Judgment :-

M.Y. Eqbal, J.

C.A.No.1967 of 2013 arising out of SLP(Civil) No.20635/2011

Leave granted.

2. This appeal at the instance of State of Orissa is directed against the judgment and order dated 08.10.2010, whereby the Division Bench of the Orissa High Court refused to interfere with the order passed by the Orissa Administrative Tribunal in O.A. No.97/2009.

3. The facts of the case in brief are as under:

4. The respondent was appointed pursuant to the advertisement dated 5.4.1984 on the post of Ore Dressing Engineer in Class-1 Junior Grade of the State Services in the pay scale of Rs.850-1450. The respondent in response to the appointment letter dated 2.11.1984 joined in the said service on 14.11.1984. Between 18.6.1996 and 19.6.2001 he was deployed in Steel and Mines Department on certain terms and conditions, but he was to draw the salary from the Directorate of Geology. He was again deployed as officer on Special Duty in Steel and Mines Department between 10.9.2003 to 8.9.2006 on certain terms and conditions and he was also drawing the salary and other service benefits from the Directorate of Geology. The post of Ore Dressing Engineer in the office of the Directorate of Geology was temporarily upgraded on 1.9.2008 as OSD-cum-Deputy Director in the scale of Rs.9350-14550/- and he was allowed to continue in the upgraded post. However, this post was termed as ex-cadre and the post of OSD-cum-Deputy Director was to lapse on his retirement. The respondent filed Original Application before the Tribunal with a prayer that he should be re-designated as OSC-cum-Deputy Director (Steel) instead of OSD-cum-Deputy Director (ex-cadre). All the representations in this regard were rejected by the department for which the opposite party had to approach the Tribunal.

5. The said application of the respondent before the Tribunal was resisted by the State on the ground that the post of Ore Dressing Engineer advertised by OPSC was an ex-cadre post and that the respondent continued in ex-cadre post through out. It was admitted by the respondent that the services of the opposite party had been placed with Steel and Mines Department, but he was reverted back to the Directorate of Geology since his services in the Department of Steel and Mines was not found to be useful. There being no scope of promotion in the ex-cadre post held by the respondent, the government decided to upgrade the same as Ore Dressing Engineer (ex-cadre) in the Directorate of Geology and re-designated the same as OSD-cum-Deputy Director (ex-cadre). The respondent having availed the benefits of the said upgraded post, requested for re-designating the said post as OSD-cum-Deputy Director (Steel).

6. Mr.L.Nageshwar Rao, learned senior Advocate appearing for the petitioner/Sate referring to several documents and rules submitted that the post of Ore Dressing Engineer in Class-1 Junior Grade is not available in the Directorate of Geology. The cadre rules do not provide such a post and, therefore, from the beginning the said post was treated as ex-cadre post. According to the learned counsel, the respondent was appointed against the said ex-cadre post and continued as such till his services were placed in the Department of Steel and Mines for certain period. After being reverted to the Directorate of Geology, he again continued in the said ex-cadre post. However since there being no scope of promotion, the Government decided to upgrade the post held by the respondent and re-designated it as OSD-cum-Deputy Director (ex- cadre) and the respondent accepted the same and has been continuing in the said post. It was further submitted by the learned Additional Solicitor General that the respondent having worked against an ex-cadre post all through, he cannot claim that the said post be included in the cadre.

7. Per contra, Mr. Patwalia, the senior Advocate for the respondent at the very outset submitted that the case of the State that the post of respondent is an ex-cadre post is baseless, mis