The court affirmed that executive instructions regarding promotions remain effective for cases initiated before new rules, emphasizing the need for eligibility consideration based on existing rules at the time of promotion.

JUDGMENT

Murahari Sri Raman, J.

The challenge:

W.A. No.658 of 2023

This Appeal at the behest of the Commerce and Transport Department, Government of Orissa is directed against Judgment dated 24.02.2023 of the learned Single Judge of this Court passed in W.P.(C) No.35645 of 2021 (Sreepati Ranjan Dash) invoking Article 226/227 of the Constitution of India, whereby it has been concluded as follows:

'29. In view of the aforesaid analysis of fact as well as law and upon a conspectus of the materials placed before this Court and upon hearing the learned counsels appearing for the respective parties, this Court is of the considered view that the impugned order under Annexure-9 is unsustainable in law and the same is hereby quashed.

Further, the opposite party No.2, i.e., the Transport Commissioner-cum-Chairman, State Transport Authority, Orissa is directed to immediately convene the Departmental Promotion Committee and consider the case of the petitioner along with two other persons found eligible by him vide his Letter dated 03.09.2021 under Annexure-7 in the light of executive instruction dated 17.11.1981 and take a decision within a period of four weeks from the date of production of the copy of this judgment.

It is further directed that in the event, the opposite parties are planning to fill up the vacant post of Assistant Regional Transport Officer in view of the new Rules, 2021, which was notified on 03.01.2022, they are free to do so, however, three posts of Assistant Regional Transport Officer as has been recommended under Annexure-7 by the Transport Commissioner shall not be filled up till a final decision is taken by the opposite party No.2 as has been directed hereinabove.

In the event, any advertisement has been published to fill up such posts, suitable modification be made in the said advertisement by way of corrigendum forthwith.'

1.1. W.A. No. 744 of2023

The learned Single Judge disposed of W.P.(C) No. 41042 of 2021 (Aditya Bhanjan Sahoo), has passed the following Order on 28.02.2023, assailing which the appellants-authorities have filed this writ appeal:

'In view of Judgment passed in W.P.(C) No. 35645 of 2021 dated 24.02.2023, the present writ petition is disposed of accordingly.'

1.2. The Appellants sought intervention of Division Bench of this Court by way of the present intra-Court appeal by setting aside the aforesaid Judgment dated 24.02.2023 of the learned Single Judge on the ground that the observation made supra runs counter to what has been spelt out vide Judgment dated 20.05.2022 of the Hon'ble Supreme Court of India rendered in the matters of State of Himachal Pradesh & Others Vrs. Raj Kumar & Others, (2023) 3 SCO 773 = (2022) 15 SCR 847, wherein the notion that 'the vacancies which occurred prior to the amended rules would be governed by the old rules and not by the amended rules' has been held to be incorrect proposition of law governing services under the Union and the States under Part-XIV of the Constitution.

The pleadings:

2. Sreepati Ranjan Dash, the respondent (the petitioner in the writ petition), was initially appointed under the Orissa Civil Services (Rehabilitation Assistance) Rules, 1990 in the post of Junior Assistant in the Office of the Transport Commissioner- cum-Chairman, State Transport Authority (appellant No.2) vide appointment Letter dated 16.03.2013. Pursuant to the said appointment letter, the Respondent had joined in duty on 18.03.2013.

2.1. While continuing as such in the said Office of the appellant No.2, the respondent was found suitable and was otherwise eligible for promotion, as per the extant Rules in force, by the Departmental Promotion Committee held for the purpose and accordingly, the petitioner was given promotion to the post of Senior Assistant vide office order dated 10.06.2016. Pursuant to the promotion order, the respondent joined in the promotional post of Senior Assistant on 13.06.2016. Upon joining against the new post, on promotion, the pay scale of the respondent was fixed