JAYADEV KAR Vs. STATE OF ORISSA

JUDGEMENT

(1.) This wit petition involves issuance of Writ of Mandamus or any other appropriate Writ/direction upon quashing the decision of the Promotion Committee of Pathani Samanta Planetarium (herein after called as "PSP") held on 13.9.2005, vide Annexure-15 thereby holding that the petitioner alone is legally entitled to be considered for promotion to the post of Deputy Director (Technical) of the PSP and that O.P.4 having been appointed as Technician in a lower rank not entitled to be considered along with the petitioner for the promotion involved. Further to hold that the petitioner is entitled to his pay in the revised scale of pay with effect from 1.5.1989 duly taking into account four advance increments granted to the petitioner at the time of his initial appointment in 1988 in the post of Assistant Planetarium Engineer and allowing all consequential relief.

(2.) Short background involving the case is PSP is a Society duly registered under the Societies Registration Act, 1860 and is managed and controlled by the State Government in the Department of Science and Technology being an instrumentality of the State comes within the ambit of Article 12 of the Constitution of India. The Governing Body of the PSP in its proceeding held on 6.2.1988 decided to create one post of Planetarium Engineer and two posts of Technician along with other posts in the PSP, vide Annexure-2. Based on such decision of the Governing Body, an advertisement was issued in Oriya daily, "The Samaja" on 21.4.1988 inviting applications from the intending candidates in the scale of pay of Rs.2250-3500/-. There was also simultaneous advertisement for the post of Technician in the scale of pay of Rs.1350-2975/- and Jr. Technician in the scale of pay of Rs.1050-2085/-, vide Annexure-

(3.) Pursuant to said advertisement, the petitioner, who is a Graduate Engineer working at the relevant time as a Lecturer in Electronics under the Directorate of Industries, Government of Odisha, made an application for the said post. The petitioner was also intimated, vide letter dated 23.8.1988 to appear for an interview on 31.8.1988 for appointment to the post of Planetarium Engineer, vide Annexure-4. It is claimed that though the petitioner had applied for the post of Planetarium Engineer and asked to appear for an interview involving the said post but however the case of the petitioner was recommended by the Selection Committee for posting in the rank of Sr. Technician/Assistant Planetarium Engineer with four advance increments giving due regard to the qualification and performance, consequently the petitioner was also issued with an appointment order. Decision of the Selection Committee appears at Annexure-5 and the offer of appointment issued to the petitioner appears at Annexure-6. Based on the offer of appointment the petitioner joined the post of Assistant Planetarium Engineer. In the meantime, revised pay scale of the Government of Odisha came into effect from 1.5.1989 prescribing pay scale for both the posts of Assistant Planetarium Engineer and Technician at Rs.2580/-, as appearing at Annexure-7. It is alleged that though there may not be any dispute that both the posts, i.e., Assistant Planetarium Engineer and Technician got into one scale of pay but after applying the revised scale of pay, since the petitioner was given four additional increments on his joining the post and also considering that the Assistant Planetarium post was equivalent to the post of Senior Technician, it was incumbent upon the PSP to give the benefit of four additional increments even after the revision of the pay is implemented in the year 1989, both the petitioner and O.P.4 under no circumstance could have been placed in one salary. The petitioner made a grievance for his appointment in a lower post and also against equalizing his scale along with the post of Technician in the same scale. The grievance of the petitioner was forwarded to the Chairman, PSP, who is also the Secretary to Government in the Department of Science and Technology, who vide his note dated 29.3.1990 observed that the question of promotion of the petitioner may arise at least after three years of service of the petitioner in the PSP and that too subject to availability of a higher post. In the meantime, Government in the appropriate Department conveyed the approval of the State Government for different posts in the PSP and as against the scale of pay of the posts of Assistant Planetarium Engineer and Technician provided therein was Rs.2000-3,500/-. Finding such improper and illegal fixation of pay of the petitioner vis -vis O.P.4 and denial of four increments, which was allowed to him at the initial appointment of the petitioner, as Assistant Planetarium Engineer, the petitioner submitted a detailed representation to the Chairman of the PSP on 24.6.1996, vide Annexure-9. This representation of the petitioner was considered by the Chairman, who made an observation in his consideration that four advance increments granted to Sri Kar at the time of his initial appointment in 1988 should have been taken into account while fixing his pay in the revised scale of pay made operative from 1.5.1989 and that denial of such benefit amounts to grave injustice and thus directed for placing a proposal in the light of observation before the next Governing Body meeting of the PSP for upgrading the post of Assistant Planetarium Engineer to that of Planetarium Engineer and appointing the petitioner in the said post as his service was found to be satisfactory by the Chairman. The petitioner alleged that in spite of such clear direction, no action was taken by the Governing Body either to re-fix the scale of pay of the petitioner or to give him promotion to the post of Planetarium Engineer, for which the petitioner was constrained to submit a representation to the Governing Body making a request therein to give justice to the petitioner. In the meantime, the petitioner also submitted another representation to the Hon'ble Chief Minister, vide Annexure-11. In the meantime the case of the petitioner was also referred to the Department of Science and Technology for its consideration in the proceedings of the meeting of the Governing Body of the PSP dated 30.9.1997. Finding no outcome, the petitioner submitted a further grievance in the Grievance Cell of the Hon'ble Chief Minister, which being received the General Administration Department, Government of Odisha issued instruction to the Science and Technology Department for upgrading the post of Assistant Planetarium Engineer to that of Planetarium Engineer in the pay scale of Rs.8000/13,500/- for allowing promotional benefit to the petitioner as per the order of the Hon'ble Chief Minister dated 9.9.1998. It is alleged, in spite of clear direction by the General Administration Department in its communication dated 14.1.2003, O.Ps.1 to 3 did not respond. It is while the matter stood thus, the Governing Body of the PSP in a proceeding of its meeting dated 16.7.2005 appointed a Promotion Committee consisting of the Director, PSP and three other Members to look into the matter and recommend a suitable candidate for the post of Deputy Director (Technical) on promotion basis in the pay scale of Rs.8000-13,500/-. It is claimed, pursuant to such proceeding of the Governing Body for considering the promotion to the post of Deputy Director (Technical), even though the petitioner, who was working as Assistant Planetarium Engineer equivalent to the post of Senior Technician was the only eligible candidate, however, instead of considering the petitioner alone, the Promotion Committee also considered the case of O.P.4, who being a Technician was admittedly holding a lower post than that of the petitioner but however in the same scale of pay. The Promotion Committee taking into account the length of service, technical experience and Character Rolls of both the incumbents for last five years proceeded to recommend the case of O.P.4 observing him to be more suitable than the petitioner. Proceeding of the meeting appears at Annexure-15 giving rise to filing of the writ petition on both counts, i.e., in the matter of illegal promotion of O.P.4 and also in the matter of non-consideration of the case of the petitioner for the post of Deputy Director (Technical). 3. Miss D.Mohapatra, learned counsel appearing for the petitioner being authorised while referring to the above developments, taking to the pleadings involving the writ petition and the development taken place particularly indicated herein above contended that so far as fitment of scale of pay of the petitioner is concerned, at the initial joining of the petitioner, he was admittedly provided with four additional increments. Miss Mohapatra claimed that this fact should have been taken into consideration while re- fixing the scale of pay of the petitioner pursuant to introduction of the revised scale of pay in the year 1989. Learned counsel for the petitioner also contended that this allegation is real and genuine and that an injustice has been meted with the petitioner. The General Administration Department in paragraph-2 of its communication dated 14.1.2003 has already recommended for giving the benefit of four advance increments to the petitioner also on the premises that the petitioner was holding a post higher than that of the Technician. Miss Mohapatra, learned counsel for the petitioner taking into account the entire background involving the case and also the direction of the General Administration in paragraph-2 of its recommendation dated 14.1.2003 based on a direction of the Hon'ble Chief Minister dated 9.9.1998 advising the Science and Technology Department to consider the case of the petitioner in the post of Planetarium Engineer in the scale of pay of Rs.8000- 13,500/- for allowing the promotional benefit to Sri Kar, the petitioner based on the direction of the Hon'ble Chief Minister dated 9.9.1998. It is in the circumstance, Miss Mohapatra, learned counsel for the petitioner contended that there is flagrance violation of the direction of the Hon'ble Chief Minister and had the petitioner been promoted to the post of Planetarium Engineer pursuant to the advice of the G.A. Department dated 14.1.2003 with support of direction of the Hon'ble Chief Minister, the petitioner would have been the sole candidate available to be considered for the post of Deputy Director of the PSP. Further taking into account the grounds of selection of O.P.4, learned counsel for the petitioner contended that there is no dispute that the petitioner had requisite qualification and expertise. It appears, the case of the petitioner for the post of Deputy Director (Technical) was rejected solely on account of adverse remark in his C.C.R. Miss Mohapatra here submitted that there is no C.C.R. of any employee maintained in the PSP to the knowledge of the petitioner. Further even assuming that there are C.C.Rs. of employees in the event there is any bad C.C.R. for no communication of the same, such C.C.R. has no role to play. It is in the circumstance, Miss Mohapatra, learned counsel for the petitioner alleged that there has been gross-injustice made to the petitioner in matter of both re-fixation of his scale of pay in terms of the revised scale of pay and also not considering his case for the post of Deputy Director (Technical), further there is also no compliance of the direction of the G.A. Department based on the direction of the Hon'ble Chief Minister. Miss Mohapatra, learned counsel for the petitioner thus prayed this Court for interfering with the impugned order and issuing necessary directions for the ends of justice.