- (1.)This is a petition under Art. 226 of the Constitution of India. The petitioner was first appointed as a Marketing Assistant in the State Guest House of the State Government in 1963. He was promoted to the post of Store Keeper in 1964. In 1965 the post of Manager of the State Guest House which was created in 1962, was made permanent. In 1968 one Shri Behera who was the Manager of the State Guest House retired. In 1973, the petitioner was promoted and was allowed to officiate as Superintendent of the State Guest House. On 13-12-73 advertisement was made by the Public Service Commission for filling up the Gazetted post of Manager of the State Guest House and on 14-5-74 the petitioner was appointed as Manager on probation for two years. On 28-9-74 the State Government decided that there will be no incumbent in the post of Manager and the petitioner was reverted and posted to his previous substantive post of Store Keeper. Opposite party no. 2 who was holding the post of Head Assistant of the Home Department was posted as Superintendent of the State Guest House. The petitioner made representation against the aforesaid appointment. By order dated 18-10-74 the post of Manager in Class II in the State Guest House was abolished by the State Government with effect from 28-9-74. The petitioner thereafter submitted a memorial to the Chief Minister on 8-11-74. By order dated 23-12-74 the post of Assistant Manager was created and opposite party no. 2 was appointed as Assistant Manager by order dated 9-1-75 and the petitioner was appointed as Superintendent by the aforesaid order. The petitioner challenges the order of abolition of the post of Manager of the State Guest House as invalid and illegal as there was no decision of the Cabinet to that effect. It is asserted that the matter was never placed before the Cabinet for approval. It is further alleged that the petitioner was not posted as Superintendent on his reversion as the State Government wanted to give protection to opposite party no. 2 and as such the Government had mala fide intention in abolishing the post of Manager and thereby reverting the petitioner.
(2.)In the counter affidavit it has been stated by the State Government that the petitioner was appointed as Manager of the Guest House on probation which was fixed for two years. Prior to that he was officiating as Superintendent of the State Guest House. He had no right to the post of Superintendent and he could not have continued in the said post for all time to come. On grounds of economy and administrative expediency Government decided that there would be no incumbent in the post of Manager of the State Guest House and the Government decided to abolish the Gazetted post of Manager and in its place to create a non-Gazetted post of Assistant Manager at a lesser scale of pay. The abolition of the Gazetted post of Manager and creation of the new post of Assistant Manager were done with the approval of the Cabinet as per Rules of Business. This was a policy of the Government in the exigencies of circumstances and for administrative necessity. After abolition of the post of Manager the petitioner was posted to his substantive post of Store Keeper. Opposite party no. 2 who was then working as Head Assistant in the Home Department was posted as Superintendent. After final decision of the Government, orders were issued appointing the petitioner as Superintendent with effect from 28-9-74, the date on which he relinquished charge as Manager. After detailed examination of the situation Government decided to adjust the petitioner in his former post as Superintendent of the State Guest House. The Government never intended to harm the petitioner in any way. On scrutiny the Government found that the post of Store Keeper as well as the Gazetted post of Manager were not necessary on grounds of economy and administrative expediency. When the posts of Manager and Store Keeper were abolished, the petitioner who had been earlier appointed as Store Keeper was appointed as Superintendent. In any case the petitioner having been appointed as Superintendent with effect from the date on which he relinquished charge as Manager when the post was abolished, no favouritism was shown to opposite party no. 2. Opposite party no. 2 was not an outsider. He was working as Head Assistant in the Home Department. The petitioner can have no claim to any post in the State Guest House as he was not holding any sub-stantive post when he was appointed as Manager. Opposite party no. 2 was selected for the post of Assistant Manager keeping in view his previous experience as Manager of Orissa Bhavan at New Delhi. As the petitioner was trained in catering and hotel management he was adjusted against the post of Superintendent of the State Guest House and was kept in charge of catering. As the petitioner was previously officiating as Superintendent after detailed scrutiny it was decided by the Government to post him as Superintendent and to create a new post of Assistant Manager to be manned by one Head Assistant of the Department. Since the petitioner was not holding any post of Head Assistant of the Home Department and the object of the Government being to man the post of Assistant Manager by one Head Assistant, the petitioner could not have been appointed in that post and opposite party no. 2 who was Head Assistant in the Home Department was appointed as Assistant Manager. It is further asserted that the memorandum containing abolition of the Gazetted post of Manager and creation of a non-Gazetted post of Assistant Manager was placed before the Cabinet for consideration and the Cabinet approved the same.
(3.)The following facts are not disputed. The petitioner was appointed as the Marketing Assistant in the State Guest House in 1963 and he was promoted to the post of Store Keeper in 1964. The post of Manager in the State Guest House was created with effect from 1st August 1962 in the pay scale of Rs. 500-680/-. This post was made permanent by order dated 4-11-65. The post was, however, kept in abeyance with effect from 7-5-69. Another Gazetted post of Manager was created with effect from 1-5-69 in a lower scale of pay of Rs. 260-540/- in the rank of Tourist Information Officer and one Shri Gani was appointed to this post. This post was abolished by notification dated 10-7-1974. It would appear that the petitioner was appointed as Marketing Assistant in 1963 and was appointed as Store Keeper in 1964. He was allowed to officiate temporarily as Superintendent, State Guest House, with effect from 31-5-73. Thereafter he was appointed as Manager in the pay scale of Rs. 520-780/- on the recommendation of the Public Service Commission. The appointment was on probation for two years. At that time the permanent Gazetted post of Manager which had been kept in abeyance on 7-5-69 was revived by order dated 10-7-74 with effect from 14-5-74. On 28-9-1974 a letter was written by the Secretary, Home Department, to the Accountant-General informing that Government had been pleased to decide that there will be no incumbent in the post of Manager. State Guest House (Annexure 4). On the very same date orders were passed that the petitioner on relinquishing from the post of Manager was posted as Store Keeper with effect from that very date (Annexure 5) and opposite party no. 2 who was head Assistant, Home Department, was relieved from the said post and was appointed as Superintendent. State Guest House, until further orders (Annexure 6). On 18-10-74, the Secretary, Home Department, informed the Accountant-General that in continuation of the previous letter dated 28-9-74 the Government was pleased to abolish the post of Manager of the State Guest House with effect from 28-9-74 (Annexure 7). This was also intimated to the petitioner. By order dated 9-1-75 opposite party no. 2 was appointed as Assistant Manager until further orders and the petitioner was appointed as Superintendent with effect from 28-9-74. By this order the Home Department order dated 28-9-74 was cancelled. The petitioner was also informed of this (Annexure 8).