Research › Search › Judgment

Orissa High Court · body

2016 DIGILAW 34 (ORI)

Kausalya Pradhan v. State of Orissa

2016-01-14

S.N.PRASAD

body2016
JUDGMENT : S.N. Prasad, J. 1. The petitioner has approached this court for issuance of direction upon opposite parties to give promotion to the petitioner as a regular lady supervisor instead of contractual lady supervisor as per the notification dated 8.10.2007 along with other consequential benefits from the date of her initial appointment i.e. 7.1.2010. 2. The brief facts of the case of the petitioner is that the Women and Child Development Department has floated a scheme popularly known as Anganwadi Scheme under which scheme in each village Anganwadi Centers were opened and workers were appointed to monitor the scheme, the petitioner as a result of which was appointed as Anganwadi Worker in Ranja Anganwadi Center vide notification No. 55 dated 27.4.1993 and started discharging her duty. 3. The Government has come out with a rule to grant promotion from amongst the Anganwadi Workers as lady Anganwadi Supervisor known as junior grade Service Anganwadi Supervisor with the scale of pay of Rs.4,750/- and Rs.6,500/- and according to which if an Angnawadi Worker possesses required qualifications of having HSC pass with 10 years of service as Anganwadi Worker would be considered for promotion as lady supervisor. 4. The petitioner is fulfilling all the eligibility conditions for being promoted as lady supervisor but the authorities have granted promotion as lady supervisor but on contract basis. According to the petitioner there is no provision to grant promotion on contract basis rather the promotion has to be granted on substantive basis on the basis of statutory rule as contained in notification dated 8.10.2007. 5. The petitioner is continuing with the post of lady supervisor on contract basis hence the petitioner claims to be regularized in that post and when it has not been considered the petitioner has approached this court by way of this writ petition. 6. Counter affidavit has been filed by opposite parties through District Social Welfare Officer, Deogarh inter-alia stating therein that the petitioner who is praying for direction for promotion as a regular lady supervisor instead of contractual lady supervisor as per the notification dated 8.10.2007. it has been stated that the post of lady supervisor has been in the cadre as a Jr. it has been stated that the post of lady supervisor has been in the cadre as a Jr. Grade Service of the Orissa Children and Women Welfare Service which is governed by the recruitment and condition of service of supervisors in the name of the rule i.e. Orissa Children and Women Welfare Service Rules, 1989 which has been framed by the Government in exercise of power conferred under Article 309 of the Constitution of India. Hence the post of lady supervisor is a Civil post and as such since the petitioner is claiming his promotion on regular basis as lady supervisor which is a Civil post hence the proper remedy to adjudicate the dispute lies with the petitioner before the Orissa State Administrative Tribunal hence this writ petition is not maintainable at the first instance before this court under Art. 226 of the Constitution of India. 7. It has further been contended that as per letter No. 9263 dated 4.4.2008 of Women and Child Development Department, Government of Odisha, Bhubaneswar two numbers of post of lady supervisor has been created on contractual basis as per which the selection committee convened its meeting held on 23.12.2009 and selected the petitioner to be engaged as lady supervisor on contractual basis and accordingly the petitioner was engaged as lady supervisor purely on contract basis. 8. It has further been contended in the counter affidavit that no illegality has been committed in appointing the petitioner as lady supervisor on contract basis further since the petitioner has appeared before the selection committee for being appointed as supervisor on contract basis, now she cannot claim regular appointment to that post on the pretext of the rule as contained in notification dated 8.10.2007 (Annexure-2) as because the petitioner has not been granted engagement as lady supervisor on contract basis in pursuance of notification dated 8.10.2007. 9. So far as the contention of the petitioner that she is fulfilling all the eligibility criteria as provided in the notification dated 8.10.2007 and as such she ought to have been granted regular promotion in view of the said notification, it has strongly been objected to by learned counsel for opposite party-State by submitting that the promotion is not a fundamental right rather consideration of promotion is fundament right and that can also not been considered only because one or the other employee is eligible as per the statutory rule. Filling up of the post by way of promotion is purely the power of the State Government and it can only be filled up if there is availability of post and even if the post is available then it depends upon the requirement of the Government to fill the post or not to fill the post. Hence merely on the ground that the candidate possesses requisite qualification he / she cannot be allowed to get promotion as a matter of right. 10. The cause of action will be said to be arisen to an employee if any other candidate below in the seniority list will be granted promotion then only the employee who has not been granted promotion even though he/she is above the in the seniority list then only the grievance can be raised by making it discriminatory being violative of Art. 14 of the Constitution of India. But that is not the case. 11. It has further been contended by learned counsel for opposite party-State that since the Women and Child Development Department has granted two numbers of posts of lady supervisor created on contractual basis hence the said post cannot be filled up according to the eligibility condition as provided under the notification dated 8.10.2007 as because even in case of contractual engagement or officiating engagement a candidate cannot be engaged or promoted if he/she is not possessing the requisite qualification as provided under the statutory provision. 12. It has been contended that since the post against which the petitioner has been engaged is purely on contract basis and the post itself is contractual as such it cannot be termed as a promotion rather it is engagement as lady supervisor as would be evident from engagement order which the petitioner is pleading in the writ petition. 13. Heard learned counsels for the parties and perused the documents on record. The dispute which has been raised by the writ petitioner in the writ petition is that she is eligible as per the notification dated 8.10.2007 to be promoted on substantive basis as lady supervisor but instead of granting regular promotion she has been given engagement as lady supervisor on contractual basis. 14. The dispute which has been raised by the writ petitioner in the writ petition is that she is eligible as per the notification dated 8.10.2007 to be promoted on substantive basis as lady supervisor but instead of granting regular promotion she has been given engagement as lady supervisor on contractual basis. 14. So far as maintainability of writ petition since the petitioner has been engaged as Lady Supervisor on contractual basis hence she is not holding a substantive post under the State Government and the tribunal has been created to look into the service matter of the Government servant. Hence the petitioner has not yet been given the status of Government servant being engaged on contractual basis for a fixed period and on the basis of fixed remuneration, hence the writ petition is held to be maintainable before this court under Article 226 of the Constitution of India. 15. In order to appreciate this argument it needs to refer the notification dated 8.10.2007 which has been notified by the State Government through its Women and Child Development Department in exercise of power conferred under Art.309 of the Constitution of India named as Orissa Children and Women Welfare Service Rules, 1989 and the same has been amended in the year 2007 by virtue of notification dated 8.10.2007 to be known as Orissa Children and Women Welfare Service (Amendment) Rules, 2007. 16. According to the said statute the provision has been made to fill up the post in the Gr. Grade of the Service in the manner provided therein that certain eligibility condition which is provided under rule 4 of amended Rule, 2007 to the effect that an Angnawadi Worker must have at least High School Certificate or Equivalent Examination from Board of Secondary Education and rendered ten years of continuous service on the first day of January of the recruitment year. 17. Thus from the said statutory provision it is evident that some post of Jr. Grade have been reserved to be filled from the Anganwadi Workers possessing requisite qualification as indicated herein above. 18. 17. Thus from the said statutory provision it is evident that some post of Jr. Grade have been reserved to be filled from the Anganwadi Workers possessing requisite qualification as indicated herein above. 18. It is also evident from the record that the Government in order of smooth functioning has come out with an executive instruction dated 29.7.2009 by which post of supervisor has been created on contract basis and the provision has been made in the executive instruction having been issued by the Commissioner-cum-Secretary to the Government of Orissa and Child Development Department to fill up the post of supervisor on contract basis strictly on seniority basis with the condition that from amongst the Anganwadi Workers who have rendered their service at least for 5 years after graduation. The specific case of the opposite party is that the petitioner has never been granted promotion to the post under the notification dated 8.10.2007 rather she has been given engagement as supervisor on contract basis in pursuance to executive instruction dated 29.7.2009 since she is possessing the eligibility condition as prescribed therein. Now the petitioner claims to be regularized in the post of supervisor on the ground that she is possessing all eligibility condition as prescribed in the notification dated 8.10.2007. 19. It is undisputed that promotion cannot be claimed as a matter of right by an employee. It has been held by catena of decisions of Hon’ble Supreme Court of India that promotion cannot be claimed by way of fundamental right although it’s consideration has been said to be a fundamental right but that to if there is any violation of Art.14 or any discrimination having been caused to such employee, meaning thereby right to consideration for promotion will accrue when any person below in the seniority list would be granted promotion ignoring the senior employee then such senior employee have a cause of action for consideration for promotion. 20. It is not the case of the petitioner that anybody who is junior to the petitioner has been granted regular promotion as a lady supervisor as per the notification dated 8.10.2007 but what she claims is that since she has been engaged on contract basis as supervisor she be regularized but that cannot be accepted because of the reason that admittedly the petitioner has been engaged on contract basis as supervisor in pursuance to an executive instruction dated 29.7.2009. The petitioner has enclosed the engagement order dated 7.1.2010 (Annexure-4). From its perusal it is evident that the petitioner has been engaged as a contractual lady supervisor at ICDS Project which itself suggests that the petitioner has never been granted any regular promotion or has never been considered in the light of the notification dated 8.10.2007 as because there is no provision in the said notification to engage on contract basis the lady supervisor. Certainly the petitioner has been engaged on contract basis as lady supervisor in pursuance to the executive instruction dated 29.7.2009. Since by virtue of office order dated 4.4.2008 post of supervisor was created on contract basis in the district of Deogarh which would be evident from Annexure-A/3 annexed to the counter affidavit. 21. It is further settled that when the post itself is created on contractual basis the person cannot be engaged on the said contractual post on regular basis. Hence the claim which the petitioner is raising for regular promotion as lady supervisor cannot be accepted as because promotion is always to be granted against a substantive post. When the post itself is not substantive, there is no question of granting promotion on regular basis and that is the normal meaning of promotion. 22. From perusal of the office order dated 4.4.2008 it is very much clear that the post itself is contractual and as such the authorities after considering the seniority of the petitioner and her eligibility has engaged her as lady supervisor against the post created on contractual basis. 23. Since the post itself is not substantive and merely on account of the fact that the petitioner is continuing since long as lady supervisor, she cannot be regularized as lady supervisor for the reasons stated herein above. 24. In view of the facts and circumstances of the case, I find no reason to pass any positive order in favour of the petitioner. Accordingly, the writ petition is dismissed being devoid of merit.