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PETITIONER: STATE OF ORISSA

       Vs.

RESPONDENT: KHAGESWAR DAS AND OTHERS

DATE OF JUDGMENT12/08/1975

BENCH: UNTWALIA, N.L. BENCH: UNTWALIA, N.L. ALAGIRISWAMI, A. GOSWAMI, P.K.

CITATION:  1975 AIR 1906            1976 SCR  (1) 300  1975 SCC  (2) 553

ACT:      Orissa Industries  Service Rules  1971, r.  3(1)(ii)-If violative of Art. 16 Constitution of  India.

HEADNOTE:      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

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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] 301

JUDGMENT:      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 appellant.      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 respondent No. 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.

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    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 Department.      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 formatio  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.

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    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 post. 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

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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 Rules says:           "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. 306