Senior reserved category employees cannot be denied promotion to unreserved posts based solely on excess representation, contradicting applicable rules and constitutional provisions.

JUDGMENT :

SASHIKANTA MISHRA, J.

1. The issue that arises for consideration in this writ application is, whether senior reserved category employees can be denied promotion to the higher post under unreserved category ignoring their seniority.

FACTS

2. Petitioner Nos.1, 2 and 3, at the time of filing of the writ application were serving as Asst. Revenue Inspectors (ARI) while petitioner Nos.4 and 5 were serving as Amins. All of them were posted in different Tahasils of Keonjhar District. Petitioner No.1 and 3 belong to the SC category, while petitioner Nos. 2, 4 & 5 belong to the ST category. Petitioner Nos. 1, 2 and 3 entered into Government service as ARI on 09.11.2009, 13.11.2009 and 05.11.2009 respectively. Petitioner Nos.4 & 5 entered into Government service as Amins on 13.11.2009 and 16.11.2009 respectively.

3. The Collector, Keonjhar vide letter dated 06.09.2018 published draft gradation list as on 31.07.2018 in respect of Revenue Supervisors, Revenue Inspectors, Asst. Revenue Inspectors and Amins. In the draft gradation list of ARIs, petitioner Nos.1 to 3 were placed at serial Nos. 1, 2 and 5 respectively and petitioner Nos. 4 & 5 were placed at serial nos. 1 and 2 respectively in the draft gradation list of Amins. All the petitioners have passed departmental examination and have completed five years of service in their respective posts. As such, they claim to be eligible for being considered for promotion to the post of Revenue Inspector taking into account their seniority as per Rule-11 of the Orissa District Revenue Service (Method of Recruitment and Conditions of Service) Rules, 1983 (in short, “the ODRS Rules, 1983”).

4. By letter dated 16.08.2018, the Collector, Keonjhar sought clarification from the Government as to whether the employees belonging to the reserved categories could be considered for promotion to the post of Revenue Supervisor and Revenue Inspector in the UR category in view of excess representation of the reserved category employees. In response, the Government in Department of Revenue and Disaster Management, vide letter dated 11.01.2019 clarified that post-based reservation policy is being followed pursuant to the judgment of the Supreme Court in the case of M. Nagaraj v. Union of India , (2006) 8 SCC 212 , wherein it was held that specific slots are to be earmarked for specific category of candidates. As such, excess number of reserved category candidates having been employed in their prescribed slots over and above the limit, their cases for promotion against the posts earmarked for UR category cannot be considered.

5. Pursuant to such clarification of the Government, the Collector by order dated 17.01.2019 constituted a Departmental Promotion Committee (DPC) to be held on 18.01.2019. On 19.01.2019, the private opposite party Nos. 3 to 8 belonging to the general category were given promotion to the rank of Revenue Inspector ignoring the seniority of the petitioners and in violation of the ODRS Rules, 1983. The Collector also directed them to be relieved from their posts for joining in the new places of posting.

6. According to the petitioners, the impugned order of promotion issued in favour of the private opposite parties is unsustainable in law because seniority of the petitioners was completely ignored. As per the gradation list, all the petitioners joined in Government service on different dates in November, 2009 whereas the private opposite parties joined in June, 2012 and January, 2013. As such, they were placed below the petitioners in the respective gradation lists. According to the petition