Parties Involved
Jyostnamayee Mishra
(Petitioner)
Versus
The State of Odisha and Others
(Respondent)
Hon’ble Judges
J.K. Maheshwari and Rajesh Bindal, JJ.
Laws involved
- Odisha Subordinate Architectural Service Rules, 1979
- The Constitution of India, Art. 14, Art.16
Facts of the Case
Jyostnamayee Mishra was joined service in 1978, working as a peon in the department of architecture, Government of Orissa. She applied to be promoted to the post of Tracer in the year 1999, which is a higher post. She also completed the training course for this post. She sent her request on January 7th, 1999 for the same, but her request was rejected. At the same time, two other peons Lalatendu Rath and Jhinarani Mansingh, were appointed to the post of Tracer. She believed this to be unfair and discriminatory, and that she was better qualified or at least equally qualified. Thus, she approached Odisha Administrative Tribunal, claiming that she was illegally denied the opportunity and deserved the same promotion. The Tribunal agreed with her and passed order in her favour.
The state of Orissa challenged this order in the Orissa High Court. The High Court reversed this order, and said that she had no legal right to become a Tracer as the recruitment process is followed to fill the seats and even if the other two were wrongfully promoted to that post, she cannot claim to be promoted. The claim was wrong on her part.
Jyostnamayee Mishra, aggrieved by this statement of Orissa High Court filed a Special Leave Petition (SPL) in the supreme court and asked for the post of Tracer as others were getting this benefit and claimed that she is qualified and has completed the training process required for the post too.
Another point to be noted was that the state government failed to produce any documents which had clearly defined rules. And the recruitment process was made with the help of internal circulars so there was no clear public notice for the same.
Issues Raised
- Whether a person can claim for promotion to the post of Tracer when they do not fall into 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?
- Whether impugned order of denial of promotion to post of Tracer was sustainable?
- Whether the state failed to present required documents and hence lead to the miscarriage of justice?
- Whether the recruitment process followed the prescribed statutory procedure under the 1979 Rules?
Contention of Both Parties
Contention of Jyostnamayee Mishra (Petitioner)
Jyostnamayee Mishra, who was working as a peon, contended that she has completed the training course and hence was eligible for the post of Tracer and that she is as qualified for the post as any other person. this was in context of the appointment of Lalatendu Rath and Jhinarani Mansingh, who were appointed as Tracers but her request was rejected.
She claimed this action as discriminatory and thus, in violation of her fundamental right to equality, which prohibits discrimination on the basis of caste, creed, sex, religion, etc. her reasoning behind his claim was that if the other two peons can be appointed as Tracer, then why not her.
Contention of state of Orissa and Others (Respondents)
The State of Orissa and Others argued that as per the Odisha Subordinate Architectural Service Rules, 1979, the Tracer post is to be filled by direct recruitment and not on promotional basis. Which infers that the people outside of the department and those who are from the staff are not eligible for this post. Therefore, rejecting her request of promotion.
The job of peon is a lower-level job and is considered a feeder post, the people belonging to this category can not be promoted, and thus, they cannot apply for the post of Tracer.
The Department acknowledged their fault on the appointment of the two peons for the post of Tracer but also argued that this does not give the petitioner the right to claim for this post. The Government of Orissa also accepted the use of internal circulars for the recruitment process and agreed that they were not public. But these circulars cannot replace the original recruitment process which is completed by conducting an interview and these circulars were also not legally valid as the circulars need to be made public.
The Stare of Orissa also contended that the High Court is in support of their arguments and has already set aside the order of the Tribunal, thereby, making this petition invalid.
Judgement
The Supreme Court dismissed the petition, and upheld the order of High Court to set aside the Tribunal’s order. The Supreme Court established some key legal principles. The recruitment of direct posts cannot be filled via promotion unless explicitly mentioned in the rules. The circulars must be made public and internal circulars do not hold the same legal validity. Another essential principle established was that the wrongful recruitment of two people does not grant anyone the right to claim illegal benefits. This, if done will serve the purpose of negative equality, which is against the principles of the Constitution. The Supreme court also made the State Government accountable for not providing with the required valid and legal documents, which was a reason for the miscarriage of justice in this case.
Rationale
The rationale behind Supreme Court’s Judgement is explained below:
- The Supreme Court emphasized that according to the Rule 5(1)(e) of the Odisha Subordinate Architectural Service Rules, 1979, the Tracer post must be filled only by the recruitment process followed by an interview and no promotional appointments and allowed.
- The rule 6 which deals with promotion does not include peon as a feeder cadre for the post of Tracer and hence, she is not entitled for that post.
- The court also noticed that the rule 7 which deals with the appointment process has not been duly followed, as the circulars were internal and not public, which is not legal.
- However, the Court also established that, Jyostnamayee Mishra cannot claim benefits on the basis of wrongful appointment of the two peons, and also reaffirmed the principles of equality, by stating that the constitution does not permits negative equality. “A litigant coming to the Court cannot claim negative discrimination seeking direction from the Court to the department to act in violation of the law or statutory Rules. It is a settled proposition of law that Article 14 does not envisage negative equality”.
- The Supreme Court criticized the State Government for not presentive the required legal documents, and observed that State’s negligent actions lead to the delay in final decision and undermined the legal principles and procedure. The State’s carelessness caused unnecessary burden and lead to the miscarriage of justice.
Defects of Law
There were several legal and procedural difficulties and shortcomings in this case which could have been avoided. These are explained below:
- As per the Odisha Subordinate Architectural Service Rules, 1979, the post of Tracer must be filled with recruitment only. So, if this was earlier realised the recruitment of Lalatendu Rath and Jhinarani Mansing would have been held invalid from the beginning. This appointment undermines the principle of fair opportunity of recruitment.
- The second blatant defect was the use of internal circulars and not public circulars which are legally valid. This is against the constitutional provisions of public mandate of equal opportunity in public employment.
- The failure of State Government to provide the correct version of 1979 Rules before the High Court was an action of gross negligence of legal conduct.
- Even after the Court held the appointments of the two peons invalid, no actions were taken against those appointments, this shows the lack of accountability and carelessness on the part of the State Government and the Department.
Inference
In this case the Supreme Court rightly upheld the principles of the recruitment procedure and dismissed the petition of Jyostnamayee Mishra as the whole petition was based on an argument which was not valid prima facie. The contentions of the petitioner were not invalid, she felt aggrieved and discriminated against, but the recruitment of the other two peons was invalid since inception, and therefore, she cannot claim benefits same as anyone else who is also appointed on illegal basis. She was not eligible for the post of Tracer by promotion or by recruitment as it was clearly defined in the 1979 service rules that, for the post of traces, feeder cadre cannot be considered and any appointment should be made only by the procedure mentioned in these rules, which is recruitment followed by an interview.
This case highlights the importance of fair and equal opportunity in public employment as well as uphold the principles of equality of the Indian Constitution, which also prohibits negative equality. The Court dismissed her petition and did not offer her the post of Tracer, which she might have felt that it is injustice, but by holding the recruitment of other two peons invalid the Supreme Court restored justice.
Another essential action taken by the Supreme Court was that the State was held accountable for its gross negligence in presenting the wrong documents in the court, which lead to the not needed prolonged process, and unnecessary hurdles to the petitioner as well as the Supreme Court.
This judgement is an important message that the recruitment in public jobs must not be taken lightly and done by illegal means, any such recruitment will be deemed illegal as well as these kinds of recruitments give common people a false sense of how the system works, and such actions, no doubt undermine and challenge the constitutional provisions and rights of persons.
Name: Vradhi Tiwari
Institution: Bharati Vidyapeeth, New Law College, Pune