Prafulla
Kumar Das & Ors Vs. State of Orissa & Ors [2003] Insc 493 (7 October 2003)
Cji.,
R.C. Lahoti, B.N. Agrawal, S.B. Sinha & Dr. A.R. Lakshmanan.V.N. Khare,
C.J.I.
Appeal (civil) 791 of 1993 Pradip Chandra Parija and Ors.Pramod
Chandra Patnaik & Ors.
Validity
of Section 2 of the Orissa Administrative Service, Class - II (Appointment of
Officers Validation) Amendment Act, 1992 (hereinafter referred to as 'the Act')
is in question in this writ petition and appeal. The appeal arises out of a
judgment and order dated 23.4.1991 passed by the Orissa Administrative Tribunal
at Bhubaneswar in Transferred Application 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 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 who were born in the
said service by virtue of the prior merger of their parent cadre, the Orissa
Subordinate Administrative Service ("O.S.A.S.") with the O.A.S.,
Class-II ("O.A.S. II") on December 21, 1973.
The
petitioners in the writ petition as well as the appellants in civil appeal were
members of the Orissa Subordinate Service Class III, which was designated as Orissa
Administrative Service (Junior Branch) following its proposed and partial
merger, on January 7, 1972, with the Orissa Administrative Service II, which,
in turn, came to be known as Orissa Administrative Service (Senior Branch). The
complete and final merger of these branches by virtue of the governmental
resolution in this behalf, dated December 21, 1973, resulted in the creation of a
single integrated Orissa Administrative Service Class II. The Deputy
Collectors, as the members of the erstwhile Senior Branch were known, and the
Sub-Deputy Collectors of the Junior Branch, were consequently conferred inter
se seniority in the integrated service such that the first name of the defunct
Junior Branch would be placed immediately below the last name of the Senior
Branch.
It is
an admitted fact that the established practice of the State of Orissa as to the
appointment, and allocation of seniority, of its officers has been to follow
the principle of "year of allotment," whereby the date of appointment
of an officer for the purposes of promotion and consequential seniority is
regarded not as the date of actual appointment, but as the year in respect of
which the vacancy was originally proposed to be filled.
In
consonance with the stated practice, the respondent officials, in the present
instance, were given 1973 as their year of allotment, although in actual point
of time they took up service on varying dates in the year 1975.
The
petitioners and appellants, being mergerists who were born in the integrated
service on the date of merger, that is December 21, 1973, were thereby denied seniority with
respect to the direct recruits, 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 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 writ petitions heard together in Nityananda Kar
(supra), was of the considered opinion that the decision of the Orissa High
Court in Ananta Kumar Bose (supra) was the correct and binding law. This Court,
placing further reliance upon its own decision in Direct Recruit Class II
Engineering Officers' Association v. State of Maharashtra [(1990) 2 SCC 715], took
the view that the sanctity of a well-established rule must not be unsettled,
and the principle of year of allotment was as well justified in terms of the
decision of the High Court in Ananta Kumar Bose (supra). The Court, whilst
dismissing the appeal, however partly allowed the petition filed by one of the
direct recruits, and struck down that portion of the 1987 Validation Act, which
effected a differentiation between those direct recruits whose year of
allotment was 1970 or 1971, on the one hand, and others whose year of allotment
was 1972.
In
terms of the decision of this Court in Nityananda Kar (supra), the direct
recruits with 1972 as their year of allotment would equally be entitled to be
placed in the gradation list at positions of seniority relative to the mergerists,
who were previously Sub-Deputy Collectors and then members of the O.A.S.
(Junior Branch). The Supreme Court in Nityananda Kar (supra) clarified that
those direct recruits who were given 1973 as their year of allotment would not
be covered by its decision, in view of the proceedings concerning them which
were then pending before the Administrative Tribunal.
In
disposing of the petitions and appeal before it, the Nityananda Kar (supra)
this Court made the following observations:
"It
is, therefore, clear that O.A.S. Class II cadre prior to merger was providing
promotional channel to officers of O.A.S. Class III. Rules prescribed the
manner in which direct recruitment and promotional appointment were to be made
to O.A.S. Class II. The Full Bench of the Orissa High Court which we have
accepted as laying down the binding and correct legal position 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 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 the 1992 Amendment Act, the petitioners have approached this
Court for the necessary relief. The fate of the appeal, although prior in time
to the Amendment Act, would also depend upon the validity of the same, and is
accordingly being disposed of together with the said writ petition.
It
would be appropriate at this stage to cite the material provision under
challenge. Section 2 of the Amendment Act of 1992 reads as follows:
"2.Amendment
of Section 3. In Section 3 of the Orissa Administrative Service, Class-II
(Appointment of Officers Validation) Act, 8 of 1987 (hereinafter referred to as
the principal Act), for sub-section (2), the following sub-section shall be
substituted, namely:- '(2)(a) Such number of merger recruits as would have been
entitled to promotion in the recruitment years 1972 and 1973 computed on the
basis of percentage envisaged under Rule 10 of the Orissa Administrative
Service, Class-II (Recruitment) Rules, 1959, shall be deemed to be the promotees
of the respective years, and the determination of seniority of the merger
recruits so deemed to be the promotees, -
(i) of
the year 1972 vis-`-vis the officers appointed to the Orissa Administrative
Service, Class-II by direct recruitment in respect of the recruitment year
1972; and
(ii) of
the year 1973 vis-`-vis the officers appointed to the Orissa Administrative
Service, Class-II by direct recruitment in respect of the recruitment year
1973;
shall
be in accordance with the same principle as followed for the determination of
inter se seniority between the direct recruits and the promotees in relation to
the Orissa Administrative Service, Class-II in respect of the recruitment years
1970 and 1971 and they shall be placed accordingly in the gradation list:
(b)
The remaining merger recruits shall be placed below the direct recruits of the
year 1973 in the gradation list'." A two-Judge Bench of this Court
referred the matter to the Bench of five Judges by an order dated 24.10.1996.
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 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. service.
(3)
Mr. Sudhir Chandra Agarwal, learned counsel for the Respondent has taken us
through the affidavit filed on behalf of the State Government wherein it is not
disputed that there was no advertisement in respect to any vacancy in the
O.A.S. Class II. The advertisement related to the financial service and the
police service.
The
vacancies advertised or identified after the merger of the cadres could not be
filled by any of the modes indicated in the service rules except by the direct
recruitment.
(4)
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.
We,
therefore, direct that these matters be placed before a larger bench of five
judges of this Court. The Registry to place the papers before Hon'ble the Chief
Justice for appropriate orders in this case." It may be noted at the
outset that none of the four reasons delineated by the Bench of two learned
Judges found fault with the principle of year of allotment itself. Rather, the
common thread through each of these reasons given by the Court is that the
concept of year of allotment was in effect rendered impracticable and otiose by
means of the Merger Resolution of December 1973.
The
petitioners contended, first, that the effect of the merger of December 1973 is
that appointment to the integrated cadre would be solely by means of direct
recruitment, whereas prior to the merger, recruitment to the O.A.S. Class II
could be by any of four different sources. That being the case, the principle
of year of allotment was now redundant and its application uncalled for. Rule 4
of the Orissa Administrative Service Class- II (Recruitment) Rules deals with
method of recruitment:
"4.
Method of Recruitment Recruitment to the Service 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 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 Examination, 1978.
We,
therefore, find ourselves unable to agree with the submission put forth by the
learned counsel on behalf of the petitioners to the effect that the 1973
Resolution an implied repeal of the 1959 Recruitment Rules then in force.
Rather,
the material question in terms of the contention of the petitioners is whether
the Resolution of 1973 serves to render the very provision contained in Rule 4
of the 1959 Rules, cited above, as redundant and a nullity such that
appointment to the O.A.S. II could only be by direct recruitment to the
exclusion of all other sources.
This
question, too, must be answered in the negative in view of the variety of
sources of recruitment available to the Government, including, but not limited
to, transfer from other services in terms of sub-clause (c), selection in terms
of sub-clause (d) and transfer or promotion in accordance with R. 9 in terms of
sub-clause (e) of Rule 4 of the 1959 Recruitment Rules.
Even
assuming no such parallel service or cadre existed in the period immediately
after the merger, it would always be open to the Legislature to create more
such services, in spite of the merger in 1973, from which transfer to the
O.A.S. II could then be made. The legal effect, then, of the 1973 Resolution
resulting in merger was only that sub-clause (b) of Rule 4 of the 1959
Recruitment Rules ceased to have any application, and could then be regarded as
impliedly repealed.
It is
further fallacious to submit, as the petitioners have done, that by virtue of
integration of the cadres, the principle of year of allotment was rendered
otiose and immaterial. As shown above, there remained a variety of sources from
which recruitment to the O.A.S. II could be made post-merger including transfer
from other comparable services. In any event, even if it were to be assumed
that direct recruitment would now be the sole source of recruits, as long as
there were vacancies which were 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 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 not be trifled with, unless it is unworkable or manifestly
arbitrary or egregious.
The
following observations made by the Constitution Bench in Direct Recruit Class
II Engineering Officers' Association (supra) are particularly apposite in the
context of the instant case:
"47
(j) The decision dealing with important questions concerning a particular service
given after careful consideration should be respected rather than scrutinised
for finding out any possible error. It is not in the interest of Service to
unsettle a settled position.
(k)
That a dispute raised by an application under Article 32 of the Constitution
must be held to be barred by principles of res judicata if the same has been
earlier decided by a competent court by a judgment which became final."
This Court in Nityananda Kar (supra), in our view, correctly placed reliance on
the prior decision of a Constitution Bench in Direct Recruitment Class II
Engineering Officers' Association (supra), considering the immense lapse of
time and long-established sanctity of the practice involving the application of
the concept of year of allotment.
The second
basis provided by the order of the two-Judge Bench expressing conflict with Nityananda
Kar (supra) which was approved by the subsequently constituted three-Judge
Bench, and which is relied upon presently by the petitioners, is that "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. service."
We
have outlined above our reasons for upholding the validity of the principle of
year of allotment, principal among which is our disinclination to tamper with a
settled practice, in view of the dicta contained in the decision of this Court
in 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, 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 unable to secure promotion when their cases came up
before the O.S.A.S. in the years preceding the Merger Resolution (1970-73), who
seek seniority over the direct recruits by mere fact of their being members of
the integrated service.
In our
considered opinion, such wholesale integration may not be regarded as the
promotion of the whole of the O.S.A.S. This inference is supported by the
various provisions contained in the Recruitment Rules of 1959, principally Rule
10 (7) and Rule 11.
Rule
10 (7) provides as follows:
"For
recruitment to the Service by promotion or transfer or selection, under these
rules, the State Government shall consult the Commission before
appointment." Rule 11 deals with the question of allocation of seniority:
"11.
Seniority:- (1) The seniority of officers appointed to the service under Cls.
(a), (b), (c) and (d) of R. 4 in any year shall be in the following order,
namely:- (a) officers appointed to the Service by promotion under Cl.
(b) of
R. 4, ranked inter se in the order in which their names are arranged by the
Commission;
(b)
officers appointed to the Service by transfer from other service or services of
posts under Cl. (c) of R. 4, ranked inter se in the order in which their names
are arranged by the Commission;
(c) officers
appointed to the Service by selection under Cl.
(d) of
R. 4 ranked inter se in the order in which their names are arranged by the
Commission;
(d) officers
appointed to the Service on the results of a competitive examination in
accordance with Cl. (a) of R.
4,
ranked inter se in the order in which their names are arranged by the
Commission." Since the Merger of December 1973, does not fit within the
various criteria for promotion, it may not be regarded as a wholesale promotion
of all O.S.A.S. employees. The said employees who were integrated in the O.A.S.
II are, rather, to be regarded as a class unto themselves, 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 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
vacancies in the Orissa Financial and Police Services, would serve to nullify
the appointments of the respondents direct recruits.
As has
rightly been observed in Nityananda Kar's case (supra), although this ground
was repelled by the Court at the threshold, through the application of the rule
of constructive res judicata, that normally this competitive examination was a
common examination held for the O.A.S. as well. Even when an advertisement is
issued, no candidate may be said to have acquired a vested right of selection.
Conversely, when once the vacancies for the year 1973 were identified by the Government,
it was free to conduct a competitive examination at a time and in a manner of
its choosing. The common examination was in previous years held for the Orissa
Administrative Service, as well as the Orissa Financial Service and Orissa
Police Service. The mere fact of omission, then, of the O.A.S.II in the
advertisement issued for the purpose would not of itself amount to rendering
the appointments of the respondent direct recruits as nugatory. Learned counsel
for the State of Orissa has submitted that the usual
practice is to identify a notional number of vacancies, which may then be
compromised by either excess or insufficient intake at the time of actual
recruitment, depending upon such factors as the calibre of the candidates and
the particular needs of the Government at that time. It was for similar reasons
that the High Court of Orissa in Ananta Kumar Bose (supra) upheld the
appointment of the opposite parties, although several more recruits were
appointed than were originally envisaged in terms of vacancies.
The
fourth and final basis of conflict between Nityananda Kar (supra) and Pradip
Chandra Parija finds expression in the fourth reason given by the Bench of two
learned Judges of this Court for disagreeing with the conclusions reached in
the former 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 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:- "If you are
bidden to treat an imaginary state of affairs as real, you must surely, unless
prohibited from doing so, also imagine as real the consequences and incidents
which, if the putative state of affairs had in fact existed, must inevitably
have flowed from or accompanied it. One of these in this case is emancipation
from the 1939 level of rents. The statute says that you must imagine a certain
state of affairs; it does not say that having done so, you must cause or permit
your imagination to boggle when it comes to the inevitable corollaries of that
state of affairs."
The
said principle has been reiterated by this Court in M. Venugopal v. Divisional
Manager, Life Insurance Corporation of India, Machilipatnam, A.P. & Anr. [(1994) 2 SCC 323]. See also Indian Oil
Corporation Limited v.Chief Inspector of Factories & Ors.etc., [(1998) 5
SCC 738], Voltas Limited, Bombay v.
Union of India & Ors.,[(1995) Supp. 2 SCC 498], Harish Tandon v. Addl.
District Magistrate, Allahabad, U.P. & Ors. [(1995) 1 SCC 537]
and G.Viswanathan etc. v. Hon'ble Speaker, Tamil Nadu Legislative Assembly, Madras & Anr. [(1996) 2 SCC
353]."
The
effect of the Merger Resolution for the purposes of allocation of the benefits
of seniority was merely that the erstwhile members of the O.S.A.S. would now
rank as senior to those direct recruits whose year of joining service and year
of allotment was later than 1973. In other words, at the time of the Merger in
December 1973, the Sub-Deputy Collectors of the O.S.A.S. were placed in the
gradation list below not alone the Deputy Collectors of the erstwhile O.A.S.
II, but also below those officers who had been envisaged by the vacancies of
the preceding years, but who were yet to be actually recruited. As stated by us
above, the Merger itself did not purport to discontinue direct recruitment to
the O.A.S. II, nor did it address 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 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 reason for enactment of
the impugned legislation has expressly been stated in the Statements of Objects
and Reasons.
Seniority
is not the fundamental right but is merely a civil right. The right of the
seniority in this case was also not a vested or accrued right.
In
this case, the petitioners seek benefit to which they are not otherwise
entitled. The legislature, in our opinion, has the requisite jurisdiction to
pass an appropriate legislation which would do justice to its employees. Even
otherwise a presumption to that effect has to be drawn. If a balance is sought
to be struck by reason of the impugned legislation, it would not be permissible
for this Court to declare it ultra vires only because it may cause some
hardship to the petitioners. A mere hardship cannot be a ground for striking
down a valid legislation unless it is held to be suffering from the vice of
discrimination or unreasonableness. A valid piece of legislation, thus, can be
struck down only if it is found to be ultra vires Article 14 of the
Constitution of India and not otherwise. We do not think that in this case,
Article 14 of the Constitution is attracted.
Shri Bhagat
learned counsel placed strong reliance on the decision of this Court in the
case of Roshan Lal Tondon (supra). According to him, this matter stands
concluded by the said decision in petitioners' favour. Shri Bhagat passionately
read and re-read the said decision. We are of the view that reliance by the
learned counsel on Roshan Lal Tondon's case (supra) is totally mis-placed. In
the said decision, promotees and direct recruits brought in one cadre were
governed by one set of rules, which is not a case here.
In the
result, we uphold the validity of the Orissa Administrative Service, Class-II
(Appointment of Officers Validation) Amendment Act, 1992, and particularly
Section 2 thereof, which rightly sought to give effect to the judgment of this
Court in the case of Nityananda Kar (supra) .
The
writ petition and appeal are accordingly dismissed. There shall, however, be no
order as to costs.
WRIT
PETITION (C) No. 611 OF 1992 Prafulla Kumar Das and Ors. .. Petitioners Versus
State of Orissa and Ors. .. Respondents CIVIL
APPEAL No. 791 OF 1993 Pradip Chandra Parija and Ors. .. Appellants Versus Pramod
Chandra Patnaik & Ors. .. Respondents Dear Brother, Draft judgment in the
aforesaid matters is being sent herewith for your kind consideration.
.CJI.
(V.N. Khare)
.08.2003 Hon'ble Mr. Justice R.C. Lahoti.
WRIT
PETITION (C) No. 611 OF 1992 Prafulla Kumar Das and Ors. .. Petitioners Versus
State of Orissa and Ors. .. Respondents CIVIL
APPEAL No. 791 OF 1993 Pradip Chandra Parija and Ors. .. Appellants Versus Pramod
Chandra Patnaik & Ors. .. Respondents Dear Brother, Draft judgment in the
aforesaid matters is being sent herewith for your kind consideration.
.CJI.
(V.N. Khare)
.08.2003 Hon'ble Mr. Justice B.N. Agrawal.
WRIT
PETITION (C) No. 611 OF 1992 Prafulla Kumar Das and Ors. .. Petitioners Versus
State of Orissa and Ors. .. Respondents CIVIL
APPEAL No. 791 OF 1993 Pradip Chandra Parija and Ors. .. Appellants Versus Pramod
Chandra Patnaik & Ors. .. Respondents Dear Brother, Draft judgment in the
aforesaid matters is being sent herewith for your kind consideration.
.CJI.
(V.N. Khare)
.08.2003 Hon'ble Mr. Justice S.B. Sinha.
WRIT
PETITION (C) No. 611 OF 1992 Prafulla Kumar Das and Ors. .. Petitioners Versus
State of Orissa and Ors. .. Respondents CIVIL
APPEAL No. 791 OF 1993 Pradip Chandra Parija and Ors. .. Appellants Versus Pramod
Chandra Patnaik & Ors. .. Respondents Dear Brother, Draft judgment in the
aforesaid matters is being sent herewith for your kind consideration.
.CJI.
(V.N. Khare)
.08.2003 Hon'ble Dr. Justice AR Lakshmanan.
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