Ganesh Chandra Panda vs Orissa Legislative Assembly & Anr.

Instant writ petition is filed by the petitioner for a direction to the opposite parties to consider his case for promotion in accordance with Rules to fix the pay/revised scale of pay with appropriate fitment on the basis of initial appointment declaring the entry into service by him as shown in the gradation list i.e. Annexure-8 as illegal and unconstitutional and to pass such other orders as deemed fit and proper in the facts and circumstances of the case.

Briefly stated, the case of the petitioner is that he was appointed as a Diarist to attend the Residential Office of the Hon’ble Speaker, Orissa Legislative Assembly and was issued with appointment letter 8^th July, 1980 at Annexure-1 and subsequently, as a Senior Assistant by office order dated 11^th September, 1981. It is pleaded that the service of the petitioner was terminated w.e.f. 11^th February, 1984 and it was challenged before this Court in OJC No.4050 of 1989 disposed of on 6^th August, 1991 holding that though termination of the service by him as Senior Assistant cannot be faulted with, he is to be absorbed as a Diarist. Pursuant to the above direction of this Court, the petitioner was issued with a fresh appointment letter on 21^st September, 1991 as Junior Grade Diarist and accordingly, he joined under protest. A copy of the appointment letter is at Annexure-2 and joining report of the petitioner at Annexure-3. According to the petitioner, he submitted representations requesting the Authority to absorb him as Diarist instead of Junior Grade Diarist, but it was rejected by orders at Annexure-4 series and 5 series. Again, on 24^th August, 2000, the petitioner made a representation to opposite party No.1 to consider his promotion to the post of Junior Assistant as similarly placed persons had already been promoted. A copy of the said representation is at Annexure-6 but the Authority did not respond to the same.

That on 21^st October, 2000 (Annexure-7), the draft gradation list was prepared inviting objections from the employees. On 2^nd November, 2000, the petitioner received a letter from the Joint Secretary, Orissa Legislative Assembly inviting objection to the second draft gradation list (Annexure-8) and to that, objection was submitted by him vide Annexure-9. But the petitioner requested the concerned Authority to regularize his services pursuant to the order in OJC No.4050 of 1989 taking into account his initial appointment from 16^th June, 1980 but it was rejected and the appointment was treated from 21^st September, 1991 by order dated 15^th December, 2003 i.e. Annexure-10. According to the petitioner, credit for rendering service for over ten years by him was ignored and despite the order in the OJC, he was not absorbed in the post of Diarist.

It is also pleaded by the petitioner that he was placed under suspension on 29^th December, 2003 for the charges communicated by an order dated 9^th July, 2004 but was reinstated in his previous posting on 25^th April, 2006 pending finalization of the charges and for that, his joining report was accepted and was allowed to draw the salary and at last, on 13^th October, 2008, was exonerated from the charges and the proceeding was dropped by an order of the Secretary, Odisha Legislative Assembly as at Annexure-11. On 5^th November, 2008, the petitioner’s annual increment was allowed from 2004 and thereafter, on 13^th January, 2009, he made a representation for consideration of his case for promotion to the post of Junior Assistant on the date when others junior to him were promoted but such representation (Annexure-12) yielded no result. With such other facts pleaded by the petitioner, it is claimed that the opposite parties should be directed to consider his promotion revising the scale of pay and also the gradation list.

With the counter affidavit filed by opposite party No.1, it is pleaded therein that the petitioner was appointed temporarily as a Diarist in the Residential Office of the Hon’ble Speaker, Orissa Legislative Assembly by an order dated 8^th July, 1980 and as a Senior Assistant w.e.f. 1^st September, 1981 until further orders or till the Hon’ble Speaker demits office, whichever is earlier, by office order dated 11^th September, 1981 and after such joining as Senior Assistant, he ceased to continue as a Diarist and after the Hon’ble Speaker demitted office, his service was terminated w.e.f. 11^th February, 1984 by order dated 17^th February, 1984 and after such termination, the OJC was filed and therein though termination from the post of Senior Assistant was considered not illegal but this Court directed to absorb him as a Diarist. According to opposite party No.1, the petitioner was appointed as Junior Grade Diarist and he joined in the Secretariat on 27^th September, 1991. The petitioner claims continuity of service in the post of Diarist from 16^th June, 1980, the date on which, he was initially appointed to attend Residential Office of the Hon’ble Speaker but further pleaded that there is no rule for extending the period of service since the status of such post was co-terminus.

Regarding the promotion of the petitioner to the post of Junior Assistant, it is pleaded further that he was appointed as a Junior Grade Diarist w.e.f. 27^th September, 1991 and as per the Orissa Legislative Assembly Secretariat (Recruitment & Conditions of Service) Rules, 1983 (hereinafter referred to as ‘the Rules’), Dispatcher, Diarist or Copyist and Pasting Clerk, Recorder and Record Supplier having minimum qualification with six years of experience shall be eligible for appointment as Junior Assistant against every 8^th vacancy and since the entry of the petitioner in Secretariat was on 27^th September, 1991 pursuant to the order in the OJC, he was eligible for promotion only after 26^th September, 1997. It is also pleaded that the Selection Committee considered the case of the petitioner for promotion in its meeting held on 8^th July, 1998 to the post of Junior Assistant along with other eligible candidates and recommended one Nirmala Chandra Dash for being appointed as a Junior Assistant against the vacancy and he joined as such w.e.f. 19^th August, 1998. The Committee had also recommended the name of one Braja Kishore Mohanty to be appointed as Junior Assistant, who joined on 19^th August, 1998 along with the other candidate since both were found to have served for more than 12 years. Thereafter, the Selection Committee held meetings in the year 1999 and while considering the promotion of others, including the petitioner against a vacancy, recommended one Iswara Chandra Naik, Despatcher for appointment as Junior Assistant and thereafter, no further appointment has been made till 30^th September, 2008 i.e. the date of introduction of the cadre of Assistant Section Officer. Further in the meantime, the existing post of Junior Grade Diarist in the Secretariat was upgraded as Senior Grade Diarist to the higher scale of pay and the petitioner was appointed to such post w.e.f. 13^th September, 2010. Referring to the relevant provisions of the Rules, it is finally pleaded by the opposite parties that the initial appointment of the petitioner cannot be taken into consideration and as such, his appointment as Junior Grade Typist is justified and consideration for promotion to the post of Junior Assistant having taken place, keeping in view of the stagnation in service, the post held by him was upgraded as Senior Grade Diarist carrying a higher pay scale as evident from Annexure-J and in such view of the matter, there is no illegality committed and hence, the relief sought for demanding a revised pay scale with appropriate fitment on the basis of such initial appointment challenging the gradation list i.e. Annexure-8 is wholly misconceived.

Heard Mrs. Panda, learned counsel for the petitioner, Mr. S. Panda, learned ASC for the State and Mr. Nanda, learned counsel for opposite party No.1.

Perused the rejoinder filed by the petitioner and reply to the same by opposite party No.1. Also perused the additional affidavit of opposite party No.1 dated 19^th August, 2014.

The petitioner retired from service in the year, 2012, whereafter, one temporary post of Diarist for the Residential Office of the Hon’ble Speaker, Odisha Legislative Assembly was created by the Secretariat of the Odisha Legislative Assembly No.OE.258/2014/7660/LA dated 19^th August, 2014 as at Annexure-X of the additional affidavit of opposite party No.1 and thereafter, vide Office Order No. OE 258/2014/7665/LA, the period of service of the petitioner commencing from 16^th June, 1980 till his retirement on 30^th June, 2012 including the period in respect of which his services were discontinued after termination from the post of Senior Assistant in the Residential Office of the Hon’ble Speaker between 11^th February, 1984 and 26^th September, 1991 was counted for the purpose of pension and other service benefits. A copy of the said order regularizing the service of the petitioner in terms thereof dated 19^th August, 2014 is at Annexure-Y. From the facts stated hereinbefore, it is made to understand that the petitioner joined on 8^th July, 1980 and was promoted as Senior Assistant and thereafter his services were terminated for being co-terminus with the tenure of the Hon’ble Speaker of the Odisha Legislative Assembly and after the Court’s order in OJC No.4050 of 1989, he was re-inducted as Junior Grade Diarist and subsequently, on upgradation as Senior Grade Diarist and in that post, he retired on 30^th June, 2012. During the aforesaid period, the petitioner was considered for promotion a couple of times and even appeared the Selection Committee, but was found not suitable and ultimately after upgradation, as Senior Grade Diarist, he superannuated from service. Subsequent to the retirement of the petitioner with the creation of a temporary post of Diarist w.e.f. 16^th June, 1980, the entire period of service rendered by him was counted even condoning the period between 11^th February, 1984 and 26^th September, 1991 to regularize the same for the purpose of pension and other service benefits by Office Order at Annexure-Y to the additional affidavit of opposite party No.1 dated 19^th August, 2014. After the decision of the Odisha Legislative Assembly regularizing the period of service all through with the creation of post of Diarist w.e.f. 16^th June, 1980, the demand of the petitioner is for notional promotion and fixation of pay accordingly at the time of retirement on 30^th June, 2012. The question is, whether, the petitioner is entitled to an antedated promotion in view of Annexure-Y of the additional affidavit dated 19^th August, 2014, which is opposed by opposite party No.1 on the premise that such a decision of the Odisha Legislative Assembly after his retirement is only to enable him to receive pension and other service benefits in compliance to the order dated 6^th August, 1991 in OJC No.4050 of 1989 and in obedience to the direction dated 4^th August, 2014 herein by this Court.

Mrs. Panda, learned counsel for the petitioner submits that the petitioner is entitled to notional promotion of the decision of the Odisha Legislative Assembly vide Annexure-Y (supra). The submission is that the earlier service period w.e.f. 16^th June, 1980 was to be counted when he was appointed and joined in the Odisha Legislative Assembly Secretariat on 27^th September, 1991. It is further submitted that the earlier period till 27^th September, 1991 could not have been ignored and accordingly, the gradation list was to be prepared. The contention is that some of the juniors to the petitioner received promotion but he was sidelined, firstly, when the earlier service period was not counted for the purpose of seniority and secondly, during the period on and after 27^th September, 1991 as and when the Selection Committee had taken up promotion. The contention of Mrs. Panda, learned counsel is that the order dated 6^th August, 1991 in OJC No.4050 of 1989 was with a direction to appoint the petitioner in the post of Diarist but instead he was allowed to join as Junior Grade Diarist. The submission is that the case of the petitioner while complying the Court’s Order in OJC No.4050 of 1989 was to be considered under the Rules, whereas, the amended rules came into force on 28^th September, 1989 and therein promotion to the post of Junior Assistant was allowed in respect of a Diarist having minimum qualification of Matriculation with six years of experience and stipulation that every 8^th vacancy against such post shall be reserved for such categories of employees as per the Schedule appended thereto. Mrs. Panda learned counsel submits that the Rules received further amendment in 1994 and therein, the stipulation for promotion to the post of Junior Assistant is similar with a candidate, such as, a Diarist, Dispatcher, Copyist etc. to be eligible if having qualification of Matriculation and six years of experience to fill up the 8^th vacancy post.

It is claimed that the petitioner shall have to be considered as a Diarist from the date of initial appointment since his service conditions are governed by the Rules (unamended) and thereafter the promotion to the next higher level as Junior Assistant ought to have been considered on completion of six years of experience which means he was eligible for consideration to the promotional post on and after 16^th June, 1980 but for the non-compliance of the order in OJC No.4050 of 1989, such an opportunity was lost and in the meantime, considering the appointment w.e.f. 27^th September, 1991, many of his juniors joined but after him received promotions vide Annexure-14 in the year 1987, 1989, 1990, 1991 and 1988. It is lastly contended that in view of Annexure-D to the additional affidavit dated 19^th August, 2014 of opposite party No.1, the petitioner is entitled to regularization of his services from 16^th June, 1980 with consequential promotion and pay fixation, hence, necessary directions shall have to be issued in that regard.

On the contrary, Mr. Panda, learned ASC for the State would submit that the earlier period from 1980 till the date of regular appointment cannot be considered for the purpose of seniority and promotion and hence, the petitioner was eligible for any such promotion only after receiving the regular appointment in 1991. The further submission is that the petitioner was considered for promotion by the Selection Committee but found not suitable and therefore, could not be promoted to the next higher post and finally, on upgradation joined as Senior Grade Diarist and retired in 2012 and only to regularize the service period for the purpose of pension and retiral benefits, the decision was taken by the Odisha Legislative Assembly. Referring to Annexure-Y, it is submitted that the past service rendered by the petitioner was co-terminus and hence, not to be counted for seniority and promotion and therefore, there is no illegality committed by the Government while complying the directions issued in OJC No.4050 of 1989.

Mr. Nanda, learned counsel for opposite party No.1 submits that complying the Court’s direction dated 6^th August, 1991, the petitioner was appointed as Junior Grade Diarist in the Odisha Legislative Assembly Secretariat and joined in the post of Junior Grade Diarist on 27^th September, 1991. The further submission is that by the time, the order of this Court in OJC No.4050 of 1989 was received, there was no such post of Diarist in the Secretariat and as there was only one vacant post of Junior Grade Diarist, petitioner was appointed in that post, otherwise, compliance of the same was not possible but in any case, both the posts carry equal scale of pay. As regards, the past service of the petitioner, Mr. Nanda, learned counsel would submit that it was co-terminus with the tenure of the Hon’ble Speaker of the Odisha Legislative Assembly and that apart, the recruitment procedure for the post of Diarist in the Residential Office of the Hon’ble Speaker, Odisha Legislative Assembly is different from that of the Secretariat, as in the former, it is at the choice of the Hon’ble Speaker in terms of the Government Circular Memo No.5729 (22) A dated 26^th May, 1952 issued by the Home Department i.e. Annexure-D, but in the case of the latter, it is filled up the following the provisions of the Compulsory Notification of Vacancies Act. Since, the service is co-terminus in nature, in case appointed in the Residential Office of the Hon’ble Speaker, such period of service could not have been counted for seniority and promotion and therefore, the petitioner was considered eligible for promotion only after receiving a regular appointment in 1991, as further submitted. Mr. Nanda, learned counsel lastly submits that Annexure-Y to the additional affidavit dated 19^th August, 2014 is only to regularize the service with one temporary post of Diarist created for the purpose of pension and other service benefits in favour of the petitioner, which is not to be counted for seniority and promotion. In other words, it is submitted that the petitioner is not entitled to notional promotion, even though, such is the decision of opposite party No.1 vide Annexure-Y after his retirement.

From Annexure-D, it is made to understand that any such temporary post held at the option of the Hon’ble Ministers in appointing outsiders to the ministerial posts in their offices shall draw pay in the scale of the post created and continue to hold the posts so long as the Hon’ble Minister demitting Office and cannot have any claim for permanent absorption in any of the Departments and such condition of service is to be indicated at the time of appointment. The petitioner joined in the post of Diarist vide Annexure-1 at the Residential Office of the Hon’ble Speaker by Office Order dated 8^th July,1980 and it was against a post co-terminus in nature in view of Annexure-D. Any such post held by the petitioner till 1984 as Diarist and Senior Assistant would not have been taken into account at the time of regular appointment in view of clear stipulation in Annexure-D. As a necessary corollary, the petitioner’s appointment shall have been treated as regular on and from 22^nd September, 1991. As to the order in OJC No.4050 of 1989 is concerned, this Court though found the termination of the petitioner from service as Senior Assistant not to be faulted with but directed his absorption as a Diarist. According to opposite party No.1, such a direction was to absorb the petitioner on a future date and therefore, cannot be claimed retrospectively, inasmuch as, no direction was received to pay back wages to him. This Court finds that at the time when the order in OJC No.4050 of 1989 was complied with, there was no such post of Diarist and the available vacant post was Junior Grade Diarist. In order to comply the direction dated 6^th August, 1991 of this Court in the OJC, the petitioner was immediately appointed as Junior Grade Diarist in absence of a post of Diarist which carried equal scale of pay. It is further made to understand that the petitioner was made to appear before the Selection Committee along with other eligible candidates but was not considered suitable. In absence of a post of Diarist by the time when the order in OJC NO.4050 of 1989 arrived, since opposite party No.1 was to immediately comply the same, appointed him as Junior Grade Diarist being the feeder cadre post. This Court is of the considered view that the past service of the petitioner could not have been considered as it was co-terminus and the regular appointment took place in 1991, whereafter, he was eligible and entitled to consideration for promotion and hence, was suitably placed in the gradation list considering his regular appointment in the Odisha Legislative Assembly Secretariat, which is perfectly justified.

Under service jurisprudence and guidelines of Government of India in Department of Personnel and Training (DOPT), temporary services rendered on a co-terminus basis cannot be counted for regular appointment, seniority or even notional promotion. The co-terminus appointments are fundamentally temporary, stop-gap arrangements tied directly to the tenure of a specific Authority and they automatically expire when that Authority demits the office. According to the Court, co-terminus service does not grant any legal right or preference for regular absorption or permanent employment. A preference may be given to the co-terminus service at the time of regular appointment, if it is explicitly provided in the rules. If a co-terminus employee eventually clears a regular recruitment process, his seniority is calculated strictly from the date of substantive appointment. It has been repeatedly held by the Apex Court that adhoc, temporary or co-terminus service rendered prior to a regular appointment cannot be counted towards seniority as by doing so, it violates the equity rights of others, who are in service. For a promotion, either notional or regular, an employee must possess regular qualifying service in the feeder cadre. In case of co-terminus service, since it is not deemed regular or substantive, it cannot be added to the service to meet the eligibility criteria for a future promotion. As normally understood, notional promotion is typically granted only to correct administrative errors or delays, like when a junior was promoted ahead of a senior or late clearance for promotion due to pending disciplinary action etc., but still, one cannot claim notional promotion by retroactively applying temporary co-terminus service period to the regular.

It is well settled law that an employee cannot claim seniority or promotion from an anterior date before he was officially born in the cadre even after serving temporarily and later being regularized. In fact, seniority and promotional benefits can only accrue from the date an employee formally enters the cadre through regularized substantive appointment. The rules governing temporary service and retrospective promotion depend on specific criteria fixed by the case laws. An employee cannot claim seniority from a backdated period when he did not legally belong to that cadre. The Apex Court in a catena of decisions, such as, State of Bihar & others Vrs. Akhouri Sachindra Nath & others AIR 1991 SC 1244 and subsequent rulings reiterated that granting retrospective promotion or seniority to an employee from a date when he was not even born in the cadre is impermissible as it adversely affects the rights of others, who entered the cadre legally and regularly. If an individual is appointed to a post temporarily or on adhoc basis that period does not automatically count towards regular seniority or future promotion. Law is also well settled that if someone received a temporary or adhoc appointment against a regular vacancy and continued to serve as such for years together, the regularization is to be considered but in normal course, when any such regularization takes place, temporary or adhoc period is not included or counted for seniority and promotion. The general rule is that seniority is counted strictly from the date of regularization or substantive appointment, not from the date of initial temporary placement. But the temporary service may be counted if the initial appointment has been followed in accordance with the statutory recruitment rules against the sanctioned vacancies and the service rules explicitly permit retrospective regularization. If the temporary appointment dehors the rules, it cannot be counted for backdated benefits.

In fact, promotion is effective only from the date an employee actually assumes the charge and not retrospectively. The core legal principles are that in case of a conditional regularization when the Government creates a post from an anterior date strictly for a specific purpose, such as, securing pension and retiral benefits, the legal fiction is confined entirely to that purpose and it does not grant the blanket status of regular active service in a promotional cadre and for that period; an employee cannot legally claim promotion or seniority in a higher cadre for a period during which, he was not officially assigned to or serving in that cadre. When one is not born in the cadre cannot demand retrospective promotion, which is prohibited and similar in case of an employee, who has already retired and never actually discharged the duties and responsibility of a higher promotional post demanding retrospective functional promotion. But exceptions are that if the Departmental Promotion Committee does intentionally or maliciously delay such promotion while the employee was in active service leading thereby that he missed the promotion before retirement or that a junior employee was promoted ahead of him while in active service period. In absence of any bad faith or explicit statutory rules allowing retrospective promotion, an employee’s rights are strictly bound by the terms of the Government decision meaning that the regularization is to protect pensionary benefits and it shall not yield a back dated promotion.

With the discussions as aforesaid, this Court is of the view that there is no illegality committed while considering the plea of the petitioner. At the time when the petitioner joined, there was no post of Diarist, hence, he had to be accommodated in the vacant post of Junior Grade Diarist in the Secretariat in order to immediately comply the order in the OJC. As earlier concluded, the past service being co-terminus, it was not to be considered for seniority and promotion. It is not that opposite party No.1 was at fault in terminating the service of the petitioner as it was co-terminus and even held so by this Court while disposing of the OJC. Unless there is laches on the part of the Authority concerned, notional promotion cannot be considered. That apart, there is no error that needs correction by granting promotion to the petitioner notionally. Merely for the decision of opposite party No.1 vide Annexure-Y, the petitioner cannot demand retrospective seniority and promotion including the past Page 17 of 18 service period. Such a decision is only to enable the petitioner to receive pension and other retiral benefits even by condoning the break period post-termination till he joined as the Junior Grade Diarist. Such other benefits mentioned in Annexure-Y does not include the seniority and promotion but are confined to the retiral benefits only. The service of the petitioner for that matter shall have to be held as regularized after his retirement solely to pave the way for him to receive pension and pensionary benefits after such a decision vide Annexure-Y. In the ultimate analysis, this Court reaches at a conclusion that the decision of opposite party No.1 is just and proper and hence, does not suffer from any legal infirmity.

Accordingly, it is ordered.

In the result, the writ petition stands dismissed.