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TMI Blog1990 (11) TMI 431X X X X Extracts X X X X X X X X Extracts X X X X ..... mmittee, the Government of Orissa decided to merge them and to have a single cadre known as OAS.II with a senior branch (S.B.) and a junior branch (J.B.) so that all the existing officers, be they in O.A.S.II and O.SA.SIII should be absorbed in O.A.S.II(SJ.). It was decided that the total integration of the two branches was to be completed in a phased manner. The Government of Orissa in the Political and Service Department passed a Resolution dated 7.1.1972 for giving effect to the recommendations. The main features of the Resolution were that the aforesaid two cadres were abolished and a single cadre of O.A.S.II with a senior and a junior branch was constituted. The incumbents of the existing O.A.S. II cadre were absorbed in O.A.S.H(S.B.) and those of O.S.A.S. III cadre were absorbed in O.A.S.II (J.B.). The total integration of these two branches was contemplated to be completed in a phased manner in a period of about ten years. Later, on and from 21.12.1973, the two branches were abolished and a new cadre of O.A.S.II was constituted and in terms of the Government order, all members of the then existing O.A.S.II(J.B.) known as Sub Deputy Collectors were placed in the seniority lis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een acted upon and acquiesced in for years resulting the rights accrued and benefits conferred and/or derived by assigning, 'the year of allotment' to thousands of recruits to the said cadre should not be disturbed. The gradation list has been prepared having due regard to the principle contained in Rule 11 of the Recruitment Rules of 1959 as well as the special provision contained in the resolution dated 21.12.1973. Basing on the aforesaid principles, opposite party Nos. 4 to 18 who were recommended by the O.P.S.C. for the year 1970 have been placed above the direct recruits of the said year. Similarly, opposite party Nos. 30 to 56 have been placed above the direct recruits of 1971. The recommendation was received after the passing of the integration resolution. Hence issue of formal appointment letters was not necessary. Applying the principle, of 'year of allotment' opposite party Nos. 19 to 29, who were appointed to service under Rule 4(a) of the Recruitment Rules of 1959 on the basis of the results of the combined competitive examination of 1970, have been treated as the direct recruits of 1970. These opposite parties entered the service in March, 1973 as per A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no invitation for filling up any post in the O.A.S. II in the advertisement issued by the State Public Service Commission and yet Respondents 4-13 had been given service on different dates in the year 1975, and secondly those Respondents had been assigned 1972 as the 'year of allotment' without authority of law even though they had actually joined service on different dates in the year 1975. The High Court of Orissa on 8.4.1985 rejected the challenge taking the view that it was entirely covered by the Full Bench decision in Ananta Kumar Bose's case (supra). In the Civil Appeal the challenge is to that decision. 7. After leave to appeal was granted by this Court, the State of Orissa passed the Orissa Administrative Services Class II (Appointment of Officers Validation) Act, 1986 with effect from June 2, 1987 validating certain appointments and determination of seniority. Section 3 thereof reads as under: 3. (1) Notwithstanding anything contained in the Orissa Administrative Service, Class II (Recruitment) Rules, 1959 and the regulations framed thereunder or the Orissa Administrative Service, Class II (Recruitment) Rules 1978 and the regulations framed thereunder or in a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... requiring extension of the principle laid down by the Orissa High Court in Ananta Kumar Bose's case (supra) to him as well, letting not the provisions of the impugned Act stand in his way. 9. And lastly there is writ petition No. 12770 of 1985 Under Article 32 of the Constitution by a set of mergerists seeking quashing of Resolutions whereby the year of allotment concept was introduced by the Government and which was upheld by the Orissa High Court. All these matters can conveniently be disposed of together. 10. We have heard learned Counsel for the parties at great length. The view projected on behalf of the mergerists is that in the absence of clear cut rules determining seniority, length of service is to be the guiding principle. The view propounded for the direct recruits is that the principle of the 'year of allotment' has been the traditional and tested modality to regulate and govern seniority inter se between the promotees, later turned mergerists, and the direct recruits. A number of decisions of this Court were cited before us to harp on the principle but we think it unnecessary to detail them since all those decisions have now been tied up in a five-judge be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to the nature of the controversy and it having been settled on the canvass of local conditions, we take the view that this Court's seal to the decision of the High Court must be taken as a seal of an approval of what it decided and thus a precedent settling the matter. Once that is so and borne in mind, the careful consideration and deliberations given by the Orissa High Court to the problem shall on approval of this Court be taken to have brought the case within the ambit of proposition (j) above-quoted from the Direct Recruits case (supra) and thus it is neither possible nor desirable for us to unsettle a settled position which dates back to decades and to axe down continuity and tradition followed for decades in the service of that State. Thus, the principle of the 'year of allotment' cannot be permitted to be challenged vicariously in Civil Appeal No. 750 of 1987 or the Writ Petition Nos. 12770 of 1985 and 1044 of 1987 and shall be taken to have come to stay in the services also on the terms of principle (k) of the Direct Recruits case (supra). 11. It was urged on behalf of the Appellants in Civil Appeal No. 750 of 1987 that Respondents 4-13 had appeared in the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... overnment Resolution in the erstwhile Political and Service Department No. 363/Gen. dated the 7th January, 1972 and integration of the Orissa Administrative Service, Class II (Senior Branch) into the Orissa Administrative Service, Class II in accordance with the policy laid down in Government resolution in erstwhile Political and Services Department No. 19468/Gen. dated 21st December, 1973, excluding those officers who were recruited to the Orissa Administrative Services, Class II by promotion for the recruitment years 1970 and 1971. For the view we have taken above on the governing principle of Ananta Kumar Bose's case (supra) and the employment of the traditional concept of the 'year of allotment', it is plain that the Validation Act above-extracted has put an end to any controversy with regard to the direct recruits who were assigned the 'year of allotment' 1970 and 1971 in terms of Ananta Kumar Bose's case (supra). This preservation is in consonance with the view we have taken on the strength and efficacy of the ratio in Ananta Kumar Bose's case (supra) on its being put at the pedestal of a case covered by principle (j) in Direct Recruits case (supra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Petitioner's 'recruitment was pursuant to decision taken by Government prior to December, 1973, to fill up a vacancy in the cadre. Explanation in Rule 4(2) of the Orissa Administrative Service Class II (Appointment by Promotion, Transfer and Selection), Regulations, 1959, provides: For the purpose of this sub-rule year of allotment in relation to a member of Orissa Administrative Service means the year in respect of which Government have decided to fill up a vacancy in the cadre of the Orissa Administrative Service against which the member is shown. In the absence of any other definition the same concept would obviously have applied in respect of the OAS Class II Service prior to merger. The final decision of Government to merge the two cadres was taken on 21st of December, 1973. The Orissa Administrative Service Class II (Appointment by Promotion, Transfer and Selection) Regulations, 1959 provided: No person being a member of Orissa Administrative Service shall be considered for promotion to the Service (OAS Class II)...... It is, therefore, clear the OAS Class II cadre prior to merger was providing promotional channel to officers of OAS Class II. Rules prescribed the mann ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rect recruits of OAS Class II. But, as we have said, we do not intend to finally dispose of the proceeding pending before the State Administrative Tribunal and Petitioner is free to work out his ultimate remedy before the Tribunal in the pending proceeding. 16. No final orders, therefore, are made in this writ petition and the dispute is left out for determination before the Tribunal following the law as indicated above. 17. Thus to sum up, we hold that Ananta Kumar Bose's case (supra) is the binding decision as approved by this Court on the important questions dealt therein and the foundation laid concerning integration of both the services of OAS II and OSAS III as merged in OAS II and we decline to unsettle a settled position in the interest of the service. We accordingly dismiss Civil Appeal No. 750 of 1987 and also Writ Petition No. 12770/85 and to that extent Writ Petition No. 1044/87 on that point. We have, however, allowed the later writ petition in part to the extent above indicated of declaring Section 3(2)(a) ultra vires of Article 14 of the Constitution and extend the benefit of Ananta Kumar Bose's case (supra) to the 1972 direct recruits as well. For the reason ..... X X X X Extracts X X X X X X X X Extracts X X X X
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