Holding

A post that is statutorily designated for 100% direct recruitment cannot be filled by promotion, and the petitioner is therefore ineligible for promotion to the Tracer post.

Summary

The petitioner, a peon employed by the State of Odisha since 1978, sought promotion to the post of Tracer, claiming she met the qualifications and that denial violated Article 14. The State argued that the Tracer post is a non‑promotional post to be filled 100% by direct recruitment as per the Sub‑ordinate Architectural Service Rules, 1979, and that the required public advertisement and competitive test were not conducted. The Tribunal and the High Court had previously entertained the petition but failed to apply the statutory rules, leading to multiple rounds of litigation. The Supreme Court examined the relevant rules, noting that Rule 5(1)(e) mandates direct recruitment for all Tracer posts and that the department’s circulars did not satisfy the statutory procedure. It held that the petitioner was ineligible for promotion because the post cannot be filled by promotion, and that the State could not be compelled to violate the rules. Consequently, the petition was dismissed.

Issues considered

Whether an employee can claim promotion to a post that is statutorily required to be filled solely by direct recruitment.
Whether a vacancy meant for direct recruitment can be filled by an internal circular without public advertisement as prescribed by the rules.
Whether denial of promotion in such circumstances violates Article 14 of the Constitution.

Legislation cited

Orissa Subordinate Architectural Service Rules, 1979s. Rule 5(1)(e), s. Rule 5(3)(d), s. Rule 7
Sub-ordinate Architectural Service Rules, 1979s. Rule 5(1)(e), s. Rule 5(3)(d), s. Rule 7

Headnote

Issue for Consideration 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; whether a vacancy meant for direct recruitment can be filled a circular in the establishment and not by issuing an advertisement calling application from the eligible candidates from public at large. Headnotes† Sub-ordinate Architectural Service Rules, 1979 – Claim of petitioner for the post of Tracer on promotion basis – Petitioner

Subjects

PromotionDirect recruitmentArticle 14Negative equalityDiscriminatory actionSubordinate Architectural Service RulesPublic advertisementState authority casualness

Judgment

[2025] 1 S.C.R. 834 : 2025 INSC 87

Jyostnamayee Mishra
v.
The State of Odisha and Ors.
(Special Leave Petition (Civil) No. 13984 of 2023)
20 January 2025
[J.K. Maheshwari and Rajesh Bindal,* JJ.]

Issue for Consideration
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; 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.

Headnotes†
Sub-ordinate Architectural Service Rules, 1979 – Claim of
petitioner for the post of Tracer on promotion basis – Petitioner
herein was working as a peon with respondent-State –
Petitioner disappointed with the various rounds of the litigation
before the Tribunal followed by writ petition before the High
Court – Petitioner alleged the discriminatory action of the
respondent authorities with regard to her promotion to the post
of Tracer as two persons were promoted by communications
dated 28.06.1999 from the post of peon to Tracer – Petitioner
is claiming violation of Article 14 of the Constitution:
Held: The claim of the petitioner has been rejected on the
ground that she is not eligible for the post of Tracer – 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 – As
far as violation of Article 14 and discriminatory action is concerned,
this Court cannot put a stamp on the illegalities committed by the
department while perpetuating the same – A litigant coming to

* Author
[2025] 1 S.C.R. 835

Jyostnamayee Mishra v. The State of Odisha and Ors.

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 – Thus, there is no merit in
the petition – In the case in hand there was casualness on the
part of the State Authorities while dealing with the litigation – 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. [Paras 30, 31, 33]

Sub-ordinate Architectural Service Rules, 1979 – Rules 5, 6, 7 –
Post of Tracer – Category to be filled by direct recruitment –
Importance of public advertisement – Whether in the instant
case, the procedure prescribed in Rule 7 was followed:
Held: From a perusal of the Rules, it is evident that the post of Tracer
in all three categories is to be filled up by direct recruitment only,
after following the procedure as prescribed – It is not in dispute that
the procedure as prescribed in Rule 7 of the 1979 Rules has not
been followed by issuing advertisement and inviting application for
the post of Tracer – All what is said is that a Circular was issued in
the department inviting applications from the Peons for appointment
or promotion for the post of Tracer – The Supreme Court in Union
Public Service Commission v. Girish Jayanti Lal Vaghela and others,
has emphasised the importance of a public advertisement for inviting
applications to a post under the State. [Para 22]

Case Law Cited
Saumya Chaurasia v. Directorate of Enforcement [2023] 15 SCR
848 : (2024) 6 SCC 401; R. Muthukumar & Others v. The Chairman
and Managing Director TANGEDCO & Others, 2022 INSC 157 :
[2022] 1 SCR 577 : 2022 SCC OnLine SC 151 – relied on.
Union Public Service Commission v. Girish Jayanti Lal Vaghela
and Others [2006] 1 SCR 1006 : (2006) 2 SCC 482; Basawaraj v.
Special Land Acquisition Officer [2013] 8 SCR 227 : (2013) 14
SCC 81; Kusha Duruka v. The State of Odisha, 2024 INSC 46 :
[2024] 1 SCR 604 : (2024) 4 SCC 432 – referred to.
836 [2025] 1 S.C.R.

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List of Acts
Sub-ordinate Architectural Service Rules, 1979; Orissa Subordinate
Architectural Service Rules, 1979.

List of Keywords
Promotion; Direct recruitment; Peon; Tracer; Rule 5(1)(e) of the Sub-
ordinate Architectural Service Rules, 1979; Article 14 of Constitution;
Casualness on the part of the State Authorities; Discriminatory
action; Illegalities committed by the department; Negative equality.

Case Arising From
CIVIL APPELLATE JURISDICTION: Special Leave Petition (Civil)
No. 13984 of 2023
From the Judgment and Order dated 12.10.2022 of the High Court
of Orissa at Cuttack in WPC(OAC) No. 18463 of 2017

Appearances for Parties
Anand Swain, Siddhartha Chowdhury, Advs. for the Petitioner.
Shibashish Misra, Adv. for the Respondents.

Judgment / Order of the Supreme Court

Judgment

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
Court1 dated 12.10.2022 passed in Writ Petition2 filed by the State

1 High Court of Orissa at Cuttack
2 Writ Petition Civil (OAC) No.18463 of 2017
[2025] 1 S.C.R. 837

Jyostnamayee Mishra v. The State of Odisha and Ors.

where the order passed by the Tribunal3 dated 08.01.2016 in an
application4 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.

3 Orissa Administrative Tribunal, Bhubaneshwar
4 O.A. No.1696 of 2010
838 [2025] 1 S.C.R.

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8. Vide order dated 23.11.2010, passed in compliance to the order of
the Tribunal dated 27.09.2010 passed in the Application5 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 Department6.
9. In the third round of litigation, in the Application7 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 rules”) 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.

5 O.A. No.742 of 2009
6 Office Memorandum No.10954 dated 14.03.2001.
7 O.A. No.1696 of 2010
[2025] 1 S.C.R. 839

Jyostnamayee Mishra v. The State of Odisha and Ors.

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
840 [2025] 1 S.C.R.

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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 Training Institute. The
certificate sought to be produced by her pertains to “ ‘Tracer’ Training
Course” which is not the qualification prescribed in 1979 Rules. On
query by the Court as to whether the post is to be filled by way of
promotion, learned counsel for the State was not able to refer to
any Rule even though Rule 5(1)(e) of 1979 Rules clearly provides
that all posts of Tracers in Categories I, II and III shall be filled in
by direct recruitment. He submitted that for filling up the post on
direct recruitment, a notice was published in the department and
applications were invited and in pursuance of that, the application of
the petitioner and earlier by way of similar process, other candidates
were considered. The prayer is for dismissal of the petition.
16. Heard learned counsel for the parties and perused the paper book.
17. The case in hand is a glaring example of casualness on the part
of the parties to produce proper documents before the Court. The
statutory rules dealing with the post in question, are being termed as
letter of department. Even the High Court in the impugned judgment
has referred to the same as a letter of the Works Department, failing
to appreciate the contents thereof which are in the form of statutory
rules.
18. To put the record straight, we reproduce in the table below, the
relevant Rules as published in Official Gazette and the one placed
in the paper book before the High Court and this Court.

Counsel’s True Typed Copy Orissa Government Gazette
The 26th February, 1980 The 26th February, 1980
No.4775 E-IRA-1/80-E- In exercise No. 4773-E-IXR-1/80-E. – In
of the power conferred by the exercise of the powers conferred
provision to Article 309 of the by the proviso to Article 309 of the
Constitution of India. The governor Constitution of India, the Governor
of Orissa in pleased to make the of Orissa is pleased to make the
following rules for the regulation or following rules for the regulation of
recruitment. Promotion and other recruitment, promotion and other
condition of service or this or this is condition of service of the Orissa
a subordinate architectural service Subordinate Architectural Service,
namely: namely:-
[2025] 1 S.C.R. 841

Jyostnamayee Mishra v. The State of Odisha and Ors.

Method of Recruitment and Condition Method of recruitment and condition
of Service Rules, 1979. of service Rules, 1979.
1. Short title and commencement 1. Short title and commencement-(1)
These rules may be called the Orissa
(1) these rules may be called or a
Subordinate Architectural Service
Subordinate Architectural Service
Rules, 1979.
Rules, 1979.
2) They shall come into force at
2) They shall come into force at once.
once:
Provided that nothing in these rules
shall be constructed as affecting or Provided that nothing in these rules,
invalidating appointments already shall be construed as affecting or
made or orders already issued by invalidating appointments already
the competent authority & all such made or orders already issued by
appointments and orders shall be the competent authority and all
deemed or have been made or such appointments and orders shall
issued under these appropriate be deemed to have been made
provisions of these rules or issued under the appropriate
provisions of these rules.
2. Definition: 2. Definition- (a) ‘Department’ means
Government in Works Department.
a) Department means Govt. in
Works Department. (b) ‘Government’ means Government
of Orissa.
b) Government means Govt.
of Orissa (c) ‘Service’ means the Orissa
Architectural Service (Non-
c) S e r v i c e m e a n s O r i s s a
gazetted), consisting of Architectural
Architectural service (Non-
Draftsman, Head Draftsman,
Gazetted) consisting of
Assistant Architectural Draftsman
Architectural Draftsmen, Head
and Tracers under the Roads &
Draftsmen, Asst. Architectural
Buildings Wing.
Draftsman and Tracers under
the Roads and Buildings Wing (d) ‘State’ means State of Orissa.
d) State means State of Orissa
2. Position of the service- The 3. Composition of the service-The
service shall consist of following service shall consist of the following
categories of officials, namely. categories of officials, namely:-
Category-I: Architectural Category I – Architectural Draftsman,
Draftsmen, Asst. Architectural Assistant Architectural Draftsman,
D r a f t s m e n , Tr a c e r s i n t h e Tracers in the Architect Branch in the
Architect Branch in the office of office of the Chief Engineer, Roads
the Chief Engineer Roads and & Buildings.
Buildings.
842 [2025] 1 S.C.R.

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Category-II: Head Draftsmen, Category II – Head Draftsman,
Asst. Draftsmen & Tracers in the Assistant Draftsman and Tracers in
Drawing Branches in the office of the Drawing Branches in the office
the Chief Engineer, Roads and of the Chief Engineer, Roads &
Buildings. Buildings.
Category-III: Draftsmen and Category III – Draftsman and Tracers
Tracers in the office of the in the office of the Superintending
Superintending Engineers and Engineers and Executive Engineers
Executive Engineers under under Roads & Buildings Wing.
Roads and 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 officials already in
service in accordance with the Rule 6.
Direct Recruitment And Percentage 5. Direct recruitment and percentage
Of Recruitments. of recruitment (1)(a) 50 per cent
of the vacancies, shall be filled
1.
in by direct recruitment to the
a) 50 percent of the vacancies, shall posts of Architectural Draftsman
be filled in direct recruitment to under category I on a result of
the post of the Architectural competitive test to be conducted
Draftsman under Category I on by the appointing authority.
a result of competitive test to
(b) 50 percent of the vacancies shall
be conducted by the appointing
be filled in by direct recruitment
authority.
in the post of Assistant
b) 50 percent of the vacancies shall Architectural Draftsmen under
be filled in by direct recruitment Category I on a result of a
in the post of Assistant competitive test to be conducted
Architectural Draftsmen under by the appointing authority
Category I on a result of a
(c) 50 percent of the vacancies shall
competitive test to be conducted
be filled in by direct recruitment in
by the appointing authority
the post of Assistant Draftsmen
c) 50 percent of the vacancies shall under Category II.
be filled in by direct recruitment in
(d) 50 percent of the vacancies shall
the post of Assistant Draftsmen
be filled in by direct recruitment
under Category II.
in the post of Draftsmen under
d) 50 percent of the vacancies shall category III.
be filled in by direct recruitment
in the post of Draftsmen under (e) All posts of Treasures under
category III. categories I, II, and III shall be
filled in by direct recruitment.
[2025] 1 S.C.R. 843

Jyostnamayee Mishra v. The State of Odisha and Ors.

e) All posts of Treasures under (f) The competitive test for all these
categories I, II, and III shall be three categories of post shall
filled in by direct recruitment. be separated from each other
and shall be conducted by the
f) The competitive test for all these
appointing authorities.
three categories of post shall
be separated from each other (2) A candidate for direct recruitment
and shall be conducted by the to the service shall not ordinarily
appointing authorities 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 a candidate
belonging to Scheduled Castes
and Scheduled Tribes shall be 28
years and in case of candidate
already in Government service,
shall be 35 years. Preference
may be given to the ex-Military
personnel.
3) (a) A candidate for the post of
Architectural Draftsman under
category I shall be a pass in
Intermediate in Architecture
(recognised course) or two years
study in any recognised 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.
844 [2025] 1 S.C.R.

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(c) A candidate for the post of
Assistant Draftsman under
category II and Drafts- man,
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 6. (1) Promotion and percentage
to the service shall not ordinarily of promotion-(a) 50 per cent
be under twenty one years of of the posts of Architectural
age and over twenty five years Draftsman, shall be filled in
of age on the 1st August of the by promotion from among the
recruitment year of recruitment. suitable Assistant Architectural
Provided that the maximum Draftsman working in Architect
age limit in case of Candidate Branch.
belonging to scheduled castes
(b) All posts of Head Draftsman,
and Scheduled Tribes shall be
shall be filled in by promotion
28 years in case of candidate
from among the suitable Assistant
already in government service
Draftsman working in the Drawing
shall be 35 years. Preference
Branch.
may be given to the EX- Military
personnel.
[2025] 1 S.C.R. 845

Jyostnamayee Mishra v. The State of Odisha and Ors.

(c) 50 per cent of the posts of
Assistant 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. 7. Method of recruitment for direct
candidate- (1) Direct recruitment
a) A candidate for the post of
architectural draftsman under to the service shall be made by a
Category I shall be a pass in competitive test to be prescribed
Intermediate in Architecture and conducted by the Chief
(recognized or college of Engineer, Roads & Buildings in
Architecture with 3years consultation with Government
experience in an Architect’s Architect.
officeror passed in Draftsman
course in a Technical Institution
with fiveyears experience in an
Architect’s office.
846 [2025] 1 S.C.R.

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b) A candidate for the post of (2) The authority shall issue
Assistant Architectural advertisement in the local
Draftsman under Category I newspapers and Orissa - Gazette
shall have two years of study inviting application in a prescribed
in any recognized school or form along with other certificates
college of Architecture with including -certificates that they have
lyear office experience in an passed Oriya up to middle class
Architect’s office or passed standard and testimonials as may
the Draftsman course in any be considered necessary by the
authority.
Technical Institution with two
years of experience in any (3) On examination of the applications,
architect’s office. the authority shall call for the written
test as well as for a viva voce on the
c) A candidate for the post of
basis of which a list of successful
Assistant Draughtsman under candidates, arranged in order of
Category II and Draftsman merit, shall be prepared. The list
Category III shall be so prepared, shall be followed till
matriculated with a certification completion of one year.
of passedDraftsmanship from
an Industrial Training Institution. (4) The authority thereafter shall
issue appointments to the successful
d) Candidates for the posts of candidates against the vacant posts
Tracer under categories I, II to be filled in by direct recruitment.
and III shall be matriculates with
(5) At the time of joining, the
experience of 2 years in tracing
candidates shall produce the
blueprinting or a certificate of necessary certificates of physical
drops Draftsmanship from the fitness from the medical practitioner.
Industrial Training Institution.
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.
[2025] 1 S.C.R. 847

Jyostnamayee Mishra v. The State of Odisha and Ors.

4. A candidate must not have more 8. Seniority and confirmation- (a) The
than one spouse living and seniority of the candidates directly
further in case of lady candidate recruited shall be determined with
she must not have married a reference to their position in the list of
person who has a wife living. successful candidates and seniority
Provided that the state of the promotee officials shall also
government may if satisfied be determined with reference to their
that there are special reasons position in the list of final selection
for doing so exempt from the to be prepared by the Departmental
operation of this clause. 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 9. Other conditions of service-Other
promotion conditions of service such as leave,
pension, pay, allowance, provident
a) 50 percent of the post of
fund, etc., shall be regulated by rules
Architectural Draftsman shall
applicable to the members of other
be filled in by promotion from
subordinate non-Gazetted services
among the suitable Assistant
under State Government from time
Architectural Draftsman working
to time.
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) 50 percent of the posts of
Assistant Draughtsman shall
be filled in by promotion from the
Traces working in the Drawing
Branches.
848 [2025] 1 S.C.R.

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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 of
C. 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. T h e a u t h o r i t y s h a l l i s s u e
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.
[2025] 1 S.C.R. 849

Jyostnamayee Mishra v. The State of Odisha and Ors.

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
850 [2025] 1 S.C.R.

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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 -CUM-
SECT. TO GOVT. OF ORISSA.
///TRUE TYPED COPY///
[sic]

19. The so-called letter dated 26.02.1980 produced as Annexure P-2
contains 18 paragraphs while the statutory rules contain 9 rules in
total. Paragraph No.2 has been typed twice. After paragraph No.4,
[2025] 1 S.C.R. 851

Jyostnamayee Mishra v. The State of Odisha and Ors.

paragraph No.5 is missing. Paragraph nos.8 and 9 are also missing.
Paragraph No.2 (repeat) in the alleged letter is sought to be shown
as ‘position of the service’ which is not mentioned in the 1979 Rules
as such. Rule 4, which deals with the recruitment, has been skipped.
Rule 5 has been typed without giving the same paragraph numbers.
Besides this, there are other major discrepancies in the document
produced by the petitioner along with the petition. If we had relied
upon the same, it would certainly mislead the Court in reaching to
a right conclusion.
20. The argument raised by the learned counsel for the petitioner was
that in terms of paragraph 3(d) of the letter dated 26.02.1980, she
was eligible for promotion as she possesses the requisite qualification.
However, if the scheme of 1979 Rules is considered, Rule 3 thereof
provides for composition of service. The post of Tracer finds mention
in three categories namely category I, II and III. The bifurcation is
with reference to the office/department in which they have to work.
20.1 Rule 5 provides for direct recruitment and the percentage of
sources. Rule 5(1)(e) provides that all posts of Tracers under
categories I, II and III shall be filled in by direct recruitment.
Rule 5(3) provides for qualifications required for different
posts. Rule 5(3)(d) provides for the qualification for the post
of Tracer under all three categories.
20.2 Rule 6 provides for promotion and percentage of promotion.
As the post of Tracer in all the three categories is to be filled
up only by way of direct recruitment, the post in question does
not find mention in Rule 6.
21. The method of recruitment for the direct recruited candidates is
provided in Rule 7. Sub-rule 1 thereof provides that direct recruitment
to the service shall be made by a competitive test to be prescribed
and conducted by the Chief Engineer, Road and Building in
consultation with the Government Architect. Sub-rule 2 provides that
the authority shall issue an advertisement inviting applications in the
local newspapers and the Orissa Gazette. The eligible candidates
are then required to be called for a written test and viva voce on the
basis of which the merit list is required to be prepared. Thereafter,
the offer for appointment is to be made to the selected candidates.
22. From a perusal of the aforesaid Rules, it is evident that the post of
Tracer in all three categories is to be filled up by direct recruitment
852 [2025] 1 S.C.R.

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only, after following the procedure as prescribed. It is not in dispute
that the procedure as prescribed in Rule 7 of the 1979 Rules has
not been followed by issuing advertisement and inviting application
for the post of Tracer. All what is said is that a Circular was issued in
the department inviting applications from the Peons for appointment
or promotion for the post of Tracer. This Court in Union Public
Service Commission v. Girish Jayanti Lal Vaghela and others8,
has emphasised the importance of a public advertisement for inviting
applications to a post under the State:
“12. … The appointment to any post under the State can
only be made after a proper advertisement has been
made inviting applications from eligible candidates and
holding of selection by a body of experts or a specially
constituted committee whose members are fair and
impartial through a written examination or interview
or some other rational criteria for judging the inter
se merit of candidates who have applied in response
to the advertisement made. A regular appointment to a
post under the State or Union cannot be made without
issuing advertisement in the prescribed manner which
may in some cases include inviting applications from
the employment exchange where eligible candidates get
their names registered. Any regular appointment made
on a post under the State or Union without issuing
advertisement inviting applications from eligible
candidates and without holding a proper selection
where all eligible candidates get a fair chance to
compete would violate the guarantee enshrined under
Article 16 of the Constitution. (See B.S. Minhas v. Indian
Statistical Institute [(1983) 4 SCC 582 : 1984 SCC (L&S)
26 : AIR 1984 SC 363].)”
23. Now coming to various documents placed on record by the petitioner,
at Annexure P-3 is a letter addressed to the Chief Engineer, Public
Health seeking appointment to the post of Tracer. It was mentioned
therein that she is already working as a Peon for about 09 years and
has come to know that some post of Tracer is lying vacant for which

8 2006 INSC 58 : (2006) 2 SCC 482
[2025] 1 S.C.R. 853

Jyostnamayee Mishra v. The State of Odisha and Ors.

she is eligible. No date as such is mentioned. The same request
was repeated in a letter, at Annexure P-4, to the Superintendent
Engineer, Public Health Circle, Bhubaneshwar. It is worth noting
that a Letter No.189 dated 03.08.1981 of the Deputy Minister of
H & T. W Department was enclosed therewith. Copy of the letter
dated 24.01.1990 (Annexure P-5) from Executive Engineer, Puri
Public Health Division addressed to Superintending Engineer, P.H.
Circle has been annexed by which the application of the petitioner
was forwarded for consideration. At Annexure P-6 is a letter dated
02.05.1990 from the Petitioner to the Minister of Public Health
Department, Bhubaneshwar requesting appointment against the
post of Tracer as some posts are lying vacant. A letter dated
05.11.1990 from Executive Engineer, Puri Public Health Division
to Superintending Engineer, P.H. Circle forwarding the application
of the petitioner is annexed as Annexure P-7. It is followed by a
letter written by petitioner dated 07.11.1990 to the Chief Minister,
Orissa (Annexure P-8). Immediately thereafter, a letter for the same
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
854 [2025] 1 S.C.R.

Supreme Court Reports

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.1126 (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.,
[2025] 1 S.C.R. 855

Jyostnamayee Mishra v. The State of Odisha and Ors.

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 Enforcement9, 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

9 2023 INSC 1073 : (2024) 6 SCC 401
856 [2025] 1 S.C.R.

Supreme Court Reports

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.”
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
[2025] 1 S.C.R. 857

Jyostnamayee Mishra v. The State of Odisha and Ors.

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 & others10. 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 Officer11, 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.”
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

10 2022 INSC 157 : 2022 SCC OnLine SC 151
11 2013 INSC 551 : (2013) 14 SCC 81
858 [2025] 1 S.C.R.

Supreme Court Reports

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 Odisha12 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.

Result of the case: Petition dismissed.

†
Headnotes prepared by: Ankit Gyan

12 2024 INSC 46 : (2024) 4 SCC 432