Debendranath Samantary vs Director of Industries and Others

P.K. Mohanti, J.—Petitioner is a Supervisor in the Industrial Training Institute at Cuttack. He filed the writ petition for issue of a writ of mandamus or any other appropriate writ for quashing the gradation list in Annexure-6 and the promotion of opposite parties 4 to 21 to the rank of Foreman.

Most of the allegations made in the writ petition were not pressed at the time of hearing and the writ petition was confined only to the promotion of opposite parties 17 to 20. The relevant facts are these:

Petitioner and opposite parties 17 to 20 are borne if the common cadre of Supervisors. In the gradation list (Annexure 6) published in or about the year 1971 Petitioner has been shown above opposite parties 17 to 20. On 23rd July, 1971 opposite parties 17 to 20 were promoted to the rank of Foreman in the higher scale of pay of Rs. 260 - 540 in supersession of the claim of Petitioner. The ground for supersession of Petitioner''s claim is that he is a non-metric. Petitioner''s contention is that the conditions of service under which he was appointed and taken into the cadre of Supervisors having not prescribed any unequal treatment in the matter of promotion, non-consideration of his case is violative of the fundamental right guaranteed under Article 16 of the Constitution of India.

The contention raised on behalf of opposite parties 1 to 3 is that the Director General of Employment and Training, Ministry of Labour, Employment and Rehabilitation, Government of India had prescribed the educational qualification of matriculation for promotion to the post of Foreman when the Industrial Training Institutes and their employees were under the control of the Government of India and that practice was followed by the authorities under the State Government after the control of the Institute was transferred to the State Government. It is also contended that apart from the aforesaid practice, the National Council for Training and Vocational Trades set up under the Government of India recommended that for the purpose of appointment to the selection post of Foreman the requisite qualification should be matriculation, diploma in Engineering or Technology and industrial or teaching experience for five years in the administrative and organisational ability. This recommendation was accepted by the Government of India and conveyed to the State Government by the Director General of Employment and Training, Ministry of Labour, Employment and Rehabilitation Government of India by letter dated 8-12-1969 (Annexure-6) and the State Government accepted the aforesaid recommendation and communicated the same to the Additional Director of Industries, Orissa by letter dated 12-2-1973 (Annexure-D). The State Government by another letter dated 6-3-1973 (Annexure-E) communicated their decision that the acceptance of the aforesaid re-commendation would have retrospective effect from 8-12-1969. Petitioner being an under-matric, he was not promoted to the post of Foreman. Opposite parties 17 to 20 possess the requisite educational qualification for the Post and on the basis of their qualification, they were promoted to the post of Foreman though they were juniors to Petitioner.

The main question for consideration is whether matriculation is the prescribed qualification for the post of Foreman.

There is no statutory rule governing the conditions of service of the Supervisors. The State Government did not issue any executive instruction governing the condition of service of the Supervisors after the Control of the Industrial Training Institute was transferred in 1956. On 12-2-1973 instruction was for the first time issued to the Additional Director of Industries, Orissa that the qualification prescribed by the Director General of Employment and Training in respect of the post of Foreman had been accepted by State Government (vide Annexure-D). The question of promotion to the rank of Foreman arose on 23-7-1971 when there was no such executive instruction of the State Government. During the pendency of this writ application, the State Government in their letter dated 6th March, 1973 intimated the Additional Director of Industries, Orissa that the acceptance of the qualification for the post of Foreman as communicated in their earlier letter dated 12-2-1973 would take retrospective effect from 8-12-1969 (vide Annexure E). Government has no lawful authority to prejudicially affect the civil rights of a Government servant retrospectively by a mere executive instruction. In this connection we rely on a decision of the Supreme Court reported in Ex-Major N.C. Singhal Vs. Director General Armed Forces Medical Services, New Delhi and Another, , wherein it was held that the conditions of service of a Government servant are not liable to be altered or modified by giving retrospective effect to an administrative direction.

It was next contended on behalf of the opposite parties that when the training institutes and their employees were under the control of the Government of India, the prevailing practice was not to allow promotion to a Supervisor not possessing the educational qualification of matriculation to the rank of Foreman and this practice was followed by the Additional Director of Industries after the control of the Institutes was transferred to the State Government Reliance was placed on an unreported decision in Dibakar Das v. Additional Director of Industries and Ors. O.J.C. No. 653 of 1971, wherein a Bench of this Court held that the Director of Industries who is the appointing authority for the post of Foreman was entitled to adopt the prevdfailing practice in the matter of promotion. With respect we regret our inability to accept this view as correct. Admittedly, Petitioner entered service as an employee of the State Government and his conditions of service can only be prescribed by the State Government. The practice followed in the matter of promotion to the rank of Foreman was not adopted by the State Government till 12-2-1973 when Annexure-D was issued. The Director of Industries had no competence to adopt the previous practice without the approval of the State Government. The executive power of the State vests in the Governor under Article 154 of the Constitution and has to be exercised by him only with the aid and advice of the Council of Ministers. If the Director of Industries is to exercise an executive function he must be so authorised by the Governor with the aid and advice of the Council of Ministers. In the absence of such authority, he cannot discharge any executive function. In this view of the matter, the fixation of qualification standards by the Director of Industries cannot be a bar to the promotion of Petitioner.

Since Petitioner and opposite parties 17 to 20 belong to a common cadre, no discrimination could be made in the matter of promotion in the absence of a statutory rule or executive instruction of the State Government laying down a condition of service that only the Supervisors possessing the qualification of Matriculation are to be promoted to the rank of Foreman. Nonconsideration of Petitioner''s claim for promotion is, therefore, violative of the fundamental right guaranteed under Article 16 of the Constitution.

In the result, we allow the writ application with costs and hearing fee of Rs. 100/ - (one hundred). Issue writ of mandamus commanding the State Government to consider the Petitioner''s case for promotion to the rank of Foreman with effect from 23rd July, 1971 within a period of three months hence.

G.K. Misra, C.J.

I agree.

N.K. Das, J.

I agree.