2015 Supreme(SC) 962

SUPREME COURT OF INDIA
VIKRAMAJIT SEN, PRAFULLA C. PANT, JJ.
PRATAP KISHORE PANDA – APPELLANT
VERSUS
AGNI CHARAN DAS – RESPONDENT
CIVIL APPEAL Nos.6305-6307 OF 2009
Decided on : 16-10-2015

IMPORTANT POINTS
Rules cannot override statute. The Act must prevail over the Rules made under it.
When recruitment of reserved category has direct impact on general candidates, they will have locus standi to challenge appointment of such reserved category candidates.

Headnote:(a) Orissa Ministerial Service (Method of Recruitment and Conditions of Service of Lower Division Assistant in the Office of Department of Secretariat) Rules, 1951 – Rule 3 – Amendment on 10.10.1979 – Requisite number of SC/ST candidates are not available for filling up reserved vacancies – Requirement of fresh competitive examination only for SC/ST candidates – Amendment prospective in nature – Saves Respondents recruited through selection committee. (Para 12)

       (b) Orissa Ministerial Service (Method of Recruitment and Conditions of Service of Lower Division Assistant in the Office of Department of Secretariat) Rules, 1951 – Rule 11 and section 9(4), ORV Act – Government Resolution dated 25.5.1982 setting aside Rule 11 allowing Section 9(4) to prevail over it – Rule 11 contradictory to section 9(4) – Act must prevail over Rules which are delegated legislation – No error. (Para 13)

       (c) Orissa Ministerial Service (Method of Recruitment and Conditions of Service of Lower Division Assistant in the Office of Department of Secretariat) Rules, 1951 – Rule 30 and section 9(4) and (5), ORV Act – Sufficient number of reserved candidate not available – Rule 30 requires vacancies to be filled up as unreserved vacancies and also to be carried forward – Section 9(4) on the other hand requiring fresh recruitment drive – Fresh recruitment drive failing, vacancies can be filled by general category candidates as per section 9(5) – Rule 30 skipping one step – Held contrary to statute – Must be cast aside. (Para 14)

       (d) Orissa Ministerial Service (Method of Recruitment and Conditions of Service of Lower Division Assistant in the Office of Department of Secretariat) Rules, 1951 – Rule 3 r/w section 9(4) ORV Act – Law provided in section 9(4) prevailed at the time of recruitment of respondents – Provision not putting any constraint on mode of recruitment except that it must be for Sc/ST only – Selection by selection committee out of names sponsored by Employment Exchange – Valid alternative to recruitment by way of the OPSC competitive examination to be held annually as per Rule 3 – Appointments valid – Regularisation from date of initial appointment also held valid. (Para 15)

       (2006) 4 SCC 1 – Relied upon

       AIR 1998 SC 2812; AIR 1968 SC 349; (1993) 2 SCC 486; (1994) 2 SCC 630; (1996) 9 SCC 619; (1998) 4 SCC 179; (1990) 2 SCC 715 – Referred

       (e) Constitution of India – Article 226 – Locus standi – Appellants, general category appointees – Challenging mode of recruitment of Respondents, reserved category appointees – High Court rejecting their locus standi holding that both belonged to different classes – Respondents’ appointment if held valid would directly impact future prospects of appellants – Thus appellants would have locus standi to maintain their challenge – However in view of respondents’ appointment having been held valid, the issue becoming irrelevant. (Para 16)

       Facts of the case:

       The Orissa Public Service Commission (OPSC) recommended names of 714 successful candidates which included 20 in the reserved categories, which were approved by the Home Department. Since a substantially inadequate number of candidates in the reserved categories had been recommended by the OPSC, the State Government decided to fill these remaining seats on an ad hoc basis. Therefore, 403 reserved candidates including the Respondents were appointed in four batches between 15.5.1978 and 30.3.1980 after they were found suitable by a duly constituted Selection Committee which interviewed them. They were appointed with the stipulation that their services would be terminated as soon as reserved candidates selected by the OPSC became available.

       Subsequently, vide State Resolution dated 25.5.1982, the ad hoc reserved candidates recruited between 15.5.1978 and 31.10.1979, including the Respondents, were deemed as regular appointments. 52 other reserved candidates who were appointed after the OMS Rules 1951 amendment was effected were deemed to be employed on a temporary basis until a fresh competitive examination was held under the amended Rule 3 of the OMS Rules 1951. Vide another State Resolution dated 4.3.1983, the regularization of the ad hoc appointees affected by the previous resolution was given retrospective effect from the date of initial appointment as Junior Assistants, with the stipulation that in terms of seniority, they were always to be placed below the OPSC selected candidates appointed on the same day. Promotions were made in accordance with the gradation list prepared by the government pursuant to this resolution dated 4.3.1983. As a result of this, 145 reserved category appointees (including the Respondents) who had not been recruited by the OPSC but through an alternate method of regular recruitment became senior to the Appellants, who are OPSC appointed general category candidates.

       Some of the OPSC selected reserved category candidates challenged the fixation of their seniority in the cadre of Lower Division Assistant as well as the promotion of some of the regularized candidates to the rank of Senior Assistant in consequence of the alleged wrong fixation of seniority.

       The Tribunal held that the gradation list made in consequence of the Government Resolution dated 25.5.1982 was illegal, and the petitioners were entitled to consideration for their promotion in view of their seniority.

       Some others of the OPSC selected general category candidates also challenged the fixation of seniority. The Orissa Administrative Tribunal held that if sufficient number of candidates belonging to the SC/ST candidates are not available, a fresh recruitment test is required and that no other mode of recruitment is provided for. It was also held that services cannot be regularized by a Resolution, and accordingly recruitment made by the State Government contrary to the OMS Rules 1951 was quashed. The Tribunal held that irregularly appointed candidates cannot have seniority over regularly recruited candidates, and directed the Secretary, Home Department to reexamine and determine seniority according to law.

       Subsequently, the Government determined the seniority by placing the Respondents and other reserved candidates selected by the Selection Committee below the OPSC selected candidates, in the rank of Junior and Senior Assistants.

       On 30.5.2001, Government Order called for the Respondents’ CCRs for consideration of their further promotion to the rank of S.O. (Level II). The Tribunal quashed the Order insofar as it related to calling for service particulars and CCRs for consideration for promotion. It directed that the Respondents’ names be removed from the active common gradation list and that the OPSC candidates including the Appellants be considered instead, if they had come within the zone of consideration for promotion.

       Aggrieved by this order, three groups of regularized Selection Committee appointees filed writ petitions before the High Court which have been allowed.

       Finding of the Court:

       Impugned judgment does not warrant interference.

       Result: Appeals dismissed.