Orissa High Court
Jadunath Sahu vs State Of Orissa on 29 April, 2020
Equivalent citations: AIRONLINE 2020 ORI 41
Author: S.K. Sahoo
Bench: S.K. Sahoo
IN THE HIGH COURT OF ORISSA, CUTTACK
W.P.(C) No. 21858 of 2017
An application under Articles 226 and 227 of the Constitution of
India.
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Jadunath Sahu ......... Petitioner
-Versus-
State of Orissa
and others ......... Opp. Parties
For Petitioner: - Mr. Sameer Kumar Das
For Opp. Parties
Nos.1 & 2: - Sri Jyoti Prakash Patnaik
Addl. Govt. Advocate
For Opp. Parties No.4: - Mr. Biswa Bihari Mohanty
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P R E S E N T:
THE HONOURABLE KUMARI JUSTICE SANJU PANDA
AND
THE HONOURABLE MR JUSTICE S.K. SAHOO
........................................................................................................................
Date of Judgment: 29.04.2020
........................................................................................................................
S. K. SAHOO, J. The petitioner Jadunath Sahu has filed this writ
petition seeking for a direction to quash the proceedings of the
Departmental Promotion Committee (hereafter 'DPC') held on
2
15.07.2016 for promotion to the post of Additional Principal
Secretary and the consequential promotional notification in
favour of opposite party no.4 Prasanta Hrudaya Palai vide
Annexure-3 and for a further direction directing the opposite
party no.2 Registrar (Judicial) of this Court to promote him
(petitioner) to the post of Additional Principal Secretary from the
date his junior (opposite party no.4) was promoted w.e.f.
20.07.2016 and grant all the consequential service and financial
benefits from that date and for a further direction directing the
opposite parties nos.1 to 3 to re-fix his pension and other
pensionary dues in such higher scale of pay and cadre pay in the
promotional post of Additional Principal Secretary and to pay the
differential arrears on such calculation within a stipulated period
with interest @ 8% per annum.
2. The case of the petitioner, in short, is that he was
having qualification of Intermediate in Arts with shorthand and
typewriting and in a due process of selection, he was appointed
as a Junior Stenographer in the judgeship of Cuttack district on
07.04.1982. In response to an advertisement issued by this
Court for appointment of Senior Stenographer, he faced the
interview and was selected and joined as Senior Stenographer on
25.11.1986. Thereafter he was promoted to the post of Personal
3
Assistant on 10.05.1989 and while continuing in such post, he
became a confirmed Government employee on 01.12.1995 and
then he was promoted to the post of Secretary on 12.06.2006
and Senior Secretary on 03.11.2012.
It is the further case of the petitioner that two posts
of Additional Principal Secretary fell vacant and in order to fill up
such posts, file was processed and a meeting of DPC was
convened on 15.07.2016 and all the four Senior Secretaries
available in the feeder cadre including the petitioner and the
opposite party no.4 were called to attend the DPC. After the
meeting was convened, the DPC recommended the names of one
Kailash Chandra Pati whose position was serial no.1 in the
gradation list as well as the opposite party no.4 Prasanta
Hrudaya Palai whose position was serial no.4 in that list for
promotion. The DPC did not consider the case of the petitioner as
well as one Sri P.C. Pradhan who were senior to the opposite
party no.4 as per the gradation list and accordingly, notifications
were issued on 20.07.2017 promoting Kailash Chandra Pati and
the opposite party no.4 to the post of Additional Principal
Secretary. The DPC found the petitioner as well as Sri P.C.
Pradhan lacking in minimum educational qualification i.e.
Bachelor's degree required for that post as per the High Court of
4
Orissa (Appointment of Staff and Conditions of Service) Rules,
2015 (hereafter '2015 Rules').
It is the further case of the petitioner that he had
more than thirty one years of service as on the date of holding of
last DPC on 15.07.2016 and there was no adverse entry or
remark entered in his service record and no adverse remark was
ever communicated to him. Being the serial no.2 in the gradation
list of Senior Secretaries in the establishment of this Court till
15.07.2016, he had a legitimate expectation for promotion to the
post of Additional Principal Secretary as there were two
vacancies in that post. He submitted a representation to the
Hon'ble Chief Justice through the Registrar (Judicial) on
25.08.2016 indicating his grievances and to consider his case for
promotion and to restore his seniority from the date his junior
(opposite party no.4) got the promotion.
It is the further case of the petitioner that prior to
the 2015 Rules, the Orissa High Court (Appointment of Staff and
Conditions of Service) Rules, 1963 (hereafter '1963 Rules') was
in force and the entry qualification for appointment to the post of
Junior Stenographer/Senior Stenographer was matriculate with
shorthand and typewriting. The amended 2015 Rules came into
force vide notification dated 25.02.2015 and as per the amended
5
Rules, the qualification for appointment to the Steno cadre was
prescribed as Bachelor's degree in any discipline with
stenography. So far as the promotion to the post of Additional
Principal Secretary is concerned, the minimum qualification
prescribed is Bachelor's degree in any discipline from a
recognised University or such other qualification equivalent
thereto having good knowledge in Hindi and English and he must
be a fit person to hold the post in the opinion of the Hon'ble
Chief Justice and minimum experience of one year as Senior
Secretary to the Hon'ble Judges. The mode of promotion was
prescribed as 'by promotion from the post of Senior Secretary
basing on merit with due regard to seniority and suitability'. It
has been specifically stated in the new 2015 Rules as per Rule 1
under the heading of 'Explanation' that nothing in that Rules
shall adversely affect any person, who was a member of the
service on the date of coming into force of these Rules.
It is the further case of the petitioner that he entered
into the service of the Court's establishment prior to the coming
of 2015 Rules into force and the subsequent eligibility
qualification in the entry grade or for promotion to the cadre of
Additional Principal Secretary cannot be made applicable to him.
The petitioner highlighted the cases of Raghunath Sahoo and
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Akshaya Kumar Dhal having the qualification of I.A. and I.Com
respectively to have been given promotion to the post of Senior
Secretary vide notifications dated 31.03.2017. According to the
petitioner, the decision taken by the authorities is against the
basic principle of law with regard to parity as under the same set
of Rules i.e. 2015 Rules, the claim of the petitioner was rejected
whereas the cases of Raghunath Sahoo and Akshaya Kumar Dhal
were considered for promotion without having Bachelor's degree.
The petitioner further highlighted the cases of Mahendra Kumar
Routray and Bijay Kumar Sahoo, Section Officers of the Court to
have been promoted to the cadre of Superintendent in the
Court's establishment even though they were having
Intermediate qualification to their credit. According to the
petitioner, the DPC has bypassed the Rules and adopted a novel
practice and procedure beyond the Rules for promotion to the
post of Additional Principal Secretary from amongst the Senior
Secretaries by promoting the junior over the petitioner who had
an unblemished service record. The decision taken by the DPC
on dated 15.07.2016 by misinterpreting 2015 Rules needs
reconsideration in the light of decision taken in the DPC on dated
31.03.2017 for promotion to the post of Senior Secretary.
According to the petitioner, though he has retired from
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Government service w.e.f. 31.05.2017 but his representations
dated 25.08.2016 and 11.04.2017 vide Annexures-3 and 6 have
not been considered and due to his non-promotion, he has
suffered mentally and financially.
3. On behalf of the opposite party no.2 Registrar
(Judicial) of this Court, counter affidavit was filed wherein a
stand has been taken that the notifications dated 20.07.2016
promoting the opposite party no.4 and another to the post of
Additional Principal Secretary were issued in terms of the
recommendation made by the DPC held on 16.07.2016 strictly in
compliance of the recruitment Rules in vogue and the action of
the opposite party no.2 was legal, valid and justified. The DPC
after interviewing the petitioner and giving its due consideration
to the service records of the petitioner did not find him suitable
on comparative merit vis-a-vis opposite party no.4 for promotion
to the cadre of Additional Principal Secretary and as such
recommended the case of the opposite party no.4 and another
for promotion. It is stated that Rule 21 of 2015 Rules has clearly
stipulated about the repeal of 1963 Rules and therefore, the
provisions of the repealed Rules did not survive to be acted upon
or to confer any right on anybody or to lay down the criteria for
promotion or procedure for the purpose. It is stated that
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promotion to the higher post is based on merit with due regard
to seniority as per the provisions envisaged in Rule 13 of the
2015 Rules read with criteria fixed under the Odisha Civil
Services (Criteria for Promotion) Rules, 1992 and not on the
basis of entries in CCRs alone. An employee having good CCRs
without any adverse entry therein cannot claim automatic
promotion as other eligibility criteria are required for such
promotion. The case of the petitioner is covered under the 2015
Rules and in view of Rule 21 of the said Rules, old qualification
requirement for promotion cannot continue ignoring the new as
prescribed in the Appendix to the 2015 Rules. An employee
cannot remain immune from the new Rules relating to
qualification requirement for promotion to the higher post. The
DPC found the petitioner was having lack of requisite educational
qualification and therefore unsuitable for promotion. The
proceeding of the DPC held on 16.07.2016 was placed before the
Hon'ble Chief Justice who approved the recommendations on
19.07.2016 and ordered that candidates at serial nos. 1 and 4 be
promoted to the post of Additional Principal Secretary against the
newly created vacancies in the Court's establishment as per the
merit. It is stated that an employee coming within the zone of
consideration has a right to be considered for promotion but he
9
cannot ipso facto claim promotion to the post. The
representations of the petitioner are pending awaiting the result
of this writ petition. DPC after perusal of CCRs, antecedents,
service records, performance of the employees in the cadre of
Senior Secretary including the petitioner in the interview and
considering the comparative merit and suitability of all such
candidates, recommended the names of candidates at serial nos.
1 and 4 in the gradation list for promotion in accordance with the
provisions of the Rules. The petitioner did not possess the
minimum educational qualification as required under the 2015
Rules for which he was not found suitable for promotion. It is
stated that the result of subsequent DPC held for promotion to
the cadre of Senior Secretary wherein the incumbents having
Intermediate qualification were given promotion to the post of
Senior Secretary under the same Rules has no relevance to the
case in hand and the same is not comparable with the decision
taken by the DPC giving promotion to the opposite party no.4
and another to the cadre of Additional Principal Secretary which
is a key post in the Court's establishment and its qualification is
different from that prescribed for the post of Senior Secretary. It
is stated that the promotion given in favour of the opposite party
no.4 was with due approval of the Hon'ble Chief Justice. The
10
criteria regarding the educational qualification for promotion to
the post of Addl. Principal Secretary and that for promotion to
the cadre of Senior Secretary, as per rules are distinctly
different. For promotion to the cadre of Additional Principal
Secretary, a candidate should not only possess a Bachelor's
degree and have good knowledge in Hindi and English, but he
should also be a fit person in the opinion of the Hon'ble Chief
Justice to hold such post whereas for promotion to the post of
Senior Secretary, a candidate is only required to possess a
Bachelor's degree. It is further stated in the counter affidavit
that the incumbents in the cadre of Secretary were promoted to
the cadre of Senior Secretary basing upon the principle of merit
with due regard to seniority and suitability by the DPC whereas
the opposite party no.4 and another were promoted to the cadre
of Additional Principal Secretary not only after they were
adjudged suitable by the DPC basing upon the principle of merit
with due regard to seniority and suitability but also after they
were found fit in the opinion of the Hon'ble Chief Justice to hold
such post.
4. The opposite party no.4 filed his counter affidavit
wherein it is stated that the post of Additional Principal Secretary
is the promotional post of which post of Senior Secretary is the
11
feeder post/grade as per the recruitment Rules in vogue. 1963
Rules came to be repealed by 2015 Rules and in the later Rules,
the post of Additional Principal Secretary has been prescribed as
a post to be filled up only by way of promotion and the eligibility
criteria has been prescribed as Bachelor's degree or equivalent
qualification and having good knowledge in Hindi and English and
a person who is fit to hold the post in the opinion of the Hon'ble
Chief Justice besides the experience requirement of at least one
year as Senior Secretary. It is stated that while 2015 Rules was
in vogue, a DPC for filing up three posts of Addl. Principal
Secretary was held on 15.07.2016 and the criteria for promotion
as prescribed under Rule 13(a) being merit with due regard to
seniority and suitability was considered by the DPC and the cases
of all the Senior Secretaries who had put in experience of more
than one year was taken into account and the DPC
recommended two persons namely Kailash Chandra Pati and the
opposite party no.4 for promotion and placed the
recommendation for approval of the Hon'ble Chief Justice in
compliance of the Rules. The opposite party no.4 was
comparatively found to be fit and more meritorious than the
petitioner irrespective of his higher seniority position in the
gradation list of Senior Secretaries prepared. It is further stated
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that the merit being the primary criteria for promotion but not
seniority, the petitioner was adjudged as not fit for such
promotion by the DPC while DPC found the opposite party no.4
as fit or suitable for such promotion against the post of
Additional Principal Secretary. The petitioner lacked the requisite
qualification prescribed in 2015 Rules. It is further stated that in
view of Rule 21 of 2015 Rules, the contentions advanced by the
petitioner basing on the explanation appended to Rule 1 of 2015
Rules is misconceived and unsustainable. Since all the provisions
of 1963 Rules stood repealed specifically w.e.f. 28.02.2015, the
said Rules and prescription therein stood
obliterated/abrogated/wiped out wholly i.e. protanto repeal. It is
stated that the explanation clause to Rule 1 of 2015 Rules cannot
be allowed to make Rule 21 and its effect meaningless.
5. Mr. Sameer Kumar Das, learned counsel for the
petitioner contended that while 1963 Rules was in vogue, the
post of Additional Principal Secretary was introduced to the cadre
of hierarchy of the Stenographer/Secretarial Staff in order to
give them an opportunity for promotion in their service career
and no additional educational qualification was attached to such
post. The new cadre posts were filled up by way of promotion
from the feeder cadre of Senior Secretary and the educational
13
qualification available as prescribed to the post continued to the
higher post. The Senior Secretaries who have I.A/I.Sc/I.Com
qualification to their credit on acquiring required number of
experience were to be given promotion to the next higher post
up to the post of Principal Secretary. It is argued that the
petitioner who was an Intermediate in Arts had the legitimate
expectation to reach the higher post in course of his employment
with selfsame qualification as he had an unblemished service
records. It is argued that even though as per 2015 Rules, the
minimum entry level qualification in the cadre strength of Junior
Stenographer up to the Senior Principal Secretary is Bachelor's
degree in any discipline with other qualifications but in view of
the explanation to Rule 1 of 2015 Rules, the new additional
qualification in the entry level i.e. Bachelor's degree will not
affect a person already in service. In other words, according to
him, the existing employees who did not possess Bachelor's
degree to their credit but continued in different ranks either in
the Secretarial cadre or in the Ministerial cadre can get the
promotion to the next higher rank. It is contended that even
though as per the gradation list, the petitioner was above the
opposite party no.4 but only on the ground of lack of educational
qualification, the case of the petitioner was not considered for
14
promotion by the DPC which is quite unreasonable and illegal.
The learned counsel submitted that another DPC was convened
to give promotion to the post of Senior Secretary from the
Secretaries and even though as per 2015 Rules, the minimum
educational qualification for such higher post was Bachelor's
degree but in its meeting dated 31.03.2017, the DPC
recommended two Secretaries namely Sri Raghunath Sahu and
Sri Akhaya Kumar Dhal, who were having educational
qualification I.A./I.Com. respectively to the post of Senior
Secretaries and accordingly, they were given promotion to the
post of Senior Secretaries on 31.03.2017. It is argued that the
petitioner has been discriminated and debarred from getting the
promotion only on the ground of lack of requisite qualification
and the same violates the fundamental rights of the petitioner
guaranteed under Articles 14 and 16 of the Constitution of India.
While concluding his argument, the learned counsel submitted
that since the petitioner has retired in the meantime even if the
writ petition is allowed, the petitioner will only get some financial
benefits and the opposite party no.4 will not be affected as such.
Sri Jyoti Prakash Patnaik, learned Additional
Government Advocate for the State as well as Mr. Biswa Bihari
Mohanty, learned counsel for the opposite party no.4 supported
15
the decision taken by the DPC as well as the respective stand
taken in their counter affidavits and contended that after the
coming into force of 2015 Rules, the petitioner who was having
no requisite educational qualification for the post of Additional
Principal Secretary could not have been selected for such post
and therefore, the decision taken by the DPC was perfectly
justified and the recommendation made by the DPC was also
considered by the Hon'ble Chief Justice who accepted such
recommendation and therefore, there is no merit in the writ
petition which should be dismissed.
6. Adverting to the contentions raised by the learned
counsel for the respective parties, the following undisputed facts
are borne out of the record:
(i) The petitioner was having educational
qualification of Intermediate in Arts and he was holding the post
of Senior Secretary since 03.11.2012;
(ii) As per the gradation list, the petitioner was
senior to the opposite party no.4 when the DPC was held on
15.07.2016 to consider the case of promotion of Senior
Secretaries to the post of Additional Principal Secretary;
(iii) Hon'ble Chief Justice in exercise of his power
conferred under Article 229 of the Constitution of India in
16
supersession of the 1963 Rules brought 2015 Rules, which was
notified in the Official Gazette on 28.02.2015.
(iv) The minimum qualification for the post of
Additional Principal Secretary was prescribed for the first time in
2015 Rules and such a post was required to be filled up by way
of promotion from the feeder cadre of Senior Secretary;
(v) As per 2015 Rules, the minimum educational
qualification for the post of Additional Principal Secretary is
Bachelor's degree in any discipline from a recognized University
or such other qualification equivalent thereto;
(vi) The DPC considered the cases of persons
available in the cadre of Senior Secretary for promotion and the
name of the opposite party no.4 was recommended for
promotion even though he was junior to the petitioner as per the
gradation list;
(vii) The petitioner was not found suitable for
promotion to the post of Additional Principal Secretary mainly on
the ground of lack of minimum educational qualification.
7. The Orissa High Court (Appointment of Staff) Rules,
1963 and The Orissa High Court (Conditions of Service of Staff)
Rules, 1963 came to be repealed by 2015 Rules. The explanation
to Rule 1 of 2015 Rules provided that nothing in the Rules shall
17
adversely affect any person who was a member of service on the
date of coming into force of the Rules.
The explanation to Rule 1 of 2015 Rules which is
relevant for the case is quoted herein below:
"Explanation:- Nothing in these Rules shall
adversely affect any person who was a member
of the service on the date of coming into force of
these Rules."
The legislative intent behind the explanation which
opens with the words 'nothing in these Rules' is clear and it
shows a purpose that any method of appointment, recruitment
or selection process to a particular post provided in a different
manner in the new Rules which a person is already holding as
per the repealed Rules shall not adversely affect him. This
construction is consistent with the purpose of explanation and it
will be preferred as against any other construction.
It is a cardinal principle of construction that every
statute is prima facie prospective unless it is expressly or by
necessary implication made to have a retrospective operation.
Unless a statute conferring the power to make rules provides for
the making of rules with retrospective operation, the rules made
pursuant to that power can have prospective operation only.
2015 Rules nowhere either expressly or by necessary implication
18
made to have a retrospective operation. It will have prospective
effect and will not adversely affect any person who is a member
of the service as on 28.02.2015 and already holding a particular
post as per the repealed Rules even if for that particular post, a
different method of appointment, recruitment or selection
process is provided in the new Rules. For example, even if a
higher educational qualification has been prescribed for a
particular post as per the new Rules, the person already holding
that post having lesser educational qualification appointed on the
basis of the repealed Rules shall not be adversely affected. In
other words, he cannot be reverted back to any other post lower
in rank which matches his educational qualification. However
after the new Rules came into force, for the next promotional
post, the procedure should be governed as per the new Rules
and educational qualification etc. as prescribed for such higher
post should be adhered to and that is how the explanation to
Rule 1 requires to be interpreted. If the contention of the learned
counsel for the petitioner that by virtue of explanation, the case
of promotion of the petitioner to the next higher post shall also
not be affected adversely on the ground of lack of minimum
educational qualification for such higher post is accepted, then
the repealing provision as provided in Rule 21 of 2015 Rules
19
would be meaningless. In the said Rule, a saving clause has
been provided which states that in spite of the repeal of two
Rules of 1963, any order or appointment made, action taken or
things done under the Rules, Regulations, instructions or Orders
so repealed shall be deemed to have been made, taken or done
under 2015 Rules. A saving clause is used to preserve from
destruction of certain rights or privileges already existing. It
saves or safeguards all the rights the party previously had, not
that it gives him any new rights. In view of such saving clause as
provided in Rule 21, the contention raised by the learned counsel
for the petitioner that even though the petitioner is lacking
educational qualification for the post of Additional Principal
Secretary as per the new Rules, he is entitled to be given
promotion is virtually keeping the old repealed Rules in an active
condition for the purpose of promotion which is not permissible.
It is not in dispute that while 1963 Rules was in
vogue, the post of Additional Principal Secretary was created on
21.11.2011 by way of up-gradation of one post of Senior
Secretary as per notification issued by Government of Odisha,
Home Department which has been concurred by the Finance
Department. No additional educational qualification was also
attached to such post then. However when 2015 Rules came into
20
force by repealing 1963 Rules, minimum qualification, experience
and specific mode of recruitment were provided for such post.
Two posts in the Steno Cadre were further upgraded as
Additional Principal Secretary on 26.02.2016 as per the
notification issued by the Government of Odisha, Home
Department which was concurred by the Finance Department.
Thus any promotion to those posts thereafter would be governed
under the new Rules and not under the repealed Rules.
In the case of Rajasthan Public Service
Commission -Vrs.- Chanan Ram reported in (1998) 4 SCC
202, it is held that it is the rules which are prevalent at the time
when the consideration took place for promotion would be
applicable.
In the case of Deepak Agarwal -Vrs.- State of
Uttar Pradesh reported in (2011) 6 Supreme Court Cases
725, it is held as follows:
"26. It is by now a settled proposition of law
that a candidate has the right to be considered
in the light of the existing rules, which implies
the 'rule in force' on the date the consideration
took place. There is no rule of universal or
absolute application that vacancies are to be
filled invariably by the law existing on the date
when the vacancy arises. The requirement of
21
filling up old vacancies under the old rules is
interlinked with the candidate having acquired a
right to be considered for promotion. The right
to be considered for promotion accrues on the
date of consideration of the eligible candidates.
Unless, of course, the applicable rule, as in Y.V.
Rangaiah's case [(1983) 3 Supreme Court
Cases 284] lays down any particular time
frame, within which the selection process is to
be completed. In the present case, consideration
for promotion took place after the amendment
came into operation. Thus, it cannot be accepted
that any accrued or vested right of the
appellants have been taken away by the
amendment."
In the case of State of Tripura -Vrs.- Nikhil
Ranjan Chakraborty reported in (2017) 3 Supreme Court
Cases 646, it is held as follows:-
"9. The law is thus clear that a candidate has the
right to be considered in the light of the existing
rules, namely, "rules in force on the date" the
consideration takes place and that there is no
rule of absolute application that vacancies must
invariably be filled by the law existing on the
date when they arose. As against the case of
total exclusion and absolute deprivation of a
chance to be considered as in Deepak Agarwal
(supra), in the instant case certain additional
22
posts have been included in the feeder cadre,
thereby expanding the zone of consideration. It
is not as if the writ petitioners or similarly
situated candidates were totally excluded. At
best, they now had to compete with some more
candidates. In any case, since there was no
accrued right nor was there any mandate that
vacancies must be filled invariably by the law
existing on the date when the vacancy arose,
the State was well within its rights to stipulate
that the vacancies be filled in accordance with
the Rules as amended...."
In the case of D. Raghu -Vrs.- R. Basaveswarudu
reported in 2020 SCC Online SC 124, the Hon'ble Supreme
Court held as follows:-
"106. But the High Court was not right in
directing filling-up of vacancies prior to
07.12.2002, based on the 1979 Rules, as after
the 2003 Rules came into force, going by the
intention of the Authority, the right to promotion
would be based on the new Rules, even if the
vacancies arose prior to the new Rules."
In view of the ratio laid down in the above decisions,
merely because the petitioner was having qualification of
Intermediate in Arts and an unblemished service record and had
the expectation to reach the higher post in course of his
23
employment with the self-same qualification, he cannot be given
promotion to such post as the new Rules provided minimum
qualification, inter alia, Bachelor's degree in any discipline from a
recognised University.
Coming to the point of legitimate expectation of the
petitioner as contended by the learned counsel for the petitioner,
in the case of Union of India -Vrs.- Hindustan Development
Corporation reported in (1993) 3 Supreme Court Cases
499, it is held that
"28.....For legal purposes, the expectation
cannot be the same as anticipation. It is
different from a wish, a desire or a hope nor can
it amount to a claim or demand on the ground of
a right. However earnest and sincere a wish, a
desire or a hope may be and however
confidently one may look to them to be fulfilled,
they by themselves cannot amount to an
assertable expectation and a mere
disappointment does not attract legal
consequences. A pious hope even leading to a
moral obligation cannot amount to a legitimate
expectation. The legitimacy of an expectation
can be inferred only if it is founded on the
sanction of law or custom or an established
procedure followed in regular and natural
sequence. Again it is distinguishable from a
24
genuine expectation. Such expectation should be
justifiably legitimate and protectable. Every such
legitimate expectation does not by itself fructify
into a right and therefore it does not amount to
a right in the conventional sense."
In the case of Ram Parvesh Singh -Vrs.- State of
Bihar reported in (2006) 8 Supreme Court Cases 381, the
Hon'ble Supreme Court held as follows:
"15. What is legitimate expectation? Obviously,
it is not a legal right. It is an expectation of a
benefit, relief or remedy that may ordinarily flow
from a promise or established practice. The term
'established practice' refers to a regular,
consistent predictable and certain conduct,
process or activity of the decision-making
authority. The expectation should be legitimate,
that is, reasonable, logical and valid. Any
expectation which is based on sporadic or casual
or random acts, or which is unreasonable,
illogical or invalid cannot be a legitimate
expectation. Not being a right, it is not
enforceable as such.....A legitimate expectation,
even when made out, does not always entitle
the expectant to a relief. Public interest, change
in policy, conduct of the expectant or any other
valid or bonafide reason given by the decision-
maker, may be sufficient to negative the
'legitimate expectation'."
25
There is nothing to show that the decision taken by
the DPC as per 2015 Rules was arbitrary, unreasonable,
discriminatory, unfair, biased, gross abuse of power or in
violation of principles of natural justice. The doctrine of
legitimate expectation ordinarily would not have any application
when the legislature has enacted a statute. Thus the plea of
legitimate expectation does not appear to be of any assistance to
the petitioner.
1963 Rules and 2015 Rules cannot run
simultaneously and the provisions contained in the 1963 Rules
would have to give way to the new Rules in the matter of
method of appointment, recruitment, promotion etc. and only
exception would be that the persons who were already occupying
a particular post shall not be affected adversely by coming into
force of the new Rules and they would continue to hold the said
post even though as per new Rules, higher educational
qualification has been prescribed to hold such post. That is the
true spirit of the explanation to Rule 1 as well as the proviso to
Rule 21 of 2015 Rules.
As per the 2015 Rules, the post of Additional
Principal Secretary is a Group 'A' post which appears in Rule 3 as
category 17 under the heading of 'Classification of Posts'. As per
26
Rule 4, this category of post shall be filled up by way of
promotion from the staff of the High Court of Orissa from the
feeder post/cadre, subject to requisite qualification and
experience as prescribed in Appendix-I of the Rules. Serial No.17
of Appendix 1 to the said Rules prescribes, inter alia, minimum
educational qualification, experience and mode of recruitment to
such post which is as follows:-
(i) Bachelor's degree in any discipline from a
recognized University or such other qualification
equivalent thereto, having good knowledge in Hindi
and English and is a fit person to hold the post in the
opinion of the Hon'ble Chief Justice;
(ii) He should have at least one year experience
as Senior Secretary to the Hon'ble Judges;
(iii) Such post is to be filled up by promotion from
the post of Senior Secretary basing on the merit with
due regard to seniority and suitability.
Therefore, a person holding the post of Senior
Secretary to the Hon'ble Judges at least having one year
experience as such and having Bachelor's degree in any
discipline from a recognized University or such other qualification
equivalent thereto and having good knowledge in Hindi and
27
English can be considered for the post of Additional Principal
Secretary provided that according to the opinion of the Hon'ble
Chief Justice, he is a fit person to hold such post. A person
holding the post of Senior Secretary cannot be automatically
promoted to that post basing on his seniority as per the
gradation list since as per the mode of recruitment, such
promotion is to be based on the merit with due regard to
seniority and suitability. A Senior Secretary in the top of the
gradation list may not be given automatic promotion to the post
of Additional Principal Secretary, if he lacks merit or found to be
not suitable to hold such post. Similarly a Senior Secretary in the
top of the gradation list may not be given automatic promotion
to the post of Additional Principal Secretary even though he is
having minimum educational qualification and good knowledge in
Hindi and English, if according to the opinion of the Hon'ble Chief
Justice, he is not a fit person to hold such post.
Rule 13 of 2015 Rules states that promotions to the
various posts in the High Court service shall be made by the
appointing authority basing on the merit with due regard to the
seniority and suitability as per the provisions specified in Column
(8) of Appendix 1. In the case of Registrar General, High
Court of Madras -Vrs.- R. Gandhi reported in (2014) 11
28
Supreme Court Cases 547, it is held that eligibility is a matter
of fact whereas suitability is a matter of opinion. Suitability
cannot be a subject matter of judicial review. In the case of
Valsala Kumari Devi M. -Vrs.- Director, Higher Secondary
Education reported in (2007) 8 Supreme Court Cases 533,
it is held that the expression 'suitability' means that a person to
be appointed shall be legally eligible and 'eligible' should be
taken to mean 'fit to be chosen'.
Rule 13(e) of 2015 Rules states that the Hon'ble
Chief Justice may, in case of a suitable and highly deserving
candidate or class of candidates and for exigency, dispense with
all or any of the requirements as prescribed under that Rule.
Similarly Rule 20 of 2015 Rules permits the Hon'ble Chief Justice
to relax or dispense with any of the provision of the Rules in case
of administrative exigency for the reasons to be recorded in
writing and by passing an order to that effect.
In the case in hand, even though the case of the
petitioner who was in serial no.2 as per the gradation list was
placed before the DPC along with other three Senior Secretaries
but it was found that the petitioner was lacking minimum
educational qualification to hold the post of Additional Principal
Secretary and therefore, apart from recommending the name of
29
the person who was in serial no.1, the name of opposite party
no.4 who was in serial no.4 as per the gradation list was also
recommended. The person who was in serial no.3 was not
recommended on the similar ground like that of the petitioner.
When the recommendation of the DPC was placed before the
Hon'ble Chief Justice, he also did not think it proper to relax the
provision of educational qualification exercising his power under
Rule 20 of 2015 Rules rather found the persons recommended by
the DPC to be the fit persons to hold such post and therefore, it
cannot be said that at any level, any illegality has been
committed to the case of the petitioner in not recommending his
name for promotion or not selecting him for such post. According
to our humble view, even though seniority is one of the criteria
apart from the service records but other requirements cannot be
given a go-bye while considering someone to the next higher
post. There is no dispute that at the level of Additional Principal
Secretary, a person should have good knowledge in Hindi and
English as he is supposed to deal with the Registry of the Hon'ble
Supreme Court as well as other High Courts and deal with many
important files and therefore, discretion has been left with the
Hon'ble Chief Justice to place the fittest person in such post who
was having necessary qualification and eligibility criteria and in
30
appropriate cases, he has also got the power of relaxation as
provided under Rule 20 of 2015 Rules. The DPC seems to have
perused the CCR, antecedents, service records and performance
of the candidates in the cadre of Senior Secretary and after
taking their interview, considered the comparative merit and
suitability of all the four candidates and accordingly
recommended the name of person who was at serial no.1 and
also of the opposite party no.4. We find no flaw in such
recommendation.
8. The contention of the learned counsel for the
petitioner that in some other posts, where the minimum
educational qualification has been prescribed has been deviated
by the DPC at a subsequent stage and promotion has been given
is based on negative equality which is not acceptable.
Law is well settled that a party cannot claim that
since something wrong has been done in another case, direction
should be given for doing another wrong. It would not be setting
a wrong right but would be perpetuating another wrong. In such
matters, there is no discrimination involved. The concept of
equal treatment on the logic of Article 14 of the Constitution of
India cannot be pressed into service in such cases. What the
concept of equal treatment presupposes is existence of similar
31
legal foothold. It does not countenance repetition of a wrong
action to bring both wrongs at par. It is also the settled legal
proposition that Article 14 of the Constitution does not envisage
a negative equality. Even if in some cases, promotions have
been made by dispensing with any requirements or relaxing any
of the provisions of the Rules on account of some administrative
exigencies in view of the special power lies with the Hon'ble Chief
Justice, that does not confer any right on the petitioner. (Ref:
Sneh Prabha -Vrs.- State of U.P. : A.I.R. 1996 S.C. 540,
Secretary, Jaipur Development Authority -Vrs.- Daulat Mal
Jain : (1997) 1 Supreme Court Cases 35, State of Haryana
-Vrs.- Ram Kumar Mann : (1997) 3 Supreme Court Cases
321, Faridabad C.T. Scan Center -Vrs.- D.G. Health
Services : A.I.R. 1997 S.C. 3801, Jalandhar Improvement
Trust -Vrs.- Sampuran Singh : A.I.R. 1999 S.C. 1347,
Union of India -Vrs.- International Trading Co. : A.I.R.
2003 S.C. 3983, Kastha Niwarak G.S.S. Maryadit, Indore -
Vrs.- President, Indore Development Authority : A.I.R.
2006 S.C. 1142).
The post of Additional Principal Secretary was created
vide Govt. of Odisha, Home Department letter no. 48045 dated
21.11.2011. Two posts were further upgraded vide Govt. of
32
Odisha, Home Department letter no. 7733 dated 26.02.2016.
Thus the total cadre strength became three. It seems that prior
to the promotion to the post of Additional Principal Secretary in
the case in hand, four persons namely, Purna Chandra Chhatoi,
Tulasi Prasad Raiguru, Shyam Sundar Dey and Bibhuti Bhusan
Pati were promoted to the post of Additional Principal Secretary
as per the Orissa High Court (Appointment of Staff) Rules, 1963
and the Orissa High Court (Conditions of Service of Staff) Rules,
1963 at different point of time. Except Purna Chandra Chhatoi,
all the three others were having Bachelor's degree. After 2015
Rules came into force, apart from the opposite party no.4 who
was having qualification of B.Com., LL.B., the other person
promoted in this case was Kailash Chandra Pati who was having
qualification of B.A., LL.B. Therefore, after 2015 Rules came into
force, there is no deviation to the requirement of minimum
educational qualification as has been prescribed in such Rules for
the said post.
9. In view of the foregoing discussions, we are of the
humble view that the proceedings of DPC held on 15.07.2016 for
promotion to the post of Additional Principal Secretary and the
promotion notification in favour of opposite party no.4 vide
Annexure-3 was quite legal, valid and justified. We are also of
33
the view that the petitioner was rightly not promoted to the post
of Additional Principal Secretary in view of lack of eligibility
criteria prescribed for such post as per 2015 Rules and therefore,
he is not entitled to get any service and financial benefits
attached to that post.
Accordingly, the writ petition being devoid of merits
stands dismissed.
.......................
S.K. Sahoo, J.
S. Panda, J. I agree.
......................
S. Panda, J.
Orissa High Court, Cuttack The 29th April 2020/Pravakar/Sisir/RKM/Sukanta