R.N. Misra, J.
1.The petitioner was recruited as a lower division assistant in the year 1940 in the establishment of the Revenue Commissioner of Orissa, and was confirmed in such post with effect from 1-3-48. Under Orissa Act 23 of 1951, a Board of Revenue for the State was constituted, and as would appear from the scheme of the said Statute, the Board created under the Act was a substitutefor the Revenue Commissioner, whichpost had been created under the Government of India (Constitution of Orissa) Order, 1936. The Board of Revenue and the Revenue Department of the State were amalgamated, and the petitioner was put as a Grade I assistant in the Revenue Department of the Orissa Secretariat.
The Scheme set out under Orissa Act 23 of 1951 was altered by Orissa Act 18 of 1957, and a Single Member Board was constituted, and bulk of the functions hitherto exercised by the Board of Revenue was transferred to the three Revenue Divisional Commissioners of the Northern, Central and Southern Divisions created under Orissa Act 19 of 1957, including the services of many of the employees. The petitioner continued under the Revenue Department even after the changes were introduced, but had his lien in the post under the Board of Revenue. The Board of Revenue confirmed the petitioner on 15-5-1959 as a Grade II assistant with retrospective effect from 13-9-54. The petitioner became a senior assistant in the Revenue Department in January 1958 and was placed in the District Gazetteer Section,
With effect from 2-8-60 the petitioner served in the Gazetteer Section as a senior assistant until June 1965. In the gradation list published by the Revenue Department on 11-8-1962, the petitioner was shown in the establishment, but the subsequent gradation list published did not include the petitioner. The petitioner was reverted to the office of the Revenue Divisional Commissioner, Central Division, with effect from 30-6-65, where he joined as a Junior Head Assistant in an officiating capacity on 6-7-65. While the petitioner was continuing as a senior assistant in the Gazetteer Section of the Revenue Department, he had been confirmed as a Grade I assistant in the office of the Revenue Divisional Commissioner with effect from 1-1-62.
The establishment of the Board of Revenue in 1951, the bifurcation of the functions in 1957 and the incorporation of four different establishments, that is, the Board and the three separate Revenue Divisional Commissioners brought about an uncertain situation and the question of distribution of the staff in the establishments was not finalised for many years, as would appear from paragraph 15 of the counter affidavit. The petitioner made representations for pro forma promotion to the post of Junior Head Assistant and was granted such pro forma promotion to the said post. Thereafter vacancies occurred in the post of Senior Head Assistant. The petitioner's claim was overlooked and other employees, as the petitioner alleges, superseded the petitioner and were allowed to serve aa Senior HeadAssistants in the establishment. As the petitioner did not get any relief in spite of representations, he ultimately approached this Court under Article 226 of the Constitution of India.
2- The State Government filed a counter affidavit on 3-11-66 denying the allegations of the petitioner. From the said affidavit, however, the actual position relevant for determination of the dispute in question did not clearly emerge. At the time when the writ application was heard, the learned Advocate General appearing for the State contended that the petitioner had no lien in respect of his post that he held in the office of the Revenue Commissioner and ultimately in the establishment of the Revenue Divisional Commissioner. We called upon the State to file a further affidavit to clarify the matter, and a further affidavit was filed on 10-7-69. From paragraphs 17 and 18 of the said counter affidavit it clearly appears that the petitioner's lien in his substantive post had not been cancelled, nor suspended, and the petitioner was always borne on the cadre of his original establishment.
3. A set of rules entitled 'The Orissa Ministerial Service (Method of Recruitment and Conditions of Service of Clerks and Assistants in the District Offices and Offices of the Heads of Departments) Rules, 1963, framed in exercise of powers conferred under the proviso to Article 309 of the Constitution of India, were introduced by the Governor. Rule 21 (1) (d) of the said Rules provides as under,--
'Promotion to the posts of Senior Head Assistants shall be made from amongst the Junior Head Assistants who have completed two years continuous services as Junior Head Assistants.'
Keeping the said provision in view, it was stated in paragraph 18 of the counter affidavit as follows :
'That the question of promotion to the post of Senior Head Assistant in the Revenue Divisional Commissioner's office arose in the year 1964. By that time the Orissa Ministerial Service (Method of Recruitment and Conditions of Service) Rules 1963 came into force on 15th April 1963. Rule 21 provides that the post of Senior Head Assistant shall be filled up by promotion from among the Junior Head Assistants, who have completed 2 years of continuous service as Junior Head Assistants. The petitioner who got pro forma promotion to the post of Junior Head Assistant never worked as Junior Head Assistant far less to speak of completion of 2 years continuous service as Junior Head Assistant In such circumstances the question of consideration of the petitioner for promotion as Senior Head Assistant does notarise. However when the question of consideration for promotion to the post of Senior Head Assistant came in, the petitioner's case was considered. It was observed that 'But he is working in the Revenue Department of Government. He was given pro forma promotion on account of his seniority though he never worked in this office ever since the creation of the office of the Revenue Divisional Commissioner. We have separately moved Government at Flag X for suspending his lien as also of those other Assistants working in other offices but having lien in this office. So he need not be considered for promotion now.' '
The learned Advocate General appearing for the opposite parties did not any longer want to dispute the claim of the petitioner that he had subsisting lien in his parent post, and that too in an unsuspend-ed state. We, therefore, do not propose to examine that aspect of the case, and we proceed to record a finding, on the admitted position, that the petitioner had subsisting lien in his post in the establishment of the Revenue Divisional Commissioner. It is also the admitted position that the petitioner, while serving in the Gazetteer Section of the Revenue Department, had been granted the pro forma promotion to the post of Junior Head Assistant. It was not seriously disputed that the petitioner was drawing a salary higher than what is provided for the post of Junior Head Assistant in the office of the Revenue Divisional Commissioner. The duties which he was discharging in his post under the District Gazetteer Section were at least equivalent to the duties attached to the post of Junior Head Assistant in his permanent establishment.
4. It was however contended by the learned Advocate General, on the basis of the allegations in paragraph 18 of the counter affidavit, that the petitioner having not completed two years of continuous service as Junior Head Assistant was not entitled to promotion to the post of Senior Head Assistant. It is well settled that no incumbent has a right to promotion, and promotion, as such, is not justiciable being a matter entirely within the discre-tion of the prescribed administrative superior. The petitioner's contention in this case before us has been that he was kept out of consideration and his claim was not taken into account. The note appended to paragraph 18 of the counter affidavit, which has been extracted above, is not a full extract of the relevant portion in the original file. Mr. Mohanty appearing for the petitioner canvassed that aspect of the matter before us, and we called upon the learned Advocate General to produce the relevant file before us when the matter was heard; we find that one important sentence appearing at theend of what has been extracted in Paragraph 18 of the counter affidavit was left out.
The said portion reads as follows :
'If he makes any representation, then the question of giving him pro forma promotion will be considered at thattime.'
The combined effect of what was extracted and what was left out as appearing above clearly is that the petitioner was not considered for promotion and in case he made a representation the question of giving him pro forma promotion was reserved to be considered. The non-consideration of the petitioner for promotion to the post of Senior Head Assistant is available for examination by this Court. It is now well settled that the combined effect of the provisions of Articles 14 and 16 of the Constitution is that employees under Government are entitled to equality of treatment both at the time of recruitment and at all material stages during the continuance of their service. The non-consideration of the petitioner at the material time for promotion to the post of Senior Head Assistant seems to have been based upon a wrong interpretation of Rule 21 (1) (d) of the Rules of 1963. To satisfy the requirement of completion of two years continuous service, it is not at all necessary that one should have worked as Junior Head Assistant in such post. One who has been granted pro forma promo-tion on account of the fact that he has been working somewhere else and has been continuing his lien in the parent post would also entitle himself to consideration for promotion as senior Head Assistant if two years have been completed since pro forma promotion was granted in the post of Junior Head Assistant and continuity of such promotion has been maintained for the prescribed period. If this is not the meaning to be put on the relevant provision, it is difficult to comprehend how a person who has been granted pro forma promotion is to be treated.
5. The Note extracted In paragraph 18 of the counter affidavit clearly goes to show that the petitioner was having subsisting lien at the material point of time and Government had been requested to suspend his lien. Orders suspending his lien did not seem to have been passed and the counter affidavit is particularly silent about it. The Note goes to show that the petitioner was entitled to consideration, but he was kept out of consideration, and consideration of the petitioner for promotion was conditioned upon his making a representation. The appropriate authority is bound to take the claims of all persons entitled to promotion into consideration and in its discretion grant promotion. Non-considerationof the claim of an employee, otherwise qualified for consideration, vitiates the exercise of jurisdiction in the matter, and subjects the action of the appropriate authority in the matter of grant of promotion, to the scrutiny of the Court. Once the Court is satisfied that an employee entitled to consideration has been left out, a case is made out for interference for breach of the guarantee conferred under Article 16 of the Constitution on the employee. In the facts and circumstances of the case, we are, therefore, satisfied that the petitioner was entitled to be considered for promotion to the post of Senior Head Assistant at the relevant time, and either under a wrong construction put on the provision of Rule 21 (1)(d) or for some other reason best known to the concerned authorities, he was kept out of consideration for promotion. Non-consideration of the petitioner entitles him to the relief.
6. In the result, we allow this writ application and issue a writ of mandamus commanding the opposite parties to consider the petitioner's claim for promotion to the post of Senior Head Assistant. and to grant him all other consequential reliefs which he would have been otherwise entitled to, if he be promoted. The writ application accordingly succeeds with costs. Hearing fee of Rs. 100/- (Rupees one hundred).
G.K. Misra, C.J.
7. I agree.