D. P. Mohapatra, J. - (1.)The appellant, Shri P.S.N. Rao, who was a Joint Director of Industries, then working as Principal, College of Accountancy and Management Studies at Cuttack filed the writ petition OJC No. 1621 of 1980 in the High Court of Orissa against the Government of Orissa represented by Secretary to Government Industries Department, Shri R. J. Jachuck, Joint Director of Industries, then working as General Manager, IPICOL, Orissa and Shri Khageswar Das, Director of Technical Education and Training, Orissa seeking the reliefs inter alia :-
"(i) Quashing of the Government Orders appointing the opposite parties 2 and 3 (described as such in the writ petition) to Class-I (Jr.) grade and to Class-I (Sr) grade posts earlier than the petitioner's appointment to these grades;

(ii) Quashing of the Industries Department notification No. 14016-I, dated 17/20th August, 1960 in which the pay scale of the post of Lecturer (Mining) was upgraded from the scale of pay of Rs. 200-700/- to the scale of pay of Rs. 300-860/-;

(iii) Quashing of the appointment of opposite party No. 3 to the Class-I pay scale of Rs. 300-860/- vide Industries Department notification No.9659_I dated 20th June, 1961 without consideration of the case of the others including the petitioner;

(iv) The Public Service Commission advertisement No. 9 dated 29th June, 1962 in which only bachelor's degree in Mining Engineering was prescribed as the required qualification for the post of Principal, Orissa School of Mining Engineering, Keonjhar;

(v) Quashing of the Industries Department notification No. 20290-I dated 21-12-1961 in which the opposite party No. 3 was appointed as the Principal of the School of Mining Engineering, Keonjhar on ad hoc basis and Industries Department Notification No. 23352-I, dated 10-12-1962 in which the said opposite party No. 3's appointment as Principal was regularized;

(vi) Quashing of the Industries Department order in which the post of Principal, Orissa School of Mining Engineering, Keonjhar was upgraded to the rank of Joint Director retrospectively and Govt. order promoting opposite party No. 3 to that post with effect from 15-10-1968;

(vii) Quashing of the Industries Department notification No. 6400-I dated 12-3-1980 in which the opposite party No. 3 was appointed as Director of Technical Education and Training without consideration of the case of the petitioner;

(viii) For issue of a writ of mandamus directing the opposite party No. 1 to restore petitioner's seniority over opposite party No. 2 and opposite party No. 3 and redetermine the petitioner's seniority in each class and grade;

(ix) For issue of a writ of mandamus directing the opposite party No. 1 to consider the case of the petitioner for promotion to the post of Joint Director of Industries from 15-10-1968 and to the post of Director of Technical Education and Training from 12-3-1980 with all consequential service benefits etc."

(2.)The gist of the case of the petitioner (in the writ petition) set out in the writ petition was that on being selected by the Orissa Public Service Commission, he was appointed as an Assistant Engineer on 14-10-1955 in Class-II of Orissa Engineering Service in the pay scale of Rs. 200-700 and he joined the post on 18-10-1955. The opposite party No. 2 (in the writ petition) was appointed as a District Industries Officer in the Industries Department in Class-II of the State service in the scale of Rs. 200-700 and he joined the post on 8th March, 1957. The opposite party No. 3 was appointed as a lecturer in mining in the Orissa School of Mining Engineering, Keonjhar on 6th February, 1960 also in the scale of Rs. 200-700. The petitioner and the opposite parties Nos. 2 and 3 who were appointed in the same scale were placed under the administrative control of three different departments; while the petitioner was placed under the Works Department, opposite party No. 2 was placed under the Industries Department and opposite party No. 3 was placed under the Mining and Geology Department. It was the case of the petitioner that reckoned from the date of appointment he was senior to opposite party Nos. 2 and 3. It was the further case of the petitioner that after his appointment in the department he was transferred to the Berhampur Engineering School with effect from 30th November, 1956. Then the Berhampur Engineering School was a private institution; its management was taken over by the State Government on 12th November, 1958 and the institution was placed under administrative control of the Industries Department. Likewise the Orissa School of Mining Engineering was transferred to the administrative control of the Industries Department with effect from 1-4-1960. According to the petitioner after this date all the three appointees, himself and opposite party Nos. 2 and 3, were placed under the administrative control of the Industries Department and were entitled to be considered at par for the purpose of promotion; on the other hand contended the petitioner that the treatment meted out to him was discriminatory and unfair. He was not considered as a member of the General Industries cadre since he was assigned a place in the teaching cadre of the Department; consequently he was not considered for any higher post on the general side till 4-9-1973 and was also not considered for any post in the Orissa School of Mining Engineering, Keonjhar. The petitioner made a grievance of the order of appointment issued to him as lecturer in the Berhampur Engineering School with effect from 1-3-1959 contending that by the said order he lost the service for the period from 18-10-1955 to 1-3-1959. The further grievance of the petitioner was that he was not considered for promotion to the post of Deputy Director (Small Scale) when the opposite party No. 2 was considered and promoted to that post on 7th April, 1962 on the erroneous ground that the petitioner was in the teaching cadre whereas the promotional post was in the general cadre, subsequently the said opposite party No. 2 was promoted to the post of Principal of Rourkela Polytechnic vide Industries Department notification No. 7448-I dated 13-4-1967 bypassing the case of the petitioner. At that time the ground for non-consideration of the case of the petitioner for promotion to the post which was in the teaching cadre was that the opposite party No. 2 had already got Class-I (Jr) grade post of Deputy Director earlier. The process of unfair treatment towards the petitioner continued and opposite party No. 2 was once again considered and promoted as Joint Director of Industries with effect from 15-10-1968 to the exclusion of the petitioner. The petitioner further contended that he was not considered to higher posts in general cadre on the same plea that he belonged to the teaching cadre of the department; he was not considered for promotion to posts in Class-I (Jr) grade, Class I (Sr) special grade against posts of Principals and Special Officer and finally for posts of Joint Director in Class-I (Sr.) grade when serveral officers junior to him like Opposite Party No. 2 Shri R. J. Jachuk, Shri R. N. Pujhari, Shri B. B. Das, Shri D. C. Mahapatra, Shri N. C. Mishra and Shri B. P. Pal were considered and promoted. All these officers were considered and appointed in Class-I (Jr.) grade, Special grade and Class-I (Sr) grade on 7-4-1962, 13-4-1967 and 15-10-1968 respectively but always excluding the petitioner from consideration. In the circumstances the petitioner claimed to be entitled to be considered for promotion to the aforesaid ranks from the respective dates when the officers junior to him were considered.
(3.)So far as Shri Khageswar Das, opposite party No. 3 was concerned the case of the appellant was that the said opposite party was not considered for promotion to the post of Joint Director along with opposite party No. 2 on the ground that he belonged to the Orissa School of Mining Engineering which was an ex-cadre institution. Shri Das did not make a grievance out of it so long he was getting benefits of being alone considered for promotion to Class-I in the Orissa School of Mining Engineering to the exclusion of the every body else in the Department including the petitioner. It was only when he found that there was no post of an equivalent rank of Joint Director of Industries in the Orissa School of Mining Engineering, he filed a writ petition, OJC No. 129 of 1970 in the High Court challenging the appointment of Shri R. J. Jachuck to the post. In that case the High Court held that with the transfer of the Orissa School of Mining Engineering to the administrative control of the Industries Department, Shri Khageswar Das was brought to the common cadre of the Industries Department with effect from 1-4-1960 when the Orissa School of Mining Engineerng had been taken over. Accordingly, the High Court directed the Government to consider him for promotion to the post of Joint Director with effect from 15-10-1968 when Shri R. J. Jachuck had been considered and promoted to that rank. The Supreme Court upheld the decision of the High Court and dismissed the appeal filed by the State Government. The State Government carried out the order of the High Court by upgrading the post of Principal of the Orissa School of Mining Engineering to the rank of Joint Director of Industries restrospectively with effect from 15-10-1968 and placed Shri Khageswar Das against the upgraded post and thus he became a Joint Director of Industries. Here again the appellant made a grievance that the posts of Principals of other Engineering Schools though in the cadre were not upgraded nor the case of the petitioner was considered for promotion to the upgraded post of Principal of that school on the old plea that the Orissa School of Mining Engineering was an ex-cadre institution and other officers of the cadre had no right of being considered for the post in the said institution. The petitioner claimed that he should also have been considered for the post of Principal of Orissa School of Mining Engineering along with Shri Khageswar Das. As a consequence of the order of the High Court that Shri Khageswar Das was taken to have been in the common cadre of the Department right from 1-4-1960 on which date the Orissa School of Mining Engineering, Keonjhar had been transferred from the Mining and Geology Department to the administrative control of the Industries Department the officers of the Department including the petitioner who had not been considered for promotion to the post of Principal of that School along with Shri Khageswar Das on the footing that he was an ex-cadre officer, should also have been considered for promotion after the decision of the High Court. But that was not done. It was the further case of the petitioner that Shri Khagewar Das who was a lecturer in Class-II in the School of Mining Engineerng said to be holding an ex-cadre post was given an advantage when the post held by him was upgraded to Class-I whereas other posts of lecturer in the other branches of Engineering such as Civil, Electrical and Mechanical in other Engineering Schools remained in Class-II. Thus, Shri Khageswar Das was given advantage of holding higher post against which others could not make any grievance since the stand of the State Government was that the Orissa School of Mining Engineering was an ex-cadre institution and holders of the posts therein were ex-cadre officers. Even for filling up the post of principal of the Orissa School of Mining Engineering by promotion the qualification of a bachelor's degree in Mining Engineering was prescribed on account of which the petitioner was not considered for promotion and Shri Khageswar Das who was the sixth candidate and who alone had that qualification was given the appointment. A further promotion was given to Shri Khageswar Das by appointing him as Director of Technical Education and Training vide Industries Deprtment notification No. 6400-I dated 12-3-1980. The grievance of the appellant was that on such appointment the petitioner who was senior to Shri Khageswar Das by about 5 years was made to work as junior to him.