Supreme Court of India
STATE OF ORISSA & ORS.versusSRI JAGABANDHU PANDA
- Citation
- 2013 INSC 127
- Decided
- 27 February 2013
- Disposal
- Disposed off
- Bench
- S S NIJJAR
Holding
The Ore Dressing Engineer post was an ex‑cadre post from its creation, and the appointment was made outside the mining engineers cadre; therefore the Tribunal and High Court orders were set aside.
Summary
Jagabandhu Panda was appointed as Ore Dressing Engineer in 1984. He claimed the post was a cadre position and sought promotion, filing representations soon after joining. The government treated the post as ex‑cadre, later upgrading it temporarily but refusing further promotion. The State appealed the Administrative Tribunal’s order, which had treated him on par with other Class‑I engineers, and the High Court upheld the Tribunal, holding the post became ex‑cadre only in 2005. The Supreme Court examined the original 1981 letter that designated the post as ex‑cadre at creation, noted the respondent’s early representations, and held that the post was ex‑cadre from inception and the appointment was made outside the mining engineers cadre. Accordingly, the Court set aside both the Tribunal and High Court orders. The appeal was allowed.
Issues considered
- Whether the post of Ore Dressing Engineer held by the respondent is an ex‑cadre post.
- Whether an appointment made outside an existing cadre can be treated as a cadre appointment.
- Whether the Tribunal and High Court had jurisdiction to order encadrement of the post.
Subjects
ex‑cadre postcadreservice lawpromotionadministrative tribunalappointment outside cadretemporary poststate servicejudicial review
Judgment
[2013] 4 S.C.R. 1080
A STATE OF ORISSA & ORS.
v.
SRI JAGABANDHU PANDA
(Civil Appeal No. 1967 of 2013)
FEBRUARY 27, 2013
B
[SURINDER SINGH NIJJAR AND M.Y. EQBAL, JJ.]
Service Law:
c Ex-cadre post - Created on the basis of a proposal under
a Scheme - Appointment on - Plea of appointee to make it
en-cadre - Held: The post was treated as ex-cadre from the
very inception and it was well within the knowledge of the
appointee - An appointment outside the cadre cannot be
considered to be made to temporary post borne on the cadre.
0
The respondent joined the post of 'Ore Dressing
Engineer, in the year 1984. Immediately after joining, he
made several representations stating that he came to
know that the post was ex-cadre, only after joining the
E service and requested for upgrading the same and to
open up promotional avenues. On rejection of the
representations, he approached Administrative Tribunal.
The Tribunal noticed that though the advertisement or
appointment letter did not mention that the post was ex-
F cadre, but the notings in the Secretariat files indicated
that the respondent was holder of ex-cadre post. As
regards the promotional prospects of the respondent, the
Tribunal held that he should be treated at par with other
Class-I Engineers of 1984 Batch. Writ Petition by the
G State against the order of the Tribunal was dismissed on
the ground that the post was described as an ex-cadre
post only in the year 2005 in office-note. Hence the
present appeals by the State.
H 1080
STATE OF ORISSA & ORS. v. SRI JAGABANDHU 1081
PANDA
Allowing the appeals, the Court A
HELD: 1. The finding arrived at by the High Court that
the post of Ore Engineer was for the first time treated as
ex-cadre post in the year 2005, is absolutely perverse and
erroneous. Immediately after joining the post of Ore- B
dresser, in the year 1984, the respondent started filing
representations. It was well within the knowledge of the
respondent that the post which he was holding was an
ex-cadre post and, therefore, by series of representations
he requested the Department to upgrade the said post C
and to open up the promotional avenues. [Para 22) [1095-
C-E]
2. The post of Ore-dressing Engineer was created on
the basis of proposal under a Scheme, and appointment
was made outside the existing cadre of mining engineers. D
It was so understood by the respondent that from the
inception that he was holding an ex-cadre post, there had
been a special reason for recruiting an Ore-dressing
engineer for a specific purpose temporarily outside the
cadre of mining engineer. A cadre may consist of E
permanent as well as temporary post and there may be
permanent vacancies in permanent as well as temporary
post, but it does not follow that appointment made
outside the very service and outside the cadre must be
considered to be made to temporary post borne on the F
cadre merely because, the post was likely to continue
indefinitely. [Para 23) [1095-E-F, G-H; 1096-A-B]
T.N. Administrative Service Officers Association and Anr.
vs. Union of India and Ors. (2000) 5 sec 728 - relied on.
G
Case Law Reference:
c2000) 5 sec 128 relied on Para 24
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
1967 of 2013. H
1082 SUPREME COURT REPORTS [2013] 4 S.C.R.
A From the Judgment & Order dated 08.10.2010 of the High
Court of Orissa at Cuttack in W.P. (C) No. 7963 of 2010.
WITH
C.A. Nos. 1968 of 2013.
B L. Nageswara Rao, Jana Kalyan Das, P.S. Patwalia,
Shibashish Misra, Mayank Pandey, Swetaketu Mishra,
Sandeep Devashish Das, D.M. Sharma, Parmanand Gaur,
Saurabh Agrawal, Samir Ali Khan, Bhakti Vardhan Singh, S.
Nayak, B.R. Barik, R.C. Kohli, Anupam Lal Das for the
C appearing parties.
The Judgment of the Court was delivered by
M.Y. EQBAL, J.
D C.A.No.1967 of 2013 arising out of SLP(Civil) No.20635/
2011
1. Leave granted.
2. This appeal at the instance of State of Orissa is
E directed against the judgment and order dated 08.10.2010,
whereby the Division Bench of the Orissa High Court refused
to interfere with the order passed by the Orissa Administrative
Tribunal in O.A. No.97/2009.
F 3. The facts of the case in brief are as under:
4. The respondent was appointed pursuant to the
advertisement dated 5.4.1984 on the post of Ore Dressing
Engineer in Class-1 Junior Grade of the State Services in the
G pay scale of Rs.850-1450. The respondent in response to the
appointment letter dated 2.11.1984 joined in the said service
on 14.11.1984. Between 18.6.1996 and 19.6.2001 he was
deployed in Steel and Mines Department on certain terms and
conditions, but he was to draw the salary from the Directorate
of Geology. He was again deployed as officer on Special Duty
H
STATE OF ORISSA & ORS. v. SRI JAGABANDHU 1083
PANDA [M.Y. EQBAL, J.]
in Steel and Mines Department between 10.9.2003 to 8.9.2006 A
on certain terms and conditions and he was also drawing the
salary and other service benefits from the Directorate of
Geology. The post of Ore Dressing Engineer in the office of
the Directorate of Geology was temporarily upgraded on
1.9.2008 as OSD-cum-Deputy Director in the scale of Rs.9350- B
14550/- and he was allowed to continue in the upgraded post.
However, this post was termed as ex-cadre and the post of
OSD-cum-Deputy Director was to lapse on his retirement. The
respondent filed Original Application before the Tribunal with
a prayer that he should be re-designated as OSC-cum-Deputy c
Director (Steel) instead of OSD-cum-Deputy Director (ex-
cadre). All the representations in this regard were rejected by
the department for which the opposite party had to approach
the Tribunal.
5. The said application of the respondent before the D
Tribunal was resisted by the State on the ground that the post
of Ore Dressing Engineer advertised by OPSC was an ex-
cadre post and that the respondent continued in ex-cadre post
through out. It was admitted by the respondent that the services
of the opposite party had been placed with Steel and Mines E
Department, but he was reverted back to the Directorate of
Geology since his services in the Department of Steel and
Mines was not found to be useful. There being no scope of
promotion in the ex-cadre post held by the respondent, the
government decided to upgrade the same as Ore Dressing F
Engineer (ex-cadre) in the Directorate of Geology and re-
designated the same as OSD-cum-Deputy Director (ex-cadre).
The respondent having availed the benefits of the said
upgraded post, requested jor re-designating the said post as
OSD-cum-Deputy Director (Steel). G
6. Mr.L.Nageshwar Rao, learned senior Advocate
appearing for the petitioner/Sate referring to several documents
and rules submitted that the post of Ore Dressing Engineer in
H
1084 SUPREME COURT REPORTS [2013] 4 S.C.R.
A Class-1 Junior Grade is not available in the Directorate of
Geology. The cadre rules do not provide such a post and,
therefore, from the beginning the said post was treated as ex-
cadre post. According to the learned counsel, the respondent
was appointed against the said ex-cadre post and continued
B as such till his services were placed in the Department of Steel
and Mines for certain period. After being reverted to the
Directorate of Geology, he again continued in the said ex-cadre
post. However since there being no scope of promotion, the
Government decided to upgrade the post held by the
c respondent and re-designated it as OSD-cum-Deputy Director
(ex-cadre) and the respondent accepted the same and has
been continuing in the said post. It was further submitted by the
learned Additional Solicitor General that the respondent having
worked against an ex-cadre post all through, he cannot claim
D that the said post be included in the cadre.
7. Per contra, Mr. Patwalia, the senior Advocate for the
respondent at the very outset submitted that the case of the
State that the post of respondent is an ex-cadre post is
baseless, misleading and malafide which is evident from the
E documentary evidence including the letter of appointment.
According to the learned counsel when the post of Ore
Dressing Engineer was sanctioned in the year 1981 it was
sanctioned as an ex-cadre post. Accordingly he submitted that
the ex-cadre post can be created to meet the urgent need of
F department for a shorter period and such post cannot be
allowed to be continued on ex-cadre basis for indefinite period.
It was contended that the respondent has been working as OSD
(Ore Dressing Engineer) for the last 26 years itself shows that
the post is not an ex-cadre post but a cadre post. It was, further,
G submitted that the different pay-scales between the cadre post
and ex-cadre post cannot be the sole criteria for deciding the
nature of particular post as an ex-cadre post. The appellant
Stale has been wrongly treating the post of the respondent as
an ex-cadre post only because of the different pay scales. The
H
STATE OF ORISSA & ORS. v. SRI JAGABANDHU 1085
PANDA [M.Y. EQBAL, J.)
action of the appellant State i.i treating the post of the A
respondent as an ex-cadre post is wholly illegal and malafide.
8. We have heard the learned counsels for the parties at
length and considered the facts of the case and the documents
in support of their respective cases. B
9. The sole question that falls for consideration is as to
whether the post held by the respondent is an ex-cadre post.
In order to find out the correct factual position, we have to
examine the facts of the case in detail.
c
10. In the year 1981, a proposal was made by the
Commissioner-cum- Secretary of Mining and Geology
Department for creation of post of Ore Dressing Engineer in
Class-1 rank in the pay scale of Rs.850-1450/- for the scheme
"Applied Mineral Research" during 1981-82. In the said D
proposal it was mentioned that the assessment of mineral
resources of the State constitute a most important objective of
the Directorate of Mines. Apart from geological investigations
in the field, it is necessary to determine the grades of different
ores and minerals encountered during the course of such E
investigations. For such purposes certain facilities were
developed in the research laboratory of the Directorate of
Bhubaneswar. In order to take up the investigation with regard
to study of the possibility characteristics of China Clay etc. it
was proposed to create a post of Ore Dressing Engineer. The
F
proposal was materialized and creation of one post of Ore
Dressing Engineer temporarily in the pay scale of Rs.850-
1450/- was sanctioned. Accordingly, the Directorate of Mines,
Govt. of Orissa vide communication dated 26th September
1981 informed the Mines and Geological Department,
Bhubaneswar about the creation of post. In the said letter it was G
mentioned that the post of Ore Dressing Engineer should be
treated as an ex-cadre post. For better appreciation the letter
dated 26th September 1981 is reproduced hereinbelow:
H
1086 SUPREME COURT REPORTS [2013] 4 S.C.R.
A "Directorate of Mines
ORI SSA
No.25217/Mines,Bhubaneswar: 26th Sept.1981
From
B B.K.Mohanty
Director of Mines.
To
The A.F.A.-cum-Under Secretary to Govt.
c Mining & Geology Department,
Bhubaneswar
Sub: Filling up the post of Ore Dressing Engineer
Sir,
D
In inviting the reference to your letter No.10780 MG
dated the 26th Sept.1981, I am to say that the post of Ore
Dressing Engineer should be treated as an ex-cadre post.
The job chart of the post is as follows:
E
''The Ore Dressing Engineer will be required to working
the Research Laboratory of the Directorate of Mines at
Bhubaneswar. He may also be required to original and
take the Ore dressing/beneficiation tests in the field as
may be necessary. He will be responsible for maintenance
F
and operation of the ore dressing equipment and
instruments. He will conduct tests under the supervision of
the Minerals Technologist and Joint Director of Projects,
as may be assigned and report the results of such tests
from time to time, as may be required by the Director of
G
Mines.
Yours faithfully
Sd/-lllegible
Directorate of Mines"
H
STATE OF ORISSA & ORS. v. SRI JAGABANDHU 1087
PANDA [M.Y. EQBAL, J.]
11. The post was accordingly advertised by the Orissa A
Public Service Commission on 5th April 1984. By the said
advertisement, applications in the prescribed form were invited
for one post of Ore Dressing Engineer, Class-1 Junior Grade
of State Service in the pay scale of Rs.850-1450/-. In the said
advertisement, it was mentioned that the post is temporary but B
likely to be made permanent in due course. The respondent on
being selected was issued an appointment letter and pursuant
to the said appointment letter the respondent joined in the said
post. In the year 1985, the Government sanctioned three
advance increments to the respondent in the pay scale of c
Rs.850-1450/- as per the terms and conditions of the
advertisement.
12. Immediately after joining the said post the respondent
started filing representation for making his ex-cadre post en-
cadre to ''The Orissa Mining and Geology Service Rules" which D
is now an ex-cadre post. The said representations dated
28.6.1985 and 5.9.1985 followed by another representations
dated 7 .3.1986 and 16.4.1986 to the Secretary to Government
of Orissa, Mining and Geology Department, the respondent
stated that only after joining he came to know that the Ore E
Dressing Engineer was an ex-cadre post. He claimed that post
of Ore Dressing Engineer is en-cadre post and the next
promotion was to Joint Manager. By another representation
submitted by the respondent on 19.9.90 wherein respondent
alleged that Ore Dressing Engineer post is being treated as F
an ex-cadre post.
13. By another representation dated 11.2.93 to the
Commissioner-cum-Secretary to the Government of Orissa,
Steel & Mines Department, the respondent categorically stated G
that he was working as Ore Dressing Engineer in the
Directorate of Mining and Geology in an ex-cadre post having
no prospect of promotion in this Directorate. The said letter
needs to be re-produced hereinbelow:
H'
1088 SUPREME COURT REPORTS [2013) 4 S.C.R.
A "From:
Jagbandhu Panda, B.Sc (Gng) Met)
Ore Dressing Engineer,
Directorate of Mining and Geology,
Orissa Bhubaneswar.
B
To
The Commissioner-cum-Secretary to Govt.
Steel and Mines Department, Orissa,
c Bhuvaneswar.
(Through Proper channel)
Sub:- Creation of the post of Joint Director, Steel by way
of up-gradation of the existing post of Ore Dressing
Engineer under Steel and Mines Department.
D
Sir,
Respectfully, I beg to state that following facts for
your kind considerations. That the proposals for the Steel
E Plants for our State is under active considerations of Govt.
In order to coordinate and synthesize all the activities for
this, I cam to learn that a cell has been constituted in the
Department of Steel and Mines and a number of non-
technical personnel have been inducted in to this cell. In
view of Technical consultancy of IPICOL and other
F
agencies, I fell that there is a need to avail services of a
Metallurgical Engineer in the above cell which is lacking
at present.
I am a Metallurgical Engineering Graduate, presently
G working as Ore Dressing Engineer in the Directorate of
Mining and Geology in an ex-cadre post having no prospect
of future promotion in this Directorate. I feel that my
experience and expertise in the field of extractive
metallurgy ( Iron & Steel) can be better utilized if a post
H Joint Director (Steel) can be created under this -
STATE OF ORISSA & ORS. v. SRI JAGABANDHU 1089
PANDA [M.Y. EQBAL, J.]
Department and I am given the opportunity to man this post A
to coordinate all the activities of the proposal Steel Plants
in the Directorate level. I urge upon you to consider the
above facts in the right earnest and provide me the
appropriate job opportunity as per the above proposal for
which I shall be ever obliged. B
Yours faithfully
Sd/- Illegible
11.02.1993
(J.B. Panda)" C
14. On the basis of representations filed by the respondent,
the Government decided to allow the respondent to work as
Officer on Special Duty in the Department of Steel & Mines
subject to the following conditions:
D
1. The tenure of Sri Panda as OSD in the Department
of Steel & Mines will be for a period of 6 months
from the date of his joining.
2. Sir Panda will draw his salary and other service
benefits as usual in the post of Ore Dressing E
Engineer from the Directorate of Mining and
Geology.
3. His further continuation as OSD will be reviewed on
the basis of his performance and needs of the F
Department.
15. By another communication dated 30.11.1993 issued
by the Department of Steel & Mines, Govt. of Orissa the
respondent was conferred Ex-Officio Secretariat status and G
was designated as Officer on Special Duty and Ex-Officio
Under Secretary to Government, Department of Steel & Mines.
However, it was mentioned in the said communication that the
ex-officio Under Secretary status was ceased with effect from
the date his term of appointment as OSD in the Secretariat is
H
1090 SUPREME COURT REPORTS [2013) 4 S.C.R.
A over. It appears that after the completion of tenure as OSD Ex-
Officio Under Secretary the respondent was reverted back to
his parent establishment i.e. Directorate of Geology with
immediate effect vide Office Order dated 8th September 2006.
16. After the aforesaid order of reversion was passed, the
8
respondent then filed a representation on 5.5.2007 requesting
for upgradation of the post to OSD & Ex-Officio Deputy
Secretary. The representation was considered by the
Government and vide communication dated 10.8.2007 the
C respondent was informed that his request for upgradation of
post Ore Dressing Engineer (Ex-cadre) could not be
considered for the present. This letter also worth to be quoted
herein-below:
"Department of Steel & Mines
D No.7107/S.M. Bhuvaneswar, the 17.08.2007
From:
E D.S. Jena, OAS
Under Secretary to Government
To
Sri Jagabandhu Panda,
F Ore Dressing Engineer
Directorate of Geology,
Orissa, Bhuvaneswar.
Sir,
G
I am directed to invite a reference to your
representation dated 05.05.2007, regarding upgradation
of your post to OSD & Ex-Office-Deputy Secretary and to
say that you joined Government service in the Ex-cadre
post of Ore Dressing Engineer (Jr. Class-I) on 14.11.1984
H
STATE OF ORISSA & ORS. v. SRI JAGABANDHU 1091
PANDA [M.Y EQBAL, J.)
in the erstwhile Directorate of Mining and Geology after A
being selected by the OPSC.
You were sanctioned 3 advance increments in the
scale of pay of Rs. 850-1450- at the time of joining the
post of Ore Dressing Engineer. Your present pay scale is
8
Rs. 8000-13,500/-. Your case is not same as the case of
other qualified Geologists and Mining Engineers, who
joined the State Government in Class-II posts. Mining
Engineers & Geologists appointed in Class-II posts have
to serve a long period to get promotion to the Junior Class- C
I rank. They do not get advance increments on
appointment or promotion.
You were deployed as OSD & Ex-Officio Under
Secretary to Government of Steel and Mines Department
from 1997 to 2001 and again from 2003 to 08.09.2006. D
As your continuance in the Department was felt to be of
no necessity you have been reverted to your parent post
of Ore Dressing Engineer (Ex-Cadre) in the Directorate
of Geology w.e.f. 08.09.2006 (A.N.).
E
The post of Ore Dressing Engineer (Ex.Cadre) was
originally created in the Directorate of Mining and Geology
with a definite purpose. As per the job chart, Ore Dressing
Engineer is requested to work in the Research Laboratory
and look after to organize and take up Ore Dressing
beneficiation test in the field as and when necessary under F
the direct supervision of Joint Director of Geology.
The proposal of upgradation of post of Ore Dressing
Engineer (Ex.Cadre) to the rank of OSD & Ex-Officio
Deputy Secretary or Deputy Director, Steel & Ex-Officio G
Deputy Secretary was examined. It was observed that after
upgradation, the original post of Ore Dressing Engineer
will stand abolished and the very purpose of creation of
the post will be defeated.
H
1092 SUPREME COURT REPORTS [2013] 4 S.C.R.
A Further neither there is any post of Deputy Secretary
belonging to Mining Cadre in the Orissa Secretariat nor
there is any post of Deputy Director. Ore Dressing in the
Directorate to consider your case for promotion to the
higher rank. There is no necessity now to upgrade the post
B of Ore Dressing Engineer (Ex.Cadre).
In view of above facts, your representations for
upgradation of the post of Ore Dressing Engineer
(Ex.Cadre) could not be considered at present.
c Yours faithfully,
Sd/ Illegible
10.08.2007
Under Secretary to Government"
D
17. However after about an year vide Notification dated
1.9.2008 issued by the Steel & Mines Department Govt. of
Orissa a post of Ore Dressing Engineer (Ex-Cadre) was
E temporarily upgraded and redesignated as OSD-cum-Deputy
Director (Ex-cadre) for a period of six months or till receipt of
recommendation of the Commissioner whichever earlier. The
Notification dated 1.9.2008 reads as under:
"Government of Orissa
F
Steel and Mines Department,
No.XII (DG)SM-65/2006/SM Bhuvaneswar,
NOTIFICATION
G The only post of Ore Dressing Engineer (Ex.Cadre) in the
office of the Directorate of Geology carrying the pay scale
of Rs. 8000-275-13,500/- is temporarily upgraded and re-
designed as OSD-cum-Deputy Director (Ex-cadre) in the
pay scale of Rs.9350-325-14550) from the date of issue
of this order. Sri J.B. Panda, at present holding the post
H
STATE OF ORISSA & ORS. v. SRI JAGABANDHU 1093
PANDA [M.Y. EQBAL, J.]
of Ore Dressing Engineer (Ex.Cadre) is allowed to A
continue in the upgraded post of OSD-cum-deputy Director
(ex-cadre) in the above pay scale for period of six month
or till receipt of recommendation of OPSC whichever is
earlier.
B
The post of OSD-cum-Deputy Director (ex-cadre)
shall be co-terminus with the retirement of Sri J.B. Panda
and thereafter the post of Ore Dressing Engineer
(Ex.Cadre) will be reviewed automatically in the Directorate
of Geology in the scale of pay of Rs. 8000-275-13500/-.
c
By order of Governor M. R. Pattanaik
Joint Secretary to Government Memo No.6269/dated
01.09.2008
D
Copy forwarded to the Directorate of Geology Orissa
Bhubaneswar/ person concerned for information and
necessary action.
Sd/- Illegible
Joint Secretary to Government E
Memo No ...... ./Dt.
Copy forwarded to the AG, Orissa/Spl, Secretary, OPSC,
Cuttack, Finance DepartmenUGA (SE) Department for
information and necessary action. F
Joint Secretary to Government"
18. After receipt of the Notification the respondent
submitted another representation claiming that he was to be
designated as Deputy Director (Steel) but instead of issuing F
Notification to that effect, it was wrongly notified that the post
was temporarily upgraded as OSD-cum-Deputy Director (Ex-
cadre).
19. The Government finally by communication dated 26- H
1094 SUPREME COURT REPORTS [2013] 4 S.C.R.
A 12-2008 informed the respondent that after careful
consideration of the earlier representations, the Notification was
issued upgrading his designation. The respondent was advised
to adhere to the order passed by the Government and stopped
making unnecessary correspondence with the Government.
B
20. From perusal of the order passed by the Tribunal, it
reveals that although the Tribunal noticed that neither in the
advertisement nor in the appointment letter it was mentioned
that the respondent was appointed to an ex-cadre post but from
C the notings produced from the Secretariat file, it does indicate
that the respondent was a holder of ex-cadre post. The Tribunal
further held that the prayer of the respondent to allow him to
work in Administrative Department as OSD-cum-Deputy
Director cannot be endorsed as to whether the services of a
particular official against a particular post is required by the
D Government. It is for the Government to determine. The Tribunal,
therefore, refused the prayer of the respondent for permitting
him to work in the Administrative Department as OSD-cum-
Deputy Director (Steel). However, as regards the promotional
prospect the Tribunal held as under :-
E
"As regards his promotional prospects it is clear
from the documents at Annexure 1 and 2 that the applicant
was termed as a hold of ex-cadre post only after his actual
appointment and no mention was made therein regarding
F his appointment against an ex-cadre post. We, therefore,
suggest that the Directorate of Geology may consider the
case of the applicant for career advancement vis-a-vis
other comparable Class-I Engineers in service appointed
in 1984 in the erstwhile Directorate of Mining an Geology
(and later the Directorate of Geology) on the same footing
G
as if he was appointed at par with other Engineers in 1984
and treating him as the junior most of that batch and
consider him for promotion from the date his junior was
so considered from time to time."
H 21. The aforesaid order of the Tribunal was challenged by
STATE OF ORISSA & ORS. v. SRI JAGABANDHU 1095
PANDA [M.Y. EQBAL, J.]
the appellant by filing a writ petili )n. The Division Bench A
dismissed the Writ Petition mainly on the ground that the post
against which the respondent was appqinted was described
as an ex-cadre post only in September, 2005 and there is no
office note prior to the said date indicating that the post of Ore-
dressing Engineer has ever been treated as an ex-cadre post B
prior to 2005.
22. After giving our anxious consideration in the matter
prima facie, we are of the view that the finding arrived at by
the High Court that the post of Ore Engineer was for the first
lime treated as ex-cadre post in the year 2005, is absolutely C
perverse and erroneous. As noticed above, immediately after
joining the post of Ore-dresser, the respondent started filing
representations viz., 28.06.1985, 05.09.1985, 07.03.1986 and
16.04.1986. The respondent stated that only after joining he
came to know that the post he was holding was an ex-cadre D
post. It is well within the knowledge of the respondent that the
post which he was holding was an ex-cadre post and, therefore,
by series of representations he requested the Department to
upgrade the said post and to open up the promotional avenues.
E
23. It is not in dispute that the post of Ore-dressing
Engineer was created on the basis of proposal initiated from
the Commissioner level under a Scheme "Applied Mineral
Research 1981-82". In the said proposal ii was mentioned that
the assessment of the mineral resources of the State F
constituted a most important objective of the Directorate of
Mines. In order to take up the investigation with regard to the
study of minerals ii was proposed to create a post of Ore-
. dressing Engineer under a scheme. It is, therefore, clear that
the post of Ore-dressing Engineer was created and
appointment was made outside the existing cadre of mining G
engineers. It was so understood by the respondent that from
the inception that he was holding an ex-cadre post there had
been a special reason for recruiting an Ore-dressing engineer
for a specific purpose temporarily outside the ex-cadre of
mining engineer. II is well settled that a cadre may consist of H
1096 SUPREME COURT REPORTS [2013] 4 S.C.R.
A permanent as well as temporary post and there may be
permanent vacancies in permanent as well as temporary post,
but it does not follow that appointment made outside the very
service and outside the cadre must be considered to be made
to temporary post borne on the cadre merely because, the post
B was likely to continue indefinitely.
24. In T.N. Administrative SeNice Officers Association
and Another vs. Union of India and Others (2000) 5 SCC 728
this Court was considering a case where the Members of the
State Administrative Services made a claim that a number of
C ex-cadre or temporary posts which were temporary in nature
and some of them were created under the State Enactments
which required their manning by IAS Officers. It was contended
that on account of failure of the Central Government to timely
review the cadre strength as statutorily required, the promotion
D of the promotees got inordinately delayed and they lost their
seniority in the promoted cadre. The rule does not confer any
right on the petitioners to seek a Mandamus for encadring
those ex-cadre/temporary posts. Any such Mandamus would
run counter to the statutory provisions governing the creation
E of cadre and fixation of cadre strength which was held that
asking the State or the Central Government for encadrement
of the ex-cadre/temporary posts will amount to asking~ the
Government to create more posts.
F 25. In the background of the law well settled by this Court,
we are of the definite opinion that the direction issued by the
Tribunal and the order of the High Court affirming the order of
the Tribunal is wholly without jurisdiction. The impugned orders
passed by the Tribunal as also by the High Court are, therefore,
G liable to be set aside.
26. For the aforesaid reasons, we allow this appeal and
set aside the orders passed by the State Administrative
Tribunal in O.A. No.97 of 2009 and the impugned order passed
by the High Court.
H
STATE OF ORISSA & ORS. v. SRI JAGABANDHU 1097
PANDA [M.Y. EQBAL, J.]
C.A. No.1968 of 2013 arising out of SLP(Civill No.8676/ A
2013
27. Leave granted.
28. This Civil Appeal is disposed of in terms of judgment
passed in Civil Appeal No. 1967 of 2013 arising out of 8
SLP{Civil) No.20635 of 2011.
K.K.T. Appeals disposed of.
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