Jyostnamayee Mishra vs The State Of Odisha

2025 INSC 87 REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION (CIVIL) NO.13984 OF 2023

JYOSTNAMAYEE MISHRA … Petitioner(s)

VERSUS

THE STATE OF ODISHA AND ORS. … Respondent(s)

JUDGMENT

Rajesh Bindal, J.

1. This Court had been called upon to examine the validity of

an order passed by the Court below where the parties failed to

produce proper documents or annexed incorrectly typed documents.

This does not happen in isolation, rather is a routine, which

sometimes results in miscarriage of justice in case the issues are not

examined in detail with proper assistance of the parties, especially Signature Not Verified Digitally signed by ASHA SUNDRIYAL Date: 2025.01.21 the State where it is party to the lis. It may also put the Court to 17:49:07 IST Reason:

ridicule.

Page 1 of 35 2. The challenge in the present petition is to the order of the

High Court1 dated 12.10.2022 passed in Writ Petition2 filed by the

State where the order passed by the Tribunal3 dated 08.01.2016 in an

application4 filed by the petitioner was set aside.

3. An interesting issue which arises is as to whether an

employee in an establishment is entitled to claim promotion on a post

for which he does not fall in the feeder cadre and the post is required

to be filled up 100% by way of direct recruitment? Another important

issue is whether a vacancy meant for direct recruitment can be filled

up merely by issuing a circular in the establishment and not by

issuing an advertisement calling application from the eligible

candidates from public at large?

4. The petitioner herein was working as a peon with

respondent-State. She was appointed as such in the year 1978. The

petitioner filed a representation dated 07.01.1999 to be appointed to

the post of Tracer.

5. While the said representation was pending, the petitioner

filed O.A. No.628(C) of 1999 before the Tribunal at Cuttack. The same

was disposed of at admission stage vide order dated 26.03.1999, 1 High Court of Orissa at Cuttack 2 Writ Petition Civil (OAC) No.18463 of 2017 3 Orissa Administrative Tribunal, Bhubaneshwar 4 O.A. No.1696 of 2010 Page 2 of 35 directing the respondent therein to dispose of her representation

within these months from date of receipt of order. Pursuant to this,

vide letter dated 05.07.1999 respondent communicated to the

petitioner that the post of Tracer will not be filed up on promotion

from the lower category of post since it is not a promotional post and

vacancy of Tracer will be filed up in due course by conducting the

interview.

6. The petitioner filed another application bearing O.A.

No.l126(C) of 2002 before the Tribunal inter alia seeking for the

intervention of the Tribunal against the discriminatory action of the

respondent authorities with regard to her promotion to the post of

Tracer. The said O.A. was later transferred to the Principal Bench of

the Tribunal at Bhubaneshwar and was registered as O.A. No.742 of

2009.

7. Learned Tribunal vide order dated 27.09.2010 disposed of

the said O.A. directing the respondent to consider the case of the

petitioner along with similarly placed Class-IV Employees for their

promotion to the post of Tracer against available future vacancy

within a period of three months from the date of communication of the

order.

Page 3 of 35 8. Vide order dated 23.11.2010, passed in compliance to the

order of the Tribunal dated 27.09.2010 passed in the Application5 filed

by the petitioner, her representation for appointment on the post of

basic level Tracer was rejected due to ban on recruitments imposed

by the Finance Department6.

9. In the third round of litigation, in the Application 7 filed by

the petitioner before the Tribunal impugning the order dated

23.11.2010, vide order dated 08.01.2016, the respondent was directed

to promote/appoint the petitioner on the post of Tracer against any

vacant post. In case no post is available, then the last person so

promoted, after the direction was issued in the earlier O.A. filed by

the petitioner, be reverted. Strangely enough to note here that no

person was impleaded as party, who may be affected by the order

passed by the Tribunal in case benefit is given to the petitioner. A

Review Petition bearing R.P. No.28 of 2016 preferred by Respondent

therein, was rejected vide order dated 28.02.2017.

10. Aggrieved against these orders passed by the Tribunal,

the State preferred Writ Petition No.18463 of 2017 before the High

Court. The argument raised was that the petitioner was not eligible

5 O.A. No.742 of 2009 6 Office Memorandum No.10954 dated 14.03.2001.

7 O.A. No.1696 of 2010 Page 4 of 35 for the post of Tracer in terms of paragraph 3(d) of the Letter No.4775

dated 26.02.1980 issued by the Works Department. Hence, she was

not found to be eligible. The orders dated 08.01.2016 and 28.02.2017

passed by the Tribunal were set aside. As the retiral benefits had

been extended to petitioner for the post of Peon, the High Court

disposed of the Writ Petition accordingly.

10.1 We are constrained to note at this stage that the Rules

namely Sub-ordinate Architectural Service Rules, 1979, (hereinafter

“1979 rules”) as framed in exercise of powers conferred under the

proviso to Article 309 of the Constitution of India and notified in the

official Gazette on 25.07.1980 vide notification No.4773- E-IXR-1/80-E

were sought to be referred by the learned counsel appearing before

the High Court as Letter No.4775 dated 26.02.1980 issued by the

Works Department, and without perusing the proper document, even

the High Court has referred those in the judgment in the same

manner.

11. Learned counsel for the petitioner argued that the High

Court, while accepting the Writ Petition of the State, had wrongly

quoted paragraph 3(d) of Letter No.4775 dated 26.02.1980 in which

the qualifications for the post of Tracer have been mentioned. The

qualification as per paragraph 3(d) required is the experience of 02

Page 5 of 35 years in tracing from blue printing or a certificate of draftsmanship

from the Industrial Training Institution. Learned counsel argued that

the petitioner possesses the qualification as she had undergone the

course of Tracer Training of 03 months with Institute of Survey and

Mining Technology, Bhubaneshwar for which a certificate was

granted on 22.09.1997. The petitioner is fully qualified for the post,

but she was not called for the interview, and the findings are

erroneous. It is the case of the petitioner that there being an error

apparent on record regarding qualification, as such the impugned

order passed by the High Court deserves to be set aside and that of

the Tribunal be restored.

12. It was further argued, earlier the petitioner was called for

interview for the post of Tracer in the year 1991 but was not

successful. Thereafter, she was again called for interview on

16.03.1999 which was postponed. Other similarly placed employees,

namely, Mr. Lalatendu Rath and Ms. Jhinarani Mansingh were

promoted as Tracer from the post of Peon, vide order dated

28.06.1999. Hence, looking at the discrimination also the petitioner’s

case deserves to be considered.

13. On the other hand, the stand taken by the learned counsel

for the respondent was that the petitioner is not eligible for promotion

Page 6 of 35 from the post of Peon to the post of Tracer as per the letter dated

26.02.1980. It is argued that the case has rightly been considered and

finding no merit therein, the High Court had set aside the order

passed by the Tribunal.

14. A perusal of the document annexed as Annexure P-2 along

with the petition gives it a color of statutory rules but not typed in a

proper manner. During the course of arguments, learned counsel for

the parties were asked to apprise the Court about the relevant

statutory rules applicable for recruitment/promotion for the post of

Tracer.

15. Learned counsel for the State had produced a copy of the

Gazette Notification and the typed copy of 1979 Rules. While

referring to the aforesaid Rules, the submission was that the petitioner

does not have a case made out for promotion because the Rules do

not permit promotion to the post of Tracer as the petitioner is not

qualified for the post of Tracer. She neither has experience nor a

certificate of draftsmanship from an Industrial Training Institute. The

certificate sought to be produced by her pertains to “‘Tracer’

Training Course” which is not the qualification prescribed in 1979

Rules. On query by the Court as to whether the post is to be filled by

way of promotion, learned counsel for the State was not able to refer

Page 7 of 35 to any Rule even though Rule 5(1)(e) of 1979 Rules clearly provides

that all posts of Tracers in Categories I, II and III shall be filled in by

direct recruitment. He submitted that for filling up the post on direct

recruitment, a notice was published in the department and

applications were invited and in pursuance of that, the application of

the petitioner and earlier by way of similar process, other candidates

were considered. The prayer is for dismissal of the petition.

16. Heard learned counsel for the parties and perused the

paper book.

17. The case in hand is a glaring example of casualness on the

part of the parties to produce proper documents before the Court.

The statutory rules dealing with the post in question, are being

termed as letter of department. Even the High Court in the impugned

judgment has referred to the same as a letter of the Works

Department, failing to appreciate the contents thereof which are in

the form of statutory rules.

18. To put the record straight, we reproduce in the table

below, the relevant Rules as published in Official Gazette and the one

placed in the paper book before the High Court and this Court.

Page 8 of 35 Counsel’s True Typed Copy Orissa Government Gazette

The 26th February, 1980 The 26th February, 1980

No.4775 E-IRA-1/80-E- In No. 4773-E-IXR-1/80-E. – In exercise of the power exercise of the powers conferred by the provision to conferred by the proviso to Article 309 of the Constitution of Article 309 of the Constitution of India. The governor of Orissa in India, the Governor of Orissa is pleased to make the following pleased to make the following rules for the regulation or rules for the regulation of recruitment. Promotion and recruitment, promotion and other condition of service or other condition of service of the this or this is a subordinate Orissa Subordinate architectural service namely: Architectural Service, namely:-

Method of Recruitment and Method of recruitment and Condition of Service Rules, condition of service Rules, 1979. 1979.

1. Short title and

1. Short title and commencement-(1) These rules commencement may be called the Orissa Subordinate Architectural (1) these rules may be called or a Subordinate Architectural Service Rules, 1979.

Service Rules, 1979. 2) They shall come into force at

2) They shall come into force at once:

once. Provided that nothing in these Provided that nothing in these rules, shall be construed as rules shall be constructed as affecting or invalidating affecting or invalidating appointments already made or appointments already made or orders already issued by the orders already issued by the competent authority and all competent authority & all such such appointments and orders appointments and orders shall shall be deemed to have been be deemed or have been made made or issued under the or issued under these appropriate provisions of these appropriate provisions of these rules. rules

Page 9 of 35

2. Definition: 2. Definition- (a) 'Department' means Government in Works

a) Department means Govt.

Department.

in Works Department.

b) Government means Govt. (b) 'Government' means of Orissa Government of Orissa. c) Service means Orissa (c) 'Service' means the Orissa Architectural service Architectural Service (Non- (Non-Gazetted) consisting gazetted), consisting of of Architectural Architectural Draftsman, Head Draftsmen, Head Draftsman, Assistant Draftsmen, Asst. Architectural Draftsman and Architectural Draftsman Tracers under the Roads & and Tracers under the Buildings Wing. Roads and Buildings Wing d) State means State of (d) 'State' means State of Orissa. Orissa

2. Position of the service- The 3. Composition of the service- service shall consist of The service shall consist of the following categories of officials, following categories of officials, namely. namely:-

Category-I: Architectural Category I – Architectural Draftsmen, Asst. Draftsman, Assistant Architectural Draftsmen, Architectural Draftsman, Tracers in the Architect Tracers in the Architect Branch Branch in the office of the in the office of the Chief Chief Engineer Roads and Engineer, Roads & Buildings. Buildings. Category II – Head Draftsman, Category-II: Head Assistant Draftsman and Tracers Draftsmen, Asst. Draftsmen in the Drawing Branches in the & Tracers in the Drawing office of the Chief Engineer, Branches in the office of the Roads & Buildings. Chief Engineer, Roads and Buildings. Category III – Draftsman and Tracers in the office of the Category-III: Draftsmen Superintending Engineers and and Tracers in the office of Executive Engineers under the Superintending Roads & Buildings Wing. Engineers and Executive Engineers under Roads and

Page 10 of 35

Buildings Wing. 4. Recruitment The recruitment to the service shall be made-

(a) by direct recruitment in accordance with the Rules 5 and 7.

(b) by promotion of officials already in service in accordance with the Rule 6.

Direct Recruitment And 5. Direct recruitment and Percentage Of Recruitments. percentage of recruitment (1)(a) 50 per cent of the

1. vacancies, shall be filled in

a) 50 percent of the vacancies , by direct recruitment to the shall be filled in direct posts of Architectural recruitment to the post of the Architectural Draftsman Draftsman under category I under Category I on a result on a result of competitive of competitive test to be test to be conducted by the conducted by the appointing authority. appointing authority. (b) 50 per cent of the vacancies

b) 50 percent of the vacancies shall be filled in by direct shall be filled in by direct recruitment to the posts of recruitment in the post of Assistant Architectural Assistant Architectural Draftsmen under Category I Draftsman under category I on a result of a competitive on a result of competitive test to be conducted by the test to be conducted by the appointing authority appointing authority.

c) 50 percent of the vacancies

(c) 50 per cent of the vacancies shall be filled in by direct shall be filled in by direct recruitment in the post of recruitment to the post of Assistant Draftsmen under Assistant Draftsman under Category II.

category II.

d) 50 percent of the vacancies shall be filled in by direct (d) 50 per cent of the vacancies recruitment in the post of shall be filled in by direct Draftsmen under category recruitment to the post of III. Draftsman under category

e) All posts of Treasures under III.

Page 11 of 35 categories I, II, and III shall (e) All posts of Tracers under be filled in by direct categories I, II and III shall recruitment. be filled in by direct

f) The competitive test for all recruitment. these three categories of

(f) The competitive test for all post shall be separated from these three categories of each other and shall be conducted by the posts, shall be separated appointing authorities from each other and shall be conducted by the appointing authorities.

(2) A candidate for direct recruitment to the service shall not ordinarily be under twenty-one years of age and over twenty-five years of age on the 1st August of the recruitment year of recruitment.

Provided that the maximum age-limit in case of a candidate belonging to Scheduled Castes and Scheduled Tribes shall be 28 years and in case of candidate already in Government service, shall be 35 years. Preference may be given to the ex-

Military personnel.

3) (a) A candidate for the post of Architectural Draftsman under category I shall be a pass in Intermediate in Architecture (recognised course) or two years study in any recognised School or College of Architecture with 3 years' experience in

Page 12 of 35 an Architect's Office or passed in Draftsman course in any technical institution with five years' experience in Architect’s Office.

(b) A candidate for the post of Assistant Architectural Draftsman under category I, shall have two years study in any recognised School or College of Architecture with one year office experience in an Architect's Office or passed the Draftsman course in any technical institution with two years' experience in any Architect's Office.

(c) A candidate for the post of Assistant Draftsman under category II and Drafts-

man, category III, shall be matriculate with a certificate of passed Draftsmanship from Industrial Training Institution.

d) Candidates for the posts of Tracer under categories I, II and III shall be matriculates with experience of two years in tracing from blue printing or a certificate of Draftsmanship from Industrial Training Institution.

4) A candidate must not have

Page 13 of 35 more than one spouse living and further in case of lady candidate, she must not have married a person who has a wife living:

Provided that the State Government may if satisfied that there are special reasons for doing so exempt from the operation of this clause.

2. A candidate for direct 6. (1) Promotion and recruitment to the service percentage of promotion-(a) shall not ordinarily be under 50 per cent of the posts of twenty one years of age and Architectural Draftsman, shall over twenty five years of be filled in by promotion age on the 1st August of the from among the suitable recruitment year of Assistant Architectural recruitment. Provided that Draftsman working in the maximum age limit in Architect Branch. case of Candidate belonging to scheduled (b) All posts of Head Draftsman, castes and Scheduled Tribes shall be filled in by promotion shall be 28 years in case of from among the suitable candidate already in Assistant Draftsman working in government service shall be the Drawing Branch. 35 years. Preference may be

(c) 50 per cent of the posts of given to the EX- Military Assistant Architectural personnel.

Draftsman shall be filled in by promotion from the Tracers working in the Architect Branch.

d) 50 per cent of the posts of Assistant Draftsman shall be filled in by promotion from the Tracers working in the Drawing Branches.

(2) No official shall ordinarily be eligible for promotion to the

Page 14 of 35 service-(i) Unless he passes the departmental test to be prescribed for the post held by him at the time of promotion, (ii) Unless he maintains a good record of service which will be judged on the basis of C. C. Rolls.

(3) The period of probation shall be one year in case of officials appointed by promotion which shall count from the date on which they join their new posts.

(4) The appointing authority may extend the period of probation for such further period as he may deem fit and if after the extended period of probation, the promotee is found unsuitable he may be reverted.

3. 7. Method of recruitment for

a) A candidate for the post of direct candidate- (1) Direct architectural draftsman recruitment to the service under Category I shall be a shall be made by a pass in Intermediate in competitive test to be Architecture ( recognized or prescribed and conducted college of Architecture with by the Chief Engineer, Roads 3years experience in an & Buildings in consultation Architect's officeror passed with Government Architect. in Draftsman course in a (2) The authority shall issue Technical Institution with advertisement in the local fiveyears experience in an newspapers and Orissa -

Architect's office.

Gazette inviting application in a

b) A candidate for the post of prescribed form along with Assistant Architectural other certificates including -

Draftsman under Category I certificates that they have shall have two years of study passed Oriya up to middle class Page 15 of 35 in any recognized school or standard and testimonials as college of Architecture with may be considered necessary lyear office experience in an by the authority. Architect's office or passed (3) On examination of the the Draftsman course in any applications, the authority shall Technical Institution with call for the written test as well two years of experience in as for a viva voce on the basis of any architect's office.

which a list of successful

c) A candidate for the post of candidates, arranged in order Assistant Draughtsman of merit, shall be prepared. The under Category II and list so prepared, shall be Draftsman Category III shall followed till completion of one be matriculated with a year.

certification of passedDraftsmanship from (4) The authority thereafter shall an Industrial Training issue appointments to the Institution. successful candidates against

d) Candidates for the posts of the vacant posts to be filled in Tracer under categories I , II by direct recruitment. and III shall be matriculates (5) At the time of joining, the with experience of 2 years candidates shall produce the in tracing blueprinting or a necessary certificates of certificate of drops physical fitness from the Draftsmanship from the medical practitioner.

Industrial Training Institution. 6) The name of the candidate, who does not accept the post offered within the time-limit specified in the order of appointment, shall be struck off from the list.

7) All appointments under direct recruitment shall be made on probation for a period of two years from the date a candidate joins his appointment and if during the period of probation, candidate's work and conduct is found unsatisfactory, the authority may either discharge him from service or

Page 16 of 35 may extend the period of probation as they may think fit.

4. A candidate must not have 8. Seniority and confirmation- more than one spouse living (a) The seniority of the and further in case of lady candidates directly recruited candidate she must not have shall be determined with married a person who has a reference to their position in the wife living. list of successful candidates and Provided that the state seniority of the promotee government may if satisfied officials shall also be that there are special determined with reference to reasons for doing so exempt their position in the list of final from the operation of this selection to be prepared by the clause. Departmental authorities but the promotee officials shall be considered senior to the candidates directly recruited when direct recruitment and promotion are made during the same year.

(b) A probationer shall be confirmed at the end of the period of probation if he is considered fit for confirmation by the appointing authority subject to availability of confirmed posts.

6. i) Promotion and 9. Other conditions of service-

percentage of promotion Other conditions of service such as leave, pension, pay,

a) 50 percent of the post of allowance, provident fund, etc., Architectural Draftsman shall be regulated by rules shall be filled in by applicable to the members of promotion from among the other subordinate non-Gazetted suitable Assistant services under State Architectural Draftsman Government from time to time. working in architect branch.

b) All posts of head draftsman shall be filled promotion

Page 17 of 35 from among the suitable Assistant Draftsman working in the Drawing Branch.

c) 50 percent of the posts of Assistant Architectural Draftsman shall be filled in by promotion from the Tracer in the Architect Branch

d) 50percent of the posts of Assistant Draughtsman shall be filled in by promotion from the Traces working in the Drawing Branches.

2. No official shall ordinarily be eligible for promotion to the service.

I) Unless he passes the department test to be prescribed for the post held by him at the time of promotion.

II) Unless he maintains a good record of service which will be judged on the basis ofC. C. Rolls.

3. The period of promotion shall be one year in case of office appointed by promotion which shall count from the date on which they join their new posts.

4. The appointing authority main extend the period of probation for such further period as it may does fit after the extended period of promotion the promotion is found unsuitable he may Page 18 of 35 be reverted.

7. Method Of Recruitment For Direct Candidate.

10. Direct recruitment to the service shell be made by a competitive test to be prescribed and conducted by the Chief Engineer, Roads & Buildings in consultation with Government Architect.

11. The authority shall issue advertisement in The local newspaper "The Orissa Gazette" inviting application in a prescribed form a long with other certificates including certificate that they have passed Oriya up to middle class standard and testimonials as may he consider necessary by the authority.

12…In execution of the application the authorities shall call for the written test as well as for a Viva voice on the basis of which in list of successful candidates arranged in order of merit shall be announced. The list so prepared shall be followed till completion of one year

13. The authority there after shall issue appointment to

Page 19 of 35 the successful candidates against the vacant post to be filled in by direct recruitment.

14. At the time of joining the candidates shall produce the necessary certificate of physical fitness from medical practitioners.

15. The name of the candidate who does not accept the post offered within the time limit specified in the order of appointment shall be struck of from the list.

16. All appointments under direct recruitment shall be made on probation for a period of 2 years from the date of candidate joints his appointment and if during the period of probation candidates work and conduct is found unsatisfactory the authority may either discharge him from service or may extend the period of probation as they may think fit

17.Seniority and confirmation:

c) The seniority of the candidate directly recruited shall be determined with reference to their position in the list of successful candidates and seniority of

Page 20 of 35 the promoting officials shall also be determined with references to their position in the list of final selection to be prepared by the departmental authorities but the promoter official shall be considered senior to the candidates directly recruited when direct recruitment and promotion are used during the same year.

d) A probation shall be confirmed at the end of the period of probation if he is considered fit for consideration by the appointing authority subject to available of confirmed posts.

18.Other conditions of service:

Other conditions is service such as leave pension, pay allowance, provident fund etc., shall be regulated by rules applicable to themembersof other subordinate gazetted service under State Government from time to time BUY ORDER OF THE GOVERNOR A.C. PADHI ENGINEER- IN -CHIEF -CUM-

SECT. TO GOVT. OF ORISSA.

///TRUE TYPED COPY/// [sic]

Page 21 of 35

19. The so-called letter dated 26.02.1980 produced as

Annexure P-2 contains 18 paragraphs while the statutory rules contain

9 rules in total. Paragraph No.2 has been typed twice. After

paragraph No.4, paragraph No.5 is missing. Paragraph nos.8 and 9

are also missing. Paragraph No.2 (repeat) in the alleged letter is

sought to be shown as ‘position of the service’ which is not mentioned

in the 1979 Rules as such. Rule 4, which deals with the recruitment,

has been skipped. Rule 5 has been typed without giving the same

paragraph numbers. Besides this, there are other major

discrepancies in the document produced by the petitioner along with

the petition. If we had relied upon the same, it would certainly

mislead the Court in reaching to a right conclusion.

20. The argument raised by the learned counsel for the

petitioner was that in terms of paragraph 3(d) of the letter dated

26.02.1980, she was eligible for promotion as she possesses the

requisite qualification. However, if the scheme of 1979 Rules is

considered, Rule 3 thereof provides for composition of service. The

post of Tracer finds mention in three categories namely category I, II

and III. The bifurcation is with reference to the office/department in

which they have to work.

Page 22 of 35 20.1 Rule 5 provides for direct recruitment and the percentage

of sources. Rule 5(1)(e) provides that all posts of Tracers under

categories I, II and III shall be filled in by direct recruitment. Rule 5(3)

provides for qualifications required for different posts. Rule 5(3)(d)

provides for the qualification for the post of Tracer under all three

categories.

20.2 Rule 6 provides for promotion and percentage of

promotion. As the post of Tracer in all the three categories is to be

filled up only by way of direct recruitment, the post in question does

not find mention in Rule 6.

21. The method of recruitment for the direct recruited

candidates is provided in Rule 7. Sub-rule 1 thereof provides that

direct recruitment to the service shall be made by a competitive test

to be prescribed and conducted by the Chief Engineer, Road and

Building in consultation with the Government Architect. Sub-rule 2

provides that the authority shall issue an advertisement inviting

applications in the local newspapers and the Orissa Gazette. The

eligible candidates are then required to be called for a written test

and viva voce on the basis of which the merit list is required to be

prepared. Thereafter, the offer for appointment is to be made to the

selected candidates.

Page 23 of 35 22. From a perusal of the aforesaid Rules, it is evident that the

post of Tracer in all three categories is to be filled up by direct

recruitment only, after following the procedure as prescribed. It is

not in dispute that the procedure as prescribed in Rule 7 of the 1979

Rules has not been followed by issuing advertisement and inviting

application for the post of Tracer. All what is said is that a Circular

was issued in the department inviting applications from the Peons for

appointment or promotion for the post of Tracer. This Court in Union

Public Service Commission v. Girish Jayanti Lal Vaghela and

others8, has emphasised the importance of a public advertisement for

inviting applications to a post under the State:

“12. … The appointment to any post under the State can only be made after a proper advertisement has been made inviting applications from eligible candidates and holding of selection by a body of experts or a specially constituted committee whose members are fair and impartial through a written examination or interview or some other rational criteria for judging the inter se merit of candidates who have applied in response to the advertisement made. A regular appointment to a post under the State or Union cannot be made without issuing advertisement in the prescribed manner which may in some cases include inviting applications from the employment

8 2006 INSC 58 : 2006 (2) SCC 482

Page 24 of 35 exchange where eligible candidates get their names registered. Any regular appointment made on a post under the State or Union without issuing advertisement inviting applications from eligible candidates and without holding a proper selection where all eligible candidates get a fair chance to compete would violate the guarantee enshrined under Article 16 of the Constitution. (See B.S. Minhas v. Indian Statistical Institute [(1983) 4 SCC 582 : 1984 SCC (L&S) 26 : AIR 1984 SC 363] .)”

23. Now coming to various documents placed on record by

the petitioner, at Annexure P-3 is a letter addressed to the Chief

Engineer, Public Health seeking appointment to the post of Tracer. It

was mentioned therein that she is already working as a Peon for about

09 years and has come to know that some post of Tracer is lying

vacant for which she is eligible. No date as such is mentioned. The

same request was repeated in a letter, at Annexure P-4, to the

Superintendent Engineer, Public Health Circle, Bhubaneshwar. It is

worth noting that a Letter No.189 dated 03.08.1981 of the Deputy

Minister of H & T. W Department was enclosed therewith. Copy of the

letter dated 24.01.1990 (Annexure P-5) from Executive Engineer, Puri

Public Health Division addressed to Superintending Engineer, P.H.

Circle has been annexed by which the application of the petitioner

was forwarded for consideration. At Annexure P-6 is a letter dated

Page 25 of 35 02.05.1990 from the Petitioner to the Minister of Public Health

Department, Bhubaneshwar requesting appointment against the post

of Tracer as some posts are lying vacant. A letter dated 05.11.1990

from Executive Engineer, Puri Public Health Division to

Superintending Engineer, P.H. Circle forwarding the application of

the petitioner is annexed as Annexure P-7. It is followed by a letter

written by petitioner dated 07.11.1990 to the Chief Minister, Orissa

(Annexure P-8). Immediately thereafter, a letter for the same relief

was written by the petitioner on 30.12.1990 to the Minister of Works

and U.D. Department, Orissa (Annexure P-9). Vide letter dated

09.03.1999 (Annexure P-13) Peons including the petitioner working in

the department were called for appearance in the test on 16.03.1999

for the post of Tracer. Nothing has been mentioned as to the result of

this test.

24. At Annexure P-14 and 15, there are two letters dated

28.06.1999 vide which Miss Jhina Rani Mansingh and Sri Lalatendu

Rath were appointed as Tracer on promotion basis. From the

aforesaid letters, it is evident that they were promoted as Tracer, but

on which post they were working is not mentioned. Their names are

not mentioned in the letter dated 09.03.1999 vide which documents of

Page 26 of 35 Peons working in the Department were forwarded for consideration

against the post of Tracer.

25. It was at this stage that the petitioner filed O.A. No.628(C)

of 1999. The Tribunal vide its order dated 26.03.1999 disposed of the

application at admission stage, directing the respondent to dispose of

her representation within three months from date of receipt of order.

Entitlement of the petitioner to the relief was required to be

considered before direction is issued to the authorities to decide the

representation. The Tribunal failed to apply its mind on this issue at

that stage. Pursuant to this, vide letter dated 05.07.1999, the

respondent communicated to the petitioner that the post of Tracer is

not to be filed up on promotion from the lower category of post, since

it is not a promotional post and vacancy of Tracer will be filed up in

due course by conducting an interview. As wrong action by the

authorities is root cause of lot of avoidable litigation and other Peons

may have been promoted from the post of Peon to Tracer, aggrieved

by the respondent’s decision, the petitioner again filed a

representation dated 30.01.2001 for redressal of her grievance and

sought promotion on higher post considering her qualification and

experience.

Page 27 of 35 26. The petitioner filed another application bearing O.A.

No.l126 (C) of 2002 before the Tribunal inter alia praying for the

intervention of the Tribunal against the discriminatory action of the

respondent authorities with regard to her promotion to the post of

Tracer. The aforesaid O.A. filed by the petitioner was transferred

from Cuttack to the Principal Bench of the Tribunal at Bhubaneshwar

which was disposed of vide order dated 27.09.2010. It was the

admitted case of the petitioner before the Tribunal that there are no

specific Rules for promotion from Class IV to the post of Tracer but

there are precedents available, hence, in the absence of any rule the

precedents should be followed. As is evident from paragraph 6 of the

aforesaid order, this fact was not disputed by the learned counsel for

the State. He had failed to place before the Tribunal the 1979 Rules,

which clearly deal with the recruitment to the post of Tracer.

Direction was given by the Tribunal to consider the case of the

petitioner along with other similarly situated Class IV employees for

promotion to the post of Tracer.

27. The representation was rejected by the Chief Engineer

vide order dated 23.11.2010 on account of ban on recruitments

imposed by the Finance Department. The order was challenged by

the petitioner before the Tribunal by filing O.A. No.1696 of 2010.

Page 28 of 35 Strange enough to note that, in the counter affidavit filed by the State

to the above O.A. filed by the petitioner before the Tribunal, not a

single line has been mentioned that the post of Tracer is to be filled

up only by way of direct recruitment and not promotion in terms of

1979 Rules. The Tribunal, noting the history that there were two

earlier appointments on the post of Tracer by way of promotion and

that even the petitioner was earlier considered; the petitioner’s case

having not been considered on account of ban imposed on

recruitment, disposed of the O.A., quashing the order dated

23.11.2010 and directing the respondents to consider the case of the

petitioner for promotion to the post of the Tracer against any vacant

post. In case no post is available, then reverting the last promoted

person after direction in the earlier O.A. No.742 of 2009 filed by the

petitioner. As the State failed to point out that the 1979 Rules govern

recruitment to the post of Tracer, the Tribunal also did not notice the

same and went on with the direction to consider the case of the

petitioner for promotion. The order passed by the Tribunal was

challenged by the State before the High Court.

28. From a perusal of grounds on which the order passed by

the Tribunal was challenged by the State shows total non-application

of mind, especially in a case which had already undergone three

Page 29 of 35 rounds of litigation. Proper facts were not pointed out at any stage.

The same legacy followed. In the Writ Petition, reference was made

to Works Department No.4775 dated 26.02.1980 and it was mentioned

that the petitioner was found to be ineligible in terms thereof.

Towards the end in the aforesaid paragraph reference has been made

to Rule 3(d) of the Orissa Service of Architect Rules, 1979. A copy of

which was annexed with the Writ Petition. The same also has been

annexed with the present petition as Annexure P-1. Firstly, there is no

Rule 3(d) in the aforesaid rules and secondly, this does not deal with

the post of Tracer. It shows that even at the stage of filing SLP before

this Court, proper care was not taken to examine the relevant Rules

and place the same on record.

28.1 The importance of responsible drafting and diligent

pleading was emphasized by this Court in Saumya Chaurasia v.

Directorate of Enforcement9, where it was observed that:

“13. It cannot be gainsaid that every party approaching the court seeking justice is expected to make full and correct disclosure of material facts and that every advocate being an officer of the court, though appearing for a particular party, is expected to assist the court fairly in carrying out its function to administer the justice. It hardly needs to be

9 2023 INSC 1073 : (2024) 6 SCC 401

Page 30 of 35 emphasised that a very high standard of professionalism and legal acumen is expected from the advocates particularly designated senior advocates appearing in the highest court of the country so that their professionalism may be followed and emulated by the advocates practising in the High Courts and the District Courts. Though it is true that the advocates would settle the pleadings and argue in the courts on instructions given by their clients, however their duty to diligently verify the facts from the record of the case, using their legal acumen for which they are engaged, cannot be obliviated.”

29. There cannot be more casualness than this where the

authority of the State is fighting litigation and does not apprise the

Tribunal or the Court about the relevant applicable rules. The effort

may be to put under covers the illegalities committed by them earlier

by granting promotion from the post of Peon to that of Tracer in

violation of the 1979 Rules. Even the High Court in the impugned

order has not referred to the 1979 Rules but has quoted paragraph

3(d) of the Letter No.4775 dated 26.02.1980. The scheme of the Rules

has already been explained in paragraph above. What is said to be

paragraph 3(d) of the letter is in fact Rule 5(3)(d) of the 1979 Rules.

30. Though, the claim of the petitioner has been rejected on

the ground that she is not eligible for the post of Tracer, however, we

Page 31 of 35 need not enter into that arena for the reason that as per 1979 Rules,

the post of Tracer is to be filled up to 100% by way of direct

recruitment in terms of Rule 5(1)(e) of the 1979 Rules and the method

of direct recruitment has been provided in Rule 7 thereof.

Undisputedly, the process as provided in the Rules was not followed.

The post of Tracer, not being promotional post from the post of Peon,

there is no merit in the claim of the petitioner.

31. Another argument was raised while referring to two

communications dated 28.06.1999 appointing Ms. Jhina Rani

Mansingh and Sri Lalatendu Rath as Tracer on promotion, claiming to

be from the post of Peon, on the basis of which the petitioner is

claiming violation of Article 14, namely the discrimination. Suffice to

add, this Court cannot put a stamp on the illegalities committed by the

department while perpetuating the same. A litigant coming to the

Court cannot claim negative discrimination seeking direction from

the Court to the department to act in violation of the law or statutory

Rules. It is a settled proposition of law that Article 14 does not

envisage negative equality. Reference for the purpose can be made

to a judgment of this Court in R. Muthukumar & others v. The

Page 32 of 35 Chairman and Managing Director TANGEDCO & others10.

Relevant para thereof is extracted below :

“28. A principle, axiomatic in this country's constitutional lore is that there is no negative equality. In other words, if there has been a benefit or advantage conferred on one or a set of people, without legal basis or justification, that benefit cannot multiply, or be relied upon as a principle of parity or equality. In Basawaraj v. Special Land Acquisition Officer11, this court ruled that:

“8. It is a settled legal proposition that Article 14 of the Constitution is not meant to perpetuate illegality or fraud, even by extending the wrong decisions made in other cases. The said provision does not envisage negative equality but has only a positive aspect. Thus, if some other similarly situated persons have been granted some relief/benefit inadvertently or by mistake, such an order does not confer any legal right on others to get the same relief as well. If a wrong is committed in an earlier case, it cannot be perpetuated.”

32. For the reasons mentioned above, we do not find merit in

the present petition and the same is accordingly dismissed.

10 2022 INSC 157 : 2022 SCC OnLine SC 151 11 2013 INSC 551 : (2013) 14 SCC 81

Page 33 of 35

33. Before parting with the order, we are constrained to

observe that the case in hand is a glaring example of casualness on

the part of the State Authorities while dealing with the litigation. The

issue could be resolved at the very first stage when a representation

was made by the petitioner seeking promotion to the post of Tracer

way back in the year 1991. The chapter could have been closed

merely while responding to the same while referring to the relevant

statutory 1979 Rules. To some extent it was done but false hopes are

created in the minds of employees if some other similarly situated are

granted the benefit, which itself is contrary to the Rules. The letters

continued flowing from the petitioner to the respondent, and from one

department to another as a shuttlecock, as if there is no other

constructive work to do. Even before the Tribunal, the petitioner had

three rounds of litigation followed by one Writ Petition before the

High Court by the State and thereafter this Court. At none of these

stages, the relevant statutory 1979 Rules were referred to either in the

counter or in the petition. Such conduct is not expected from the State

which is the major litigant and the case in hand is an example of

unnecessary generation of litigation by the State where the authorities

need to circumspect and be more careful.

Page 34 of 35 34. This lackadaisical approach of the State was also noticed

by this Court in Kusha Duruka v The State of Odisha12 where during

pendency of the matter before this Court, a fresh bail application was

filed and High Court even granted bail to the petitioner. The affidavit

filed by the Principal Secretary, Law Department, Govt. of Odisha

revealed that the State Counsel was not aware about the rejection of

his first bail application as well as the filing of SLP. Noticing efforts

being made to pollute the stream of administration of justice, this

Court issued several instructions with a view to streamline the

proceedings and avoid anomalies with reference to the bail

applications.

35. A copy of this order be sent to the Chief Secretary, State of

Odisha for perusal and taking appropriate corrective steps.

36. Pending application (if any) shall stand disposed of.

……………….……………..J. (J.K. MAHESHWARI)

……………….……………..J. (RAJESH BINDAL) New Delhi January 20, 2025.

12 2024 INSC 46 : (2024) 4 SCC 432

Page 35 of 35