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PETITIONER: SHRI ANAND CHANDRA DASH

       Vs.

RESPONDENT: STATE OF ORISSA AND ORS.

DATE OF JUDGMENT:       13/01/1998

BENCH: S. SAGHIR AHMAD, G.B. PATTANAIK

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T G. B. PATTANAIK, J.      The order  date 21st  of July 1987 passed by the Orissa Administrative   Tribunal    dismissing   the    Transferred Application No.  166 of  1986  of  the  appellant  is  under challenge  in  this  appeal.  The  appellant  was  appointed initially in  the year  1956 as  a Sevak  in the  Tribal and Rural Welfare  Department and then later on was appointed as L.D. Clerk  in the  District Welfare  Office, Phulbani. From the post  of LD  Clerk he  was promoted to the post of Upper Division Clerk  in April 1961 and was confirmed on that post in April  1969. Prior  to his confirmation as Upper Division Clerk he was further promoted to the post of Senior Auditor, Board of  Revenue,  Cuttack  on  being  recommended  by  the Collector Phulbani  and on  being  selected.  Later  on  his services  were   transferred  to   the  Revenue  and  Excise Department, Bhubaneshwar  as a  Senior Auditor  where he was continuing with  effect from  1.8.1967. In the year 1970 the Labour  &   Employment  &   Housing  Department   issued   a requisition to  all the  Government Departments  for sending the names  to fill  up the  post of  Senior Auditor  in  the Labour Department.  Appellant’s name was also sent alongwith others by the Revenue Department. The appellant was selected for being absorbed in the Labour Department and he was asked to offer  his willingness  by Revenue & Excise Department by letter  dated   31.10.1970.  The   appellant  expressed  his unwillingness to join the new department but notwithstanding the same  the employer  Revenue Department  relieved him  by order  dated   7.11.1970.  The   appellant   expressed   his unwillingness to join the new department but notwithstanding they same  the employer  Revenue Department  relieved him by order dated  7.11.1970 and  the appellant was forced to join the Labour,  Employment & Housing Department. But the Labour Department insisted  that the  appellant  cannot  claim  his seniority in the Labour Department. The appellant then filed a Representation  to  the  Labour  Department  claiming  his seniority by  taking into  account his  services as a senior auditor for  the date  he has been so appointed in the Board of Revenue,  Orissa, Cuttack  but the  Labour Department did not accept  his request nor even communicated any refusal to

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him. When  the tentative  Gradation List  of Senior auditors was prepared  by the Labour, Employment & Housing Department inviting objections,  the appellant  filed his  objection as his past  services had  not been  taken  into  account.  But before disposal  of  his  objection  the  Labour  Department decided to  transfer the  Audit Branch to the direct control of the  Directorate of Employees State Insurance Scheme. The final Gradation  List was published by the Labour Department on 25th  March, 1977  and appellant  was shown junior to the respondents.  The  appellant  then  filed  a  Representation challenging his  seniority as shown in the Gradation List of Senior  Auditors   in  the  Labour  Department  and  shortly thereafter  he   was  transferred   to  the  Directorate  of Employees’ State  Insurance Scheme.  Appellant then  filed a Representation challenging  his seniority  as  well  as  his transfer to the ESI Scheme but having failed in this attempt filed a  Writ petition in the Orissa High court and the same Writ  Petition   stood  transferred  to  the  Administrative Tribunal  and   finally  was  disposed  of  by  order  dated 21.7.1987. The  Tribunal by the impugned order set aside the order dated  26.4.1977, transferring  the appellant  to  the Directorate of  ESI and  further directed  that he  would be treated as  Senior Auditor of the Labour Department, but his claim  of   seniority  as  Senior  Auditor,  in  the  Labour Department was  not granted.  In  other  Words  his  earlier services a  Senior Auditor  Under the Revenue Department was not taken  into account  for the purpose of his seniority in the cadre of Senior Auditor under the labour Department. The Tribunal in  denying the  relief of seniority claimed by the appellant in  the Labour  Department by  taking into account services  rendered   by  the  appellant  under  the  Revenue Department relied  upon the  fact of  appellant joining  the Labour  Department  and  came  to  the  conclusion  that  he willingly joined  the Labour  Department even  after knowing the condition that his seniority in the Labour Department in the cadre  of Senior Auditor will be determined on the basis of taking   his  services as  a Senior Auditor in the Labour Department itself  and not  taking  his  past  service  into account.      Mr.  Das,   the  learned   counsel  appearing  for  the appellant challenged  the conclusion  of the Tribunal on the ground that  the  appellant  had  never  joined  the  Labour Department willingly but on the other hand, he was forced to join notwithstanding  his unwillingness  to join  the Labour Department, by  letter dated  6.11.1970. He  was relieved by the Revenue  & Excise  Department  on  7.11.1970.  Mr.  Das, learned counsel  also further  contended that  the appellant have all along been requesting that he should be reverted to his Parent  Department, namely, Revenuer & Excise Department but even  that prayer  had not  been granted and under these circumstances there  is no  justification for  ignoring  his past services  as a Senior Auditor in the Revenue Department for the purpose of determining his seniority in the cadre of Senior Auditor  in the Labour Department. We find sufficient force in  the aforesaid  contention of  the learned  counsel appearing  for   the  appellant.   That  the  appellant  was appointed as  a Senior Auditor on being duly selected by the member, Board  of Revenue  on 28.10.1966 is not disputed. It is also  not disputed that his services were brought over to the labour  Department on  requisition being made to all the Government Departments  and on  his name  being sponsored by the Revenue  Department. It is no doubt true that the Labour Department  had   indicated  that   the  seniority  will  be determined on the basis of the date of joining of the Labour Department itself  but the  appellant had  no point  of time

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agreed to  the  said  condition,  and  on  the  other  hand, unequivocally expressed  his unwillingness  to come  over to the Labour  Department by letter dated 6.11.1970 and without consideration of  the same  the Revenue  Department relieved him requiring  him to  join in the Labour Department. In the aforesaid premises  we see  no justification in ignoring the service rendered  by the appellant as a Senior Auditor under the Revenue  Department. The  Tribunal,  in  our  considered opinion, committed  an error  by directing that seniority of the appellant  in  the  cadre  of  Senior  Auditor  will  be determined by  taking his  services from  the date he joined the  Labour   Department.  In  our  considered  opinion  the services  of   the  appellant   as  a  Senior  Auditor  from 28.10.1966 shall  be taken  into account for determining his seniority in  the cadre  of Senior  Auditor  in  the  Labour Department. The  appellant, we  are  informed,  has  already retired from  the service.  We, therefore,  direct that  the Labour Department  would  determine  the  seniority  of  the appellant in  the cadre  of Senior  Auditor by  taking  into account  his   services  from   28.10.1966   and   on   such determination if  he would  be entitled to consideration for promotion to  any post  at an earlier point of time that may be duly  considered, and  thereafter if he is found suitable then notional  promotion may  be given  and  ultimately  his retiral benefits  may be  re-calculated on  that basis. This may be  done within  a period  six months  of the receipt of this order.      Appeal is accordingly allowed. But in the circumstances there will be no order as a costs.