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TMI Blog2003 (10) TMI 643X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Orissa High Court. By virtue of Section 2, the Orissa Administrative Service, Class-II (Appointment of Officers Validation) Act, 1987 ("Validation Act"), is sought to be amended such that certain direct recruits of the Orissa Administrative Service for the year 1973, who were, however, appointed in 1975, are accorded a relative seniority with respect to those merger recruits w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctual 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 State of Orissa enacted the Orissa Administrative Service, Class II (Appointment of Officers Validation) Act, 1987. This Act was once more the subject of challenge before the High Court of Orissa, but having regard to the Full Bench decision in Ananta Kumar Bose (supra), the High Court dismissed the case of the petitioners before it. The Supreme Court, on appeal as well as in the three ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llotment 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 particular number and fixing the inter-se seniority in accordance with the then prevailing regulations." With a view to implementing this direction of the Supreme Court, the Orissa Legislature enacted the impugned Act, the Orissa Administrative Service, Class-II (Appointment of Officers Validation) Amendment Act, 1992, which has come before us for judicial review. Aggrieved by Section 2 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ervations 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 of direct recruitment. In the integrated cadre, the concept of 'year of allotment' had become unworkable. (2) The merger order specifically provided that the members of the O.S.A.S. would rank junior to the members of the O.A.S. in the new cadre. That being the position, the appointees by way of direct recruitment to the integrated cadre are to be placed below those who were original members of the O.S.A.S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 any way provide for a termination of recruitment of Deputy Collectors or an alternative method of recruitment, in which case it may not be averred that its effect was to repeal in toto the provisions contained in the 1959 Recruitment Rules. It was not until 1978 that the 1959 Recruitment Rules were repealed by virtue of the coming into force of the Orissa Administrative Service Recruitment Rules and Regulations for Promotion and Competitive Ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is 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 in matters of promotion and consequential seniority. However, this Court has subsequently carved out a distinct exception to this general rule by virtue of its decision in Direct Recruit Class II Engineering Officers' Association case (supra) by stating that where the seniority and the vested rights of the many have through years of accustomed practice become dependant upon the existence of a rule, this rule, if injurious to the rights of a few, would n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ediately 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, prior to the merger of the O.A.S. II with the O.S.A.S., although their actual period of service was seen to commence only in 1975. We are also constrained to point to the fact that by virtue of the Merger Resolution the principle of promotion contained in the 1959 Rules was upheld such that the promotees of a particular year would be accorded seniority above the direct recruits of that year. It is those members of the O.S.A.S., such as the present petitioners, who were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or 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 ground was not entertained by the Supreme Court in Nityananda Kar (supra) as it had not been pressed in the first instance before the High Court and was barred, as such, by the principle of constructive res judicata. The parties being somewhat different in the present proceedings, this issue may now validly be raised before this Court. We find ourselves unconvinced by the assertion that the omission of the O.A.S. II in the advertisement for recruitment in the year 1975, which referred solely to v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 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 purpose of providing year of allotment. Such legal fiction must be given its full effect. In Bhavnagar University vs. Palitana Sugar Mill Pvt. Ltd. and Others [(2003) 2 SCC 111] , the law is laid down in the following terms : "The purpose and object of creating a legal fiction in the statute is well-known. When a legal fiction is created, it must be given its full effect. In East End Dwellings Co. Ltd. v. Finsbury Borough Council, [(1951) 2 All.E.R 587], Lord Asquith, J. stated the law in the following terms ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ber 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 placed in positions below the direct recruits whose year of allotment was 1973. In relation to the direct recruits no legislation existed. Earlier order was issued by reason of executive instruction which was recognized by 1987 Act but as noticed hereinbefore, a portion thereof was struck down. By reason of the impugned Act, the legislature has sought to strike a delicate balance. Having regard to the entirety of the fact situation obtaining in the case, we do not find that the said Act is discriminatory in nature. The reas ..... X X X X Extracts X X X X X X X X Extracts X X X X
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