- (1.)In this petition under Article 226 of the Constitution challenge is to the order dated April 9, 1975 (Annexure 8) cancelling the appointment of the petitioner as Assistant Engineer (Civil) as notified previously in the notification dated December 20, 1973.
(2.)Shortly stated the facts are that the petitioner after obtaining a diploma in Draughtsmanship was appointed a sub-overseer in Planning and Co-ordinate (C. D.) Department. As sub-overseer he was transferred to the Revenue Department and was later on sent to Rural Engineering Organisation, another wing of the same department. In 1963 he was promoted as overseer with effect from June 12, 1963 and the promotion was approved by the Government. In May 1964 his services were again placed at the disposal of the Director of Irrigation. In March, 1973 he was asked for option if he wanted to be absorbed in the Lift Irrigation cadre and on his exercising the option he was absorbed in the Lift Irrigation cadre. The absorption was concurred in by the Chief Engineer concerned. In June, 1974 the petitioner appeared in the professional examination held by the Government and was declared successful and thereafter continued in the Lift Irrigation cadre. He was recommended for promotion along with others to the post of Assistant Engineer. The matter was referred to the Public Service Commission for approval according to the provisions of the Orissa Service of Engineers Rules, 1941 (hereafter called the 1941 Rules) which governed the petitioner. In October 1973 the Public Service Commission concurred with the recommendation of the Government. On December 20, 1973, Government issued the promotion order to the petitioner along with 5 others to the post of Assistant Engineer, but in spite of this promotion order no posting order was issued. The petitioner made several representations in this regard, but without result. On February 17, 1975 the petitioner filed this writ petition praying for a writ of mandamus directing the opposite parties to forthwith implement the order of appointment and issue a letter of posting, and grant him all arrears of dues in the rank of Assistant Engineer. On February 21, 1975 the learned Additional Government Advocate prayed for time to obtain instructions and the case was adjourned to February 28, 1975. On this date notice of admission and hearing was issued returnable within a week. On April 9, 1975 the opposite parties issued an order cancelling the promotion of the petitioner. The petitioner applied for amendment of the writ petition which was allowed and that is how in the amended petition the prayer is that the order of cancellation of promotion be quashed and the opposite parties be directed to grant him all arrears of the dues in the rank of Assistant Engineer.
(3.)In the counter affidavit filed by the opposite parties it is not disputed that the Public Service Commission recommended the name of the petitioner for appointment to the post of Assistant Engineer and also that in pursuance of this order the State Government issued the appointment letter as stated by the petitioner. But it is contended that in the meantime the Orissa Service of Engineer's Rules, 1941 were amended by the State Government on December 7, 1974 by notification No. 31850 E (S. R. O. 898/74) (hereafter called the Amended Rules) giving the amendment retrospective effect with effect from January 1, 1972 and as under the Amended Rules the petitioner did not have the requisite qualification for appointment as Assistant Engineer the appointment order was cancelled.