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CASE NO.:

Appeal (civil) 349 of 1991

PETITIONER:

P.S.N.RAO

Vs.

RESPONDENT:

STATE OF ORISSA & ORS.

DATE OF JUDGMENT: 29/07/2002

BENCH:

S.RAJENDRA BABU & D.P.MOHAPATRA.

JUDGMENT:

D.P.MOHAPATRA, J.

The appellant, Shri P.S.N.Rao, who was a Joint

Director of Industries, then working as Principal, College of

Accountancy and Management Studies at Cuttack filed the

writ petition OJC No.1621 of 1980 in the High Court of

Orissa against the Government of Orissa represented by

Secretary to Govt., Industries Department, Shri

R.J.Jachuck, Joint Director of Industries, then working as

General Manager, IPICOL, Orissa and Shri Khageswar Das,

Director of Technical Education & Training, Orissa seeking

the reliefs inter alia :-

"(i) Quashing of the Government Orders appointing

the opposite parties 2 and 3 (described as such

in the writ petition) to Class I (Jr.) grade and to

Class-I (Sr) grade posts earlier than the

petitioner's appointment to these grades;

(ii) Quashing of the Industries Department

notification No.14016-I dated 17/20th August,

1960 in which the pay scale of the post of

lecturer (Mining) was upgraded from the scale

of pay of Rs.200-700/- to the scale of pay of

Rs.300-860/-;

(iii) Quashing of the appointment of opposite party

no.3 to the class-I pay scale of Rs.300-860/-

vide Industries Department notification

No.9659-I dated 20th June, 1961 without

consideration of the case of the others

including the petitioner;

(iv) The Public Service Commission advertisement

no.9 dated 29th June, 1962 in which only

bachelor's degree in Mining Engineering was

prescribed as the required qualification for the

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post of Principal, Orissa School of Mining

Engineering, Keonjhar;

(v) Quashing of the Industries Department

notification No.20290-I dated 21.12.1961 in

which the opposite party no.3 was appointed as

the Principal of the School of Mining

Engineering, Keonjhar on ad hoc basis and

Industries Department notification No.23352-I,

dated 10.12.1962 in which the said opposite

party no.3's appointment as Principal was

regularized;

(vi) Quashing of the Industries Department order

in which the post of Principal, Orissa School of

Mining Engineering, Keonjhar was upgraded to

the rank of Joint Director retrospectively and

Govt. order promoting opposite party no.3 to

that post with effect from 15.10.1968;

(vii) Quashing of the Industries Department

notification No.6400-I dated 12.3.1980 in

which the opposite party no.3 was appointed as

Director of Technical Education and Training

without consideration of the case of the

petitioner;

(viii) For issue of a writ of mandamus directing the

opposite party no.1 to restore petitioner's

seniority over opposite party no.2 and opposite

party no.3 and redetermine the petitioner's

seniority in each class and grade;

(ix) For issue of a writ of mandamus directing the

opposite party no.1 to consider the case of the

petitioner for promotion to the post of Joint

Director of Industries from 15.10.1968 and to

the post of Director of Technical Education and

Training from 12.3.1980 with all consequential

service benefits etc."

The gist of the case of the petitioner (in the writ

petition) set out in the writ petition was that on being

selected by the Orissa Public Service Commission, he was

appointed as an Assistant Engineer on 14.10.1955 in

Class-II of Orissa Engineering Service in the pay scale of

Rs.200-700 and he joined the post on 18.10.1955. The

opposite party no.2 (in the writ petition) was appointed as

a District Industries Officer in the Industries Department

in Class-II of the State service in the scale of Rs.200-700

and he joined the post on 8th March, 1957. The opposite

party no.3 was appointed as a lecturer in mining in the

Orissa School of Mining Engineering, Keonjhar on 6th

Fenbruary, 1960 also in the scale of Rs.200-700. The

petitioner and the opposite parties nos.2 and 3 who were

appointed in the same scale were placed under the

administrative control of three different departments; while

the petitioner was placed under the Works Department,

opposite party no.2 was placed under the Industries

Department and opposite party no.3 was placed under the

Mining & Geology Department. It was the case of the

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petitioner that reckoned from the date of appointment he

was senior to opposite party nos.2 and 3. It was the

further case of the petitioner that after his appointment in

the department he was transferred to the Berhampur

Engineering School with effect from 30th November, 1956.

Then the Berhampur Engineering School was a private

institution; its management was taken over by the State

Government on 12th November, 1958 and the institution

was placed under administrative control of the Industries

Department. Likewise the Orissa School of Mining

Engineering was transferred to the administrative control

of the Industries Department with effect from 1.4.1960.

According to the petitioner after this date all the three

appointees, himself and opposite party nos.2 and 3, were

placed under the administrative control of the Industries

Department and were entitled to be considered at par for

the purpose of promotion; on the other hand contended

the petitioner that the treatment meted out to him was

discriminatory and unfair. He was not considered as a

member of the General Industries cadre since he was

assigned a place in the teaching cadre of the Department;

consequently he was not considered for any higher post on

the general side till 4.9.1973 and was also not considered

for any post in the Orissa School of Mining Engineering,

Keonjhar. The petitioner made a grievance of the order of

appointment issued to him as lecturer in the Berhampur

Engineering School with effect from 1.3.1959 contending

that by the said order he lost the service for the period

from 18.10.1955 to 1.3.1959. The further grievance of the

petitioner was that he was not considered for promotion to

the post of Deputy Director (Small Scale) when the

opposite party no.2 was considered and promoted to that

post on 7th April, 1962 on the erroneous ground that the

petitioner was in the teaching cadre whereas the

promotional post was in the general cadre, subsequently

the said opposite party no.2 was promoted to the post of

Principal of Rourkela Polytechnic vide Industries

Department notification no.7448-I dated 13.4.1967

bypassing the case of the petitioner. At that time the

ground for non-consideration of the case of the petitioner

for promotion to the post which was in the teaching cadre

was that the opposite party no.2 had already got Class-I

(Jr) grade post of Deputy Director earlier. The process of

unfair treatment towards the petitioner continued and

opposite party no.2 was once again considered and

promoted as Joint Director of Industries with effect from

15.10.1968 to the exclusion of the petitioner. The

petitioner further contended that he was not considered to

higher posts in general cadre on the same plea that he

belonged to the teaching cadre of the department; he was

not considered for promotion to posts in Class-I (Jr) grade,

Class-I (Sr) special grade against posts of Principals and

Special Officers and finally for posts of Joint Director in

Class-I (Sr) grade when several officers junior to him like

Opposite Party No.2 Shri R.J.Jachuk, Shri R.N.Pujhari,

Shri B.B.Das, Shri D.C.Mahapatra, Shri N.C.Mishra and

Shri B.P.Pal were considered and promoted. All these

officers were considered and appointed in Class-I

(Jr.)grade, Special grade and Class-I (Sr) grade on

7.4.1962, 13.4.1967 and 15.10.1968 respectively but

always excluding the petitioner from consideration. In the

circumstances the petitioner claimed to be entitled to be

considered for promotion to the aforesaid ranks from the

respective dates when the officers junior to him were

considered.

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So far as Shri Khageswar Das, opposite party

no.3 was concerned the case of the appellant was that the

said opposite party was not considered for promotion to

the post of Joint Director along with opposite party no.2 on

the ground that he belonged to the Orissa School of Mining

Engineering which was an ex-cadre institution. Shri Das

did not make a grievance out of it so long he was getting

benefits of being alone considered for promotion to Class-I

in the Orissa School of Mining Engineering to the

exclusion of the every body else in the Department

including the petitioner. It was only when he found that

there was no post of an equivalent rank of Joint Director of

Industries in the Orissa School of Mining Engineering, he

filed a writ petition, OJC No.129 of 1970 in the High Court

challenging the appointment of Shri R.J.Jachuck to the

post. In that case the High Court held that with the

transfer of the Orissa School of Mining Engineering to the

administrative control of the Industries Department, Shri

Khageswar Das was brought to the common cadre of the

Industries Department with effect from 1.4.1960 when the

Orissa School of Mining Engineering had been taken over.

Accordingly, the High Court directed the Government to

consider him for promotion to the post of Joint Director

with effect from 15.10.1968 when Shri R.J.Jachuck had

been considered and promoted to that rank. The Supreme

Court upheld the decision of the High Court and dismissed

the appeal filed by the State Government. The State

Government carried out the order of the High Court by

upgrading the post of Principal of the Orissa School of

Mining Engineering to the rank of Joint Director of

Industries retrospectively with effect from 15.10.1968 and

placed Shri Khageswar Das against the upgraded post and

thus he became a Joint Director of Industries. Here again

the appellant made a grievance that the posts of Principals

of other Engineering Schools though in the cadre were not

upgraded nor the case of the petitioner was considered for

promotion to the upgraded post of Principal of that school

on the old plea that the Orissa School of Mining

Engineering was an ex-cadre institution and other officers

of the cadre had no right of being considered for the post

in the said institution. The petitioner claimed that he

should also have been considered for the post of Principal

of Orissa School of Mining Engineering along with Shri

Khageswar Das. As a consequence of the order of the High

Court that Shri Khageswar Das was taken to have been in

the common cadre of the Department right from 1.4.1960

on which date the Orissa School of Mining Engineering,

Keonjhar had been transferred from the Mining and

Geology Department to the administrative control of the

Industries Department the officers of the Department

including the petitioner who had not been considered for

promotion to the post of Principal of that School along with

Shri Khageswar Das on the footing that he was an ex-cadre

officer, should also have been considered for promotion

after the decision of the High Court. But that was not

done. It was the further case of the petitioner that Shri

Khageswar Das who was a lecturer in Class-II in the

School of Mining Engineering said to be holding an ex-

cadre post was given an advantage when the post held by

him was upgraded to Class-I whereas other posts of

lecturer in the other branches of Engineering such as Civil,

Electrical and Mechanical in other Engineering Schools

remained in Class-II. Thus, Shri Khageswar Das was given

advantage of holding higher post against which others

could not make any grievance since the stand of the State

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Government was that the Orissa School of Mining

Engineering was an ex-cadre institution and holders of the

posts therein were ex-cadre officers. Even for filling up the

post of principal of the Orissa School of Mining

Engineering by promotion the qualification of a bachelor's

degree in Mining Engineering was prescribed on account of

which the petitioner was not considered for promotion and

Shri Khageswar Das who was the sixth candidate and who

alone had that qualification was given the appointment. A

further promotion was given to Shri Khageswar Das by

appointing him as Director of Technical Education and

Training vide Industries Department notification No.6400-I

dated 12.3.1980. The grievance of the appellant was that

on such appointment the petitioner who was senior to Shri

Khageswar Das by about 5 years was made to work as

junior to him.

On the premises noted above the petitioner

raised the following contentions :

"(1) That petitioner's seniority in Class-II is to

count from the date of his appointment as

Asst.Engineer vide Works Department

notification dated 14.10.55 (Annexure-I);

(2) That there was no legal ground to

exclude his period of service in the

Berhampur Engineering School from

30.11.56 to 1.3.59.

(3) That the Berhampur Engineering School

being a full fledged Govt. owned, financed

and Govt. managed Engineering School it

was malafide to treat it as a private

institution and to make a faade of taking

it over to the administrative control of

Industries Department with effect from

12.11.58.

(4) That since the petitioner joined the

Berhampur Engineering School after

being relieved from his post of Assistant

Engineer on terms to work as a lecturer

(Civil) on deputation, subsequent refusal

to treat his service in the Engineering

School as on deputation by way of

accepting his earlier conditional

resignation vide works Department

Notification No.633-3E-IM-399/56-E

dated 8.1.57 was illegal, invalid and

inoperative in law, specially when many

other Engineers of the Works Department

had been given deputation facility

(Annexure 2 & 3).

(5) That petitioner's date of joining in the

Berhampur Engineering School being

30.11.56 petitioner is senior to O.P.No.2

Shri R.J.Jachuck and as such petitioner

was due to be considered for promotion to

the post of Joint Director with effect from

15.10.68 when Shri Jachuck was

considered and appointed as such.

(6) That even conceding for sake of

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argument that petitioner's seniority is to

count with effect from 12.11.58 when the

Berhampur Engineering School was

transferred to the administrative control

of the Industries Department, even then

petitioner is senior to opposite party no.3,

Shri Khageswar Das whose service has

counted with effect from 1.4.60, when the

Orissa School of Mining Engineering was

brought under administrative control of

the Industries Department.

(7) That the Govt. had upgraded the post of

lecturer (Mining Engineering) from the

pay scale of Rs.200-700/- to Rs.300-

800/- with effect from 20.8.60 on the

ground that "it had not been possible to

fill up the post", the Govt. were liable to

upgrade the posts of lecturer in the other

branches of engg. with effect from the

same date because there were also the

same difficulties to fill up those posts

Annexures 6 & 9.

(8) That since after decision of this Hon'ble

Court the Orissa School of Mining

Engineering was an Institution within the

cadre, Government was bound to treat the

post of Principal of that School as a

promotion post like the posts of Principals

in other Engineering Schools and to

consider the petitioner for promotion to it

with effect from 26.12.1961 when

O.P.No.3 Shri Khageswar Das appointed

to that post. Annexure 13.

(9) That since O.P.No.3, Shri Khageswar Das

has been appointed to the rank of Joint

Director by upgrading the post of

Principal of the Orissa School of Mining

Engineering with effect from 15.10.68

petitioner has a legal right to be

considered for promotion to the rank of

Joint Director with effect from 15.10.68.

(10) That since O.P.No.3 Shri Khageswar Das

has been promoted as Director of

Technical Education & Training with

effect from 12.3.80 petitioner, as of a legal

right, is to be considered for promotion to

that post with effect from the said date.

(11) That after consideration of petitioner's

case for promotion to the posts as

aforesaid if he is found suitable he is to

get all consequential benefits including

arrears of pay etc."

On the above averments the petitioner prayed for the

reliefs noted earlier.

The opposite party no.1-State Government in

its counter affidavit refuted the allegations of unfair, biased

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and discriminatory treatment against the appellant and in

favour of opposite party nos.2 and 3. It was the case of the

opposite party no.1 that the petitioner after his initial

appointment in the Public Health Department had

tendered his resignation which was accepted and he was

relieved on 26.11.1956. Thereafter the petitioner served in

the Berhampur Engineering School which was under the

private management till 12.11.1958 and the institution

was taken over by the State Government with effect from

12.11.1958. The contentions of the petitioner that during

the period he worked in the Berhampur School of

Engineering he was on deputation from government service

was denied. The specific case of the opposite party no.1 in

this regard was that according to the terms of the take over

of the Berhampur School of Engineering the petitioner was

appointed in Class-II with effect from 1.3.1959 and the

Public Service Commission recommended his case for

promotion for absorption in Class-II in its letter dated 20th

October, 1962. Therefore, the petitioner could not claim to

be senior to opposite party no.2 who was appointed to

Class-II on 8th March, 1957. As regards opposite party

no.3 the stand taken by the opposite party no.1 was that

he was appointed as lecturer in Orissa School of Mining

Engineering on 6.2.1960 and his appointment was

concurred by the Public Service Commission on 25th

March, 1960. Further, the post of lecturer in Class-II held

by opposite party no.3 was subsequently upgraded with

effect from 20th August, 1960 and as such the petitioner

could not claim to be senior to opposite party no.3 nor

could he claim to be considered for promotion to the

upgraded post of Lecturer in Mining held by opposite party

no.3. The further case of the opposite party no. 1 was that

the post of Principal, Orissa School of Mining Engineering

which fell vacant after opposite party no.3 had been given

the upgraded Class-I scale with effect from 20.8.1960 as

Lecturer, was filled up by open advertisement through the

Public Service Commission. The qualifications prescribed

for the post of Principal of Orissa School of Mining

Engineering were different from the qualifications for other

Engineering Schools in view of the specific requirement of

the post. The qualification prescribed for the said post in

the Orissa School of Mining Engineering was a bachelor's

degree of Mining Engineering. Therefore, the contention of

the petitioner that the post of Principals of other

Engineering Schools should also have been upgraded, has

no merit. He could not also make any claim to be

considered for the post of Principal, Orissa School of

Mining Engineering as he did not possess the prescribed

qualification. Similarly, as regards the appointment of

opposite party no.2 to the post of Principal, Rourkela

Polytechnic in 1967, the stand of the State Government

was that the post was filled up by open advertisement and

through the Public Service Commission and therefore, the

petitioner could not claim any right of consideration for the

post merely by holding the post of Principal in the

common cadre. Regarding the grievance relating to the

subsequent appointment of opposite party no.2 as Joint

Director it was contended on behalf of the State

Government that the petitioner's name was also sent to the

Public Service Commission along with other ten officers

but the Commission recommended opposite party no.2 and

as such the petitioner could not have any justifiable

grievance on that score.

Regarding the objection taken to the

upgradation of the post of Principal held by opposite party

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no.3 to the rank of Joint Director with retrospective effect

the case of the State Government was that the step for

upgradation was taken in pursuance of the decision of the

High Court; therefore, there was no justification for

upgrading the posts of Principals of other Engineering

Schools as claimed by the petitioner. Regarding the

objection of the petitioner to the appointment of opposite

party no.3 to the post of Director of Technical Education &

Training in 1980, it was contended on behalf of the State

Government that the said post fell vacant in 1980 which

was filled up by promotion from amongst the Joint

Directors. Accordingly, the proposal for selection of a

suitable officer for appointment to the said post was

referred to the Public Service Commission in letter dated

12.2.1980. The cases of all the nine Joint Directors in the

cadre including the petitioner along with their C.R.s were

referred to the Commission for consideration and

recommendation. The Public Service Commission in its

letter dated 26.2.1980 recommended only two officers viz.

Shri Khageswar Das (opposite party no.3) and Shri

R.J.Jachuck (opposite party no.2) in the order of merit.

The recommendation of the Commission was accepted and

Shri Khageswar Das,(opposite party no.3) who was given

the first position by the Commission, was appointed as

Director of Technical Education and Training in the

notification dated 12.3.1980. The opposite party no.1

contended that there was nothing irregular and illegal in

the said appointment.

When the writ petition was pending in the High

Court, the case came to be transferred to the Orissa

Administrative Tribunal (for short 'the SAT') under Section

29 of the Administrative Tribunals Act, 1985. The SAT by

a detailed judgment considered the contentions raised on

behalf of the parties and dismissed the writ petition vide its

judgment dated 9th August, 1988. The said judgment is

under challenge in the present appeal.

From the case pleaded and the reliefs sought in

the writ petition, it is clear that the grievances made by the

appellant relate to the period from his very entry into

service and at different stages during the period of his

service. He has made a grievance that by treating 1959 to

be the year of his entry into service he lost a period of four

years of service as a consequence of which he lost his

seniority over respondents 2 and 3. Thereafter he has

made the grievance about upgrading the scale of pay of

Lecturer-Mining in 1960, giving respondent no.3 Class-I

scale of pay in 1961, his appointment to the post of

Principal, Orissa School of Mining Engineering, Keonjhar

done by the Public Service Commission in 1962, his

appointment as Joint Director with effect from 1968 and

finally his appointment as Director of Technical Education

and Training in 1980. As noted earlier, the writ petition

was filed in the High Court in 1980 which subsequently

stood transferred to the SAT. By then more than two

decades had elapsed since the appellant's entry to the

service. Appointment to higher posts of Principal of the

School of Mining Engineering, Joint Director of Industries

and Director of Industries were made in consultation with

the Public Service Commission and appellant's name was

sent to the Commission when the appointment to the posts

of Joint Director and Director were considered. The

Commission did not consider him suitable for appointment

to the said posts. For the post of Principal, the appellant

was not possessed of the prescribed qualification of a

Degree in Mining Engineering and therefore, the question

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of considering him for appointment did not arise. It cannot

be disputed that the State Government had the power to

prescribe proper qualification for the post keeping in view

the job requirement, nature of work to be handled by the

holder of the post and other relevant factors. Therefore, no

exception could be taken to the order of the State

Government prescribing a Degree in Mining Engineering as

eligibility qualification for the post of Principal, Orissa

School of Mining Engineering. It may be noted here that

the entire case of the appellant is based on his assumed

seniority over respondents 2 and 3. But it was not his

case that appointment/promotion to the higher posts

noted earlier was to be made solely on the basis of

seniority. It is trite law that in making appointment to

higher posts merit assumes importance. Therefore, even

assuming that the appellant was senior to respondents 2

and 3 thereby he could not have claimed as matter of right

to be appointed to the higher posts.

In the context of the facts and circumstances of

the case, the Tribunal cannot be faulted for having come to

the conclusion that the writ petition filed by the appellant

was devoid of merit. Further, any interference in the

matter at such a belated stage would have resulted in

disturbing chain of settled positions and would have

created confusion and complications in the cadre.

Therefore, the Tribunal rightly dismissed the writ petition

filed by the appellant. Accordingly, the appeal is

dismissed, but in the circumstances of the case without

any order for costs.