GANGADHAR SWAIN Vs. STATE OF ORISSA AND ORS.

JUDGEMENT

(1.) PETITIONER as also opposite parties 4 to 10 are employees in the establishment of the Superintending Engineer, Mechanical Circle, Hirakud (opposite party No. 3). The administration of the Hirakud Dam Organisation was transferred from the control of the Central Government to the State Government of Orissa with effect from 1 -4 -1960 and the Mechanical Circle was constituted to be in administrative control thereof. Opposite parties 4 to 10 had been appointed as lower division assistants long before the Petitioner who came to be appointed to that post on 29 -12 -1961. Admittedly there are no statutory rules regulating promotion of lower division assistants to higher posts or fixation of their inter se seniority and these aspects have been regulated by administrative instructions issued from time to time. On 21 -12 -1949 (Annexure -4) the state Government in the Works Department had issued a Circular letter prescribing the procedure for appointment and promotion of lower division assistants attached to the Accounts section of the P.W.D. Divisional and Sub -Divisional Officers. Therein it was laid down that there should be an accounts examination in which all lower division clerks attached to the Circle, Divisional and Sub -Divisional Offices should pass before they are considered eligible for promotion to posts of upper division clerks in the Divisional Officers of which 80 per cent should be filled by promotion from among qualified lower division clerks and the balance 20 per cent by direct recruitment of candidates having at least Intermediate qualification. Notwithstanding the aforesaid Circular, promotion had been granted to posts of upper division clerks in contravention thereof. Admittedly the 1949 Circular had no application to the Hirakud Dam Project as until 1 -1 -1960 its administration vested in the Central Government. On 22 -4 -1961 (Annexure -6), the State Government in the Works Department wrote to the Chief Engineer of the Hirakud Dam Organisation:

(2.) OPPOSITE parties 1 to 3 have filed a counter affidavit through the Deputy Secretary to Government in the Irrigation and Power Department and the stand in Annexure -18 has been supported. Opposite parties 4 to 10 have filed a counter affidavit supporting their placement above the Petitioner. Petitioner has filed several rejoinders.

(3.) THERE is no dispute that in the grade of lower division clerks, opposite parties 4 to 10 are senior to Petitioner. There is also no dispute that the opposite parties were Promoted to the post of upper division clerks even before Petitioner was recruited into service as a lower division clerk. The sole ground on which Petitioner challenges the promotion and consequential seniority of the opposite parties is on the basis of the two Government letters of 1961 and 1962. It is not disputed that under Annexure -6 dated 22 -4 -1961, the Administrative Department directed that the guideline provided in the Government letter dated 21 -12 -1949 should be applied in regard to passing of the accounts examination; indicated the cases where exemption from passing the examination was to be allowed; required the officiating upper division clerks not covered by exemption to pass the accounts examination in three clear successive chances from 1961 and on failure to so pass were to be reverted. On 15th of May, 1962, instructions regarding fixation of seniority of passed accounts clerks in upper division posts were issued. Therein it was indicated that unpassed hands in any particular grade in upper division should not be allowed promotion to higher grade until they passed the accounts test and qualified for promotion and promotion should be confined to passed - hands only according to their seniority and merit. No promotion given to unpassed hands after the issue of the Government order of 22 -4 -1961 would be recognised by Government for any purpose. Strong reliance has been placed on this Instruction.