The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No. 9984 of 2025 Union of India, New Delhi & Others …. Petitioners Mr. B. Maharana, CGC -versus- Narahari Mukhi …. Opp. Party CORAM: THE HON’BLE MR. JUSTICE S.K. SAHOO THE HON’BLE MR. JUSTICE CHITTARANJAN DASH Order No. ORDER 17.04.2025 01. 1. This matter is taken up through Hybrid arrangement (video conferencing/physical mode).
Legal Reasoning
“9. In view of the above, proceeding to decide the grievance of the applicant on merit, we find that the whole case of the respondents is that since the applicant did not offer his willingness for Trade Test and, thus, he having not fulfilled the required conditions upto 07.07.2013, his case was rightly not considered for promotion de hors the rules. But, the respondents did not produce any piece of paper to show that such willingness had ever been called but the applicant did not offer his willingness. No rule is also brought to the notice that the official on their own has to seek to appear the Trade Test. Trade Test is supposed to be conducted by the respondents department for its eligible employees. Therefore, non-submission of the wiliness by the applicant the the respondents can alone be blamed. circumstances, the stand taken by the respondents that the applicant did not offer his willingness to appear at the Trade Test, at Chandipur, when such Trade Test was never conducted during the period in question, as per the records, cannot go against the applicant. The order of rejection is also conspicuously silent on the above aspect and the respondents have simply stated that the applicant did not offer his willingness for the Trade Test. For the is constrained to hold that the applicant's grievance needs reconsideration in the manner as under: the Trade Test, In reasons stated above, to appear at this Tribunal Page 5 of 12 (i) The respondents are to hold the Trade Test for the applicant within a period of 30 days from the date of receipt of a copy of this order; (ii) . Based on the result of the Trade Test, the case of the applicant will have to be considered by the respondents by convening DPC/Review DPC to consider his case for promotion to the post of Mate with effect from the date his counterpart employees were promoted. This exercise shall have to be completed within a period of 30 days from the date of the Trade Test. (iii) In the event, the applicant is found to be eligible having regard to the other conditions, for promotion, he should be promoted notionally to the post of Mate and order to the above effect is to be issued within a period of 30 days from the date of the DPC. (iv) In view of the discussions and directions made above, the impugned order dated 31.07.2018 is hereby quashed.” 7. It is submitted by the Learned counsel for the Petitioners that since there was no vacancy in the post of Mate and the Petitioner had not passed the Trade Test, the question of his promotion to the post of Mate did not arise. However, from the counter affidavit, we find that no such averment has been taken to the effect that till the introduction of SRO No.48 dated 08.07.2013, there was no vacancy in the post of Mate. The Hon’ble Supreme Court in the matter of Central Council for Research in Ayurvedic Sciences & Anr. Vs. Bikartan Das & Ors reported in 2023 INSC 733 held as follows: Page 6 of 12 49. Before we close this matter, we would like to observe something important in the aforesaid context: of 226 Two cardinal principles of law governing exercise of extraordinary jurisdiction under Article the Constitution more particularly when it comes to issue of writ of certiorari. 50. The first cardinal principle of law that governs the exercise of extraordinary jurisdiction under Article 226 of the Constitution, more particularly when it comes to the issue of a writ of certiorari is that in granting such a writ, the High Court does not exercise the powers of Appellate Tribunal. It does not review or reweigh the evidence upon which the determination of the inferior tribunal purports to be based. It demolishes the order which it considers to be without jurisdiction or palpably erroneous but does not substitute its own views for those of the inferior tribunal. The writ of certiorari can be issued if an error of law is apparent on the face of the record. A writ of certiorari, being a high prerogative writ, should not be issued on mere asking. 51. The second cardinal principle of exercise of extraordinary jurisdiction under Article 226 of the Constitution is that in a given case, even if some action or order challenged in the writ petition is found to be illegal and invalid, the High Court jurisdiction while exercising thereunder can refuse to upset it with a view to justice between doing substantial the parties. the Constitution grants an Article 226 of extraordinary essentially remedy, which discretionary, although founded on legal injury. It is perfectly open for the writ court, exercising this flexible power to pass such orders as public interest its extraordinary is Page 7 of 12 dictates & equity projects. The legal formulations cannot be enforced divorced from the realities of the fact situation of the case. While administering law, it is to be tempered with equity and if the equitable situation demands after setting right the legal formulations, not to take it to the logical end, the High Court would be failing in its duty if it does not notice equitable consideration and mould the final order in exercise of its extraordinary jurisdiction. Any other approach would render the High Court a normal court of appeal which it is not. 52. The essential features of a writ of certiorari, including a brief history, have been very exhaustively explained by B.K. Mukherjea, J. in T.C. Basappa v. T. Nagappa and Another, reported in AIR 1954 SC 440. The Court held that a writ in the nature of certiorari could be issued in ‘all appropriate cases and in appropriate manner’ so long as the broad and fundamental principles were kept in mind. Those principles were delineated as follows: “7. … In granting a writ of ‘certiorari’, the superior court does not exercise the powers of an appellate tribunal. It does not review or reweigh the evidence upon which the determination of the It inferior demolishes the order which it considers to be without jurisdiction or palpably erroneous, but does not substitute its own views for those of the inferior tribunal ….. 8. The supervision of the superior court exercised through writs of certiorari goes on two points, as has been expressed by Lord Summer in King v. Nat Bell Liquors Limited [(1922) 2 AC 128, 156]. One is the area of inferior jurisdiction and the qualifications and conditions of its exercise; the other is the observance of law in the course of its exercise. …. tribunal purports to be based. Page 8 of 12 9. Certiorari may lie and is generally granted when a court has acted without or in excess of its jurisdiction.” (supra), 53. Relying on T.C. Basappa the Constitution Bench of this Court in the case of Hari Vishnu Kamath (supra), laid down the following propositions as well established: “(1) Certiorari will be issued for correcting errors of jurisdiction, as when an inferior court or tribunal acts without jurisdiction or in excess of it, or fails to exercise it. (2) Certiorari will also be issued when the court or tribunal acts illegally in the exercise of its undoubted jurisdiction, as when it decides without giving an opportunity to the parties to be heard, or violates the principles of natural justice. (3) The court issuing a writ of certiorari acts in exercise of a supervisory and not appellate jurisdiction. One consequence of this is that the court will not review findings of fact reached by the inferior court or they be erroneous.” 54. This Court explained that a court which has jurisdiction over a subject matter has jurisdiction to decide wrong as well as right, and when the Legislature does not choose to confer a right of appeal against that decision, it would be defeating its purpose and policy if a superior court were to rehear the case on the evidence and substitute its own finding in certiorari ××× 77. The purpose of certiorari, as we understand, is tribunal, even if only to confine the inferior tribunals within their jurisdiction, so as to avoid the irregular exercise, or the non-exercise or the illegal assumption of it and not to correct errors of finding of fact or Page 9 of 12 interpretation of law committed by them in the exercise of powers vested in them under the statute. The accepted rule is that where a Court has jurisdiction it has a right to decide every question which crops up in the case and whether its decision is correct or otherwise, it is bound to stand until reversed by a competent Court. This Court in G. Veerappa Pillai v. Messrs Raman and Raman Ltd. Kumbakonam, Tanjore District and Others, (1952) 1 SCC 334 observed: “26. Such writs as are referred to in Article 226 re obviously intended to enable the High Court to issue them in grave cases where the subordinate tribunals or bodies or officers act wholly without jurisdiction, or in excess of it, or in violation of the principles of natural justice, or refuse to exercise a jurisdiction vested in them, or there is an error apparent on the face of the record, and such act, omission, error, or excess has resulted in manifest injustice. However extensive the jurisdiction may be, it seems to us that it is not so wide or large as to enable the High Court to convert itself into a court of appeal and examine the correctness of the decision impugned and decide what is the proper view to be taken or the order to be made.” itself for 8. In view of the above, while this Court is exercising its Supervisory Jurisdiction, cannot allow a party to take a new ground in a certiorari proceeding unlike its Appellate Jurisdiction. Therefore, by not taking a stand in the counter Page 10 of 12 affidavit in the O.A. proceeding as regards the no availability of vacancy as a ground to accommodate the Opp.Party in the promotional post, the Petitioner cannot be allowed to take a new plea herein the writ, as the Opp.Party has been deprived to meet the same in the rejoinder affidavit and by entertaining the same in this writ proceeding on the basis of oral submission, it would cause serious prejudice to the Opp.Party. 9. So far as conducting of Trade Test is concerned, the learned Tribunal is quite justified in holding that there is no document produced to show that any such willingness had ever been sought for from the Opp.Party and that he did not offer his willingness. Further, there is absolutely no material to show that the Petitioners ever conducted the Trade Test to enable the Opp.party to extend his willingness or to participate in the said test so as to make him eligible for promotion. Conversely, it is admitted fact that such Trade Tests have been conducted in other places of the Petitioner’s organisation thereby allowing the persons junior to the Opp.Party to get the promotional post which is a clear discrimination and utter violation of article 14 and 16 of the Constitution. Consequently, the Opp.Party cannot be allowed to suffer or to be blamed. 10. Therefore, we are of the view that there is no infirmity or illegality in the order passed by the learned Central Page 11 of 12 Administrative Tribunal, Cuttack Bench Cuttack, the reasons assigned therein are quite justified. Accordingly, the Writ Petition being devoid of merits stands dismissed. Judge (S.K. Sahoo) Judge (Chittaranjan Dash) AK Pradhan/ Bijay Signature Not Verified Digitally Signed Signed by: BIJAY KETAN SAHOO Reason: Authentication Location: HIGH COURT OF ORISSA Date: 22-Apr-2025 10:08:00 Page 12 of 12
Arguments
2. Heard learned counsel for the Petitioner. 3. This Writ Petition has been filed by the Petitioners challenging the order dated 29.08.2024 passed in O.A. No.687 of 2019 by the learned CAT, Cuttack Bench, Cuttack. 4. The back ground fact of the case are that the Opp. Party Nos. 1 got appointed as Chowkidar under the Garrison Engineer on 04.09.2000 and continued to perform his duties smoothly to the satisfaction of the concerned authorities. While continuing as such, the Govt. of India, in the Ministry of Defence issued a notification bearing SRO NO. 169 dt. 09.11.2004 for appointment to Group-D, Industrial Post in Military Engineering Services whereas as per the SRO 169/04, the posts of Mazdoors and Chowkidar/Safaiwala were two feeder categories for promotion to the post of “Mate”. For such promotion, the eligibility required was that the persons in the said post of Chowkidar/Safaiwala must have 4 years of regular service in the grade and have to pass a Trade Test of “mates” as prescribed by the Engineer-in-Chief Branch. As per the said SRO the Trade Test was being conducted for Mazdoors Chowkidar/Safaiwala working in different organization under the Chief Engineer (HQ), Eastern Command, but no such interview was ever conducted by the Petitioner organization ie. Garrison Engineer Respondent No. 5. When the matter stood thus, a new recruitment rules of “Mates” was introduced vide SRO No. 48 dt. 08.07.2013 that came to force with effect from the date of its notification and as such the Chowkidar/Safaiwala were Page 2 of 12 ceased to be the feeder category for the promotion to the post of “Mates.” After the introduction of new recruitment rules a circular dated 17.01.2014 was issued by the DO (Personal) Engineer-in-Chief Branch, regarding promotion of Chowkidar & Safaiwala who cleared the trade test of “Mates” upto 07.07.2013 as were governed by Sr. No. 169/2004 and were eligible for the promotion to the post of Mates. Pursuant to the said notification dt. 17.01.2014 all the chowkidar/safaiwala working under Commander works Engineer, Kolkata Area, who had passed the Trade Test upto 07.07.2013 were given promotion to the post of “Mates” vide letter dt. 17.01.2015. It is the case of the Opp.Party that though he was appointed as Chowkidar during the year 2000, the Petitioner Organization neither conducted the Trade Test nor was he considered for promotion to the post of “Mates” while similarly situated Chowkidar/Safaiwala working under Commander Works Engineer, Kolkata Area, were given promotion to the post of Mate and became senior to the Opp.Party. Being aggrieved he made a representation before his authority (the respondent No. 5 in O.A.) to consider his case for promotion to the post of “Mates” by conducting Page 3 of 12 Trade Test like other similarly situated persons and to give him the promotion to the post of “Mate”. Upon receipt of representation, the Respondent No.5 communicated to the Head Quarters to issue necessary instructions to conduct the Trade Test in respect of Chowkidar/Safaiwala in order to make them eligible for promotion to the post of Mate working under him. When no communication was received by the Opp.Party despite lapse of considerable period, the Opp.Party (applicant in the O.A.) approached the Learned Tribunal in O.A. No.105/2017. On the intervention of the learned Tribunal, the Petitioners (Respondents in the O.A.) considered the representation of the Opp.Party but rejected the same. Accordingly, the Opp.Party once again preferred the O.A. No.687 of 2019 before the learned CAT, Cuttack Bench, Cuttack, which was disposed of by the learned Tribunal vide order dt. 01.03.2017 thereby allowing the prayer of the Opp.Party and hence this Writ by the Petitioners. 5. After issuance of notice, the Petitioners entered appearance and filed their counter affidavits wherein the main ground taken was that the Trade Test in terms of SRO No.169 of 2004 is to be conducted on the basis of availability of vacancy and willingness option from the Page 4 of 12 eligible candidates. In the instant case, the Opposite Party had never submitted his eligibility as well as willingness option for the specific trade within 07.07.2013. 6. The learned Tribunal after hearing the respective Parties was pleased to hold as follows: -