Case: State Of Orissa Vs. Durga Charan Das

The respondent, Durga Charan Das, joined as an Assistant in the old Bihar and Orissa Secretariat prior to the formation of the Province of Orissa. When the said province was formed, he was transferred to the Orissa Secretariat, Home Department. In due course, he was promoted to higher posts, such as Junior Head Assistant and Senior Head Assistant. On 24 April, 1954, while holding the post of Senior Head Assistant, he was temporarily promoted as Registrar in the Supply Department of the Orissa Secretariat. On 22 December, 1954 he was reverted to his substantive post as Head Assistant in the Home Department. Later, he was again promoted to officiate as Registrar in the Supply Department, on 3 February, 1956. In June 1957, he was promoted to officiate as Assistant Secretary in the same Department, and ultimately he was confirmed as Registrar in the Orissa Secretariat on 14 October, 1958. Eventually, he retired from service on 17 October, 1959At the time his retirement, a question arose about fixing the amount of his pension. For the purpose of determining this amount, the relevant date was the date on which he was confirmed as Registrar, because he held the post of the Assistant Secretary to which he was promoted for some time, only on an officiating basis. The appellant, the State of Orissa, fixed the pension of the respondent at Rs. 190 per month by reference to 14 October, 1958, which was the date on which he was confirmed as Registrar. The respondent then represented to the appellant that he should be deemed to have been confirmed as Registrar on 24 April, 1954, and his pension calculated on that basis at Rs. 290 per month. In the alternative, he urged that he should be deemed to have been confirmed as Registrar at the latest on 23 August, 1956, he pleaded this date, because his case was that on that date, Sri J. N. Dutta, who was junior to him in the cadre of the old Bihar and Orissa Secretariat, had been confirmed as Registrar in the Bihar Government. On this latter basis, the respondent would be entitled to get Rs. 240 per month as pension. The appellant rejected both the prayers made by the respondent, and that took the respondent to the High Court under art. 226 of the Constitution. By this writ petition, the respondent claimed an appropriate writ calling upon the appellant to fix his pension either on the footing that he had been confirmed as Registrar on 24 April, 1954, or, at any rate, on 23 August, 1956.This plea was resisted by the appellant and it was pleaded by it that the claim made by the respondent was not justified by the provisions of rule 6 of the Protection Rules. The High Court has held that the respondents claim to have his pension calculated on the basis that he should be deemed to have been confirmed as Registrar on 24 April, 1954 was not well-founded. It has, however, found in favour of the respondent in regard to the alternative claim made by him, and accordingly it has directed the appellant to re-fix pension payable to the respondent on the footing that the respondent should be treated as having been confirmed as Registrar in the Orissa Secretariat with effect from 23 August, 1956.

Reasoning:
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.