The post of Tracer must be filled by direct recruitment as per the 1979 Rules, and the petitioner was ineligible for promotion from the post of Peon.

JUDGMENT :

RAJESH BINDAL, J.

1. This Court had been called upon to examine the validity of an order passed by the Court below where the parties failed to produce proper documents or annexed incorrectly typed documents. This does not happen in isolation, rather is a routine, which sometimes results in miscarriage of justice in case the issues are not examined in detail with proper assistance of the parties, especially ridicule.

2. The challenge in the present petition is to the order of the High Court¹ [High Court of Orissa at Cuttack] dated 12.10.2022 passed in Writ Petition² [Writ Petition Civil (OAC) No. 18463 of 2017] filed by the State where the order passed by the Tribunal³ [Orissa Administrative Tribunal, Bhubaneshwar] dated 08.01.2016 in an application⁴ [O.A. No. 1696 of 2010] filed by the petitioner was set aside.

3. An interesting issue which arises is as to whether an employee in an establishment is entitled to claim promotion on a post for which he does not fall in the feeder cadre and the post is required to be filled up 100% by way of direct recruitment? Another important issue is 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?

4. The petitioner herein was working as a peon with respondent-State. She was appointed as such in the year 1978. The petitioner filed a representation dated 07.01.1999 to be appointed to the post of Tracer.

5. While the said representation was pending, the petitioner filed O.A. No. 628(C) of 1999 before the Tribunal at Cuttack. The same was disposed of at admission stage vide order dated 26.03.1999, directing the respondent therein to dispose of her representation within these months from date of receipt of order. Pursuant to this, vide letter dated 05.07.1999 respondent communicated to the petitioner that the post of Tracer will not 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 the interview.

6. The petitioner filed another application bearing O.A. No. 1126(C) of 2002 before the Tribunal inter alia seeking 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 said O.A. was later transferred to the Principal Bench of the Tribunal at Bhubaneshwar and was registered as O.A. No. 742 of 2009.

7. Learned Tribunal vide order dated 27.09.2010 disposed of the said O.A. directing the respondent to consider the case of the petitioner along with similarly placed Class-IV Employees for their promotion to the post of Tracer against available future vacancy within a period of three months from the date of communication of the order.

8. Vide order dated 23.11.2010, passed in compliance to the order of the Tribunal dated 27.09.2010 passed in the Application⁵ [O.A. No. 742 of 2009] filed by the petitioner, her representation for appointment on the post of basic level Tracer was rejected due to ban on recruitments imposed by the Finance Department.⁶ [Office Memorandum No. 10954 dated 14.03.2001]

9. In the third round of litigation, in the Application⁷ [O.A. No. 1696 of 2010] filed by the petitioner before the Tribunal impugning the order dated 23.11.2010, vide order dated 08.01.2016, the respondent was directed to promote/appoint the petitioner on the post of Tracer against any vacant post. In case no post is available, then the last person so promoted, after the direction was issued in the earlier O.A. filed by the petitioner, be reverted. Strangely enough to note here that no person was impleaded as party, who may be affected by the order passed by the Tribunal in case benefit is given to the petitioner. A Review Petition bearing R.P. No. 28 of 2016 preferred by Respondent therein, was rejected vide order dated 28.02.2017.

10. Aggriev