Ex Cadre Post Cannot Be Converted Into Cadre Post
The Supreme Court of India was recently hearing an appeal petition filed by State of Odisha (in State of Orissa v. Shri Jagabandu Panda in Civil Appeal No. 1967 of 2013) against the decision of the High Court and Orissa Administrative Tribunal wherein it had been held that the Directorate of Geology should consider the experience of the respondent on the same footing for career advancement in relation to other comparable class I Engineers appointed in the former Directorate of Mining and Geology and should treat the respondent as the junior most batch and should accordingly consider him for promotion from date of his junior were so considered from time to time.
The matter pertained to the appointment of there spondent (Shri Jagabandu Panda) as Ore Dressing (OSC) Engineer in class I against a temporary vacancy in Directorate of Mining and Geology created for specific purpose of Ore Dressing under the Scheme of Mineral development. This post was subsequently upgraded to the OSC Deputy Director ex-cadre. The respondent soon after his appointment had made series of representations to the government to upgrade the post and make it cadre post of OSC Deputy Director (steel) on the ground that he had worked for the OSC Engineer for 26 years and the said post could not have continued for indefinite period.
The respondent filed petition to the Orissa Administrative Tribunal for his appointment as Deputy Director (steel). The tribunal refused his prayer of appointment as OSC Deputy Director (Steel) and observed that it is the government who determines as to the requirement of services (of the government) of a particular official against particular post and it cannot endorse the appointment of the respondent to the said post. However, the tribunal also held that the case of the respondent should be considered for career advancement in comparison to other class I engineer appointed in 1984 as he was called ex-cadre only after his appointment to the post and there was no note indicating that he was appointed as ex-cadre though he was in fact appointed against the ex-cadre post. The State of Orissa appealed against the decision of the tribunal in the High Court that affirmed the decision of the Tribunal. The state of Orissa finally filed an SLP (Special Leave Petition) to the Supreme Court.
The Supreme Court of India after looking into facts and circumstance of the case observed that respondent was well aware of his appointment to ex-cadre post and had made series of representations to the government for the up gradation of the post and for being open to promotional avenues. The court also held that the post was created for a specific purpose of mineral research under the Scheme of Mineral Research and observed that the respondent was well aware of the said fact that he was holding the post of OSC Engineer only for the special specified reason and the post had been created for specific purpose temporarily outside the cadre of mining Engineers.
The court further observed that cadre generally consist of permanent and temporary post and may also include permanent post in permanent and temporary post but that does not lead to an indication that appointment that has been made outside the service and outside the cadre must be considered to have been made to the temporary post born on the cadre merely on the ground that the post was likely to have continued indefinitely. The Supreme Court also relied on the judgment of T.N Administrative Service Officer Association and Another V. Union of India (2000) 5 SCC 728 wherein the court refused to issue writ of mandamus for the encradment of ex-cadre officers and had observed that the issuance of mandamus for encadrement of ex-cadre post shall amount to asking the government to create more post and shall run counter to the statuary provisions of creation of the cadre and fixation of the cadre strength.
The Supreme Court of India relying on the above principles held that the direction issued by the Tribunal and the order of the High Court affirming the order of the Tribunal is wholly without jurisdiction and set aside the order of the High Court.