LAXMISWAR TAMUDIA Vs. STATE OF ORISSA

JUDGEMENT

(1.) THE petitioner who is an employee under the Orissa State Road Transport Corporation (opposite party No. 2) has assailed the promotion of opposite party No. 4 to the post of Deputy General Manager inter alia on the ground that non-consideration of petitioner's case while promoting opposite party No. 4 violates Articles 14 and 16 of the Constitution and in view of the provisions contained in the Orissa Reservation of Vacancies in Posts and Services (For Scheduled Castes and Scheduled Tribes) Act 1975 (Orissa Act 38 of 1975) (hereinafter referred to as the "reservation Act"), it is the petitioner who being a Scheduled Caste was alone entitled to be promoted and not opposite party No. 4 who is a general candidate.

(2.) THE petitioner asserts that he joined the post of Assistant Transport Manager under the erstwhile State Transport Services on 2nd September 1966 and continued as such till May, 1974, when the Corporation was established and took over the management of the existing State Transport Services along with its employees. The Corporation framed a set of rules regulating the conditions of service of its employees in 1978, called the Orissa State Road Transport Corporation Employees (Classification, Recruitment and Conditions of Service) Regulations, 1978 (hereinafter referred to as the "regulations" ). Regulation 61 (1) (d) of the Regulations read with Section 2 (g) of the Reservation Act makes the provisions of the Reservation Act applicable to Corporation employees. The petitioner was promoted to the post of District Transport Manager on 18th October 1982 and the next promotional post is the Divisional Manager which was later on re-designated as Deputy General Manager. It is the petitioner's further case that when 2 posts of Deputy General Manager fell vacant in 1983 petitioner's case was not considered and yet non-Scheduled candidates were promoted ignoring the provisions of the Reservation Act, but the petitioner, however, does not assail the said promotions since those promotees have retired in the meantime. Thereafter, in 1985, another post of Divisional Manager fell vacant which was later on re-designated as Deputy General Manager. Though under the Act and the Regulations, the petitioner alone was entitled to be promoted to the said post, yet ignoring the petitioner's case for promotion, the opposite parties promoted opposite party No. 4. Initially the promotion of opposite Party No. 4 was made on ad hoc basic as per Annexure-1 and later on the Selection Board approved the said promotion as per Annexure-2 and the said opposite party No. 4 is continuing in the promotional post. The petitioner, therefore, prayed for quashing of the promotion of opposite party No. 4 and issuing a mandamus to the opposite parties to consider the case of promotion of the petitioner in view of the provisions of the Reservation Act and the Regulations.

(3.) THE stand of the Corporation in the counter affidavit is that the post to which opposite party No. 4 was promoted is designated as General Manager, Planning and Statistics, and for such a post a Statistician is best suited and qualified. Since opposite party No. 4 was preeminently suitable and petitioner was not at all suitable for the said post, opposite party No. 4 was promoted and petitioner's case had not been considered. Though such a stand had been taken in the counter affidavit, yet at the time of hearing of the case, the learned counsel for the Corporation-opposite party No. 2 does not press the said submission and, in our view, rightly. The further stand of the Corporation in the counter affidavit is that the petitioner did not come within the zone of consideration as required under the Service Regulations and, therefore, his case was not considered. It is not disputed that the Reservation Act applies to the employees and posts under the Corporation. Opposite party No. 4 has also filed a counter affidavit and the stand taken by him is that the promotion being based on merit-cum-seniority and to such promotional post the Reservation Act having no application and opposite party No. 4 having been found to be more meritorious having the requisite qualification for the post in question, there has been no infraction of Article 14 or Article 16 of the Constitution and, therefore, the petitioner cannot assail the same. The petitioner has filed a rejoinder affidavit more or less reiterating his earlier stand.