PRAFULLA CHANDRA SAHU Vs. STATE OF ORISSA

JUDGEMENT

(1.) PETITIONER was appointed as Lower Division Clerk in the office of the District Animal Husbandry and Veterinary Officer, Angul (Dhenkanal) mi temporary basis on 7. 11. 1956. In course of time be was prompted to the post of Head Clerk with detect from 21.1.1961 and he worked as such till 16. 7. l968 According to the petitioner the post of Head Clerk of District cadre is equivalent to Grade II Assistant: of the office of the Director of Animal Husbandry and veterinary Services (in short 'D. A. V.S.'). He was confirmed against the permanent post of Accounts Clerk of Northern Range in District cadre with effect from 1. 7.1964. While the petitioner was serving in the office of the District Animal Husbandry and Veterinary Officer, Dhankanal, he was transferred as Head Clerk to the establishment of Artificial Insemination Officer, Cuttack, (this office has' now been designated as Deputy Director (Insemination ) which is a District cadre establishment under the Directorate of D. A. V. S.) and worked as such till 27. 7.1971. While the petitioner was continuing in the aforesaid post of Head Clerk, the D. A. V. S. asked the petitioner on 27. 3. 1971 to give willingness for being appointed as Record -Keeper in the office of D. A. V. S. The petitioner gave his willingness and he was duly appointed at Record -Keeper in the office of D, A. V. S. with effect from 9. 7. 1971 vide Annexure -5 which post he joined on 27.7.1971. The post of Record -Keeper was treated as equivalent to the post of Gr. II Assistant of the Directorate and carried the same scale of pay which will be evident from Annexure -II, the letter of the D. A. V. S. asking for willingness of the petitioner to join the post of Record -Keeper. Petitioner claims that on the basis of the equivalence a Record -Keeper was eligible to be considered for promotion to the post of Gr. II Assistant in the Directorate. The Governor of Orissa in exercise of the powers conferred on him under Art. 309 of the Constitution of India framed a set of Rules called the Orissa Ministerial Service(Recruitment, Transfer and Seniority of Clerks and Assistants in the Animal Husbandry and Veterinary Offices) Rules, 1977 (hereinafter called the 'Rules') regulating the methods of recruitment and conditions of service of Clerks and Assistants of the District Offices, Range Off ices and office of the Director, Animal Husbandry and Veterinary Services. These Rules came into force from the 5th August, 1977. According to Appendix -II in serial 7 of the Rules the past of Record -Keeper was made a special post in the Directorate. It has, however, been made clear in Rule 25ig) of the Rules that the special post of a Record -Keeper in the Directorate is equivalent to Gr. II Assistant in the said Directorate for all intents and purposes and ,as such is entitled to be considered for promotion to the post of Gr. I Assistant. In spite of the above Rules, the opposite parties have not published any gradation list showing seniority of the petitioner in the ministerial service of the Directorate' as provided in Rule 31 of the Rules. The petitioner made several representations for fixing his seniority and to include his name in the gradation list of Gr. -II Assistants in the Directorate. But all were in vain. By non -fixation of his seniority and non -inclusion of his name in in the gradation list of Gr. II Assistants of the Directorate, the petitioner has been losing all prospects of promotion and continuing in the post of Record Keeper, though his juniors in the cadre of Gr. II Assistants have been promoted to the post of Gr. I Assistant in the Directorate without the petitioner being considered for the same. So the petitioner has filed this writ petition to issue writ of mandamus directing the opposite parties to fix his seniority amongst Gr. II Assistants as per the conditions of service and service Rules and to prepare and publish a gradation list incorporating his name in the category of Gr. II Assistants - of the Directorate of D. A. V. S. as per Rule 31 of the Rules.

(2.) THE oppose parties, the State of Orissa through the Secretary to Govt. Forest, Fisheries and Animal Husbandry Department and the Director of Animal Husbandry and Veterinary Services, Orissa, have filed their counter. The main ground taken by them in resisting the writ petition is that the post of Record -Keeper is an ex cadre post even though it carries identical scale of pay as Gr. II Assistant in the Directorate. So the post of Record -Keeper is not equivalent to the post of Gr. II Assistant as per the nature of duties and responsibility. Hence, the supposition of the petitioner that on the basis of the equivalence a Record -Keeper was eligible for promotion to the post of Gr. I Assistant is not correct. Promotion of Gr. I Assistant is from amongst the Gr. II Assistants in the same ministerial cadre. The nature of duties and responsibility of a Record -Keeper and Gr. II Assistant are different. Though Rule 25(g) o: the Rules provides interchangeability of the post of Record -Keeper and that of Gr. -II Assistant in the Directorate, they belong to two distinct cadres. The post of Record -Keeper comes within the heading of 'Special Posts' as mentioned in item No. 7 of Appendix -II of the Rules whereas the pest of Gr. -II Assistant is a post within the ministerial reader as would be evident from Rule 18 of the Rules. The petitioner accepted the appointment to an ex cadre post of Record -Keeper on his own volition. Petitioner was Head Clerk prior to his joining in the post of Record /Keeper and as such he retains his regular footing in his former District cadre posts. Accordingly the Departmental Promotion Committee held on 26. 9. 1977 considered him suitable for promotion to the post of Progress Assistant which was required to be filled up by the Head Clerks of the District Offices, under the provisions of Rule 25(d) of the Rules. As he was never appointed to the post of Gr. II Assistant, his name was not included in the gradation list of Gr. II Assistants circulated by O.P.No. 2 On the above premises, according to the opposite parties, there is no merit in the writ petition, which should be dismissed. The petitioner has also filed a rejoinder challenging the stand taken by the opposite parties.

(3.) AFTER considering the argument of both sides and the facts and circumstances of the case, we direct the opposite parties to treat the petitioner as Gr. II Assistant of the Directorate from the date he joined as Record -Keeper, i. e., from 27. 7. 1971. It is open to the petitioner to represent to the appropriate authority for consequential relief, if any on the aforesaid basis.