Orissa High Court
State Of Odisha vs Sri Amarendra Mallick on 16 August, 2023
ORISSA HIGH COURT : CUTTACK
W.P.(C) No. 24079 OF 2012
In the matter of an application under Articles 226 and 227
of the Constitution of India, 1950.
---------------
1. State of Odisha
represented by
Commissioner-cum-Secretary
Labour and Employment Department
Odisha, Bhubaneswar
(presently, Employment & Technical
Education & Training Department,
Odisha, Bhubaneswar)
2. Director of Employment
Odisha, Bhubaneswar ... Petitioners
-VERSUS-
1. Sri Amarendra Mallick
(Since dead)
Represented by the following Legal Heirs:
1(a) Jyotshnamayee Mallick,
Wife of Late Amarendra Mallick
1(b) Amlan Jyoti,
Son of Late Amarendra Mallick
1(c) Amar Jyoti,
Son of Late Amarendra Mallick,
Opposite Party Nos. 1(a) to 1(c) are of
Village/Town: Raghabapur, P.S.: Patkura
Tahasil: Marshaghai, District: Kendrapara.
Presently residing
At: Flat No.331
Block-D, Angel Avenue Apartment
Atala Road, Balianta,
Bhubaneswar - 752 101 ... Opposite Parties
2. Special Secretary
Odisha Public Service Commission
19, Dr. P.K. Parija Marg
Cantonment Road
Cuttack - 753 001 ... Proforma Opposite Party
Counsel appeared for the parties:
For the Petitioner : Mr. Amiya Kumar Mishra,
Additional Government Advocate
for the petitioners
For the Opposite Parties : Mr. Millan Kanungo,
Senior Advocate
with
Mr. Soumya Ranjan Mohanty,
Advocate for the opposite party
Nos.1(a) to 1(c)
P R E S E N T:
THE HONOURABLE DR. JUSTICE B.R. SARANGI
AND
THE HONOURABLE MR. JUSTICE MURAHARI SRI RAMAN
Date of Hearing: 11.08.2023 :: Date of Judgment: 16.08.2023
MURAHARI SRI RAMAN, J.--
THE CHALLENGE:
Assailing Order dated 17th February, 2012 of the
Learned Odisha Administrative Tribunal, Bhubaneswar
passed in Original Application bearing O.A. No.490 of
2000 with a direction to reinstate Amarendra Mallick
(Applicant) in promotional post as recommended to the
Odisha Public Service Commission being found suitable
by the Departmental Promotion Committee vide Meeting
dated 03.06.1997 with reference to Section 6 of the
Odisha Reservation of Vacancies in Posts and Services
(for Scheduled Castes and Scheduled Tribes) Act, 1975
(for brevity, "ORV Act") and further direction to treat the
period between reversion and subsequent promotion as
ad hoc promotion, the petitioners-State of Odisha have
approached this Court under Article 227 of the
Constitution of India with the following prayer(s):
"Petitioners therefore most humbly pray that this Hon'ble
Court may graciously be pleased to issue rule NISI calling
upon the opposite party to show cause as to why the
impugned order dated 17.02.2012 passed by the Learned
State Administrative Tribunal in O.A. No.490 of 2000 at
Annexure-2 shall not be quashed;
And if the opposite parties fail to show cause or sufficient
cause the said rule be made absolute;
And/or pass such other order/orders as this Hon'ble
Court may think fit and proper for the ends of justice; ***"
FACTS:
2. Amarendra Mallick, belonging to Scheduled Caste
community, entered in Government Service on
21.12.1986 as a Junior Employment Officer, and is
guided by the Odisha Employment Services, Class-II
(Recruitment and Conditions of Service) Rules, 1990
framed under proviso to Article 309 of the Constitution
of India. Having completed five years of experience in the
post of Junior Employment Officer ("JEO", for short),
Amarendra Mallik (hereinafter referred to as "Applicant")
acquired eligibility for promotion by 1991 and the
Departmental Promotion Committee found him suitable
in its Meeting held in 03.06.1997. Consequent thereto
his name was duly recommended vide Letter dated
23.06.1997 to the Odisha Public Service Commission (in
short, "OPSC") for promotion to the post of District
Employment Officer ("DEO", for convenience) and the
Applicant, being transferred from Nuapada to Kalahandi,
joined on 16.07.1997 in the said promotional post.
2.1. While working as such, vide Letter dated 16.02.2000, an
Order came to be issued reverting him to the feeder
cadre to function as "JEO" on the ground that the OPSC
did not recommend his name for promotion. Aggrieved
by such decision, the Applicant moved the Odisha
Administrative Tribunal by way of Original Application
which was registered as O.A. No.490 of 2000.
CASE OF THE APPLICANT BEFORE THE ODISHA ADMINISTRATIVE
TRIBUNAL:
3. Having been found suitable in the Departmental
Promotion Committee, which has duly recommended his
name for promotion, the Applicant joined in the
promotional post and worked as DEO since 1997. Thus,
there was little scope for the OPSC not to accord
concurrence.
CASE OF THE STATE OF ODISHA AND THE OPSC BEFORE THE ODISHA
ADMINISTRATIVE TRIBUNAL:
4. Meeting of the Departmental Promotion Committee was
held on 03.06.1997 to consider filling up of five posts of
Employment Officers in Class-II by way of promotion
from amongst the eligible JEOs as per the provisions of
the Odisha Employment Services, Class-II (Recruitment
and Conditions of Service) Rules, 1990. Out of five
vacancies, whereas three vacancies were meant for
unreserved category, other two were reserved for
Scheduled Caste category and Scheduled Tribe category
(each). Since no suitable candidate in Scheduled Tribe
category was available in the zone of consideration, on
the principle of exchange in tune with the provisions of
Section 6 of the ORV Act, the said Committee
recommended the name of Amarendra Mallick-
Applicant, who belonged to Scheduled Caste community,
for promotion to the post of DEO on ad hoc basis vide
Labour & Employment Department Notification No.7364,
dated 23.06.1997 against the vacancy in Scheduled
Tribe category. Thereafter, the OPSC was moved for
views on the recommendation of Departmental
Promotion Committee vide Labour & Employment
Department Letter No.11751/LE., dated 16.09.1997.
The OPSC in their Letters bearing No.2112/SC., dated
20.12.1997 and No.4736, dated 13.07.1998 had
recommended five suitable officers for promotion to five
vacant posts of Employment Officers.
4.1. Since nothing was spelt out about the Applicant
regarding suitability, the OPSC was again moved for
views/clarification vide Labour & Employment
Department Letter No.9844, dated 09.09.1998. On reply,
the OPSC in Letter No. 7986/PSC., dated 07.11.1998
had intimated that as there was no Officer from
Scheduled Tribe category available in the zone of
consideration, one Officer from the General category was
recommended for promotion against the Scheduled Tribe
vacancy in terms of the provision in the second proviso
to Section 7 of the ORV Act read with Rule 5(3) of Odisha
Reservation of Vacancies in Posts and Services (for
Scheduled Castes and Scheduled Tribes) Rules, 1976 (in
short "ORV Rules").
4.2. Before taking action for reverting the Applicant from the
post of DEO to JEO, views of the Welfare Department
and the Law Department were taken whereby it was
clarified that the promotion in absence of suitable
person in the Scheduled Tribe category, the filling up of
promotional post was required to be made as laid down
in the second proviso to Section 7 of the ORV Act.
Justifying such action, the petitioners relied on the
notification of the Labour & Employment Department
bearing No.2536, dated 16.02.2000, whereby the
Applicant was reverted to the post of JEO.
5. Since no person was found available in Scheduled Tribe
category, one Officer from Scheduled Caste category was
recommended for promotion against vacancy in the
Scheduled Tribe category in accordance with the
provisions of Section 6 of the ORV Act.
FINDINGS OF THE ODISHA ADMINISTRATIVE TRIBUNAL:
6. Reading of Sections 6 and 7 of the ORV Act read with
Rule 5 of the ORV Rules makes it clear that reserved
posts remaining unfilled after exchange as provided
under Section 6, the unfilled vacancy can be filled up by
person from general category in accordance with Section
7. The instant promotion being from post borne in Class-
III to the post in Class-II or within Class-II, in view of the
second proviso to Section 7, the principle of carry
forward of reservation and de-reservation does not apply
to the reserved vacancies to be filled up by way of
promotion on the basis of selection, where such
promotion is to be made from Class-III posts to Class-II
posts, within Class-II posts, from Class-II posts to Class-
I posts, and from posts in lowest rung of Class-I.
6.1. The learned Odisha Administrative Tribunal held further
that Rule 5(3) of the ORV Rules cannot override the
provisions contained in Section 6 of the ORV Act
empowering the authority for exchange of posts between
posts reserved for Scheduled Tribe and Scheduled Caste.
6.2. It was observed that the Applicant, belonging to
Scheduled Caste community, being found available and
suitable in the Meeting of the Departmental Promotion
Committee held in the year 1997, was given promotion
on ad hoc basis in accordance with Section 6 of the ORV
Act and in fact, he joined and worked as DEO. There was
no justification for the OPSC not to accord concurrence
and, thereby it erred in its approach to say that the
vacancy would go to "unreserved candidate in
accordance with sub-rule (3) of Rule 5".
7. The learned Odisha Administrative Tribunal has come to
the following conclusion:
"11. A conjoint reading of Section 6 of the Act and sub-
rule (3) of Rule 5 makes it manifest that if after
application of principles of exchange of vacancies of
post between Scheduled Tribe or Scheduled Caste
category, still the post/vacancy remains unfilled
then it will go to general candidate. To make it clear
that if no suitable Scheduled Caste or Scheduled
Tribe person is available then it should go general
category. In the instant case the applicant, a
Scheduled Caste candidate has been available and
found suitable by the Departmental Promotion
Committee for promotion. Government accepted the
recommendation of Departmental Promotion
Committee and gave the applicant promotion on ad
hoc basis in accordance with Section 6 of the Act.
The respondent-OPSC has no justifiable reason to
reject the suitability of the applicant without
considering the provisions of Section 6 of the Act.
The opinion of respondent-OPSC that the
post/vacancy should go to unreserved candidate in
accordance with sub-rule (3) of Rule 5 is not
sustainable.
12. In the circumstances, the impugned order of
reversion of the applicant at Annexure-3 is not
sustainable and stands quashed. The applicant be
reinstated in the promotional post forthwith. 1[***]
Thus, the matter be again referred to OPSC to
reconsider the suitability of the applicant to hold
promotional post in accordance with the
recommendation of the DPC held on 03.06.1997 in
application of Section 6 of the ORV Act.
13. To reiterate, the applicant has already been
promoted subsequently, so the intervening period
between reversion and subsequent promotion should
be treated as ad hoc promotion, but on
recommendation of OPSC his seniority be reckoned
from the date of joining pursuant to Annexure-1 with
all service and monetary benefits. This exercise be
completed at an early date."
RIVAL CONTENTIONS BEFORE THIS COURT IN THE PRESENT WRIT
PROCEEDINGS:
1 Deleted "The applicant has been promoted to the higher rank subsequently as
recommended by the OPSC." vide Corrigendum issued by the Odisha
Administrative Tribunal, Bhubaneswar in R.P. No.21 of 2012 in O.A. No.490 of
2000, Memo 1322, dated 08.02.2013.
8. The ad hoc promotion given to the Applicant was
irregular, and the same not being in consonance with
the second proviso to Section 7 of the ORV Act, 1975
read with sub-rule (3) of Rule 5 of the ORV Rules, the
Departmental Promotion Committee erred in
recommending the case of the Amarendra Mallick. Sri
Amiya Kumar Mishra, learned Additional Government
Advocate submitted that on misreading of Section 6 of
the ORV Act, which relates to "appointment", but not
"promotion", the provision of exchange of reservation
between the Scheduled Castes and Schedule Tribes
could not have been made applicable to the instant case
of the Applicant qua promotion from the post of JEO to
the post of DEO. Sri Mishra had made valiant attempt to
draw distinction between the purport of the second
proviso to Section 7 and Section 6 of the ORV Act and
urged that whereas the former regulates "promotions"
with reference to "reservation", the latter deals with
exchange of reservation between "appointments" qua
Scheduled Castes and Scheduled Tribes. Since these
provisions operate in distinct and different fields, the
conclusion arrived at by the learned Odisha
Administrative Tribunal is "clouded and in the process
arrived at the erroneous conclusion" that reversion of
the Applicant-Amarendra Mallick was bad in law.
9. Sri Millan Kanungo, Senior Advocate appearing for the
opposite party No.1 along with Sri Soumya Ranjan
Mohanty, Advocate would submit that the change in
stand of the Government based on the opinion of the
OPSC that the promotion of the Applicant, belonging to
Scheduled Caste community, to the post of DEO against
a vacancy in Schedule Tribe category is contrary to
provision contained in Rule 5(3), cannot be
countenanced as logical inasmuch as provisions of
Section 6 of the ORV Act cannot be read in derogation to
sub-rule (3) of Rule 5 of the ORV Rules.
9.1. Referring to the opinion of the Government of Odisha in
Scheduled Tribes and Scheduled Castes Development
Department vide Letter No.21429-Emp.I (A)-50/2002/
SSD, dated 03.04.2003, Sri Millan Kanungo, learned
Senior Counsel argued that provisions of Section 6 of the
ORV Act being accepted and adapted to be applicable to
the cases of appointment by way of promotion, there
cannot be any ambiguity in understanding the purport
of provisions of Section 6 read with second proviso to
Section 7 of the ORV Act and in view of aforesaid
clarification vide Letter dated 03.04.2003 (Annexure-A/1
to the Counter-Affidavit filed by the opposite party No.1),
the interpretation put forth by the learned Odisha
Administrative Tribunal cannot be faulted with.
9.2. It is forcefully argued by Sri Millan Kanungo, Senior
Advocate that though Rejoinder-Affidavit has been filed
by the petitioner-Employment & Technical Education &
Training Department, nothing is whispered regarding
interpretation/opinion rendered by the learned Advocate
General as referred to in Letter No.21429-Emp.I (A)-
50/2002/ SSD, dated 03.04.2003 issued by the
Scheduled Tribes and Scheduled Castes Development
Department. The Departments of the Government
should not be allowed to speak in two voices. Reiterating
what has been stated earlier, the State of Odisha in its
Rejoinder-Affidavit merely sailed along with the view
expressed by the OPSC ignoring the fact that the opinion
of the Advocate General has been accepted in the matter
of promotion in terms of Section 6 read with second
proviso to Section 7 of the ORV Act.
9.3. Sri Millan Kanungo further brought to the notice of this
Court that during the pendency of the writ petition, the
Applicant-Amarendra Mallick has died on 15.07.2017.
The petition of the opposite party Nos.1(a) to 1(c) being
I.A. No.1626 of 2023 has been allowed by this Court vide
Order dated 15.05.2023 and said Amarendra Mallick is,
therefore, allowed to be represented by his wife and
children as legal heirs. Since by virtue of interim Order
dated 08.01.2014 and subsequent extension Orders the
operation of Order dated 17.02.2012 passed by the
learned Odisha Administrative Tribunal has been stayed,
circumstance as of now may not justify reinstatement of
the Applicant, but the benefit envisaged in the Order of
the learned Tribunal is entitled to be extended along
with consequential service and pecuniary benefit.
STATUTORY PROVISIONS:
10. Section 6 of the ORV Act reads thus:
"6. Exchange of reservation between the Scheduled
Castes and Scheduled Tribes.--
The reserved vacancies in appointments shall
be exchanged between the Scheduled Castes
and Scheduled Tribes in the event of non-
availability of candidates from the respective
communities, but the vacancies reserved for a
particular community shall continue to be reserved
for that community only for two recruitment years
and if candidates are not available for appointment
in particular reserved vacancies in the third year,
the vacancy so filled by exchange shall be treated as
reserved for the candidates of that particular
community who are actually appointed:
2[Provided that nothing in this section shall apply to
reserved vacancies in appointments in respect of
Class III and Class IV posts and services.]
7. Carry-forward of reservation and de-reservation.--
If, in any recruitment year, the number of candidates
either from Scheduled Castes or Scheduled Tribes is
less than the number of vacancies reserved for them
even after exchange of reservation between the
Scheduled Castes and Scheduled Tribes, the
remaining vacancies may be filled up by general
candidates after de-reserving the vacancies in the
prescribed manner, but the vacancies so de-reserved
may be carried forward to subsequent three years of
recruitment:
2 Inserted by Odisha Act 11 of 1992.
Provided that in the years following the recruitment
year the normal reserved vacancies together with
the vacancies carried forward shall not exceed fifty
per cent of the total number of vacancies of the year
in which recruitment is made and the excess over
fifty per cent of the reserved vacancies shall be
carried forward to subsequent years of recruitment.
3[Provided further that the provisions of
this section
shall not apply to the reserved vacancies to be
filled up by promotion on the basis of selection
where such promotion is to be made--
(a) from Class III posts to Class II posts,
(b) within Class II posts,
(c) from Class II posts to Class I posts, and
(d) from posts, in the lowest rung of Class I]
4[Provided also that nothing in this Section shall
apply to the vacancies reserved in respect of Class
III and Class IV posts, if candidates are not
available for filling up such reserved vacancies these
remaining vacancies shall be filled up by holding
fresh recruitment only from candidates belonging to
the Scheduled Castes or the Scheduled Tribes, as
the case may be, and sub-section (5) of Section 9
shall not apply to such vacancies.]"
11. Rule 5 of the ORV Rules reads as follows:
"5[5. De-reservation of vacancies].--
3 Inserted ibid.
4 Added by Odisha Act 9 of 1982.
5 Renumbered by H.T.W. Deptt. Notfn. No. 2164 Dt. 20.1.1984, published in Odisha
Gazette Extraordinary No. 141, Dt. 3.2.1984
(1) Vacancies reserved for the Scheduled Castes and
Scheduled Tribes 6[in case of initial recruitment]
shall not be filled by general candidates without
being de-reserved in accordance with the following
procedure:
(a) (i) All vacancies except those which are
required to be filled under statutory rules
or through the Odisha Public Service
Commission shall be notified to the local
Employment Exchange in the form of
requisition as prescribed under the
Employment Exchange (Compulsory
Notification of Vacancies) Rules, 1960.
Simultaneously, a copy of the requisition
in case of vacancies in Departments of
Government of Heads of Department shall
be to Tribal and Rural Welfare
Department, and in case of vacancies in
subordinate offices to the District Welfare
Officer concerned.
(ii) The number of vacancies reserved for
Scheduled Castes and Scheduled Tribes
out of the total vacancies notified shall be
clearly indicated in the requisition
furnished to the Employment Exchange.
(iii) If sufficient number of Scheduled Caste
and Scheduled Tribe candidates are not
available through the Employment
Exchange to fill up the vacancies reserved
for them, the vacancies shall be
advertised by the appointing authorities
after getting a clearance certificate from
the Employment Exchange.
6 Inserted ibid.
(iv) While notifying or advertising reserved
vacancies it shall be made clear that
while the vacancies are reserved for
Scheduled Tribes (or Scheduled Castes)
Scheduled Caste candidates would also
be eligible for consideration in the event of
non-availability of suitable Scheduled
Tribe candidates and vice versa.
(v) In case suitable Scheduled Caste and
Scheduled Tribe candidates are not
available to fill up the reserved vacancies
even after issue of advertisement, such
vacancies shall be de-reserved in
accordance with the principles laid down
in sub-clause (vi).
(vi) De-reservation of vacancies shall be made
by an appointing authority with the prior
approval of the authority next above the
appointing authority. After such de-
reservation has been made the appointing
authority shall, in case of de-reservation
of vacancies in a District Office, intimate
the fact to the District Collector concerned
and in the case of de reservation of
vacancies in an office of the Head of a
Department or a Department of
Government to the Tribal and Rural
Welfare Department along with a
certificate to the effect that he has
followed procedure laid down in this
connection with regard to de-reservation.
(b) The procedure of de-reservation stated in Sub-
clause (vi) of Clause (a) shall also apply to
vacancies to be filled otherwise than through
the Employment Exchange.
7[(2) In case of promotion on the basis of seniority subject
to fitness, the vacancies reserved for Schedule Caste
and Scheduled Tribe and remaining unfilled on the
ground of non-availability of candidates belonging to
these communities, shall not be filled up without
being de-reserved by the appointing. authority by
taking orders of the next higher authority.
(3) In case of promotion based on selection from Class
III posts to Class II posts, within Class II posts, from
Class II posts to Class I posts and from post in the
lowest rung of Class I, the reserved vacancies
remaining unfilled, if any, shall be filled up by
general candidates.]"
ANALYSIS AND DISCUSSIONS:
12. The undisputed fact remains that the Applicant-
Amarendra Mallick being found eligible in the year 1991
for promotion and suitable in the Departmental
Promotion Committee Meeting held in the year 1997, his
case was recommended for promotion to the post of DEO
from JEO to the OPSC on the principle envisaged under
Section 6 of the ORV Act to the effect that "the reserved
vacancies in appointments shall be exchanged between
the Scheduled Castes and Scheduled Tribes in the event
non-availability of candidates from the respective
communities". As a result thereof he was transferred
from Nuapada to Kalahandi and he joined in the post of
7 Inserted by HTW Department Notification No.2164, dated 20.01.1984.
DEO against vacant post on 16.07.1997. The Applicant
challenged the Order 16.02.2000 whereby he was
reverted to the original post as the OPSC did not accord
concurrence.
12.1. It transpires from reading of provisions contained in
Section 6 of the ORV Act that when there is non-
availability of candidate of Scheduled Caste or, as the
case may be, Scheduled Tribe, the reserved vacancy "in
appointments" can be filled up by exchange. It is
understood from the provisions of Section 7 of the ORV
Act read with Rule 5(3) of the ORV Rules that if, in any
recruitment year, the number of candidates either from
Scheduled Castes or Scheduled Tribes is less than the
number of vacancies reserved for them even after
exchange of reservation between the Scheduled Castes
and Scheduled Tribes, the remaining vacancies may be
filled up by general candidates after de-reserving the
vacancies in the prescribed manner, but the vacancies
so de-reserved may be carried forward to subsequent
three years of recruitment.
12.2. The expression "after exchange of reservation between
the Scheduled Castes and Scheduled Tribes" in Section
7 is significant. The words "remaining vacancies" in
Section 7 of the ORV Act and "reserved vacancies
remaining unfilled" in Rule 5(3) of the ORV Rules are
indication of the fact that the question of filling up of
vacancies meant for reserved candidates from general
category would arise only "after exchange of reservation
between the Scheduled Castes and Scheduled Tribes".
12.3. Further the rider contained in sub-section (3) of Section
7 of the ORV Act is relevant. The promotion in question
being from the post of Class-III to the post of Class-II,
Section 7 has no application to the present context. Rule
5(3), as contended by the petitioners (State of Odisha),
cannot be read in isolation. It is to be construed along
with language contained in Section 7.
12.4. It is trite that rules are not supplant, but supplement
the statutory provision. In State of Gujarat Vrs. Multiplex
Association of Gujarat, (2023) 3 SCR 112, it has been
observed as follows:
"18. It has often been held - in the context of rules of
procedures that they are meant to facilitate, not
supplant justice. In Sangram Singh Vrs. Election
Tribunal, Kotah, (1955) 2 SCR 1 this court stated:
"16. *** It is procedure, something designed to
facilitate justice and further its ends: not a
penal enactment for punishment and penalties;
not a thing designed to trip people up. Too
technical a construction of Sections that leaves
no room for reasonable elasticity of
interpretation should therefore be guarded
against (provided always that justice is done to
both sides) lest the very means designed for
the furtherance of justice be used to frustrate
it."
12.5. In St. Johns Teachers Training Institute Vrs. Regional
Director, National Council for Teacher Education, (2003) 3
SCC 321, it has been observed that:
"10. A regulation is a rule or order prescribed by a
superior for the management of some business and
implies a rule for general course of action. Rules and
regulations are all comprised in delegated
legislation. The power to make subordinate
legislation is derived from the enabling Act and
it is fundamental that the delegate on whom
such a power is conferred has to act within the
limits of authority conferred by the Act. Rules
cannot be made to supplant the provisions of
the enabling Act but to supplement it. What is
permitted is the delegation of ancillary or
subordinate legislative functions, or, what is
fictionally called, a power to fill up details."
12.6. In Pratap Chandra Mehta Vrs. State Bar Council of
Madhya Pradesh, (2011) 9 SCC 573, it has been opined
that:
"58. *** The Court would be justified in giving the
provision a purposive construction to
perpetuate the object of the Act, while ensuring
that such rules framed are within the field
circumscribed by the parent Act. It is also clear
that it may not always be absolutely necessary to
spell out guidelines for delegated legislation, when
discretion is vested in such delegatee bodies. In
such cases, the language of the rule framed as well
as the purpose sought to be achieved, would be the
relevant factors to be considered by the Court."
12.7. In Novva Ads Vrs. Secretary, Department of Municipal
Administration and Water Supply, (2008) 6 SCR 334 it
has been laid down as follows:
"33. It is well settled that a delegated legislation would
have to be read in the context of the primary statute
under which it is made and, in case of any conflict, it
is primary legislation that will prevail.
34. In ITW Signode India Ltd. Vrs. Collector of Central
Excise, (2004) 3 SCC 48 this Court has held as
under:
'It is well settled principle of law that in case of a
conflict, between a substantive Act and delegated
legislation, the former shall prevail inasmuch as
delegated legislation must be read in the context of
the primary/legislative Act and not vice versa.' ***"
12.8. In such view of the matter, the interpretation of Rule 5(3)
of the ORV Rules as suggested by the Additional
Government Advocate is fallacious inasmuch as Rule
5(3) is to be read in harmony with Section 7. To reiterate
it can, hence, be said that after exchange of reservation
between the Scheduled Castes and Scheduled Tribes in
the event of non-availability of candidate, when the
vacancy still remains unfilled, in such eventuality, the
question of consideration of filling up promotional post
by a general candidate would arise. In such contingency,
Rule 5(3) of the ORV Rules would attract. Carry forward
of reservation and de-reservation has no application in
respect of promotion from Class-III posts to Class-II
posts, within Class-II posts, from Class-II posts to Class-
I post and from posts in the lowest rung of Class-I in
view of the second proviso to Section 7.
13. By way of Rejoinder-Affidavit the Employment &
Technical Education & Training Department submitted
that the OPSC in their Letter No.7986/PSC, dated
07.11.1998 intimated that "as there was no Scheduled
Tribe Officer available in the zone of consideration, one
Officer from the General Category has been
recommended for promotion against the Scheduled Tribe
vacancy in accordance with the provision made under
second proviso to Section 7 of ORV Act, 1975 read with
Rule 5(3) of the ORV Rules, 1976." Such a stance is
apparently contrary to the express provision contained
in said provisions. It has already been held in the
foregoing paragraphs that Section 7 would not fit to the
present context as the same is applicable for
determination of carry forward of reservation and de-
reservation. No factual detail has been placed by the
State of Odisha with regard to recruitment year in
question so far as "the number of candidates either from
Scheduled Caste or Scheduled Tribes is less than the
number of vacancies reserved for them" is concerned.
From the document being Letter No.7986/PSC, dated
07.11.1998 issued by the OPSC, the reason ascribed
seems to be that "as there was no Scheduled Tribe
Officer in the zone of consideration, one Officer from
General category has been recommended for promotion
against the Scheduled Tribe vacancy". At paragraph 4 of
said Letter, the OPSC opined that "the provision made in
Section 6 of the ORV Act, 1975 as cited in the
Department Letter under reference, is applicable in the
case of direct appointment made to Class-II and above
ranks and not in the promotion matters". Such a view
expressed by the OPSC manifests misreading of said
provision. From the opening words "The reserved
vacancies in appointments shall be exchanged between
the Scheduled Castes and Scheduled Tribes in the event
of non-availability of candidates from the respective
communities" it is ex facie made clear that non-
availability of Officer in the Scheduled Tribe category
shall have to be filled up by exchanging with Scheduled
Caste candidate.
13.1. To buttress such understanding, aid can be had to
Annexure-A/1 to the Counter-Affidavit filed by
Amarendra Mallick, which is Letter dated 03.04.2003.
For better comprehension, contents of said Letter is
reproduced hereunder:
"GOVERNMENT OF ORISSA
S.T. & S.C. DEVELOPMENT DEPARTMENT
21429-Emp.I (A)-50/2002/SSD. Dated, Bhubaneswar, the 3rd of April, 2003
From:
Shri K. C. Mohapatra, OAS(SAG)
Director (ST/SC) & Ex-Officio
Additional Secretary to Government.
To
All Departments of Governments.
All Heads of Departments.
O.P.S.C., Cuttack.
Sub.: Clarification on applicability of exchange of reservation between S.C. and
S.T. in case of promotion from Class-III to Class-II and above posts and
services.
Section 6 of the ORV Act deals with exchange of Reserved vacancies
between SC and ST in case of non-availability of candidates of one
category. While the applicability of this provisions in case of appointment
by direct recruitment is well understood, a number of cases have been
referred to the ST & SC Development Department expressing doubts
regarding applicability of exchange of reservation between SC and ST in
case of promotional appointments as provided under Section 6 of the ORV
Act, 1975. It has also been observed that different Departments have
interpreted the provisions differently.
The matter was, therefore, examined in consultation with the Law
Department and the Advocate General, Odisha, Cuttack. After careful
examination of the provisions of the Law, it is hereby clarified
that provisions of Section 6 of the ORV Act, 1975 are applicable in
case of appointment by promotions also and exchange of
reservation between SC and ST in respect of promotional
appointments from Class-III to Class-II Posts, within Class-II posts,
from Class-II posts to the lowest rung of class-I is permissible.
This has been concurred in by the Law Department in their U.O.R.
No.816/L dated 22.05.2002 and vetted by the Advocate General, Odisha,
Cuttack vide their U.O.I. No.417/AG, dated 16.07.2002.
This may be brought to the notice of all Appointing Authorities working
under their administrative control.
Director (ST/SC) & Ex-officio
Additional Secretary to Government"
13.2. Without placing any contrary material against such
accepted view expressed by the learned Advocate
General as concurred by the Law Department way back
in the year 2003, the petitioner-Employment & Technical
Education & Training Department, Government of
Odisha, in paragraph 4 of the Rejoinder-Affidavit dated
01.05.2014 has stated thus:
"The provision made in Section 6 of the ORV Act, 1975
under which Sri Amarendra Mallick (Scheduled Caste)
was recommended by the Departmental Promotion
Committee for promotion to the post of Employment
Officer, against Scheduled Tribe vacancy under the
principle of exchange is applicable in the case of direct
appointment made to Class-II and above ranks and not in
the promotion matter. Copy of Letter No.7986, dated
07.11.1998 of the Odisha Public Service Commission is
enclosed herewith and marked as Annexure-3 for kind
perusal of the Hon'ble Court.
The observation of OPSC was also confirmed by the
Welfare Department followed by Law Department as
follows:
Welfare Department
'In case of non-availability of Scheduled Caste &
Scheduled Tribe candidates even after exchange of
reservation, the remaining vacancies shall be filled up as
per provision 2 to Section 7 of the ORV Act, 1975 read
with Rule 5(3) of ORV Rules, 1976.'
Law Department
'*** So, the observation of the OPSC at para-4 in their
Letter No.7986/PSC dated 07.11.1998 is found to be
correct.' ***"
13.3. In the Rejoinder-Affidavit without clarifying the position
with respect to the concurrence made by the Law
Department to the opinion rendered by the learned
Advocate General in the year 2003 and the Department
concerned, i.e., Scheduled Tribe and Scheduled Caste
Department, having issued letter in the year 2003, the
Employment & Technical Education & Training
Department could not have asserted by way of affidavit
sworn to before this Court that what transpired from the
opinion of the Law Department in the year 1998 was
correct view. It is observed that the Letter dated
03.04.2003 was communicated by the Scheduled Tribe
and Scheduled Caste Development Department to all
Departments of the Government of Odisha and all the
Heads of Departments including the OPSC. This is
strong indicator to say that the Government of Odisha
has accepted and propagated that the provisions of
Section 6 of the ORV Act, 1975 are applicable in case of
appointment by promotion.
13.4. It is submitted by the Additional Government Advocate
that the OPSC has not questioned the propriety of the
Order dated 17.02.2012 of the learned Odisha
Administrative Tribunal, Bhubaneswar. From this it is
patent that the OPSC-opposite party No.2 is not
aggrieved by said decision of the learned Tribunal. It is,
thus, obvious that the view circulated by the Scheduled
Tribe and Scheduled Caste Development Department
has been accepted, adapted and followed by all the
Departments including the OPSC.
13.5. Under the above premises, this Court is of the firm
opinion that the Departments of the Government of
Odisha could not take different stand at different times.
All the Departments of the Government of Odisha must
speak in one voice.
13.6. It may be worth referring to certain decisions as regards
the proposition that different Departments of the same
State Government cannot speak in different voices.
A. Shree Sanyeeji Ispat Pvt. Ltd. Vrs. State of Assam,
(2006) 147 STC 146 (Gau):
"86. *** The Government cannot speak in different
voices. As long as the industrial policy remains
what it is and the same is not changed, the
benefits promised thereunder cannot be taken
away by another department of the
Government by taking resort to its statutory
powers. If the granting of sales tax exemption
to the industry set up in the specified area is
not in public interest, nothing stops the
Government from modifying its own industrial
policy and/or withdraw the incentives. When
the State Government does not change its
policy, which it has announced, its Finance
Department cannot, in exercise of its statutory
powers, act in a manner, which would run
contrary to the Government's own policy."
B. Central Warehousing Corporation Vrs. Adani Ports
Special Economic Zone Limited, (2022) 9 SCR 1003:
"32. It is further to be noted that, though the
Ministry of C&I has been taking a stand that
the delineation/ denotification was not
permissible, another Ministry of the Union of
India has been taking a contrary stand.
***
50. Before we part with the judgment, an important
issue has invited our concern. The stands
taken by two ministries of the Union of India
are diagonally opposite to each other. On one
hand, the Ministry of C&I has held that the
delineation/denotification as sought by the
appellant-CWC is not permissible in law as
could be seen from the Minutes of the Meeting
dated 17th January 2017. Not only that, after
the order passed by the High Court, the
appellant-CWC had again applied on 17th
August 2021 for either delineating the area
from APSEZL or, in the alternate, to grant
waiver/exemption to it from complying with the
conditions/obligations applicable to SEZ Units.
However, the specified officer of APSEZL, vide
communication dated 7th September 2021, has
rejected the said prayer on the ground that
there is no provision in the SEZ Act and Rules
which empowers the authority to grant such a
waiver.
51. On the other hand, the Ministry of CAF&PD has
taken a stand that such a delineation/
denotification is permissible in law and has
also stated that there are precedents for doing
so. *** It is also a stand of the Ministry of
CAF&PD that shifting of the warehouses to the
alternate locations would be against the
interest of the appellant-CWC as well as public
revenue.
52. We are of the considered view that it does
not augur well for the Union of India to
speak in two contradictory voices. The two
departments of the Union of India cannot
be permitted to take stands which are
diagonally opposite. We may gainfully refer
to the following observations made by a three-
Judges Bench of this Court in the case of Lloyd
Electric and Engineering Limited Vrs. State of
Himachal Pradesh, (2016) 1 SCC 560:
"14. The State Government cannot speak
in two voices. Once the Cabinet takes a
policy decision to extend its 2004
Industrial Policy in the matter of CST
concession to the eligible units beyond
31.03.2009, up to 31.03.2013, and the
Notification dated 29.05.2009,
accordingly, having been issued by the
Department concerned viz. Department of
Industries, thereafter, the Excise and
Taxation Department cannot take a
different stand. What is given by the right
hand cannot be taken by the left hand.
The Government shall speak only in
one voice. It has only one policy. The
departments are to implement the
government policy and not their own
policy***'
53. We, therefore, impress upon the Union of India
to evolve a mechanism to ensure that whenever
such conflicting stands are taken by different
departments, they should be resolved at the
Governmental level itself.
54. We, therefore, direct the Registry to furnish a
copy of this judgment to the learned Attorney
General for India to use his good offices and do
the needful."
13.7. Two contradictory stands, one that Section 6 of the ORV
Act "is applicable in the case of direct appointment made
to Class-II and above ranks and not in the promotion
matters" vide Letter No.7986/PSC, dated 07.11.1998
(Annexure-3 to the Rejoinder-Affidavit of the petitioner)
cannot co-exist with that of the other as contained in
Letter No.21429/Emp.I (A)- 50/2002/SSD, dated
03.04.2003 to the effect that "provisions of Section 6 of
the ORV Act, 1975 are applicable in case of appointment
by promotions also and exchange of reservation between
Scheduled Caste and Scheduled Tribe in respect of
promotional appointments from Class-III to Class-II
posts, within Class-II posts, from Class-II posts to the
lowest rung of Class-I is permissible".
13.8. As has already been held that Section 6 of the ORV Act
has application to the present context and that Section 7
ibid. does not attract on the facts and in the
circumstances of the case at hand, this Court would,
therefore, prefer to confirm the latter view circulated to
all the Departments of the Government and all the
Heads of Departments including the OPSC. In such view
of the matter, the interpretation put forth by the learned
Odisha Administrative Tribunal, Bhubaneswar suffers
no fallacy.
DECISION AND CONCLUSION:
14. Since the Departmental Promotion Committee in its
Meeting held in 1997 found the Applicant-Amarendra
Mallick eligible and suitable for promotion against
reserved vacancy meant for Scheduled Tribe, as there
was non-availability of Officer belonging to Scheduled
Tribe community, and consequent thereto, he joined in
the post of DEO on 16.07.1997, there is no infirmity in
the conclusion arrived at vide Order dated 17.02.2012
passed by Odisha Administrative Tribunal,
Bhubaneswar in O.A. No.490 of 2000. This Court,
hence, finds the conclusion of the learned Odisha
Administrative Tribunal, Bhubaneswar, that "In the
instant case the Applicant, a Scheduled Caste candidate
has been available and found suitable by the
Departmental Promotion Committee for promotion.
Government accepted the recommendation of
Departmental Promotion Committee and gave the
Applicant promotion on ad hoc basis in accordance with
Section 6 of the Act", is in consonance with the decision
of the Government of Odisha in Scheduled Tribe and
Scheduled Caste Development Department vide Letter
No.21429-Emp.I (A)-50/2002/SSD, dated 03.04.2003
(Annexure-A/1 enclosed to Counter-Affidavit dated
03.02.2014 filed by Amarendra Mallick). Hence, present
circumstance does not warrant interference in said
decision of the Odisha Administrative Tribunal,
Bhubaneswar in exercise of jurisdiction vested on this
Court under Article 227 of the Constitution of India.
15. In view of the discussions made above and for the
reasons stated hitherto, this Court is, therefore, inclined
to uphold the decision of the Odisha Administrative
Tribunal, Bhubaneswar vide Order dated 17.02.2012.
16. As a consequence of the above, since the Applicant-
Amarendra Mallick is dead, he is to be given notional
promotion from the date he joined in the promotional
post of DEO, i.e., 16.07.1997. His seniority is to be
reckoned from the said date of joining with all service
benefits. He is entitled to get pay as is available for the
said post at the relevant point of time. It is clarified that
from the date of his reversion to the post of Junior
Employment Officer, i.e., 16.02.2000 till his death his
pay is to be fixed at notional rate as is applicable for the
post of District Employment Officer. Accordingly,
pecuniary benefit is to be extended to his family-opposite
party Nos.1(a) to 1(c).
17. In the result, the writ petition, sans merit, is dismissed
with the above observations and directions.
18. The parties are left to bear their own costs.
(MURAHARI SRI RAMAN)
JUDGE
DR. B.R. SARANGI, J. I agree.
(DR. B.R. SARANGI)
Signature Not Verified JUDGE
Digitally Signed
Signed by: ASWINI KUMAR SETHY
Designation: PA(SECRETARY-IN-CHARGE)
Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK
Date: 16-Aug-2023 14:57:52
Orissa High Court, Cuttack
The 16th August, 2023, Aswini/MRS
