Orissa High Court
Rajashree Singh vs State Of Odisha &Another .... Opposite ... on 16 July, 2024
Author: S.K. Panigrahi
Bench: S.K. Panigrahi
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.28062 of 2019
(In the matter of an application under Articles 226 and 227 of the
Constitution of India, 1950).
Rajashree Singh .... Petitioner(s)
-versus-
State of Odisha &Another .... Opposite Party (s)
Advocates appeared in the case through Hybrid Mode:
For Petitioner(s) : Mr. Santosh Kumar Swain, Adv.
For Opposite Party (s) : Mr.Sonak Mishra, ASC
CORAM:
DR. JUSTICE S.K. PANIGRAHI
DATE OF HEARING:-01.07.2024
DATE OF JUDGMENT: -16.07.2024
Dr. S.K. Panigrahi, J.
1. In this Writ Petition, the Petitioner seeks a direction from this Court, quashing the orders passed by Directorate of Industries that terminated the posts of Statistical Assistants and denied her promotions, and also seeks a direction to the Opposite Parties/State to promote her to the post of Statistical Assistant with all consequential benefits.
I. FACTUAL MATRIX OF THE CASE:
2. The brief facts of the case are as follows:
Signature Not Verified Digitally Signed Page 1 of 10 Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 22-Jul-2024 14:11:32
(i) The petitioner has been serving as a Data Entry Operator (DEO) in the Directorate of Industries, Cuttack, Odisha since 14.10.2011, following her appointment on 1.10.2011 under the Odisha Civil Services (Rehabilitation and Assistance) Rules, 1990.
(ii) The petitioner's father/ Rajendra Prasad Singh/ was an Industry Promotion Officer in the Directorate of Industries and he died in harness. Following his death, the petitioner applied for the position of Junior Assistant under the Odisha Civil Services (Rehabilitation Assistance) Rules, 1990. Despite her application for the position of Junior Assistant, the petitioner was appointed as a DEO, an ex-cadre base level post, on 1.10.2011.
(iii) After four years of service, the petitioner requested for a promotion to the post of Statistical Assistant on 27.10.2014, and submitted multiple representations to the concerned authorities.
(iv) An Empowered Committee meeting was held on 10.10.2018, to discuss filling up base level vacant posts. The minutes of the meeting showed justifications for filling four vacant Statistical Assistant posts but concluded that the posts were redundant. On 19.9.2019, the Office of the Director of Industries submitted information to the MSME Department about terminating two Statistical Assistant posts effective30.09.2019.
(v) The petitioner's application for promotion was rejected on 21.11.2019, by the Principal Secretary to the MSME Department, citing the Empowered Committee's decision that the Statistical Assistant post was redundant.
Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Page 2 of 10 Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 22-Jul-2024 14:11:32
(vi) Aggrieved by the termination of Statistical Assistant posts and the rejection of her promotion, the petitioner approached this Court, seeking quashing of the termination and rejection orders and requesting promotion with all consequential benefits II. SUBMISSIONS ON BEHALF OF THE PETITIONER:
3. Learned counsel for the Petitioner earnestly made the following submissions in support of his contentions:
(i) It is submitted that despite working as a DEO since 1.10.2011, and applying for a promotion to Statistical Assistant on 27.10.2014, her promotion has been unjustly denied despite vacancies and justifications for filling the post.
(ii) He further submitted that the Empowered Committee's decision on 10.10.2018 declaring the post of Statistical Assistant as redundant is untenable since the draft minutes provided ample justifications for filling these vacancies to meet the Directorate's targets. Despite the termination of two Statistical Assistant posts, two vacancies still exist.
The petitioner argued that she cannot be denied promotion based on the Empowered Committee's decision/ given the justifications and the existing vacancies.
(iii) The petitioner's appointment did not specify whether it was a cadre or ex-cadre post. The petitioner argued against the claim that she cannot be promoted from an ex-cadre post of DEO to another ex-cadre post of Statistical Assistant, citing the case of one Shishir Kumar Das, who was promoted from DEO to Statistical Assistant in 2001. The petitioner Signature Notpointed out that other Junior Assistants, who were appointed after her, Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Page 3 of 10 Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 22-Jul-2024 14:11:32 have been promoted, while she has remained in the same position without a promotion for over 13 years.
(iv) He further contended the denial of promotion by Opposite Party no. 1 and 2 has caused her to suffer from stagnation in her career and the actions of the authorities are arbitrary, subversive to Principle of Natural Justice.
(v) The petitioner, citing the Apex Court, in the case of Union of India v.
HemrajsinghChauhan and Ors.1 contended that her right to be considered for promotion is a part of her Fundamental Right guaranteed under Article 16 of the Constitution, flowing from the guarantee of equality under Article 14. The petitioner cited several judgments rendered by the Apex Court and this court, emphasizing the importance of promotional opportunities and condemning stagnation in service.
(vi) The Learned Counsel of the petitioner accordingly prays for quashing the orders denying her promotion and seeks a directive for her promotion to the post of Statistical Assistant with all consequential benefits.
III. SUBMISSIONS ON BEHALF OF THE OPPOSITE PARTIES :
4. The Learned Counsel for the Opposite Parties earnestly made the following submissions in support of his contentions:
(i) The petitioner's application for promotion was rejected vide order dated 7.12.2018 and communicated on 21.11.2019. The rejection was based on the nature of the post held by the petitioner. The DEO is an ex-
Signature Not1(2010) Verified 4 Supreme Court Cases 290.
Digitally Signed Signed by: BHABAGRAHI JHANKAR Page 4 of 10 Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 22-Jul-2024 14:11:32 cadre base-level post without a promotional hierarchy to any other post, including the Statistical Assistant. Therefore, the petitioner, as a DEO, is not eligible for promotion to the post of Statistical Assistant.
(ii) He further submitted the Statistical Assistant post is also an ex-cadre base-level post. Since the petitioner is already in an ex-cadre post (DEO), she is not entitled to promotion to another ex-cadre post.
(iii) It was contended that the Statistical Assistant post has been terminated by the government in the MSME Department as on 30.09.2019. The decision was made in a meeting held on 19.10.2019 regarding surplus/redundant posts under the administrative control of the MSME Department. Thus/ the petitioner's request for promotion to this post was considered and rejected appropriately.
(iv) He further contended that the concept of negative equality under Article 14 implies that a wrongful act or illegal order does not create a right for another individual to claim a similar benefit. If a DEO was wrongfully promoted to the Statistical Assistant post, it does not establish a legal basis for the petitioner to demand the same promotion. A reference was made to the case of State of Odisha v. Anup Senapati2where it was decided that wrongful act does not justify similar wrongful benefits for others. The empowered committee decided not to fill up the posts of Statistical Assistants as they were deemed redundant. The proper remedy, therefore, would be to challenge the wrongful promotion rather than seek a similar benefit. Accordingly, the Signature Not2 (2019) Verified 19 SUPREME COURT CASES 626.
Digitally Signed Signed by: BHABAGRAHI JHANKAR Page 5 of 10 Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 22-Jul-2024 14:11:32 learned counsel for the Opposite Parties, accordingly, prays for dismissal of this Writ Petition.
IV. COURT'S REASONING AND ANALYSIS:
5. Heard learned counsel for the Parties and perused the materials placed on record. The Directorate of Industries functions under the administrative control of Micro, Small & Medium Enterprises (MSME) Department. They were facing performance issues due to numerous vacancies in Group-B and Group-C positions. As per Finance Department Office Memorandum No.29913/F dated 31.08.2019, the necessary information regarding the termination of certain posts were provided for government action and resultantly, the post of Statistical Assistant was declared redundant.
6. Subsequently, the Office of Director of Industries, vide their letter dated 19.09.2019 submitted the required information to the MSME Department, Government of Odisha, regarding the termination of certain posts. Accordingly, two of the four Statistical Assistant posts were terminated with effect from 30.09.2019.
7. It is in the above factual background that the petitioner invoked the writ jurisdiction of the High Court to quash the Empowered Committee's decision declaring the posts of Statistical Assistant redundant and to challenge the rejection of Principal Secretary of the MSME Department of the petitioner's promotion request.
Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Page 6 of 10 Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 22-Jul-2024 14:11:32
8. The Apex Court, in the case of State of Orissa v. Rajkishore Nanda3 has adequately dealt with the issue of the State's responsibility to fill up existing vacancies. The Court opined that ‚It is the exclusive prerogative of the employer/State Administration to initiate the selection process for filling up vacancies occurred during a particular year. There may be vacancies available but for financial constraints, the State may not be in a position to initiate the selection process for making appointments."
9. This issue can be further substantiated by the Apex Court's judgment in the case of Shankarsan Dash v. Union of India4 where the Court has held in Para 7 as under:
"7...Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted..."
10. A plain reading of the above paragraph reveals that while it is within the employer's or the State's discretion to fill or leave vacancies unfilled, this discretion cannot be exercised arbitrarily. The decision not to fill the vacancies must be bona fide and supported by appropriate reasons. In the present case, the vacancy remained unfilled due to the Empowered Committee's decision to declare the post redundant. Regarding the 3 Signature Not4(2010) 6 SUPREME COURT CASES 777.
Verified (1991) 3 SUPREME COURT CASES 47.
Digitally Signed Signed by: BHABAGRAHI JHANKAR Page 7 of 10 Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 22-Jul-2024 14:11:32 other two vacancies, it is within the discretion of the MSME Department to decide whether to fill them up.
11. This case falls squarely within the ambit of a service matter and the State has on its discretion did not like to fill up for some compelling reasons, and judicial interference in such matters is inappropriate. The Apex Court confronted a similar issue in the case of Zahoor Ahmad Rather v. Sheikh Imtiyaz Ahmad5 and has held in Para 27 as under:
"27..The state is entrusted with the authority to assess the needs of its public services. Exigencies of administration, it is trite law, fall within the domain of administrative decision making. The state as a public employer may well take into account social perspectives that require the creation of job opportunities across the societal structure. All these are essentially matters of policy. Judicial review must tread warily...."
12. While addressing the abovementioned issues, this Court encounters a core Constitutional principle: the judiciary must exercise restraint and refrain from intervening in administrative decisions of the executive that require specialized expertise, except in case where there is evidence of mala fides or prejudice.
13. Furthermore, the Madras High Court, in the case of B. Muthuramalingam vs. The Secretary 6 has opined that ‚Filling up of posts is an administrative decision and the prerogative of the Government of India. Employee cannot seek for any direction to fill up the post or claim a promotional post. When such rights are not conferred on the employees, the relief as such sought for in this writ petition cannot be granted." 5 Signature Not6(2019) 2 SUPREME COURT CASES 404.
Verified W.P. (MD) No. 11534 of 2021 Digitally Signed Signed by: BHABAGRAHI JHANKAR Page 8 of 10 Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 22-Jul-2024 14:11:32
14. Accordingly, it would be wholly improper for this Court to issue direction to the MSME Department for giving promotion to the petitioner since the petitioner has not established any legal right that would warrant directing the respondent to consider his representation. Issuing such a direction to the relevant authority would not serve the cause of justice without the petitioner first establishing a legal right.
15. In response to the Petitioner's claim of a violation of her Fundamental Right under Article 14, it is important to understand a key principle in the constitution: the idea of "negative equality" does not exist. This means that if someone receives a benefit or advantage without a legal reason, others cannot use that as a basis to claim the same benefit or equality.
16. Further, the Apex Court in the case of Basawaraj and Anr. V. Special Land Acquisition Officer7 has held in para 8 as under:
"8. It is a settled legal proposition that Article 14 of the Constitution is not meant to perpetuate illegality or fraud, even by extending the wrong decisions made in other cases. The said provision does not envisage negative equality but has only a positive aspect. Thus, if some other similarly situated persons have been granted some relief/benefit inadvertently or by mistake, such an order does not confer any legal right on others to get the same relief as well. If a wrong is committed in an earlier case, it cannot be perpetuated."
17. In the above backdrop, even if I go by the merits of the case, such promotion from the post of DEO to Statistical Assistant was granted to Mr. Shishir Kumar Das back in 2001. The decision of the Empowered Signature Not7(2013) Verified 14 SUPREME COURT CASES 81.
Digitally Signed Signed by: BHABAGRAHI JHANKAR Page 9 of 10 Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 22-Jul-2024 14:11:32 Committee's decision of declaring the post of Statistical Assistant redundant followed much later in 2019. Following the present directive by the concerned authorities, there are no promotional avenues available to the petitioner. Consequently, the case of Mr. Shishir Kumar Das cannot be used as a precedent to claim a similar benefit. Hence, the prayer of the Petitioner cannot be accepted
18. Accordingly, this Writ Petition stands dismissed.
19. Interim order passed earlier stands vacated.
(Dr.S.K. Panigrahi) Judge Orissa High Court, Cuttack, Dated 16th July, 2024/ Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Page 10 of 10 Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 22-Jul-2024 14:11:32