Deleted Rule 8 cannot override Rule 15 or established feeder-cadre seniority.

The petitioner and private opposite parties were recommended by the Odisha Staff Selection Commission for appointment as Inspectors of Commercial Taxes, subsequently redesignated as Assistant Commercial Tax Officers (ACTOs). In the recommendation notification dated 20 February 2003, the petitioner was placed above the private opposite parties, and all of them joined the ACTO cadre on 17 June 2003.

In the ACTO gradation list as on 1 November 2011, the petitioner was also placed above the private opposite parties.

The petitioner and private opposite parties were subsequently promoted to the Odisha Taxation and Accounts Service (OT&AS) Class-II. In the promotion notification dated 7 February 2014 and the Odisha Public Service Commission’s approval dated 3 July 2015, the petitioner was placed above the private opposite parties in the relevant category/list.

However, the petitioner was placed below them in the provisional and final OT&AS-II gradation lists published in 2018. His objection was not considered before publication of the final list.

In an earlier writ proceeding, the High Court directed the competent authority to consider the petitioner’s objection in light of Rule 15 of the Odisha Taxation and Accounts Service Rules, 2011, and the OPSC’s recommendation.

The authority rejected the objection on 30 September 2023, relying on Rule 8 read with Rule 4(b) of the 2011 Rules.

1. Whether the petitioner was entitled to be placed above the private opposite parties in the OT&AS-II gradation list on the basis of their relative positions in the selection and feeder-cadre records and under Rule 15 of the 2011 Rules

2. Whether the authority could rely on Rule 8 of the 2011 Rules for determining the petitioner’s seniority when that rule had been deleted by the amendment dated 22 December 2011

3. Whether the rejection order dated 30 September 2023 and the corresponding placement in the final OT&AS-II gradation list were legally sustainable

The Court applied Rule 15 of the Odisha Taxation and Accounts Service Rules, 2011, which provides that the inter se seniority of officers appointed to the service in a particular year shall follow the order in which their names appear in the Commission’s list or the relevant select list; the rule also prescribes the relative seniority of promotees and direct recruits.

Rule 4(b) concerns appointment to the service by promotion, while Rule 8 had earlier required preparation of a common gradation list for promotion based on substantive appointment in the respective feeder cadres, subject to preservation of inter se seniority; however, Rule 8 was deleted by amendment notification dated 22 December 2011.

The Court held that a deleted or non-existent rule could not be relied upon to determine the petitioner’s seniority.

The Court found that the petitioner had consistently been placed above the private opposite parties in the original selection notification, the ACTO gradation list, the promotion notification to OT&AS-II, and the OPSC’s approval of that promotion.

Since Rule 15 required inter se seniority to follow the order reflected in the relevant Commission or select list, those records supported the petitioner’s claim to seniority.

The authority nevertheless rejected the claim by applying Rule 8 read with Rule 4(b). The Court held that this reasoning was unsustainable because Rule 8 had already been deleted on 22 December 2011 and was therefore not available for application.

In light of the petitioner’s admitted superior position in the feeder cadre and the direction in the earlier writ proceeding to consider Rule 15 and the OPSC recommendation, the private opposite parties could not lawfully be placed above him in the OT&AS-II gradation list.

It quashed the rejection order dated 30 September 2023 and quashed the petitioner’s placement below the private opposite parties in the final OT&AS-II gradation list dated 21 August 2018.

The competent authority was directed to place the petitioner above private opposite parties 4 to 6 in the OT&AS-II gradation list and to maintain that position in the subsequent rank, by passing an appropriate order preferably within two months from receipt of the judgment.