The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK AFR W.P. (C) No.28580 of 2020 Alok Chandra Mishra and others …. Petitioners Mr. Sidheswar Mallik, Advocate -Versus- Odisha Public Service Commission and another …. Opposite Parties Ms. B. Dash, ASC Mr. P.K. Mohanty, Senior Advocate (OPSC) CORAM: JUSTICE R.K. PATTANAIK DATE OF JUDGMENT:15.09.2025 1. Instant writ petition is filed by the petitioners assailing the impugned orders as at Annexure-5, 9 & 11 for the State Govt. having rejected the proposal for introduction of a cadre of Assistant Section Officer in the establishment of the of the Odisha Public Service Commission (shortly called as ‘the Commission’), namely, opposite party No.1with grant of consequential pay and other service conditions at par with the employees serving in the corresponding grade in the Odisha Secretariat with the merger of the cadres of Junior Assistant and Senior Assistant complying Regulation 5 of the Odisha Public Service Commission (Method of Recruitment and Conditions of Service of Staff) Regulations, 1994 (hereinafter referred to as ‘the Regulations’) with issuance of such other directions as deemed just and proper in the interest of justice. Page 1 of 18 2. Pursuant to an advertisement published in 2014 as per Annexure-1, the petitioners offered their candidature for appointment to the posts of Junior Assistant in the office of opposite party No.1 and after being duly selected, as according to them, in a regular selection process conducted according to the Regulations, appointed as such on contractual basis vide Annexure-2 series. The pleading is that opposite party No.1 is a statutory body created under Article 315 of the Constitution of India and with a view to uphold its independence, the salaries, allowances and pensions payable to its employees are directly charged on the Consolidated Fund of the Government of India or the State Government as the case may be and in exercise of power under Article 318, a set of regulations has been framed to govern them and such are still in force so far as the recruitment and their service conditions are concerned. The further pleading is that Regulation 9 of the Regulations provides procedure for recruitment and appointment to the post of Junior Assistant and there is no provision for appointment on contractual basis and therefore, the advertisement as per Annexure-1 is directly in contravention of the Regulations. Further, by referring to Regulation 5 of the Regulations, it is pleaded on record that the petitioners as the employees of opposite party No.1 are eligible and entitled to similar pay and other service conditions like their counterparts in the Secretariat. 2.1.According to the petitioners, as per the resolution published in the Odisha Gazette dated 15th October, 2008 at Page 2 of 18 Annexure-3, the entry level in the ministerial service in the Secretariat has been redesignated as Assistant Section Officer (ASO) in the scale of pay of Rs.5,000/- to Rs. 8,000/- (pre- revised), hence, the existing cadre of Junior Assistant and Senior Assistant were merged and in view of Regulation 5(3) of the Regulations, the ministerial cadre of opposite party No.1 would have to be integrated into a single cadre of ASO and in view of such resolution, creation of a cadre by opposite party No.1 is automatic and as such, no sanction is necessary. With the above pleading, it is claimed by the petitioners that opposite party No.1 was not required to seek approval of the Government, nevertheless, it was proposed for creation of the cadre on similar terms by a letter dated 28th November, 2008 at Annexure-4 but it was regretted vide Annexure-5 and once again, by letter dated 10th May, 2010 (Annexure-6), such request was renewed and though, opposite party No.2 responded by demanding status report vide Annexure-7, opposite party No.2 rejected the proposal vide Annexure-9 by stating that such proposal is impossible and also on the ground that the Commission is a Head of Department under the administrative control of the G.A. Department, Government of Odisha. 2.2. It is pleaded that despite the decision of the Government as per Annexure-9, after a lapse of about 7 years, opposite party No.1 had a correspondence in 2018 as per Annexure-10 with opposite party No.2 indicating therein all the provisions of law with the claim that the Commission is a constitutional Page 3 of 18 body and not a Head of Department, hence, to be treated accordingly, while dealing with the matter for a similar cadre but the proposal was rejected by order dated 3rd September, 2018 at Annexure-11. It is further claimed that opposite party No.2 deliberately rejected the proposal knowing very well the position of law and the entitlement of the staff of the Commission to receive similar benefits like their counterparts in the Secretariat. Such claim of the petitioner is also on the basis of the Government’s letter dated 23rd April, 1998 at received Annexure-12, whereby, opposite party No.1 intimation on a proposal for conducting recruitment to the posts of Junior Assistant through the Staff Selection Commission indicating therein the conditions of service of the staff and their educational qualification being at par with the Secretariat staff in view of Regulation 5 of the Regulations. 2.3. A proposal in respect of the ministerial staff of the Orissa High Court was allowed by a resolution dated 29th March, 2012 i.e. Annexure-13 with the creation of a cadre of ASO w.e.f. 30th September, 2008, the date on which, such a cadre was introduced in the Secretariat, as further pleaded. It is claimed that the Governor’s Secretariat has a similar cadre by a resolution dated 21st December, 2009 as at Annexure-14 and therefore, the petitioners’ demand is that opposite party No.1 being an independent body created under Article 315 of the Constitution of India, it is not a Head of Department and therefore, as a consequence, the Government’s approval was Page 4 of 18 not necessary to introduce the cadre as it was incumbent upon the Commission to go for the same in view of Regulation 5 of the Regulations but unfortunately, all such proposals moved stood rejected by the State Government and therefore, the impugned decisions as per Annexures-5, 9 and 11 is not sustainable in law.
Legal Reasoning
3. Heard Mr. Mallik, learned counsel for the petitioners and Mr. Mohanty, learned Senior Advocate for opposite party No.1 besides Ms. Dash, learned ASC for the State. 4. Mr. Mallik, learned counsel for the petitioners reiterates the facts pleaded on record and submits that opposite party No.1, as an independent statutory body, does not need any approval of opposite party No.2 and therefore, it is possessed of the authority to create the cadre. The further submission of Mr. Mallik, learned counsel is that the initial appointment of the petitioners on contractual basis is illegal and in view of the Regulation 5(3) of the Regulations, all the staff of the Commission are to be treated at par with the employees of the Secretariat, which merged the cadres of Junior Assistant and Senior Assistant in the cadre of ASO, hence, a similar cadre has been on demand but it was declined by opposite party No.2 more than once when the Secretariat introduced a single cadre with employees of similar qualification and recruitment held like the employees of the Commission, it was not justified on the part of opposite party No.2 to deny similar service conditions to the petitioners on any such premise claiming that opposite party No.1 is a Head of the Page 5 of 18 Department. A reference is made to Article 12 of the Constitution of India with the claim that no contractual appointments could have been made against the substantive posts and hence, any such provision is in clear contravention of Articles 14 & 21 of the Constitution of India and advancing such an argument, Mr. Mallik, learned counsel placed reliance on the following decisions, such as, O.P. Bhandari Vrs. Indian Tourism Development Corporation Ltd. & others AIR 1987 SC 111; Central Inland Water Transport Corporation Ltd. & another Vrs. Brojo Nath Ganguly and another AIR 1986 SC 1571; Delhi Transport Corporation Vrs. D.T.C. Mazdoor Congress & others AIR 1991 SC 101 besides Sheo Narain Nagar and others Vrs. State of U.P. and another 2018(13) SCC 432. The contention is that the petitioners, who are the employees of the Commission even though recruited and joined on contractual basis pursuant to the advertisement as per Annexure-1, such appointment against substantive posts is illegal and in any case, opposite party No.1 being a statutory body independent of the control of the State Government is having the rights to create the cadre, yet the proposal floated by it was rejected by opposite party No.2 by the impugned decision, which is liable to be interfered with followed by consequential directions issued. 5. Opposite party No.1 filed the counter affidavit dated 7th January, 2021 and pleaded that with the introduction of the Rules notified on 12th November, 2013 governing the conditions of service of Group-‘C’ & Group-‘D’ posts, the Page 6 of 18 advertisement was published for recruitment to the posts of Junior Assistant in the establishment of opposite party No.1, in response to which, the petitioners applied, appeared the written examination and skill test and after completion of the selection process, on the recommendation received, have been appointed as such and their services are to be regularized after completion of six years of satisfactory performance in terms thereof. 6. An additional counter affidavit is filed by opposite party No.1 dated 18th December, 2023 and the stand is that the Regulations stipulate that pay and other conditions of service of the members of the Commission shall be the same like the staff serving in the corresponding grade in the Secretariat. 7. The counter affidavit filed by opposite party No.2, on the contrary, is against the claim of equality between the services rendered by the employees of the Commission in juxtaposition to the staff of the Secretariat on the ground that it is dealing with variety of responsibilities. It is pleaded that since the Secretariat ministerial staff are to manage multiple tasks related to the Government policies and programmes and their duties extend beyond administrative support to encompass substantive roles in the preparation and execution of macro and micro-level plans, as well as, contribute to the preparation of the budget of the State Government and since are entrusted with such high level responsibilities, the scope of which is not typically encountered by the employees in other offices like the Commission, hence, the demand for a Page 7 of 18 single cadre is without justification, inasmuch as, the roles and responsibilities within the Commission are narrowly focused and significantly different when compared to the Secretariat employees and though it plays a crucial role in the recruitment but the scale and scope of the responsibilities do not align with the multifarious and complex nature of duties performed by the ASOs in the Secretariat. 8. A rejoinder affidavit is filed by the petitioners to the counter of opposite party No.2 and it is once again pleaded therein that the Regulations prescribe similar pay and service conditions for the members of the staff to the corresponding grade in the Secretariat and in so far as the procedure of recruitment and appointment to the posts of Junior Assistant is concerned, there has been no provision authorizing the Commission to make appointment on contractual basis and therefore, the term ‘contractual’ occurring in the advertisement i.e. Annexure-1 and also in the appointment orders at Annexure-2 series vis-à-vis the petitioners should be treated as ‘regular’. It is restated that opposite party No.1 is a constitutional body and hence, not under the administrative control of the State Government and therefore, its action in seeking approval for creation of the cadre of ASO and the decision of the Government rejecting any such proposals received to be illegal, without authority and thus, deserves to be set at naught and as to the nature of duty and job responsibility of the ASOs of the Secretariat, with any Page 8 of 18 such comparative study of the same with that of the members of the Commission, it should not be regarded as superior. 9. In course of hearing, Mr. Mallik, learned counsel for the petitioners cited a decision of the Apex Court in The Accountant General and another Vrs. S. Doraiswamy and others AIR 1981 SC 783 with the submission that the Regulations has been brought into force in exercise of powers under Article 318 of the Constitution of India and therefore, any such reference to the proviso to Article 309 therein is meaningless and shall have to be ignored. Apart from above, the following decisions, such as, Bibhuti Bhusan Mohapatra and others Vrs. State of Odisha & others 1994(II) OLR 79 and Bibhuti Bhusan Mishra Vrs. State of Odisha & others in OJC No. 1406 of 1996 decided on 25th April, 2001 are placed reliance on by claiming that scale of pay, status and other benefits have been allowed to the Private Secretaries and Superintendents of the Orissa High Court at par with the Secretariat stating further that in Anushrav Gantayat Vrs. State of Orissa & others 2024(I) ILR CUT 655, it has been held that the executive actions like advertisements etc. cannot expand or restrict the scope or object of any law as a counter to the stand of opposite party No.2 that the petitioners applied and accepted the terms of the advertisement and hence, cannot be allowed to challenge it, thereafter. 10. Mr. Mohanty, learned Senior Advocate appearing for opposite party No.1 would submit that the Commission is Page 9 of 18 possessed of the powers to go for a cadre like the Secretariat, Governor’s Secretariat and High Court of Orissa on its own but at the same time, the decision of the State Government rejecting the proposal for creation of a cadre is unjustified and in a way, supports the contention of Mr. Mallik, learned counsel for the petitioners. 11. On the contrary, according to Ms. Dash, learned ASC for the State, the proposals of the Commission have been rightly rejected as the interest of the petitioners and others are well looked after with promotional avenue made available in view of Rule 19 of the Odisha Public Service Commission (Method of Recruitment and Conditions of Service of Staff) Regulations, 2024. Furthermore, it is submitted that the Commission’s functional and organizational structure must have to be understood in relation to the broader administrative framework of the State and the services rendered by its ministerial staff is noticeably distinguishable from other Govt. departments including the Secretariat and moreover, claiming equality based solely on nomenclature, educational qualifications and pay scale would be an incorrect approach. 12. The Commission has come into existence under Article 315 of the Constitution of India. The Regulations has been brought into force in exercise of the powers conferred under Article 318 of the Constitution and it covers aspects like service conditions etc. of the members, which, cannot be varied to their disadvantage after appointment ensuring Page 10 of 18 organizational independence and integrity. It is well understood as to the nature of responsibilities being discharged by the Commission and it needs no emphasis. The Commission is indeed a body created under Article 315 of the Constitution and concisely stated, responsible not only for conducting competitive examinations for various State Govt. jobs but also advises the Govt. on recruitment, appointment, promotion and in other service related matters. 13. Is the Commission under the administrative control of the G.A. Department, Govt. of Odisha? It would be better to say that the said department, a nodal agency for the higher civil services and handles matters related to the Commission, is its administrative department. The Commission is treated as a Head of the Department, as made to understand. In that case, who is a Head of Department? As it has been discussed, the Commission is created under the Constitution of India and thus, an independent entity. The Commission is not a regular Govt. department and hence, not to be mistaken, as such. To reply the above question, one has to fall back upon the Odisha Service Code and particularly, Appendix-3 read with Rule 20 thereof. In fact, the said Rule indicates that the Heads of Department means the Govt. servants mentioned in Appendix-3 of the Code. So, the use of the term ‘Head of Department’ for the Commission would be a misnomer. The Court is of the humble view that the Commission is to be treated differently unlike other Govt. departments for being a Page 11 of 18 body created under the Constitution and not be branded akin to a Govt. department, but in a manner, it truly signifies. 14. The record reveals that the petitioners joined the Commission after a recruitment held in the year 2014-15. By virtue of the Odisha Group-‘B’, ‘C’ and Group-‘D’ Posts (Repeal and Special Provisions) Rules, 2022, the corresponding Contractual Rules of 2013 were taken off, whereby, the services of the petitioners have been regularized. As per the counter affidavit of opposite party No.2, the petitioners were given promotion to the post of Senior Assistant, which has been redesignated as the ASO. The demand of the petitioners is opposed on the ground that their claims are to be considered in accordance with the specific terms and conditions set forth in the Regulations and the original advertisement i.e.Annexure-1.The other grounds are that such demand is based on a superficial comparison of the nomenclature and entry level qualifications without understanding the deeper structural and functional differences between the Commission and Secretariat. But, it is claimed that the Commission is a constitutional body and as per Regulation 5(3) of the Regulations, the pay and conditions of service of its member staff unless provided thereunder, shall be the same as of the personnel in the corresponding grade serving in the Secretariat. 15. Previous proposals received by the Govt. for introduction of a cadre with merger have been denied by the Govt. with regret letters issued once by claiming that the same is Page 12 of 18 impossible since the Commission is a Head of Department under the administrative control of the G.A. Department vide Annexure-9. The pertinent question is, whether, a cadre of ASO and similarly for other posts like the Secretariat should have been thought of for the members of the Commission? The last proposal is of the year, 2018 and it was regretted vide Annexure-11. Though, the petitioners joined the contractual service under the repealed Rules of 2013 but have been regularized thereafter and received promotion as Senior Assistant, which has been redesignated as ASO in the year, 2022, the demand for introduction of a cadre is based on equality referring to Regulation 5(3) of the Regulations. The regret letters at Annexures-5, 9 and11 reveal no real reasons for denying the merger and cadre creation for the Commission’s member staff except by stating that it has not received the concurrence of the Finance Department and for being a Head of Department. According to the Court, there was a need of an objective assessment by the Govt. on such proposals received. Whether, such an assessment with quantifiable data in hand with an exercise being undertaken, opposite party No.2 should have bared it all in the counter instead of justifying the rejection in creation of a cadre for the members of the Commission. From Annexure-7, it is made to suggest that status report was called for and immediately, it was responded as per Annexure-8 but what prevailed upon the Govt. in not accepting the proposal was never shared with the Commission. The member strength of the Commission is moderate and hence, financial crunch could not have been an Page 13 of 18 issue though such is the justification as per Annexure-11. But, what is lost sight of is that the Commission being an independent body ought to have been treated distinctly from other departments. Had there been any difficulty, the exercise would not have even commenced requesting the Commission to furnish the status report with response received as per Annexure-8. The State Govt. is well aware of the conditions of service of the member staff of the Commission in view of Regulation 5 of the Regulations but it all along stuck to the decision till the very end and without assigning reasons rejected the proposals. According to the Court, any such justification with the counter affidavit filed is no justification in absence of the facts revealing, whether, the proposals at any point of time seriously received an objective assessment. The intimation, every time, the Commission received revealed nothing except rejection with no real reasons assigned. The counter affidavit on record is also conspicuously silent about the Govt.’s response to the proposals with any proper assessments made. Therefore, it has to be concluded that the grounds revealed by the Govt. in Annexures-5, 9 and 11 are no reasons at all. 16. The cadre creation has taken place in the High Court by a resolution at Annexure-13 of the Home Department, Govt. of Odisha and also in the Governor’s Secretariat pursuant to Annexure-14. However, the case of the Commission has been treated indifferently by the State Govt. and the reasons are really unknown. It is instead pleaded in the counter affidavit Page 14 of 18 that upon receiving the proposal of the Commission, some posts have been created in 2019 and the restructuring was decided to be considered separately and thereafter, on a request received from the Commission by letter 30th August, 2022, the revised restructuring proposal along with draft of the Regulations was received and considering the workload vis-à-vis requirement of manpower, few more posts have been created in 2023. It is further pleaded that after creation of 69 posts for the Commission, to regulate the method of recruitment and conditions of service of all such posts new and existing, G.A. Department framed the Odisha Public Service Commission (Method of Recruitment and Conditions of Service of Staff) Regulations, 2024 after approval of the Cabinet and therein, provision by way of Rule 19 has been made delineating the criteria for promotion to the post of ASO emphasizing the significance of sustained service within the organization. All the above exercise was undertaken keeping in view the workload and continuous demand but the demand for restructuring alike the Secretariat eluded the Commission. Can it be said that the pay and service conditions of the members of the Commission is at the same pedestal with their counterparts in the Secretariat envisioned and incorporated in the Regulations despite all the aforesaid developments? Honestly speaking, it is just a lip service leaving the members of the Commission in lurch and lagging behind and even with the introduction of the Regulations, 2024, it is hardly to lift them up brushing shoulder with their counterparts in the Secretariat. Page 15 of 18 17. When the Regulations, 1994 equals the pay and service conditions similar to the cadre of the Secretariat, whether, it would be justified to allege the demand for restructuring like the Secretariat to be based on superficial comparison. It is not about nomenclature or entry-level qualification to be the basis to demand restructuring but the very decision to keep the Commission on a platform alongside the Secretariat on pay structure and service conditions. If the conditions of service with restructuring of cadres for the staff of the Secretariat received a huge facelift, then why not the Commission, which is just not any other Govt. department but an entity created under the Constitution governed by the Regulations? It is realized that the demands of modern governance influenced the State Govt. to go for restructuring in the Secretariat but to claim that its administrative responsibilities are far more complex, hence, beyond comparison with the Commission is beyond comprehension. Not only the recruitments are managed but a whole of activities are being undertaken by the Commission including offering advice to the Govt. on service matters and the same demands skill and expertise no less than the decision making process indulged in the Secretariat. Therefore, in the humble view of the Court, any such comparison with the claim of structural and functional differences should not be a criteria to reject the restructuring of the Commission, a demand based on the equal treatment of pay and service conditions. Page 16 of 18 18. Having given anxious consideration to the issue at hand, the Court is of the view that the State Govt. should be directed to go for immediate restructuring of the Commission in the manner it has been resorted to for the Secretariat as with that intent and purpose, the Regulations was designed and conceived of. The duties of the staff of the Secretariat were within the knowledge of the framers of the Regulations, hence, such a ground is entirely misconceived. Of course, the Secretariat plays a pivotal role in the State’s administrative machinery but the importance of the Commission as an institution is not to be undermined. After all, the restructuring of the cadres of the Commission is a demand resting on equal treatment of its members, who are supposed to receive with their counterparts in view of Regulation 5(3) of the Regulations and therefore, too much of emphasis on different functional orientation claiming that responsibilities are narrowly focused would not be a right conclusion. The State Govt. should not either be unnecessarily apprehensive in anticipation that others may demand a similar treatment since other Govt. departments are not similarly placed like the Commission, a body created under the Constitution. Instead of elaborating further, after having taken judicial notice of the case laws cited at the Bar and alive to the settled position of law, notwithstanding the developments having taken place with the advent of the Regulations of 2024, the Court is of the humble view that the State Govt. is required to initiate the exercise of restructuring of cadres for the Commission on Page 17 of 18 similar terms like the Secretariat taking into account the demand of the petitioners but in a time bound manner. 19. Accordingly, it is ordered.
Decision
20. In the result, the writ petition stands disposed of with the direction as aforesaid to be complied with by opposite party No.2 initiating the exercise of cadre restructuring in the Commission placing the service conditions of its member staff in the manner and at par with their counterparts in the Secretariat and accomplishing it within such reasonable time as necessary and expedient. kabita (R.K. Pattanaik) Judge Signature Not Verified Digitally Signed Signed by: KABITARANI MAJHI Designation: Secretary Reason: Authentication Location: OHC,CTC Date: 15-Sep-2025 19:33:43 Page 18 of 18