BAIDYANATH MOHANTY Vs. STATE OF ORISSA AND OTHERS

JUDGEMENT

(1.) This is a petition under Art. 226 of the Constitution praying therein to set aside the promotion of opposite party No. 4 to the post of Accountant, Rural Industries Project with effect from 28-6-1965, appoint the petitioner to the said post with effect from the aforesaid date with all consequential service benefits, for quashing Annexure 7 and treat the petitioner as continuing in the general cadre under opposite party No. 2, the Director of Industries, Orissa.

(2.) Stated in brief, the case of the petitioner is that he entered into Government service on 25-5-1956 as a Lower Division Clerk in the office of the Arbitrator, Land Organisation, Sambalpur. On 30-4-1957 he was appointed as an Accountant in the grade of Junior Upper Division Clerk in the District Welfare Office, Sambalpur and was subsequently transferred to Cuttack in the same cadre. On 5-6-1961 he was directly recruited and appointed as a Senior Accountant under opposite party No. 2, the Director of Industries, Orissa and was posted in the Industrial Training Institute at Hirakud. In the year 1962 he was transferred to the Industrial Training Institute at Cuttack. In 1972 he was posted in the District Industries Office, Sambalpur and again in 1976 he was transferred to the District Industries office, Cuttack and was designated as a Head Clerk. The State Government framed a set of rules in exercise of the power conferred by the proviso to Art. 309 of the Constitution named and styled as 'Orissa Industries Ministerial Service (Method of Recruitment and Condition of Service of Clerks and Assistants in the District Offices and Offices of the Heads of the Department) Rules, 1969 (for short, the 'Rules'). The Rules came into force with effect from 1-11-1970. By virtue of the provisions of the said Rules, the post of Senior Upper Division Clerk included the posts of Head Clerk, Head Clerk-cum-Accountant, Head Clerk-cum-Cashier and Store Keeper and thus the petitioner came to hold the post of a Head Clerk in accordance with the aforesaid Rules. Further, in accordance with the aforesaid Rules the ministerial service of the District Offices, subordinate offices and the Directorate of Industries formed one cadre. The relevant date for the purpose of reckoning the seniority of the petitioner was the date of his entry into service under opposite party No. 2, namely, 5-6-1961. By Dec., 1970 the petitioner had passed the preliminary and final accounts examination. In the year 1975 a provisional gradation list (Annexure 1) prepared by opposite party No. 2 was circulated in which the name of the petitioner found place at serial 19 whereas, the name of opposite party No. 4 found place at serial 21, thus showing that the petitioner was senior to opposite party No. 4 in the Upper Division Clerks. But against serial No. 21 and the name of opposite party No. 4, a note was appended that he was working as an Accountant in the Rural Industries Projects with effect from 28-6-1965 in a scale of pay higher than the scale of pay of Senior Upper Division Clerks. In other words, although opposite party No. 4 was junior in the cadre to the petitioner, he had been appointed to a post carrying higher scale of pay. Till circulation of the gradation list, the petitioner had no knowledge of such illegal appointment. In order to prove that opposite party No. 4 was junior to him in rank, the petitioner has averred that opposite party No. 4 was appointed as a Junior Upper Division Clerk-cum-Accountant in the District Industries Office, Sundargarh on 27-11-1957. He was appointed to the post of Senior Upper Division Clerk on 11-9-1961. Whereas, the petitioner was confirmed with effect from 5-6-1962, opposite party No. 4 was confirmed on 11-9-1962. It is further averred that when the question of appointment of an Accountant in the Rural Industries Projects in a higher scale of pay arose, the cases of all eligible candidates serving under opposite party No. 2 were not at all considered. No notice was circulated calling upon the eligible candidates to intimate their consent for consideration for appointment to the above post. The appointment of opposite party No. 4 to the above post was made clandestinely in violation of Articles 14 and 16 of the Constitution. In the final gradation list (Annexure 4) though opposite party No. 4 was shown as ranking below the petitioner, it was noted that he was serving as the Accountant of the Rural Industries Projects. In the meanwhile, the State Government took a policy decision to bifurcate the Directorate of Industries into two, creating another Directorate of Technical Education and Training. The ministerial officers of the Directorate of Industries were asked to give their option in which Directorate they would prefer to continue in service. The petitioner exercised his option to come over to the Directorate of Technical Education and Training and accordingly he was brought over to the said cadre (Annexure 7). The petitioner, however, made a representation (Annexure 8J to permit him to continue in the general cadre of the Directorate of Industries in view of the fact that he had earlier represented for appointment as Accountant in the Rural Industries Projects which had not been disposed of and if he was so appointed he was bound to continue in the general cadre of the Directorate of Industries. It is averred that if the petitioner is appointed as an Accountant in the Rural Industries Projects, he is bound to continue in the general cadre of the Directorate of Industries, in which -case, the option exercised by him to come over to the cadre of the Directorate of Technical Education and Training would be infructuous. His representation (Annexure 8) was, however, rejected by the Directorate of Industries, opposite party No. 2 on 15-3-1978 (Annexure 11). His representation for promotion to the post of Accountant, Rural Industries Projects was also rejected by opposite party No. 2 on 29-9-1982 (Annexure 10). Accordingly, the petitioner in this writ petition has prayed for the reliefs already referred to earlier.

(3.) Opposite parties 1, 2 and 3 have stated in their counter-affidavit that the posts of Accountants in the Rural Industries Projects were ex cadre posts and were not meant to be filled up by promotion from the ministerial cadre of district offices under opposite party No. 2 in usual course. On consideration of three representations for appointment of one such vacancies, opposite party No. 4 was considered suitable and so he was promoted to the ex cadre post of Accountant in the Rural Industries Projects without prejudice to the claims of his seniors in the year 1965. As the petitioner did not express his desire for consideration for appointment to the ex cadre post, his case was not taken into consideration. In the gradation list circulated in the year 1975, the Accountants of the Rural Industries Projects were shown separately. The petitioner's claim for retrospective appointment to the post of Accountant in the Rural Industries Projects in place of opposite party No. 4 is, therefore, not maintainable. It is further averred that the State Government evolved a policy decision to bifurcate the Directorate of Industries and create another Directorate of Technical Education and Training (Annexures D, E, F and G). For the purpose of implementation of the policy decision, the ministerial officers of the Directorate in Industries were asked to exercise their option either to continue to remain in the general cadre of the said Directorate or to come over to the separate cadre of the Directorate of Technical Education and Training (Annexure B). In response to Annexure B, the petitioner, by his application dated 8-4-1977 (Annexure C), categorically and unequivocally opted to come over to the bifurcated cadre in the Directorate of Technical Education and Training. After all the ministerial officers had exercised their option, by order dated 24-5-1976 (Annexure H), the ministerial officers were distributed between the general cadre of the Directorate of Industries and the bifurcated cadre of the Directorate of Technical Education and Training. In accordance with the option exercised by the petitioner, he was transferred to the ministerial cadre of the Directorate of Technical Education and Training and was posted as Head Clerk of the Industrial Training Institute, Balasore. On the other hand, opposite party No. 4 having opted to continue in the general cadre of Directorate of Industries, he continued in the post of Accountant, Rural Industries Projects as before. It is pertinently pointed out that after the petitioner had gone over to the ministerial cadre of the Directorate of Technical Education and Training and no longer continued in the general cadre of the Directorate of Industries, the question of inter se seniority between him on one hand and opposite party No. 4 on the other has lost its significance and has become irrelevant. Since option once exercised cannot be rescinded or revoked, the petitioner cannot now be brought over to the general ministerial cadre of the Directorate of Industries and posted as Accountant in the Rural Industries Projects with retrospective effect vice opposite party No. 4. For that matter, he is also not entitled to any financial benefits. Accordingly the petition is without merits.