SURENDRANATH MOHAPATRA Vs. STATE OF ORISSA

JUDGEMENT

(1.) ON 22-3-1971, the State Public Service Commission invited applications from qualified Engineers for recruitment as Assistant Engineers in the Orissa Service of Engineers. The petitioner along with many others applied. It is alleged that the Commission recommended 44 names for appointment and the petitioner claims that he was placed as 38 in the list in order of merit. On 3-1-1972, 15 persons out of the list were appointed by the State Government as Assistant Engineers while by another notification of the same day 9 out of the said list were appointed and ten days thereafter 5 others were also appointed-thus in all 29 out of the list of 44 were recruited. Government wanted the Commission to recommend some more names, but the Commission wrote back saying that until the list already recommended was exhausted there would be no occasion for a fresh list to be prepared. Notwithstanding the fact that in the list there were 15 more yet to be appointed, the State Government on 7-81972, appointed on ad hoc basis 25 engineering graduates, who had also applied to the Public Service Commission along with the petitioner for being recruited but had not been selected. On 9-10-1972, 13 employees from the rank of Subordinate Engineers were promoted as Assistant Engineers.

(2.) THE petitioner alleges that recruitment to the post of Assistant Engineer is regulated by the Orissa Service of Engineers Rules, 1941-a set of rules framed in exercise of the powers vested under Section 241 of the Government of India Act of 1935 and continued under the Constitution. According to the petitioner there having been 13 promotees, in terms of Rule 7 of the said Rules there should have been 39 direct recruits for the year. As a fact 54 (29 plus 25) direct recruits were taken and the petitioner having been assigned 38th position in the list prepared by the Commission was bound to be appointed; yet he was not. The petitioner challenges the appointment of opposite parties 2 to 26 as an act of illegality and wants a direction to Government to appoint him as he was duly qualified and had even selected for appointment by the Commission.

(3.) IN the counter-affidavit given by the State the foundation of the petitioner's claim on the interpretation of Rule 7 is disputed. It is conceded that the petitioner was selected having been assigned the 38th position in the list prepared by the Commission. Reliance is placed for justification of the appointment of opposite parties 2 to 26 on a cabinet decision taken in December, 1971 on the basis of the recommendation of a cabinet sub-committee. The petitioner filed a rejoinder and the State has filed a further counter-affidavit.