Summary
The Supreme Court dismissed a peon's claim to promotion as Tracer because the Orissa Subordinate Architectural Service Rules, 1979 require all Tracer posts to be filled by direct recruitment through public advertisement, and earlier irregular promotions of other peons could not found a claim of discrimination, since Article 14 does not envisage negative equality. It criticised the State for never placing the statutory rules before the Tribunal or the courts.
Issues
- Whether an employee outside the feeder cadre can claim promotion to a post that the statutory rules require to be filled 100% by direct recruitment.
- Whether a direct-recruitment vacancy can be filled by an internal departmental circular instead of a public advertisement.
- Whether promotion of other peons as Tracers entitled the petitioner to parity under Article 14.
- Consequences of the parties' failure to place the correct statutory rules on record.
Provisions considered
- Rules 3, 5(1)(e), 5(3)(d), 6 and 7, Orissa Subordinate Architectural Service Rules, 1979 (framed under the proviso to Article 309)Rule 5(1)(e) requires all Tracer posts in categories I to III to be filled by direct recruitment; Rule 6 (promotion) does not mention Tracers; Rule 7 requires a competitive test after advertisement in local newspapers and the Orissa Gazette. What the parties and the High Court called paragraph 3(d) of a Works Department letter was in fact Rule 5(3)(d). (¶¶ 10.1, 17, 20, 20.1, 20.2, 21, 22, 29, 30)
- Articles 14 and 16, Constitution of IndiaRegular appointment to a State post without public advertisement and fair selection violates Article 16; Article 14 does not envisage negative equality, so illegal promotions of others give no right to the same benefit. (¶¶ 22, 31)
Held
- Under the 1979 Rules the post of Tracer in all three categories is to be filled only by direct recruitment following the procedure in Rule 7; it is not a promotional post from Peon, so the petitioner had no claim to promotion, and the Court did not need to decide whether she held the prescribed qualification. (¶¶ 20, 20.1, 20.2, 21, 22, 30)
- A vacancy meant for direct recruitment cannot be filled by an internal circular inviting applications from peons; following UPSC v. Girish Jayanti Lal Vaghela, regular appointment to a State post requires public advertisement and a fair selection open to all eligible candidates, failing which Article 16 is violated. (¶ 22)
- Promotions of two other employees as Tracers in 1999 could not support a discrimination claim; the Court will not perpetuate a department's illegality, and Article 14 does not envisage negative equality (R. Muthukumar v. TANGEDCO; Basawaraj v. Special Land Acquisition Officer). (¶¶ 24, 31)
- The Tribunal should have considered the petitioner's entitlement before directing her representation to be decided, and the State, at none of the stages of litigation, placed the 1979 Rules on record, describing them as a departmental letter and relying on a non-existent rule; such casualness by the State, the major litigant, generates avoidable litigation and risks misleading the courts. Parties and advocates must make full and correct disclosure and verify the record (Saumya Chaurasia v. Directorate of Enforcement). (¶¶ 17, 19, 25, 26, 27, 28, 28.1, 29, 33, 34)
Result
Special leave petition dismissed; a copy of the judgment directed to be sent to the Chief Secretary, State of Odisha for corrective steps.