Gajanan Parida vs State Of Odisha And Others

The challenge in the present petition is to two orders of the Odisha Administrative Tribunal(OAT), Cuttack. The first is an order dated 26 th February, 2010 whereby the present Petitioner's O.A. No.688(C) of 2000 was dismissed by the OAT and his plea that his reversion to the post of Sharaff from that of Lower Division Clerk/Junior Clerk was illegal, was negatived. The further challenge is to an order dated 14th September, 2010 of the OAT dismissing MP No.579 (C) of 2010 filed by the present Petitioner seeking review of the earlier order passed by the OAT on 26th February, 2010.

This Court has heard learned counsel for the Petitioner at length and has also considered the decision cited by learned counsel for the Petitioner viz., Guru Charan Sahu v. Chairman, Orissa State Electricity Board 1989 (II) OLR 268.

The central plank of the submission of Petitioner is that prior to being reverted to the post of Sharaff from the post of Lower Division Clerk/Junior Clerk, the Petitioner was not issued any notice. Secondly, he submits that the administrative instruction regarding reversion was issued for the purpose of reversion of persons holding Class-IV posts and not those, like the Petitioner, who were in a Class-III post.

It has been noted in the impugned order of the OAT that the recruitment to the post of Lower Division Clerk/Junior Clerk had to be made out of a list prepared by the Revenue Divisional Commissioner on the basis of an examination. It was noted that there was no provision in terms of the resolution of the Finance Department dated 2nd March, 1968 for promoting persons in the post of Sharaff as 'Lower Division Clerk/Junior Clerk.' The promotion given to the present Petitioner in September and October, 1982 as Junior Clerk from the post of Sharaff was, therefore, held to be illegal as it was without the authority of law. It is this illegality that was sought to be rectified by the impugned reversion order.

As far as regularization is concerned, in term of Gazette Notification dated 20th August, 1986, it was only if the irregular appointment was made "on or before 8th October, 1982" that there would be a possibility of regularization. In the present case, the Appellant was given the irregular appointment as LDC/Jr. Clerk in December 1982 i.e. beyond the cut-off date of 8th October, 1982.

The Court is of the view that there is no case made out by the Petitioner for challenging his reversion to the post of Sharaff since his promotion as LDC/Jr. Clerk was not in accordance with law. The OAT was right in rejecting his challenge to the reversion order.

Even as regards the post of Sharaff being a Class II post, as long as the further promotion was illegal, it had to be rectified. Therefore, there is no illegality in the order. It did not require a prior notice to be issued since such promotion was void ab initio.

This writ petition is without merit and is accordingly dismissed.

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