THEOPHILOS TIGGA Vs. STATE OF ORISSA AND ORS.

JUDGEMENT

(1.) THE Petitioner, Theophilos Tigga, an Executive Engineer under the Government or Orissa has filed this application under Articles 226 and 227 of the Constitution of India challenging the promotion or opposite parties 2 to 9 as Superintending Engineer, on the ground that though M a member or the Scheduled Tribe he was entitled to be considered for promotion against the reserved vacancy, the said opposite parties were promoted ignoring his claim. He has further prayed for a direction to the opposite party No. 1 to give him promotion in preference to the opposite parties 2 to 9 against the reserved vacancy.

(2.) THE case made out in the writ application is that the Petitioner belongs to the tribe 'Oraon' which is one of the tribes mentioned in the list of Scheduled Tribes Order framed under Article 342 of the Constitution or India. The Petitioner is a member of the Orissa Service or Engineer (Irrigation Wing) and his conditions or service is governed under the set of rules, Orissa Service or Engineers Rules, 1941, framed under Section 241 of the Government of India Act 1935. According to the Petitioner, under the said rules the post if Superintending Engineer is to be filled up by promotion from amongst the Executive Engineers. It is the further ease of the Petitioner that the Orissa Reservation or Vacancies in Posts and Services (for Scheduled Castes and Scheduled Tribes) Act, 1975 (Orissa Act 38 of 1975) (hereinafter referred to as 'the Act') and the rules framed thereunder apply in the service of the Petitioner. According to the said statute the State Government was required to fix one post of Superintending Engineer as a reserved post to be filled up by the members or Scheduled Tribes candidates. The Petitioner being the only Executive Engineer in the service belonging to Scheduled Tribes and having satisfied the requisite eligibility qualification should have been promoted to the post or Superintending Engineer against the reserved vacancy. It is the case of the Petitioner that the State Government ignoring the provisions of the statute did not reserve any vacancy for the Scheduled Tribe and ignoring the claim of the Petitioner promoted the opposite parties 2 to 9 as Superintending Engineer.

(3.) SHRI S.K. Dey, learned Counsel for the Petitioner has contended that taking the strength of Executive Engineers in the Irrigation Wing at the relevant time as 115 and that of the Superintending Engineers at 32 as given in the counter affidavit filed by the State government, percentage comes to 0.87 and 0.63 respectively. In either case, the percentage is more than 0.5 and hence should be taken as I and steps should have been taken in accordance with the statute and the rules to reserve one post. According to Shri Dey, Section 10 of the Act applies to the case of the Petitioner and not Section 11 as contended by the opposite parties. He further contends that plea of the opposite parties that the Petitioner did not come within the normal zone of consideration taking into account the strength of the entire service is devoid of force since he being the lone Scheduled Tribe candidate was alone to be considered for the reserved vacancy and should not have been mixed up with the general candidate while determining the zone of consideration.