SHRI GOVIND CHANDRA ROUT Vs. STATE GOVERNMENT OF ORISSA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, INDUSTRIES DEPARTMENT AND ORS.

JUDGEMENT

(1.) PETITIONER 's case may be stated in short. The Petitioner was appointed as Deputy Director of Industries on 16 -5 -1955 and was confirmed in the post with effect from 16 -8 -1957. A vacancy in the next higher post of Joint Director of Industries occurred in 1957. The State Government passed an order on 4 -3 -1957 appointing the Petitioner as Joint Director on ad hoc basis, but that order was subsequently recalled on 30.8 -1957. The post was advertised in 1958. The Public Service Commission did not recommend the name of the Petitioner on account of adverse remarks in his Confidential Character Roll. There was another vacancy in the post of Joint Director in the year 1961. The selfsame adverse remarks in the C.C.R. were also utilised against the Petitioner and one of his juniors, viz. Shri B. Misra was appointed to the post on the recommendation of the Public Service Commission. Another vacancy occurred in the year 1962 and the Petitioner was appointed on 7 -4 -1962 on ad hoc basis for a period of, six months. The Public Service Commission did not concur in the appointment due to the adverse entries in the C.C.R. So the Petitioner was reverted to his substantive post of Deputy Director with effect from 17 -8 -1962. He filed O.J.C. No. 6G of 1967, on 23 -3 -1967 praying for issue of a writ of mandamus commanding the State Government not to give effect to the order of reversion and also directing expunction by the adverse remarks made in his C.C.R. in the years 1955 -56 to 1962 -63. During the pendency of that writ petition, the State Government appointed the Petitioner to the post of Joint Director with effect from 4 -8 -1967 and he has been continuing in that post since then. O.J.C. No. 60 of 1967 was allowed on 24 -12 -1970. See G.C. Rout v. State, I.L.R. 1971 Cutt 313. A writ of mandamus was issued to the State Government directing them not to give effect to the order of reversion. With regard to the prayer for expunction of adverse remarks it was observed that the C.C.Rs. were incomplete and that the principles of natural justice had been violated both in the matter of irregular maintenance of the C.C.Rs. by disregarding the Book Circulars and in utilising the same against the Petitioner. No relief was, however, granted on the ground that there is a, forum provided for such a remedy by way of representation to Government. Thereafter the Petitioner made representations to the State Government on 15 -3 -1971 and 9 -4 -1971 for expunction of the adverse remarks made in his C.C.R. from 1955 -56 to 1962 -63 and for allowing consequential service benefits. (Vide Annexure -5). On 20th April, 1972 the State Government passed an order allowing the Petitioner to continue as Joint Director of Industries for the balance period of his ad hoc appointment, that is, from 18 -8 -1962 to 8 -10 -1962 (Annexure 7). But neither the adverse remarks were expunged nor the Petitioner's case was considered for promotion to the post of Joint Director after expiry of the period of his ad hoc appointment. Aggrieved by this order the Petitioner filed the present writ petition on 8 -5 -1972 claiming restoration to the post of Joint Director from 4 -3 -1957 till 7 -4 -1962 and from 7 -10 -1962 till 3 -8 -1967 with all consequential service benefits. During the pendency of this writ petition, 'the State Government passed an order on 11 -7 -1972 appointing the opposite party No. 3 Shri B.B. Mohanty as Additional Registrar, Cooperative Societies, a post which carries a scale of pay higher than, that of the post of Joint Director of Industries. The Petitioner's contention is that the appointment of opposite party No. 3 as Additional Registrar, Co -operative Societies was made mala -fide in order to (sic) the relief claimed in this writ petition. So he claimed an additional relief for directing the State Government not to give effect to the order of appointment dated 11 -7 -1972.

(2.) THE State Government filed counter contending that the order dated 4 -3 -1957 passed by the Minister for Industries was subsequently recalled as it had been erroneously assumed that the Petitioner had eight years of experience and that the Petitioner cannot claim any right on the basis of the order as it had not been communicated to him.

(3.) POINT (1): Admittedly there was a Government order on 4 -3 -1957 for appointment of the Petitioner as Joint Director of Industries on ad hoc basis, but it was superseded by a subsequent Government order dated 30 -8 -1957. Government cannot be called upon to implement the order dated 4 -3 -1957 was it no longer exists. The Government order dated 4 -3 -1957 having not been communicated to the Petitioner, he cannot claim any right on the basis thereof. The position of law is well settled that until a final decision is reached by the Governor on the advice of the Council of Ministers, and until the same is communicated to the party concerned by issuing an order in accordance with Article 166 of the Constitution, the advice of the Council of Ministers cannot be acted upon, as before that, it does not attain any finality. Until such finality is reached it is open to Government to re -consider the matter over and over again. Vide Bishnu Charan Mohanty v. State of Orissa and Ors, I.L.R. 1973 Cutt 339. It, however appears that the post of Joint Director, was advertised on 10 -7 -1958 and the State Government have now taken a decision to consider the Petitioner's case far promotion from that date after consultation with the Public Service Commission.