Raghunath Ransingh vs State of Orissa and Others

R.N. Misra, J.—Petitioner and opposite parties 3, 4 and 5 are employees in the Directorate of Export Promotion and Marketing of the State Government of Orissa and while Petitioner is working as a Grade II Assistant, the said opposite parties are all Grade I Assistants. Petitioner assails the promotion of opposite parties 3, 4 and 5 relying on the provisions of the Orissa Ministerial Service (Method of Recruitment and Condition and Offices of the Head of Departments) Rules, 1963 (hereinafter referred to as "Rules of 1963").

When Petitioner''s application came up for hearing before a Division Bench, Petitioner''s counsel relied upon the Bench decision of this Court in the case of Nityananda Das v. State 1973 (2) C.W.R. 1485, Learned Government Advocate took the stand that the observation of the Division Bench in paragraph 11 of the judgment that the Director, Bureau of Statistics and Economics was a Head of Department so far as the Rules of 1963 are concerned was erroneous and required re-consideration. This case has, therefore, been referred to a larger Bench for disposal and for consideration of the correctness of the decision reported in Nityananda Das v. State of Orissa 1

There is no dispute that if the Rules of 1963 have no application, Petitioner''s claim for seniority has no basis. Therefore, the main question for consideration is as to whether the said Rules apply to employees of the Directorate of Export Promotion and Marketing.

Under Rule 2(b), "Offices of the Heads of Departments" has been defined to mean "the Office of the Board of Revenue and includes the Offices of the Revenue Divisional Commissioner and the Director of Land. Records and ''Survey". By an Explanation, it has been clarified that the Office of the Board of Revenue for the purpose of this Rule would include the Office of the Inspector General ot Registration-cum-Excise Commissioner. The definition is exhaustive because it gives the meaning of the term and so far as it is inclusive, it clearly states what is included therein. Therefore, apart from the Offices of the Board of Revenue, the Inspector General of Registration-cum-Excise Commissioner, the Revenue Divisional Commissioner and the Director of Land Records and Survey, no other Government establishment would come within the purview of the definition.

Rule 20 of the Orissa Service Code defines "Heads of Departments" to mean "the Government servant mentioned in Appendix 3". In Appendix 3 of the Code, various authorities have been named. Director of Export Promotion and Marketing has, however, not been included. Even if the said Director would have been included in Appendix 3, to employees in that Directorate, the Rules of 1963 would have no application in view of the special definition in Rule 2(b) of the Rules.

In Nityananda Das v. State of Orissa1, reliance was placed on Rule 20 of the Orissa Service Code and serial 23 of Appendix 3 to hold that the Director, Bureau of Statistics and Economics was a Head of Department and on such basis, the Rules of 1963 were made applicable to employees in that Directorate. The definition of "Offices of Heads of Departments" occurring in Rule 2(b) of the Rules of 1963 was lost sight of and though the said Rules were not applicable to the case of the Petitioner in that case, the Division. Bench obviously relied upon the Rules.

5 Once the Rules of 1963 are held not to be applicable to the Office in the Directorate, the main plank on which the Petitioner built his case falls and his application has to be dismissed. Accordingly we dismiss the writ application, but would direct parties to bear their own costs.

G.K. Misra, C.J.

I agree.

B.K. Ray, J.

I agree.