JYOSTNAMAYEE MISHRA versus THE STATE OF ODISHA AND ORS.

10. Direct recruitment to the service shell be made by a competitive test to be prescribed and conducted by the Chief Engineer, Roads & Buildings in consultation with Government Architect.

11. The authority shall issue advertisement in The local newspaper “The Orissa Gazette” inviting application in a prescribed form a long with other certificates including certificate that they have passed Oriya up to middle class standard and testimonials as may he consider necessary by the authority. [2025] 1 S.C.R.  Jyostnamayee Mishra v. The State of Odisha and Ors.

12. In execution of the application the authorities shall call for the written test as well as for a Viva voice on the basis of which in list of successful candidates arranged in order of merit shall be announced. The list so prepared shall be followed till completion of one year

13. The authority there after shall issue appointment to the successful candidates against the vacant post to be filled in by direct recruitment.

14. At the time of joining the candidates shall produce the necessary certificate of physical fitness from medical practitioners.

15. The name of the candidate who does not accept the post offered within the time limit specified in the order of appointment shall be struck of from the list.

16. All appointments under direct recruitment shall be made on probation for a period of 2 years from the date of candidate joints his appointment and if during the period of probation candidates work and conduct is found unsatisfactory the authority may either discharge him from service or may extend the period of probation as they may think fit 850

17. Seniority and confirmation: c) The seniority of the candidate directly recruited shall be determined with reference to their position in the list of successful candidates and seniority of the promoting officials shall also be determined with references to their position in the list of final selection to be prepared by the departmental authorities but the promoter official shall be considered senior to the candidates directly recruited when direct recruitment and promotion are used during the same year. d) A probation shall be confirmed at the end of the period of probation if he is considered fit for consideration by the appointing authority subject to available of confirmed posts.

18. Other conditions of service: Other conditions is service such as leave pension, pay allowance, provident fund etc., shall be regulated by rules applicable to themembersof other subordinate gazetted service under State Government from time to time BUY ORDER OF THE GOVERNOR A.C. PADHI ENGINEER- IN -CHIEF -CUM- SECT. TO GOVT. OF ORISSA. ///TRUE TYPED COPY/// [sic]

19. The so-called letter dated 26.02.1980 produced as Annexure P-2 contains 18 paragraphs while the statutory rules contain 9 rules in total. Paragraph No.2 has been typed twice. After paragraph No.4, [2025] 1 S.C.R.  Jyostnamayee Mishra v. The State of Odisha and Ors. paragraph No.5 is missing. Paragraph nos.8 and 9 are also missing. Paragraph No.2 (repeat) in the alleged letter is sought to be shown as ‘position of the service’ which is not mentioned in the 1979 Rules as such. Rule 4, which deals with the recruitment, has been skipped. Rule 5 has been typed without giving the same paragraph numbers. Besides this, there are other major discrepancies in the document produced by the petitioner along with the petition. If we had relied upon the same, it would certainly mislead the Court in reaching to a right conclusion.

20. The argument raised by the learned counsel for the petitioner was that in terms of paragraph 3(d) of the letter dated 26.02.1980, she was eligible for promotion as she possesses the requisite qualification. However, if the scheme of 1979 Rules is considered, Rule 3 thereof provides for composition of service. The post of Tracer finds mention in three categories namely category I, II and III. The bifurcation is with reference to the office/department in which they have to work. 20.1 Rule 5 provides for direct recruitment and the percentage of sources. Rule 5(1)(e) provides that all posts of Tracers under categories I, II and III shall be filled in by direct recruitment. Rule 5(3) provides for qualifications required for different posts. Rule 5(3)(d) provides for the qualification for the post of Tracer under all three categories. 20.2 Rule 6 provides for promotion and percentage of promotion. As the post of Tracer in all the three categories is to be filled up only by way of direct recruitment, the post in question does not find mention in Rule 6.

21. The method of recruitment for the direct recruited candidates is provided in Rule 7. Sub-rule 1 thereof provides that direct recruitment to the service shall be made by a competitive test to be prescribed and conducted by the Chief Engineer, Road and Building in consultation with the Government Architect. Sub-rule 2 provides that the authority shall issue an advertisement inviting applications in the local newspapers and the Orissa Gazette. The eligible candidates are then required to be called for a written test and viva voce on the basis of which the merit list is required to be prepared. Thereafter, the offer for appointment is to be made to the selected candidates.

22. From a perusal of the aforesaid Rules, it is evident that the post of Tracer in all three categories is to be filled up by direct recruitment 852 only, after following the procedure as prescribed. It is not in dispute that the procedure as prescribed in Rule 7 of the 1979 Rules has not been followed by issuing advertisement and inviting application for the post of Tracer. All what is said is that a Circular was issued in the department inviting applications from the Peons for appointment or promotion for the post of Tracer. This Court in Union Public Service Commission v. Girish Jayanti Lal Vaghela and others8, has emphasised the importance of a public advertisement for inviting applications to a post under the State: “12. … The appointment to any post under the State can only be made after a proper advertisement has been made inviting applications from eligible candidates and holding of selection by a body of experts or a specially constituted committee whose members are fair and impartial through a written examination or interview or some other rational criteria for judging the inter se merit of candidates who have applied in response to the advertisement made. A regular appointment to a post under the State or Union cannot be made without issuing advertisement in the prescribed manner which may in some cases include inviting applications from the employment exchange where eligible candidates get their names registered. Any regular appointment made on a post under the State or Union without issuing advertisement inviting applications from eligible candidates and without holding a proper selection where all eligible candidates get a fair chance to compete would violate the guarantee enshrined under Article 16 of the Constitution. (See B.S. Minhas v. Indian Statistical Institute [(1983) 4 SCC 582 : 1984 SCC (L&S) 26 : AIR 1984 SC 363].)”

23. Now coming to various documents placed on record by the petitioner, at Annexure P-3 is a letter addressed to the Chief Engineer, Public Health seeking appointment to the post of Tracer. It was mentioned therein that she is already working as a Peon for about 09 years and has come to know that some post of Tracer is lying vacant for which 2006 INSC 58 : (2006) 2 SCC 482 [2025] 1 S.C.R.  Jyostnamayee Mishra v. The State of Odisha and Ors. she is eligible. No date as such is mentioned. The same request was repeated in a letter, at Annexure P-4, to the Superintendent Engineer, Public Health Circle, Bhubaneshwar. It is worth noting that a Letter No.189 dated 03.08.1981 of the Deputy Minister of H & T. W Department was enclosed therewith. Copy of the letter dated 24.01.1990 (Annexure P-5) from Executive Engineer, Puri Public Health Division addressed to Superintending Engineer, P.H. Circle has been annexed by which the application of the petitioner was forwarded for consideration. At Annexure P-6 is a letter dated 02.05.1990 from the Petitioner to the Minister of Public Health Department, Bhubaneshwar requesting appointment against the post of Tracer as some posts are lying vacant. A letter dated 05.11.1990 from Executive Engineer, Puri Public Health Division to Superintending Engineer, P.H. Circle forwarding the application of the petitioner is annexed as Annexure P-7. It is followed by a letter written by petitioner dated 07.11.1990 to the Chief Minister, Orissa (Annexure P-8). Immediately thereafter, a letter for the same relief was written by the petitioner on 30.12.1990 to the Minister of Works and U.D. Department, Orissa (Annexure P-9). Vide letter dated 09.03.1999 (Annexure P-13) Peons including the petitioner working in the department were called for appearance in the test on 16.03.1999 for the post of Tracer. Nothing has been mentioned as to the result of this test.

24. At Annexure P-14 and 15, there are two letters dated 28.06.1999 vide which Miss Jhina Rani Mansingh and Sri Lalatendu Rath were appointed as Tracer on promotion basis. From the aforesaid letters, it is evident that they were promoted as Tracer, but on which post they were working is not mentioned. Their names are not mentioned in the letter dated 09.03.1999 vide which documents of Peons working in the Department were forwarded for consideration against the post of Tracer.

25. It was at this stage that the petitioner filed O.A. No.628(C) of 1999. The Tribunal vide its order dated 26.03.1999 disposed of the application at admission stage, directing the respondent to dispose of her representation within three months from date of receipt of order. Entitlement of the petitioner to the relief was required to be considered before direction is issued to the authorities to decide the representation. The Tribunal failed to apply its mind on this issue at that stage. Pursuant to this, vide letter dated 05.07.1999, the 854 respondent communicated to the petitioner that the post of Tracer is not to be filed up on promotion from the lower category of post, since it is not a promotional post and vacancy of Tracer will be filed up in due course by conducting an interview. As wrong action by the authorities is root cause of lot of avoidable litigation and other Peons may have been promoted from the post of Peon to Tracer, aggrieved by the respondent’s decision, the petitioner again filed a representation dated 30.01.2001 for redressal of her grievance and sought promotion on higher post considering her qualification and experience.

26. The petitioner filed another application bearing O.A. No.1126 (C) of 2002 before the Tribunal inter alia praying for the intervention of the Tribunal against the discriminatory action of the respondent authorities with regard to her promotion to the post of Tracer. The aforesaid O.A. filed by the petitioner was transferred from Cuttack to the Principal Bench of the Tribunal at Bhubaneshwar which was disposed of vide order dated 27.09.2010. It was the admitted case of the petitioner before the Tribunal that there are no specific Rules for promotion from Class IV to the post of Tracer but there are precedents available, hence, in the absence of any rule the precedents should be followed. As is evident from paragraph 6 of the aforesaid order, this fact was not disputed by the learned counsel for the State. He had failed to place before the Tribunal the 1979 Rules, which clearly deal with the recruitment to the post of Tracer. Direction was given by the Tribunal to consider the case of the petitioner along with other similarly situated Class IV employees for promotion to the post of Tracer.

27. The representation was rejected by the Chief Engineer vide order dated 23.11.2010 on account of ban on recruitments imposed by the Finance Department. The order was challenged by the petitioner before the Tribunal by filing O.A. No.1696 of 2010. Strange enough to note that, in the counter affidavit filed by the State to the above O.A. filed by the petitioner before the Tribunal, not a single line has been mentioned that the post of Tracer is to be filled up only by way of direct recruitment and not promotion in terms of 1979 Rules. The Tribunal, noting the history that there were two earlier appointments on the post of Tracer by way of promotion and that even the petitioner was earlier considered; the petitioner’s case having not been considered on account of ban imposed on recruitment, disposed of the O.A., [2025] 1 S.C.R.  Jyostnamayee Mishra v. The State of Odisha and Ors. quashing the order dated 23.11.2010 and directing the respondents to consider the case of the petitioner for promotion to the post of the Tracer against any vacant post. In case no post is available, then reverting the last promoted person after direction in the earlier O.A. No.742 of 2009 filed by the petitioner. As the State failed to point out that the 1979 Rules govern recruitment to the post of Tracer, the Tribunal also did not notice the same and went on with the direction to consider the case of the petitioner for promotion. The order passed by the Tribunal was challenged by the State before the High Court.

28. From a perusal of grounds on which the order passed by the Tribunal was challenged by the State shows total non-application of mind, especially in a case which had already undergone three rounds of litigation. Proper facts were not pointed out at any stage. The same legacy followed. In the Writ Petition, reference was made to Works Department No.4775 dated 26.02.1980 and it was mentioned that the petitioner was found to be ineligible in terms thereof. Towards the end in the aforesaid paragraph reference has been made to Rule 3(d) of the Orissa Service of Architect Rules, 1979. A copy of which was annexed with the Writ Petition. The same also has been annexed with the present petition as Annexure P-1. Firstly, there is no Rule 3(d) in the aforesaid rules and secondly, this does not deal with the post of Tracer. It shows that even at the stage of filing SLP before this Court, proper care was not taken to examine the relevant Rules and place the same on record. 28.1 The importance of responsible drafting and diligent pleading was emphasized by this Court in Saumya Chaurasia v. Directorate of Enforcement9, where it was observed that: “13. It cannot be gainsaid that every party approaching the court seeking justice is expected to make full and correct disclosure of material facts and that every advocate being an officer of the court, though appearing for a particular party, is expected to assist the court fairly in carrying out its function to administer the justice. It hardly needs to be emphasised that a very high standard of professionalism and legal acumen is expected from the advocates particularly 2023 INSC 1073 : (2024) 6 SCC 401 856 designated senior advocates appearing in the highest court of the country so that their professionalism may be followed and emulated by the advocates practising in the High Courts and the District Courts. Though it is true that the advocates would settle the pleadings and argue in the courts on instructions given by their clients, however their duty to diligently verify the facts from the record of the case, using their legal acumen for which they are engaged, cannot be obliviated.”

29. There cannot be more casualness than this where the authority of the State is fighting litigation and does not apprise the Tribunal or the Court about the relevant applicable rules. The effort may be to put under covers the illegalities committed by them earlier by granting promotion from the post of Peon to that of Tracer in violation of the 1979 Rules. Even the High Court in the impugned order has not referred to the 1979 Rules but has quoted paragraph 3(d) of the Letter No.4775 dated 26.02.1980. The scheme of the Rules has already been explained in paragraph above. What is said to be paragraph 3(d) of the letter is in fact Rule 5(3)(d) of the 1979 Rules.

30. Though, the claim of the petitioner has been rejected on the ground that she is not eligible for the post of Tracer, however, we need not enter into that arena for the reason that as per 1979 Rules, the post of Tracer is to be filled up to 100% by way of direct recruitment in terms of Rule 5(1)(e) of the 1979 Rules and the method of direct recruitment has been provided in Rule 7 thereof. Undisputedly, the process as provided in the Rules was not followed. The post of Tracer, not being promotional post from the post of Peon, there is no merit in the claim of the petitioner.

31. Another argument was raised while referring to two communications dated 28.06.1999 appointing Ms. Jhina Rani Mansingh and Sri Lalatendu Rath as Tracer on promotion, claiming to be from the post of Peon, on the basis of which the petitioner is claiming violation of Article 14, namely the discrimination. Suffice to add, this Court cannot put a stamp on the illegalities committed by the department while perpetuating the same. 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 [2025] 1 S.C.R.  Jyostnamayee Mishra v. The State of Odisha and Ors. settled proposition of law that Article 14 does not envisage negative equality. Reference for the purpose can be made to a judgment of this Court in R. Muthukumar & others v. The Chairman and Managing Director TANGEDCO & others10. Relevant para thereof is extracted below : “28. A principle, axiomatic in this country’s constitutional lore is that there is no negative equality. In other words, if there has been a benefit or advantage conferred on one or a set of people, without legal basis or justification, that benefit cannot multiply, or be relied upon as a principle of parity or equality. In Basawaraj v. Special Land Acquisition Officer11, this court ruled that: “8. It is a settled legal proposition that Article 14 of the Constitution is not meant to perpetuate illegality or fraud, even by extending the wrong decisions made in other cases. The said provision does not envisage negative equality but has only a positive aspect. Thus, if some other similarly situated persons have been granted some relief/benefit inadvertently or by mistake, such an order does not confer any legal right on others to get the same relief as well. If a wrong is committed in an earlier case, it cannot be perpetuated.”

32. For the reasons mentioned above, we do not find merit in the present petition and the same is accordingly dismissed.

33. Before parting with the order, we are constrained to observe that the case in hand is a glaring example of casualness on the part of the State Authorities while dealing with the litigation. The issue could be resolved at the very first stage when a representation was made by the petitioner seeking promotion to the post of Tracer way back in the year 1991. The chapter could have been closed merely while responding to the same while referring to the relevant statutory 1979 Rules. To some extent it was done but false hopes are created in the minds of employees if some other similarly situated are granted the 2022 INSC 157 : 2022 SCC OnLine SC 151 2013 INSC 551 : (2013) 14 SCC 81 858 benefit, which itself is contrary to the Rules. The letters continued flowing from the petitioner to the respondent, and from one department to another as a shuttlecock, as if there is no other constructive work to do. Even before the Tribunal, the petitioner had three rounds of litigation followed by one Writ Petition before the High Court by the State and thereafter this Court. At none of these stages, the relevant statutory 1979 Rules were referred to either in the counter or in the petition. Such conduct is not expected from the State which is the major litigant and the case in hand is an example of unnecessary generation of litigation by the State where the authorities need to circumspect and be more careful.

34. This lackadaisical approach of the State was also noticed by this Court in Kusha Duruka v The State of Odisha12 where during pendency of the matter before this Court, a fresh bail application was filed and High Court even granted bail to the petitioner. The affidavit filed by the Principal Secretary, Law Department, Govt. of Odisha revealed that the State Counsel was not aware about the rejection of his first bail application as well as the filing of SLP. Noticing efforts being made to pollute the stream of administration of justice, this Court issued several instructions with a view to streamline the proceedings and avoid anomalies with reference to the bail applications.

35. A copy of this order be sent to the Chief Secretary, State of Odisha for perusal and taking appropriate corrective steps.

36. Pending application (if any) shall stand disposed of. Result of the case: Petition dismissed. †Headnotes prepared by: Ankit Gyan 2024 INSC 46 : (2024) 4 SCC 432