Supreme Court: In a civil appeal against Orissa High Court’s decision, setting aside the decision of the Orissa Administrative Tribunal, Bhubaneshwar (‘Tribunal’) directing for promotion of the present appellant to the post of Tracer from Peon, the Division Bench of JK Maheshwari and Rajesh Bindal*, JJ., dismissed the appeal stating that the post of Tracer, not being promotional post from the post of Peon, there was no merit in the claim.
The Court also noted the lackadaisical approach of the State, which lead to several rounds of litigation. Hence, the Court observed that the case in hand was a glaring example of casualness on the part of the State Authorities while dealing with the litigation. The issue could be resolved at the very first stage when a representation was made by the petitioner seeking promotion to the post of Tracer way back in the year 1991. The chapter could have been closed merely while responding to the same while referring to the relevant Sub-ordinate Architectural Service Rules, 1979 (‘1979 Rules’). The Court pointed out that at none of the stages of litigation, the 1979 Rules were referred to either in the counter or in the petition. The Court stated that such conduct was not expected from the State which is the major litigant and the case in hand was an example of unnecessary generation of litigation by the State where the authorities need to circumspect and be more careful.
Background
The appellant has been working as a peon with the respondent-State since 1978. On 07-01-1999, the appellant filed a representation to be appointed to the post of Tracer. The respondent communicated that the post of Tracer will not be filed upon promotion from the lower category of post since it is not a promotional post, and the vacancy of Tracer will be filled up in due course by conducting the interview.
The appellant filed application before the Tribunal seeking intervention against the discriminatory action of the respondent authorities regarding promotion to the post of Tracer. The Tribunal directed the respondent to consider the case of the appellant along with similarly placed Class-IV Employees for their promotion to the post of Tracer against available future vacancy within a period of three months from the date of communication of the order. The appellant’s appointment to the post of basic level Tracer was rejected due to a ban on recruitments imposed by the Finance Department. In another application filed by the appellant before the Tribunal, the respondent was directed to promote/appoint the appellant to the post of Tracer against any vacant post.
The State preferred an appeal before the High Court, wherein, the Tribunal’s orders were set aside. As the retiral benefits had been extended to the appellant for the post of Peon, the High Court disposed of the petition.
Analysis and Decision
The Court noted that the 1979 Rules as framed in the exercise of powers conferred under the proviso to Article 309 of the Constitution of India and notified in the official Gazette on 25-07-1980 were sought to be referred by the learned counsel appearing before the High Court as Letter No. 4775 dated 26-02-1980 issued by the Works Department, and without perusing the proper document, even the High Court referred those in the judgment.
The Court noted that the letter dated 26-02-1980, produced before the Court contains 18 paragraphs while the statutory rules contain 9 rules in total, and that there were major discrepancies in the document produced by the petitioner along with the petition, several paragraphs were missing. The Court said that the paragraph which was repeated in the alleged letter was sought to be shown as ‘position of the service’ which is not mentioned in the 1979 Rules as such.
The Court noted that the appellant contended that in terms of paragraph 3(d) of the letter dated 26-02-1980, she was eligible for promotion as she possessed the requisite qualifications. However, the Court said that if the scheme of 1979 Rules is considered, Rule 3 provides for the composition of service and the post of Tracer finds mention in three categories namely category I, II and III. Perusing Rule 5 of the 1979 Rules, the Court said that the same provides for direct recruitment and the percentage of sources. Rule 5(1)(e) provides that all posts of Tracers under categories I, II, and III shall be filled in by direct recruitment.
Hence, the Court said that the post of Tracer in all three categories is to be filled up by direct recruitment only, after following the procedure as prescribed. The Court said that the appellant’s entitlement to the relief was required to be considered before directing the authorities to decide the representation, and that the Tribunal failed to apply its mind on this issue at that stage.
In the next round of litigation preferred by the appellant before the Tribunal, the Court said that the Tribunal, noting the history that there were two earlier appointments on the post of Tracer by way of promotion and that even the appellant was earlier considered, directed the appellants to consider the case for promotion to the post of the Tracer against any vacant post. The Court said that as the State failed to point out that the 1979 Rules governed recruitment to the post of Tracer, the Tribunal also did not notice the same and went on with the direction to consider the case for promotion.
During the appeal before the High Court, the Court said that the grounds taken by the State showed total non-application of mind, especially in a case that had already undergone three rounds of litigation. The Court pointed out that proper facts were not pointed out at any stage. Regarding the causal approach on drafting, the Court said that there could not be more casualness than this where the authority of the State was fighting litigation and did not apprise the Tribunal or the Court about the relevant applicable rules.
In the matter at hand, the Court said that though the appellant’s claim was rejected on the ground that she was not eligible for the post of Tracer, however, for the reason that as per 1979 Rules, the post of Tracer is to be filled up to 100% by way of direct recruitment in terms of Rule 5(1)(e) of the 1979 Rules and the method of direct recruitment has been provided in Rule 7 thereof, refused to enter this arena. The Court stated that the process as provided in the Rules was not followed. Hence, the Court dismissed the appellant’s plea.
The Court also stated that-
“This Court cannot put a stamp on the illegalities committed by the department while perpetuating the same. A litigant coming to the Court cannot claim negative discrimination seeking direction from the Court to the department to act in violation of the law or statutory Rules. It is a settled proposition of law that Article 14 does not envisage negative equality.”
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