Research › Search › Judgment

Orissa High Court · body

2008 DIGILAW 403 (ORI)

JAYADEV DASH v. STATE OF ORISSA

2008-05-09

B.K.PATEL, L.MOHAPATRA

body2008
JUDGMENT : L. Mohapatra, J. - The Petitioner was an Applicant in one of the three Original Applications disposed of by the Tribunal by way of a common Judgment under Annexure-4. The Petitioner in this writ application assails the legality of the said Judgment passed by the Tribunal. 2. Case of the Petitioner is that he was appointed as an Assistant Drilling Engineer being selected by the Orissa Public Service Commission (OPSC) pursuant to an advertisement published by the OPSC in the year 1983. He was holding a Class-II post at the time of initial appointment and till filing of the writ application he was continuing in the said post. Further case of the Petitioner is that the Directorate of Mines was constituted in the year 1956 and there were limited number of gazetted officers working under the Director of Mines. In view of the above, the cadre strength of such officers had not been determined and there was also no cadre rules relating to the officers recruited by Government to function under the Director of Mines. In course of years the activities of the Mining Department expanded and there was an attempt to prepare a draft rules. There were officers working as Mining Officers and some others working as Geologists and some others were engaged in survey work. As far as mining administration is concerned, drilling is an important part of work and at lower levels the employees are called Drilling Operators, Drillers and Drilling Foreman, etc. For the first time with a view to streamline the activities of the Directorate of Mines, the Government in the year 1976 made a set of rules known as "The Orissa Mining and Geology Service Rules, 1976'. Under the Rules the service consists of three wings, namely Mineral Administration Wing, The Mineral Administration Wing, Geological Survey and exploration wing and chemical analysis wing. The Mineral Administration Wing consists of two branches, namely Class-I and Class-II. Class-I branch comprises of two grades, namely Senior and Junior. Class-II post under the Mineral Administration Wing includes posts of Mining Officers and such other posts as may be declared by the Government from time to time to be of equivalent status. The post of drilling Engineer was included in the Junior grade of the Mineral Administration Wing. Class-I branch comprises of two grades, namely Senior and Junior. Class-II post under the Mineral Administration Wing includes posts of Mining Officers and such other posts as may be declared by the Government from time to time to be of equivalent status. The post of drilling Engineer was included in the Junior grade of the Mineral Administration Wing. Question as to whether the post of Drilling Engineer should have been included in the Mineral Administration Wing or not came up for consideration before the Tribunal in T.A. No. 453 of 1986 and O.A. No. 9 of 1986. In a common Judgment the Tribunal held that the State Government did not violate any constitutional provisions by including the post of Drilling Engineer in the junior grade of Class-I of the Mineral Administration Wing. Said Judgment of the Tribunal was confirmed by the Apex Court. According to the Petitioner, drilling is an important part of activities of the Mineral Administration Wing and a Drilling Engineer in discharge of his duties is assisted by a number of Assistant Drilling Engineers in Class-II service. Therefore, in the event of a vacancy in the cadre of Drilling Engineer, Assistant Drilling Engineers having expertise in drilling operation should legitimately be promoted to the rank of Drilling Engineer. It is also the case of the Petitioner that officers like him who were appointed as Assistant Drilling Engineers directly through OPSC holding Class-II post legitimately expected promotion, but the Department treated the post of Assistant Drilling Engineers as ex-cadre posts, as a result of which all the officers including the Petitioner who were working as Assistant Drilling Engineers have no avenue for promotion. Rule 3 of the aforesaid Rules prescribes that when suitable officers in the Class-II with required specialized knowledge or training are not available for promotion to Class-I posts in junior grade requiring specialized knowledge and training, the vacancies may be filled up by direct recruitment. Post of Drilling Engineer which was re-designated as Deputy Director of Mines (Drilling) requires specialized knowledge and training. The Petitioner along with similar persons were available to hold such posts, but their cases .have not been considered for promotion to the higher post on the ground that they occupy ex-cadre posts. Post of Drilling Engineer which was re-designated as Deputy Director of Mines (Drilling) requires specialized knowledge and training. The Petitioner along with similar persons were available to hold such posts, but their cases .have not been considered for promotion to the higher post on the ground that they occupy ex-cadre posts. In the Original Application filed before the Tribunal, the Petitioner challenged the promotion of opposite parties 3 and 4 to the post of Deputy Director of Mines which was earlier known as Drilling Engineer ignoring case of the Petitioner who had requisite qualification and experienced as an Assistant Drilling Engineer for promotion to such post. 3. The Tribunal in the impugned Judgment observed that the posts of Assistant Drilling Engineer, which are important posts of the Department, cannot be kept outside the service and the cadre for all times to come. It further observed that there is also an enabling provision in the rules in which the State Government may declare any posts as equivalent to the posts in Class-II branch of the Mineral Administration Wing of the Service. Except inclusion of the posts of Assistant Mineral Economists by amendment of 1982, no other posts have been so declared as equivalent to the posts in the Class-II branch of the said Wing. With this observation the Tribunal directed the State Government to declare the posts of Assistant Drilling Engineer as equivalent posts comprised in Class-II branch of the Mineral Administration Wing of the Service and consider the case of the Applicant for promotion to the next higher rank expeditiously. 4. Shri Mishra, learned senior counsel appearing on behalf of the Petitioner submitted that at the time of entry into service there was no cadre rules and cadre had not been framed. While forming cadre the post of Drilling Engineer was included but the post of Assistant Drilling Engineer in Class-II of the State service was not included and accordingly those officers who were holding post of Assistant Drilling Engineer in Class-II service of the State were holding ex-cadre posts. In view of the above, there was no promotional avenue for those who were working as Assistant Drilling Engineers, such as the Petitioner. In view of the above, there was no promotional avenue for those who were working as Assistant Drilling Engineers, such as the Petitioner. Learned Counsel for the Petitioner referred to some documents to bring to the notice of the Court that the work done by the Assistant Drilling Engineers for the purpose of supporting his argument that it is the Assistant Drilling Engineers who are most suitable for promotion to the post of Drilling Engineers. Reference was made to Annexure-10, the letter written by the Director of Mining and Geology to the F.A.-cum-Deputy Secretary to Government of Orissa, Department of Steel and Mines relating to the rules regulating control, use and disposal of drilling machines & equipments. In the said letter it is mentioned that the Assistant Drilling Engineers of the Directorate undertake supervision of operation and maintenance of all tools and plants including motor Vehicles and have been assisting the Drilling Engineers through out in discharge of their duties and functions. They were authorized vide notification dated 6.6.1991 as competent authority only next to the Drilling Engineer as far as these machineries, plant and equipments are concerned. Another office order in Annexure-11/e was referred to wherein it is stated that all the Drilling Engineers are to supervise drilling operations and work of Assistant Drilling Engineers. Another letter was also referred to by the learned Counsel to Annexure-12/b in which one of the Assistant Drilling Engineers namely Sri K.C. Patel was directed to supervise the maintenance and repairs of all drilling rigs, tractors and machineries both at Headquarters and at sites and another Assistant Drilling Engineer namely Sri C.D. Sahu was also similarly directed to supervise the repairs and maintenance of all motor vehicles at headquarters and at sites. In the said letter it is also stated that all the Assistant Drilling Engineers should report to the Drilling Engineers in all matters relating to the subjects entrusted to them and they will also issue certificates regarding quality and specification of Stores relating to their subjects. On the basis of such documents it was contended by Sri Mishra, learned senior counsel appearing for the Petitioner that it is the Assistant Drilling Engineers in Class-II service of the State who are best suited for promotion to the post of Drilling Engineers but they have been kept outside the cadre and the promotion avenue is not available to them. Learned Counsel for the State submitted that at the time of entry into service, the post of Assistant Drilling Engineer in Class-II Service was treated as an ex-cadre post and the Petitioner accepted the job with all terms and conditions mentioned in the letter of appointment and therefore cannot now claim to include the post of Assistant Drilling Engineers in Class-II service to be included in the cadre so as to open a promotional avenue for them. 5. After careful examination of the documents annexed to the writ application as well as the finding of the Tribunal, it is clear that when the Petitioner entered into service there was no cadre rules and consequently no cadre had been formed. Subsequently when the cadres were formed post of Assistant Drilling Engineers were not included in the cadre and they were kept outside the cadre. There is no doubt that the work done by the Assistant Drilling Engineers are supervised by the Drilling Engineers and the experience gained by the Assistant Drilling Engineers would help them in discharge of duties as Drilling Engineers but they having been kept outside the cadre, there is hardly any scope for their promotion to the post of Drilling Engineers. The Tribunal has taken all these factors into consideration and in the concluding paragraph observed that the posts held by the Petitioner and similarly placed officers cannot be kept outside the cadre for all times to come and steps should be taken to include them in the cadre. Order of the Tribunal is in favour of the Petitioner, but the claim of the Petitioner before this Court is that the Tribunal should have directed to include the post of Assistant Drilling Engineers in Class-II service in the cadre instead of directing the State authorities to take a decision in that regard. Whether a particular post or posts shall be included in the cadre or not is to be decided by the competent authority and not by the Court. Whether a particular post or posts shall be included in the cadre or not is to be decided by the competent authority and not by the Court. Though the Tribunal as well as this Court are of the view that in view of the nature of work discharged by the Assistant Drilling Engineers and the experience gained by them in course of years work in the said posts, they are best suited for promotion to the post of Drilling Engineers, decision as to whether the post of Assistant Drilling Engineers in Class-II service of the State shall be included in the cadre of not or that they should be declared to hold equivalent posts or not is within the domain of the competent authority. The Tribunal having directed the competent authority to consider inclusion of post of Assistant Drilling Engineers in Class-II service into the cadre, we hardly find any scope to differ with the Tribunal and interfere with the same. 6. We, therefore, do not find any justification to interfere with the order of the Tribunal, which according to us, is legal and justified. We hope and trust that the State authorities shall take a decision early in this regard keeping in mind the observations made by the Tribunal as well as this Court. The Writ application is accordingly disposed of. B.K. Patel, J. 7. I agree.