulation made in the letter dtd.13.8.2007 regarding validity of the select list has not been questioned by the petitioners, but very surprisingly, before this court, they have taken ‘U’ turn and in course of argument learned counsel representing the petitioners has submitted that now they are challenging the period of the validity of the select list.

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We have appreciated the argument advanced on behalf of the parties along with the factual aspect available on record.

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It is not in dispute, rather it is settled proposition of law that a select list in the recruitment process cannot be allowed to continue for indefinite period, otherwise it will hit the principle laid down under Articles 14 & 16 of the Constitution of India by not allowing opportunity to the other employees of the category to participate in the selection process and that is the reason even if the validity period of panel is not provided in the statute, the normal procedure to validate the list is for a period of one year for fulfilling the post or validity till fresh advertisement on the basis of merit list. It is a fact that the list in question is not the panel prepared for making promotion as has been argued out by the learned counsel for the State as well as the interveners, but we are not in agreement with

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the argument for the reason that the list has been directed to be prepared on the basis of performance of one or the other fireman who intends to be promoted as Asst. Station Officer by their participation in the pre-promotional test, and if they would qualify by getting 50% marks in each subject, they would come in the select list and from that list only they will be allowed to further participate in the promotional process to get promotion to the post of Asst. Station Officer, in that view of the matter, the list prepared on the basis of pre-promotional test will be treated to the basis of promotion to the post of Asst. Station Officer, as such the select list in this situation cannot be allowed to continue for indefinite period.

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We have gone through the order passed by the Tribunal and found that the Tribunal has came to conclusion that the list will be valid till it is exhausted and this finding has been given on the basis of the fact that the Rule 660(a) of the Police Manual Rule does not contain any provision or any stipulation regarding period of validity of the select list and in absence thereof the list will be said to be valid till the name in the list finally been exhausted, but according to our considered view this finding cannot be said to be sustainable in the eye of law for the following reasons:-

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(i) If a candidate would fail in the pre-promotion test at the first instance, they would be deprived till the list would be exhausted and there might be a position that in the meanwhile he may superannuate from the service, hence that will be prejudicial to the interest of such employees, as such that would not be said to be proper process to held up a candidate to be considered once he failed in the selection process.

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(ii) If in the meanwhile new candidates, at the time of conducting the pre-promotional test would not have become eligible to be considered but in the meanwhile they became

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eligible, even after becoming eligible, they will be deprived from consideration of their

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candidature to participate in the pre-promotional test since it will not be conducted till the entire list would be exhausted.

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(iii) If this process would be said to be correct, the suitable candidate who had not been allowed to participate due to eligibility condition or any other reason, the best amongst all would not be selected. In that view of the matter it will be said to be contrary to the principle to search out most suitable person amongst all by selecting the candidate by choosing it from the large number of employees working.

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We, on the basis of these reasons, are of the considered view that the finding given by the Tribunal regarding validity of the list till it finally exhausts is not proper hence the same is hereby set aside.

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The contention raised by the intervener that the order needs no interference in view of the order passed by this court in W.P.(C) No.16027 of 2015 wherein the similar order has been said to be proper by the Division Bench of this court in its order dtd.21.9.2015.

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We have gone through the order passed by this court in W.P.(C) No.16027 of 2015, disposed of on 21.9.2015 wherein learned counsel representing the petitioner has confined his prayer only on the selection of 18 persons in the vacancies occurred in the subsequent years and a Coordinate Bench of this Court, after taking into consideration the prayer which has been confined, has declined to interfere with the order passed by the Tribunal.

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It is evident from the said order that the issue which has been raised

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by this writ petitioners has not been adjudicated by this court, as such the

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argument raised by the learned counsel for intervener regarding the issue having been decided in W.P.(C) No.16027 of 2015 is hereby rejected.

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Learned counsel for the interveners as also the learned counsel for State have submitted that there is still vacancy, since according to them the selection process has started in the year 2007 in which 543 candidates had appeared amongst whom 310 have been found to be suitable having been figured in the select list. The Govt. has granted promotion as Asst. Station Officer to 175 out of 310 selected candidates, hence still the vacancies are available, as such direction may be given to fill up the vacancies from the select list already prepared by virtue of the selection process initiated in the year 2007.

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This argument of learned counsels is not acceptable to this court for the reasons :-

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Admittedly the selection process started in the year 2007, out of 543 candidates appeared in the process, 310 have been selected, the list has been prepared in the year 2007 itself, we now in the year 2017 and still 135 candidates are to be promoted out of 310 selected candidates while the vacancies is 161 as on 2007, in that view of the matter, if the prayer of the learned counsel would be accepted, then the other candidates who are waiting for their turn for consideration of their candidature would be deprived, taking into consideration this aspect of the matter, we are not inclined to accept the argument advanced on behalf of the petitioner.

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It is settled proposition of law that all the employees in service have got equal right for consideration of promotion to the higher post, otherwise the

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promotional avenues is blocked, ultimately the efficiency in service will be jeopardized, that is the purpose to grant promotion to the employees, i.e to give inducement and encouragement in discharging duty in efficient manner.

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We, after going through the order passed by the Tribunal, have found that the Tribunal has given no finding with respect to the legality and propriety of the instruction dtd.13.8.2007. According to us and in view of the admitted position that there is no recruitment rule governing the field, hence in absence of the statutory rule, the authority has got power to formulate the guideline by virtue of executive instruction, the same has been done by the competent authority of the Fire Service of the State of Orissa by issuing letter dtd.13.8.2007 providing the provision and process of selection as Asst. Station Officer.

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We have also taken into consideration the legality and propriety of the promotion having been granted taking into consideration clause 5 of the letter dtd.13.8.2007, the selection process since been initiated in the year 2007, the validity of the select list prepared on the basis of the said selection process would be valid for three years, i.e. up to the year 2010, we are making this observation on the basis of the fact that the validity of condition no.5 of the letter dtd.13.8.2007 has not been questioned, however, we have already expressed our view that even the select list cannot be said to be valid for a period of three years or till the framing of the cadre rule, whichever is earlier, but since the Govt. has given effect to the letter dtd.13.8.2007 and the employees have already been granted promotion in pursuance of the same, hence we are not expressing our view regarding the promotion already granted within the period of three years as has been decided under condition no.5 of the letter dtd.13.8.2007.

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It is unfortunate that even after ten years from the date of issuance of letter dtd.13.8.2007 the State Government has not formulated recruitment / promotion rule due to which litigations are mounting, as such, in the facts and circumstances of the case and considering the predicament of the employees as also keeping into consideration Article 16 of the Constitution of India, it would be proper to issue following directions:-

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(i) The State Authorities are directed to formulate the specific Rule governing the recruitment / promotion of the different posts under the Fire Service Department of the State of Odisha so that all persons be considered for their promotion, that would be in the larger interest of the employees of the concerned department.

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(ii) The State Government would not grant any promotion from the select list prepared on the basis of selection conducted in the year 2007 for the reason stated herein above.

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(iii) The State Government is directed to take all sincere endeavour to formulate the rule within reasonable period, preferably within period of three months from the date of receipt of copy of this order, so that the work in the Fire Service Department may not suffer for an indefinite period.

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With these observations and directions, the writ petitions stand disposed of.

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…. …………………

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S.N.Prasad, J. Sanju Panda, J.

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Dated the 6^th July, 2017/Manas

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Orissa High Court, Cuttack,

Bhimasen Behera v. State of Orissa

Case brief

What is this about?

What did the court decide?

Bhimasen Behera v. State of Orissa

Case brief

What is this about?

What did the court decide?

What the court decided

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