Case: State Of Orissa Vs. Durga Charan Das

made from among the section heads of the department concerned, the selection under the relevant Orissa Rule is made from a larger class of public servants indicated therein. We are not satisfied that this contention is well-founded. In the present proceedings, besides quoting the relevant rules in the petition, the respondent has led no further evidence to show what exactly is meant by the section heads of the department concerned mentioned in rule 2(1) of the Bihar Rules; and in the absence of any material, it would be difficult for us to accept Sri Andleys argument that the conditions for promotion prescribed by rule 2(1) of the Bihar Rules are substantially or radically different from the conditions prescribed by the relevant Orissa Rules, and thereby caused prejudice to the respondent within the meaning of rule 6 of the Protection Rules.Sri Andley also suggested that under the relevant Bihar Rule, promotion would go entirely by seniority, whereas under the Orissa Rule, it is on considerations of seniority coupled with merit. We do not think Sri Andley is right in assuming that selection under rule 2(1) of the Bihar Rules could have been intended to be made only by reference to seniority. The very concept of selection involves the consideration of seniority coupled with merit, which is generally described as the seniority-cum-merit. Besides, that aspect of the matter does not appear to have been argued before the High Court and in the absence of any material of the point and in the absence of any decision by the High Court on it, we cannot entertain this contention. 12. We may incidentally point out though in his petition, the respondent has made some vague allegations suggesting that the appellant did not deliberately appoint him in permanent vacancy of the Registrars post, he has produced no satisfactory evidence to support the said plea. On the other hand, it appears that in 1954, when the case of the respondent was examined by the Public Service Commission, it made a definite recommendation that he was fit or the post of Registrar for stopgap arrangements only, and it specifically added that he should not be given preference over those whose positions are higher up in the list even for vacancies exceeding a period of four months. This recommendations clearly indicates that the character roll of the respondent was not as satisfactory as it should have been; and so the argument that his appointment to the post of Registrar and confirmation in it were unduly delayed, loses all significance. 13. Sri Andley also attempted to argue that the decision of the High Court could be justified because, in law, the treatment meted out to the respondent can be properly characterized as discriminatory. In support of this plea, Sri Andley referred us to the case of Sri Beuria. It appears that Sri Beuria who was also transferred from Bihar to Orissa as a head assistant, was held entitled to get the pay of Registrar from 1 December, 1948, and this order which was passed on 12 October, 1960 was given retrospective effect from 1 December, 1948. It does appear that this order was passed on the basis that Sri Beuria was entitled to the salary of a Registrar, because Sri Prasad who was junior to him in Bihar was promoted to the rank of Registrar on 1 December, 1948. We do not see how this single case can be pressed into service by Sri Andley in support of his argument that there has been illegal discrimination against the respondent. On the view we have taken about the scope and effect of rule 6 of the Protection Rules, what the appellant has done in regard to Sri Beuria must prima facie, be held to be outside the rule, but the fact that in one case the appellant might have misconstrued the scope and effect of rule 6 of the Protection Rule, would not justify a claim by the respondent that the rule should be similarly misconstrued in all cases thereafter. Whether or not the respondent is entitled to claim his pension on the footing that he should be deemed to have been promoted and confirmed as Registrar on 23 August, 1956 must be determined in the light of what we regard to be the true scope and effect of rule 6 of the Protection Rules. What the appellant did in Sri Beurias case has no relevance in that behalf.Besides, if the respondent was serious about his plea about discrimination, he should have adduced more satisfactory evidence in support of such a plea. No evidence has been led in the present proceedings and no other case like the case of Sri Beuria has been cited. If the respondents plea of discrimination was accepted on the strength of the single case of Sri Beuria; it would follow that because the appellant placed a misconstruction on the relevant rule, it is bond to give effect to the said misconstruction for all times; that, plainly, cannot be said to be sound. 14. When we heard this appeal, we enquired from Sri Bindra whether the appellant was justified in pressing the present appeal against a single public servant like the respondent, particularly in view of the fact that it had treated Sri Beurias case on the basis of the interpretation of rule 6 of the Protection Rules on which the respondent relies. We were told that the appellant was anxious to have a decision from this Court on this point, because the present case would serve as test case and may be relied upon as a precedent by several public servants in Orissa who belong to the category of the respondent. In fact, in granting the certificate, the High Court has observed that the question raised is undoubtedly of public importance, because it will affect many other Government servants of the old Province of Bihar and Orissa who were permanently transferred to Orissa when that province was separated from Bihar on 1 April, 1936. 15.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]It is well-known that promotion to a selection post is not a matter of right which can be claimed merely by seniority. Normally, in considering the question of a public servants claim for promotion to a selection post, his seniority and his merits have to be considered; and so, it seems to us very difficult to accept the view taken by the High Court that in rule 6 of the Protection Rules, a guarantee can be inferred in regard to promotion to a selection post. What the rule guarantees is that the public servants who were transferred to Orissa will not suffer in regard to their pay, allowances, leave and pension; and these respective conditions do not seem to include a claim for promotion to a higher selection post; and indeed, it seems very unlikely that any protection could ever have been reasonably intended to be given in regard to promotion to a selection post.It is true that in, 1939, a question arose whether the prospects of promotion of transferred officers were protected by the Protection Rules, and the Joint Public Service Commission for Bihar, Orissa and the Central Provinces, which was functioning in 1939, took the view that the said rules must be interpreted to require that an officer transferred from Bihar and Orissa to Orissa shall have prospects of promotion as good as he would have had in Bihar and Orissa, and when promoted shall draw pay not less than that which he would have drawn if so promoted in Bihar and OrissaIn our opinion, there can be no doubt that the interpretation placed by the Joint Public Service Commission on the Protection Rules, or the opinion expressed by the Governor of Orissa, though perhaps relevant, cannot have a material bearing on the construction of the rule in question when the matter reaches the Court. It is for the Court to consider the rule fairly, taking into account the spirit underlying the rule and the object intended to be achieved by it. Even the High Court has observed that"though, ordinarily, the right of promotion and confirmation in particular posts may be not be said to have been expressly protected by the Protection Rules, nevertheless, where these have a direct bearing either on the pay or the pension of a transferred officer, the protection must be deemed to cover these aspects also, having regard to the letter and spirit of the Protection Rules."This recommendations clearly indicates that the character roll of the respondent was not as satisfactory as it should have been; and so the argument that his appointment to the post of Registrar and confirmation in it were unduly delayed, loses all significanceNo evidence has been led in the present proceedings and no other case like the case of Sri Beuria has been cited. If the respondents plea of discrimination was accepted on the strength of the single case of Sri Beuria; it would follow that because the appellant placed a misconstruction on the relevant rule, it is bond to give effect to the said misconstruction for all times; that, plainly, cannot be said to be soundWhen we heard this appeal, we enquired from Sri Bindra whether the appellant was justified in pressing the present appeal against a single public servant like the respondent, particularly in view of the fact that it had treated Sri Beurias case on the basis of the interpretation of rule 6 of the Protection Rules on which the respondent relies. We were told that the appellant was anxious to have a decision from this Court on this point, because the present case would serve as test case and may be relied upon as a precedent by several public servants in Orissa who belong to the category of the respondent. In fact, in granting the certificate, the High Court has observed that the question raised is undoubtedly of public importance, because it will affect many other Government servants of the old Province of Bihar and Orissa who were permanently transferred to Orissa when that province was separated from Bihar on 1 April, 1936.