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2003 DIGILAW 390 (ORI)

Syed Ata Mehiuddin v. State of Orissa

2003-06-18

PRADIP MOHANTY, R.K.PATRA

body2003
JUDGMENT R. K. PATRA, J. — Order of the Orissa Administrative Tribunal, Bhubaneswar (hereinafter referred to as ‘the Tribunal’) dated 31.7.2001 passed in O.A. No. 972 of 1994 is under challenge in this writ petition filed by the petitioner, who was opposite party No.3 in the Tribunal. The present opp.party No.3 was the applicant before the Tribunal who questioned the validity of the Government order contained in Department of School and Mass Education letter No. 10988/SME dated 26.3.1994 creating the post of Inspecting Officer, Urdu Education in the Directorate of Sec¬ondary Education for a period of one year in the scale of pay of Rs. 1700-3200/- keeping in abeyance for the said period the post of Special Inspecting Officer, Urdu Education in the Directorate of Secondary Education in the scale of pay of Rs. 2000-3500/-. By the impugned order, the Tribunal has set aside the aforesaid Government order and directed the State Government to take a conscious decision as to what should be the qualification for the post of Special Inspecting Officer, Urdu Education in the Direc¬torate of Secondary Education having regard to the job require¬ment. 2. The case of the opposite party No.3 before the Tribunal is that he is an Urdu Teacher now serving in Jajpur High School which is a Government school. He has got the qualification of M.A. in Urdu from Utkal University and also Fazil from Madrasa Examination Board, Orissa. The aforesaid post of Special Inspecting Officer is not governed by any statutory rule nor there is any administrative instruction covering recruitment/promotion to the said post. In the past, promotion was given to eligible and qualified person serving in Urdu teach¬ing branch having Fazil as qualification. One Basir Ahamed Khan was the last person to occupy the said post, who retired in 1993. Instead of considering his case for promotion, the said post was kept in abeyance and the post of Inspecting Officer, Urdu Educa¬tion was created with a view to accommodate the petitioner first as Inspecting Officer for one year and thereafter as Special In¬specting Officer. 3. The petitioner, as indicated above, was opposite party No.3 before the Tribunal. His as well as the stand of the Govern¬ment before the Tribunal was that creation and keeping a post in abeyance are within the domain of the State Government. 3. The petitioner, as indicated above, was opposite party No.3 before the Tribunal. His as well as the stand of the Govern¬ment before the Tribunal was that creation and keeping a post in abeyance are within the domain of the State Government. Their specific case was that the post of Special Inspecting Officer was never filled up by way of promotion from amongst Classical Teach¬ers (Urdu Teachers). The prescribed qualification for it is the Trained Graduate with Fazil. Basir Ahamed Khan, who was the Special Inspecting Officer was not a Urdu teacher. In fact, he was in Junior S.E.S. general cadre having B. Ed. and Fazil quali¬fication. Prior to 1987 the post of Special Inspecting Officer was in Class-III ex-cadre. Subsequently, it was upgraded and said Basir Ahamed Khan who was working as the Special Inspecting Officer in Class-III was selected and promoted the said upgraded post and continued as such till his retirement on 31.5.1993. As there was no feeding cadre for filling up the said post, Government after careful consideration created as post of Inspecting Officer, Urdu Education in Class-III ex-cadre in the scale of pay of Rs. 1700-3200/- equivalent to Senior S.E.S. teacher in general cadre keeping the post of Special Inspecting Officer in abeyance for a period of one year. The post of In¬specting Officer was filled up from amongst the Inspecting Maul¬vis basing on the guidelines prescribed in the Government letter No. 10988/SME dated 26.3.1994. As per the guidelines indicated therein, the Inspecting Officer after getting experience for about one year if found suitable would be promoted to the post of Special Inspecting Officer i.e. to an ex-cadre post of Class-II O.E.S. The allegation that the said Government order was issued keeping the petitioner in view was denied. 4. The case before the Tribunal was kept pending for a pretty long period and after about seven years the Tribunal disposed of the same by quashing the Government order contained in letter No. 10988/SME dated 26.3.1994. Following are the find¬ings recorded by the Tribunal :- (i) The validity of sanction for the post of Inspecting Officer which was for only one year is now ever and that post has also been operated for the period it was sanctioned after availing the liberty granted by the Tribunal. Following are the find¬ings recorded by the Tribunal :- (i) The validity of sanction for the post of Inspecting Officer which was for only one year is now ever and that post has also been operated for the period it was sanctioned after availing the liberty granted by the Tribunal. (ii) Only the post of Special Inspecting Officer now exist and the same has to be filled up by the State Government after taking as conscious decision as to what should be the qualification for the said post having regard to the job requirement. (iii) Opposite party No.3 (who was applicant before the Tribunal) had a reasonable expectation of promotion to Junior S.E.S. when the Government order contained in the letter No. 10988/SME dated 26.3.1994 was issued. (iv) Junior S.E.S. now consists of only Trained Graduate Teacher of High Schools and their qualification being either B.A., B.Ed. or B. Sc., B. Ed. which he (opposite party No.3) lacks, his promotional prospects have been reduced or done away with when he has become ineligible for the post of Special Inspecting Officer to which teachers like him used to be promoted before the im¬pugned Government order. The said Government order is a one time dispensation for filling up the post of Special Inspecting Offi¬cer and indirectly suggests that it was intended for the benefit of individual and as such it cannot be sustained and the same was accordingly quashed. 5. It can scarcely be disputed that creation of a civil post is inherent in sovereign Government. The power to create a post includes the power to abolish or keep it in abeyance. The two powers have been described as essentially the same. These are principles which are well settled. The power to create, continue and abolish a civil post is a policy decision exercised by the executive and is dependant upon exigencies of circumstances and administrative necessity. The power to be prescribe the condition of service can be exercised either by making rules under the proviso to Article 309 of the Constitution or by issuing adminis¬trative instructions in exercise of the executive power. In the instant case, the Government took a conscious decision contained in letter No. 10988/SME dated 26.3.1994 to keep the post of Special Inspecting Officer in the scale of Rs. In the instant case, the Government took a conscious decision contained in letter No. 10988/SME dated 26.3.1994 to keep the post of Special Inspecting Officer in the scale of Rs. 2000-3500/- in abeyance for one year and in its place created the post of In¬specting Officer in a lower scale of pay of Rs. 1700-3200/for the said period of one year. The Tribunal in the impugned order has rightly observed that creation of post of Inspecting Officer for one year is already over and the said post had been filled-up after obtaining leave from it. The Tribunal, however, fell into error in observing that the prescription of the eligibility criteria to fill up the post of Inspecting Officer resulted in denial of promotional prospects to the opposite party No. 3 and, therefore, the order is vitiated. 6. The Tribunal clearly lost sight of the legal position that chance of promotion is not a right nor a condition of serv¬ice. It has been the specific case of the State Government before the Tribunal that post of Special Inspecting Officer was never filled up by promotion from among the Urdu teachers. The pre¬scribed qualification for the post of Special Inspecting Officer is Trained Graduate with Fazil. It has been so decided long back in Government letter No. 4837 dated 20.10.1983. The said letter was Annexure-E to the counter filed by the State Government before the Tribunal. It reads as follows : “(a) The prescribed qualification for the post of Special Inspecting Officer is trained graduate with Fazil in Urdu.” This being the position, the Tribunal clearly erred in holding that the impugned Government order contained in letter dated 26.3.1994 was aimed at accommodating the petitioner. It was clearly pleaded on behalf of the Government before the Tribunal that prior to 1987 the post of Special Inspecting Officer was in Class-III ex-cadre and subsequently it was upgraded and Basir Ahmad Khan working as Special Inspecting Officer in Class-III post was promoted to the said upgraded post and continued as such till his retirement on 31.5.1993. As there was no feeding cadre and no prescribed guideline for filling up the said post, Govern¬ment after careful consideration have created a post of Inspect¬ing Officer, Urdu Education in Class-III ex-cadre in the scale of pay of Rs. 1700-3200/- equivalent to Sr. As there was no feeding cadre and no prescribed guideline for filling up the said post, Govern¬ment after careful consideration have created a post of Inspect¬ing Officer, Urdu Education in Class-III ex-cadre in the scale of pay of Rs. 1700-3200/- equivalent to Sr. S.E.S. Keeping the post of Special Inspecting Officer in abeyance for a period of one year. As per the guidelines, the Inspecting Officer after getting experience for about one year, if found suitable would be promot¬ed to the post of Special Inspecting Officer i.e. to an ex-cadre post of Class-II O.E.S. Nature of work of the Inspecting Maulavi and the Special Inspecting Officer is identical to some extent. Trained graduate with Fazil qualification for the post of Special Inspecting Officer was prescribed as such keeping in view the nature of work which is of the same nature. Qualification for the post of Special Inspecting Officer had been pre-existing since long and the Tribunal erroneously assumed that it was for the first time fixed in the Government order dated 26.3.1994. 7. The Tribunal ought to have rejected the application on the ground that opposite party No. 3 had no locus standi to chal¬lenge the impugned Government decision inasmuch as he had not acquired the requisite qualification i.e. trained graduate with Fazil for both the post of Special Inspecting Officer and In¬specting Officer, Urdu Education. 8. Perusal of the Impugned order would show as if the Tribunal was running the administration. It had no jurisdiction to ask the Government to take a decision as to what should be the qualification for the post of Special Inspecting Officer having regard to the job requirement. Necessary qualification having been already prescribed, the above direction of the Tribunal is wholly redundant. 9. For the reasons stated above, the impugned order of the Tribunal dated 31.7.2001 (Annexure-8) cannot be sustained and is hereby quashed. The writ petition is allowed. PRADIP MOHANTY, J. I agree. Petition allowed.