Decided on July 12,1973

State of Orissa and Ors. Respondents


R.N. Misra, J. - (1.) THE Petitioner was appointed temporarily as a tax clerk by the Notified Area Council, Bhubneswar. Subsequently at a regular selection he was accepted and continued in service. The resignation of the post which the Petitioner held was changed to law and accounts clerk. With effect from 30 -9 -1952, after the promulgation of the Orissa Municipal Act of 1950, the Notified Area Council of Bhubaneswar came to be governed by that Act. By a resolution of the Notified Area Council on 19 -6 -1954 the Petitioner was confirmed in the post of law and accounts clerk. With effect from 23 -6 -1954 the Municipal Rules framed under the Orissa Municipal Act came into force. Under Rule 427 of those Rules the minimum educational qualification required for the post of a lower division clerk was prescribed to be as being a matriculate. Though the Petitioner was not a matriculate his service was not disturbed, according to the Petitioner, because (1) the Rules had no retrospective operation, (2) the Petitioner had been confirmed already, and (3) he had been putting in satisfactory work. The Notified Area Council decided to request the Government to waive the requirement of educational qualification so far as the Petitioner is concerned being under the impression that to the Petitioner the prescription applied, and on 19 -7 -1955 the Local Self Government Department of the State Government exempted the requirement. On 21 -7 -1961 the Petitioner came to be promoted as an upper division clerk. On 3 -4 -1967, Government passed orders exempting the Petitioner for passing the preliminary accounts test which was another qualification for the promoted post. On 14 -7 -1969, the Petitioner was allowed to cross the efficiency bar in the higher scale. The Petitioner worked as accounts head -clerk and tax daroga and came to receive higher scales of pay. On 3 -10 -1969, while the Revenue Divisional Commissioner was inspecting the office of the Notified Area Council he found certain defects in the work of the head -clerk (one Shri P.C. Nanda). Consequently the said Sri Nanda was reverted to the post of lower division clerk. In July, 1970 the representation of Sri N and a against his reversion was rejected by the Notified Area Council. On 27 -10 -1970, however, while the Petitioner was continuing in the promoted post, Government withdrew the previous orders exempting the Petitioner from being a matriculate and passing the accounts test with a view to treating the said Shri Nanda equally with the Petitioner. On 7 -4 -1971, the Petitioner was communicated the order of the Chairman of the Notified Area Council that with effect from 15 -5 -1971 the Petitioner would be reverted to the post of tax clerk in view of the withdrawal of the exemptions. The representations of the Petitioner to the Director of Municipal Administration and the State Government were later rejected but with effect from 15 -9 -1971, without waiting for the result of the representations, the Petitioner was reverted to the post of tax clerk. It is against this order of reversion that the Petitioner has come before this Court asking for a quashing of the order which is said to be consequent upon the Government direction withdrawing the exemptions.
(2.) TWO separate affidavits have been filed -one by the State (opposite party No. 1) and the other by the Chairman, Notified Area Council (Opp. party No. 2). There is no dispute that the action of the Notified Area Council in reverting the Petitioner to the post of tax clerk is the direct consequence of the Government order withdrawing the exemptions granted to the Petitioner. On 19 -7 -1955, the following order had been passed by Government in the matter of exempting the Petitioner from the requirement of being a matriculate. I am directed to say that Government in exercise of the powers conferred by Rule 604 of the Orissa Municipal Rules, have been pleased to relax the educational qualification prescribed by Rule 427 in respect of Shri Banchhanidhi Das (Petitioner), a non -matric L.D. Clerk of the Notified Area Council, Bhubaneswar. (Annexure -2). On 3 -4 -1967, the further communication of exemption regarding the passing of preliminary test in accounts was to the following effect: In continuation of this Department letter dated 15 -5 -1964 cited above, I am directed to say that after careful reconsideration of the case of Sri B.N. Das of Bhubaneswar Notified Area Council, Government have been pleased to exempt him from passing the preliminary test in accounts for holding the post of U.D. clerk under the said Notified Area Council. (Annexure -4). The impugned Government order dated 27 -10 -1970 which led to the reversion of the Petitioner is as follows: I am directed to say that as it is noticed from the service books of Shri Puma Chandra Nanda and Sri Banchhanidhi Das, employees of Bhubaneswar N.A.C. Sri Nanda is senior to Sri Das. But Sri Das supersedes Sri Nanda at present as he has been exempted from having requisite qualifications to hold the posts of lower division clerk and other upper division posts under the N.A.C. In order to treat them equally under the N.A.C. establishment it has been considered necessary to revoke the orders of exemption of Sri Das. As such the orders communicated in Development (L.S.G.) Department letter No. 5179 -L.S.G. dated 19 -7 -1955 and Health (L.S.G.) Department letter No. 6222 -L.S.G. dated 15 -5 -1964 and No. 5698 -U.D. dated 3 -4 -1967 exempting him from having requisite qualifications are revoked. Sri Banchhanidhi Das may be adjusted against the post for which he actually is qualified under the rules. This may be implemented immediately and compliance be reported. It may be ensured that in no case departure is made from the rules and appointments made.
(3.) MR . Rath for the Petitioner raises three contentions in the main. (1) The requirement of educational qualification is contained in the Orissa Municipal Rules which came into force with effect from 23 -6 -1954. The Petitioner had by then been confirmed in the post of law and accounts clerk. As the Rules are not retrospective the prescription of qualification in the Rules would not apply to the Petitioner. (2) Exemption had been granted in exercise of powers under Rule 604 of the Orissa Municipal Rules and such power having been exercised and exemption having been granted the present order was wholly unjustified. (3) Government having granted exemption so far as the requirement of being a matriculate is concerned in the year 1955 (that is, 15 years before the impugned order) and exempting the Petitioner from passing the account test in 1967 (more than 3 years before the impugned order) are estopped from passing the present order so far as the Petitioner is concerned. If the prescription of qualification applied to the Petitioner and exemption had been granted the Petitioner could have found out any other employment by quitting service under the Notified Area Council. Having extended a benefit to the Petitioner after long 15 years the exemption could not be withdrawn and that again without affording any opportunity to the Petitioner of representing his case in that regard. It is contended with vehemence that an advantage had accrued to the Petitioner from the exemptions and evil consequences were bound to follow from the withdrawals of the exemptions. That justified at least an opportunity being provided to the Petitioner of being heard in the matter before the impugned order could have been made.;

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