Holding

Section 3(2)(a) of the Validation Act is unconstitutional as it arbitrarily treats 1972 direct recruits differently, and the 'year of allotment' principle must be applied uniformly to all direct recruits.

Summary

The State of Orissa merged two administrative cadres, OAS II and OSAS III, and introduced a 'year of allotment' system to determine seniority. Mergerists challenged the seniority of direct recruits, especially those assigned the year 1972, arguing that the Orissa Administrative Service Class II (Appointment of Officers Validation) Act, 1986 arbitrarily placed deemed promotees above them. The Supreme Court examined whether Section 3(2)(a) of the Validation Act violated Article 14 by creating an unjust classification and whether the year‑of‑allotment principle should extend to the 1972 recruits. Relying on the Full Bench decision in Ananta Kumar Bose v. State of Orissa and the Direct Recruit case, the Court held that the Act’s provision was unconstitutional and that the year‑of‑allotment must be applied uniformly. Consequently, the Court declared Section 3(2)(a) ultra vires, dismissed the civil appeal and certain writ petitions, and allowed the writ petition challenging the Validation Act in part, leaving the remaining matters to be decided by the State Administrative Tribunal.

Issues considered

The constitutionality of Section 3(2)(a) of the Orissa Administrative Service Class II (Appointment of Officers Validation) Act, 1986 under Article 14.
Whether the principle of 'year of allotment' for seniority can be extended to direct recruits of the year 1972.
Validity of the Government resolutions introducing the year‑of‑allotment concept.
Whether the High Court's decision in Ananta Kumar Bose v. State of Orissa is binding on the present disputes.

Legislation cited

Orissa Administrative Service Class II (Appointment of Officers Validation) Act, 1986s. 2(a), s. 2(c), s. 3(2)(a)

Subjects

seniorityyear of allotmentservice integrationvalidation actArticle 14equal protectionadministrative servicemergerdirect recruitpromotee

Judgment

NITYANANDA KAR AND ANR. ETC. ETC.
A v.
STATE OF ORISSA AND ORS. ETC.

NOVEMBER 9, 1990

B [RANGANATH MISRA CJ, MADAN MOHAN PUNCHHI
AND K. RAMASWAMY, JJ.]

Orrisa Administrative Service Class ll/Orissa Subordinate
Administrative Service Class }If-Deputy Collectors and Sub-Deputy
Col!ectors-lntegration of-Assignment of year of allotment-Whether
valid-Orissa Administrative Service Class II (Appointment of Officers
c Validation) Act, 1987-Validity of.

On the recommendation of a High Power Committee, the Govern-
ment of Orissa by its resolution dated 7.2.1972 decided to merge the two
cadres of its services known as Orissa Administrative Service Class II
D and Orissa Subordinate Administrative Service Class III. The officers
in the former cadre prior to 7.2. 72 were designated as Deputy Col·
lectors and those of the latter as Sub-Deputy Collectors. The total integ-
ration was to be completed in a phased manner and the two cadres were
to be abolished and a single cadre of Orissa Administrative Service with
a senior and junior branch was to be constituted. Though initially this
E integration was contemplated to be completed within a period of 10
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 list below
the last person in the then existing O.A.S. II (S.D. known as Deputy
F Collectors. The inter se seniority of the 'mergerists' and direct recruits
who had joined the cadre after passing the competitive examination
conducted by the Public Service Commission, was determined keeping •
in view the concept of 'year of allotment contemplated under the Orissa
Administrative Service Class II (Appointment by Promotion, Transfer
and Selection) Regulations, 1959. Some of the mergerists who were
G initially in the O.A.S. III and came on integration to O.A.S. II chal·
lenged the method of fixing the 'year of allotment' before the Orissa
High Court in Ananta Kumar Bose v. State of Orissa, AIR 1986 Orissa
151. The challenge therein was conf"med only to tbe recruits of the years
1970 and 1971 and was abandoned with regard to the recruits of the
year 1972. The High Court in that case upheld the seniority of the direct
H recruits of the years 1970 and 1971. Special Leave Petition preferred

644
- .....i NITYANANDA v. STATE OF ORISSA 645

against the decision of the High Court in that case was rejected by this
A
Court. Thereafter the appellants who entered the cadre of O.A.S. II on
21.12.1973 as mergerists filed another writ petition in the High Court
challenging the seniority of respondents 4 to 13 contending that even
though there was no invitation for filling up any post in the O.A.S. II in
the adverttsement issued by Public Service Commission, yet respon-
dents 4-13 were given service on different dates in the year 1975 and B
fUrther those respondents had been assigned '1972' as the 'year of
allotment' without authority of law, they having joined service on diffe-
rent dates in 1975. The High Court rejected the petition holding that the
case was entirely covered by the Full Bench decision in Ananta Kumar
Bose's case referred to above. Hence this appeal before this Court.

The petitioners in the two Writ Petitions (Nos. 1044/87 and 929/ c
87) challenge the vires of the Orissa Administrative Service Class II
(Appointment of Officers Validation) Act, 1986 and the petitioners in
the third writ petition seek quashing of Resolutions whereby the year of
allotment concept was introduced by the Government of Orissa.
D
It is contended by the petitioners-mergerists that in the absence of
clear cut rules relating to the determination of seniority, l~ngth of
service should be the guiding principle whereas direct recruits contend
that the principle of 'year of allotment' bas been the traditional and
tested modality to regulate and govern seniority inter se between the
promotees, and the direct recruits. E

Dismissing the appeal and partly allowing the writ petition where
challenge to the validity of the Validation Act has been made, this
Court,
• HELD: The Orissa Legislature's preserving the principle of the F
year of allotment for the direct recruits·of the years 1970 and 1971 and
not extending the same to the direct recruits of the year 1972, to say the
least is, arbitrary and liable to be struck down under Article 14 of the
Constitution, for what is good and valid for 1970 and 1971, direct
recruits is equally good and valid for the direct recruits of the year
1912. [654F-G] ·a
Since the two groups of recruits were similarly placed and the
situation did not yield to any reasonable classification it was not open to
.,_ the State Legislature to maintain in artificial classification and provide
by the impugned Act unequal treatment to the 1972 recruits. Thus
Section 3(2)(a) of the Validation Act, in so far as it permits the deemed H
646 SUPREME COURT REPORTS [1990] Supp. 2 S.C.R.

promotees of the year 1972 to be placed above the direct recruits ohhe
A
year 1972 in the Gradation List, is violative of Article 14. [6558-C]

Direct Recruit Class lI Engineering Officers' Association v. State
of Maharashtra and Others, [1990] 2 SCC 715 followed. ·

B Anania Kumar Bose v. State of Orissa, AIR 1986 Orissa 151
affirmed.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 750 of
1987.

From the Judgment and Order dated 8.4.1985 of the Orissa High
c Court in O.J .C. No. 1328 of 1984.

Kapil Sibal, Additional Solicitor General, Dr. L.M. Singhvi,
Dr. Shankar Ghosh, R.K. Garg, J.R. Das, D.K. Singh, Shaheed
Rizvi, Vinoo Bhagat (N.P.) P.N. Misra, A.K. Jha, R.K. Mehta, A.K.
D Sil, G. Joshi, Ms. Mridula Ray, A.K. Jha, S.K. Patri, Ms. Mona
Mehta and S.N. Agrawal for the appearing parties.

The Judgment of the Court was delivered by

PUNCHHI, J. These four matters have converged in this Court
E requiri.ng settlement of a serious dispute of seniority in the Orissa
Administrative Services. One is a Civil Appeal and the remaining
three are writ petitions.

Prior to January 7, 1972, there were in the Services two cadres,
namely, Orissa Administrative Service Class II (for short 0.A.S. II) •
F and Orissa Subordinate Administrative Service Class III (for short
O.S.A.S. III). The members of 0.A.S. II were known as Deputy
Collectors and those of O.S.A.S. III as Sub Deputy Colle.ctors. Re-
cruitment to 0.A.S. II was regulated by a set of rules known as Orissa
Administrative Service Class II (Recruitment) Rules, 1959 (for short
the Recruitment Rules of 1959) and recruitment to 0.S.A.S. III was
G . regulated by Orissa Subordinate Administrative Service (Recruit-
ment) Rules, 1959. On the recommendation of a High Power Commit-
tee, the Government of Orissa decided to merge them and to have a
single cadre known as 0.A.S. II with a senior branch (S.B.) and a junior
branch (J.B.) so that all the existing officers, be they in 0.A.S. II and
O.S.A.S. III should be absorbed in 0.A.S. II (S.J.). It was decided
H that the total integration of the two branches was to be completed in a
NITYANANDA v. STATE OF ORlSSA IPUNCHHJ, J.J 647

phased manner. The Government of Orissa in the Political and Service
A
Department passed a Resolution dated 7-1-1972 for giving effect to the
recommendation. The main features of the Resolution were that the
aforesaid two cadres were abolished and a single cadre of 0.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 0.A.S. II (S.B.) and
those of O.S.A.S. III cadre were absorbed in 0.A.S. II (J.B.). The B
total integration of these two branches was contemplated to be comp-
leted 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
0.A.S. II was constitued and in terms of the Government order, all
members of the then existing 0.A.S. II (J.B.) known as Sub Deputy
Collectors were placed in the seniority list below the last person in the
then existing 0.A.S. II (S.B.) known as Deputy Collectors. Thus, with
effect from 21-12-1973 all became Deputy Collectors retaining their
position where they were on the date of absorption, i.e., 21-12-1973.

For the purposes of promotion, the Orissa Administrative
Service Class II (Appointment by Promotion, Transfer and Selection) D
Regulations, 1959 (for short Regulations of 1959) made provision for
determining the 'year of allotment' for the members of the 0 .A.S. II.
Additionally Regulation 3 of Orissa Administrative Service Class II
(Appointment by Competitive Examination Regulation) 1959 provid-
ing for holding of competitive examination required the State Public
Service Commission to conduct an examination having regard to the E
likely number of vacancies each year in the manner prescribed for
direct recruitment to the services. Based upon the concept of 'year of
allotment', the State Government in the working cif the r:ierger Reso-
lution gave due regard to the 'year of allotment' while settling claims
of seniority between direct recruits to the merged service and the
mergerists brought into that service. F

Some of the mergerists who were initially in the O.S.A.S. III and
came on integration to 0.A.S. II chalienged the applicability of
manner of fixing the 'year of allotment' before the Orissa High Court.
A Full Bench of that High Court in Anania Kumar Bose v. State of
Orissa, AIR 1986 Orissa 151 repelled such challenge and left intact the G
seniority of the direct recruits of the years 1970 and 1971, since
challenge to the assignment of seniority to the direct recruits who had
been assigned 1972 as their 'year of allotment' was specifically
abandoned before the High Court, (as is reflective from paragraph 15
of the Report). The High Court in rejecting the contention observed as
follows: H
.J
648 SUPREME COURT REPORTS [1990] Supp. 2 S.C.R. >... ,

A "The recruitment rules and regulations are consistent with
the scheme that recruifment shall be made against the
vacancies of a particular year. The principle of fixing the
'year of allotment' has been continuously and traditionally
followed. In the Civil list of earlier years (at least from the
year 1965 were placed before us) it was found that both in
B respect of promotees and direct recruits the 'date of
appointment' and 'year of allotment' are separately men-
tioned. A long standing practice which has been acted upon
and acquiesced in for years resulting in rights accrued and
benefits conferred and/or derived by assigning, 'the year of
allotment' to thousands of recruits to the said cadre should
c not be disturbed. The gradation list has been prepared hav-
ing due regard to the principle contained in R. II 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
D
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
E 29, who were appointed .to service under R. 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 m March, 1973 as per
Annexure-4 much before passing o Annex. 2. As already
F held, the petitioners cannot be treated as promotees.
Hence the above opposite parties should be placed above
the petitioners. Similarly, opposite party Nos. 57 to 80 were
appointed to service under R. 4(a) of the Recruitment
Rules of 1959 basing on the results of the competitive
examination of 1971 and they have been treated as the
G direct recruits of 1971. The petitioners who were Sub
Deputy Collectors, were integrated to O.A.S. II by virtue
of the Government Resolution dated 21-12-1973 and not in
-accordance with the procedure prescribed in the Recruit-
ment Rules of 1959. So, they have been placed below the ....
direct recruits of the years 1970 and 1971."
H
NITYANANDA v. STATE OF ORISSA [PUNCHHI, J.] 649

Special Leave Petition (Civil) No .. 2565 of 1984 filed against the
A
aforesaid decision of the Orissa High Court was dismissed by this
Court in limine on 2-4-1984 and a Review Petition against that was also
dismissed on july 19, 1984.

The direct recruits who had been assigned .1972 as their 'year of
allotment', were originally made opposite parties numbers 81-90 in the B
Writ Petition before the High Court, but, their names were got deleted
by the writ petitioners. Apparently these direct recruits were treated
senior to the writ petitioners, but subsequently by a Government
Order had been declared as junior to the writ petitioners. They too
filed writ petition numbered as 0.J.C. No. 1366 of 1983 before the
High Court challenging the Resolution of the Government making
them juniors but since the Government vide a subsequent Resolution C
of August 19, 1983 restored them their seniority, the writ petition was
not pressed by them. Though at a later stage they again wanted to join
as parties in the Full Bench case before the High Court, the High
Court thought it unnecessary to consider their case in that writ petition
in view of the position indicated by it. D

In Civil Appeal No. 750 of 1987 the two appellants as mergerists
entered into the cadre of O.A.S. II on 21-12-1973. Appellant No. 2,
Bishnu Prasad Mishra was one of the writ petitioners before the Full
Bench of Orissa High Court in Anania Kumar Bose's case (supra).
-'I.his time the challenge was made by the appellants not only to the E
seniority of respondents 4-13 herein (who were once respondents
81-90 before the Full Bench of the Orissa High Court though deleted
later) on two grounds, namely, that there was no invitation for filling
up any post in the 0.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 respon- F
dents had been assigned 1972 as the 'year of allotment' without autho-
rity of Jaw 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 Anania Kumar Bose's case (supra). In the Civil
Appeal the challenge is to that decision. G

After leave to appeal was granted by this Court, the State of
Orissa passed the Orissa Administrative Service Class II (Appoint-
ment of Officers Validation) Act, 1986 with effect from June 2, 1987
validating certain appointments and determination of seniority. Sec-
tion 3 thereofreads as under: H
650 SUPREME COURT REPORTS [ 1990] Supp. 2 S.C.R. }..._ .....
"3. (1) Notwithstanding anything contained in the Orissa
A
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 any judgment,
decree or order of any Court but subject to the provisions
B of sub-section (2)-

(a) the appointment of the merger recruits to the Orissa
Administrative Service, Class II and the determination of
their seniority in the Orissa Administrative Service Class JI
vis-a-vis the officers appointed to the Orissa Administra-
tive Service Class JI by direct recruitment in respect of the
c recruitment year 1972 in accordance with Government Re-
solution in the Revenue Department No. 27662/R., dated
the 23rd April, 1984;

(b) the appointment of the officers to the Orissa Adminis-
D trative Service, Class II in respect of the recruitment years
1970 and 1971 by the methods of promotion and direct
recruitment, the determination of the seniority of the said
officers in the Orissa Administrative Service Class II in ,,
accordance with Government Resolution in the Revenue
Department No. 2208/R. (C.S.) dated the 11th November,
E 1973; and

(c) the appointment of the officers to the Orissa Ad minis-
trative Service, Class II in respect of the recruitment years
1972, 1973 and 1974 by the method of direct recruitment,

F shall for all intents and purposes, be deemed to have been
validly made and determined and sl)all not be liable to be
•
challenged in any Court of law or otherwise be opened to
challenge merely on the ground that they were made or
determined otherwise than in accordance with the provi-
sions contained in the said rules and regulations.
G
(2)(a) such number of "merged recruits" as would have
been entitled to promotion in the recruitment year 1972
computed on the basis of percentage envisaged under Rule
10 of the O.A.S. Class III (Recruitment) Rules, 1959, shall
be deemed to be the promotees of the year 1972 and shall >.,.
be placed above the direct recruits of the year 1972 in the
gradation list.
NITYANANDA v. STATE OF ORISSA [PUNCHH!, J.] 651

(b) The remaining "merged recruits" shall be deemed to
be the promotees of the year 1973 and shall be placed A
above the direct recruits of the year 1973 in the Gradation
List."

Since challenge to appointments and determination of seniority in the
terms of the Act stood apparently restricted. Bishnu Prasad Mishra B
and others approached this Court under Article 32 of the Constitution
by means of writ Petition No. 1044/87 challenging the vires of the said
Act.

A direct recruit of the year 1973, Pramod Chandra· Patnaik has
filed Writ Petition No. 929 of 1987 challenging the vires of the afore-
referred to Act requiring extension of the principle laid down by the C
Orissa High Court in Anania Kumar Bose's case (supra) to him as well,
letting not the provisions of the impugned Act stand in his way.

And lastly there is wirt petition No. 12770 of 1985 under Article
32 of the Constitution by a set of mergerists seeking quashing of Reso- D
lutions 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.

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 E
clear cut rules determining seniority, iength 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 dire-ct recruits. A number
of decisions of this Court were cited before us to harp on the principle F
but we think it unnecessary to detail them since all those decisions
have now been tied up in a five-judge bench decision of this Court in
Direct Recruit Class JI Engineering Officers' Association v. State of
Maharashtra and Others, [1990] 2 SCC 715 wherein the impact of each
and every case has been taken note of to cull out and sum up a set of
principles. Though this decision was rendered after the ct>nciusion of G
the arguments in the instant case yet we find. its ratio bipding .. Two of
such propositions in paragraph 47 occur at serial (j):

"The decision dealing with important questions concerning
a particular service given after careful consideration should
be respected rather than scrutinised for finding out any H
652 SUPREME COURT REPORTS [ 1990] Supp. 2 S.C.R.

possible error. It is not in the interest of Service to unsettle
A a settled position.", and Serial (k):

"That a dispute raised by an application under Article :02 of
the Constitution must be held to be barred by principles of
res judicata if the same has been earlier decided by a com-
B petent court by a judgment which became final."

The Full Bench decision of the Orissa High Court in Anania Kumar
Bose's case (supra), related, as is obvious, tci a state service and the
High Court was asked to pronounce upon the same so as to solve the
dispute between the mergerists and the direct recruits. The High Court
dealt with the history of the two services and the circumstances and
c conditions which led to their merger as well as the course of the legisla-
tive history. It took judicial notice of the long standing practice which
had been acted upon and acquiesced in for years resulting in rights
accrued and benefits conferred and derived on the basis of the 'year of
allotment' to hundreds of recruits to the said cadre. The High Court in
D order to find out which of the two just solutions was a juster solution
opted for the maintenances of the status quo inasmuch as it ordered
that the ·rights accrued and the benefits conferred or drived by assign-
ing the 'year of allotment' should remain sacrosant and be not dis-
turbed. That view, which arose on the understanding of the local con-
ditions and the history of the service was left intact by dismissal by this
E Court of Special Leave Petition No. 2565 of 1984. Though it is true
that the dismissal of a special leave petition against the High Court
order is not ordinarily a seal of total approval of the views expressed
by the High Court in arriving at its decision, yet in the instant case
having regard to the nature of the controversy and it having been
settled on the canvass of local conditions .. We take the view that this (
F 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
G (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 con-
tinuity 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
H come to stay in the services also on the terms of principle (k) of the
Direct Recruits case (supra).
NITYANANDA v. STATE OF ORISSA [PUNCHHI, J.l 653

It was urged on behalf of the appellants in Civil Appeal No. 750
A
of 1987 that respondents 4-13 had appeared in the competitive exami-
nation to Orissa· Finance Service and Orissa Police Service and not for
the Orissa Administrative Service II and yet were picked up by the
State and appointed to Orissa Administrative Service Class II against
the recruitment rules and appointed between 21-2-1975 and 26-6-1975
making them senior to the petitioners without any basis. The grouse B
that the respondents 4-13 were accommodated in the Orissa
Administrative Service, though taken herein does not seem to have
been pressed before the High Court. We find that in the special leave
petition no ground had been raised that this aspect of the case was
pressed before the High Court and the High Court had failed to deal
with it. Rather it is ex facie clear from the judgment under appeal,
which was decided on the case being taken up for hearing with the c
consent of the learned counsel for the parties, and concluded then and
there. The appellants cannot now be allowed to dispute the entry of
respondents 4-13 to the Orissa State Service Class IV as direct recruits
on the supposition that advertisement by the Public Service Commis-
sion was for two other services, namely, Orissa Finance Service and D
Orissa Police Service, though the examination was stated normally to
be common to the Orissa Administrative Service as well. Thus we
reject the contention.

Now what remains is the challenge to vires of the Orissa
Administrative Service Class II (Appointment of Officers Validation) E
Act, 1987. Therein section 2(a) and (c) respectively define 'direct re-
cruitment' and 'merger recruits' in the following terms:

"2. In this Act, unless the context otherwise requires,-

(a) 'Direct recruitment' means recruitment to the Orissa F
Administrative Service, Class II by competitive examina-
tion conducted by the Orissa Public Service Commission in
accordance with the provisions of the Orissa Administra-.
tive Service, Class II (Appointment by Competitive Exami-
nation) Regulations, 1959:
G
(b) xxxxxx

(c) 'Merger recruits' means the officers in the Orissa Ad-
ministrative Service, Class II who had initially been mem-
bers of the Orissa Subordinate-Administrative Service and
were inducted into the Orissa Administrative Service. H

\
654 SUPREME COURT REPORTS [ 1990] Supp. 2 S.C.R.

Class II by merger of the Orissa Subordinate Administrative
A Service with the Orissa Administrative Service, Class II
(Junior Branch) in accordance with the policy laid down by
Government Resolution in the erstwhile Political and
Service Department No. 363/Gen. dated the 7th January,
1972 and integration of the Orissa Administrative Service,
B 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."
c
For the view we have taken above on the governing principle of
Anania Kumar Bose's case (supra) and the employment of the tradi-
tional concept of the 'year of allotment', it. is plain that the Validation
Act above-extracted has i:iut an end to any controversy with regard to
D the direct recruits who were assigned the 'year of allotment' 1970 and
1971 in terms of Anania 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
pJlt at the pedestal of a case covered by principle (j) in Direct Recruits
case (supra). The application of the principle of the 'year of allotment'
E cannot be limited by any logic to the years 1970 and 197 I on the
fortuitous circumstance of the challenge to seniority of the direct
recruits who were assigned 1972 as the year of allotment was given up
by the writ petitioners before the Orissa High Court, one of whom,
namely, Bishnu Prasad Mishra is again the writ petitioner in Civil Writ
Petition No. 1044 of 1987 and second appellant in Civil Appeal No.
F 750 of 1987. When the challenge to the seniority of the direct recruits
who were assigned 1972 as the year of allotment is not tenable any
more, the Orissa legislature preserving that principle of the year of
allotment for the direct rec~uits of the years 1970 and 1971 and not
· extending the same to the direct recruits of the year 1972, to say the
least is arbitrary and liable to be struck down under Article 14 of the
G Constitution, for what is good and valid for 1970 and 1971 direct
recruits is equally good and valid for the direct recruits of the year
1972.

The accepted and continued position was strangely being upset
when direct recruits of 1972 had acquired a vested right to be ranked
H senior to the mergerists. Though it is true that vested rights can also be
NITYANANDA v. STATE OF ORISSA (PUNCHHI, J.l 655

taken away by an Act or legislature and it can be assumed that the A
legislature knew the subject it was dealing with, yet, in the instant case
we are of the view that when complete integration of the two services
of 0.A.S. III and O,A.S. II had been brought about on 21.12.1973,
without repeal of the recruitment rules of 1959, there was nothing to
classify or differentiate between direct recruits of the year 1970 and
1971 on the one hand and the direct recruits of the year 1972 on the B
other. Since the two groups of recruits were similarly placed and the
situation did not yield to any reasonable classification it was not open
to the State Legislature to maintain an artificial classification and pro-
vide by the impugned Act unequal treatment to the 1972.recruits. Thus
we declare Section 3(2)(a) of the Validation Act in so far as it permits
the deemed promotees of the year 1972 to be placed above the direct
recruits of the year 1972 in the Graduation List, as violative of Article
c
14.

The petitioner In W .P. No. 929 of 1987 was a direct recruit as
Deputy Collector in OAS Class II with the year of allotment of 1973.
There is no dispute that petitioner's recruitment was pursuant to deci- D
sion 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 rela- E
tion 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 def{nition the same concept would obvi- F
ously 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) Regula-
tions, 1959 provided:
G
"No person being a Member of Orissa Administrative
Service shall be considered for promotion to the Service
(OAS Class II) ............ "

It is, therefore, clear that OAS Class II cadre prior to merger was
providing promotional channel to officers of OAS Class III. Rules H
656 SUPREME COURT REPORTS [ 1990] Supp. 2 S.C.R.

prescribed the manner in which direct recruitment and promotional
A appointment were to be made to OAS Class II. The Full Bench of the
Orissa High Court which we have accepted as laying down the binding
and correct legal position clearly found that the mergerists from OAS
Class III were neither promotees nor direct recruits and formed a class
by themselves. The 1972 resolution of the State Government had
B decided a spread-over process for absorption but in December, 1973,
immediate and one-time merger was decided and acted upon. We have
already held that the recruits to OAS Class II with 1972 as the year of
allotment were senior to the mergerists. Once the concept and applica-
tion of "year of allotment" is upheld, necessarily the OAS Class II
direct recruits of 1973 would in the facts and circumstances be senior to
the mergerists. They are eleven in all as it appears from the Govern-
c ment notification of 16th of February, 1976. There would be no justifi-
cation to have the mergerists from Class III service brought into the
combined cadre in December, 1973, to be senior to. these 1973
recruits-their number being substantial-who are only eleven
people. On the other hand, there may be justification in the matter of
D fixing of seniority inter-se between the direct recruits of 1973 to OAS
Class II and the mergerists to follow the prevailing system of promot-
ing Class III officers to Class II by a particular number and fixing the
inter-se seniority in accordance with the then prevailing regulations. If
the seniormost persons among the mergerists are considered for such
purpose by fiction of being promotee, perhaps no injustice would be
E done.

We had been told at the hearing of these cases that the seniority
dispute of 1973 direct recruits was already the subject-matter of a
pending proceeding before the State AJministrative Tribunal.. It had
also been pointed out to us that in this writ petition the petitioner
F impleaded none excepting the State Government and its officers and
that the State Government filed a counter-affidavit merely relying
upon the validating provisions of the 1986 Act. We have already come
to the conclusion that the validating provisions qua the 1972 direct
recruits is arbitrary and liable to be set aside. Once the concept of year
of allotment is upheld and the facts indicated above are taken into
G account, the same conclusion would have to be reached even for the
1973 direct 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.

H No final orders, therefore, are made in this writ petition and the
NITYANANDA v. STATE OF OR!SSA [PUNCHH!, J.l 657

dispute is left out for determination before the Tribunal following the A
law as indicated above.

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 O.A.S. II and O.S.A.S. III as merged in 0.A.S. B
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 Anania c
Kumar Boses's case (supra) to the 1972 direct recruits as well. For the
reasons indicated we have not made any final order on merit in W.P.
929 of 1987. In the facts and circumstances of the case, however, we
leave the parties to bear their own costs.

Y. Lal Appeal dismissed & Petition D
allowed partly

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