ANIL CHANDRA MITRA Vs. STATE OF ORISSA

JUDGEMENT

(1.) THE petitioner was recruited as a lower division assistant in the year 1940 in the establishment of the Revenue Commissioner of Orissa, and was confirmed in such post with effect from 1-3-48. Under Orissa Act 23 of 1951, a Board of Revenue for the State was constituted, and as would appear from the scheme of the said statute, the Board created under the Act was a substitute for the Revenue commissioner, which post had been created under the Government of India (Constitution of Orissa) Order, 1936. The Board of Revenue and the Revenue department of the State were amalgamated, and the petitioner was put as a grade I assistant in the Revenue Department of the Orissa Secretariat. The Scheme set out under Orissa Act 23 of 1951 was altered by Orissa Act 18 of 1957, and a Single Member Board was constituted, and bulk of the functions hitherto exercised by the Board of Revenue was transferred to the three Revenue divisional Commissioners of the Northern, Central and Southern Divisions created under Orissa Act 19 of 1957, including the services of many of the employees. The petitioner continued under the Revenue Department even after the changes were introduced, but had his lien in the post under the Board of Revenue. The Board of revenue confirmed the petitioner on 15-5-1959 as a Grade II assistant with retrospective effect from 13-9-54. The petitioner became a senior assistant in the revenue Department in January 1958 and was placed in the District Gazetteer section, with effect from 2-8-60 the petitioner served in the Gazetteer Section as a senior assistant until June 1965. In the gradation list published by the Revenue department on 11-8-1962, the petitioner was shown in the establishment, but the subsequent gradation list published did not include the petitioner. The petitioner was reverted to the office of the Revenue Divisional Commissioner, Central division, with effect from 30-6-65, where he joined as a Junior Head Assistant in an officiating capacity on 6-7-65. While the petitioner was continuing as a senior assistant in the Gazetteer Section of the Revenue Department, he had been confirmed as a Grade I assistant in the office of the Revenue Divisional commissioner with effect from 1-1-62. The establishment of the Board of Revenue in 1951, the bifurcation of the functions in 1957 and the incorporation of four different establishments, that is, the Board and the three separate Revenue Divisional Commissioners brought about an uncertain situation and the question of distribution of the staff in the establishments was not finalised for many years, as would appear from paragraph 15 of the counter affidavit. The petitioner made representations for pro forma promotion to the post of Junior Head Assistant and was granted such pro forma promotion to the said post. Thereafter vacancies occurred in the post of Senior head Assistant. The petitioner's claim was overlooked and other employees, as the petitioner alleges, superseded the petitioner and were allowed to serve aa Senior head Assistants in the establishment. As the petitioner did not get any relief in spite of representations, he ultimately approached this Court under Article 226 of the Constitution of India.

(2.) THE State Government filed a counter affidavit on 3-11-66 denying the allegations of the petitioner. From the said affidavit, however, the actual position relevant for determination of the dispute in question did not clearly emerge. At the time when the writ application was heard, the learned Advocate General appearing for the State contended that the petitioner had no lien in respect of his post that he held in the office of the Revenue Commissioner and ultimately in the establishment of the Revenue Divisional Commissioner. We called upon the State to file a further affidavit to clarify the matter, and a further affidavit was filed on 10-7-69. From paragraphs 17 and 18 of the said counter affidavit it clearly appears that the petitioner's lien in his substantive post had not been cancelled, nor suspended, and the petitioner was always borne on the cadre of his original establishment.

(3.) A set of rules entitled "the Orissa Ministerial Service (Method of Recruitment and Conditions of Service of Clerks and Assistants in the District Offices and offices of the Heads of Departments) Rules, 1963, framed in exercise of powers conferred under the proviso to Article 309 of the Constitution of India, were introduced by the Governor. Rule 21 (1) (d) of the said Rules provides as under,--"promotion to the posts of Senior Head Assistants shall be made from amongst the Junior Head Assistants who have completed two years continuous services as Junior Head Assistants. " keeping the said provision in view, it was stated in paragraph 18 of the counter affidavit as follows :