Dr. Akshaya Kumar Rath, J.@mdash1. In this writ petition, the petitioner has prayed, inter alia, to quash the order dated 17.5.2004 issued by the Principal Secretary to Government, Housing and Urban Development Department, vide Annexure-18, rejecting the prayer for regularization of his services in the post of Jr. Assistant and reverting him back to the post of Tax Collector.
2. Case of the petitioner is that the Executive Officer, Notified Area Council, Konrak-opposite party No. 3, on 5.9.1985 requested the Employment Officer, Puri to sponsor the names of candidates for appointment to the post of Jr. Assistant, vide Annexure-1. On 19.9.1985, the Employment Officer, Puri sponsored the names of candidates including the petitioner. Thereafter, on 25.10.1988 a letter was issued to the petitioner, vide Annexure-3, by opposite party No. 3 to appear at the interview for the post of Tax Collector. Pursuant to the said interview, he was appointed as Tax Collector and, accordingly a letter was issued on 11.11.1988, vide Annexure-4, to the petitioner appointing him as Tax Collector. While the matter stood thus, the selection committee of opposite party No. 3 in its meeting dated 21.12.1991, vide Annexure-5, took a decision to fill up the vacant posts of Jr. Assistants and decided to promote the petitioner on ad hoc basis to the said post. Thereafter opposite party No. 3 issued a letter to the petitioner promoting him to the post of Jr. Assistant-cum-Typist on 23.12.1991, vide Annexure-6. The petitioner joined the post on 24.12.1991, vide Annexure-7. While the matter stood thus, on 30.4.1992, opposite party No. 3 moved the Government in the Housing and Urban Development Department to regularize the appointments of Jr. Assistants, vide Annexure-8. The Government of Orissa in its Housing and Urban Development Department by letter dated 3.2.1995, vide Annexure-9, called upon opposite party No. 3 to furnish the particulars of four posts and made a query as to whether the same had been filled up or not. On 8.2.1995 opposite party No. 3 furnished the information stating therein that the posts of Jr. Assistants had been filled up, vide Annexure-10. The further case of the petitioner is that Government of Orissa issued a letter on 28.1.1982, vide Annexure-11, to all the Executive Officers of Municipalities/Notified Area Councils stating therein that the Government have decided that the posts, which have been created by the Urban Local Bodies for a period of six months under Sub-section (1) of Section 73 of Orissa Municipal Act, should be abolished immediately after expiry of the said period and to submit proposal to the Government immediately with adequate justification supported by Council resolution to sanction the posts wherever the councils have created posts for a period of six months and the posts have been continued subsequently by extension on six monthly basis. It was resolved that creation of any post for six months by the Council should be strictly on the consideration of emergency and the matter should be intimated to Government immediately. A direction was issued for taking prior approval of the Director, Municipal Administration for filling up any post in Local Fund Service either by recruitment or promotion. On 29.10.1996, vide Annexure-12, another letter was issued by the Director, Municipal Administration to the Executive Officers of all Urban Local Bodies stating therein that Municipal Bodies have irregularly engaged employees to work as Jr. Assistant on ad hoc/D.L.R./N.M.R. basis after the Orissa Local Fund Service Rules coming into force on 10.9.1982. In some cases formal approval of Government for such stop gap arrangement have been taken by the Urban Local Bodies pending regular recruitment as per provision of Orissa Local Fund Service Rules whereas in some other cases the same has not been done. To put a stop to the irregular practice, a circular was issued by the Government on 19.6.1992 imposing ban on further appointments and promotion to the post of Jr. Assistant by Municipal Councils beyond 30.6.1992. With a view to consider the suitability of such Jr. Assistants irregularly appointed by the councils in between 10.9.1982 to 30.6.1982, the Government have decided to hold a special selection under O.L.F.S. Rules, through a written test and viva-voce test to be conducted by the selection board. A request was made to sponsor the applications of such Jr. Assistant in the Municipality/N.A.C./Municipal Corporation in the proforma. The further case of the petitioner is that pursuant to the letter dated 29.10.1996, the services of 148 employees engaged between 15.9.1982 and 30.6.1992 were regularized in the post of Jr. Assistants, but no steps had been taken by the Government to regularize his services. He filed a writ petition, being W.P.(C) No. 8702 of 2003, before this Court, which was disposed of on 1.12.2003 with a direction to opposite party No. 1 to consider the recommendation of opposite party No. 3 and take a decision in the matter within four months. Opposite party No. 1 by order dated 17.5.2004 rejected the recommendation of opposite party No. 3 and reverted him back to the post of Tax Collector, vide Annexure-18. With this factual scenario, the present writ petition has been filed.
3. Pursuant to issuance of notice, a counter has been filed by opposite parties 1 and 2. Case of the opposite parties 1 and 2 is that the petitioner was initially appointed as an Assistant Tax Collector on daily wages basis by office order bearing No. 1397, dated 20.9.1986 of Konark NAC. Subsequently he was given appointment in the post of Tax Collector on regular basis in the NAC Office. On 11.11.1988 pursuant to the interview made by the selection committee of the Urban Local Body on 8.11.88, he was elevated to the post of Jr. Assistant by office order No. 844 dated 23.12.1991. The committee had no power/authority to give promotion to the petitioner to the post of Jr. Assistant from Tax Collector i.e., to the LFS cadre post from the post other than LFS Cadre as per the statutory provision under Rule-7 of OLFS Rules, 1975. Thus the elevation of the petitioner to the post of Jr. Assistant under LFS cadre was made illegally by the selection committee of Konark NAC in exercising their power beyond their jurisdiction. While the matter was thus, the petitioner had earlier filed a writ petition, being W.P.(C) No. 8702 of 2003, before this Court to regularize his services in the post of Jr. Assistant. The said case was disposed of by this Court on 1.12.2003 with a direction to opposite party No. 1 to consider the recommendation dated 30.4.1992 of Konark NAC in accordance with law on its own merit and to take decision in the matter within four months from the date of receipt of the order. In obedience to the orders of this Court, the matter was disposed of by opposite party No. 1 on 17.5.2004 vide Order No. 9813. It is clearly mentioned in the said order that promotion of the petitioner to the post of Jr. Assistant from Tax Collector by the Council of Konrak NAC is illegal and unlawful as per the provision of OLFS Rules and is also in violation of the Government instructions issued in Housing and Urban Development Department Circulars bearing No. 1355/UD dated 15.01.77, No. 24975/HUD dated 26.06.1990, No. 47308/HUD dated 17.11.90, No. 27665/HUD dated 19.6.1992 and No. 40865/HUD dated 01.10.1992.
4. Opposite parties 3 and 4 have also filed a counter affidavit. It is stated that the petitioner was initially appointed as Asst. Tax Collector. The post of Asst. Tax Collector is a Non-Local Fund Service level post confined to the NAC. The post of the Jr. Assistant is a State Level Local Fund Services Cadre post and the same can be filled up as per the Orissa Local Fund Service Rules, 1975. Though the petitioner was initially appointed as Asst. Tax Collector as per office order No. 1397 dated 20.9.1986 and subsequently was allowed to work as Tax Collector, vide office order No. 1698 dated 11.11.88, but thereafter he was appointed to the post of Jr. Assistant, which was in violation of Rule-7 of the Orissa Local Fund Service Rules, 1975. Since the order of promotion is violation of the O.L.F.S. Rule, 1975, the order of reversion has been passed. Initially the petitioner had filed a writ petition before this Court, being W.P.(C) No. 8702 of 2003. Pursuant to the order of this Court, the Government have considered the representation of the petitioner and rejected the same observing inter alia that regularization of the services of the petitioner to the post of Jr. Assistant will violate the statutory rules.
5. Heard Mr. A.K. Choudhury, learned counsel for the petitioner and Mr. S. Dash, learned Additional Standing Counsel for State-opposite parties 1 and 2 and Mr. S.B. Jena, learned counsel for opposite party No. 3.
6. Mr. Choudhury, learned counsel for the petitioner submits that pursuant to the interview, the petitioner was appointed as a Tax Collector in the Konarak N.A.C. and discharged his duties to the fullest satisfaction of the authorities concerned. There is no blemish in the service record. It was decided in the meeting of the NAC to give ad hoc promotion to the petitioner in the post of Jr. Assistant and, accordingly the petitioner was promoted to the post of Jr. Assistant-cum-Typist, vide Annexure-6. Persons similarly circumstanced to that of the petitioner have been regularized by the Government. He further submits that the petitioner was promoted by the selection committee under Rule 7 of Orissa Local Fund Service Rules, 1975. The said rule was amended with effect from 10.9.1982 and in place of "selection committee", "selection board" has been substituted. Since the petitioner had been promoted by the selection committee, the order dated 17.5.2004, vide Annexure-18, in not regularizing his services and reverting him back to the post of Tax Collector is bad in law. He relies on a decision of this Court in the case of Sukanti Dei Vs. State of Orissa and others, (W.P.(C) No. 1890 of 2002 disposed of on 7.4.2015) and contends that the petitioner therein assailed the action of opposite parties 3 and 4 in not appointing her to the post of Jr. Assistant in the Konrak NAC. The petitioner was opposite party No. 5 in the said writ petition. It was observed that opposite party No. 5 was appointed in the post of Jr. Assistant in accordance with Rule 7 of Rules 1975 by the selection committee. In view of the same, the order dated 17.5.2004, vide Annexure-18, is liable to be quashed.
7. Per contra, Mr. Dash, learned Additional Standing Counsel for the State submits that the petitioner was promoted to the post of Jr. Assistant illegally by the selection committee. The selection committee has no authority to promote the petitioner to the post of Jr. Assistant from the post of Tax Collector. He further submits that the post of Jr. Assistant belongs to L.F.S. cadre and the same can be filled up by the committee constituted for the purpose under amended Rule 7 of Orissa Local Fund Service Rules, 1975. In view of the same, his service has not been regularized and he has rightly been reverted back to the post of Tax Collector.
8. Mr. Jena, learned counsel for opposite party No. 3 supports the contention of the learned Additional Standing Counsel for the State.
9. The crux of the issue is as to whether promotion of the petitioner from the post of Tax Collector to the post of Jr. Assistant is legal and valid?
10. Rules 7 and 9 of Orissa Local Fund Service Rules, 1975 (hereinafter referred to as Rules, 1975), which are relevant, read thus:-
"7. The section of all posts in the service, whether created or fallen vacant shall be made by the Selection Committee constituted under S. 75 of the Act for the purpose and a copy of such selection order shall be sent to the Council for appointment by appropriate authority. A copy of an appointment order shall be sent to the Director of Municipal Administration.
9. Promotion of employees shall normally be made from amongst the incumbents of the particular cadre with concurrence of the Director of Municipal Administration, as per provision in the rules. If no suitable candidate is available within the service, the recruitment may be made from outside, in the manner specified in R. 7, after obtaining prior approval of the Director of Municipal Administration."
11. On a conspectus of the old Rules, 1975, it is evident that selection of all posts in the service whether created or fallen vacant shall be made by the Selection Committee constituted under S. 75 of the Act for the purpose. It is mandatory that appointment order shall be sent to the Director, Municipal Administration. Rule 9 of the Rules, 1975 provides that promotion of employees shall normally be made from amongst the incumbents of the particular cadre with concurrence of the Director of Municipal Administration. Though Rule 7 was amended and thereby selection committee was substituted by selection board, but the fact remains that prior to amendment of Rule 7, concurrence of the Director, Municipal Administration for promotion is sine qua non. Under Rule 9 of the Rules, 1975, no concurrence of the Director, Municipal Administration had been taken by the Konrak NAC. Reliance placed on the order dated 17.5.1999 of the Director Municipal Administration, vide Annexure-16, regularizing the services of 148 employees of different urban local bodies is totally misplaced. On a cursory perusal of the said order, it is evident that a selection test was conducted by the selection board constituted under Rule 7 of the Orissa Local Fund Service Rules, 1975 following the directions of this Court and, accordingly the services of other persons have been regularized. Reliance placed on Sukanti Dei (supra) is equally misplaced as all the materials were not placed in the said case. In Sukanti Dei (supra), the petitioner challenged the action of opposite parties 3 and 4 in not appointing her to the post of Jr. Assistant. Her contention was that she was appointed prior to opposite party No. 5 (petitioner herein).
12. In Padmasundara Rao (Dead and others V. State of Tamil Nadu and others, , AIR 2002 SC 1334, the apex Court held that there is always peril in treating the words of a speech or judgment as though they are words in a legislative enactment, and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. In Islamic Academy of Education and another v. State of Karnataka and others, , AIR 2003 SC 3724, the Constitution Bench of the Supreme Court has restated the well settled principle of precedent. The apex Court held that a judgment is not be read as a statute. The ratio decidendi of a judgment is its reasoning which can be deciphered only upon reading the same in its entirety. The ratio decidendi of a case or the principles and reasons on which it is based is distinct from the relief finally granted or the manner adopted for its disposal. It is further held that a decision is an authority for what it decides and not what can be logically deduced therefrom.
13. Thus, the said case is distinguishable. No case is made out for interference with the order dated 17.5.2004 issued by the Principal Secretary to Government, Housing and Urban Development Department, vide Annexure-18. Accordingly, the writ petition is dismissed. It is made clear that in the event, the Government of Orissa proposes to regularize the service of the Jr. Assistants, then the case of the petitioner shall be considered along with others in accordance with Rule 7 of Orissa Local Fund Service Rules, 1975.
