2025 INSC 87
SUPREME COURT OF INDIA
(HON’BLE J.K.
MAHESHWARI, J. AND HON’BLE RAJESH BINDAL, JJ.)
JYOSTNAMAYEE MISHRA
Petitioner
VERSUS
STATE OF ODISHA
Respondent
Special
Leave Petition (Civil) No.13984 OF 2023-Decided on 20-01-2025
Service Law
(A)
Orissa Service of Architect Rules, 1979, Rule 5(1) (e), 7 – Service Law - Recruitment
–
Post of Tracer – Claim for promotion
by petitioner who was working as peon – As 1979 Rules Tracer in all three
categories is to be filled up by direct recruitment only, after following the
procedure as prescribed - Not in dispute that the procedure as prescribed in
Rule 7 of the 1979 Rules has not been followed by issuing advertisement and
inviting application for the post of Trace - All what is said is that a
Circular was issued in the department inviting applications from the Peons for
appointment or promotion for the post of Tracer - Though, the claim of the
petitioner has been rejected on the ground that she is not eligible for the
post of Tracer, however, need not enter into that arena for the reason
that as per 1979 Rules, the post of Tracer is to be filled up to 100% by way of
direct recruitment in terms of Rule 5(1)(e) of the 1979 Rules and the method of
direct recruitment has been provided in Rule 7 thereof - Undisputedly, the
process as provided in the Rules was not followed - The post of Tracer, not
being promotional post from the post of Peon, there is no merit in the claim of
the petitioner.
(Para 20, 22 and 30)
(B) Constitution
of India, Article 14 - Orissa Service of Architect Rules, 1979, Rule 5(1) (e),
7 – Service Law - Recruitment – Post of Tracer
– Claim for promotion by petitioner who was working as peon –Discrimination
- Argument that two persons were appointed as Tracer on promotion, claiming to
be from the post of Peon, on the basis of which the petitioner is claiming
violation of Article 14, namely the discrimination – Held that this Court
cannot put a stamp on the illegalities committed by the department while
perpetuating the same - A litigant coming to the Court cannot claim negative
discrimination seeking direction from the Court to the department to act in
violation of the law or statutory Rules - It is a settled proposition of law
that Article 14 does not envisage negative equality.
(Para
31)
JUDGMENT
Rajesh Bindal, J.:- This Court had been
called upon to examine the validity of an order passed by the Court below where
the parties failed to produce proper documents or annexed incorrectly typed
documents. This does not happen in isolation, rather is a routine, which
sometimes results in miscarriage of justice in case the issues are not examined
in detail with proper assistance of the parties, especially the State
where it is party to the lis. It may also put the Court to ridicule.
2.
The challenge in the present petition is to the order of the High Court[High Court of Orissa at Cuttack]
dated 12.10.2022 passed in Writ Petition[Writ
Petition Civil (OAC) No.18463 of 2017] filed by the State where the
order passed by the Tribunal[Orissa
Administrative Tribunal, Bhubaneshwar] dated 08.01.2016 in an application [O.A. No.1696 of 2010] filed by the
petitioner was set aside.
3.
An interesting issue which arises is as to whether an employee in an
establishment is entitled to claim promotion on a post for which he does not
fall in the feeder cadre and the post is required to be filled up 100% by way
of direct recruitment? Another important issue is whether a vacancy meant for
direct recruitment can be filled up merely by issuing a circular in the
establishment and not by issuing an advertisement calling application from the
eligible candidates from public at large?
4.
The petitioner herein was working as a peon with respondent-State. She was
appointed as such in the year 1978. The petitioner filed a representation dated
07.01.1999 to be appointed to the post of Tracer.
5.
While the said representation was pending, the petitioner filed O.A. No.628(C)
of 1999 before the Tribunal at Cuttack. The same was disposed of at admission
stage vide order dated 26.03.1999, directing the respondent therein to
dispose of her representation within these months from date of receipt of
order. Pursuant to this, vide letter dated 05.07.1999 respondent communicated
to the petitioner that the post of Tracer will not be filed up on promotion
from the lower category of post since it is not a promotional post and vacancy
of Tracer will be filed up in due course by conducting the interview.
6.
The petitioner filed another application bearing O.A. No.l126(C) of 2002 before
the Tribunal inter alia seeking for the intervention of the Tribunal against
the discriminatory action of the respondent authorities with regard to her
promotion to the post of Tracer. The said O.A. was later transferred to the
Principal Bench of the Tribunal at Bhubaneshwar and was registered as O.A.
No.742 of 2009.
7.
Learned Tribunal vide order dated 27.09.2010 disposed of the said O.A.
directing the respondent to consider the case of the petitioner along with
similarly placed Class-IV Employees for their promotion to the post of Tracer
against available future vacancy within a period of three months from the date
of communication of the order.
8.
Vide order dated 23.11.2010, passed in compliance to the order of the Tribunal
dated 27.09.2010 passed in the Application[O.A.
No.742 of 2009] filed by the petitioner, her representation for appointment
on the post of basic level Tracer was rejected due to ban on recruitments
imposed by the Finance Department[Office
Memorandum No.10954 dated 14.03.2001.].
9.
In the third round of litigation, in the Application [O.A. No.1696 of 2010] filed by the petitioner before the Tribunal
impugning the order dated 23.11.2010, vide order dated 08.01.2016, the
respondent was directed to promote/appoint the petitioner on the post of Tracer
against any vacant post. In case no post is available, then the last person so
promoted, after the direction was issued in the earlier O.A. filed by the
petitioner, be reverted. Strangely enough to note here that no person was
impleaded as party, who may be affected by the order passed by the Tribunal in
case benefit is given to the petitioner. A Review Petition bearing R.P. No.28
of 2016 preferred by Respondent therein, was rejected vide order dated
28.02.2017.
10.
Aggrieved against these orders passed by the Tribunal, the State preferred Writ
Petition No.18463 of 2017 before the High Court. The argument raised was that
the petitioner was not eligible for the post of Tracer in terms of paragraph
3(d) of the Letter No.4775 dated 26.02.1980 issued by the Works Department.
Hence, she was not found to be eligible. The orders dated 08.01.2016 and
28.02.2017 passed by the Tribunal were set aside. As the retiral benefits had
been extended to petitioner for the post of Peon, the High Court disposed of
the Writ Petition accordingly.
10.1
We are constrained to note at this stage that the Rules namely Sub-ordinate
Architectural Service Rules, 1979, (hereinafter “1979 rules”) as framed in
exercise of powers conferred under the proviso to Article 309 of the
Constitution of India and notified in the official Gazette on 25.07.1980 vide
notification No.4773- E-IXR-1/80-E were sought to be referred by the learned
counsel appearing before the High Court as Letter No.4775 dated 26.02.1980
issued by the Works Department, and without perusing the proper document, even
the High Court has referred those in the judgment in the same manner.
11.
Learned counsel for the petitioner argued that the High Court, while accepting
the Writ Petition of the State, had wrongly quoted paragraph 3(d) of Letter
No.4775 dated 26.02.1980 in which the qualifications for the post of Tracer
have been mentioned. The qualification as per paragraph 3(d) required is the
experience of 02 years in tracing from blue printing or a certificate of
draftsmanship from the Industrial Training Institution. Learned counsel argued
that the petitioner possesses the qualification as she had undergone the course
of Tracer Training of 03 months with Institute of Survey and Mining Technology,
Bhubaneshwar for which a certificate was granted on 22.09.1997. The petitioner
is fully qualified for the post, but she was not called for the interview, and
the findings are erroneous. It is the case of the petitioner that there being
an error apparent on record regarding qualification, as such the impugned order
passed by the High Court deserves to be set aside and that of the Tribunal be
restored.
12.
It was further argued, earlier the petitioner was called for interview for the
post of Tracer in the year 1991 but was not successful. Thereafter, she was
again called for interview on 16.03.1999 which was postponed. Other similarly
placed employees, namely, Mr. Lalatendu Rath and Ms. Jhinarani Mansingh were
promoted as Tracer from the post of Peon, vide order dated 28.06.1999. Hence,
looking at the discrimination also the petitioner’s case deserves to be
considered.
13.
On the other hand, the stand taken by the learned counsel for the respondent
was that the petitioner is not eligible for promotion from the post of
Peon to the post of Tracer as per the letter dated 26.02.1980. It is argued
that the case has rightly been considered and finding no merit therein, the High
Court had set aside the order passed by the Tribunal.
14.
A perusal of the document annexed as Annexure P-2 along with the petition gives
it a color of statutory rules but not typed in a proper manner. During the
course of arguments, learned counsel for the parties were asked to apprise the
Court about the relevant statutory rules applicable for recruitment/promotion
for the post of Tracer.
15.
Learned counsel for the State had produced a copy of the Gazette Notification
and the typed copy of 1979 Rules. While referring to the aforesaid Rules, the
submission was that the petitioner does not have a case made out for promotion
because the Rules do not permit promotion to the post of Tracer as the
petitioner is not qualified for the post of Tracer. She neither has experience
nor a certificate of drafts man ship from an Industrial Training Institute. The
certificate sought to be produced by her pertains to “‘Tracer’ Training Course”
which is not the qualification prescribed in 1979 Rules. On query by the Court
as to whether the post is to be filled by way of promotion, learned counsel for
the State was not able to refer to any Rule even though Rule 5(1)(e) of
1979 Rules clearly provides that all posts of Tracers in Categories I, II and
III shall be filled in by direct recruitment. He submitted that for filling up
the post on direct recruitment, a notice was published in the department and
applications were invited and in pursuance of that, the application of the
petitioner and earlier by way of similar process, other candidates were
considered. The prayer is for dismissal of the petition.
16.
Heard learned counsel for the parties and perused the paper book.
17.
The case in hand is a glaring example of casualness on the part of the parties
to produce proper documents before the Court. The statutory rules dealing with
the post in question, are being termed as letter of department. Even the High
Court in the impugned judgment has referred to the same as a letter of the
Works Department, failing to appreciate the contents thereof which are in the
form of statutory rules.
18.
To put the record straight, we reproduce in the table below, the relevant Rules
as published in Official Gazette and the one placed in the paper book before
the High Court and this Court.
|
Counsel’s
True Typed Copy |
Orissa
Government Gazette |
|
The
26th February, 1980 No.4775
E-IRA-1/80-E- In exercise of the power
conferred
by the provision to Article 309 of the
Constitution of India. The governor of
Orissa in pleased
to make the following rules for the
regulation or recruitment. Promotion
and other condition of service or this or this is a subordinate architectural service namely: |
The
26th February, 1980 No.
4773-E-IXR-1/80-E. – In exercise of
the powers conferred by the proviso to
Article 309 of the Constitution of India, the Governor of Orissa is pleased to make the following rules for the regulation of recruitment, promotion and other condition of service of the Orissa Subordinate Architectural Service, namely:- |
|
Method
of Recruitment and Condition of Service Rules, 1979. 1.
Short title and commencement (1)
these rules may be called or a
Subordinate Architectural Service Rules, 1979. 2)
They shall come into force at once. Provided
that nothing in these rules shall be constructed as affecting or invalidating appointments
already made or orders already issued
by the competent authority & all such appointments
and orders shall be deemed or have been made or issued under these appropriate provisions
of these rules |
Method
of recruitment and condition of
service Rules, 1979. 1.
Short title and commencement-(1) These
rules may be called the Orissa
Subordinate Architectural Service
Rules, 1979. 2)
They shall come into force at once: Provided
that nothing in these rules, shall be construed as affecting or invalidating appointments already made or orders already
issued by the competent authority and all such appointments and orders shall be deemed to have been made or issued under the appropriate
provisions of these rules. |
|
2.
Definition: a)
Department means Govt. in Works Department. b)
Government means Govt. of Orissa c)
Service means Orissa Architectural service (Non-Gazetted) consisting of Architectural
Draftsmen, Head Draftsmen, Asst. Architectural Draftsman and Tracers under the Roads and Buildings Wing d)
State means State of Orissa |
2.
Definition- (a)
'Department' means Government in Works Department. (b)
'Government' means Government of Orissa. (c)
'Service' means the Orissa Architectural Service (Non_gazetted), consisting
of Architectural Draftsman, Head Draftsman, Assistant Architectural Draftsman
and Tracers under the Roads & Buildings
Wing. (d)
'State' means State of Orissa. |
|
2.
Position of the service- The service
shall consist of following categories
of officials, namely. Category-I:
Architectural Draftsmen, Asst. Architectural
Draftsmen, Tracers in the Architect Branch
in the office of the Chief Engineer Roads and Buildings. Category-II: Head Draftsmen, Asst. Draftsmen
& Tracers in the Drawing Branches in the office of the Chief Engineer,
Roads and Buildings. Category-III: Draftsmen and Tracers in the office of the
Superintending Engineers
and Executive Engineers under Roads and Buildings Wing. |
3.
Composition of the service_The service shall consist of the following categories of officials, namely:-
Category
I – Architectural Draftsman, Assistant Architectural Draftsman, Tracers in
the Architect Branch in the office of the Chief Engineer, Roads &
Buildings. Category II – Head Draftsman, Assistant
Draftsman and Tracers in the Drawing Branches in the office of the Chief
Engineer, Roads
& Buildings. Category III – Draftsman and Tracers
in the office of the Superintending Engineers and Executive Engineers under
Roads & Buildings Wing. 4.
Recruitment The recruitment to the service shall be made- (a)
by direct recruitment in accordance with the Rules 5 and 7. (b)
by promotion of officials already in service in accordance with the Rule 6. |
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Direct
Recruitment And Percentage Of Recruitments. 1. a)
50 percent of the vacancies , shall be
filled in direct recruitment to the
post of the Architectural Draftsman under
Category I on a result of competitive
test to be conducted by the appointing
authority. b)
50 percent of the vacancies shall be
filled in by direct recruitment in the
post of Assistant Architectural
Draftsmen under Category I on a result of a competitive test to be conducted
by the appointing authority c)
50 percent of the vacancies shall be
filled in by direct recruitment in the post of Assistant Draftsmen under
Category II. d)
50 percent of the vacancies shall be filled in by direct recruitment in the
post of Draftsmen under category III. e)
All posts of Treasures under categories I, II, and III shall be filled in by
direct recruitment. f)
The competitive test for all these three categories of post shall be
separated from each other and shall be conducted by the appointing
authorities |
5.
Direct recruitment and percentage of recruitment (1)(a) 50 per cent of the
vacancies, shall be filled in by direct recruitment to the posts of
Architectural Draftsman under category I on a result of competitive test to
be conducted by the appointing authority. (b)
50 per cent of the vacancies shall be filled in by direct recruitment to the
posts of Assistant Architectural Draftsman under category I on a result of
competitive test to be conducted by the appointing
authority. (c)
50 per cent of the vacancies shall be filled in by direct recruitment to the
post of Assistant Draftsman under category II. (d)
50 per cent of the vacancies shall be filled in by direct recruitment to the
post of Draftsman under category III. (e) All posts of
Tracers under categories I, II and III shall be filled in by direct
recruitment. (f)
The competitive test for all these three categories of posts, shall be
separated from each other and shall be conducted by the appointing
authorities. (2)
A candidate for direct recruitment to the service shall not ordinarily be
under twenty-one years of age and over twenty-five years of age on the 1st
August of the recruitment year of recruitment. Provided that the maximum age-limit
in case of a candidate belonging to Scheduled Castes and Scheduled Tribes
shall be 28 years and in case of candidate already in Government service,
shall be 35 years. Preference may be given to the ex_Military personnel. 3)
(a) A candidate for the post of Architectural Draftsman under category I
shall be a pass in Intermediate in Architecture (recognised course) or two
years study in any recognised School or College of Architecture with 3 years'
experience in an Architect's Office or passed in Draftsman course in any
technical institution with five years' experience in Architect’s Office. (b)
A candidate for the post of Assistant Architectural Draftsman under category I,
shall have two years study in any recognised School or College of
Architecture with one year office experience in an Architect's Office or
passed the Draftsman course in any technical institution with two years'
experience in any Architect's Office. (c)
A candidate for the post of Assistant Draftsman under category II and
Drafts_man, category III, shall be matriculate with a certificate of passed Drafts
man ship from Industrial Training Institution. d)
Candidates for the posts of Tracer under categories I, II and III shall be
matriculates with experience
of two years in tracing from blue printing or a certificate of Drafts man ship
from Industrial
Training Institution. 4)
A candidate must not have more than one spouse living and further in case of lady
candidate, she must not have married a person who
has a wife living: Provided
that the State Government may if satisfied that there are special reasons for
doing so exempt from the operation of this clause. |
|
2.
A candidate for direct recruitment to the service shall not ordinarily be
under twenty one years of age and over twenty five years of age on the 1st
August of the recruitment year of recruitment. Provided that the maximum age
limit in case of Candidate belonging to scheduled castes and Scheduled Tribes
shall be 28 years in case of candidate already in government service shall be
35 years. Preference may be given to the EX- Military personnel. |
6.
(1) Promotion and percentage of promotion-(a) 50
per cent of the posts of Architectural Draftsman, shall be filled in by
promotion from among the suitable Assistant Architectural Draftsman
working in Architect Branch. (b)
All posts of Head Draftsman, shall be filled in by promotion from among the
suitable Assistant Draftsman working in the Drawing Branch. (c)
50 per cent of the posts of Assistant Architectural Draftsman shall be filled
in by promotion from the Tracers working in the Architect Branch. d)
50 per cent of the posts of Assistant Draftsman shall be filled in by
promotion from the Tracers working in the Drawing Branches. (2)
No official shall ordinarily be eligible for promotion to the service-(i)
Unless he passes the departmental test to be prescribed for the post held by
him at the time of promotion, (ii) Unless he maintains a good record of
service which will be judged on the basis of C. C. Rolls. (3)
The period of probation shall be one year in case of officials appointed by
promotion which shall count from the date on which they join their new posts.
(4)
The appointing authority may extend the period of probation for such further period
as he may deem fit and if after the extended period of probation, the
promotee is found unsuitable he may be reverted. |
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3. a)
A candidate for the post of architectural draftsman under Category I shall be
a pass in Intermediate in Architecture ( recognized or college of
Architecture with 3years experience in an Architect's officer or passed in
Draftsman course in a Technical Institution with five years experience in an
Architect's office. b)
A candidate for the post of Assistant Architectural Draftsman under Category
I shall have two years of studyin any recognized school or college of
Architecture with 1year office experience in an Architect's office or passed the
Draftsman course in any Technical Institution with two years of experience in
any architect's office. c)
A candidate for the post of Assistant Draughtsman under Category II and
Draftsman Category III shall be matriculated with a certification of passed Drafts
man ship from an Industrial Training Institution. d)
Candidates for the posts of Tracer under categories I , II and III shall be
matriculates with experience of 2 years in tracing blueprinting or a certificate
of drops Drafts man ship from the Industrial Training Institution. |
7.
Method of recruitment for direct candidate- (1) Direct recruitment to the
service shall be made by a competitive test to be prescribed and conducted by
the Chief Engineer, Roads & Buildings in consultation with Government
Architect. (2)
The authority shall issue advertisement in the local newspapers and Orissa -
Gazette inviting application in a prescribed form along with other
certificates including -certificates that they have passed
Oriya up to middle class standard and testimonials as may be considered
necessary by the authority. (3)
On examination of the applications, the authority shall call for the written
test as well as for a viva voce on the basis of which a list of successful
candidates, arranged in order of merit, shall be prepared. The list so
prepared, shall be followed till completion of one year. (4)
The authority thereafter shall issue appointments to the successful
candidates against the vacant posts to be filled in by direct recruitment. (5)
At the time of joining, the candidates shall produce the necessary
certificates of physical fitness from the medical practitioner. 6)
The name of the candidate, who does not accept the post offered within the
time-limit specified in the order of appointment, shall be struck off from
the list. 7)
All appointments under direct recruitment shall be made on probation for a
period of two years from the date a candidate joins his appointment and if
during the period of probation, candidate's work and conduct is found
unsatisfactory, the authority may either discharge him from service or may
extend the period of probation as they may think fit. |
|
4.
A candidate must not have more than one spouse living and further in case of
lady candidate she must not have married a person who has a wife living. Provided
that the state government may if satisfied that there are special reasons for
doing so exempt from the operation of this clause. |
8.
Seniority and confirmation- (a) The seniority of the candidates directly
recruited shall be determined with reference to their position in the list
of successful candidates and seniority of the promotee officials shall also
be determined with reference to their position in the list of final selection
to be prepared by the Departmental authorities but the promotee officials
shall be considered senior to the candidates directly recruited when direct
recruitment and promotion are made during the same year. (b)
A probationer shall be confirmed at the end of the period of probation if he
is considered fit for confirmation by the appointing authority subject to
availability of confirmed posts. |
|
6.
i) Promotion and percentage of promotion a)
50 percent of the post of Architectural Draftsman shall be filled in by
promotion from among the suitable Assistant Architectural Draftsman working
in architect branch. b)
All posts of head draftsman shall be filled promotion from among the suitable
Assistant Draftsman working in the Drawing Branch. c)
50 percent of the posts of Assistant Architectural Draftsman shall be filled
in by promotion from the Tracer in the Architect Branch d)
50percent of the posts of Assistant Draughtsman shall be filled in by
promotion from
the Traces working in the Drawing Branches. 2. No official shall ordinarily
be eligible for promotion to the service. I)
Unless he passes the department test to be prescribed for the post held by
him at the time of promotion. II)
Unless he maintains a good record of service which will be judged on the
basis of C. C. Rolls. 3.
The period of promotion shall be one year in case of office appointed by
promotion which shall count from the date on which they join their new posts.
4.
The appointing authority main extend the period of probation for such further
period as it may does fit after the extended period of promotion the
promotion is found unsuitable he may |
9.
Other conditions of service_Other conditions of service such as leave, pension, pay, allowance, provident fund, etc., shall be regulated by rules applicable to the members of other
subordinate non-Gazetted services
under State Government from time to
time. |
|
7.
Method Of Recruitment For Direct Candidate. 10.
Direct recruitment to the service shell be made by a competitive test to be
prescribed and conducted by the Chief Engineer, Roads & Buildings in
consultation with Government Architect. 11.
The authority shall issue advertisement in The local newspaper "The Orissa
Gazette" inviting application
in a prescribed form a long with other certificates
including certificate that they have passed
Oriya up to middle class standard and testimonials as may he consider
necessary by the authority. 12…In
execution of the application the authorities shall call for the written test
as well as for a Viva voice on the basis of which in list of successful
candidates arranged in order of merit shall be announced. The list so
prepared shall be followed
till completion of one year 13.
The authority there after shall issue appointment to the successful
candidates against the vacant post to be filled in by direct recruitment. 14.
At the time of joining the candidates shall produce the necessary certificate
of physical fitness from medical practitioners. 15.
The name of the candidate who does not accept the post offered within the
time limit specified in the order of appointment shall be struck
of from the list. 16.
All appointments under direct recruitment shall be made on probation for a
period of 2 years from the date of candidate joints his appointment and if
during the period of probation candidates work and conduct is found
unsatisfactory the authority may either discharge him from service or may
extend the period of probation as they may think fit |
|
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17.Seniority
and confirmation: c)
The seniority of the candidate directly recruited shall be determined with
reference to their position in the list of successful candidates and seniority
of the promoting officials shall also be determined with references to their
position in
the list of final selection to be prepared by the departmental
authorities but the promoter official shall be considered senior to the candidates
directly recruited when direct recruitment and promotion are used during the
same year. d)
A probation shall be confirmed at the end of the period of probation if he is
considered fit for consideration
by the appointing authority subject to available of confirmed posts. |
|
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18.Other
conditions of service: Other conditions is service such as leave pension, pay
allowance, provident fund etc., shall be regulated by rules applicable to the
members of other subordinate gazetted service under State Government from
time to Time |
|
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BUY
ORDER OF THE GOVERNOR A.C.
PADHI ENGINEER-
IN -CHIEF -CUM_SECT. TO GOVT. OF ORISSA. ///TRUE
TYPED COPY/// [sic] |
|
19.
The so-called letter dated 26.02.1980 produced as Annexure P-2 contains 18
paragraphs while the statutory rules contain 9 rules in total. Paragraph No.2
has been typed twice. After paragraph No.4, paragraph No.5 is missing.
Paragraph nos.8 and 9 are also missing. Paragraph No.2 (repeat) in the alleged
letter is sought to be shown as ‘position of the service’ which is not
mentioned in the 1979 Rules as such. Rule 4, which deals with the recruitment,
has been skipped. Rule 5 has been typed without giving the same paragraph
numbers. Besides this, there are other major discrepancies in the document
produced by the petitioner along with the petition. If we had relied upon the
same, it would certainly mislead the Court in reaching to a right conclusion.
20.
The argument raised by the learned counsel for the petitioner was that in terms
of paragraph 3(d) of the letter dated 26.02.1980, she was eligible for
promotion as she possesses the requisite qualification. However, if the scheme
of 1979 Rules is considered, Rule 3 thereof provides for composition of
service. The post of Tracer finds mention in three categories namely category
I, II and III. The bifurcation is with reference to the office/department in
which they have to work.
20.1
Rule 5 provides for direct recruitment and the percentage of sources. Rule
5(1)(e) provides that all posts of Tracers under categories I, II and III shall
be filled in by direct recruitment. Rule 5(3) provides for qualifications
required for different posts. Rule 5(3)(d) provides for the qualification for
the post of Tracer under all three categories.
20.2
Rule 6 provides for promotion and percentage of promotion. As the post of
Tracer in all the three categories is to be filled up only by way of direct
recruitment, the post in question does not find mention in Rule 6.
21.
The method of recruitment for the direct recruited candidates is provided in
Rule 7. Sub-rule 1 thereof provides that direct recruitment to the service
shall be made by a competitive test to be prescribed and conducted by the Chief
Engineer, Road and Building in consultation with the Government Architect.
Sub-rule 2 provides that the authority shall issue an advertisement inviting
applications in the local newspapers and the Orissa Gazette. The eligible
candidates are then required to be called for a written test and viva voce on
the basis of which the merit list is required to be prepared. Thereafter, the
offer for appointment is to be made to the selected candidates.
22.
From a perusal of the aforesaid Rules, it is evident that the post of Tracer in
all three categories is to be filled up by direct recruitment only, after
following the procedure as prescribed. It is not in dispute that the procedure
as prescribed in Rule 7 of the 1979 Rules has not been followed by issuing
advertisement and inviting application for the post of Tracer. All what is said
is that a Circular was issued in the department inviting applications from the
Peons for appointment or promotion for the post of Tracer. This Court
in Union Public Service Commission v. Girish Jayanti Lal Vaghela and
others[2006 INSC 58 : 2006 (2) SCC 482],
has emphasised the importance of a public advertisement for inviting
applications to a post under the State:
“12. … The appointment
to any post under the State can only be made after a proper advertisement has
been made inviting applications from eligible candidates and holding of
selection by a body of experts or a specially constituted committee whose
members are fair and impartial through a written examination or interview or
some other rational criteria for judging the inter se merit of candidates who
have applied in response to the advertisement made. A regular appointment to a
post under the State or Union cannot be made without issuing advertisement in
the prescribed manner which may in some cases include inviting applications
from the employment exchange where eligible candidates get their names
registered. Any regular appointment made on a post under the State or Union without
issuing advertisement inviting applications from eligible candidates and
without holding a proper selection where all eligible candidates get a fair
chance to compete would violate the guarantee enshrined under Article
16 of the Constitution. (See B.S. Minhas v. Indian Statistical
Institute [(1983) 4 SCC 582 : 1984 SCC (L&S) 26 : AIR 1984 SC 363] .)”
23.
Now coming to various documents placed on record by the petitioner, at Annexure
P-3 is a letter addressed to the Chief Engineer, Public Health seeking appointment
to the post of Tracer. It was mentioned therein that she is already working as
a Peon for about 09 years and has come to know that some post of Tracer is
lying vacant for which she is eligible. No date as such is mentioned. The same
request was repeated in a letter, at Annexure P-4, to the Superintendent
Engineer, Public Health Circle, Bhubaneshwar. It is worth noting that a Letter
No.189 dated 03.08.1981 of the Deputy Minister of H & T. W Department was
enclosed therewith. Copy of the letter dated 24.01.1990 (Annexure P-5) from
Executive Engineer, Puri Public Health Division addressed to Superintending
Engineer, P.H. Circle has been annexed by which the application of the
petitioner was forwarded for consideration. At Annexure P-6 is a letter dated 02.05.1990
from the Petitioner to the Minister of Public Health Department, Bhubaneshwar
requesting appointment against the post of Tracer as some posts are lying
vacant. A letter dated 05.11.1990 from Executive Engineer, Puri Public Health
Division to Superintending Engineer, P.H. Circle forwarding the application of
the petitioner is annexed as Annexure P-7. It is followed by a letter written
by petitioner dated 07.11.1990 to the Chief Minister, Orissa (Annexure P-8).
Immediately thereafter, a letter for the same relief was written by the
petitioner on 30.12.1990 to the Minister of Works and U.D. Department, Orissa
(Annexure P-9). Vide letter dated 09.03.1999 (Annexure P-13) Peons including
the petitioner working in the department were called for appearance in the test
on 16.03.1999 for the post of Tracer. Nothing has been mentioned as to the
result of this test.
24.
At Annexure P-14 and 15, there are two letters dated 28.06.1999 vide which Miss
Jhina Rani Mansingh and Sri Lalatendu Rath were appointed as Tracer on
promotion basis. From the aforesaid letters, it is evident that they were
promoted as Tracer, but on which post they were working is not mentioned. Their
names are not mentioned in the letter dated 09.03.1999 vide which documents
of
Peons
working in the Department were forwarded for consideration against the post of
Tracer.
25.
It was at this stage that the petitioner filed O.A. No.628(C) of 1999. The
Tribunal vide its order dated 26.03.1999 disposed of the application at
admission stage, directing the respondent to dispose of her representation
within three months from date of receipt of order. Entitlement of the
petitioner to the relief was required to be considered before direction is
issued to the authorities to decide the representation. The Tribunal failed to
apply its mind on this issue at that stage. Pursuant to this, vide letter dated
05.07.1999, the respondent communicated to the petitioner that the post of
Tracer is not to be filed up on promotion from the lower category of post, since
it is not a promotional post and vacancy of Tracer will be filed up in due
course by conducting an interview. As wrong action by the authorities is root
cause of lot of avoidable litigation and other Peons may have been promoted
from the post of Peon to Tracer, aggrieved by the respondent’s decision, the
petitioner again filed a representation dated 30.01.2001 for redressal of her
grievance and sought promotion on higher post considering her qualification and
experience.
26.
The petitioner filed another application bearing O.A. No.l126 (C) of 2002
before the Tribunal inter alia praying for the intervention of the Tribunal
against the discriminatory action of the respondent authorities with regard to
her promotion to the post of Tracer. The aforesaid O.A. filed by the petitioner
was transferred from Cuttack to the Principal Bench of the Tribunal at
Bhubaneshwar which was disposed of vide order dated 27.09.2010. It was the
admitted case of the petitioner before the Tribunal that there are no specific
Rules for promotion from Class IV to the post of Tracer but there are
precedents available, hence, in the absence of any rule the precedents should
be followed. As is evident from paragraph 6 of the aforesaid order, this fact
was not disputed by the learned counsel for the State. He had failed to place
before the Tribunal the 1979 Rules, which clearly deal with the recruitment to
the post of Tracer. Direction was given by the Tribunal to consider the case of
the petitioner along with other similarly situated Class IV employees for
promotion to the post of Tracer.
27.
The representation was rejected by the Chief Engineer vide order dated
23.11.2010 on account of ban on recruitments imposed by the Finance Department.
The order was challenged by the petitioner before the Tribunal by filing O.A.
No.1696 of 2010. Strange enough to note that, in the counter affidavit filed by
the State to the above O.A. filed by the petitioner before the Tribunal, not a
single line has been mentioned that the post of Tracer is to be filled up only
by way of direct recruitment and not promotion in terms of 1979 Rules. The
Tribunal, noting the history that there were two earlier appointments on the
post of Tracer by way of promotion and that even the petitioner was earlier
considered; the petitioner’s case having not been considered on account of ban
imposed on recruitment, disposed of the O.A., quashing the order dated
23.11.2010 and directing the respondents to consider the case of the petitioner
for promotion to the post of the Tracer against any vacant post. In case no
post is available, then reverting the last promoted person after direction in
the earlier O.A. No.742 of 2009 filed by the petitioner. As the State failed to
point out that the 1979 Rules govern recruitment to the post of Tracer, the
Tribunal also did not notice the same and went on with the direction to
consider the case of the petitioner for promotion. The order passed by the
Tribunal was challenged by the State before the High Court.
28.
From a perusal of grounds on which the order passed by the Tribunal was
challenged by the State shows total non-application of mind, especially in a
case which had already undergone three rounds of litigation. Proper facts
were not pointed out at any stage.
The
same legacy followed. In the Writ Petition, reference was made to Works
Department No.4775 dated 26.02.1980 and it was mentioned that the petitioner
was found to be ineligible in terms thereof.
Towards
the end in the aforesaid paragraph reference has been made to Rule 3(d) of the
Orissa Service of Architect Rules, 1979. A copy of which was annexed with the
Writ Petition. The same also has been annexed with the present petition as
Annexure P-1. Firstly, there is no Rule 3(d) in the aforesaid rules and
secondly, this does not deal with the post of Tracer. It shows that even at the
stage of filing SLP before this Court, proper care was not taken to examine the
relevant Rules and place the same on record.
28.1
The importance of responsible drafting and diligent pleading was emphasized by
this Court in Saumya Chaurasia v.Directorate of Enforcement[2023 INSC 1073 : (2024) 6 SCC 401], where it was observed that:
“13. It cannot be
gainsaid that every party approaching the court seeking justice is expected to
make full and correct disclosure of material facts and that every advocate
being an officer of the court, though appearing for a particular party, is
expected to assist the court fairly in carrying out its function to administer
the justice. It hardly needs to be emphasised that a very high standard of
professionalism and legal acumen is expected from the advocates particularly
designated senior advocates appearing in the highest court of the country so
that their professionalism may be followed and emulated by the advocates practising
in the High Courts and the District Courts. Though it is true that the
advocates would settle the pleadings and argue in the courts on instructions
given by their clients, however their duty to diligently verify the facts from
the record of the case, using their legal acumen for which they are engaged,
cannot be obliviated.”
29.
There cannot be more casualness than this where the authority of the State is
fighting litigation and does not apprise the Tribunal or the Court about the
relevant applicable rules. The effort may be to put under covers the
illegalities committed by them earlier by granting promotion from the post of
Peon to that of Tracer in violation of the 1979 Rules. Even the High Court in
the impugned order has not referred to the 1979 Rules but has quoted paragraph
3(d) of the Letter No.4775 dated 26.02.1980. The scheme of the Rules has
already been explained in paragraph above. What is said to be paragraph 3(d) of
the letter is in fact Rule 5(3)(d) of the 1979 Rules.
30.
Though, the claim of the petitioner has been rejected on the ground that she is
not eligible for the post of Tracer, however, we need not enter into that
arena for the reason that as per 1979 Rules, the post of Tracer is to be filled
up to 100% by way of direct recruitment in terms of Rule 5(1)(e) of the 1979
Rules and the method of direct recruitment has been provided in Rule 7 thereof.
Undisputedly, the process as provided in the Rules was not followed. The post
of Tracer, not being promotional post from the post of Peon, there is no merit
in the claim of the petitioner.
31.
Another argument was raised while referring to two communications dated
28.06.1999 appointing Ms. Jhina Rani Mansingh and Sri Lalatendu Rath as Tracer
on promotion, claiming to be from the post of Peon, on the basis of which the
petitioner is claiming violation of Article 14, namely the discrimination.
Suffice to add, this Court cannot put a stamp on the illegalities committed by
the department while perpetuating the same. A litigant coming to the Court
cannot claim negative discrimination seeking direction from the Court to the
department to act in violation of the law or statutory Rules. It is a settled
proposition of law that Article 14 does not envisage negative equality.
Reference for the purpose can be made to a judgment of this Court in R.
Muthukumar & others v. The Chairman and Managing Director
TANGEDCO & others[2022 INSC 157
: 2022 SCC OnLine SC 151]. Relevant para thereof is extracted below :
“28. A principle,
axiomatic in this country's constitutional lore is that there is no negative
equality. In other words, if there has been a benefit or advantage conferred on
one or a set of people, without legal basis or justification, that benefit
cannot multiply, or be relied upon as a principle of parity or
equality. In Basawaraj v. Special Land Acquisition Officer[2013 INSC 551 : (2013) 14 SCC 81], this
court ruled that:
“8. It is a settled
legal proposition that Article 14 of the Constitution is not meant to
perpetuate illegality or fraud, even by extending the wrong decisions made in
other cases. The said provision does not envisage negative equality but has
only a positive aspect. Thus, if some other similarly situated persons have
been granted some relief/benefit inadvertently or by mistake, such an order
does not confer any legal right on others to get the same relief as well. If a
wrong is committed in an earlier case, it cannot be perpetuated.”
32.
For the reasons mentioned above, we do not find merit in the present petition
and the same is accordingly dismissed.
33.
Before parting with the order, we are constrained to observe that the case in
hand is a glaring example of casualness on the part of the State Authorities
while dealing with the litigation. The issue could be resolved at the very
first stage when a representation was made by the petitioner seeking promotion
to the post of Tracer way back in the year 1991. The chapter could have been
closed merely while responding to the same while referring to the relevant statutory
1979 Rules. To some extent it was done but false hopes are created in the minds
of employees if some other similarly situated are granted the benefit, which
itself is contrary to the Rules. The letters continued flowing from the
petitioner to the respondent, and from one department to another as a
shuttlecock, as if there is no other constructive work to do. Even before the
Tribunal, the petitioner had three rounds of litigation followed by one Writ
Petition before the High Court by the State and thereafter this Court. At none
of these stages, the relevant statutory 1979 Rules were referred to either in
the counter or in the petition. Such conduct is not expected from the State
which is the major litigant and the case in hand is an example of unnecessary
generation of litigation by the State where the authorities need to circumspect
and be more careful.
34.
This lackadaisical approach of the State was also noticed by this Court
in Kusha Duruka v The State of Odisha[2024
INSC 46 : (2024) 4 SCC 432] where during pendency of the matter before
this Court, a fresh bail application was filed and High Court even granted bail
to the petitioner. The affidavit filed by the Principal Secretary, Law
Department, Govt. of Odisha revealed that the State Counsel was not aware about
the rejection of his first bail application as well as the filing of SLP.
Noticing efforts being made to pollute the stream of administration of justice,
this Court issued several instructions with a view to streamline the
proceedings and avoid anomalies with reference to the bail applications.
35.
A copy of this order be sent to the Chief Secretary, State of Odisha for
perusal and taking appropriate corrective steps.
36.
Pending application (if any) shall stand disposed of.
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