SURENDRA KUMAR PATRA Vs. ABANI KUMAR SAHOO

JUDGEMENT

(1.) IN this batch of Writ Petitions common questions of fact and law being involved, the same are being disposed of by this common Judgment. The Petitioners in all these cases assail the combined order passed by the Orissa Administrative Tribunal in O.A. Nos. 123 of 1993, 2153 of 1993 and 2387 of 1997.

(2.) THE facts leading to file all these Writ Petitions are that Orissa Fisheries Service Class -II (Recruitment and Conditions of Service) Rules, 1977 provided for recruitment for the Post of Junior. Branch of the Fisheries Service as well as promotion to the rank of Junior Branch of Fisheries service. In the year 1979, Government of Orissa in General Administration Department, in exercise of power conferred by the Orissa Civil Service (Classification, Control and Appeal) Rules, 1962 read with Rule 17 of the Orissa Service Code declared that the post of Superintendent of Fisheries is a Specially declared Gazetted post, which was earlier Class -II post and also under the very same notification declared that the Director of Fisheries is the appointing authority in place of the State Government. Classification of posts and services are done by the State Government in pursuance of the Orissa Civil Services (Classification, Control and Appeal) Rules 1962, wherein specific provision has been made in the shape of Rule 6, 7 and 8. The Petitioners further plead that under Rule 11, the appointing authorities in respect of posts are specified which are to be found in the schedule to the rules and in sub -rule (2) of rule 11 the Government is empowered to declare the appointing authority in respect of specific posts. The State Government in pursuance of its statutory powers converted the said post of Superintendent of Fisheries from Class -II to Specially Gazetted and further in place of the state Government as the appointing authority, conferred the Director of Fisheries with the power to appoint. It is pleaded by the Petitioners that as long as the post of Superintendent of Fisheries continued in the Class -II rank and the State was the appointing authority, the power of appointment was subject to the recruitment procedure of Public Service Commission. It is contended that the same ceased to be operative after the post was brought down to the level of specially Gazetted and the State Government ceased to be the appointing authority. According to the Orissa Public Service Commission, the Limitations and Functions Regulation, 1952, the matter is no more required to be referred to the Orissa Public Service Commission (hereinafter referred as "O.P.S.C.") as appointments to be made by the authority other than the State Government is not required to undergo P.S.C. procedure.

(3.) THE Petitioners further plead that the Rules provide that the qualification for being appointed as Superintendent of Fisheries was Master degree in Zoology or Marine Biology or Bachelor Degree in Fishery Science from recognized University. In the year 1986 in, Rule 8, an amendment was brought in and the same was a conscious amendment made by the Government of Orissa keeping in view of the fact that large number of students with specific qualifications on the subject were coming out successful from the QUAT and as such by the amendment it was decided to insert the proviso to Rule 8 and whereunder preference was directed to be given to the degree holders in Fishery Science. Two persons, who were Petitioners before the Learned Tribunal, viz. Abani Kumar Sahoo and Rajendra Kumar Acharya filed a case before the Tribunal belong to Class -II service known as Subordinate Fishery Service and they do not have degree in Fishery Science and having general degree in M.Sc. in Zoology or in Marine Biology filed the case questioning the selection process. It is pleaded by the Petitioners that they questioned the selection procedures meant for the rank of Superintendent of Fisheries though they themselves had no right to do so as they belong to the rank of Fishery Extension Officer and in order to come to the rank of Superintendent of Fisheries they have to be promoted to the rank of Deputy Superintendent of Fisheries first, then only question of promotion to the rank of Superintendent of Fisheries would arise. In 1994, the nomenclature of the post of Superintendent of Fisheries was changed to the rank of Junior Fishery Officer and the post of Junior Fishery Officer also remained as Specially declared Gazetted.