Orissa High Court
Chaitanya Charan Padhihari vs State Of Odisha on 2 July, 2024
ORISSA HIGH COURT : CUTTACK
W.P.(C) No.21226 of 2023
In the matter of an Application under
Articles 226 and 227 of the Constitution of India, 1950
***
Chaitanya Charan Padhihari Aged 57 years Son of Manguli Charan Padhihary Treasury Sarkar Sardar Vallabhbhai Patel Post Graduate Institute of Paediatrics (Sishu Bhawan) P.O.: Chandini Chowk, P.S.: Lalbag District: Cuttack. ... Petitioner.
-VERSUS-
1. State of Odisha Represented through Principal Secretary Health and Family Welfare Department Government of Odisha Secretariat Building, Bhubaneswar, District: Khordha.
2. Director of Medical Education & Training, Odisha Heads of Department Building, Bhubaneswar District: Khordha.
3. Superintendent Sardar Vallabhbhai Patel Post Graduate Institute of Paediatrics (Sishu Bhawan) P.O.: Chandini Chowk, P.S.: Lalbag District: Cuttack. ... Opposite parties.
W.P.(C) No.21226 of 2023 Page 1 of 43Counsel appeared for the parties:
For the Petitioner : M/s. Niranjan Lenka, Hemant Kumar Mohanta, N. Lenka, P.K. Barik, S. Rana, G. Dash, Advocates For the Opposite parties : Mr. Pusparaj Bhardwaj Additional Standing Counsel P R E S E N T:
HONOURABLE MR. JUSTICE MURAHARI SRI RAMAN Dates of Hearing : 21.06.2024 :: Date of Judgment : 02.07.2024 J UDGMENT MURAHARI SRI RAMAN, J.--
THE CHALLENGE:
Assailing an Order dated 21.06.2023 passed by the Superintendent of Sardar Vallabhbhai Patel Post Graduate Institute of Paediatrics (for short "Sishu Bhawan"), Cuttack, rejecting the claim for appointment against the vacant post of Assistant Steward in Sishu Bhawan, Cuttack, in connection with the direction of this Court vide Order dated 23.02.2023 in W.P.(C) No.29386 of 2020, the petitioner filed the instant writ petition seeking to invoke provisions of Articles 226 and 227 of the Constitution of India and prayed for grant of following relief(s):W.P.(C) No.21226 of 2023 Page 2 of 43
"It is therefore, prayed that this Hon'ble Court be graciously pleased to admit the writ application, issue rule NISI in the nature of writ of mandamus or any other writ/writs as deem fit and proper calling upon the opposite parties to show cause as to why the order contained in Memo No.3701 dated 21.06.2023 of the opposite party No.3 vide Annexure-20 shall not be quashed And why the said opposite party No.3 shall not be directed to give appointment to the petitioner against the post of Assistant Steward in SVPPG Institute of Paediatrics, Sishu Bhawan, forthwith in view of the Order dated 23.02.2023 passed by the Hon'ble Court in W.P.(C) No.29386 of 2020 And why the aforesaid Order dated 23.02.2023 shall not be complied in its letter and spirit.
In the event of the opposite parties fail to show-cause or show insufficient cause said rule be made absolute.
And further be pleased to pass any order/orders direction/directions as deem fit and proper.
And for this act of kindness the petitioner shall as in duty bound ever pray."
THE FACTS:
2. The petitioner, being selected, joined in the post of Assistant Steward, Group-C Post, at Sishu Bhawan, Cuttack pursuant to Order dated 18.09.1987 (Annexure-
1) of the opposite party No.3-Superintendent of Sishu Bhawan, Cuttack, which is extracted hereunder:W.P.(C) No.21226 of 2023 Page 3 of 43
"Office of the Superintendent Institute of Paediatrics, Cuttack-2 No._______/IP, dated, Cuttack the 16th September, 1987 Sri Chaitanya Charan Padhiary S/o Sri Maguni Ch. Padhiary, a sponsored candidate of Employment Exchange, Cuttack bearing Regd. No.C/2315/83 is temporarily appointed on probation basis in the post of Assistant Steward in the scale of pay of Rs.780-28-860- 12-960-20-1050-EI-22-1160 with usual D.A. A.D.A. as admissible under rules from time to time.
The above appointment is purely temporary and terminable at any time without notice and without assigning any reason thereto.
Sd/-
Superintendent Memo No.4517/IP dated, Cuttack the 15th, September, 1987 Copy forwarded to Sri Chaitanya Charan Padhiary for information and guidance.
He is directed to join on or before dt.22.09.1987 A.N. positively failing which the appointment will be treated as cancelled.
He is to produce the following documents at the time of joining:
1. Marriage Certificate
2. Certificate of allegiance
3. Medical certificate from any Asst. Surgeon"W.P.(C) No.21226 of 2023 Page 4 of 43
2.1. The opposite party No.3 retrenched the petitioner from service by an Order dated 30.12.1989, which is quoted hereunder:
"Office of the Superintendent Institute of Paediatrics, Cuttack-2 Order No.______/SVP, dated Cuttack the 30th December, 1989 The appointment of Sri Chaitanya Ch. Padhiary, who was appointed as Asst. Steward vide this office order no.74516 is hereby terminated with effect from 31.12.1989, as per the Government in Health & Family Welfare, Department, Letter No.P-01. IP-66/89/41728, dated 27.12.1989.
Similarly Sri P.K. Upadhaya who was posted as Junior Clerk vide this Office Order No.3119 dated 20.07.87 is hereby reverted to his former post of Assistant Steward with effect from 31.12.1989 as per the above letter.
Superintendent S.V.P. Sishu Bhawan Memo No.4352/IP dated, 30.12.89 Copy forwarded to Sri Chaitanya Charan Padhiary/P.K. Upadhaya for information and guidance, necessary handing over charge be made."
2.2. Considering grievance of the petitioner, the Government of Odisha in Health and Family Welfare Department by Order No.ME.-1-IM-9/1991/H, dated 19.02.1991 directed the Superintendent of Sishu Bhawan to "adjust W.P.(C) No.21226 of 2023 Page 5 of 43 Sri Chaitanya Charan Padhihary, an ex-employee"
"against any vacant Class IV", according to which the petitioner, "whose service was terminated from the post of Assistant Steward vide Government Order No.6381, dated 01.03.1990" has been "adjusted against a vacant post of Ward Attendant in the scale of pay of Rs.750-12- 870-KB-14-040/with usual D.A. as admissible rules time to time".
2.3. While continuing against the Group-D post (i.e., Ward Attendant), in the year 1991, a Group-C post was available. Therefore, the petitioner submitted a representation before the opposite party No.3 and also to the Government of Odisha for his consideration against the Group-C post. The opposite party No.1-State of Odisha, Principal Secretary, Health and Family Welfare Department, Khordha directed the opposite party No.3 to appoint the petitioner against the said vacant Group-C post. It is alleged that though the opposite party No.3 recommended for appointment of the petitioner against the said post, which was lying vacant since 1992, the said authority filled up the said post by appointing an outsider. Subsequently another post in Group-C fell vacant in 1996, but the same was not considered in favour of the petitioner; and again an outsider was appointed against said vacant Group-C post.
W.P.(C) No.21226 of 2023 Page 6 of 432.4. The petitioner, while working as Ward Attendant and thereafter as Laboratory Attendant, the opposite party No.3 by an Order dated 09.07.1999 directed him to work as "Treasury Sarkar". The petitioner has been working as such till date. Ignoring the case of the petitioner for appointment against Group-C post, other candidates have been given appointment in Sishu Bhawan, Cuttack, even though on many occasions such posts in Group-C were available.
2.5. The petitioner approached the Odisha Administrative Tribunal, Cuttack Bench, Cuttack by way of filing O.A. No.339(C) of 2011 under Section 19 of the Administrative Tribunals Act, 1985. Vide Order dated 18.02.2011 it was directed that the opposite party No.3 was required to consider the case of the petitioner taking into account the fact that he was given regular appointment against a Group-C post, relevant portion of which is quoted hereunder:
"The applicant, who is presently working as Treasury Sarkar in S.V.P.P.G. Institute of Paediatrics, Cuttack has filed this O.A. with a prayer for a direction to the respondents to consider the applicant's case for his promotion/absorption to the post of Junior Clerk lying vacant in the office of the respondent No.3 pursuant to the Order dated 25.08.2010 of the respondent No.3 or against any other Class-III post as per the Order of the Government under Annexure-5.
*** W.P.(C) No.21226 of 2023 Page 7 of 43 Considering the submissions made by the learned counsel for both the parties, the respondent No.3 is directed to consider the grievances of the applicant as has been made in his representation dated 06.08.2010 (Annexure-
9) treating the contents of the O.A. along with its annexures as a part thereof and dispose of the same by a reasoned order within a period of two months from the date of communication of this order along with copy of the O.A. and communicate his decision to the applicant immediately thereafter.
The respondent No.3 is at liberty to take his independent decision in the matter on its own merit and dispose of the representation of the applicant in accordance with law, for which the Tribunal expresses no opinion.
The O.A. is, accordingly, disposed of."
2.6. As nothing fruitful yielded, the petitioner filed a contempt petition being C.P. No.135(C) of 2011 before the Odisha Administrative Tribunal, which has been disposed of with the following Order on 29.11.2021 passed by this Court in CONTC (CPC) No.135 of 2011 (being converted after abolition of the Odisha Administrative Tribunal):
"Even though an objection is raised by the learned Counsel appearing for the contemnor(s) on the maintainability of the contempt proceeding involving the contemnor(s) herein, this Court observes, the direction issued in the final order passed in O.A. No.339(C) of 2011 is not meant to be ignored or not complied with. Even though notice in the contempt petition has been issued since long, no show cause or compliance affidavit has been filed as of now. To avoid any further loss of time, W.P.(C) No.21226 of 2023 Page 8 of 43 this Court in disposal of the contempt petition directs, in the event the final order passed in the aforesaid O.A. is not complied with as of now, the present incumbent shall work-out the same within a period of one & half months from the date of communication of an authenticated copy of this Order by the Petitioner(s), provided the order of the Tribunal is not pending in higher forum with an order of stay of such order. The compliance report be filed before the Registry of this Court within a period of one week thereafter. Failure of compliance of this order shall be construed to be deliberate violation of this Court's Order and there will be initiation of a suo motu contempt proceeding against the contemnor(s)."
2.7. In view of information supplied by the Public Information Officer, Office of Superintendent of S.C.B. Medical College and Hospital, Cuttack that four posts of Junior Clerk in Group-C were lying vacant as on 13.02.2012 (Annexure-7), the petitioner approached the learned Odisha Administrative Tribunal, Cuttack Bench, Cuttack in O.A. No.911(C) of 2012 seeking for a direction to consider his case against the said vacancy at S.C.B. Medical College and Hospital, Cuttack and the learned Tribunal by Order dated 03.08.2012 disposed of the said Original Application directing the opposite party No.3 to take action on the grievance of the petitioner, relevant portion of said order is extracted hereunder:
"*** Learned counsel for the applicant submits that at Annexure-4, the matter was referred for considering the case of the applicant for appointment as Junior Clerk. However, instead of appointing him, another person has W.P.(C) No.21226 of 2023 Page 9 of 43 been appointed under the Rehabilitation Assistance Scheme at Annexure-5. As per the information obtained by him under the RTI Act, four posts of Junior Clerks are still available. Hence, the learned counsel for the applicant submits that the matter be referred to the respondents for considering his case in pursuance of his representation at Annexure-3.
*** Heard both parties. As requested by the learned counsel for the applicant, a copy of the paper book be sent to the respondent No.3 for reference only. Respondent No.3 is directed to pass appropriate orders with reference to Annexure-3, taking into account the submissions made in the paper book, within a period of one month from the date of receipt of a copy of this order under intimation to the applicant.
With these orders, the O.A. is disposed of."
2.8. Pursuant to the said Order, the opposite party No.3 passing an Order dated 31.12.2012 informed the Commissioner-cum-Secretary to Government, Health and Family Welfare Department that since no post of Junior Clerk was available at Sishu Bhawan, Cuttack, the Superintendent, S.C.B. Medical College and Hospital, Cuttack be directed to appoint the petitioner against one of the vacancies. On instruction from the Government, the opposite party No.3 forwarded the representation of the petitioner by a letter dated 24.04.2013 to the Superintendent of S.C.B. Medical College and Hospital, Cuttack for consideration. But till date the same had not W.P.(C) No.21226 of 2023 Page 10 of 43 been considered, but on the specious plea of the opposite parties that the petitioner had not appeared before the said Hospital authorities.
2.9. When the petitioner came to know that the opposite party No.3 relieved Prafulla Kumar Upadhaya, on his retirement from the post of "Steward" while working in Sishu Bhawan, Cuttack on attaining age of superannuation by Office Order dated 31.03.2020, the petitioner submitted representation before the opposite parties praying for his appointment against the said vacant post of Steward or the Assistant Steward, but to no avail. Therefore, the petitioner approached this Court by way of filing a writ petition bearing W.P.(C) No.11732 of 2020 seeking for a direction to the opposite parties to appoint him against the vacant post of Steward or Assistant Steward in Sishu Bhawan, Cuttack, wherein vide Order dated 10.06.2020 direction was issued to the opposite party No.3 to take a decision on the representation of the petitioner within a period of three months.
2.10. Non-compliance of the said Order dated 10.06.2020 passed by this Court gave rise to filing of a contempt petition, being CONTC No.3916 of 2020, which got disposed of by Order dated 13.10.2020 directing the contemnors to comply with the Order dated 10.06.2020 passed in W.P.(C) No.11732 of 2020 within a period of W.P.(C) No.21226 of 2023 Page 11 of 43 15 days from the date of service of copy of said Order on the contemnors, failing which suo motu contempt proceeding would be initiated.
2.11. The opposite party No.3 served an Order No.4560 dated 19.10.2020, whereby the grievance of the petitioner has been rejected on the premise that, "*** the service of the applicant Sri Chaitanya Charan Padhihari was regularised against the post of Treasury Sarkar in the Office of the opposite party No.3 on 09.07.1999 with usual scale of pay, D.A. and other allowances admissible from time to time and at present the applicant holding said post of Treasury Sarkar which is a Group-C post vide G.A. Department No.15404-SC/5- 3/2010/Gen, dated 03.08.2010 and 2444-GAD-SC- ASSO-0006/2014/Gen, dated 25.01.2019 and continuing as such. *** *** As far as the posting of applicant against the post of Assistant Steward it is submitted that the Assistant Steward post is till now not vacant and whenever vacancy arises, he same is to be filled up through open selection process as has been done in past. ***"
2.12. Challenging the said Order dated 19.10.2020 of the Superintendent of Sishu Bhawan, Cuttack-opposite party No.3, the petitioner filed a writ petition, being W.P.(C) No.29386 of 2020, which vide Order dated 23.02.2023 has been disposed of with the following observation:
"*** Having heard learned counsel appearing for the parties and taking into account the entirety of the facts as W.P.(C) No.21226 of 2023 Page 12 of 43 well as the vacancy arising out of the promotion extended in favour of Sri Benudhar Maharana vide Order dated 15.07.2021 to the post of Steward, this Court while disposing the writ petition, directs the opposite party No.3 to consider the case of the petitioner for his appointment as against the post of Assistant Steward and appoint his as against the said post. The entire exercise shall be completed within a period of one (1) month from the date of receipt of this order.
The writ petition and all the pending I.As., are accordingly disposed of."
2.13. On 02.02.2023, the petitioner submitted an application along with Order dated 23.02.2023 passed by this Court before the Superintendent of Sishu Bhawan for consideration, but as no steps was taken, contempt petition, bearing CONTC No.3258 of 2023, was filed on 07.05.2023. However, vide Order dated 21.06.2023, the opposite party No.3 rejected the grievance of the petitioner.
2.14. The said Order dated 21.06.2023 which is subject-
matter of challenge in the present writ petition is reproduced hereunder:
"Office of the Superintendent, S.V.P.P.G. Institute of Pediatrics, Cuttack-753002 No.________//Dt.21.06.2023 Order One Sri Chaitanya Charan Padhihari has filed a case before the Hon'ble Court of Orissa vide W.P.(C) No.29386 W.P.(C) No.21226 of 2023 Page 13 of 43 of 2020 praying for a direction to the opposite parties to consider his case against vacant post of Assistant Steward under the administrative control of O.P. No.3, i.e., Superintendent, S.V.P. Post Graduate Institute of Paediatrics (Sishu Bhawan), Cuttack consequent upon the promotion given to one Benudhar Maharana to the post of Steward.
Whereas, the Hon'ble High Court while disposing of the case vide Order dt.23.02.2023 have been pleased to direct the O.P. No.3 i.e., Superintendent, S.V.P. Post Graduate Institute of Paediatrics (Sishu Bhawan), Cuttack to consider the case of the petitioner for his appointment as against the post of Assistant Steward and appoint his as against the said post. The entire exercise shall be completed within a period of one month from the date of receipt of the order.
And whereas, the petitioner Sri Padhihari submitted a certified copy of the aforesaid Order dated 23.02.2023 vide representation dtd.01.03.2023 which was received in the Office of the O.P. No.3 on 01.03.2023.
And whereas, the matter involves policy decision, the Government, Health & Family Welfare Department, Odisha, Bhubaneswar was moved vide this Office Letter No.1974 Dt.17.03.2023 seeking necessary instruction in the matter. In this connection, the Govt. Health and F.W. Department, Odisha vide Letter No.HFW-MSIII-CASE- 0058-2020-14203/H Dtd.16.06.2023 communicated the office of the O.P. No.3 to comply the Order dated 23.02.2023 of the Hon'ble Court on the basis of guidelines issued by the Political & Services Department (now G.A. & P.G. Department) vide Memo No.8403-Gen dt.10.07.1961 and merit.W.P.(C) No.21226 of 2023 Page 14 of 43
And whereas, to comply the aforesaid order, the case of the petitioner Sri Chaitanya Charan Padhihari who is working as Treasury Sarkar in the Office of Superintendent, S.V.P. Post Graduate Institute of Paediatrics (Sishu Bhawan), Cuttack has been examined in detail on merit on the basis of available records and in the light of existing Rules/Guidelines/Resolutions/ Instructions and the following points are noted:
1. The petitioner was initially appointed as Asst.
Steward on 18.09.1987 on temporary basis as sponsored candidate of Employment Exchange, Cuttack. The appointment of the petitioner in the post of Assistant Steward was made against the vacancy that arose due to adjustment of the previous Asst. Steward to the post of Junior Clerk. While continuing as such his predecessor was reverted to his former post of Assistant Steward against which the petitioner was appointed. Consequently, the petitioner was terminated from the post of Assistant Steward with effect from 31.12.1989 pursuant to Government Order No.41728, dated 27.12.1989.
2. The petitioner approached the Govt. Health & F.W. Department, Odisha vide grievance petition dated 02.02.1991 and to this effect, Govt. Health & F.W. Department vide letter No.6381/H Dt.19.02.1991 instructed the O.P. No.3 the Superintendent, S.V.P. Post Graduate Institute of Paediatrics (Sishu Bhawan), Cuttack to take necessary steps to adjust the petitioner, an ex-employee of your establishment against any vacant post of Class-IV under intimation to the Govt. Accordingly, the O.P. No.3 vide Order No.894 dtd.16.03.1991 absorbed/adjusted the petitioner against the post W.P.(C) No.21226 of 2023 Page 15 of 43 of Ward Attendant to which the petitioner accepted without any objection and joined as such on 16.03.1991. Subsequently, the petitioner was absorbed against the created post of Laboratory Attendant in the scale of pay of Rs.800-15-1010-Rs.80-1160 vide office Order No.1227 Dtd.04.06.1992.
3. The petitioner while working as Lab. Attendant, a Class-IV Post, was given promotion to the post of Treasury Sarkar, a Class-III (Group-C) Post vide office letter No.2829 Dt.09.07.1999 in the pay scale of Rs.2650-65-3300-70-4000/- with usual D.A. and other allowances as admissible from time to time. Now, the petitioner has availed all the consequential benefits such as RACP, MACP etc. and presently he is drawing the salary of Rs.36,100/- in the Cell 18 of Level 5. Further, it is noted that the post of Treasury Sarkar comes under the Ministerial Cadre.
4. The Govt. Health & F.W. Department vide letter No.26755 dated 03.08.2002 has communicated the subordinate offices to discourage the irregular practice of inter-cadre promotion i.e. Ministerial Cadre to Non-Ministerial Cadre/Ex-Cadre, as because the pay of promotional post is fixed under Rule 79(b) of OSC which is inconsistent with the provision as contemplated in Rule 79(c) of OSC.
5. The Political & Services Department (now G.A. & P.G. Department) vide Memo No.8403-Gen dt.10.07.1961 clarifies as follows:
a) There is no instruction or rule laying down the procedure for filling up ex-cadre posts.
Such posts can therefore be filled up either W.P.(C) No.21226 of 2023 Page 16 of 43 by direct recruitment or by promotion not strictly according to seniority as the appointing authority decides taking into account the duties involved and the ability of the candidates for such work.
b) No employee in the general cadre has any legitimate claim for the ex-cadre post. The person who has been holding the ex-cadre post is the only person who can have a claim on the post for confirmation when it is made permanent.
c) There is no hard and first rule to give officiating promotion to the ex-cadre post. The appointing authority is at liberty to fill up the officiating vacancy, either from the general cadre of the same Department or any other Department. So far the question whether the holder of the ex-cadre post can be given officiating promotion in the general cadre, this will be permissible, if he retains a lien or claim in the regular cadre and the chances of his promotion has arisen according to his seniority in the general cadre.
In view of the facts aforementioned and Letter No.14203/H dated 16.06.2023 of Health and F.W. Deptt., Govt. of Odisha, Bhubaneswar, the claim/prayer of petitioner made therein the writ petition for appointment against the vacant post of Assistant Steward merits no consider and hence rejected.
Sd/-
Superintendent S.V.P.P.G.I.P., Cuttack"
W.P.(C) No.21226 of 2023 Page 17 of 43RESPONSE OF THE OPPOSITE PARTIES:
3. It is submitted in the counter affidavit filed by the opposite party No.3 that without any demur the petitioner has accepted the post of Ward Attendant (Group-D) post vide Order dated 16.03.1991 and subsequently, he was absorbed for the Diagnostic Centre of Sishu Bhawan vide Order in Memo No.1228(3), dated 4th June, 1992 against newly created post of "Laboratory Attendant" by virtue of Government Order No.24241/H, dated 01.07.1991. Refuting the allegation of outsiders being given appointments overlooking the case of the petitioner, it has been submitted that the posts like Junior Grade Typist and Junior Clerk were filled up by appointing persons waiting under the Odisha Civil Services (Rehabilitation Assistance) Rules, 1990.
3.1. Explaining further, it is submitted that the petitioner was allowed to work in the post of Treasury Sarkar in the Office of the opposite party No.3 with usual scale of pay vide Order under Memo No. 6544 dated 20.11.1997.
The service of the petitioner was regularized against the vacant post of Treasury Sarkar vide Order No. 2830 dated 09.07.1999 in the usual scale of pay of Rs.2650- 65-3300-70-4000/- with usual D.A. and other allowances admissible from time to time. As per Government of Odisha, General Administration Department Resolution No. 16858/GA, dated W.P.(C) No.21226 of 2023 Page 18 of 43 25.09.1986, it has been clearly mentioned in Para No. 3 that "the post of Record Suppliers and Treasury Sarkar are Class-III posts just above Class-IV posts". It has also been clarified in the Government of Odisha, General Administration Department Resolution No.3180-Gen., dated 09.02.1994 dealing with "Promotion of Class IV Employees to Class III Post" that Treasury Sarkar post is Class-III/Group-C post just above Class-IV/Group-D post. Therefore, it is pleaded that the contention of the petitioner that he is in Group-D post is not true and de hors record. It is stated that the service of the petitioner has been regularized against the vacant post of "Treasury Sarkar" vide Order No. 2829, dated 09.07.1999, which is a Group-C post.
3.2. With respect to vacancy arose in the post of Steward it has been explained that said post is ex-cadre post, which remained vacant on superannuation of Benudhar Maharana and one post of Assistant Steward (ex-cadre) remained vacant after promotion of Mr. Benudhar Maharana from Assistant Steward to the post of Steward of Sishu Bhawan. It is, therefore, submitted that Steward post and Assistant Steward post are ex-cadre posts and not borne in ministerial cadre. There is no rule/guideline in vogue to fill up the ex-cadre posts. However, since the post of Steward (ex-cadre) is vertically above the post of Assistant Steward (ex-cadre) it can reasonably be said that a person holding the W.P.(C) No.21226 of 2023 Page 19 of 43 Assistant Steward (ex-cadre) can be promoted to the post of Steward (ex-cadre).
3.3. It is, therefore, submitted by the opposite parties that there being no scope to consider the petitioner, working as Treasury Sarkar in the category of Group-C, since 1999, for appointment as Assistant Steward, an ex-cadre post.
HEARING:
4. Questioning propriety and legality of the Order in Memo No.3701, dated 21.06.2023 issued by Superintendent, Sishu Bhawan refusing to appoint the petitioner against vacant post of Assistant Steward the writ petition being filed, the counsel for both the sides conceded that pleadings are completed and, therefore, final hearing of the matter could be taken up for disposal. Accordingly, heard Sri Niranjan Lenka, learned Advocate for the petitioner and Sri Pusparaj Bhardwaj, learned Additional Standing Counsel for the opposite parties. Hearing being concluded on 21.06.2024, the matter is kept reserved for preparation of Judgment and delivery thereof.
Arguments/Submissions:
5. Sri Niranjan Lenka, learned counsel for the petitioner reiterating the factual narration as made in the writ petition, submitted that the petitioner was initially appointed as Assistant Steward on 18.09.1987 on W.P.(C) No.21226 of 2023 Page 20 of 43 temporary basis against a vacancy vice adjustment of his predecessor-Assistant Steward to the post of Junior Clerk. But, said predecessor was reverted to the post of Assistant Steward against which the present petitioner was appointed. Therefore, the authorities terminated his service with effect from 31.12.1989. However, consequent upon intervention of the Government of Odisha in Health and Family Welfare Department, he was adjusted against Ward Attendant, Class IV (Group- D) post vide Office Order No.894 dated 16.03.1991 and subsequently, the petitioner was absorbed in the post of Laboratory Attendant in the scale of pay of Rs.800-15- 1010-80-1160 vide Office Order No.1227, dated 04.06.1992. As the post of Assistant Steward is lying vacant consequent upon promotion being accorded to Sri Benudhar Panda to the post of Steward, there being no impediment for the opposite parties to comply with the direction of this Court vide Order dated 23.02.2023 passed in W.P.(C) No.29386 of 2020 by extending the relief to the petitioner as prayed for.
5.1. Advancing his argument further, Sri Niranjan Lenka, learned Advocate urged that vide Order in Memo No.4096, dated 16.07.1997 (Annexure-21) the petitioner was allowed to function as "Treasury Sarkar", which is treated to be a Class-IV (Group-D). Therefore, as the petitioner was initially appointed as Assistant Steward in the year 1987 against a post in the category of Group-C, W.P.(C) No.21226 of 2023 Page 21 of 43 it is improper for the opposite parties to adjust and made the petitioner to continue in the post of Treasury Sarkar, even though the post of Assistant Steward has fallen vacant. Notwithstanding directions of this Court in earlier writ petitions, the opposite parties for the reason best known to them have been showing indifference.
6. Sri Pusparaj Bhardwaj, learned Additional Standing Counsel submitted that since the petitioner joined in the post of Ward Attendant, Class-IV (Group-D) post in the year 1991 and the post of Laboratory Attendant being created by the Government vide Order no.24241/H, dated 01.07.1991, he joined in the said post pursuant to Order in Memo No.1228, dated 04.06.1992, at this stage he cannot claim for engagement in the post of Assistant Steward (ex-cadre post).
6.1. It is submitted that the petitioner, while working as "Laboratory Attendant" has accepted the promotional post of "Treasury Sarkar" with his usual scale of pay, i.e., Rs.800-1150/- in Sishu Bhawan vide Order in Memo No.6544, dated 20.11.1997 and subsequently, his service was regularised in the post of Treasury Sarkar by Order in Memo No.2830, dated 09.07.1999. Sri Pusparaj Bhardwaj, learned Additional Standing Counsel placing reliance on Resolution dated 25.09.1986 and Resolution dated 09.02.1994 submitted that the post of "Treasury Sarkar" has been recognised as a Class-III (Group-C) W.P.(C) No.21226 of 2023 Page 22 of 43 post, as such the petitioner having accepted such promotional post and being regularised in the said post since 1999, there cannot be any infirmity imputed to the Order dated 21.06.2023 passed by the Superintendent of Sishu Bhawan.
6.2. The learned Additional Standing Counsel further contended that in terms of Political and Services Department (at present General Administration and Public Grievances Department) Memo No.8403-Gen., dated 10.07.1961 as communicated by the Government of Odisha in Health and Family Welfare Department vide Letter in File No.14203-HFW-MSIII-CASE-0058-2020/H, dated 16.06.2023 clearly laid down that no person in general cadre has any legitimate claim for the ex-cadre post. In other words, the person who has been holding the ex-cadre post is the only person who can have a claim on the post. As the post of Treasury Sarkar, held by the petitioner being ministerial post, he cannot be taken to ex-cadre post, i.e., Assistant Steward. Furthermore, both the posts do belong to Group-C category. Therefore, it is urged that the claim of the petitioner has been rightly rejected by the Superintendent of Sishu Bhawan.
ANALYSIS WITH DISCUSSIONS:
7. The record reveals the factual aspect that the petitioner was allowed to work as "Treasury Sarkar" by Order W.P.(C) No.21226 of 2023 Page 23 of 43 issued in Memo No.6544, dated 20.11.1997 and subsequently the Superintendent of Sishu Bhawan issued the following Order:
"Office of the Superintendent:
S.V.P. Post Graduate Institute of Paediatrics: Cuttack-2.
Order No. _________/SVPPGIP, dated, Cuttack, the ____th July, 1999.
In continuation of this Office Order No.6543, datd 20.11.1997, the service of Sri Chaitanya Charan Padihary, Laboratory Attendant is hereby regularised as Treasury Sarkar in the usual scale of pay Rs.2650-65-
3300-70-4000/- with usual D.A. and other allowances amissible time to time.
Superintendent S.V.P. Post Graduate Institute of Paediatrics, Cuttack-2 Memo No.2830/SVP, PGIP, dated 09.07.1999 Copy to Sri Chaitanya Charan Padihary, Laboratory Attendant, S.V.P. PGIP, Cuttack-2 for information and necessary action.
Superintendent S.V.P. Post Graduate Institute of Paediatrics, Cuttack-2"
7.1. The General Administration Department Resolution No.16858/Gen., dated 25.09.1986 envisaged that post of Treasury Sarkar falls under Class-III (Group-C) category. The relevant portion of said Resolution is extracted hereunder:W.P.(C) No.21226 of 2023 Page 24 of 43
"No.16858/Gen. Government of Orissa General Administration Department *** RESOLUTION Bhubaneswar, Dated the 25/09/1986 Sub.: Promotion of Class-IV employee to Class-III posts
1. In order to provide adequate promotional facilities to qualified Class-IV Government servants to Class III posts, Government, after careful consideration, have been pleased to decide that 50% of the vacancies arising in a particular year in the categories of Class III posts like Recorder, Assistant Recorder, Diarist, Pasting Clerk and similar other posts in which noting and drafting are not ordinarily required should be filled up by Class IV employees who have passed at least ME School Certificate Examination or an equivalent examination and have rendered not less than 5 years of service under Government provided, they come out successful in a qualifying test prescribed for the purpose in Paragraph-4 of this resolution.
2. It is further declared that, the remaining 50% vacancies will be filled up from amongst the Class-IV employees who have passed matriculation or an equivalent examination and have rendered not less than 10 years of service and Record Supplier and Treasury Sarkar, who are matriculates In case sufficient number of matriculate candidates are not available, the vacancies meant for they shall be filled up by suitable candidates by direct recruitment of matriculates.W.P.(C) No.21226 of 2023 Page 25 of 43
3. It has also been decided that, the posts of Record suppliers and Treasury Sarkars, which are Class-III posts just above Class-IV posts should be entirely filled up from among suitable Class- IV employees ie. Daftari, Jamaders, Peons, who possess the minimum educational qualification of M.E. standard. The Record Suppliers, Treasury Sarkar, who have passed M.E. School Certificate Examination will, however, be allowed to compete in test prescribed for Class-IV employees in paragraph promotion to other Class-Ill posts like Recorder, Diariest, Pasting Clerk against the 50% of the vacancies meant for Class-IV employces."
7.2. In similar fashion in General Administration Department Resolution No.3180/Gen., dated 09.02.1994, it has been reiterated that, "In order to provide adequate promotional facilities to qualified Class-IV Government servants to Class-III posts, Government after careful consideration have been pleased to decide that 50% of the vacancies arising in the categories of Class-III posts like Recorder, Assistant Recorder, Diarist, Pasting Clerk and similar other posts in which noting and drafting are not ordinarily required should be filled up by Class-IV employees who have passed at least M.E. School Certificate Examination or an equivalent examination and have rendered not less than 5 years of service under Government, provided they come out successful in a qualifying test prescribed for the purpose in this resolution.
*** It has been decided that the posts of Record Supplier and Treasury Sarkar which are Class-III posts just above W.P.(C) No.21226 of 2023 Page 26 of 43 Class-IV posts should be entirely filled up from among suitable Class-IV employees, i.e., diarists, jamadars, peons, who possessed the minimum educational qualification of M.E. standard. The Record Supplier, Treasury Sarkar, who have passed M.E. School Certificate Examination will, however, be allowed to compete in the test prescribed for Class-IV employees in paragraph 1 for promotion to other Class-III posts like Recorder, Assistant Recorder, Diarist, Pasting Clerk against the 50% quota meant for non-matriculate Class-IV employees."
7.3. Therefore, this Court repels the contention of the counsel for the petitioner that the post of Teasury Sarkar falls in the category of Class-IV (Group-D); as such the claim of the petitioner to the post of Assistant Steward, a Class-III (Group-C) post, is untenable.
8. It is not gainsaid that the post of Assistant Steward and Steward are ex-cadre posts, whereas Treasury Sarkar is ministerial post. Therefore, this Court finds force in the submission of the learned Additional Standing Counsel that no ministerial employee is entitled to be appointed as Steward/Assistant Steward. It can, thus, be clarified that the Assistant Steward and Steward appointed by the Health Department/Hospital/Medical College do not belong to the ministerial cadre and the post of Steward can be filled up only by way of promotion by an Assistant Steward. The converse cannot hold good, i.e., filling up vacancies in the posts of Assistant Steward or Steward from amongst employees of ministerial cadre is not proper.
W.P.(C) No.21226 of 2023 Page 27 of 438.1. In the counter affidavit the opposite parties have referred to Order dated 21.01.2000 of the learned Odisha Administrative Tribunal passed in O.A. No.1198 of 1989 [Judhisthira Panda Vrs. State of Odisha], wherein it has been held as follows:
"In view of the aforesaid admission by the Government, the following conclusions can be drawn:
(i) the Assistant Stewards and Stewards of any Medical College or for that matter in the Health Department, do not belong to the ministerial cadre;
(ii) their inclusion in the gradation employees-officers of ministerial cadre is improper;
(iii) the post of Steward can be filled up only by promotion by an Assistant Steward. Filling up of the post of Steward by appointing a ministerial cadre employee is not justified."
8.2. In the Memo No.8403-Gen, dated 10.07.1961 of Political and Services Department [now, General Administration and Public Grievances Department], it has been clarified as regards promotions vis-à-vis ex-cadre as follows:
"Memo No. 8403-Gen., dated the 10th July 1961 from the Political & Services Department to the Law Department Subject: Procedure to be followed in making appointments, promotion, confirmation of persons in ex-cadre posts-Clarification W.P.(C) No.21226 of 2023 Page 28 of 43 With reference to Law Department Memo No. 2921- Est.-140/60-L, dated the 28th April 1961 on the subject noted above, the undersigned is directed to furnish the replies seriatim as below:
(1) There is no instruction or rule laying down the procedure for filling up ex-cadre posts. Such posts can therefore be filled up either by direct recruitment or by promotion not strictly according to seniority as the appointing authority decides taking into account the duties involved and the ability of the candidates for such work.
(2) The Service in an ex-cadre post will not count for purposes of seniority, promotion and confirmation in the general cadre. On reversion to the regular cadre, the person will occupy his former position in the cadre.
(3) No employee in the general cadre has any legitimate claim for the ex-cadre post. The person who has been holding the ex-cadre post is the only person who can have a claim on the post for confirmation when it is made permanent.
(4) There is no hard and first rule to give officiating promotion to the ex-cadre post. The appointing authority is at liberty to fill up the officiating vacancy, either from the general cadre of the same Department or any other Department. So far the question whether the holder of the ex-cadre post can be given officiating promotion in the general cadre, this will be permissible, if he retains a lien or claim in the regular cadre and the chances of his promotion has arisen according to his seniority in the general cadre.W.P.(C) No.21226 of 2023 Page 29 of 43
(5) The past of Grade I Assistant to the Chief Secretary is an ex-cadre post and the incumbent of the post is not a regular recruit though the P.S.C., but has been given promotion from the rank of diarist. As he does not hold any permanent post in the general cadre of the P&S Department, he has no claim for promotion in the general cadre.
As Home Department deal with the matters relating to Ministerial Government servants, Law Department is advised to get the position confirmed from Home Department."
8.3. In the instant case, it is affirmed by the opposite parties that by virtue of Order in Memo No.2830/SVP, dated 09.07.1999, the service of the petitioner has been regularised in the post of Treasury Sarkar while he was working as Laboratory Attendant. The promotional post of Treasury Sarkar, a Class-III (Group-C) post, being accorded to the petitioner from Class-IV (Group-D) post i.e., Laboratory Attendant, in the scale of pay of Rs.2650- 65-3300-70-4000/- with usual D.A. and other allowances as admissible from time to time vide Office Order dated 09.07.1999, all consequential benefits of the Revised Assured Career Progression (RACP), etc. have been availed by him. It is stated that the petitioner has been drawing salary of Rs.36,100/- in Cell No.18 of Level-5 at present. Therefore, the petitioner is not justified in claiming for appointment for an ex-cadre post, i.e., Assistant Steward.
W.P.(C) No.21226 of 2023 Page 30 of 438.4. This Court while disposing of writ petition being W.P.(C) No.29386 of 2020 filed by the present petitioner passed the following Order on 23.02.2023:
"***
5. However, considering the direction issued by the Government on 19.02.1991 under Annexure-3 the Petitioner was appointed as an Ward Attendant which is a Group-D post vide Order dated 16.03.1991 under Annexure-4. It is further contended that while continuing as such the Petitioner was absorbed as against a Group-C post i.e. Treasury Sarkar. However, it is contended that since the Petitioner was originally appointed as an Assistant Steward from which post he was retrenched illegally, Petitioner seeking his appointment as against the post of Assistant Steward moved an application under Annexure-13 before Opposite Party No. 3. As the same was not considered, the Petitioner approached this Court in W.P.(C) No. 11732 of 2020. This Court vide Order dated 10.06.2020 disposed of the said writ petition with a direction on the Opposite Party No. 3 to consider the Petitioner's grievance as made under Annexure-13.
6. It is contended that in consideration of the same and without proper appreciation of the Petitioner's claim, Opposite Party No. 3 rejected the prayer of the Petitioner vide the impugned order dated 19.10.2020 under Annexure-16, which is under challenge in this writ petition.
7. Mr. Lenka, learned counsel for the Petitioner further contended that though by the time the impugned W.P.(C) No.21226 of 2023 Page 31 of 43 order was passed on 19.10.2020 there was no vacant post of Assistant Steward, but in the meantime in view of the promotion given to the incumbent Assistant Steward to the post of Steward vide Office Order dated 15.07.2021, the Petitioner can very well be accommodated as against the post of Assistant Steward.
8. Mr. S.N. Pattnaik, learned AGA on the other hand contended that the Petitioner though has been absorbed against the post of Treasury Sarkar, which is a Group-C post, but time and again approaching the authority more particularly Opposite Party No. 3 for his appointment as against the post of Assistant Steward. However, it is contended that in view of the promotion given to the incumbent Assistant Steward to the post of Steward, the post of Assistant Steward has fallen vacant. The claim of the Petitioner can be considered as against the said vacancy, if necessary order will be issued in that regard.
9. Having heard learned counsel appearing for the Parties and taking into account the entirety of the facts as well as the vacancy arising out of the promotion extended in favour of Sri Benudhar Maharana vide Order dated 15.07.2021 to the post of Steward, this Court while disposing the writ petition, directs the Opposite Party No. 3 to consider the case of the Petitioner for his appointment as against the post of Assistant Steward and appoint him as against the said post. The entire exercise shall be completed within a period of one (1) month from the date of receipt of this order.
10. The writ petition and all the pending I.As. are accordingly disposed of."W.P.(C) No.21226 of 2023 Page 32 of 43
8.5. Instruction in pursuance of aforesaid direction was issued by the Government of Odisha in Health and Family Welfare Department vide Letter No.14203-HFW- MSIII-CASE-0058-2020/H, dated 16.06.2023 to the Superintendent of Sishu Bhawan to consider the grievance of the petitioner taking into consideration the clarification of the Political and Services Department Memo dated 10.07.1961.
8.6. Accordingly, the Superintendent of Sishu Bhawan passed the impugned Order dated 21.06.2023 rejecting the claim of the petitioner and held that the post of Treasury Sarkar falls within "ministerial cadre" and the Health and Family Welfare Department vide Letter No.26755 dated 03.08.2002 has communicated the subordinate offices to discourage the irregular practice of inter-cadre promotion, i.e., ministerial cadre to non- ministerial cadre/ex-cadre, as the pay in promotional post is fixed in terms of the Odisha Service Code.
8.7. At this juncture, reference to Rule 11 of the Odisha Service Code may be apt to be referred to in order to ascertain the true purport of the term "cadre". The term is defined as "the strength of a service or part of service sanctioned as a separate unit". Normally, an ex-cadre post means a post outside the cadre posts comprised in a service and all posts in the service whether permanent W.P.(C) No.21226 of 2023 Page 33 of 43 or temporary are generally regarded as cadre posts. (See, O.P. Singla Vrs. Union of India, (1985) 1 SCR 351).
8.8. In Ran Singh Malik Vrs. State of Haryana, (2002) 3 SCC 182, it is said that there is no fetter on the powers of the State Government to create ex-cadre post and that going by the normal connotation "a cadre would ordinarily mean the strength of a Service or a part of the Service so determined by the Government, constituting the post therein.", nonetheless, it is held in Union of India Vrs. R.S. Chopra, (2002) 6 SCC 381 that creation of excess ex- cadre posts by the State Government than permitted by rules is contrary to law and such posts do not exist in the eye of law. Therefore, the holder of such a post cannot claim pay scales of the post.
8.9. In Jaskaran Singh Brar Vrs. State of Punjab, 2004 SCC OnLine P&H 1029 = ILR (2005) 1 P&H 143 = (2005) 1 SLR 792, the fine distinction between "cadre" and "ex-cadre"
as noticed by the Punjab and Haryana High Court is worthy of reproduction:
"This takes us to question No. 4, namely, what is an ex- cadre post and where does it stand vis-a-vis a cadre post. "Cadre" is a well-defined connotation in the service jurisprudence. Invariably, a service and/or posts created in relation to the affairs of the Union and/or States, are governed by either the legislative enactments or the Rules framed by the subordinate legislation in exercise of its powers under proviso to Article 309 of the Constitution of India. In the Acts/Rules, as the case may be, the "service"W.P.(C) No.21226 of 2023 Page 34 of 43
and the "posts" which are governed by such Acts/Rules are defined. Since the posts are created for running an efficient administration, namely, in public interest, the total strength of such posts is also invariably reflected in the Acts/Rules governing such posts. The strength of "service" or the posts, namely, a part of "service", along with their identified nomenclature as well as the mode of their recruitment and/or eligibility conditions required to be possessed to man the same, are normally known as the "cadre posts". However, in the administrative exigencies and to meet urgent requirements and/or to deal with a situation having arisen due to unforeseen circumstances, sometimes posts are created which appear to be similar to some existing cadre posts either due to their deceptive nomenclature or in the nature of the duties attached to such posts, which are known as the "ex-cadre posts". Since these posts do not form a part of the total strength of posts governed under the Act/Rules, as the case may be, obviously these posts are not treated as cadre posts and are thus strictly not governed by the Act/Rules meant for the cadre posts. Normally, an "ex- cadre post" is a diminishing cadre and once the incumbent goes, the post also stands abolished. It is for this precise reason that the incumbent of an "ex- cadre post" is always an outsider to the "cadre" and does not have any right either for fixation of inter se seniority in the cadre nor can claim pay scale, promotions and other incidental perks admissible to the incumbents of the cadre posts for the obvious reason that both are not governed by the same set of Act/Rules."
8.10. The decision in Dr. Chakradhar Paswan Vrs. State of Bihar, (1988) 2 SCC 214, clarifies the position that it is open for the Government to constitute two distinct W.P.(C) No.21226 of 2023 Page 35 of 43 cadres in any particular service as it may choose according to administrative convenience and expediency. It is also well-established principle vide State of Maharashtra Vrs. Purushottam, (1996) 8 SCC 266 that services rendered by an employee in one cadre cannot be taken into account for determining the seniority in another cadre unless by any rules of seniority this privilege is conferred.
8.11. It is well settled that a cadre may consist of permanent as well as temporary post and there may be permanent vacancies in permanent as well as temporary post, but it does not follow that appointment made outside the very service and outside the cadre must be considered to be made to temporary post borne on the cadre merely because, the post was likely to continue indefinitely.
8.12. In State of Odisha Vrs. Sri Jagabandhu Panda, (2013) 4 SCR 1080 it has been succinctly discussed with respect to the jurisdiction of the Court to issue writ of mandamus to encadre the ex-cadre post as follows:
"24. In T.N. Administrative Service Officers Association and Another Vrs. Union of India and Others, (2000) 5 SCC 728 this Court was considering a case where the Members of the State Administrative Services made a claim that a number of ex-cadre or temporary posts which were temporary in nature and some of them were created under the State Enactments which required their manning by IAS Officers. It was contended that on account of failure W.P.(C) No.21226 of 2023 Page 36 of 43 of the Central Government to timely review the cadre strength as statutorily required, the promotion of the promotees got inordinately delayed and they lost their seniority in the promoted cadre. The rule does not confer any right on the petitioners to seek a Mandamus for encadring those ex-cadre/temporary posts. Any such Mandamus would run counter to the statutory provisions governing the creation of cadre and fixation of cadre strength which was held that asking the State or the Central Government for encadrement of the ex-cadre/temporary posts will amount to asking the Government to create more posts.
25. In the background of the law well settled by this Court, we are of the definite opinion that the direction issued by the Tribunal and the order of the High Court affirming the order of the Tribunal is wholly without jurisdiction. The impugned orders passed by the Tribunal as also by the High Court are, therefore, liable to be set aside."
8.13. In such view of the matter, in the present context, allowing the petitioner to be placed in the post of Assistant Steward, an ex-cadre non-ministerial post in the category of Group-C/Class-III, in place of Treasury Sarkar, ministerial post in Group-C/Class-III borne in cadre in which time-scale is prescribed, would be to allow him to have the cake and eat it too. It is fact that the petitioner way back in the year 1991 joined the post of Ward Attendant in the scale of pay with usual D.A. and thereafter absorbed in the post of Laboratory Assistant in the year 1992; and subsequently he was W.P.(C) No.21226 of 2023 Page 37 of 43 instructed to work as Treasury Sarkar, in which post his service was regularised in the year 1999, thereby he opted to be appointed against the cadre post (ministerial post). Having accepted the positions as assigned in the ministerial posts, there is no question of now seeking to opt out of cadre to be placed in an ex-cadre post, i.e., Assistant Steward. Hence this Court, accordingly, holds that the petitioner, Treasury Sarkar, Group-C/Class-III borne in cadre post has no right in law to man the ex- cadre post, i.e., Assistant Steward, which is also a Group-C/Class-III post. Such claim cannot be considered as a matter of right or for fixation of his seniority vis-a-vis the cadre officers and/or to place them in the pipeline for future promotions along with others in the cadre posts. Doing otherwise would tantamount to distorting the structure of the cadre and disquieting the process already in place as provided for under Rule 79.
9. It is contended by Sri Niranjan Lenka, learned Advocate that the post of Assistant Steward has been lying vacant consequent upon promotion of Benudhar Maharana to the post of Steward from Assistant Steward. Therefore, he prayed for issue of writ of mandamus to the Superintendent of Sishu Bhawan to appoint the petitioner in the said post.
9.1. Sri Pusparaj Bhardwaj, learned Additional Standing Counsel taking firm stance that "the post of Assistant W.P.(C) No.21226 of 2023 Page 38 of 43 Steward is a Group-C ex-cadre base level post whereas the post of Treasury Sarkar is a Group-C ministerial cadre post" and the Government of Odisha in Health and Family Welfare Department "vide Letter No.26755/H, dated 03.08.2002 have issued instruction to the Director of Medical Education and Training, Odisha to discourage the inter-cadre promotion", referred to following affirmation of the Superintendent, Sishu Bhawan vide affidavit dated 10.11.2021:
"That the Government in Health & Family Welfare Department vide Letter No.25824, dated 15.09.2021 intimated 'The post of Steward is to be filled up by vertical promotion from Assistant Steward as per the Order of learned OAT in case of 1198 of 1989 passed on 21.01.2000. Further, it is stated that, it is improper for consideration of Ministerial Staff like Treasury Sarkar against the post of Steward or Assistant Steward which are ex-cadre post'."
9.2. It is unequivocally well-settled that, 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. It has been held in State of Odisha Vrs. N.N. Swamy, (1977) 2 SCC 508 = (1977) 2 SCR 774 that the eligibility must not be confused with the suitability of the candidate for appointment.
W.P.(C) No.21226 of 2023 Page 39 of 439.3. No employee has vested right to remain posted at a place of his choice nor can he insist that he must be appointed in the post of his choice. If such a course is allowed, no employer can function if the employee insists that once appointed or posted in a particular position can seek for position of his choice. In Mohd. Rashid Vrs. The Director, Local Bodies, New Secretariat, (2020) 1 SCR 76 in the context of merit list vis-à-vis filling up posts, the Hon'ble Supreme Court has made the following observation:
"12. Even after completion of the selection process, the candidates even on the merit list do not have any vested right to seek appointment only for the reason that their names appear on the merit list. In Shankarsan Dash Vrs. Union of India, (1991) 3 SCC 47, a Constitution Bench of this Court held that a candidate seeking appointment to a civil post cannot be regarded to have acquired an indefeasible right to appointment in such post merely because of the appearance of his name in the merit list. This Court held as under:
'7. It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post.
Unless the relevant recruitment rules so indicate, the State is under no legal duty W.P.(C) No.21226 of 2023 Page 40 of 43 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. This correct position has been consistently followed by this Court, and we do not find any discordant note in the decisions in the State of Haryana Vrs. Subhash Chander Marwaha, (1974) 3 SCC 220 = (1974) 1 SCR 165; Neelima Shangla (Miss) Vrs. State of Haryana, (1986) 4 SCC 268 or Jitender Kumar Vrs. State of Punjab, (1985) 1 SCC 122 = (1985) 1 SCR 899.'
13. Since the selection process has not been completed and keeping in view the mandate of the Statutory Rules, we find that the appellants have no right to dispute the action of the Municipal Bodies to fill up the posts either by way of promotion or by deputation as such posts are being filled up in terms of mandate of the Rules. It is always open to the Municipal Bodies to fill up the vacant posts by way of direct recruitment after the posts by way of promotion and/or deputation quota are not filled up either on the basis of recruitment process already initiated or to be initiated afresh."
9.4. Taking cue from the principle so enunciated, this Court has no hesitation to hold that no vested right is created in favour of the petitioner, Treasury Sarkar, which is W.P.(C) No.21226 of 2023 Page 41 of 43 ministerial cadre post. Fallacious it is to claim that as there arose vacancy in the post of Assistant Steward (ex- cadre), on account of promotion of Benudhar Maharana to the post of Steward, the petitioner deserves to be considered to the post of Assistant Steward.
CONCLUSION & DECISION:
10. With the afore-narrated factual scenario juxtaposed with the given legal position, it is unambiguous that the petitioner has accepted to work as Ward Attendant, then functioned as Laboratory Attendant and his service has subsequently been regularised since 09.07.1999 as "Treasury Sarkar", a post borne in ministerial cadre in the category of Group-C/Class-III. Therefore, he is estopped to claim for appointment in the post of Assistant Steward, an ex-cadre non-ministerial Group- C/Class-III post, which fell vacant with effect from 01.04.2020 on Sri Prafulla Kumar Upadhyaya being retired on attaining age of superannuation and on Sri Benudhar Maharana being promoted to the post of "Steward" vide Order dated 15.07.2021.
11. For the reasons stated in the foregoing paragraphs, a well-reasoned Order dated 21.06.2023 passed by the Superintendent of Sardar Vallabhbhai Patel Post Graduate Institute of Paediatrics, Cuttack (Annexure-20) pursuant to direction vide Order dated 23.02.2023 in W.P.(C) No.29386 of 2020, this Court is not inclined to W.P.(C) No.21226 of 2023 Page 42 of 43 disturb the rejection of claim of the petitioner. There being no vested right created in favour of the petitioner notwithstanding the post of Assistant Steward fell vacant since 2020-21, the Superintendent of Sishu Bhawan was well justified in considering the fact that the petitioner had already accepted the promotion to the post of "Treasury Sarkar" from "Laboratory Attendant" in the scale of pay of Rs.2650-65-3300-70-4000/- with usual D.A. and other allowances and availed the benefit of RACP/MACP to overturn the prayer of the petitioner to appoint him as "Assistant Steward".
12. This Court finds no justified reason to interfere with the Order dated 21.06.2023 passed by the Superintendent, Sardar Vallabhbhai Patel Post Graduate Institute of Paediatrics, Cuttack and as a consequence thereof, the writ petition stands dismissed, but in the circumstances there shall be no order as to costs.
(MURAHARI SRI RAMAN) JUDGE Signature Not Verified Digitally Signed Signed by: LAXMIKANT MOHAPATRA Designation: Senior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 02-Jul-2024 14:12:42 High Court of Orissa, Cuttack The 02nd July, 2024// MRS/LAXMIKANT W.P.(C) No.21226 of 2023 Page 43 of 43