State of Orissa & Ors. Vs. Sri Jagabandhu Panda
Email(Arising out of Special Leave Petition (Civil) No. 20635 of 2011)
With
C.A.No.1968 of 2013
(Arising out of SLP (C) No.8676/2013)
(Arising out of Special Leave Petition (Civil) No. 20635 of 2011)
With
C.A.No.1968 of 2013
(Arising out of SLP (C) No.8676/2013)
Constitution of India, 1950
Articles 14, 16, 226 – Ore Dressing Engineer in class-1, Junior Grade in Mining and Geology department of State – Post created – Directorate of Mines intimated the Department of Mines & Geology about creation of post vide letter dated 26.09.1981 Letter specifically mentioning the post as ex-cadre post Advertisement for said post mentioned the post as temporary but likely to be made permanent’ Candidate selected and appointed In 1985, three increments in advance sanctioned to candidate Immediately after joining representation made for making said post as en-cadre Representation dated 11.02.1993 specifically mentioned that he was working in an ex-cadre post, though earlier he claimed that he learnt about the post as ex-cadre only after joining Services placed at disposal of department of Steel and Mines On basis of representation he was allowed to work as OSD in said department Salary being drawn from Directorate of Mining and Geology, where he was appointed – In 1993 granted status of ex-officio under secretary to Govt. Said status to end with completion of his tenure as OSD in Secretariat On completion reverted back to Directorate of Geology Request of up gradation of post of OSD-cum-Ex-officio under Secretary, declined in August, 2007 Vide notification dated 1.9.2008, post of Ore-dressing Engineer ex-cadre temporarily upgraded and re-designated as OSD-cum-Deputy Director (ex-cadre) for 6 months Another representation that he was to be designated as deputy director (steel) – Prayer to Tribunal to work as OSD-cum-Deputy Director (steel) declined but directions given to consider his case for promotion at par with class 1 engineers appointed in 1984 Challenge by State, failed. Held that the directions passed by Tribunal and as affirmed by High Court are set aside. T.N. Administrative Service Officers Association’s case referred and relied upon.
The post of Ore-dressing Engineer was created on the basis of proposal initiated from the Commissioner level under a Scheme Applied Mineral Research 1981-82. The post of Ore-dressing Engineer was created and appointment was made outside the existing cadre of mining engineers. It was so understood by the respondent that from the inception that he was holding an ex-cadre post there had been a special reason for recruiting an Ore-dressing engineer for a specific purpose temporarily outside the ex- cadre of mining engineer. It is well settled that a cadre may consist of permanent as well as temporary post and there may be permanent vacancies in permanent as well as temporary post, but it does not follow that appointment made outside the very service and outside the cadre must be considered to be made to temporary post borne on the cadre merely because, the post was likely to continue indefinitely. (Para 23)
The direction issued by the Tribunal and the order of the High Court affirming the order of the Tribunal is wholly without jurisdiction. The impugned orders passed by the Tribunal as also by the High Court are, therefore, liable to be set aside. (Para 25)
C.A.No.1967 of 2013 arising out of SLP (C) No.20635/2011
1. Leave granted.
2. This appeal at the instance of State of Orissa is directed against the judgment and order dated 08.10.2010, whereby the Division Bench of the Orissa High Court refused to interfere with the order passed by the Orissa Administrative Tribunal in O.A. No.97/2009.
3. The facts of the case in brief are as under:
4. The respondent was appointed pursuant to the advertisement dated 5.4.1984 on the post of Ore Dressing Engineer in Class-1 Junior Grade of the State Services in the pay scale of Rs.850-1450. The respondent in response to the appointment letter dated 2.11.1984 joined in the said service on 14.11.1984. Between 18.6.1996 and 19.6.2001 he was deployed in Steel and Mines Department on certain terms and conditions, but he was to draw the salary from the Directorate of Geology. He was again deployed as officer on Special Duty in Steel and Mines Department between 10.9.2003 to 8.9.2006 on certain terms and conditions and he was also drawing the salary and other service benefits from the Directorate of Geology. The post of Ore Dressing Engineer in the office of the Directorate of Geology was temporarily upgraded on 1.9.2008 as OSD-cum-Deputy Director in the scale of Rs.9350-14550/- and he was allowed to continue in the upgraded post. However, this post was termed as ex-cadre and the post of OSD-cum-Deputy Director was to lapse on his retirement. The respondent filed Original Application before the Tribunal with a prayer that he should be re-designated as OSC-cum- Deputy Director (Steel) instead of OSD-cum-Deputy Director (ex-cadre). All the representations in this regard were rejected by the department for which the opposite party had to approach the Tribunal.
5. The said application of the respondent before the Tribunal was resisted by the State on the ground that the post of Ore Dressing Engineer advertised by OPSC was an ex-cadre post and that the respondent continued in ex-cadre post through out. It was admitted by the respondent that the services of the opposite party had been placed with Steel and Mines Department, but he was reverted back to the Directorate of Geology since his services in the Department of Steel and Mines was not found to be useful. There being no scope of promotion in the ex-cadre post held by the respondent, the government decided to upgrade the same as Ore Dressing Engineer (ex-cadre) in the Directorate of Geology and re-designated the same as OSD-cum-Deputy Director (ex-cadre). The respondent having availed the benefits of the said upgraded post, requested for re- designating the said post as OSD-cum-Deputy Director (Steel).
6. Mr.L.Nageshwar Rao, learned senior Advocate appearing for the petitioner/Sate referring to several documents and rules submitted that the post of Ore Dressing Engineer in Class-1 Junior Grade is not available in the Directorate of Geology. The cadre rules do not provide such a post and, therefore, from the beginning the said post was treated as ex-cadre post. According to the learned counsel, the respondent was appointed against the said ex-cadre post and continued as such till his services were placed in the Department of Steel and Mines for certain period. After being reverted to the Directorate of Geology, he again continued in the said ex-cadre post. However since there being no scope of promotion, the Government decided to upgrade the post held by the respondent and re-designated it as OSD-cum-Deputy Director (ex-cadre) and the respondent accepted the same and has been continuing in the said post. It was further submitted by the learned Additional Solicitor General that the respondent having worked against an ex-cadre post all through, he cannot claim that the said post be included in the cadre.
7. Per contra, Mr. Patwalia, the senior Advocate for the respondent at the very outset submitted that the case of the State that the post of respondent is an ex-cadre post is baseless, misleading and malafide which is evident from the documentary evidence including the letter of appointment. According to the learned counsel when the post of Ore Dressing Engineer was sanctioned in the year 1981 it was sanctioned as an ex-cadre post. Accordingly he submitted that the ex-cadre post can be created to meet the urgent need of department for a shorter period and such post cannot be allowed to be continued on ex-cadre basis for indefinite period. It was contended that the respondent has been working as OSD (Ore Dressing Engineer) for the last 26 years itself shows that the post is not an ex-cadre post but a cadre post. It was, further, submitted that the different pay-scales between the cadre post and ex-cadre post cannot be the sole criteria for deciding the nature of particular post as an ex-cadre post. The appellant State has been wrongly treating the post of the respondent as an ex-cadre post only because of the different pay scales. The action of the appellant State in treating the post of the respondent as an ex-cadre post is wholly illegal and malafide.
8. We have heard the learned counsels for the parties at length and considered the facts of the case and the documents in support of their respective cases.
9. The sole question that falls for consideration is as to whether the post held by the respondent is an ex-cadre post. In order to find out the correct factual position, we have to examine the facts of the case in detail.
10. In the year 1981, a proposal was made by the Commissioner-cum- Secretary of Mining and Geology Department for creation of post of Ore Dressing Engineer in Class-1 rank in the pay scale of Rs.850- 1450/- for the scheme Applied Mineral Research during 1981-82. In the said proposal it was mentioned that the assessment of mineral resources of the State constitute a most important objective of the Directorate of Mines. Apart from geological investigations in the field, it is necessary to determine the grades of different ores and minerals encountered during the course of such investigations. For such purposes certain facilities were developed in the research laboratory of the Directorate of Bhubaneswar. In order to take up the investigation with regard to study of the possibility characteristics of China Clay etc. it was proposed to create a post of Ore Dressing Engineer. The proposal was materialized and creation of one post of Ore Dressing Engineer temporarily in the pay scale of Rs.850-1450/- was sanctioned. Accordingly, the Directorate of Mines, Govt. of Orissa vide communication dated 26th September 1981 informed the Mines and Geological Department, Bhubaneswar about the creation of post. In the said letter it was mentioned that the post of Ore Dressing Engineer should be treated as an ex-cadre post. For better appreciation the letter dated 26th September 1981 is reproduced hereinbelow:
Directorate of Mines
ORISSA
No.25217/Mines,Bhubaneswar: 26th Sept.1981
From
B.K.Mohanty
Director of Mines.
To
The A.F.A.-cum-Under Secretary to Govt.
Mining & Geology Department,
Bhubaneswar
Sub: Filling up the post of Ore Dressing Engineer
Sir,
In inviting the reference to your letter No.10780 MG dated the 26th Sept.1981, I am to say that the post of Ore Dressing Engineer should be treated as an ex-cadre post. The job chart of the post is as follows:
The Ore Dressing Engineer will be required to working the Research Laboratory of the Directorate of Mines at Bhubaneswar. He may also be required to original and take the Ore dressing/beneficiation tests in the field as may be necessary. He will be responsible for maintenance and operation of the ore dressing equipment and instruments. He will conduct tests under the supervision of the Minerals Technologist and Joint Director of Projects, as may be assigned and report the results of such tests from time to time, as may be required by the Director of Mines.
Yours faithfully
Sd/-Illegible
Directorate of Mines
11. The post was accordingly advertised by the Orissa Public Service Commission on 5th April 1984. By the said advertisement, applications in the prescribed form were invited for one post of Ore Dressing Engineer, Class-1 Junior Grade of State Service in the pay scale of Rs.850-1450/-. In the said advertisement, it was mentioned that the post is temporary but likely to be made permanent in due course. The respondent on being selected was issued an appointment letter and pursuant to the said appointment letter the respondent joined in the said post. In the year 1985, the Government sanctioned three advance increments to the respondent in the pay scale of Rs.850-1450/- as per the terms and conditions of the advertisement.
12. Immediately after joining the said post the respondent started filing representation for making his ex-cadre post en-cadre to The Orissa Mining and Geology Service Rules which is now an ex-cadre post. The said representations dated 28.6.1985 and 5.9.1985 followed by another representations dated 7.3.1986 and 16.4.1986 to the Secretary to Government of Orissa, Mining and Geology Department, the respondent stated that only after joining he came to know that the Ore Dressing Engineer was an ex-cadre post. He claimed that post of Ore Dressing Engineer is en-cadre post and the next promotion was to Joint Manager. By another representation submitted by the respondent on 19.9.90 wherein respondent alleged that Ore Dressing Engineer post is being treated as an ex-cadre post.
13. By another representation dated 11.2.93 to the Commissioner-cum- Secretary to the Government of Orissa, Steel & Mines Department, the respondent categorically stated that he was working as Ore Dressing Engineer in the Directorate of Mining and Geology in an ex-cadre post having no prospect of promotion in this Directorate. The said letter needs to be re-produced hereinbelow:
From:
Jagbandhu Panda, B.Sc (Gng) Met)
Ore Dressing Engineer,
Directorate of Mining and Geology,
Orissa Bhubaneswar.
To
The Commissioner-cum-Secretary to Govt. Steel and Mines Department, Orissa, Bhubaneswar. (Through Proper channel)
Sub:- Creation of the post of Joint Director, Steel by way of up-gradation of the existing post of Ore Dressing Engineer under Steel and Mines Department.
Sir,
Respectfully, I beg to state that following facts for your kind considerations. That the proposals for the Steel Plants for our State is under active considerations of Govt. In order to coordinate and synthesize all the activities for this, I cam to learn that a cell has been constituted in the Department of Steel and Mines and a number of non-technical personnel have been inducted in to this cell. In view of Technical consultancy of IPICOL and other agencies, I fell that there is a need to avail services of a Metallurgical Engineer in the above cell which is lacking at present.
I am a Metallurgical Engineering Graduate, presently working as Ore Dressing Engineer in the Directorate of Mining and Geology in an ex-cadre post having no prospect of future promotion in this Directorate. I feel that my experience and expertise in the field of extractive metallurgy ( Iron & Steel) can be better utilized if a post Joint Director (Steel) can be created under this Department and I am given the opportunity to man this post to coordinate all the activities of the proposal Steel Plants in the Directorate level. I urge upon you to consider the above facts in the right earnest and provide me the appropriate job opportunity as per the above proposal for which I shall be ever obliged.
Yours faithfully
Sd/- Illegible
11.02.1993
(J.B. Panda)
14. On the basis of representations filed by the respondent, the Government decided to allow the respondent to work as Officer on Special Duty in the Department of Steel & Mines subject to the following conditions:
1. The tenure of Sri Panda as OSD in the Department of Steel & Mines will be for a period of 6 months from the date of his joining.
2. Sir Panda will draw his salary and other service benefits as usual in the post of Ore Dressing Engineer from the Directorate of Mining and Geology.
3. His further continuation as OSD will be reviewed on the basis of his performance and needs of the Department.
15. By another communication dated 30.11.1993 issued by the Department of Steel & Mines, Govt. of Orissa the respondent was conferred Ex-Officio Secretariat status and was designated as Officer on Special Duty and Ex-Officio Under Secretary to Government, Department of Steel & Mines. However, it was mentioned in the said communication that the ex-officio Under Secretary status was ceased with effect from the date his term of appointment as OSD in the Secretariat is over. It appears that after the completion of tenure as OSD Ex-Officio Under Secretary the respondent was reverted back to his parent establishment i.e. Directorate of Geology with immediate effect vide Office Order dated 8th September 2006.
16. After the aforesaid order of reversion was passed, the respondent then filed a representation on 5.5.2007 requesting for upgradation of the post to OSD & Ex-Officio Deputy Secretary. The representation was considered by the Government and vide communication dated 10.8.2007 the respondent was informed that his request for upgradation of post Ore Dressing Engineer (Ex-cadre) could not be considered for the present. This letter also worth to be quoted here-in-below:
Department of Steel & Mines
No.7107/S.M. Bhubaneswar, the 17.08.2007
From:
D.S. Jena, OAS
Under Secretary to Government
To
Sri Jagabandhu Panda,
Ore Dressing Engineer
Directorate of Geology,
Orissa, Bhubaneswar.
Sir,
I am directed to invite a reference to your representation dated 05.05.2007, regarding upgradation of your post to OSD & Ex-Office-Deputy Secretary and to say that you joined Government service in the Ex-cadre post of Ore Dressing Engineer (Jr. Class-I) on 14.11.1984 in the erstwhile Directorate of Mining and Geology after being selected by the OPSC.
You were sanctioned 3 advance increments in the scale of pay of Rs. 850-1450- at the time of joining the post of Ore Dressing Engineer. Your present pay scale is Rs. 8000-13,500/-. Your case is not same as the case of other qualified Geologists and Mining Engineers, who joined the State Government in Class- II posts. Mining Engineers & Geologists appointed in Class-II posts have to serve a long period to get promotion to the Junior Class-I rank. They do not get advance increments on appointment or promotion.
You were deployed as OSD & Ex-Officio Under Secretary to Government of Steel and Mines Department from 1997 to 2001 and again from 2003 to 08.09.2006. As your continuance in the Department was felt to be of no necessity you have been reverted to your parent post of Ore Dressing Engineer (Ex-Cadre) in the Directorate of Geology w.e.f. 08.09.2006 (A.N.).
The post of Ore Dressing Engineer (Ex.Cadre) was originally created in the Directorate of Mining and Geology with a definite purpose. As per the job chart, Ore Dressing Engineer is requested to work in the Research Laboratory and look after to organize and take up Ore Dressing beneficiation test in the field as and when necessary under the direct supervision of Joint Director of Geology.
The proposal of upgradation of post of Ore Dressing Engineer (Ex.Cadre) to the rank of OSD & Ex-Officio Deputy Secretary or Deputy Director, Steel & Ex-Officio Deputy Secretary was examined. It was observed that after upgradation, the original post of Ore Dressing Engineer will stand abolished and the very purpose of creation of the post will be defeated.
Further neither there is any post of Deputy Secretary belonging to Mining Cadre in the Orissa Secretariat nor there is any post of Deputy Director. Ore Dressing in the Directorate to consider your case for promotion to the higher rank. There is no necessity now to upgrade the post of Ore Dressing Engineer (Ex.Cadre).
In view of above facts, your representations for upgradation of the post of Ore Dressing Engineer (Ex.Cadre) could not be considered at present.
Yours faithfully,
Sd/ Illegible
10.08.2007
Under Secretary to Government
17. However after about an year vide Notification dated 1.9.2008 issued by the Steel & Mines Department Govt. of Orissa a post of Ore Dressing Engineer (Ex-Cadre) was temporarily upgraded and redesignated as OSD-cum-Deputy Director (Ex-cadre) for a period of six months or till receipt of recommendation of the Commissioner whichever earlier. The Notification dated 1.9.2008 reads as under:
Government of Orissa
Steel and Mines Department,
No.XII (DG)SM-65/2006/SM Bhubaneswar,
NOTIFICATION
The only post of Ore Dressing Engineer (Ex.Cadre) in the office of the Directorate of Geology carrying the pay scale of Rs. 8000-275-13,500/- is temporarily upgraded and re-designed as OSD-cum-Deputy Director (Ex-cadre) in the pay scale of Rs.9350-325-14550) from the date of issue of this order. Sri J.B. Panda, at present holding the post of Ore Dressing Engineer (Ex.Cadre) is allowed to continue in the upgraded post of OSD-cum-deputy Director (ex-cadre) in the above pay scale for period of six month or till receipt of recommendation of OPSC whichever is earlier.
The post of OSD-cum-Deputy Director (ex-cadre) shall be co-terminus with the retirement of Sri J.B. Panda and thereafter the post of Ore Dressing Engineer (Ex.Cadre) will be reviewed automatically in the Directorate of Geology in the scale of pay of Rs. 8000-275-13500/-.
By order of Governor M. R. Pattanaik
Joint Secretary to Government
Memo No.6269/dated 01.09.2008
Copy forwarded to the Directorate of Geology Orissa Bhubaneswar/ person concerned for information and necessary action.
Sd/- Illegible
Joint Secretary to Government
Memo No./Dt.
Copy forwarded to the AG, Orissa/Spl, Secretary, OPSC, Cuttack, Finance Department/GA (SE) Department for information and necessary action.
Joint Secretary to Government
18. After receipt of the Notification the respondent submitted another representation claiming that he was to be designated as Deputy Director (Steel) but instead of issuing Notification to that effect, it was wrongly notified that the post was temporarily upgraded as OSD-cum-Deputy Director (Ex-cadre).
19. The Government finally by communication dated 26-12-2008 informed the respondent that after careful consideration of the earlier representations, the Notification was issued upgrading his designation. The respondent was advised to adhere to the order passed by the Government and stopped making unnecessary correspondence with the Government.
20. From perusal of the order passed by the Tribunal, it reveals that although the Tribunal noticed
that neither in the advertisement nor in the appointment letter it was mentioned that the respondent was appointed to an ex-cadre post but from the notings produced from the Secretariat file, it does indicate that the respondent was a holder of ex-cadre post. The Tribunal further held that the prayer of the respondent to allow him to work in Administrative Department as OSD-cum-Deputy Director cannot be endorsed as to whether the services of a particular official against a particular post is required by the Government. It is for the Government to determine. The Tribunal, therefore, refused the prayer of the respondent for permitting him to work in the Administrative Department as OSD-cum- Deputy Director (Steel). However, as regards the promotional prospect the Tribunal held as under :-
As regards his promotional prospects it is clear from the documents at Annexure 1 and 2 that the applicant was termed as a hold of ex-cadre post only after his actual appointment and no mention was made therein regarding his appointment against an ex-cadre post. We, therefore, suggest that the Directorate of Geology may consider the case of the applicant for career advancement vis–vis other comparable Class-I Engineers in service appointed in 1984 in the erstwhile Directorate of Mining an Geology (and later the Directorate of Geology) on the same footing as if he was appointed at par with other Engineers in 1984 and treating him as the junior most of that batch and consider him for promotion from the date his junior was so considered from time to time.
21. The aforesaid order of the Tribunal was challenged by the appellant by filing a writ petition. The Division Bench dismissed the Writ Petition mainly on the ground that the post against which the respondent was appointed was described as an ex-cadre post only in September, 2005 and there is no office note prior to the said date indicating that the post of Ore-dressing Engineer has ever been treated as an ex-cadre post prior to 2005.
22. After giving our anxious consideration in the matter prima facie, we are of the view that the finding arrived at by the High Court that the post of Ore Engineer was for the first time treated as ex-cadre post in the year 2005, is absolutely perverse and erroneous. As noticed above, immediately after joining the post of Ore-dresser, the respondent started filing representations viz., 28.06.1985, 05.09.1985, 07.03.1986 and 16.04.1986. The respondent stated that only after joining he came to know that the post he was holding was an ex-cadre post. It is well within the knowledge of the respondent that the post which he was holding was an ex- cadre post and, therefore, by series of representations he requested the Department to upgrade the said post and to open up the promotional avenues.
23. It is not in dispute that the post of Ore-dressing Engineer was created on the basis of proposal initiated from the Commissioner level under a Scheme Applied Mineral Research 1981-82. In the said proposal it was mentioned that the assessment of the mineral resources of the State constituted a most important objective of the Directorate of Mines. In order to take up the investigation with regard to the study of minerals it was proposed to create a post of Ore-dressing Engineer under a scheme. It is, therefore, clear that the post of Ore-dressing Engineer was created and appointment was made outside the existing cadre of mining engineers. It was so understood by the respondent that from the inception that he was holding an ex-cadre post there had been a special reason for recruiting an Ore-dressing engineer for a specific purpose temporarily outside the ex- cadre of mining engineer. It is well settled that a cadre may consist of permanent as well as temporary post and there may be permanent vacancies in permanent as well as temporary post, but it does not follow that appointment made outside the very service and outside the cadre must be considered to be made to temporary post borne on the cadre merely because, the post was likely to continue indefinitely.
24. In T.N. Administrative Service Officers Association and Another v. Union of India and Others [JT 2000 (5) SC 86 : (2000) 5 SCC 728] this Court was considering a case where the Members of the State Administrative Services made a claim that a number of ex-cadre or temporary posts which were temporary in nature and some of them were created under the State Enactments which required their manning by IAS Officers. It was contended that on account of failure of the Central Government to timely review the cadre strength as statutorily required, the promotion of the promotees got inordinately delayed and they lost their seniority in the promoted cadre. The rule does not confer any right on the petitioners to seek a Mandamus for encadring those ex-cadre/temporary posts. Any such Mandamus would run counter to the statutory provisions governing the creation of cadre and fixation of cadre strength which was held that asking the State or the Central Government for encadrement of the ex-cadre/temporary posts will amount to asking the Government to create more posts.
25. In the background of the law well settled by this Court, we are of the definite opinion that the direction issued by the Tribunal and the order of the High Court affirming the order of the Tribunal is wholly without jurisdiction. The impugned orders passed by the Tribunal as also by the High Court are, therefore, liable to be set aside.
26. For the aforesaid reasons, we allow this appeal and set aside the orders passed by the State Administrative Tribunal in O.A. No.97 of 2009 and the impugned order passed by the High Court.
C.A. No.1968 of 2013 arising out of SLP(Civil) No.8676/2013
27. Leave granted.
28. This Civil Appeal is disposed of in terms of judgment passed in Civil Appeal No. 1967 of 2013 arising out of SLP(Civil) No.20635 of 2011.
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