2003 Supreme(SC) 985

2003(7) Supreme 335
SUPREME COURT OF INDIA
(Under Art. 32 of the Constitution of India)
V.N. Khare, CJI., R.C. Lahoti, B.N. Agrawal, S.B. Sinha & AR. Lakshmanan, JJ.
Prafulla Kumar Das & Ors. -Appellants
versus
State of Orissa & Ors. -Respondents                           
Writ Petition (C) No. 611 of 1992
With
C.A. No. 791 of 1993
Decided on 7-10-2003
Counsel for the Parties :
For the Appearing Parties : Soli J. Sorabjee, Attorney General, P.N. Misra, Sr. Advocate, Vinoo Bhagat, P. Gaur, S. Misra, R.M. Patnaik, Abhijit Sengupta, Ajay Sharma, Advocates.

IMPORTANT POINT
Section 2 of the Orissa Administrative Service Class II (Appointment of Officers Validation) Amendment Act, 1992 held valid.

Headnote:Service Law-Orissa Administrative Service, Class-II (Appointment of Officers Validation) Act, 1987-Orissa Administrative Service Class-II (Appointment of Officers Validation) Amendment Act, 1992-Section 2-Validity of-Seniority fixation-Concept of year of allotment-Merger of Orissa Administrative Service (Junior Branch) with Orissa Administrative Service II (Senior Branch)-Creation of single integrated Orissa Administrative Service Class II-Inter se seniority by placing first name of defunct Junior Branch immediately below the last name of Senior Branch-Respondent officials, direct recruits were given 1973 as their year of allotment, although they took up their service in year 1975-Petitioners and appellants, mergerists who were born in integrated service on date of merger, i.e. 21-12-1973 were denied seniority with respect to direct recruits who were conferred 1970 and 1971 as their respective years of allotment-Concept of year of allotment challenged-Whether concept of year of allotment has become unworkable-(No)-Concept of year of allotment is deemed to be valid-Such legal fiction must be given its full effect-Section 2 of Amendment Act held valid.

       Held : 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. (Para 28)

       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. (Paras 38 to 40)