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[ REPORTABLE]
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 1967 OF 2013
(Arising out of Special Leave Petition (Civil) No. 20635 of 2011)
State of Orissa & Ors. …Appellants
Vs.
Sri Jagabandhu Panda …Respondent
WITH
C.A.No.1968 OF 2013 arising out of SLP(Civil) No.8676/2013
J U D G M E N T
M.Y.EQBAL,J.
C.A.No.1967 of 2013 arising out of SLP(Civil) No.20635/2011
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:
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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 OSDcum-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
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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 redesignating 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
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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 redesignated 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
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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
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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
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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.
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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
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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 Commissionercum-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,
Bhuvaneswar.
(Through Proper channel)
Sub:- Creation of the post of Joint Director, Steel
by way of up-gradation of the existing post of Ore
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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 excadre 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)”
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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
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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 herein-below:
“Department of Steel & Mines
No.7107/S.M. Bhuvaneswar, the 17.08.2007
From:
D.S. Jena, OAS
Under Secretary to Government
To
Sri Jagabandhu Panda,
Ore Dressing Engineer
Directorate of Geology,
Orissa, Bhuvaneswar.
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
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you joined Government service in the Excadre 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
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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:
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“Government of Orissa
Steel and Mines Department,
No.XII (DG)SM-65/2006/SM Bhuvaneswar,
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 redesigned as OSD-cum-Deputy Director (Excadre) 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-cumdeputy 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
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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
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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 OSDcum-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-à-
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
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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
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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 vs. Union of India and Others (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
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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
en cadring 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 en cadrement 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.
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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.
…………………………….J.
( Surinder Singh Nijjar)
…………………………….J.
( M.Y. Eqbal)
New Delhi,
February 27, 2013
21
