State of Orissa Vs. Khageswar Das
& Ors  INSC 163 (12 August 1975)
CITATION: 1975 AIR 1906 1976 SCR (1) 300 1975
SCC (2) 553
Orissa Industries Service Rules 1971, r.
3(1)(ii)-If violative of Art. 16 Constitution of India.
Rule 3(1)(ii) of the Orissa Industries
Service Rules, 1971, provided that the junior grade of the service shall
include the posts of Deputy Directors, Senior lecturers in Engineering, Schools
etc. besides the posts of Principal, Engineering Schools (except Mining
Engineering) and Polytechnics which carry a special scale of pay.
The 1st respondent was appointed a lecturer
in a Mining Engineering School. In 1960, the School was brought under the
administrative Control of the Industries Department of the State Government,
and the respondent became an officer of the Industries Department. Later. he
was appointed Principal of the School. In 1964, there was a bifurcation of the
common cadre of the Department, and a separate cadre for teaching posts of
Engineering Schools in the State was created. In 1967, the two cadres were
again merged forming a combined cadre for the officers of the Industries
Department. The reason given for the merger was that the separate cadre for
teachers was not beneficial to them because, promotion prospects for them were
bleak in view of the limited posts available for promotion. After the merger,
in 1969, even though the 1st respondent was senior to the 2nd respondent, the
latter was promoted as Joint Director superseding the former.
The High Court quashed the order and struck
down r. 3(1)(ii) as violative of Art. 16.
Dismissing the appeal to this Court,
HELD: (1) In the resolution of 1967 merging
the two cadres it was stated that the conditions of service of all the officers
will be governed by a set of cadre rules to be framed later, but no such rules
were framed at the time of promotion of the 2nd respondent. The 1971-rules were
framed during the pendency of the writ application, filed by the 1st
respondent, in the High Court. There was, therefore, at the time of promotion
of the 2nd respondent, nothing to show that the post of a teacher or the
Principal of a Mining Engineering School WAS treated as an ex-cadre post and on
a separate footing for the purpose of promotion to the administrative posts.
[303G-H] (2) Rule 3(1)(ii) when it says in the first part Senior lecturers in
Engineering Schools, it includes senior lecturers of Mining Engineering School
also. Even when the two cadres were separated, all Engineering Schools
including Mining Engineering Schools were placed on the SAME Footing.
But, in the last part of the rule when
referring to the post of Principal, the Principal of a Mining Engineering
School is excluded. The exclusion is without any justification or reasonable
basis. [304E-H] Therefore, the rule is violative of Arts. 14 and 16 and the
non-consideration of the case of the 1st respondent at the time of promotion of
the 2nd respondent was wholly arbitrary and illegal. [33H; 304H] (3) It is
however not necessary to strike down the entire rule 3(1)(ii). It is sufficient
if the words 'except Mining Engineering' are struck down and deleted. [304H]
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 254 (N) of 1974.
Appeal by special leave from the judgment and
order dated the 30th November, 1972 of the High Court of Orissa in O.J.C. No.
129 of 1970.
Gobind Das and B. Parthasarathi, for the
B. P. Maheshwari and Suresh Sethi, for
respondent No. 1.
The Judgment of the Court was delivered by
UNTWALIA, J.-The State of Orissa has preferred this appeal by special leave
from the judgment and order of the High Court passed in Writ Petition filed by
1. Respondent No. 2 was appointed by
promotion to the post of Joint Director of Industries, Government of Orissa in
supersession of the claim of respondent No. 1. The High Court has quashed the
said order and directed the appellant to consider the case of respondent No. 1
for promotion to the post of Joint Director according to his seniority in the
combined cadre formed by Resolution dated 2-10-1967. Rule 3(1) (ii) of the
Orissa Industries Service Rules, 1971 has been struck down as being violative
of Article 16 of the Constitution of India.
Respondent No. 1 was appointed as a lecturer
in Mining in the Orissa School of Mining Engineering? Keonjhargarh on 6-2-1960.
The said School was brought under the administrative control of the Industries
Department of the Government of Orissa in pursuance of a Resolution dated 18-
2-1960. The service of respondent No. 1 thereupon stood transferred under the
administrative control of the Industries Department with effect from 21-3-1960.
The post of the lecturer in the Mining Engineering School was upgraded by order
of the State Government made in August, 1960. The petitioner was brought into
the common cadre of the Industries Department of Government of Orissa and while
he was so continuing, he was appointed as Principal of the Mining Engineering
School. The provisional appointment made was regularized by the Industries
Department by a notification dated 19-12-1962, a copy of which was Annexure D/2
to the Writ application. This notification clearly shows that at that time
respondent No. l was treated as an officer of the Industries Department.
Then came a Resolution of the Government
dated 21-4- 1964. The common cadre of the Industries department was bifurcated
into two. A separate cadre was created for teaching posts of Engineering
Schools in Orissa including the Mining Engineering School. Respondent No. 1
exercised his option to remain in the teaching cadre of the Industries
As per Resolution of the Government dated
2-10-1967 the two separate cadres in the Industries Department were again
amalgamated and merged into one. Consequently the cadre of the teaching staff
of the Engineering Schools including the Mining Engineering School and that of
the administrative state became a single combined cadre.
6-L 839 Sup Cl/75 302 Even then respondent
No. I was not considered for promotion to the post of Joint Director when
respondent No. 2 who was junior to him was promoted to the post. Feeling
aggrieved by the non-consideration of his case for promotion, respondent No. 1
filed the writ application in the year 1970. During the pendency of the writ
application, the Governor of Orissa framed the orissa Industries Service Rules,
1971-hereinafter called the Rules, under proviso to Article 3()9 of The
Constitution. Respondent No. 1 amended his writ application, 1 made out a case
of discrimination in the framing of the Rules and attacked them as being
violative of Articles 14 and 16 of the Constitution.
In paragraph S of the counter filed by the
appellant the formation of a combined cadre by Resolution dated 2-10- 1967 was
admitted. But it was asserted that in spite of the merger of the two cadres
into one the intention of the Government was to treat the post of the Principal
cf a Mining Engineering School as an ex-cadre post under the Industries
Department. The Mining Engineers were excluded from the junior grade of service
under the Industries Department in accordance with the Rules of 1971. Earlier
also, respondent No. 1 got class I post out of turn treating him as belonging
to ex-cadre post.
The High Court has come to the conclusion
that before 21-4-1964 there were no separate cadres for the teaching and the
administrative staff of the Industries Department. The cadre was one. It was
bifurcated in 1964 and the two bifurcated cadres were again united and merged
into one on and from 2-10-1967. There was, therefore, no justification at all
in not considering the case of respondent No. 1 for promotion to the post of
Joint Director as all persons in the combined cadre eligible for promotion had
to be considered. Respondent No. 1 was senior to respondent No. 2 in the
combined cadre and yet his claim was ignored on a ground which was not
substantiated. The relevant rule was discriminatory and had no reasonable nexus
with the object of the- Rules.
The judgment of the High Court was handed
down on the 30th November, 1972-long before the issuance of the notification
dated 27th June, 1975 by the President of India under Article 359(1) of the
Constitution. The rule was declared ultra vires on the ground of J violation of
Articles 14 and 16. The State of orissa was the appellant before us. It was,
therefore, agreed on all hands that this appeal was not a proceeding pending in
this Court for the enforcement of the right under Article 14 of the
Constitution and was, therefore, not suspended. The enforcement of the right
was made by the delivery- of the High Court judgment and the State merely
wanted in this appeal a deletion of that enforcement.
Mr. Gobind Das, learned counsel for the
appellant, submitted that the posts of the teachers in the Mining Engineering
School in Orissa including the posts of the Principal have always been treated
as ex-cadre posts in the Industries Department. The teachers and the Principal
of the Mining Engineering School were not considered for promotion to the posts
of Administrative Department because few persons 303 were available to man the
posts in the Mining Engineering School. It was because of this reason that the
case of respondent No. 1 was not considered and the Rules were also framed with
that object in view. In any view of the matter, counsel submitted, that the
whole of Rule 3(1) (ii) ought not to have been declared as void and only the
offending portion ought to have been struck down.
The main part of the argument put forward on
behalf of the appellant does not stand scrutiny and must be rejected.
It could not be seriously disputed that
respondent No. 1 was an officer of the Industries Department and appointed to
the post of the Principal of the Mining Engineering School in that Department.
There is nothing to indicate that the post of the Principal or of the teacher
of any Engineering School or of the Mining Engineering School was an ex-cadre
Then came the Resolution date(l 21st April,
1964. The new scales of pay were fixed for the teachers in Engineering in The
Engineering Schools including the Mining Engineering School in the State of
Orissa The contention of Mr Das that this fixation of scales was only for the
Engineering Schools and not for Mining Engineering School is not correct.
Clearly all Engineering Schools were placed
on the same looting and paragraph 3 of` this Resolution runs as follows:
"The teaching posts in Engineering
Schools which till now were included in common cadre with other posts in the
Directorate of Industries will be placed in a separate cadre to which the above
scale of pay will apply.
Then came the merger resolution after about
three years on the 2nd October, 1967 a copy of which was Annexure I to the writ
application. The subject of the notification, Annexure l, is ''formation of a
combined cadre for the officers of the Industries Department". It was
clearly mentioned hl This notification that after the teaching posts were
placed in a separate cadre "it was felt that the promotion prospects would
be bleak due to the formation of a separate cadre for teachers in view of the
limited posts available for promotion". Hence formation of separate cadre
for teachers was considered not to be beneficial to them. So the combined cadre
was brought into force with effect from the date of the issue of the Resolution
dated 2nd October, 1967 in supersession of the earlier decision to have a
separate cadre for teachers. Lastly it was stated in this Resolution "The
conditions of service of all the officers will be governed by a set of cadre
rules to be framed later on". No rules were framed until the framing of
the Rules in 1971. As against a categorical statement in the Resolution dated
2-10-1967 there was nothing whatever to show that the post of a teacher or the
Principal in the Mining Engineering School was treated as an ex-cadre post and
on a separate footing for the purpose of promotion to the administrative posts.
The non-consideration of the case of respondent No. 1 at the time respondent
No. 2 was promoted to the post of Joint Director in or about the year 1969 was
wholly arbitrary, unjustified and illegal. The High Court was right in making
the order which it did on the writ application of respondent 304 As against the
purpose and object of the merger of the cadre mentioned in the Resolution dated
2-10-1967 we find Rule 3 of the Rules going contrary to them. Rule 9(1) of the
"Promotions to the posts of Senior grade
in Class I shall be made from among the members of the Junior grade in Class I
:" Constitution of the service is provided in Rule 3. We are concerned
with Rule 3(1). It reads as follows:
"3 ( 1 ) The cadre of the service shall
consist of two branches, viz., Class I and Class ii, the former comprising two
grades, viz., the Senior grade and the Junior grade, as indicated below:- (i)
The Senior grade shall include posts of Joint Directors and officers of
equivalent status as may be declared by Government from time to time.
(ii) The Junior grade shall include the posts
of Deputy Directors, Senior Lecturers in Engineering Schools and such other
posts as may be declared by Government from time to time to be of equivalent
status, besides the posts of Principal. Engineering Schools (except Mining
Engineering) and Polytechnics which carry a special scale of pay.
Clause (ii) of the Rules when it says in the
first part that the "junior grade shall include the posts of Deputy
Directors, Senior Lecturers in Engineering Schools" it means clearly
Senior Lecturers in Engineering Schools not excluding Mining Engineering School. But in the last part when in the junior ;grade were included the posts of
Principals, Engineering Schools by the words "except Mining
Engineering" given in the parenthesis, the post of the Principal of the Mining Engineering School was excluded. It was so done during the pendency of the writ
application of respondent No. 1 and without any reasonable and sound basis for
making a discrimination a propos the post of the Principal of the Mining Engineering School. We find no justification for making the distinction in the
junior grade of Class I service in the case of the Principal of Mining
Engineering School. The rule in that regard has rightly been held to be
violative of Articles 14 and 16 of the Constitution by the High Court. But
striking down of the whole of clause (ii) of Rule 3(1) of the Rules was not
necessary. Only the words in parenthesis had to be deleted and struck down on
that account. That would serve 305 the purpose of making the posts of Principal
of all Engineering Schools including the Mining Engineering School being the
posts in the junior grade, Class I.
For the reasons stated above, we find no
merit in this appeal. It is accordingly dismissed but subject to the
clarification made above with costs payable to respondent No. 1.
V.P.S. APPeal dismissed.