1. Heard learned counsel for the petitioners and learned Addl. Government Advocate.
2. Petitioners in the above writ petitions assail the order dated 14.3.2012 passed by the Orissa Administrative Tribunal, Cuttack Bench, Cuttack in O.A. No. 1164(C) of 2009 along with six other original application. In the original applications prayer was made to complete the process selection/promotion to Orissa Administrative Service Class-II for the year 2001-2005 and for the year 2008 pursuant to the notification made to the said effect respectively.
3. Since common questions are involved in all the writ petitions they are heard together and disposed of by this common order.
4. Learned counsel for the petitioners submits that the Tribunal without considering the materials available on record from its proper perspective passed the impugned. He further submits that in view of the ratio decided by this Court in the case of Mukti Ranjan Acharya v. State of Orissa reported in 2012 (II) OLR 61 the Tribunal order need be set aside.
5. Learned Addl. Government Advocate support the order of Tribunal and submit that the same need not be interfered with as some of the applicants already promoted to the post of Class-I post during pendency of the original applications.
6. For convenience the facts stated in W.P. (C) No. 9200 of 2016 is taken up.
7. The Government of Odisha has taken a decision while taking steps to fill up vacancies of the year 2001 to 2005 also fill up the vacancies for the year 2007 and 2008 and vide Notification No. CON-R-II33/2008-875/R (CS) informed all departments, Heads of Departments and all Collectors inviting recommendations for selection under Rule-3(c) of OAS Class-II Recruitment Rules, 1978 from nongazetted officers. Pursuant to the said notification the petitioner was eligible for promotion and selection as per the existing Regulations 1978 for the year 2008. His name was recommended amongst others vide letter dated 26.5.2008. As the final list was not prepared and the appointment was delayed, the petitioner approached the Tribunal in the aforesaid original application with a prayer to direct the opposite parties to complete the process within a stipulated period. In the said original application petitioner has taken a stand that the authorities concerned under whom the applicants are serving have sponsored the names of the applicants for consideration of their cases for promotion to OAS Class-II/Group-B. Even though the selection process was completed in respect of vacancies of the years 2001 to 2005 and appointment orders were issued in favour of the selected candidate vide notification dated 7.12.2010, the respondents authorities have not completed the process for selection/promotion to the post of O.A.S-II/Group-B against the vacancies for the year 2008. However issued a resolution on 28.2.2009 wherein it was decided to restructure the cadre of Orissa Administrative Service and for constitution of Odisha Revenue Service and to recognize the earlier services by re-designating the administrative service in hierarchy as OAS Class-I Junior Branch, OAS Class-I Senior Branch and OAS Supertime scale etc. and to finalise the Rules regulating recruitment as per restructure be made by way of amendment within three months. Accordingly on 25.5.2009 issued resolution laying down the pattern of recruitment in respect of Revenue Service and abolish the OAS Class-II Cadre by upgrading it as OAS-I Junior Branch. Since prior to the notification dated 28.2.2009 the names of the applicants had been recommended for selection to O.A.S.-II as against the vacancies of 2008 and the relevant service rule has neither been repealed nor substituted by any rules till date, as such the restructuring of cadre of O.A.S., should be implemented with prospective effect and accordingly the applicants are entitled to be considered for selection to the post of O.A.S.-II as against the vacancies of the year 2008.
8. Before the Tribunal the opposite parties have taken a stand that so far as the recruitment year 2008 is concerned as per policy decision of Government vide G.A. Department Resolutions dated 28.2.2009 and 25.5.2009 the O.A.S.-II cadre was abolished and at the entry level in OAS cadre is OAS-I (Junior Branch) and also new cadre i.e. Orissa Revenue Service cadre has been reconstituted. After reconstitution of ORS cadre, the applicant is coming under the ORS cadre and necessary provision has been made in the Resolution that 50% of posts shall be filled by way of promotion from among the officers of ORS cadre. It is not disputed by the parties that these decision of the Government is prospective in nature and it has no retrospective effect and the amended Rules i.e. Odisha Administrative Services (Method of Recruitment and Conditions of Service) Rules came into force w.e.f. 25.6.2011 during pendency of the original applications.
9. The Tribunal in the impugned order however held that since no Selection Board was convened nor select list/merit list has been prepared even though the Government called for nomination by way of selection and promotion for the recruitment year 2008 however as the Government has decided to fill up the posts of OAS-I (Junior Branch) and Orissa Revenue Service as per the Resolution dated 28.2.2009, thus no right has accrued in favour of the applicants for convening a D.P.C. for appointment to the post of OAS-II (Group-B) by way of promotion/selection. Accordingly the Tribunal passed the impugned order rejecting the prayer of the applicants.
10. Before the Tribunal the record regarding note sheet for recruitment of OAS-II by way of promotion/selection for the year 2008 was produced as Annexure-3. A copy of which was also annexed to the writ petition reveals that on the 1 of March, 2008 there are 333 vacant posts of OAS-II out of sanctioned strength of 1100 posts. Out of these the O.P.S.C. is conducting recruitment examination for 73 posts and there is vacancy of 260 posts. This will again be increased to 300 by end of December, 2008 because 14 O.A.S. Officers will be promoted to I.A.S. and 26 officers of O.A.S.-I and above rank will be retiring by December, 2008. Due to urgency to fill up these posts by way of promotion and selection which constitute 50% of the total vacancies which will be around 150. Due to dearth of officers, it has become unmanageable to administer the cadre. Taking into consideration the said position Government has also taken a decision by order dated 7.6.2008 for recruitment OAS Class-II by way of selection and promotion for the recruitment year 2008 may be kept on hold till the process of recruitment for the year 2001-2005 in respect of promotion/selection is complete. The last date for submission of nomination for the recruitment of OAS-II by way of selection and promotion for 2008 was fixed to 26.5.2008 which may be extended to further period of one month to facilitate the defaulting department and HOD to send their nominations and extended such date further till 15 July, 2008.
11. In the case of Mukti Ranjan Acharya (supra) this Court has considered whether the applicant before the Orissa Administrative Tribunal can be promoted to OFS-II as per the repealed Rules of 1979 after the OFS Rules, 2011 came into force and the creation of a new service in Class-II. Whether not giving them promotion to OFS-II would be unreasonable, arbitrary and discriminatory and illegal, held that that process regarding consideration of the case of the applicants for promotion to OFS-II had already started since 13.10.2008 and nothing on record that Government has taken any conscious policy decision not to fill up promotional vacancies in OFS-II for the years 2007-08 and 2008-09. State has stated that pending notification of the new Rules to be framed and steps have been taken to fill up vacancies in OFS-II by way of promotion from amongst Orissa Subordinate Finance Service Officers. In view of such position there is no reason not to consider the case of the applicants for promotion to OFS-II for the vacancies of the years 2007-08 and 2008-09 shall be arbitrary, unreasonable and discriminatory and directed the opposite parties to consider the case of the applicants for promotion to OFS-II in accordance with the existing rules and complete the entire process within a stipulated period.
12. Considering the fact and circumstances as discussed in the above paragraphs since vacancy up to 150 posts are available in the year 2008 i.e. before the Government has taken a decision on 28.2.2009, those vacancies should have been filled up by the existing Rules as per the decision of the Government in the year 2008 to fill up the vacancies which has not been considered by the Tribunal. Accordingly, we set aside the impugned order dated 14.3.2012 passed by the Orissa Administrative Tribunal, Cuttack Bench, Cuttack in O.A. No. 1164(C) of 2009 along with batch of original applications in exercising the jurisdiction under Article 227 of the Constitution of India and direct the State Authorities to call for a review DPC of the applicants before the learned Tribunal along with other eligible Officers and complete the process within a period of three months from today in respect of vacant posts for the year 2008.
13. The writ petitions are accordingly disposed of.