TMI Blog2003 (10) TMI 643X X X X Extracts X X X X X X X X Extracts X X X X ..... No.402 of 1986. In the said application, the appellants herein, inter alia, prayed for a direction upon Respondent Nos.1 to 3 to fix their seniority by placing them above the private respondents and grant consequential career benefits to them. In the writ petition also, the petitioners have prayed for quashing of the Orissa Administrative Service Class II (Appointment of Officers Validation) Amendment Ordinance, 1992, which is subsequently replaced by the Act, as also for a declaration that the said Ordinance (Act) is inapplicable in the case of the petitioners and in any event the same cannot be applied retrospectively. The basic dispute between the parties revolves round the concept of year of allotment as envisaged in the Act. The question came up for consideration before the Full Bench of the Orissa High Court in Ananta Kumar Bose vs. State of Orissa [AIR 1986 Orissa 151] wherein the principle of year of allotment, as also its application in relation to the parties thereto was upheld. The said decision of the Orissa High Court came up for consideration in Nityananda Kar vs. State of Orissa [(1990) Supp. 2 SCR 644] and a three-Judge Bench affirmed the views taken by the Oriss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecruits, by virtue of the principle of year of allotment. The concept of year of allotment, in the particular context of the 1973 Merger, was first assailed before the Orissa High Court with respect to those direct recruits who were conferred 1970 and 1971 as their respective years of allotment, although they in material point of time were born in the service by virtue of their actual appointment on a subsequent date. The High Court in Ananta Kumar Bose (supra) , refuted the challenge and upheld the principle of year of allotment as a binding rule, given sanctity through long years of settled practice, and justified in terms of the various rules and regulations incorporating the same. The petition for special leave to appeal from the judgment of the Orissa High Court was then dismissed in limine by the Supreme Court. The decision of the High Court of Orissa in Ananta Kumar Bose (supra) would subsequently find favour in similar circumstances that came before a three-Judge Bench of this Court in the case of Nityananda Kar (supra) . So as to give practical effect to certain observations and directions made by the High Court in Ananta Kumar Bose (supra), the Legislature of the St ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n clearly found that the mergerists from O.A.S. Class III were neither promotees nor direct recruits and formed a class by themselves. The 1972 resolution of the State Government had decided a spread-over process for absorption but in December, 1973, immediate and one-time merger was decided and acted upon. We have already held that the recruits to O.A.S. Class II with 1972 as the year of allotment were senior to the mergerists. Once the concept and application of 'year of allotment' is upheld, necessarily the O.A.S. Class II direct recruits of 1973 would in the facts and circumstances be senior to the mergerists. They are eleven in all as it appears from the Government notification of 16th of February, 1976. There would be no justification to have the mergerists from Class III service brought into the combined cadre in December, 1973, to be senior to these 1973 recruits their number being substantial who are only eleven people. On the other hand, there may be justification in the matter of fixing of seniority inter-se between the direct recruits of 1973 to O.A.S. Class II and the mergerists to follow the prevailing system of promoting Class III officers to Class II by a pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0.1996. The Constitution Bench, however, by an order dated 4.12.2001 thought it fit to place the same before a Bench of three Judges of this Court. The three-Judge Bench again referred the matter to Bench of five Judges expressing its agreement in Nityananda Kar (supra). That is how the matter is before us. The petitioners and appellants have, not unnaturally, sought to place extensive reliance on certain observations made by the two-Judge Bench of this Court, which first considered the present matter. Four principal reasons have been set out in its order, which delineate the conflict with Nityananda Kar (supra). It would be apposite to cite the material portion of the order, which deal with the principal points of divergence: We have been taken through the judgment of this Court in Nityananda Kar's case by the learned Counsel for the parties. With utmost respect, we do not agree with the reasoning and the conclusions reached therein. Our reasons for reaching the said conclusion are as under: (1) Prior to the merger, recruitment to the O.A.S. Class II was from four different sources under the Rules. After merger, the appointment to the service was confined only by way ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice shall be made by the following methods, namely:- (a) direct recruitment by competitive examination; (b) promotion from amongst the members of the Orissa Subordinate Administrative Service; and (c) transfer from such other services or posts as are comparable with the Orissa Administrative Service as may be specified by Government from time to time; (Explanation Comparable service or post means any service or post specified by Government from time to time, responsibilities and emoluments attached to which are declared by Government to comparable in nature to that of a post of Deputy Collector) (d) selection; and (e) transfer or promotion of persons who are considered suitable for appointment to the service in accordance with the provisions of R. 9. It is apparent that neither the Governmental Resolution of December 1973 nor the impugned Section 2 of the Amendment Act of 1992 have repealed, whether explicitly or implicitly, the Recruitment Rules of 1959. Indeed, the Resolution itself alludes to the relevant rules, thereby eradicating the possibility of the inference of an implied repeal of the 1959 Recruitment Rules. Similarly, the 1973 Resolution did not in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re identified before the entry into force of the Merger Resolution but which remained unfilled, the concept of year of allotment indeed remained applicable, albeit in a more limited form than before. The concept of year of allotment is provided for by the Explanation contained in Rule 4(2) of the Orissa Administrative Service Class II (Appointment by Promotion, Transfer and Selection) Regulations, 1959 in the following terms : For the purpose of this sub-rule, year of allotment in relation to a member of Orissa Administrative Service means the year in respect of which Government have decided to fill up a vacancy in the cadre of the Orissa Administrative Service against which the member is shown. The submission that the principle of year of allotment must be regarded as unworkable is quite apart, of course, from the argument that the principle of year of allotment is in and of itself unreasonable and, therefore, bad in law. Ordinarily, and as a matter of course, we are of the considered opinion, in line with Roshan Lal Tandon v. Union of India [(1968) 1 SCR 185] and other decisions of this Court, that it is the length of actual service that must be the determining factor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Direct Recruit Engineering Officers' Association case (supra). The concept of year of allotment has also been shown to be a workable one, inasmuch as it was still open to the Government in the post- 1973 merger scenario to recruit officers from a variety of sources, including, but not limited to, transfer from comparable services. When once the concept of year of allotment is deemed to be upheld, it matters not that the first name of the O.S.A.S. would rank immediately below the last name of the erstwhile O.A.S. The material point of fact is that through the adoption of a legal fiction and by having recourse to his Constitutional function under Article 309 of the Constitution, the Governor of the State of Orissa appointed certain officers in the year 1975, who were appointed against vacancies which were identified in the year 1973, prior to the entry into force of the Merger Resolution of December 1973. That being the case, the legal fiction of year of allotment would operate in respect of the 1975 appointees as if they had been appointed in the year when the vacancies were initially identified; in other words, they would be deemed to have been appointed in the year 1973, p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ves, beneficiaries, as they are, of a one-off measure resulting in integration of the two cadres. Under Article 309 of the Constitution of India, it is open to the Governor of the State to make rules regulating the recruitment, and the conditions of service of persons appointed, to such services and posts until provision in that behalf is made by or under an Act of the Legislature. As has been rightly pointed out by the Court in the Nityananda Kar case (supra), the Legislature, or the Governor of the State, as the case may be, may, in its discretion, bestow or divest a right of seniority. This is essentially a matter of policy, and the question of a vested right would not arise, as the State may alter or deny any such ostensible right, even by way of retrospective effect, if it so chooses or in public interest. Learned counsel for the petitioners further contended that there was no advertisement in respect of any vacancy in the O.A.S. Class II, and that the direct recruits with 1973 as their year of allotment were appointed to the O.A.S. II in spite of the fact that the advertisements for that year were solely in respect of the Financial Service and the Police Service. This g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mer instance. The Court observed as follows: That in any case, appointment in the new cadre which was constituted on December 21, 1973, could not be made with effect from the date prior to, the constitution of the cadre, even if the vacancies existed prior to that date because the said vacancy would be treated to be a vacancy in the integrated cadre. With utmost respect, we find ourselves unable to agree with the aforesaid observation. Indeed, this observation is one and the same as the observation that the concept of 'year of allotment' had become unworkable, which we have already refuted above. To reiterate, by virtue of the fact that the vacancies were identified in the O.A.S. II at a point prior in time to the Merger effected on December 21, 1973, these vacancies would, as a matter of course, be treated as vacancies in the integrated cadre. Once the concept of year of allotment is deemed to be valid, we can arrive at no other conclusion than that such vacancies as were identified before the Merger Resolution would be filled by the Government in its discretion, notwithstanding the Merger effected on December 21, 1973. A legal fiction was created for the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ddress itself to the question of the identified vacancies. We are compelled to infer, then, that the vacancies identified for the year 1973, and other years preceding the Merger Resolution of December 1973, continued to exist and were appropriately filled by the Government in consonance with the principle of year of allotment. It has rightly been stated by the Court in Nityananda Kar's case (supra) that in the interests of justice regard must be had to the fact that the respondent direct recruits are few in number as compared to the hundreds of mergerists who belonged to the defunct O.S.A.S. Much harm would come to the respondents were they to be placed below the merger recruits in the gradation list, whereas the mergerists are scarcely affected by the miniscule number of direct recruits placed above them. In any event, the Recruitment Rules of 1959 are manifest in their mandate that only the promotees of a particular year are to be placed above the direct recruits of that year. The present petitioners being mere mergerists, but not promotees in accordance with the relevant rules and regulations, may not claim the status of promotees, and have, therefore, been rightly pla ..... X X X X Extracts X X X X X X X X Extracts X X X X
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