Skip to content


Prafulla Chandra Sahu Vs. State of Orissa and anr. - Court Judgment

LegalCrystal Citation
SubjectService
CourtOrissa High Court
Decided On
Case NumberO.J.C. No. 897 of 1979
Judge
Reported in1985(II)OLR304
ActsOrissa Ministerial Service (Recruitment, Transfer and Seniority of Clerks and Assistants in the Animal Husbandry and Veterinary Offices) Rules, 1977 - Rule 25
AppellantPrafulla Chandra Sahu
RespondentState of Orissa and anr.
Appellant AdvocateB.K. Behera, Adv.
Respondent AdvocateI. Ray, Addl. Govt. Adv. and ; J. Behera, Addl. Standing Counsel
DispositionPetition allowed
Excerpt:
- labour & services pay scale:[tarun chatterjee & r.m. lodha,jj] fixation - orissa service code (1939), rule 74(b) promotion - government servant, by virtue of rule 74(b), gets higher pay than what he was getting immediately before his promotion - circular dated 19.3.1983 modifying earlier circular dated 18.6.1982 resulting in reduction of pay of employee on promotion held, it is not legal. statutory rules cannot be altered or amended by such executive orders or circulars or instructions nor can they replace statutory rules. - it has been clearly mentioned in annexure-ii that the post of record-keeper is equivalent to the post of gr......the d. a. v. s. asked the petitioner on 27. 3. 1971 to give willingness for being appointed as record-keeper in the office of d. a. v. s. the petitioner gave his willingness and he was duly appointed at record-keeper in the office of d, a. v. s. with effect from 9. 7. 1971 vide annexure-5 which post he joined on 27.7.1971. the post of record-keeper was treated as equivalent to the post of gr. ii assistant of the directorate and carried the same scale of pay which will be evident from annexure-ii, the letter of the d. a. v. s. asking for willingness of the petitioner to join the post of record-keeper. petitioner claims that on the basis of the equivalence a record-keeper was eligible to be considered for promotion to the post of gr. ii assistant in the directorate.the governor of.....
Judgment:

J.K. Mohanty, J.

1. Petitioner was appointed as Lower Division Clerk in the office of the District Animal Husbandry and Veterinary Officer, Angul (Dhenkanal) mi temporary basis on 7. 11. 1956. In course of time be was prompted to the post of Head Clerk with detect from 21.1.1961 and he worked as such till 16. 7. l968 According to the petitioner the post of Head Clerk of District cadre is equivalent to Grade II Assistant: of the office of the Director of Animal Husbandry and veterinary Services (in short 'D. A. V.S.'). He was confirmed against the permanent post of Accounts Clerk of Northern Range in District cadre with effect from 1. 7.1964. While the petitioner was serving in the office of the District Animal Husbandry and Veterinary Officer, Dhankanal, he was transferred as Head Clerk to the establishment of Artificial Insemination Officer, Cuttack, (this office has' now been designated as Deputy Director (Insemination ) which is a District cadre establishment under the Directorate of D. A. V. S.) and worked as such till 27. 7.1971. While the petitioner was continuing in the aforesaid post of Head Clerk, the D. A. V. S. asked the petitioner on 27. 3. 1971 to give willingness for being appointed as Record-Keeper in the office of D. A. V. S. The petitioner gave his willingness and he was duly appointed at Record-Keeper in the office of D, A. V. S. with effect from 9. 7. 1971 vide Annexure-5 which post he joined on 27.7.1971. The post of Record-Keeper was treated as equivalent to the post of Gr. II Assistant of the Directorate and carried the same scale of pay which will be evident from Annexure-II, the letter of the D. A. V. S. asking for willingness of the petitioner to join the post of Record-Keeper. Petitioner claims that on the basis of the equivalence a Record-Keeper was eligible to be considered for promotion to the post of Gr. II Assistant in the Directorate.

The Governor of Orissa in exercise of the powers conferred on him under Art. 309 of the Constitution of India framed a set of Rules called the Orissa Ministerial Service(Recruitment, Transfer and Seniority of Clerks and Assistants in the Animal Husbandry and Veterinary Offices) Rules, 1977 (hereinafter called the 'Rules') regulating the methods of recruitment and conditions of service of Clerks and Assistants of the District Offices, Range Off ices and office of the Director, Animal Husbandry and Veterinary Services. These Rules came into force from the 5th August, 1977. According to Appendix-II in serial 7 of the Rules the past of Record-Keeper was made a special post in the Directorate. It has, however, been made clear in Rule 25ig) of the Rules that the special post of a Record-Keeper in the Directorate is equivalent to Gr. II Assistant in the said Directorate for all intents and purposes and ,as such is entitled to be considered for promotion to the post of Gr. I Assistant. In spite of the above Rules, the opposite parties have not published any gradation list showing seniority of the petitioner in the ministerial service of the Directorate' as provided in Rule 31 of the Rules. The petitioner made several representations for fixing his seniority and to include his name in the gradation list of Gr.-II Assistants in the Directorate. But all were in vain. By non-fixation of his seniority and non-inclusion of his name in in the gradation list of Gr. II Assistants of the Directorate, the petitioner has been losing all prospects of promotion and continuing in the post of Record Keeper, though his juniors in the cadre of Gr. II Assistants have been promoted to the post of Gr. I Assistant in the Directorate without the petitioner being considered for the same. So the petitioner has filed this writ petition to issue writ of mandamus directing the opposite parties to fix his seniority amongst Gr. II Assistants as per the conditions of service and service Rules and to prepare and publish a gradation list incorporating his name in the category of Gr. II Assistants- of the Directorate of D. A. V. S. as per Rule 31 of the Rules.

2. The oppose parties, the State of Orissa through the Secretary to Govt. Forest, Fisheries and Animal Husbandry Department and the Director of Animal Husbandry and Veterinary Services, Orissa, have filed their counter. The main ground taken by them in resisting the writ petition is that the post of Record-Keeper is an ex cadre post even though it carries identical scale of pay as Gr. II Assistant in the Directorate. So the post of Record-Keeper is not equivalent to the post of Gr. II Assistant as per the nature of duties and responsibility. Hence, the supposition of the petitioner that on the basis of the equivalence a Record-Keeper was eligible for promotion to the post of Gr. I Assistant is not correct. Promotion of Gr. I Assistant is from amongst the Gr. II Assistants in the same ministerial cadre. The nature of duties and responsibility of a Record-Keeper and Gr. II Assistant are different. Though Rule 25(g) o: the Rules provides interchangeability of the post of Record-Keeper and that of Gr.-II Assistant in the Directorate, they belong to two distinct cadres. The post of Record-Keeper comes within the heading of 'Special Posts' as mentioned in item No. 7 of Appendix-II of the Rules whereas the pest of Gr.-II Assistant is a post within the ministerial reader as would be evident from Rule 18 of the Rules. The petitioner accepted the appointment to an ex cadre post of Record-Keeper on his own volition. Petitioner was Head Clerk prior to his joining in the post of Record /Keeper and as such he retains his regular footing in his former District cadre posts. Accordingly the Departmental Promotion Committee held on 26. 9. 1977 considered him suitable for promotion to the post of Progress Assistant which was required to be filled up by the Head Clerks of the District Offices, under the provisions of Rule 25(d) of the Rules. As he was never appointed to the post of Gr. II Assistant, his name was not included in the gradation list of Gr. II Assistants circulated by O.P.No. 2 On the above premises, according to the opposite parties, there is no merit in the writ petition, which should be dismissed. The petitioner has also filed a rejoinder challenging the stand taken by the opposite parties.

3. While the petitioner was serving as the Head Clerk in the establishment of Artificial Insemination Officer (now Deputy Director of Artificial Insemination, Orissa,) by Annexure-II, dt. 27. 3. 1971 he was asked to give willingness to come over to the Directorate as Record-Keeper. It has been clearly mentioned in Annexure-II that the post of Record-Keeper is equivalent to the post of Gr. II Assistant in the Directorate. Accepting the offer in Annexure-11 the petitioner gave his willingness and was appointed to officiate as Record-Keeper in the Directorate vide Annexure-5. He joined in the post on 27. 7. 1971. The post of Record-Keeper carries the same scale of pay as that of Gr. II Assistant and the qualification required for appointment to both the posts is the same. Rule 25(g) of the Rules which makes the position clear is quoted below :

'The post of Record-Keeper and the post of Gr. II Assistant of the office of the Head of Department shall be interchangeable and the qualification and method of recruitment for the post of Record-Keeper shall be as are applicable for Gr. II Assistants.'

Though the petitioner has joined the post of Record-Keeper since July,1971 he has been stagnating in the same post for the last 14 years without any prospects of promotion. Though the opposite parties say in their counter that he was considered suitable for the post of Progress Assistant, which is a higher post according to Rule 25{d) of the Rules, no materials are placed before us to show that he was offered the said past, and he refused to accept the offer. At the time when the offer was made to join the post of Record Keeper, it was given out to him that the post of Record-Keeper is equivalent to the post of Gr. II Assistant in the Directorate and the petitioner accepted the offer Naturally believing that he will be treated as Gr. II Assistant and will get the benefits available to Gr. 11 Assistants, he joined the post. Rule 25(g) has also made it cleat that the post of 'Record-Keeper and the post of Gr. II Assistant of the office of the Head or Department shall be interchangeable and the qualification and method of recruitment for the post of Record-Keeper shall be applicable to Gr. II Assistants. The pay scales are also same. In all fairness petitioner should have been treated as Gr. II Assistant in the Directorate and should have been considered as such for promotion to the post of Gr. I Assistant and should have been entitled to all the benefits available. In course of argument, Mr. Behura, learned counsel for the petitioner submitted that the petitioner should be treated as Gr. II Assistant in the Directorate from the date of his joining as Record-Keeper and he is entitled to all the benefits including promotion etc., as if he was Gr. II Assistant on the date of his joining, i e , 27.7.1971 in the Directorate. But it is difficult to accept this position as in the meantime several persons must have been promoted from Gr. II to Gr. I post and they will be vitally affected and without hearing the parties who will be affected, it is not possible to accept the above contention of the petitioner. Also there is no such prayer in the writ petition.

4. After considering the argument of both sides and the facts and circumstances of the case, we direct the opposite parties to treat the petitioner as Gr. II Assistant of the Directorate from the date he joined as Record-Keeper, i. e., from 27. 7. 1971. It is open to the petitioner to represent to the appropriate authority for consequential relief, if any on the aforesaid basis.

5. In the result, therefore, the writ petition is allowed with the aforesaid observation.

There shall be no order as to costs.

D.P. Mohapatra, J.

I agree.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //