,
Rajesh Bindal, J",
1. This Court had been called upon to examine the validity of an order passed by the Court below where the parties failed to produce proper,
documents or annexed incorrectly typed documents. This does not happen in isolation, rather is a routine, which sometimes results in miscarriage of",
justice in case the issues are not examined in detail with proper assistance of the parties, especially  the State where it is party to the lis. It may also",
put the Court to ridicule.,
2. The challenge in the present petition is to the order of the High Court ‘High Court of Orissa at Cuttack’ dated 12.10.2022 passed in Writ,
Petition ‘Writ Petition Civil (OAC) No.18463 of 2017’ filed by the State where the order passed by the Tribunal ‘Orissa Administrative,
Tribunal, Bhubaneshwar’ dated 08.01.2016 in an application ‘O.A. No.1696 of 2010’ filed by the petitioner was set aside.",
3. An interesting issue which arises is as to whether an employee in an establishment is entitled to claim promotion on a post for which he does not fall,
in the feeder cadre and the post is required to be filled up 100% by way of direct recruitment? Another important issue is whether a vacancy meant,
for direct recruitment can be filled up merely by issuing a circular in the establishment and not by issuing an advertisement calling application from the,
eligible candidates from public at large?,
4. The petitioner herein was working as a peon with respondent-State. She was appointed as such in the year 1978. The petitioner filed a,
representation dated 07.01.1999 to be appointed to the post of Tracer.,
5. While the said representation was pending, the petitioner filed O.A. No.628(C) of 1999 before the Tribunal at Cuttack. The same was disposed of",
at admission stage vide order dated 26.03.1999, directing the respondent therein to dispose of her representation within these months from date of",
receipt of order. Pursuant to this, vide letter dated 05.07.1999 respondent communicated to the petitioner that the post of Tracer will not be filed up on",
promotion from the lower category of post since it is not a promotional post and vacancy of Tracer will be filed up in due course by conducting the,
interview.,
6. The petitioner filed another application bearing O.A. No.l126(C) of 2002 before the Tribunal inter alia seeking for the intervention of the Tribunal,
against the discriminatory action of the respondent authorities with regard to her promotion to the post of Tracer. The said O.A. was later transferred,
to the Principal Bench of the Tribunal at Bhubaneshwar and was registered as O.A. No.742 of 2009.,
7. Learned Tribunal vide order dated 27.09.2010 disposed of the said O.A. directing the respondent to consider the case of the petitioner along with,
similarly placed Class-IV Employees for their promotion to the post of Tracer against available future vacancy within a period of three months from,
the date of communication of the order.,
8. Vide order dated 23.11.2010, passed in compliance to the order of the Tribunal dated 27.09.2010 passed in the Application ‘O.A. No.742 of",
2009’ filed by the petitioner, her representation for appointment on the post of basic level Tracer was rejected due to ban on recruitments imposed",
by the Finance Department ‘Office Memorandum No.10954 dated 14.03.2001’.,
9. In the third round of litigation, in the Application ‘O.A. No.1696 of 2010’ filed by the petitioner before the Tribunal impugning the order dated",
23.11.2010, vide order dated 08.01.2016, the respondent was directed to promote/appoint the petitioner on the post of Tracer against any vacant post.",
In case no post is available, then the last person so promoted, after the direction was issued in the earlier O.A. filed by the petitioner, be reverted.",
Strangely enough to note here that no person was impleaded as party, who may be affected by the order passed by the Tribunal in case benefit is",
given to the petitioner. A Review Petition bearing R.P. No.28 of 2016 preferred by Respondent therein, was rejected vide order dated 28.02.2017.",
10. Aggrieved against these orders passed by the Tribunal, the State preferred Writ Petition No.18463 of 2017 before the High Court. The argument",
raised was that the petitioner was not eligible for the post of Tracer in terms of paragraph 3(d) of the Letter No.4775 dated 26.02.1980 issued by the,
Works Department. Hence, she was not found to be eligible. The orders dated 08.01.2016 and 28.02.2017 passed by the Tribunal were set aside. As",
the retiral benefits had been extended to petitioner for the post of Peon, the High Court disposed of the Writ Petition accordingly.",
10.1 We are constrained to note at this stage that the Rules namely Sub-ordinate Architectural Service Rules, 1979, (hereinafter “1979 rulesâ€) as",
framed in exercise of powers conferred under the proviso to Article 309 of the Constitution of India and notified in the official Gazette on 25.07.1980,
vide notification No.4773- E-IXR-1/80-E were sought to be referred by the learned counsel appearing before the High Court as Letter No.4775 dated,
26.02.1980 issued by the Works Department, and without perusing the proper document, even the High Court has referred those in the judgment in the",
same manner.,
11. Learned counsel for the petitioner argued that the High Court, while accepting the Writ Petition of the State, had wrongly quoted paragraph 3(d) of",
Letter No.4775 dated 26.02.1980 in which the qualifications for the post of Tracer have been mentioned. The qualification as per paragraph 3(d),
required is the experience of 02 years in tracing from blue printing or a certificate of draftsmanship from the Industrial Training Institution. Learned,
counsel argued that the petitioner possesses the qualification as she had undergone the course of Tracer Training of 03 months with Institute of,
Survey and Mining Technology, Bhubaneshwar for which a certificate was granted on 22.09.1997. The petitioner is fully qualified for the post, but she",
was not called for the interview, and the findings are erroneous. It is the case of the petitioner that there being an error apparent on record regarding",
qualification, as such the impugned order passed by the High Court deserves to be set aside and that of the Tribunal be restored.",
12. It was further argued, earlier the petitioner was called for interview for the post of Tracer in the year 1991 but was not successful. Thereafter, she",
was again called for interview on 16. 03.1999 which was postponed. Other similarly placed employees, namely, Mr. Lalatendu Rath and Ms. Jhinarani",
Mansingh were promoted as Tracer from the post of Peon, vide order dated 28. 06.1999. Hence, looking at the discrimination also the petitioner’s",
case deserves to be considered.,
13. On the other hand, the stand taken by the learned counsel for the respondent was that the petitioner is not eligible for promotion from the post of",
Peon to the post of Tracer as per the letter dated 26.02.1980. It is argued that the case has rightly been considered and finding no merit therein, the",
High Court had set aside the order passed by the Tribunal.,
14. A perusal of the document annexed as Annexure P-2 along with the petition gives it a color of statutory rules but not typed in a proper manner.,
During the course of arguments, learned counsel for the parties were asked to apprise the Court about the relevant statutory rules applicable for",
recruitment/promotion for the post of Tracer.,
15. Learned counsel for the State had produced a copy of the Gazette Notification and the typed copy of 1979 Rules. While referring to the aforesaid,
Rules, the submission was that the petitioner does not have a case made out for promotion because the Rules do not permit promotion to the post of",
Tracer as the petitioner is not qualified for the post of Tracer. She neither has experience nor a certificate of draftsmanship from an Industrial,
Counsel’s True Typed Copy,Orissa Government Gazette
The 26th February, 1980
No.4775Â E-IRA-1/80-E-Â In exerciseÂ
of the power conferred by theÂ
provision to Article 309 of the Constitution of
India. The governor of Orissa in pleasedÂ
to make the following rules for the
regulation or recruitment. Â Â Promotion
  and other  condition  of Â
service  or this  or  this
  is  a  subordinate architectural
service namely:","The 26th February, 1980
No. 4773-E-IXR-1/80-E. â€" In
exercise    of    the    powers
conferred  by  the  proviso  to
Article 309 of the Constitution of India, the
Governor of Orissa is pleased toÂ
make the following rules for the regulation
of recruitment,   promotion   and other
condition of service of the Orissa    Â
  Subordinate Architectural Service,
namely:-
Method of Recruitment and Condition of
Service Rules, 1979.
1.    Short    title    and
commencement
(1) these rules may be called or a
  Subordinate  Architectural Service
Rules, 1979.
2) They shall come into force at once.
Provided that nothing in these
rules  shall  be  constructed Â
as affecting  or  invalidating
appointments already made or
orders  already  issued  by Â
the competent authority & all such
appointments and orders shall be
deemed or have been made or issuedÂ
under these appropriate provisions ofÂ
these rules","Method  of  recruitment  and condition of
service Rules, 1979.
1.    Short    title    and
commencement-(1) These rules
may  be  called  the  Orissa
Subordinate    Architectural Service
Rules, 1979.
2) They shall come into force at once:
Provided that nothing in these rules,
  shall  be  construed  as
affecting  or  invalidating
appointments already made or
orders  already  issued  by Â
the competent authority and all suchÂ
appointments and orders shall beÂ
deemed to have been made or issued
under the appropriate provisions ofÂ
these rules.
2. Definition:
a) Department  means  Govt. in
Works Department.
b) Government means Govt. of Orissa
c) Service   means   Orissa
Architectural  service (Non-Gazetted)Â
consisting of      Architectural
Draftsmen,    Head
Draftsmen,     Asst. Architectural
  Draftsman and Tracers under the Roads
and Buildings Wing
d) State  means  State  of Orissa","2.  Definition-  (a)  'Department'
means  Government  in  Works
Department.
(b)Â Â 'Government'Â Â means Government
of Orissa.
(c) 'Service' means  the Orissa
Architectural   Service   (Non-
gazetted),   consisting   of
Architectural  Draftsman,  Head
Draftsman,     Assistant
Architectural  Draftsman  and Tracers
under the Roads & Buildings Wing.
(d) 'State' means State of Orissa.
2. Position of the service- The
service    shall    consist    of
following categories of officials, namely.
Category-I: Â Â Architectural
Draftsmen,      Asst.
Architectural  Draftsmen, Tracers in the
Architect Branch in the office ofÂ
the Chief  Engineer  Roads  and
Buildings.
Category-II:Â Â Â Â Â Â Head
Draftsmen, Asst.  Draftsmen & Â
Tracers  in  the  Drawing
Branches in the office of the ChiefÂ
Engineer, Roads and Buildings.
Category-III: Draftsmen and TracersÂ
in the office of the  Â
   Superintending Engineers  and
 Executive Engineers under RoadsÂ
and Buildings Wing.","3. Composition of the service- TheÂ
service shall consist of the following
categories of officials, namely:-
Category  I  â€"  Architectural
Draftsman,     Assistant
Architectural   Draftsman, TracersÂ
in the Architect Branch in the office of
the Chief Engineer, Roads & Buildings.
Category II â€" Head Draftsman,
Assistant Draftsman and Tracers in theÂ
Drawing Branches in the office Â
of  the  Chief  Engineer, Roads &
Buildings.
Category  III  â€" Â
Draftsman  and Tracers in the office Â
of  the Superintending  Engineers Â
and Executive   Engineers   under
Roads & Buildings Wing.
4. Recruitment The recruitment to the
service shall be made-
(a) by direct recruitment in accordance with
the Rules 5 and 7.
(b)  by  promotion  of Â
officials already  in  service  in
accordance with the Rule 6.
Direct Recruitment And
Percentage Of Recruitments.
1.
a)Â Â 50 percent of the vacancies , shall be
filled in direct recruitment  to  the Â
post  of the Architectural Draftsman
under Category I on a result of Â
competitive  test  to  be
conducted  by  the appointing
authority.
b) 50 percent of the vacancies
shall be filled in by direct
recruitment  in  the  post  of
Assistant   Architectural Draftsmen
under Category I on a result of aÂ
competitive test to be conductedÂ
by the appointing authority
c)  50 percent of the vacancies
shall be filled in by direct
recruitment  in  the  post  of
Assistant  Draftsmen  under Category
II.
d) 50 percent of the vacancies
shall be filled in by direct
recruitment  in  the  post  of
Draftsmen  under  category III.
e)Â All posts of Treasures under
categories I, II, and III shall be
 filled  in  by  direct recruitment.
f) The competitive test for all these
three categories of post shall be separated from
each other and shall be conducted  by Â
the appointing authorities","5.   Direct   recruitment   and
percentage of recruitment (1)(a) 50Â
per cent of the vacancies, shall be filled
in by direct recruitment to the posts    of
   Architectural Draftsman under
category I on a result of competitive
test to be conducted by the appointing
authority.
(b) 50 per cent of the vacancies shall beÂ
filled in by direct recruitment toÂ
the posts of AssistantÂ
   Architectural Draftsman under
category I on a result of competitive
test to be conducted by the appointing
authority.
(c)Â 50 per cent of the vacancies shallÂ
be filled in by direct recruitmentÂ
to the post of Assistant DraftsmanÂ
under category II.
(d) 50 per cent of the vacancies shall beÂ
filled in by direct recruitment toÂ
the post of Draftsman underÂ
category III.
(e)  All posts of Tracers under
categories I, II and III shall be filled in by
direct recruitment.
(f) The competitive test for all
these  three  categories  of
posts,  shall  be  separated fromÂ
each other and shall be   conducted
 by   the appointing authorities.
(2)  A candidate  for direct recruitmentÂ
to the service shall  not  ordinarily
 be under twenty-one years of
age  and  over  twenty-five
years  of  age  on  the Â
1st August of the recruitment yearÂ
of recruitment. Provided that the maximum
age-limit in case of a candidate  belonging
 to Scheduled   Castes   and
Scheduled Tribes shall be
28  years  and  in  case Â
of candidate already in GovernmentÂ
service, shall be  35  years. Â
Preference may  be  given Â
to  the  ex- Military personnel.
3) Â (a) A candidate for the post ofÂ
,"Architectural Draftsman under category I
shall be a pass in Intermediate in Architecture
  (recognised course) or twoÂ
years study in  any  recognisedÂ
 School or College of Architecture
with 3 years' experience in an Architect's
Office or passed in Draftsman course in any
technical institution with five years' experience
in Architect’s Office.
(b) A candidate for the post of Assistant
Architectural Draftsman under category I, shall
have two years study in any recognised School
or College of Architecture with one year office
experience in an Architect's Office or passed
the Draftsman course in any technical
institution with two years' experience in any
Architect's Office.
(c) A candidate for the post of Assistant
Draftsman under category II and Draftsman,
category III, shall be matriculate with a
certificate of passed Draftsmanship from
Industrial Training Institution.
d) Candidates for the posts of Tracer under
categories I, II and III shall be matriculates
with experience of two years in tracing from
blue printing or a certificate of Draftsmanship
from Industrial Training Institution.
4) A candidate must not have
more than one spouse living and further in case
of lady candidate, she must not have married a
person who has a wife living: Provided that the
State Government may if satisfied that there
are special reasons for doing so exempt from
the operation of this clause.
2. A candidate for direct recruitment to the
service shall not ordinarily be under twenty one
years of age and over twenty five years of age
on the 1st August of the recruitment year of
recruitment. Provided that the maximum age
limit in case of Candidate belonging to
scheduled castes and Scheduled Tribes shall be
28 years in case of candidate already in
government service shall be 35 years.
Preference may be given to the EX- Military
personnel.","6. (1) Promotion and percentage of promotion-
(a) 50 per cent of the posts of Architectural
Draftsman, shall be filled in by promotion
from among the suitable Assistant
Architectural Draftsman working in Architect
Branch.
(b) All posts of Head Draftsman, shall be filled
in by promotion from among the suitable
Assistant Draftsman working in the Drawing
Branch.
(c) 50 per cent of the posts of AssistantÂ
Architectural Draftsman shall be filled in by
promotion from the Tracers working in the
Architect Branch.
d) 50 per cent of the posts of Assistant
Draftsman shall be filled in by promotion from
the Tracers working in the Drawing
Branches.
(2) No official shall ordinarily be eligible for
promotion to the service-(i) Unless he passes
the departmental test to be prescribed for the
post held by him at the time of promotion, (ii)
Unless he maintains a good record of service
which will be judged on the basis of C. C.
Rolls.
(3) The period of probation shall be one year in
case of officials appointed by promotion which
shall count from the date on which they join
their new posts.
(4) The appointing authority may extend the
period of probation for such further period as
he may deem fit and if after the extended
period of probation, the promotee is found
unsuitable he may be reverted.
3. a) A candidate for the post of architectural
draftsman under Category I shall be a pass in
Intermediate in Architecture ( recognized or
college of Architecture with 3years experience
in an Architect's officeror passed in Draftsman
course in a Technical Institution with fiveyears
experience in an Architect's office.
b) A candidate for the post of Assistant
Architectural Draftsman under Category I shall
have two years of study in any recognized
school or college of Architecture with lyear
office experience in an Architect's office or
passed the Draftsman course in any Technical
Institution with two years of experience in any
architect's office.
c) A candidate for the post of Assistant
Draughtsman under Category II and Draftsman
Category III shall be matriculated with a
certification of passedDraftsmanship from an
Industrial Training Institution.
d) Candidates for the posts of Tracer under
categories I , II and III shall be matriculates
with experience of 2 years in tracing
blueprinting or a certificate of drops
Draftsmanship from the Industrial Training
Institution.","7. Method of recruitment for direct candidate-
(1) Direct recruitment to the service shall be
made by a competitive test to be prescribed
and conducted by the Chief Engineer, Roads &
Buildings in consultation with Government
Architect.
(2) The authority shall issue advertisement in
the local newspapers and Orissa - Gazette
inviting application in a prescribed form along
with other certificates including - certificates
that they have passed Oriya up to middle class
standard and testimonials as may be considered
necessary by the authority.
(3) On examination of the applications, the
authority shall call for the written test as well
as for a viva voce on the basis of which a list
of successful candidates, arranged in order of
merit, shall be prepared. The list so prepared,
shall be followed till completion of one year.
(4) The authority thereafter shall issue
appointments to the successful candidates
against the vacant posts to be filled in by direct
recruitment.
(5) At the time of joining, the candidates shall
produce the necessary certificates of physical
fitness from the medical practitioner.
 6) The name of the candidate, who does not
accept the post offered within the time-limit
specified in the order of appointment, shall be
struck off from the list.
7) All appointments under direct recruitment
shall be made on probation for a period of two
years from the date a candidate joins his
appointment and if during the period of
probation, candidate's work and conduct is
found unsatisfactory, the authority may either
discharge him from service or may extend the
period of probation as they may think fit.
4. A candidate must not have more than one
spouse living and further in case of lady
candidate she must not have married a person
who has a wife living. Provided that the state
government may if satisfied that there are
special reasons for doing so exempt from the
operation of this clause.","8. Seniority and confirmation-
 (a) The seniority of the candidates directly
recruited shall be determined with reference to
their position in the list of successful candidates
and seniority of the promotee officials shall also
be determined with reference to their position
in the list of final selection to be prepared by
the Departmental authorities but the promotee
officials shall be considered senior to the
candidates directly recruited when direct
recruitment and promotion are made during the
same year.
(b) A probationer shall be confirmed at the end
of the period of probation if he is considered fit
for confirmation by the appointing authority
subject to availability of confirmed posts.
6. i) Promotion and percentage of promotion a)
50 percent of the post of Architectural
Draftsman shall be filled in by promotion from
among the suitable Assistant Architectural
Draftsman working in architect branch.
b) All posts of head draftsman shall be filled
promotion from among the suitable Assistant
Draftsman working in the Drawing Branch.
c) 50 percent of the posts of Assistant
Architectural Draftsman shall be filled in by
promotion from the Tracer in the Architect
Branch d) 50percent of the posts of Assistant
Draughtsman shall be filled in by promotion
from the Traces working in the Drawing
Branches.
2. No official shall ordinarily be eligible for
promotion to the service.
 I) Unless he passes the department test to be
prescribed for the post held by him at the time
of promotion.
II) Unless he maintains a good record of
service which will be judged on the basis ofC.
C. Rolls.
3. The period of promotion shall be one year in
case of office appointed by promotion which
shall count from the date on which they join
their new posts.
4. The appointing authority main extend the
period of probation for such further period as it
may does fit after the extended period of
promotion the promotion is found unsuitable he
may be reverted.
7. Method Of Recruitment For Direct
Candidate.
10. Direct recruitment to the service shell be
made by a competitive test to be prescribed and
conducted by the Chief Engineer, Roads &
Buildings in consultation with Government
Architect.
11. The authority shall issue advertisement in
The local newspaper ""The Orissa Gazette
inviting application in a prescribed form a long
with other certificates including certificate that
they have passed Oriya up to middle class
standard and testimonials as may he consider
necessary by the authority.
12…In execution of the application the
authorities shall call for the written test as well
as for a Viva voice on the basis of which in list
of successful candidates arranged in order of
merit shall be announced. The list so prepared
shall be followed till completion of one year
13. The authority there after shall issue
appointment to the successful candidates
against the vacant post to be filled in by direct
recruitment.
14. At the time of joining the candidates shall
produce the necessary certificate of physical
fitness from medical practitioners.
15. The name of the candidate who does not
accept the post offered within the time limit
specified in the order of appointment shall be
struck of from the list.
16. All appointments under direct recruitment
shall be made on probation for a period of 2
years from the date of candidate joints his
appointment and if during the period of
probation candidates work and conduct is found
unsatisfactory the authority may either
discharge him from service or may extend the
period of probation as they may think fit","9. Other conditions of serviceOther conditions
of service such as leave, pension, pay,
allowance, provident fund, etc., shall be
regulated by rules applicable to the members of
other subordinate non-Gazetted services under
State Government from time to time.
17.Seniority and confirmation:
c) The seniority of the candidate directly
recruited shall be determined with reference to
their position in the list of successful candidates
and seniority of the promoting officials shall
also be determined with references to their
position in the list of final selection to be
prepared by the departmental authorities but the
promoter official shall be considered senior to
the candidates directly recruited when direct
recruitment and promotion are used during the
same year.
d) A probation shall be confirmed at the end of
the period of probation if he is considered fit for
consideration by the appointing authority subject
to available of confirmed posts.",
18.Other conditions of service: Other conditions
is service such as leave pension, pay allowance,
provident fund etc., shall be regulated by rules
applicable to themembersof other subordinate
gazetted service under State Government from
time to time",
BUY ORDER OF THE GOVERNOR A.C.
PADHI ENGINEER- IN -CHIEF -
CUMSECT. TO GOVT. OF ORISSA.
///TRUE TYPED COPY///
 [sic]",
relief was written by the petitioner on 30.12.1990 to the Minister of Works and U.D. Department, Orissa (Annexure P-9). Vide letter dated",
09.03.1999 (Annexure P-13) Peons including the petitioner working in the department were called for appearance in the test on 16.03.1999 for the,
post of Tracer. Nothing has been mentioned as to the result of this test.,
24. At Annexure P-14 and 15, there are two letters dated 28.06.1999 vide which Miss Jhina Rani Mansingh and Sri Lalatendu Rath were appointed as",
Tracer on promotion basis. From the aforesaid letters, it is evident that they were promoted as Tracer, but on which post they were working is not",
mentioned. Their names are not mentioned in the letter dated 09.03.1999 vide which documents of Peons working in the Department were forwarded,
for consideration against the post of Tracer.,
25. It was at this stage that the petitioner filed O.A. No.628(C) of 1999. The Tribunal vide its order dated 26.03.1999 disposed of the application at,
admission stage, directing the respondent to dispose of her representation within three months from date of receipt of order. Entitlement of the",
petitioner to the relief was required to be considered before direction is issued to the authorities to decide the representation. The Tribunal failed to,
apply its mind on this issue at that stage. Pursuant to this, vide letter dated 05.07.1999, the respondent communicated to the petitioner that the post of",
Tracer is not to be filed up on promotion from the lower category of post, since it is not a promotional post and vacancy of Tracer will be filed up in",
due course by conducting an interview. As wrong action by the authorities is root cause of lot of avoidable litigation and other Peons may have been,
promoted from the post of Peon to Tracer, aggrieved by the respondent’s decision, the petitioner again filed a representation dated 30.01.2001 for",
redressal of her grievance and sought promotion on higher post considering her qualification and experience.,
26. The petitioner filed another application bearing O.A. No.l126 (C) of 2002 before the Tribunal inter alia praying for the intervention of the Tribunal,
against the discriminatory action of the respondent authorities with regard to her promotion to the post of Tracer. The aforesaid O.A. filed by the,
petitioner was transferred from Cuttack to the Principal Bench of the Tribunal at Bhubaneshwar which was disposed of vide order dated 27.09.2010.,
It was the admitted case of the petitioner before the Tribunal that there are no specific Rules for promotion from Class IV to the post of Tracer but,
there are precedents available, hence, in the absence of any rule the precedents should be followed. As is evident from paragraph 6 of the aforesaid",
order, this fact was not disputed by the learned counsel for the State. He had failed to place before the Tribunal the 1979 Rules, which clearly deal",
with the recruitment to the post of Tracer. Direction was given by the Tribunal to consider the case of the petitioner along with other similarly situated,
Class IV employees for promotion to the post of Tracer.,
27. The representation was rejected by the Chief Engineer vide order dated 23.11.2010 on account of ban on recruitments imposed by the Finance,
Department. The order was challenged by the petitioner before the Tribunal by filing O.A. No.1696 of 2010. Strange enough to note that, in the",
counter affidavit filed by the State to the above O.A. filed by the petitioner before the Tribunal, not a single line has been mentioned that the post of",
Tracer is to be filled up only by way of direct recruitment and not promotion in terms of 1979 Rules. The Tribunal, noting the history that there were",
two earlier appointments on the post of Tracer by way of promotion and that even the petitioner was earlier considered; the petitioner’s case,
having not been considered on account of ban imposed on recruitment, disposed of the O.A., quashing the order dated 23.11.2010 and directing the",
respondents to consider the case of the petitioner for promotion to the post of the Tracer against any vacant post. In case no post is available, then",
reverting the last promoted person after direction in the earlier O.A. No.742 of 2009 filed by the petitioner. As the State failed to point out that the,
1979 Rules govern recruitment to the post of Tracer, the Tribunal also did not notice the same and went on with the direction to consider the case of",
the petitioner for promotion. The order passed by the Tribunal was challenged by the State before the High Court.,
28. From a perusal of grounds on which the order passed by the Tribunal was challenged by the State shows total non-application of mind, especially",
in a case which had already undergone three rounds of litigation. Proper facts were not pointed out at any stage. The same legacy followed. In the,
Writ Petition, reference was made to Works Department No.4775 dated 26.02.1980 and it was mentioned that the petitioner was found to be ineligible",
in terms thereof. Towards the end in the aforesaid paragraph reference has been made to Rule 3(d) of the Orissa Service of Architect Rules, 1979.",
A copy of which was annexed with the Writ Petition. The same also has been annexed with the present petition as Annexure P-1. Firstly, there is",
no Rule 3(d) in the aforesaid rules and secondly, this does not deal with the post of Tracer. It shows that even at the stage of filing SLP before this",
Court, proper care was not taken to examine the relevant Rules and place the same on record.",
28.1 The importance of responsible drafting and diligent pleading was emphasized by this Court in Saumya Chaurasia v. Directorate of Enforcement,
2023 INSC 1073 : (2024) 6 SCC 401, where it was observed that:",
“13. It cannot be gainsaid that every party approaching the court seeking justice is expected to make full and correct disclosure of material facts and that,
every advocate being an officer of the court, though appearing for a particular party, is expected to assist the court fairly in carrying out its function to administer",
the justice. It hardly needs to be emphasised that a very high standard of professionalism and legal acumen is expected from the advocates particularly designated,
senior advocates appearing in the highest court of the country so that their professionalism may be followed and emulated by the advocates practising in the,
High Courts and the District Courts. Though it is true that the advocates would settle the pleadings and argue in the courts on instructions given by their clients,",
however their duty to diligently verify the facts from the record of the case, using their legal acumen for which they are engaged, cannot be obliviated.â€",
29. There cannot be more casualness than this where the authority of the State is fighting litigation and does not apprise the Tribunal or the Court,
about the relevant applicable rules. The effort may be to put under covers the illegalities committed by them earlier by granting promotion from the,
post of Peon to that of Tracer in violation of the 1979 Rules. Even the High Court in the impugned order has not referred to the 1979 Rules but has,
quoted paragraph 3(d) of the Letter No.4775 dated 26.02.1980. The scheme of the Rules has already been explained in paragraph above. What is said,
to be paragraph 3(d) of the letter is in fact Rule 5(3)(d) of the 1979 Rules.,
30. Though, the claim of the petitioner has been rejected on the ground that she is not eligible for the post of Tracer, however, we need not enter into",
that arena for the reason that as per 1979 Rules, the post of Tracer is to be filled up to 100% by way of direct recruitment in terms of Rule 5(1)(e) of",
the 1979 Rules and the method of direct recruitment has been provided in Rule 7 thereof. Undisputedly, the process as provided in the Rules was not",
followed. The post of Tracer, not being promotional post from the post of Peon, there is no merit in the claim of the petitioner.",
31. Another argument was raised while referring to two communications dated 28.06.1999 appointing Ms. Jhina Rani Mansingh and Sri Lalatendu,
Rath as Tracer on promotion, claiming to be from the post of Peon, on the basis of which the petitioner is claiming violation of Article 14, namely the",
discrimination. Suffice to add, this Court cannot put a stamp on the illegalities committed by the department while perpetuating the same. A litigant",
coming to the Court cannot claim negative discrimination seeking direction from the Court to the department to act in violation of the law or statutory,
Rules. It is a settled proposition of law that Article 14 does not envisage negative equality. Reference for the purpose can be made to a judgment of,
this Court in R. Muthukumar & others v. The Chairman and Managing Director TANGEDCO & others 2022 INSC 157 : 2022 SCC,
OnLine SC 151. Relevant para thereof is extracted below :,
“28. A principle, axiomatic in this country's constitutional lore is that there is no negative equality. In other words, if there has been a benefit or advantage",
conferred on one or a set of people, without legal basis or justification, that benefit cannot multiply, or be relied upon as a principle of parity or equality. In",
Basawaraj v. Special Land Acquisition Officer 2013 INSC 551 : (2013) 14 SCC 81, this court ruled that:",
“8. It is a settled legal proposition that Article 14 of the Constitution is not meant to perpetuate illegality or fraud, even by extending the wrong decisions",
made in other cases. The said provision does not envisage negative equality but has only a positive aspect. Thus, if some other similarly situated persons have",
been granted some relief/benefit inadvertently or by mistake, such an order does not confer any legal right on others to get the same relief as well. If a wrong is",
committed in an earlier case, it cannot be perpetuated.â€",
32. For the reasons mentioned above, we do not find merit in the present petition and the same is accordingly dismissed.",
33. Before parting with the order, we are constrained to observe that the case in hand is a glaring example of casualness on the part of the State",
Authorities while dealing with the litigation. The issue could be resolved at the very first stage when a representation was made by the petitioner,
seeking promotion to the post of Tracer way back in the year 1991. The chapter could have been closed merely while responding to the same while,
referring to the relevant statutory 1979 Rules. To some extent it was done but false hopes are created in the minds of employees if some other,
similarly situated are granted the benefit, which itself is contrary to the Rules. The letters continued flowing from the petitioner to the respondent, and",
from one department to another as a shuttlecock, as if there is no other constructive work to do. Even before the Tribunal, the petitioner had three",
rounds of litigation followed by one Writ Petition before the High Court by the State and thereafter this Court. At none of these stages, the relevant",
statutory 1979 Rules were referred to either in the counter or in the petition. Such conduct is not expected from the State which is the major litigant,
and the case in hand is an example of unnecessary generation of litigation by the State where the authorities need to circumspect and be more careful.,
34. This lackadaisical approach of the State was also noticed by this Court in Kusha Duruka v The State of Odisha 2024 INSC 46 : (2024) 4 SCC 432,
 where during pendency of the matter before this Court, a fresh bail application was filed and High Court even granted bail to the petitioner. The",
affidavit filed by the Principal Secretary, Law Department, Govt. of Odisha revealed that the State Counsel was not aware about the rejection of his",
first bail application as well as the filing of SLP. Noticing efforts being made to pollute the stream of administration of justice, this Court issued several",
instructions with a view to streamline the proceedings and avoid anomalies with reference to the bail applications.,
35. A copy of this order be sent to the Chief Secretary, State of Odisha for perusal and taking appropriate corrective steps.",
36. Pending application (if any) shall stand disposed of.,