Orissa High Court
Kothari Biswajit Mekap vs State Of Odisha on 4 December, 2023
Author: Murahari Sri Raman
Bench: Murahari Sri Raman
ORISSA HIGH COURT : CUTTACK
WPC (OAC) No.2424 of 2016
In the matter of an Application under
Articles 226 and 227 of the Constitution of India, 1950
read with
Section 19 of the Administrative Tribunals Act, 1985
***
Kothari Biswajit Mekap
Aged about 39 years
Son of Rama Chandra Mekap
At: Taluchha Sahi, District: Puri
At present working as
Assistant Store Keeper (Demonstrator)
in Physics in Samanta Chandra Sekhar
Autonomous College, Puri ... Petitioner
-VERSUS-
1. State of Odisha
represented through
Commissioner-cum-Secretary
Higher Education Department
Secretariat Building, Lok Seva Bhawan
Bhubaneswar
District: Khordha
2. Principal
Samanta Chandra Sekhar
Autonomous College
At/P.O./District: Puri
3. Director, Higher Education, Odisha
Heads of Departments Building
Bhubaneswar
District: Khordha ... Opposite parties
Counsel appeared for the parties:
WPC (OAC) No.2424 of 2016 Page 1 of 42
For the Petitioner : M/s. S. Das, S. Jena, S.K. Samal,
Satya Prakash Nath,
Subhadutta Routray, Advocates
For the Opposite parties : Mr. Sachidananda Nayak,
Additional Standing Counsel for
opposite party Nos.1 and 3
P R E S E N T:
THE HONOURABLE MR. JUSTICE MURAHARI SRI RAMAN
Date of Hearing : 28.11.2023 :: Date of Judgment : 04.12.2023
J UD G M E N T
MURAHARI SRI RAMAN, J.--
THE CHALLENGE:
Assailing Office Order No.17952-6C-11-2011-II, dated
12.05.2016 issued by the Deputy Director (GCB) by
Order of Director of Higher Education (Odisha),
Annexure-6), whereby in compliance of direction vide
Order dated 02.02.2016 passed in Original Application
being O.A. No.510 (C) of 2009 by the Odisha
Administrative Tribunal, Cuttack Bench, Cuttack, the
Director of Higher Education (Odisha) rejected the prayer
for regularisation of service against the post of
Demonstrator, the petitioner, Assistant Store Keeper,
preferred to invoke provisions of Section 19 of the
Administrative Tribunals Act, 1985, by way of Original
Application (registered as O.A. No.2424 (C) of 2016).
WPC (OAC) No.2424 of 2016 Page 2 of 42
1.1. The Odisha Administrative Tribunal, Cuttack Bench,
Cuttack, passed the following Order on 26.07.2016:
"Heard Mr. S.D. Routray, learned counsel for the
applicant and Mr. M.K. Balabantaray, learned Standing
Counsel.
Issue notice on admission.
Counter be filed within four weeks. Rejoinder, if any, be
filed within two weeks thereafter."
1.2. While the matter was thus pending, Order No.17904-
HE-FE-III-CASE-22/2016, dated 12.07.2017 came to be
issued by the Additional Secretary by Order of Additional
Chief Secretary to Government of Odisha in Department
of Higher Education (Annexure-11) stated to be in
compliance of direction vide Order dated 02.02.2016
passed in Original Application being O.A. No.510 (C) of
2009 by the Odisha Administrative Tribunal, Cuttack
Bench, Cuttack, whereby the claim of the petitioner
stood rejected citing reason that the base level post like
Demonstrator cannot be filled up by way of promotion,
inasmuch as he draws regular salary working as
Assistant Store Keeper in Physics in the Samanta
Chandra Sekhar Autonomous College, Puri.
1.3. On account of such subsequent event during the
pendency of the Original Application, in consideration of
M.P. No.836 (C) of 2017 filed at the instance of the
petitioner, said Tribunal allowed amendment of O.A.
No.2424 (C) of 2016 vide Order dated 08.02.2018.
Accordingly, consolidated Original Application has been
WPC (OAC) No.2424 of 2016 Page 3 of 42
filed by the petitioner questioning legality of not only
Order dated 12.07.2017 of the Additional Chief
Secretary, Government of Odisha in the Department of
Higher Education (Annexure-11) but also Order dated
12.05.2016 of Director of Higher Education, Odisha
(Annexure-6) with prayer for grant of following relief(s):
"In view of the facts stated above, the applicant prays
that this Hon'ble Tribunal may graciously be pleased to
Admit the Original Application; call for the record, and
after hearing the parties be pleased to
Quash the impugned Order dated 12.05.2016 under
Annexure-6
And
Further direct the respondent No.2 to regularise the
services of the applicant against the promotional post of
Demonstrator in Physics with effect from 20.11.2003
And
The respondents be directed to extend all service benefits
including the differential salary in favour of the applicant
with a reasonable time to be stipulated by this Hon'ble
Tribunal
And to quash the Order dated 12.07.2017 passed by the
respondent No.1 under Annexure-11."
1.4. After abolition of the Odisha Administrative Tribunal by
virtue of Ministry of Personnel, Public Grievances and
Pensions (Department of Personnel and Training)
Notification F. No. A-11014/10/2015-AT [G.S.R.552(E)],
dated 2nd August, 2019), the said case having been
WPC (OAC) No.2424 of 2016 Page 4 of 42
transferred to this Court, O.A. No. 2424 (C) of 2016 has
been re-registered as WPC (OAC) No.2424 of 2016.
PLEADINGS:
2. The Samanta Chandra Sekhar College, Puri,
autonomous Government College, consists of two
separate units, i.e., Samanta Chandra Sekhar Junior
College and Samanta Chandra Sekhar Degree College.
3. As claimed in the petition, the petitioner-Kothari Biswajit
Mekap, having qualified Bachelor of Science with
Physics (Honours) as one of the subjects in graduation
level in 1st Class, faced interview for the post of Assistant
Store Keeper and being selected he was directed to join
by Office Order vide Memo No.1478, dated 05.04.1999
issued by the Principal of Samanta Chandra Sekhar
College, Puri, inter alia with the following terms:
"Office of the Principal
Samanta Chandra Sekhar College : Puri
OFFICE ORDER
No. ______, Dated, Puri the 4 th April, 1999
Sri Kothari Biswajit Mekap, Village: Taluchhasahi, Near
Harchandisahi, P.O./District Puri, is hereby appointed
Assistant Store Keeper in Physics in the scale of pay
Rs.4000/- - Rs.100/- - Rs.6000/- with admissible D.A.
etc. against the vacancy caused due to promotion of Sri
B.K. Das.
The appointment is purely on temporary basis and on
probation for period of 02 (two) yours from the date of
joining the post and subject to approval of the promotion
WPC (OAC) No.2424 of 2016 Page 5 of 42
of Sri Das and liable for termination at any time without
assigning any reason thereof. He is required to join the
post within seven days from the date of issue of this order
failing which this order shall stand cancelled.
Further he is directed to submit the following documents
in original at the time of joining the post:
****
Principal
SCS College, Puri
Memo No. 1478 / Dt. 05.04.1999
Copy to Person concerned/H.O.D, Physics, Deptt., Vice-
Principal/ Adm. Bursar/Accounts Bursar/Head Clerk/
Accountant/Bill Clerk (C&D)/ for Information and
necessary action.
Principal
SCS College, Puri"
4. Having joined in Samanta Chandra Sekhar College, Puri,
while working as Assistant Store Keeper, as the post of
"Demonstrator" fell vacant due to superannuation of Sri
R.N. Dash, Demonstrator and Sri J. Sahoo,
Demonstrator, was seriously ill, the following Letter was
issued by the Head of the Department, Physics:
"Department of Physics
Samanta Chandra Sekhar (A) College : Puri
PD No. 38, Dt. 20.11.2003
To
Sri Kothari Biswajit Mekap, B.Sc. (H)
Assistant Store Keeper, Department of Physics
WPC (OAC) No.2424 of 2016 Page 6 of 42
By verbal order of the Principal you are directed to
work as Demonstrtor in Physics Laboratories (i.e.,
now henceforth in +2 Lab) since J. Sahoo,
Demonstrator is seriously ill, and Sri R.N. Dash,
Demonstrator had already retired from Government
service from 30.09.2003. Further the workload in +2
applied electronics laboratory was enhanced as the
students strength in the laboratory increased to 64.
Due to short of hand in addition to your normal
duties you act as a Demonstrator in physics
department till further order.
Sd/- 18.11.2003
(Prafull Kumar Mishra)
Head of the Department,
Physics
SCS (A) College, Puri"
5. In obedience to such direction, the petitioner has been
working in the post of Demonstrator, which is a
promotional post, since 2003. Since his case was not
taken up for regularisation in the post of Demonstrator,
a non-teaching post, even though he has been working
in the said post by order dated 18.11.2003 of the Head
of Department of Physics, he approached the learned
Odisha Administrative Tribunal, Cuttack Bench, Cuttack
in O.A. No. 510 (C) of 2009, with a prayer for direction to
regularise his service against the post of Demonstrator
as also to extend service benefits with effect from
20.11.2003. Said Tribunal disposed of the
aforementioned Original Application by passing the
following Order on 02.02.2016:
WPC (OAC) No.2424 of 2016 Page 7 of 42
"02.02.2016.
Heard learned Senior Counsel for the Applicant, Mr. B.
Routray and learned Additional Standing Counsel Mr.
H.N. Panigrahi.
The case of the applicant is that one B.K. Dash while
holding the post of Assistant Store keeper (non-teaching
post) got promotion to the post of Demonstrator in the
Department of Chemistry in Samanta Chandra Sekhar
College, Puri. Due to said promotion, the post of Assistant
Store Keeper in Physics lying vacant and the applicant
having B.Sc. in Physics selected for the said post as per
the order dated 05.04.1999. It is submitted that the
eligible qualification for the post of Assistant Store Keeper
and Demonstrator are same i.e. B.A./B.Sc. in the
concerned subject, both the posts carries different scale of
pay. Due to retirement of one R.N. Das on 30.09.2003, a
post of demonstrator in physic Department is lying vacant
since then. The applicant who is having sufficient
experience was directed to discharge the duty of
Demonstrator in Physics since 20.11.2003. Since that
date though the applicant is discharging his duty as
demonstrator, but his case has not been considered for
regular promotion to that post by the Respondent No.2. It
is submitted that in the past the non-teaching staffs
namely Sri B.K. Das and Prasanta Kumar Mohanty, were
promoted to the post of Demonstrator Physics and
Chemistry respectively. So, it is prayed to direct the
Respondent No.2 to regularize the service of the applicant
against the promotional post of Demonstrator in Physics
with effect from 20.11.2003 and grant all consequential
financial and service benefit be granted in his favour.
Learned Addl. Standing Counsel submitted that due to the
difficulties experienced due to prolong illness of one
Demonstrator J. Sahoo and retirement of R.N. Dash,
Demonstrator and to safeguard the interest of +2 Science
WPC (OAC) No.2424 of 2016 Page 8 of 42
students, an internal arrangement was made by
assigning the work of Demonstrator to the applicant in
addition to his normal duties. He was directed to manage
the Laboratory work in +2 Science of Physics Laboratory.
Further, he submitted that the post of Demonstrator has
already been declared as Dying Cadre vide G.O. No.
27846/HE dated 19.07.2004 and Govt. of Orissa have
directed that 'No recruitment shall be made in the
consequential vacancies of the post of Demonstrator'
(Annexure-A). Hence, it is prayed to dismiss the O.A.
Learned counsel for the applicant submitted that the
applicant having 1st class student in B.Sc. (Chemistry
Honours), he performed the duty of demonstrator properly
which fact is also admitted by the respondents in their
counter. So, the case of the applicant be considered as he
is discharging the duty since 2003.
Considering above submissions, we noticed that though
the applicant had been appointed against a post of
Assistant Store Keeper, but his services are being utilized
by keeping him in charge of the post of Demonstrator
since 2003. It is also admitted that his work is
appreciated by the authority. However, his case was not
considered due to the fact that the post of Demonstrator
has been declared as dying cadre. Further, there is no
recruitment rule in respect of the post of demonstrator and
there are examples that persons in non-teaching cadre
were promoted to the post of demonstrator. So, while
disposing of the O.A. we direct the respondents to
consider the case of the applicant for his promotion to the
post of demonstrator in Physics, if he is otherwise eligible
within a period of three months from the date of receipt of
a copy of this order keeping in view the fact that he has
been discharging the duty of a demonstrator since 2003
sincerely.
Send copies."
WPC (OAC) No.2424 of 2016 Page 9 of 42
6. In compliance thereto, the Director of Higher Education
(Odisha) passed the following Order:
"Office of the Director of Higher Education, Odisha,
Bhubaneswar
Office Order No.17952-6C-11-2011-II, dated 12.05.2016
Hon'ble Odisha Administrative Tribunal, Cuttack Bench,
Cuttack vide their Order dared 02.02.2016 have passed
the following direction in O.A. No. 510(C)/2009 filed by
Sri Kothari Biswajit Mekap:
'While disposing of the O.A. we direct the respondents to
consider the case of the applicant for his promotion to the
post of Demonstrator in Physics, if he is otherwise eligible
within a period of three months from the date of receipt of
a copy of this order keeping in view the fact that he has
been discharging the duty of a Demonstrator since 2003
sincerely."
The petitioner Sri Kothari Biswajit Mekap was initially
appointed as Assistant Storekeeper on 04.04.2009 and
continued as such upto 20.11.2003. On 20.11.2003 he
was directed to work as Demonstrator in Physics. Since
20.11.2003 he was working as Demonstrator in Physics
and filed this O.A. No. 510(C)/2009 seeking relief to
regularize his services against the post of Demonstrator.
In this connection, it is stated that there is no post of
Demonstrator existing in Govt. Colleges since the post has
been declared as dying cadre vide G.O. No. 27846/HE,
dated 19.07.2004. Besides the post of Demonstrator is a
base level post and is not a promotional post of Assistant
Store Keeper.
Hence, the prayer of the applicant has no merit for
consideration and is hereby rejected.
WPC (OAC) No.2424 of 2016 Page 10 of 42
The order dated 02.02.2016 passed by the Hon'ble
O.A.T., Cuttack in O.A. No. 510/C)/2009 is complied.
By Order of D.H.E.
Deputy Director, (GCB)"
7. The Additional Chief Secretary, Government of Odisha in
Department of Higher Education, has passed the
following Order:
"Government of Odisha
Department of Higher Education
ORDER
Bhubaneswar dated the 12.07.2017
No. 17904-HE-FE-III-CASE-22/2016-- Whereas the
Hon'ble Odisha Administrative Tribunal, Cuttack
Bench, Cuttack vide order dated 02.2.2016 in O.A
No.510(C)/2009 has disposed of the O.A, with the
following order:
'While disposing of the O.A. we direct the
respondents to consider the case of the applicant for
his promotion to the post of demonstrator in Physics,
if he is otherwise eligible within a period of three
months from the date of receipt of a copy of this
order keeping in view the fact that he has been
discharging the duty of a Demonstrator since 2003
sincerely.'
2. Whereas, the applicant in the O.A. has prayed
before the Hon'ble Tribunal for a direction to the
respondent No.1 to (i) quash the order dated
12.05.2016 (ii) to regularise the services of the
applicant against the promotional post of
Demonstrator in Physics with effect from 20.11.2003
(iii) to extend all service benefits including the
differential salary in favour of the applicant.
3. Whereas, the Hon'ble OAT vide order dated
02.02.2016 in the aforesaid O.A. has directed to
pass appropriate orders on its own merit on the
representation of the applicant.
4. Whereas, the applicant is working as Assistant Store
Keeper, Physics at S.C.S. College, Puri and also was
allowed to discharge the duty of Demonstrator in
Physics in the said College.
5. Whereas, the post of Demonstrator has been
declared as a 'Dying Cadre' vide G.O.
No.27846/HE, dated 19.07.2004.
6. Whereas, the post of Demonstrator is a base level
post for which the same cannot be filled up by way
of promotion. While the Applicant is working as a
Assistant Store Keeper in Physics in the College
concerned and drawing his regular salary in the
Assistant Store Keeper and there lies no promotional
avenue to promote the applicant to regularise him
against the post of Demonstrator in Physics in the
College is not based on any legal right that has
accrued to him by the strength of any law or rules or
Government policy guidelines.
In view of the above facts, on perusal of relevant
records, the representation of the applicant is hereby
rejected.
All concerned may be informed accordingly.
By Orders of
Additional Chief Secretary
to Government
Sd/- 12.07.2017
Additional Secretary to Government"
8. Being aggrieved by the aforesaid Order dated 12.05.2016
and Order dated 12.07.2017, the petitioner has filed the
instant Original Application which is converted to Writ
Petition.
9. By way of counter affidavit dated 21.02.2013 sworn to
by the Joint Secretary to Government, Higher Education
Department, Odisha, filed on behalf of the opposite party
Nos.1 and 3, objection has been raised against the
averments and contents of Writ Petition by contending
that "to safeguard the academic interest of the +2
Science Students, the Head of Department of Physics
made some internal arrangement within the Department
by assigning the work of Demonstrator to the petitioner
in addition to his normal duty for smooth conduct of
Laboratory works by issuing a Letter No.38, dated
20.11.2003".
9.1. At paragraph 8 it has been asserted by the opposite
parties that "acquiring a minimum qualification does not
entitle the petitioner as a matter of right to claim
promotion to the post of Demonstrator. Further, the
promotion to any higher post of a Government employee
is not a matter of right if there is no vacancy".
9.2. Enclosing the following document the opposite party
Nos.1 and 3 submitted that the Government has ample
power to declare a post under administrative control of
State as "dying post":
"Government of Odisha
Department of Higher Education
No.27846-III-HE-M-75/2001/HE dated 19.07.2004
From
Sri G.Mahananda, O.A.S.-I (S.B.)
Deputy Secretary to Government.
To
The Director, Higher Education, Odisha
Bhubaneswar.
Sub.: Declaring the post of DEMONSTRATOR of Government
Colleges as "DYING".
Sir,
I am directed to say that the question of declaring,
the post of DEMONSTRATOR as DYING as per U.G.C.
Guideline was under active consideration of
Government for some time past.
After careful consideration, Government have been
pleased to declare the post of demonstrators of
Government Colleges as 'DYING'.
The relevant post of DEMONSTRATORS will stand
abolished with effect from the date such post would
be vacant due to retirement/death/resignation/
transfer to other cadre etc. No recruitment shall be
made in the consequential vacancies of the post of
DEMONSTRATORS.
This has been concurred in by the Finance
Department U.O.R. No.1980/PSF., dated 24.6.2004.
Yours faithfully,
Deputy Secretary
to Government"
9.3. With reference to said Letter of the Government, it is
submitted that the petitioner has been receiving salary
meant for Assistant Store Keeper, and merely because of
internal arrangement, if he is entrusted with the work of
Demonstrator having requisite qualification, that would,
ipso facto, not entitle him to claim for regularization in
the said post, which has been declared as "dying".
9.4. In furtherance of the above submission, it is stated that
since by virtue of aforesaid Letter dated 19.07.2004, "the
post of Demonstrator in the Government colleges stand
abolished with effect from the date such posts fall vacant
due to retirement/death/resignation/transfer to other
cadre, etc.", the petitioner cannot be said to have legal
right for regularization in the post of Demonstrator.
9.5. The opposite party Nos.1 and 3 have objected to allow
the petitioner the relief claimed to be considered for the
post of "Demonstrator".
HEARING OF WRIT PETITION BEFORE THIS COURT:
10. On the pleadings being exchanged among counsel for
respective parties, on their consent, the matter is taken
up for final hearing at the stage of admission. This Court
heard Sri Subhadutta Routray, learned Advocate for the
petitioner and Sri Sachidananda Nayak, learned
Additional Standing Counsel appearing on behalf of the
opposite party Nos. 1 and 3. None appeared for the
opposite party No.2-Principal, Samanta Chandra Sekhar
Autonomous College, Puri.
SUBMISSIONS AND ARGUMENTS OF RESPECTIVE PARTIES:
11. Sri Subhadutta Routray, learned Advocate submitted
that the petitioner, while working as Assistant Store
Keeper, was directed to work in the post of
"Demonstrator", which fell vacant on account of
retirement of Sri R.N. Dash on attaining age of
superannuation. As is apparent from the Letter dated
20.11.2003 of the Head of Department of Physics,
workload in +2 Science Laboratory has been enhanced
with the increase in the strength of students. Therefore,
the petitioner has been working in the post of
"Demonstrator" since 2003 till date without any blemish.
The opposite parties failed to take cognizance of such
fact and on flimsy ground that the post of Demonstrator
being declared as "dying cadre" by virtue of Department
of Higher Education Letter dated 19.07.2004, vide Order
dated 12.07.2017 (Annexure-11), the Additional Chief
Secretary and Order dated 12.05.2016 the Director of
Higher Education have rejected the claim for
consideration of regularization of the petitioner in the
post of "Demonstrator". It is vehemently argued by the
learned Counsel that the opposite party Nos.1 and 3-
authorities have misdirected themselves.
11.1. Drawing parity, Sri Subhadutta Routray, learned
Counsel submitted that even after declaration of the post
of "Demonstrator" as dying cadre, it is the same
Government of Odisha in Higher Education Department
considered cases of Sri Bijay Kumar Das, Assistant Store
Keeper in Physics to the post of Demonstrator in
Chemistry in Samanta Chandra Sekhar College in the
scale of pay of Rs.5000/- -Rs.150/- - Rs.8000/-, with
effect from 31.01.1999, vide Letter No.27010-4A-81-
02/II, dated 07.06.2005 of the Director of Higher
Education, Bhubaneswar in consideration of Letter
No.32530, dated 12.07.2004 of the Principal, Samanta
Chandra Sekhar (A) College, Puri and Akshaya Kumar
Nayak, Compounding Assistant, Bhadrak (A) College,
Bhadrak vide Government of Odisha in Department of
Higher Education Letter No.839-III-HE-M-13/2009,
dated 08.01.2010.
11.2. Sri Subhadutta Routray, learned Advocate vehemently
argued that while considering the case of the petitioner,
he has been discriminated against similarly situated
persons who were promoted to the post of Demonstrator
even after Department of Higher Education Letter dated
19.07.2004. Therefore, he has urged that equal
protection is required to be extended to the petitioner as
the action of the opposite party Nos.1 and 3 fell foul of
Article 14 read with Article 16 of the Constitution of
India.
12. Strongly opposing the contentions and the arguments of
the counsel for the petitioner, Sri Sachidananda Nayak,
Additional Standing Counsel argued that since the post
of Assistant Store Keeper and the post of Demonstrator
have same pay scale and base level post, there is
justification in acceding to the claim of the petitioner to
regularize in the post of Demonstrator. He further
submitted that the cases of other persons namely Sri
Bijay Kumar Das and Sri Akshaya Kumar Nayak are
distinguishable on facts inasmuch as their cases were
under consideration much prior to issue of Department
of Higher Education Letter dated 19.07.2004 declaring
the post of Demonstrator as "dying" cadre. Therefore, the
petitioner cannot be extended the same benefit claiming
parity.
13. Sri Subhadutta Routray, learned Advocate for the
petitioner counter attacked by placing reliance on
Mohinder Singh Gill Vrs. Chief Election Commissioner, AIR
1978 SC 851 and submitted that the opposite party
Nos.1 and 3 cannot, at this juncture, take a different
stance inasmuch as sole ground on which the petitioner
was denied the asked relief is that the post of
Demonstrator was declared as "dying" cadre since
19.07.2004. So, the opposite party Nos.1 and 3 cannot
now turnaround to say that the case of the petitioner is
not akin to that of Sri Bijay Kumar Das and Sri Akshaya
Kumar Nayak. Essentially, Sri Subhadutta Routray
contended that the authorities-opposite parties cannot
supplement reasons by way of counter affidavit.
DISCUSSIONS AND ANALYSIS:
14. From the pleadings and respective arguments, essential
facts remain uncontroverted is that having requisite
qualification for the post of Demonstrator, even though
appointed to work as the Assistant Store Keeper vide
Letter No.04.04.1999 (Annexure-1), the petitioner was
directed to attend to duties of the Demonstrator against
the post which fell vacant on account of retirement of Sri
R.N. Dash by virtue of Letter dated 20.11.2003
(Annexure-2).
14.1. Perusal of record shows the following fact:
In Office Order vide Memo No.1413, dated, Puri, 31st
March, 1999, Sri Bijay Kumar Das, Assistant Store
Keeper in Physics of Samanta Chandra Sekhar College,
Puri is stated to have been "promoted to the post of
Demonstrator in Chemistry in the scale of pay Rs.5000/-
- Rs.150/- - Rs.8000/- with immediate effect from
31.03.1999 against the vacancy caused due to
retirement of Sri S.N. Mishra until further orders".
Direction was issued by the Deputy Director (GCB) from
the Office of the Director of Higher Education, Odisha,
Bhubaneswar, vide Letter dated 07.06.2005 as follows:
"Office of the Director of Higher Education
Odisha : Bhubaneswar
No.27010-4A-81-02/II, dated 07.06.2005
To
The Principal, SCS (A) College, Puri
Sub.: Grant of promotional benefits and sanction of
periodical increment in favour of the promotee of
1999.
Ref.: Your Letter No.32530, dated 12.07.2004
Sir,
With reference to your letter cited above, I am
directed to state that the Director, Higher Education,
Odisha has been pleased to approve the
promotion of the following employees of your
College with permission to sanction periodical
increments in favour of them:
1. Sri Bijay Kumar Das, Demonstrator;
2. Sri Madan Mohan Jena, Glass Blower;
3. Sri Gangadhar Mohapatra, Laboratory Attendant;
4. Smt. Sukanti Mishra, Laboratory Attendant;
5. Sri Madhab Nayak, Laboratory Attendant.
Yours faithfully,
Deputy Director
(GCB)"
14.2. The Order dated 12.07.2017 (Annexure-11) at paragraph
No.5 it is clearly admitted by the Government of Odisha
in Department of Higher Education that "the post of
Demonstrator has been declared as 'Dying Cadre' vide
G.O. No.27846/HE, dated 19.07.2004".
14.3. Annexure-1 which is appointment Letter dated
04.04.1999 of the petitioner shows that scale of pay of
the petitioner would be Rs.4000/- - Rs.100/- -
Rs.6000/-, whereas in the Office Order vide Memo
No.1413, dated, Puri, 31st March, 1999, qua Sri Bijay
Kumar Das, stated to have been promoted to the post of
Demonstrator is allowed to draw salary at the scale of
pay of Rs.5000/- - Rs.150/- - Rs.8000/-.
14.4. From the above documents it is clearly transpired that
the Government of Odisha have recognized position of
Demonstrator as a promotional post. Therefore, the
reason ascribed in Order dated 12.05.2016 passed by
the Director of Higher Education available at Annexure-6
to the effect that "the post of Demonstrator is a base
level post and is not a promotional post of Assistant
Store Keeper" has no sanctity and is not tenable.
14.5. In this connection it is not inept to have discussion with
regard to conceptual understanding of promotion vis-à-
vis upgradation as discussed in Bharat Sanchar Nigam
Limited Vrs. R. Santhakumari Velusamy, (2011) 9 SCC
510, which sets out the principles as under:
"29. On a careful analysis of the principles relating to
promotion and upgradation in the light of the
aforesaid decisions, the following principles emerge:
(i) Promotion is an advancement in rank or grade
or both and is a step towards advancement to
a higher position, grade or honour and dignity.
Though in the traditional sense promotion
refers to advancement to a higher post, in its
wider sense, promotion may include an
advancement to a higher pay scale without
moving to a different post. But the mere fact
that both-- that is, advancement to a higher
position and advancement to a higher pay
scale-- are described by the common term
"promotion", does not mean that they are the
same. The two types of promotion are distinct
and have different connotations and
consequences.
(ii) Upgradation merely confers a financial benefit
by raising the scale of pay of the post without
there being movement from a lower position to
a higher position. In an upgradation, the
candidate continues to hold the same post
without any change in the duties and
responsibilities but merely gets a higher pay
scale.
(iii) Therefore, when there is an advancement to a
higher pay scale without change of post, it may
be referred to as upgradation or promotion to a
higher pay scale. But there is still difference
between the two. Where the advancement to a
higher pay scale without change of post is
available to everyone who satisfies the
eligibility conditions, without undergoing any
process of selection, it will be upgradation. But
if the advancement to a higher pay scale
without change of post is as a result of some
process which has elements of selection, then it
will be a promotion to a higher pay scale. In
other words, upgradation by application of a
process of selection, as contrasted from an
upgradation simpliciter can be said to be a
promotion in its wider sense, that is,
advancement to a higher pay scale.
(iv) Generally, upgradation relates to and applies
to all positions in a category, who have
completed a minimum period of service.
Upgradation can also be restricted to a
percentage of posts in a cadre with reference to
seniority (instead of being made available to all
employees in the category) and it will still be
an upgradation simpliciter. But if there is a
process of selection or consideration of
comparative merit or suitability for granting the
upgradation or benefit of advancement to a
higher pay scale, it will be a promotion. A mere
screening to eliminate such employees whose
service records may contain adverse entries or
who might have suffered punishment, may not
amount to a process of selection leading to
promotion and the elimination may still be a
part of the process of upgradation simpliciter.
Where the upgradation involves a process of
selection criteria similar to those applicable to
promotion, then it will, in effect, be a promotion,
though termed as upgradation.
(v) Where the process is an upgradation
simpliciter, there is no need to apply the rules
of reservation. But where the upgradation
involves a selection process and is therefore a
promotion, the rules of reservation will apply.
(vi) Where there is a restructuring of some cadres
resulting in creation of additional posts and
filling of those vacancies by those who satisfy
the conditions of eligibility which includes a
minimum period of service, will attract the rules
of reservation. On the other hand, where the
restructuring of posts does not involve creation
of additional posts but merely results in some
of the existing posts being placed in a higher
grade to provide relief against stagnation, the
said process does not invite reservation."
14.6. See also Rama Nand Vrs. Chief Secretary, Government of
NCT of Delhi, (2020) 6 SCR 19.
14.7. When the term "promotion" is conceived in its wider
sense as advancement to a higher pay scale, in the
instant case the petitioner having been directed to work
in the higher post bearing higher pay scale,
Demonstrator post can be construed as promotional
post. Thus denial of the opposite parties that post of
Demonstrator is not promotional one is a myth.
15. Reading of Order dated 12.05.2016 passed by the
Director of Higher Education available at Annexure-6
reveals that the claim of the petitioner has been rejected
by assigning reason that "there is no post of
Demonstrator existing in Government Colleges, since the
post has been declared as dying cadre vide G.O.
No.27846/HE, dated 19.07.2004". Going through the
Order dated 12.07.2017 of the Additional Chief Secretary
to Government of Odisha, Department of Higher
Education, it is ex facie manifest that the reason for
rejection of the representation of the petitioner was that
since the petitioner has been drawing salary of Assistant
Store Keeper and the post of Demonstrator, being a base
level post, cannot be filled up by way of promotion.
15.1. Such a reason is again contrary to own decision of the
Government. Office Order dated 31.03.1999 vide
Annexure-4, wherein Sri Bijaya Kumar Das, an
Assistant Store Keeper, is shown to have been "promoted
to the post of Demonstrator in Chemistry" in Samanta
Chandra Sekhar College. The Letter dated 07.06.2005 at
Annexure-8, issued by the Director of Higher Education,
clearly acknowledged that the case of Sri Bijaya Kumar
Das was approved for "promotion" to the post of
Demonstrator. Mere asserting in the counter affidavit
that "relevant proposal was under process much before
the post Demonstrator was declared dying" would not
suffice, for the Government being aware of such post has
already been declared dying cadre, approved the post
recognizing as promotional post. In such view of the
matter, when it is fact on record and not disputed by the
opposite party Nos.1 and 3 that the petitioner has been
working in the post of "Demonstrator" since 20.11.2003
(Annexure-2) by virtue of direction of the Head of the
Department of Physics on the instruction of the Principal
of the Samanta Chandra Sekhar College, Puri, the action
of the opposite parties is violative of Article 14 and
Article 16 of the Constitution of India.
15.2. It is noteworthy that even much after 19.07.2004, i.e.,
the date on which the Government of Odisha through
G.O. No.17846 claims to have declared post of
Demonstrator as "dying cadre", the case of Sri Bijaya
Kumar Das, Assistant Store Keeper was considered and
he was allowed to draw salary meant for the post of
Demonstrator.
15.3. This Court is taken by the counsel for the petitioner to
demonstrate that the Joint Secretary to Government had
issued a Letter wherein the representation of one Sri
Akshaya Kumar Nayak, Compounding Assistant, was
duly considered for promotion to the post of
"Demonstrator" vide Office Order No.839-III-HE-M-
13/2009/HE, dated 08.01.2010. Relevant portion of the
decision of the Joint Secretary to Government of Odisha
in the Department of Higher Education, as found place
in the said Office Order is reproduced hereunder:
"*** It does not require any vacancy to be filled up in the
cadre of Demonstrator (Non-teaching) in the Department of
Chemistry of Bhadrak (A) College. Being the appointing
authority, the Principal of the said College directed
Sri Nayak vide his Office Order No.2709, dated
07.05.2002, to perform the duty of Demonstrator in
the +2 Laboratory in addition to his normal duty as
Compounding Assistant. Although the Principal of the
College assigned Sri Nayak the duty of Demonstrator with
effect from 07.05.2002 no action seems to have been
taken by Director on the representation of Sri Nayak
forwarded by the Principal, Bhadrak (A) College till date.
As noticed from the report of the Principal, Bhadrak (A)
College, three posts were lying vacant as on 31.03.2002
out of the sanctioned seven posts of Demonstrators in the
Department of Chemistry.
Although the post of Demonstrator was declared by
the Government on 19.07.2004 as dying and no
recruitment for the consequential vacancies in the
post of Demonstrator was being made from
19.07.2004, the cut-off date. But certainly there is
no harm in promoting Sri Nayak to the post of
Demonstrator from 07.05.2002, the date from
which he has been functioning as Demonstrator
being assigned by the Principal, Bhadrak (A)
College, the appointing authority. Had he been given
promotion duly by the Principal with the approval of
Director, Higher Education, he could be now availing
benefit of salary of Demonstrator from 07.05.2002 till
date if not earlier. The Principal being the appointing
authority for such Class-III post, he should do so now by
promoting Sri Nayak from 07.05.2002 with approval of
the Director, Higher Education as Sri Nayak is functioning
as Demonstrator (Non-Teaching) in the scale of Rs.1090-
1950 and subsequently Rs.1400/- - Rs.2300/- as per
ORSP Rules, 1989. ***"
15.4. Invidious distinction is sought to be drawn by the
opposite party Nos.1 to 3 to make Akshaya Kumar
Nayak's case not applicable to the present facts and
circumstances. In the opinion of this Court such a
distinction is inapt inasmuch as in the instant case the
petitioner was instructed to work as Demonstrator by
virtue of Letter dated 20.11.2003 (Annexure-2), which is
much prior to Letter dated 19.07.2004 (Annexure-A/1)
declaring the post of Demonstration as "dying". In the
case of Sri Akshaya Kumar Nayak also, his case was
considered for promotion to the post of "Demonstrator"
on the basis of fact that he was directed to function as
"Demonstrator" in addition to his usual duty as
"Compounding Assistant". Both the cases of Sri Akshaya
Kumar Nayak and the instant petitioner have similarity,
as such the petitioner's case has been disposed of by
Order dated 12.07.2017 (Annexure-11) and Order dated
12.05.2016 (Annexure-6) without due acknowledgement
of similarity with the cases of Sri Bijaya Kumar Das and
Sri Akshaya Kumar Nayak. It is also noteworthy that the
Director of Higher Education and the Additional Chief
Secretary in their respective Orders in Annexures-6 and
11 have not taken care of the direction of the learned
Odisha Administrative Tribunal contained in Order
dated 02.02.2016 passed in O.A. No.510 (C) of 2009. In
the said Order, the learned Tribunal has made the
following observation:
"*** It is submitted that in the past the Non-Teaching staff
namely Sri B.K. Das and Prasanta Kumar Mohanty, were
promoted to the post of Demonstrator Physics and
Chemistry respectively. So, it is prayed to direct the
Respondent No.2 to regularize the service of the applicant
against the promotional post of Demonstrator in Physics
with effect from 20.11.2003 and grant all consequential
financial and service benefit be granted in his favour. ***"
15.5. Reading of said Order of the learned Odisha
Administrative Tribunal clearly indicates that
considering such submissions, the Tribunal was of the
view that though the petitioner was appointed against a
post of Assistant Store Keeper in the year 1999, his
services has been utilized by keeping him in charge of
the post of Demonstrator since 2003. It recorded as a
matter of fact that it is admitted that his work is
appreciated by the authority. The learned Tribunal
further noted that the case of the petitioner was not
considered due to the fact that the post of Demonstrator
has been declared as dying cadre; there was no
recruitment rule in respect of the post of demonstrator;
and there were examples that persons in Non-Teaching
cadre were promoted to the post of Demonstrator.
15.6. Even such factors are taken note of in the Order, while
disposing of the aforesaid O.A. on 02.02.2016, the
Odisha Administrative Tribunal directed the opposite
parties to consider the case of the petitioner for his
promotion to the post of "Demonstrator in Physics", if he
is otherwise eligible. It is also directed that while
considering the case of the petitioner, the opposite
parties were required to keep in view the fact that he has
been discharging the duty of a Demonstrator since 2003
sincerely.
15.7. Nevertheless, it is observed from impugned Orders in
Annexures-6 and 11 that the opposite party Nos.1 and 3
have not taken into consideration the aspects which
were directed to be kept in view. Both the authorities
have proceeded to dispose of claim of the petitioner on
the premise that the post of Demonstrator is "dying
cadre" and said base level post cannot be filled up by
way of promotion. Further ground as noted by the
opposite party No.3 shows that he has taken into
consideration the fact that the post of Demonstrator
does not exist in the Government College. Such facts
having been noted down by the learned Odisha
Administrative Tribunal vide Order dated 02.02.2016
passed in O.A. No.510 (C) of 2009 on earlier occasion in
the case of the instant petitioner, yet it directed the
authorities to consider the case of the petitioner. This
apparently leads to understand that the authorities were
to consider that similarly circumstanced employees were
promoted to the post of Demonstrator, and they were
also required to take into account long period of
functioning of the petitioner in the post of Demonstrator
without any blemish. It seems the direction of the
learned Odisha Administrative Tribunal while disposing
of aforesaid Original Application on earlier occasion has
not been appropriately comprehended while passing the
Order dated 12.05.2016 by the Director, Higher
Education (Odisha) vide Annexure-6 and the Order
dated 12.07.2017 by the Additional Chief Secretary to
Government of Odisha, Higher Education Department
(Annexure-11).
15.8. Hence, it can safely be said that both the Orders in
Annexure-6 and Annexure-11 are vulnerable and cannot
be countenanced. Needless to observe that both the
orders have been passed without taking into
consideration the purport of directions contained in the
Order dated 02.02.2016 passed in O.A. No.510 (C) of
2009 in proper perspective.
16. It is noteworthy to have reference to Raman Kumar Vrs.
Union of India, 2023 SCC OnLine SC 1018, wherein the
following view appears while considering regularization
of service taking into consideration long years of service
vis-à-vis Article 14 of the Constitution of India,
notwithstanding the fact that there was non-availability
of post:
"4. The matter arises out of regularization of the
employees. The Chief Commissioner of Income Tax in
his report dated 14.02.2013 found that, in the
exercise conducted in pursuance of the judgment of
this Court in the case of Secretary, State of
Karnataka Vrs. Umadevi, (2006) 4 SCC 1, though 65
employees were found to be entitled for
regularization, only 35 employees were regularized.
This was done since only 35 vacancies were 16
persons out of the remaining 30 employees filed
contempt petition(s) alleging that the respondent(s)/
department(s) are not regularizing the services of the
appellants, thereby committing contempt of Court.
6. It appears that, before the High Court, an
affidavit was filed stating therein that the
services of the appellants could not be
regularized since the posts were not available.
On this statement the contempt petition has been
filed.
7. In the Constitution Bench judgment of this court
passed in Umadevi (supra), though the Court has
held that backdoor entries should not be permitted,
it has permitted a one time measure to be
conducted for regularization of the services of
these employees who had completed the service
of more than ten years.
8. Indisputably, the appellants herein have
completed service of more than ten years. Even
this Court in the case of Ravi Verma Vrs. Union of
India and Others (Civil Appeal No(s).2795-2796 of
2018) decided on 13.03.2018 [2018 SCC OnLine SC
3860] found that the act of regularizing the
services of some employees and not
regularizing the services of the others is
discriminatory and violative of Article 14 of
the Constitution of India.
10. We are not inclined to accept the submission on
behalf of the respondents. When the Chief
Commissioner of Income Tax has himself found that
65 persons were entitled to be regularized, the act of
regularizing the services of only 35 employees and
not regularizing the services of other employees,
including the appellants, is patently discriminatory
and violative of Article 14 of the Constitution of
India."
16.1. It has been well established that administrative
circulars cannot override the constitutional provisions.
Vide, Municipal Corporation Vrs. Senior Superintendent of
Post Offices, (2004) 3 SCC 92. It is also trite that a
beneficial circular has to be applied retrospectively while
oppressive circular has to be applied prospectively. See
Suchitra Components Ltd. Vrs. Commissioner of Central
Excise, Guntur, AIR 2007 SC (Supp) 987 = (2006) 12 SCC
452. There is no cavil in the following dicta as
enunciated by the Hon'ble Supreme Court of India in the
case of Punjab Tin Supply Co. Vrs. The Central
Government, (1984) 1 SCR 428:
"All laws which affect substantive rights generally
operate prospectively and there is a presumption against
their retrospectivity if they affect vested rights and
obligations unless the legislative intent is clear and
compulsive. Such retrospective effect may be given where
there are express words giving retrospective effect or
where the language used necessarily implies that such
retrospective operation is intended. Hence the question
whether a statutory provision has retrospective effect or
not depends primarily on the language in which it is
couched. If the language is clear and unambiguous effect
will have to be given to the provision in question in
accordance with its tenor. If the language is not clear then
the Court has to decide whether in the light of the
surrounding circumstances retrospective effect should be
given to it or not."
16.2. "Retrospective" means looking backward, contemplating
what is past, having reference to a statute or things
existing before the statute in question. Retrospective law
means a law which looks backward or contemplates the
past; one, which is made to affect acts or facts occurring,
or rights occurring, before it comes into force.
Retroactive statute means a statute, which creates a new
obligation on transactions or considerations or destroys
or impairs vested rights. From the above it is clearly
comprehended that if a Circular adversely affects the
rights of the persons on whom it is applied, then it
cannot have retrospective effect.
16.3. In the above perspective if the present case is examined
with particular reference to Letter/Circular bearing
No.27846-III-HE-M75/2001, dated 19.07.2004, issued
by Deputy Secretary to the Government of Odisha in
Department of Higher Education (Annexure-A/1) vis-à-
vis the record, it is transparent that the petitioner is on
better footing, since there is no allegation that he was
backdoor appointee and it is immutable that he has
been functioning in the post of "Demonstrator" since
2003 till date, which post has fallen vacant on
retirement of R.N. Dash on attaining the age of
superannuation. Rather, it is the opposite party Nos. 1
and 3 have admitted that looking to the academic
interest of the students, the petitioner has been given
higher post, i.e., Demonstrator and has been working
since 2003 till date without blemish to the satisfaction of
the authorities. There is no denial that the case of Sri
Akshaya Kumar Nayak was approved by the Government
vide Letter dated 08.01.2010 (much after date of
declaration of Demonstrator post as dying, i.e.,
19.07.2004) by stating thus:
"Although the post of Demonstrator was declared by the
Government on 19.07.2004 as dying and no recruitment
for the consequential vacancies in the post of
Demonstrator was being made from 19.07.2004, the cut-
off date. But certainly there is no harm in promoting Sri
Nayak to the post of Demonstrator from 07.05.2002, the
date from which he has been functioning as Demonstrator
being assigned by the Principal, Bhadrak (A) College, the
appointing authority."
16.4. In the light of aforesaid discussion and conspectus of
interpretation of benevolent circular versus oppressive
circular, it is quite clear that the case of the petitioner
claiming regularization in the post of Demonstrator is
liable to be considered.
CONCLUSION & DECISION:
17. When it is not disputed, rather admitted, that the
petitioner being appointed as Assistant Stores Keeper in
the year 1999, he has been continuing since 2003 till
date in the post of "Demonstrator", this itself shows that
the said post is not "dying" qua Samanta Chandra
Sekhar Autonomous College, Puri is concerned and the
services of Sri Kothari Biswajit Mekap is perennially
required and regularly utilized in the post of
Demonstrator. Thus, it is unwarranted and
unwholesome on the part of the Additional Chief
Secretary to the Government of Odisha in his Order
dated 12.07.2017 (Annexure-11) to record that "While
the applicant is working as Assistant Store Keeper in
Physics in the College concerned and drawing his
regular salary in the Assistant Store Keeper". At this
stage it is very much significant to note the following
ground for which the Head of Department of Physics,
Samanta Chandra Sekhar College, Puri directed the
petitioner to work as Demonstrator vide Letter PD No.
38, dated 20.11.2003:
"Further the workload in +2 applied electronics laboratory
was enhanced as the students strength in the laboratory
increased to 64."
17.1. It is also felt expedient to take into consideration that in
said Letter dated 20.11.2003 the Head of Department of
Physics clearly stated that "you are directed to work as
Demonstrator in Physics Laboratories (i.e., henceforth in
+2 Laboratory)" and "Due to short of hand in addition to
your normal duties you act as a Demonstrator in Physics
Department till further order".
17.2. Thus, being the position it is inappropriate for the
opposite party Nos.1 and 3 in their counter affidavit to
say that "Subsequently, to safeguard the academic
interest of the +2 Science Students, the Head of
Department of Physics made some internal arrangement
within the Department by assigning the work of
Demonstrator to the petitioner in addition to his normal
duty for smooth conduct of Laboratory works by issuing
a Letter No.38, dated 20.11.2003 to the petitioner".
17.3. If the contention of the opposite party Nos.1 and 3 as
reflected in the above counter affidavit is taken on face
value, this Court remarks with surprise that the fact
affirmed therein that the direction to work as
Demonstrator was merely "internal arrangement", since
such an arrangement could continue for a long period
since 2003 till date, i.e., for a period of around 20 years.
Said counter affidavit (paragraph 11) seems to have
affirmed on erroneous premise that "internal
arrangement" that too looking to the "academic interest
of the +2 Science Students" continued for around 20
years. The Additional Chief Secretary to Government, it
is manifest, in his Order dated 12.07.2017 (Annexure-
11) has not applied his judicious and conscientious
mind to the fact that even while the petitioner was
directed to function as Demonstrator since 2003, yet he
was drawing the salary of Assistant Store Keeper till
date. This Court is, therefore, constrained to observe
that this is sheer exploitation of labour from an
employee by "directing" to man a higher post while he is
appointed in a subordinate post. This is not expected of
a "model employer" like State Government, a mighty
State Government.
18. This Court on bare reading of Order dated 02.02.2016
passed in O.A. No. 510(C) of 2009, which was filed at the
behest of the petitioner on earlier occasion, the learned
Odisha Administrative Tribunal after taking note of
submissions that the petitioner, having requisite
qualification for performing the assignment of
Demonstrator, has been directed to work in the said post
since 2003 until further orders as the said post fell
vacant on account of Sri R.N. Dash got retired on
attaining superannuation; and similarly circumstanced
persons having been accorded approval in the post of
Demonstrator, which was considered as "promotion",
directed that,
"Considering the above submissions, ... we direct the
respondents to consider the case of the applicant for his
promotion to the post of demonstrator in Physics, if he is
otherwise eligible within a period of three months from the
date of receipt of a copy of this order keeping in view the
fact that he has been discharging the duty of a
demonstrator since 2003 sincerely".
18.1. Notwithstanding such clear cut direction to take into
consideration certain aspects, though in the preface, the
Order dated 12.05.2016 (Annexure-6) and Order dated
12.07.2017 indicated the same are passed in compliance
of direction of the learned Odisha Administrative
Tribunal, Cuttack Bench, Cuttack vide Order dated
02.02.2016 in O.A. No.510 (C) of 2009, the factual
background has not been given due weightage; rather
both the authorities, namely the Director of Higher
Education, Odisha as also the Additional Chief Secretary
to Government of Odisha proceeded on the premise that
the post is "dying cadre" and base level post could not be
filled up by way of promotion. However, it is noticed that
such orders are passed without taking cognizance of the
cases of similarly situated employees, who were given
the post of "Demonstrator" much later to issue of Letter
dated 19.07.2004 of the Government of Odisha in
Department of Higher Education by holding that said
post is promotional one.
18.2. In the wake of the above discussion with analysis of
material on record and for all the reasons ascribed in the
foregoing paragraphs, the impugned Office Order bearing
No. 17952-6C-11-2011-II, dated 12.05.2016 issued by
the Deputy Director (GCB) by Order of Director of Higher
Education (Odisha) (Annexure-6) and Order bearing
No.17904-HE-FE-III-CASE-22/2016/HE, dated
12.07.2017 issued by the Additional Secretary to
Government by Order of the Additional Chief Secretary
to Government of Odisha in Department of Higher
Education (Annexure-11) do deserve interference.
18.3. At this point, reference to Air Commodore Naveen Jain
Vrs. Union of India, (2019) 13 SCR 241 may be pertinent
as the legal position with regard to right of employee to
be considered for promotion has been elicited in the
following manner:
"19. In Ajit Singh (II) Vrs. State of Punjab, (1999) 7 SCC
209 = (1999) 2 Suppl. SCR 521, referred to by
learned counsel for the appellant, the Court held that
equal opportunity contemplated by Article 14 of the
Constitution means the right to be considered for
promotion. If a person satisfies the eligibility and
zone criteria but is not considered for promotion,
then there will be a clear infraction of his
fundamental right to be considered for his
promotion, which is his personal right. The rules and
the considerations contemplated promotion by
"seniority-cum-merit" particularly in the light of
reserved category candidates promoted at the roster
points. It was held that in terms of Article 16, every
employee eligible for promotion or who comes within
the zone of consideration, has a fundamental right to
be considered for promotion but his right is of
consideration alone. The Court held as under:
'22. *** It has been held repeatedly by this Court
that clause (1) of Article 16 is a facet of Article
14 and that it takes its roots from Article 14.
The said clause particularises the generality in
Article 14 and identifies, in a constitutional
sense "equality of opportunity" in matters of
employment and appointment to any office
under the State. The word "employment" being
wider, there is no dispute that it takes within
its fold, the aspect of promotions to posts above
the stage of initial level of recruitment. Article
16(1) provides to every employee otherwise
eligible for promotion or who comes within the
zone of consideration, a fundamental right to
be "considered" for promotion. Equal
opportunity here means the right to be
"considered" for promotion. If a person satisfies
the eligibility and zone criteria but is not
considered for promotion, then there will be a
clear infraction of his fundamental right to be
"considered" for promotion, which is his
personal right...." ***
27. In our opinion, the above view expressed in
Ashok Kumar Gupta, (1997) 5 SCC 201 and
followed in Jagdish Lal, (1997) 6 SCC 538 and
other cases, if it is intended to lay down that
the right guaranteed to employees for being
"considered" for promotion according to
relevant rules of recruitment by promotion (i.e.
whether on the basis of seniority or merit) is
only a statutory right and not a fundamental
right, we cannot accept the proposition. We
have already stated earlier that the right to
equal opportunity in the matter of promotion in
the sense of a right to be "considered" for
promotion is indeed a fundamental right
guaranteed under Article 16(1) and this has
never been doubted in any other case before
Ashok Kumar Gupta, (1997) 5 SCC 201 right
from 1950.' ***"
18.4. With such conceptual understanding, considering that
the petitioner, having requisite qualification, who is
directed to work as Demonstrator in Samanta Chandra
Sekhar Autonomous College, Puri, by virtue of Letter
dated 20.11.2003 (much prior to issue of Letter No.
27846/HE dated 19.07.2004, operative prospectively) till
date against a post which fell vacant on account of
retirement of incumbent on attaining age of
superannuation, which fact remained uncontroverted,
and further fact that the scale of pay for Assistant Store
Keeper (Rs.4000/- - Rs.100/- - Rs.6000/-) is different
from that of Demonstrator (Rs.5000/- -Rs.150/- -
8000/-), has a right to be considered for the post of
Demonstrator and for extension of due pecuniary and
otherwise service benefits available for the post of
Demonstrator.
19. Under the aforesaid premises, the impugned Office
Order bearing No. 17952-6C-11-2011-II, dated
12.05.2016 issued by the Deputy Director (GCB) by
Order of Director of Higher Education (Odisha)
(Annexure-6) and Order bearing No.17904-HE-FE-III-
CASE-22/2016/HE, dated 12.07.2017 issued by the
Additional Secretary to Government by Order of the
Additional Chief Secretary to Government of Odisha in
Department of Higher Education (Annexure-11) cannot
withstand judicial scrutiny; as such, the said Orders are
liable to be set aside and this Court does so.
19.1. The opposite parties are, therefore, directed to consider
the case of the petitioner favourably in the light of the
observations made supra and take decision by passing
appropriate order(s) and extend all available benefits as
per entitlement.
19.2. It is made clear that the entire exercise shall be
completed within a period of two months hence.
20. In fine, the writ petition stands disposed of in terms of
observations and directions as above, but in the
circumstances without any order as to costs.
(MURAHARI SRI RAMAN)
JUDGE
High Court of Orissa, Cuttack
The 4th December, 2023//MRS/Laxmikant
Signed by: LAXMIKANT MOHAPATRA
Designation: SENIOR STENOGRAPHER
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 04-Dec-2023 16:55:17
