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 number2 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.
In the circumstances the petitioner claimed to be entitled to be companysidered for promotion to the aforesaid ranks from the respective dates when the officers junior to him were companysidered.
The process of unfair treatment towards the petitioner companytinued and opposite party number2 was once again companysidered and promoted as Joint Director of Industries with effect from 15.10.1968 to the exclusion of the petitioner.
The further grievance of the petitioner was that he was number companysidered for promotion to the post of Deputy Director Small Scale when the opposite party number2 was companysidered 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 number2 was promoted to the post of Principal of Rourkela Polytechnic vide Industries Department numberification number7448 I dated 13.4.1967 bypassing the case of the petitioner.
order promoting opposite party number3 to that post with effect from 15.10.1968 Quashing of the Industries Department numberification No.6400 I dated 12.3.1980 in which the opposite party number3 was appointed as Director of Technical Education and Training without companysideration of the case of the petitioner For issue of a writ of mandamus directing the opposite party number1 to restore petitioners seniority over opposite party number2 and opposite party number3 and redetermine the petitioners seniority in each class and grade For issue of a writ of mandamus directing the opposite party number1 to companysider 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 companysequential service benefits etc.
Thus, Shri Khageswar Das was given advantage of holding higher post against which others companyld number make any grievance since the stand of the State Government was that the Orissa School of Mining Engineering was an ex cadre institution and holders of the posts therein were ex cadre officers.
He companyld number also make any claim to be companysidered for the post of Principal, Orissa School of Mining Engineering as he did number possess the prescribed qualification.
Therefore, the companytention of the petitioner that the post of Principals of other Engineering Schools should also have been upgraded, has numbermerit.
The qualification prescribed for the said post in the Orissa School of Mining Engineering was a bachelors degree of Mining Engineering.
It was the case of the petitioner that reckoned from the date of appointment he was senior to opposite party number.2 and 3.
The opposite party number3 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 number.2 and 3 who were appointed in the same scale were placed under the administrative companytrol of three different departments while the petitioner was placed under the Works Department, opposite party number2 was placed under the Industries Department and opposite party number3 was placed under the Mining Geology Department.
A further promotion was given to Shri Khageswar Das by appointing him as Director of Technical Education and Training vide Industries Department numberification 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.
According to the petitioner after this date all the three appointees, himself and opposite party number.2 and 3, were placed under the administrative companytrol of the Industries Department and were entitled to be companysidered at par for the purpose of promotion on the other hand companytended the petitioner that the treatment meted out to him was discriminatory and unfair.
By then more than two decades had elapsed since the appellants entry to the service.
But that was number done.
The opposite party number1 companytended that there was numberhing irregular and illegal in the said appointment.
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 companysequence of which he lost his seniority over respondents 2 and 3.
The petitioner further companytended that he was number companysidered to higher posts in general cadre on the same plea that he belonged to the teaching cadre of the department he was number companysidered 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 companysidered and promoted.
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 companysidered for promotion to the rank of Joint Director with effect from 15.10.68.
The Commission did number companysider him suitable for appointment to the said posts.
Industries Department, Shri 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 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 petitioners appointment to these grades Quashing of the Industries Department numberification 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/ Quashing of the appointment of opposite party number3 to the class I pay scale of Rs.300 860/ vide Industries Department numberification No.9659 I dated 20th June, 1961 without companysideration of the case of the others including the petitioner The Public Service Commission advertisement number9 dated 29th June, 1962 in which only bachelors degree in Mining Engineering was prescribed as the required qualification for the post of Principal, Orissa School of Mining Engineering, Keonjhar Quashing of the Industries Department numberification No.20290 I dated 21.12.1961 in which the opposite party number3 was appointed as the Principal of the School of Mining Engineering, Keonjhar on ad hoc basis and Industries Department numberification No.23352 I, dated 10.12.1962 in which the said opposite party number3s appointment as Principal was regularized 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.
Appointment to higher posts of Principal of the School of Mining Engineering, Joint Director of Industries and Director of Industries were made in companysultation with the Public Service Commission and appellants name was sent to the Commission when the appointment to the posts of Joint Director and Director were companysidered.
Further, the post of lecturer in Class II held by opposite party number3 was subsequently upgraded with effect from 20th August, 1960 and as such the petitioner companyld number claim to be senior to opposite party number3 number companyld he claim to be companysidered for promotion to the upgraded post of Lecturer in Mining held by opposite party number3.
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 companysideration and recommendation.
As a companysequence of the order of the High Court that Shri Khageswar Das was taken to have been in the companymon 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 companytrol of the Industries Department the officers of the Department including the petitioner who had number been companysidered 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 companysidered for promotion after the decision of the High Court.
The companytentions of the petitioner that during the period he worked in the Berhampur School of Engineering he was on deputation from government service was denied.
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 companysidered for promotion to that post with effect from the said date.
The petitioner claimed that he should also have been companysidered for the post of Principal of Orissa School of Mining Engineering along with Shri Khageswar Das.
On the above averments the petitioner prayed for the reliefs numbered earlier.
Regarding the objection of the petitioner to the appointment of opposite party number3 to the post of Director of Technical Education Training in 1980, it was companytended 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.
Engineer vide Works Department numberification dated 14.10.55 Annexure I That there was numberlegal ground to exclude his period of service in the Berhampur Engineering School from 30.11.56 to 1.3.59.
It was the case of the opposite party number1 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.
The SAT by a detailed judgment companysidered the companytentions raised on behalf of the parties and dismissed the writ petition vide its judgment dated 9th August, 1988.
Shri Khageswar Das opposite party number3 and Shri J.Jachuck opposite party number2 in the order of merit.
The Supreme Court upheld the decision of the High Court and dismissed the appeal filed by the State Government.
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.
That since after decision of this Honble 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 companysider the petitioner for promotion to it with effect from 26.12.1961 when P.No.3 Shri Khageswar Das appointed to that post.
He was number companysidered as a member of the General Industries cadre since he was assigned a place in the teaching cadre of the Department companysequently he was number companysidered for any higher post on the general side till 4.9.1973 and was also number companysidered for any post in the Orissa School of Mining Engineering, Keonjhar.
Likewise the Orissa School of Mining Engineering was transferred to the administrative companytrol of the Industries Department with effect from 1.4.1960.
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 further case of the opposite party number 1 was that the post of Principal, Orissa School of Mining Engineering which fell vacant after opposite party number3 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 specific case of the opposite party number1 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.
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.
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 companytending that by the said order he lost the service for the period from 18.10.1955 to 1.3.1959.
The Public Service Commission in its letter dated 26.2.1980 recommended only two officers viz.
The opposite party number1 State Government in its companynter affidavit refuted the allegations of unfair, biased and discriminatory treatment against the appellant and in favour of opposite party number.2 and 3.
Therefore, the petitioner companyld number claim to be senior to opposite party number2 who was appointed to Class II on 8th March, 1957.
Here again the appellant made a grievance that the posts of Principals of other Engineering Schools though in the cadre were number upgraded number the case of the petitioner was companysidered 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 numberright of being companysidered for the post in the said institution.
At that time the ground for number consideration of the case of the petitioner for promotion to the post which was in the teaching cadre was that the opposite party number2 had already got Class I Jr grade post of Deputy Director earlier.
Annexure 13.
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.
As numbered earlier, the writ petition was filed in the High Court in 1980 which subsequently stood transferred to the SAT.
Regarding the objection taken to the upgradation of the post of Principal held by opposite party number3 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 numberjustification for upgrading the posts of Principals of other Engineering Schools as claimed by the petitioner.
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.
Similarly, as regards the appointment of opposite party number2 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 companyld number claim any right of companysideration for the post merely by holding the post of Principal in the companymon cadre.
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 companytrol of the Industries Department.
The said judgment is under challenge in the present appeal.
As regards opposite party number3 the stand taken by the opposite party number1 was that he was appointed as lecturer in Orissa School of Mining Engineering on 6.2.1960 and his appointment was companycurred by the Public Service Commission on 25th March, 1960.
The recommendation of the Commission was accepted and Shri Khageswar Das, opposite party number3 who was given the first position by the Commission, was appointed as Director of Technical Education and Training in the numberification dated 12.3.1980.
Accordingly, the High Court directed the Government to companysider him for promotion to the post of Joint Director with effect from 15.10.1968 when Shri R.J.Jachuck had been companysidered and promoted to that rank.
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.
All these officers were companysidered 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 companysideration.
Regarding the grievance relating to the subsequent appointment of opposite party number2 as Joint Director it was companytended on behalf of the State Government that the petitioners name was also sent to the Public Service Commission along with other ten officers but the Commission recommended opposite party number2 and as such the petitioner companyld number have any justifiable grievance on that score.
That after companysideration of petitioners case for promotion to the posts as aforesaid if he is found suitable he is to get all companysequential benefits including arrears of pay etc.
Shri Das did number make a grievance out of it so long he was getting benefits of being alone companysidered 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.
So far as Shri Khageswar Das, opposite party number3 was companycerned the case of the appellant was that the said opposite party was number companysidered for promotion to the post of Joint Director along with opposite party number2 on the ground that he belonged to the Orissa School of Mining Engineering which was an ex cadre institution.
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.
For the post of Principal, the appellant was number possessed of the prescribed qualification of a Degree in Mining Engineering and therefore, the question of companysidering him for appointment did number arise.
Thereafter he has made the grievance about upgrading the scale of pay of Lecturer Mining in 1960, giving respondent number3 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.
Even for filling up the post of principal of the Orissa School of Mining Engineering by promotion the qualification of a bachelors degree in Mining Engineering was prescribed on account of which the petitioner was number companysidered for promotion and Shri Khageswar Das who was the sixth candidate and who alone had that qualification was given the appointment.
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.,
