Orissa High Court: An intra-Court appeal was filed against the judgment and order of the Single Judge, whereby the State-respondents were directed to take necessary steps to fill up the posts in the cadre of OFS Group-A (Senior). The question revolved around the promotion of the appellants/ Forest Officers to OFS Group-A (Senior) who were granted promotion to the post of OFS Group-A (Junior) from the post of Forest Ranger by providing them the benefit of reservation under Rule-5 of the Odisha Forest Service Group-A (Junior Branch) (Method of Recruitment and Conditions of Service) Rules, 2013 (‘OFS Group-A (Junior) Rules’). The division bench of Chakradhari Sharan Singh*, CJ., and Murahari Sri Raman, J., allowed the appeal held that as there was no challenge to the promotion of the appellants and that due to the benefit of reservation it could not be declared illegal. The Court also directed the State to consider providing relaxation in the eligibility criteria under Rule 14 of the OFS Group-A (Senior) Rules, 2015 for the writ petitioners, who were senior to the appellants, but were denied promotion.
Background
The writ petitioners before the Single Judge (respondents No.4 to 11 in the present intra-Court appeal) entered into initial service to the post of Forest Ranger much before the appellants herein and were above in the tentative seniority list prepared on 29-04-2013. In view of the eligibility criteria under OFS Group-A (Senior) Rules, 2015, that an officer must have completed 5 years of continuous service in the grade of OFS Group-A (JB) as on the first day of January of the year in which the selection board meets. Accordingly, the appellants’ names figured in the said list because they had completed 5 years of continuous service in the grade of OFS Group-A (JB), as on 01-01-2023, however, the names of the writ petitioners/respondents No. 4 to 11 did was not on the list as they were granted promotion after 01-01-2018 and had thus not completed 5 years of continuous service in OFS Group-A (JB). The writ petitioners were aggrieved that their names were excluded despite the fact that they were above the present appellants. The appellants were promoted to the Grade of OFS Group- A (JB) in 2013 from the post of Forest Rangers based on the reservation policy under OFS Group A (JB), 2013.
The Single Judge, vide the impugned decision, held that the writ petitioners were not eligible for being considered for promotion to the Senior Branch. Further, the Court opined that between the question of seniority and the eligibility criteria, the former shall take precedence over the latter as otherwise the balance between Articles 16(1) and 16(4A) of the Constitution would be disturbed.
Further, it was noted that there were number of vacancies in the rank of OFS Group-A (Senior) and some of the writ petitioners were promoted to the OFS Group-A (JB) on different dates in the year 2018 and thus acquired or will be acquiring the eligibility on different dates in the said year itself, hence, the State-respondents were directed to consider relaxation of Rule 5 in exercise of its power under Rule 14.
Issue and analysis
Can the promotion to OFS Group A (Senior) rank be done based on reservation policy?
The Court said that the criterion laid out in M. Nagaraj v. Union of India, (2010) 12 SCC 526; Jarnail Singh v. Lachhmi Narain Gupta, 2018 SCC OnLine SC 635 and Pravakar Mallick v. State of Orissa, (2020) 15 SCC 297 has no application in the instant case because as per the OSF Group — A (senior) Rules, 2015, there is no reservation policy applicable for promotion under the said Rules and the petitioners, did not raise any challenge regarding the promotion based on the reservation of the appellants, even though it would be hit by the criterion laid down in M. Nagaraj(supra) and Jarnail Singh(supra). Hence, the Court noted that the appellants continued to hold their posts as their rights cannot be taken away without giving them the opportunity to defend their stance. The promotions of the appellants, hence, was upheld.
Do the appellants have the right to be considered for promotion to OFS Group-A (Senior) as per the OFS Group-A (Senior Branch) Rules, 2013 (‘Rules’)?
The Court noted that the Department Promotional Committee (‘DPC’) is required to meet once a year preferably in January for the preparation of a list of officers considered by the Board to be ‘suitable’ for promotion taking into account the existing vacancies. The eligibility criteria under Rule 5 of the said Rules says that no officer is eligible for promotion to the post of Group-A (SB) unless the officer has completed five years of continuous service in the Grade of OFS Group-A (JB) on the 1st of January of every year when the Board meets. Therefore, any officers who had not completed five years of continuous service in Grade of OFS Group-A (JB) as of 01-01-2023 were not eligible for consideration for the year 2023, and those who had were eligible. The Court concluded that firstly, there was no discrepancy in the communication dated 03-03-2023 issued by the Government asking for inputs for consideration of promotion of the eligible officers to the rank of OFS Group-A (Senior) per the Rules of 2015 by the DPC for 2023. Secondly, the Court clarified that the writ petitioners were unable to fulfill the said eligibility criterion as per the Rules of 2015 to be considered for promotion because they had not completed 5 years of service in OFS Group-A (Senior).
The Court said that it is uncontestable that those who had completed 5 years of service in OFS Group-A (JB) were eligible for the promotion. This promotion, however, was given as an extension to the reservation but the same has not been challenged when they were given years ago in the instant case or any court of law, nor has it been declared illegal. Hence, the appellants also had the right to be considered for promotion in the DPC meeting held on 20.03.2023. further, the Court disagreed with the approach taken by the Single Judge and said that the order of the Single Judge was making the entire process of the DPC a nullity. The Court did not find any illegality within the communication dated 03-03-2023 and consideration as per the criteria laid out for promotion. The Court also held that the writ petitioners did not fulfill the eligibility criteria as on 01-01-2023 in accordance with the Rules 2015 for consideration of their promotion by the DPC held on 20-03-2023.
The Court disposed the matter with the following directions:
The State should contemplate providing relaxation in the eligibility criteria under Rule 14 of the OFS Group-A (Senior) Rules, 2015 for the writ petitioners. If the relaxation is considered then a meeting should take place to consider all eligible officers and the requisite procedure should be followed in matters of promotions. If the relaxation is not granted the parties who would be affected have a right to question it before the appropriate forum including filing a writ petition under Article 226 of the Constitution. Additionally, in such a scenario the promotions should be done based on the list previously prepared and approved by the State Government and as per the Rules. As soon as this process is completed, a new DPC meeting should be held to consider officers eligible for promotion for the year 2024.
[Arun Kumar Biswal v. State of Odisha, 2024 SCC OnLine Ori 1582, Decided on: 18-06-2024]
*Judgment authored by: Chief Justice Chakradhari Sharan Singh
Advocates who appeared in this case :
For the Appellant: Sr. Advocate N. K. Mishra assisted by Advocate Deepak Kumar Pani.
For Respondents 1 to 3: Addl. Govt. Advocate R. N. Mishra.
For Respondents 4 to 11: Sr. Advocate Gautam Misra assisted by Advocates Anupam Dash & J.R. Deo,
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