Orissa High Court
Lakshmikanta Mishra vs State Of Odisha And Others on 4 July, 2017
Equivalent citations: AIRONLINE 2018 ORI 258
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
HIGH COURT OF ORISSA: CUTTACK.
W.P.(C) No.13297 of 2016
In the matter of application under Articles 226 and 227 of the Constitution
of India.
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Lakshmikanta Mishra ...... Petitioner.
- Versus-
State of Odisha and Others ...... Opposite Parties.
Counsel for Petitioner : M/s. B. S. Tripathy-1 and S. Sahoo
Counsel for Opp.Parties : M/s. Sadasiva Patra-1, S. Rath and D.
Sahu.
Mr. M. S. Sahoo, Additional Government
Advocate.
PRESENT:
THE HONOURABLE KUMARI JUSTICE SANJU PANDA
&
THE HONOURABLE SHRI JUSTICE SUJIT NARAYAN PRASAD
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Date of hearing and judgment : 04.07.2017
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S. N. Prasad, J.The instant writ petition is under Articles 226 and 227 of the Constitution of India wherein the order passed by the Odisha Administrative Tribunal dtd.20th May, 2016 in O.A. No.2077(C) of 2006 has been challenged whereby and where under the Tribunal has rejected the claim of the petitioner to be promoted as Auditor while giving declaration regarding validity of promotion given in favour of respondent no.4 as Auditor from the cadre of Ferro Printer.
2. The brief fact of the case is that the applicant who entered into service as Jr. Clerk in the year 1985 was appointed in the office of the Joint 2 Director, Geology, South Zone, Berhampur. During incumbency, in pursuance to a requisition made by the opposite party No.1 on 19.2.2002 to fill up the post of Auditor, the petitioner, having all requisite qualifications, applied for the said post on 15.3.2002. As per the statute and the guideline issued by the Director of Mines dtd.22.4.2002, the Jr. Clerks having 10 years experience or the Sr. Clerk having 5 years of experience can only apply for the post of Auditor. In pursuance to the said selection process the case of the petitioner was placed before the Departmental Promotion Committee, meeting of which was held on 12.9.2006 along with the case of the opposite party no.4, despite the said opposite party was not having the requisite qualification for appointment as Auditor, the Departmental Promotion Committee had recommended the case of the o.p.4 for his appointment to the said post of Auditor by ignoring and depriving the genuine case of the petitioner for such appointment.
The requisite qualification for appointment of Auditor as per requisition dtd.22.4.2002 is that the candidate must have passed the final accounts examination conducted by the Board of Revenue and the candidate must have office experience over 5 years as Sr. Clerk / Jr. Accountant, ten years as Jr. Clerk with passing of final accounts examination.
The opposite party no.4 was originally appointed as Ferro Printer in the office of the Joint Director, Geology, Dhenkanal Zone and till the date of submitting his application for the post of Auditor, he was continuing as Ferro Printer and the nature of duty of a Ferro Printer is to print out prints of the sketch maps and plans which is in no way similar with that of the duty of the Jr. Clerk / Sr. Clerk. Promotion stream from the post of Ferro Printer is Tracer and from 3 Tracer to Draftsman which is purely technical in nature and in no way connected with the duty of Ministerial Staff of Auditor, hence under no circumstances the opposite party no.4 could perform the duty of a Jr. Clerk or Sr. Clerk for being considered for the post of Auditor.
3. The petitioner, being aggrieved with the action of the authority, has approached the tribunal vide O.A. No.2077(C) of 2006 raising his grievance questioning the promotion of opposite party no.4, but the Tribunal has rejected the claim of the petitioner while approving the candidature of opposite party no.4. the applicant being aggrieved with the same is before this court by way of the instant writ petition inter alia on the grounds that the opposite party no.4 is not possessing the requisite qualification as per the Odisha Auditors' Service (Methods of Recruitment and Condition of Service) Rules, 1987, herein after referred to as the Rules, 1987, and as such his candidature ought to have been rejected by the authority but instead of doing so, his candidature has been considered and he has been granted promotion as Auditor which is absolutely illegal and contrary to the provision of Rules, 1987.
He submits that the opposite party no.4 originally belong to the post of Ferro Printer which has got altogether different promotional stream since the Ferro Printer being the basic cadre and the next hierarchy is Tracer and thereafter Draftsman, as such the Ferro Printer cannot be granted promotion in the cadre of the Auditor. Since the opposite party no.4 is in the cadre of Ferro Printer, as such he does not possess the requisite qualification as has been prescribed under the provision of Rules, 1987.
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4. The State has been represented by the learned Additional Government Advocate as also the opposite party no.4 has been represented by Mr. Sadasiva Patra-1 who has submitted that although there is no provision under the Rules 1987 to grant promotion as Auditor from the cadre of Ferro Printer, but the Govt. has come out with an instruction on 23.7.2004 for the purpose of consideration of case of promotion of the employees working in the Directorate and sub-ordinate district offices under the administrative control of both the directorates who possess minimum qualification of intermediate in Arts, Science or Commerce with six years of experience and have passed preliminary accounts examination shall be considered for promotion to the post of Auditor, the authorities after taking in to consideration this decision of the Govt. dtd.23.7.2004 has considered the candidature of opposite party No.4 and granted him promotion as Auditor hence there is no illegality in the decision of the authority granting opposite party No.4 promotion to the post of auditor.
They have further submitted that the post of Ferro Printer has been merged in to a common cadre which would be evident from the Govt. decision dtd.21.9.1999 by which the post of Ferro Printers have been brought in a common cadre along with the post of the Auditor and in that view of the matter also the decision of the Govt. cannot be said to be illegal.
Learned counsel for opposite party no.4 has argued that since he has been granted promotion way back before 9 years, as such, on the principle of equity the same may not be struck down.
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5. We have heard the learned counsels for the parties and perused the documents available on record.
Before judicially scrutinizing the order passed by the Tribunal, we thought it proper to go through the relevant rules and the instructions upon which reliance has been placed.
(i) The Govt. has come out with a provision known as the Odisha Auditors' Service (Method of Recruitment and Conditions of Service) Rules, 1987 in exercise to power conferred by the proviso to Article 309 of the Constitution of India laying down the method of recruitment to the post of Auditors through direct recruitment and promotion, relevant rules are rule 2(a), 3,4 and 5, the same are being referred here under as-
"2. Definitions - (1) In these rules, unless the context otherwise requires-
(a) "Department" means a Department of the Secretariat as prescribed in the Rules of Business framed under Clause (3) of Article 166 of the Constitution of India;
3. Composition of the cadre - The service shall consist of the followinggrades, namely:
(i) Auditors, and
(ii) Audit Superintendents;
Provided that the service may consist of such number of permanent and temporary posts including posts for leave and deputation as the Government may, from time to time determine.
4. Method of recruitment - Recruitment to the service shall be made by the following methods, namely:
(a) by direct recruitment to the grade of Auditors;
(b) by promotion through selection from Ministerial ranks of Departments of Government, Heads of Departments, District and Subordinate Offices to the grade of Auditors;
(c) by promotion to the grade of Audit Superintendent 6
5. Determination of vacancies - (1) 75% of vacancies in the grade of Auditors arising within a year shall be filled up by direct recruitment of the candidates declared successful in the competitive examination to be conducted by the Selection Board in the manner and according to a syllabus to be notified by Government from time to time.
(2) 25% of vacancies in the grade of Auditors shall be filled up by promotion through selection in the manner namely,
(a) Jr. Assistants in the Departments of Govt. and Heads of Departments having worked for at least 5 years and possessing minimum qualification of intermediate in Arts, Science, Commerce or equivalent thereto and having successfully undergone Secretariat training or passed preliminary accounts examination, as the case may be, shall be considered for promotion by selection to the grade of Auditors.
(b) Jr. Clerks of District and Sub-ordinate Offices who are Matriculates shall be considered for promotion by selection after having worked as such for a minimum period of 6 years and Jr. Clerks who possess minimum qualification of Intermediate in Arts, Science, Commerce or equivalent thereto would be considered for promotion through selection after having rendered 5 years of service and after passing the preliminary examination in accounts." It is evident from the statutory provision as quoted above that the definition of department has been provided in Rule 2(a) which means a department of secretariat as prescribed in the rules of business framed under clause 3 of Art.166 of the constitution of India.
The provision of rule 3 provides composition of the cadre which shall consists of (i) Auditors and (ii) Audit Superintendent.
Rule 4 provides method of recruitment to the service which shall be made by direct recruitment to the grade of Auditors or by promotion through selection from Ministerial ranks of Departments of Government, Heads of Departments, District and Sub-ordinate Offices to the grade of Auditors.
Rule 5 provides determination of vacancies, i.e. 75% of vacancies in the grade of Auditors arising within a year shall be filled up by direct recruitment of the candidates declared successful in the competitive examination to be 7 conducted by the Selection Board in the manner and according to the syllabus to be notified by Government from time to time.
25% of vacancies in the grade of Auditors shall be filled up by promotion through selection in the manner namely,
(a) Jr. Assistants in the Departments of Govt. and Heads of Departments having worked for at least 5 years and possessing minimum qualification of intermediate in Arts, Science, Commerce or equivalent thereto and having successfully undergone Secretariat training or passed preliminary accounts examination, as the case may be, shall be considered for promotion by selection to the grade of Auditors.
(b) Jr. Clerks of District and Sub-ordinate Offices who are Matriculates shall be considered for promotion by selection after having worked as such for a minimum period of 6 years and Jr. Clerks who possess minimum qualification of Intermediate in Arts, Science, Commerce or equivalent thereto would be considered for promotion through selection after having rendered 5 years of service and after passing the preliminary examination in accounts.
Much emphasis has been given by the learned Addl. Govt. Advocate and the learned counsel appearing for opposite party no.4 upon the communication dtd.23.7.2004 as contained in letter no.3273 issued under the signature of Undersecretary to Govt. addressed to the Director of Mines, Odisha, Bhubaneswar with respect to filling up of the post of Auditors in the directorate of Mines and Directorate of Geology and on the strength of these documents the 8 submission has been advanced that the opposite party no.4 is eligible to be considered since he was working in the Directorate and Sub-ordinate District Offices under the administrative control of both the Directorate and possessed minimum qualification of intermediate in Arts, Science or Commerce with 6 years of experience and have passed preliminary accounts examination their cases may be considered for promotion to the post of Auditors.
It is evident from the said letter, the content of the same is being reproduced herein below for better appreciation of the facts thereof :-
"Letter Dtd.23.7.2004:- I am directed to invite a reference to your letter No.12323/DM dtd.25.11.2003 and No.2538/DM, dtd.17.3.2004 on the subject indicated above and to say that the Orissa Auditors Service (Method of Recruitment and Conditions of Service) Rules, 1987 framed by the Finance Depratment as referred to in your letter dtd.25.11.2003 under reference is meant for appointment of Auditors in different Departments of Secretariat not in the Directorates. This Rules provide 75% of vacancies to be filled up by direct recruitment and 25% on promotion. But in case of Directorate of Mines and Directorate of Geology all the posts of Auditors are filled up by promotion. Therefore, in absence of any cadre rule to regulate the method of recruitment and the conditions of services of Auditors in the Directorate of Mines and Directorate of Geology, Government have been pleased to issue the following instructions to be adopted while filling up of the vacant posts of Auditors in the Directorate of Mines and Directorate of Geology on promotion.
The cases of employees working in the Directorate and Sub-ordinate District Offices under the administrative control of both the Directorates who possess minimum qualification of intermediate in Arts, Science or Commerce with six years of experience and have passed preliminary accounts examination may be considered for promotion to the post of Auditors.
Steps may please be taken to fill up the vacancies of Auditors in both the Directorates at an early date observing usual formalities."
The intention of the authority was to consider the case of promotion of such employees working in the Directorate and Sub-ordinate District Offices and the decision has been taken on the pretext that the provision of Rule 1987 is silent with respect to promotion to the post of Auditors of the employees working in the Directorate and the same has also been strengthened by the learned 9 counsel representing for the State as well as opposite party no.4 that since the opposite party no.4 is working in the Directorate, as such the employees working under it will not come under the purview of the provision of Rule 1987 since it is only been formulated to look into the cases of the employees working under the Secretariat, hence the candidature of opposite party no.4 has rightly been considered.
In this respect learned counsel representing the petitioner has vehemently argued that the letter dtd.23.7.2004 cannot be said to be applicable for opposite party no.4 as because the same is a communication issued under the signature of Undersecretary to Govt. addressed to the Director of Mines, Odisha, Bhubaneswar even it cannot be taken under the parameter of executive instruction by the State of Odisha and further the decision taken by the Govt. cannot supersede the statutory provision as provided under the Rules, 1987 which has been enshrined by the State Government in exercise of power conferred by the proviso to Article 309 of the Constitution of India since it is settled that even executive instruction cannot supersede the statutory provision.
Since the main thrust of argument by the learned Additional Government Advocate as well as learned counsel for opposite party no.4 is based upon the document dtd.23.7.2004, as such we have thought it proper to see the legality and propriety of the said decision taken by the Undersecretary to Govt. addressed to the Director of Mines, Odisha, Bhubaneswar.
Rule is settled that administrative instruction cannot take the shape of statutory effect on the operation of Law, they may guide the officers but the 10 instruction do not have any overriding effect on the operation of the Act and the Law declared by the Supreme Court under Art.141 of the constitution of India, reference in this regard may be made to the judgment rendered in the case Ratan Kumar Tandon and Ors. Vrs. State of U.P., reported in 1997 2 SCC 161, however, the said judgment has been given in the context of the ceiling Act, but the principle decided therein that executive instructions cannot have any overriding effect upon the statute.
In another judgment rendered by Hon'ble Supreme Court in the case of Public Service Commission Vrs. Jagdish Ch. Singh Bora and another, reported in 2014 8 SCC 644 wherein at paragraph 28 it has been held that it is settled proposition of law that the executive orders cannot sub-plant the rules framed under the proviso to Article 309 of the Constitution of India. Such executive orders / instructions can only supplement to the rules framed under Art.309 of the Constitution.
We after taking into consideration the settled proposition of law as also the factual aspect regarding applicability of Rules, 1987 which governs the field regarding recruitment process for filling up of the post of the Auditors, are of the considered view that the letter issued by the authority dtd.23.7.2004 is not in supplement of the Rules, 1987, rather it is in shape of sub-plant the provision of Rules, 1987, as such any decision taken in pursuance to the letter dtd.23.7.2004 will be said to be contrary to the provision of Rule, 1987.
6. It is the admitted case of opposite party no.4 as also the State of Odisha that opposite party no.4 belongs to the cadre of Ferro Printer working 11 under the Directorate. It is also admitted position that the Ferro Printer belongs to different cadre having its separate promotional avenue, i.e. the Ferro Printer being the basic cadre post, next promotional post is Tracer and Draftsman which is purely technical in nature.
It is also admitted position that the opposite party no.4 is not possessing the required qualification as provided under the provision of Rules, 1987, i.e. the working experience as Jr. Assistant or Jr. Clerk for a period of 5 years and 6 years respectively for the purpose of consideration of candidature of such employees to be promoted as Auditors under 25% quota to be filled up by way of promotion through selection.
7. Learned counsel for opposite party no.4 has vehemently argued that the post of Ferro Printer has been merged into a common cadre by the decision of the Govt. taken on 21.9.1999 and by virtue of it the candidature of such employees who are holding the post of Ferro Printer cannot be denied, relying upon the said letter, it has been submitted that as would be evident form Annexure-B as referred in the resolution dtd.21.9.1999 the revised organizational or structure of cadre is indicated in Annexure-B. We have gone through the resolution dtd.21.9.1999, the same is with respect to re-organization of Directorate of Mining and Geology, Odisha which has been taken by the Govt. consequent upon the increase of workload of the Directorate of Mining and Geology by which the Government has implemented the revised organizational structure of the cadre wherein at Annexure-B, the post of Ferro Printer is appearing at sl. No.25 having 9 sanctioned strength while the post 12 of Auditor is at sl. No.28 having 8 sanctioned strength, but that resolution does not in any way reflect that as to whether after the revision in organizational structure, the employees working as Ferro Printer will be eligible to get promotion to the post of auditor since admittedly the opposite party no.4 is not fulfilling the required qualification / eligibility as per the provision of rule.
It is settled proposition of law that promotion is to be granted in a cadre and there cannot be change from one cadre to another for the purpose of consideration of candidature to be promoted in the higher post.
We have already discussed herein above that the opposite party no.4 or the State of Odisha is not disputing the fact that the Ferro Printer and the post of Jr. Clerk is altogether separate cadre having its own promotional post governed by the provision of Rule, 1987 to be promoted to the post of Auditors having the eligibility conditions prescribed under the provision of rule 5(2) under which the opposite party no.4 is not eligible to be promoted rather the opposite party no.4 is showing his eligibility on the basis of the letter dtd.23.7.2004 which we have already held herein above that the same cannot be taken into consideration over and above the provision of Rule, 1987.
8. The contention raised by the learned counsel appearing for o.p.4 that the provision of Rules, 1987 is only applicable for the Secretariat and not applicable to the Directorate, but this contention is not acceptable to us for the reason that Rules, 1987 defines the department which means a department of the Secretariat as prescribed in the rules of business framed under clause 3 of Article 166 of the Constitution of India.
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The Rule 4 provides procedure of recruitment wherein under rule 4(b) the provision has been made to fill up the post of Auditor by way of promotion through selection from Ministerial rank of Departments of Govt., Heads of Departments, District and Sub-ordinate Offices of grade of Auditors. Since the Departments as has been defined under provision of 2(a) which means a Department of Secretariat which includes the Directorate, the Secretariat, the District and Sub-ordinate Offices as because the Directorate where the Director sits cannot be segregated from the Secretariat by giving the employees working in the directorate status of different cadre, reason being that the Department of the State Govt. which is being headed by the Secretary is the over all controlling authority of the Department consisting of the Secretariat to the Directorate and the Sub-ordinate Offices, as such the contention of the opposite party no.4 that the provision of Rule 1987 is not applicable for the employees working under the Directorate is not tenable accordingly the said argument is hereby rejected.
9. In the light of the discussion having been made herein above, we have judicially scrutinized the order passed by the Tribunal wherein the Tribunal, putting reliance upon the letter dtd.23.7.2004 which has been treated to be valid executive instruction, has given declaration regarding eligibility of opposite party no.4 to be considered by the departmental promotion committee, this finding, which we have already held that the executive instruction dtd.23.7.2004 cannot supplement the statutory provision rather it can only sub-plant but this is in supplement to the provision of Rules 1987, hence the opposite party no.4 cannot get any benefit from the said letter dtd.23.7.2004.
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The Tribunal has further observed in the order that opposite party no.4 has appeared in the final accounts examination and also qualified the same and as such he is eligible to be considered for promotion to the post of Auditor, but this finding cannot be said to be tenable as because merely on account of the fact that an employee working in different cadre if qualified in the accounts examination, cannot be said to be eligible to be promoted as Auditor if not possessed the other qualification / eligibility condition as provided under the statutory provision as contained in the Rules 1987, which admittedly, the opposite party no.4 has not got, i.e. possessing the post of Jr. Clerk or Jr. Assistant for the required period of 5 years or 6 years, as the case may be.
It is settled that an employee cannot be recruited or promoted to a post if has got no requisite eligibility qualifications otherwise the promotion or appointment will be said to be de horse the rule.
10. At last learned counsel for Opposite Party No.4 has submitted that on the principle of equity the order of promotion may not be declared to be illegal, rather he may be allowed to continue in the post, but this argument is not acceptable to us reason being that if any appointment / promotion is being given to an employee is de horse the rule, the concerned employee has got no right to continue with the said post and in that situation the principle of equity is not applicable. Accordingly, this argument is rejected.
11. We, after taking into consideration the settled principle and the discussion having been made by us herein above, are of the considered view that the Tribunal has not appreciated the fact in its right perspective as per the 15 detailed discussion made herein above, accordingly, we are of the view that the order passed by the Tribunal is not sustainable in the eye of law, hence the same is quashed.
In the result, the writ petition stands allowed.
12. The authorities are directed to consider the case of the petitioner and take decision in this regard within reasonable period, preferably within eight weeks from the date of receipt of copy of the order, if he is otherwise eligible.
It is made clear that the authorities will take its own decision regarding the claim of the petitioner depending upon the factual aspect.
13. This Court intends to pass an order taking into consideration the fact that the Opposite Party No.4 has been granted promotion as Auditor by the authority in pursuance to the Letter dtd.23.07.2004, as such there is no misrepresentation on the part of opposite party No.4, hence we thought it proper to restrain the authority to make recovery in view of the judgment rendered by Hon'ble Apex Court in the case of State of Punjab and Others Vrs. Rafique Masih (White Washer, etc.), reported in (2014) 8 SCC 883. As Such we direct the authorities not to make recovery from the Opposite Party No.4 in pursuance of the order passed in this case.
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S.N.Prasad, J. Sanju Panda, J. Orissa High Court, Cuttack, Dated the 4th July, 2017/Manas