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2009 Supreme(Ori) 654
IN THE HIGH COURT OF ORISSA
P.K. Tripathy, B.N. Mahapatra, JJ.
DEEPAK RANJAN MOHANTY - APPELLANT
Versus
STATE ELECTION COMMISSION ORISSA AND ANOTHER - RESPONDENT
Decided On : 16-09-2009
Promotion to selection posts is to be based primarily on merit and not on seniority alone.
Headnote:
Promotion - State Election Commission - Orissa State Election Commission (Method of Recruitment & Condition of Service of Staff) Rules, 1996, Orissa Civil Services (Criteria for Promotion) Rules, 1992 - The court found that the promotion of the respondent to the post of Senior Assistant was made in violation of the statutory rules and the principles laid down by the Apex Court. The court directed the State Election Commission to treat the date of promotion of the petitioner with effect from the date the respondent was promoted and grant all consequential benefits to him.
Fact of the Case:
The petitioner sought to quash the order passed by the State Election Commission, Orissa, regarding the promotion of the respondent to the post of Senior Assistant. The petitioner claimed that the respondent's promotion was made by ignoring the petitioner's better claim. The respondent did not contest the issue. The court was tasked with determining whether the promotion of the respondent to the post of Senior Assistant was made in violation of the statutory rules and the principles laid down by the Apex Court.
Finding of the Court:
The court found that the promotion of the respondent to the post of Senior Assistant was made in violation of the statutory rules and the principles laid down by the Apex Court. The court directed the State Election Commission to treat the date of promotion of the petitioner with effect from the date the respondent was promoted and grant all consequential benefits to him.
Issues: The main issue was whether the promotion of the respondent to the post of Senior Assistant was made in violation of the statutory rules and the principles laid down by the Apex Court.
Ratio Decidendi: The court held that in case of appointment on promotion, merit plays a dominant role and comes first as the criterion under the statutory rules being merit and suitability with due regard to seniority. The court referred to various judgments of the Apex Court emphasizing that promotion to selection posts is to be based primarily on merit and not on seniority alone.
Final Decision: The Writ Petition was allowed, and the State Election Commission was directed to treat the date of promotion of the petitioner with effect from the date the respondent was promoted and grant all consequential benefits to him.
JUDGMENT :
B.N. Mahapatra, J. - Petitioner, in this Writ Petition, has prayed to quash the Order Dated 10.12.2002 (Annexure-1) passed by Opp. Party No. 1- State Election Commission, Orissa by which promotion has been given to Opp. Party No. 2-Saroj Kumar Pattnaik to the post of Senior Assistant & to give a direction to Opp. Party No. 1 to promote him with all financial & service benefits to the post of Senior Assistant from the date on which Opp. Party No. 2 got promotion to the said post.
2. The case of the Petitioner in nutshell is that on 29.02.1996, he was appointed as Junior Assistant on ad hoc basis under Opp. Party No. 1- the State Election Commission, Orissa (hereinafter referred to as 'the Commission'). Subsequent thereto, ten candidates were selected to the posts of Junior Assistant in the office of Opp. Party No. 1 through regular recruitment process. Among them, the Petitioner secured second & Opp. Party No. 2-Saroj Pattnaik secured third position in the merit list. They were appointed on 10.02.1999 & 12.02.1999 respectively. Thereafter, vide Order No. 6219 dated 10.12.2002 (Annexure-1), Opp. Party No. 2 was promoted to the post of Senior Assistant. Petitioner's case is that Opp, Party No. 2 was given promotion to the post of Senior Assistant by ignoring the better claim of the Petitioner. In Spite of service of notice, Opp. Party No. 2 has not entered appearance to contest the issue.
3. Mr. G R. Dora, Learned Senior Advocate appearing on behalf of the Petitioner submitted that Senior Assistant is the next higher post to Junior Assistant. The criterion for such promotion is merit & suitability with due regard to seniority. There were two vacant posts of Senior Assistant available in the office of Opp. Party No. 1 out of which one post was meant for reserved category & the other for general category. The Petitioner belongs to general category. Miss. Kabita Jena, who was at Sl. No. 1 among the Junior Assistants, was considered for the only post of general category but she was not found suitable by the Selection Board. The Selection Board selected & illegally recommended Opp. Party No. 2 for promotion to the post of Senior Assistant ignoring the better claim of the Petitioner. According to Mr. Dora, the criteria for such selection was mainly on the basis of Confidential Character Roll (CCR) for the proceeding three years. During the preceding three years, Petitioner got 'outstanding' remarks whereas the Opp. Party No. 2 got 'outstanding' remarks only for two years & 'very good' for one year. At the time of selection of candidates for filling up of posts of Junior Assistants in class- III post in the Commission held on 04.02.1999, both the Petitioner & Saroj Kumar Patnaik secured equal marks, i.e., 7 each. The criterion under Rule 7(3) of the State Election Commission (Method of Recruitment & Condition of Service of Staff) Rules, 1996 (herein after referred to as 'the Rules, 1996') framed under Article 309 of the Constitution of India being merit & suitability with due regard to seniority, merit plays a dominant role & comes first. The Commissioner has mechanically approved the recommendation made by the Selection Board though it was violative of statutory provisions & the mandates of Articles 14 & 16 of the Constitution of India & contrary to the decision of the Apex Court thereby disentitling the Petitioner for promotion to the post of Senior Assistant. However, in the meantime, the post of the Petitioner has been up-graded to Senior Assistant & at present, he is officiating in the said post from 27.10.2008. Concluding his argument, Mr. Dora submitted that direction be issued to promote the Petitioner as Senior Assistant from the date the Opp. Party No,2 was promoted to the post of Senior Assistant with all consequential benefits.
4. Per contra, Mr. Susanta Kumar Das, Learned Counsel for the Commission contended that in the proceedings of the 6th meeting of the Selection Board for selection of candidates to the posts of
