LexJYOSTNAMAYEE MISHRA versus THE STATE OF ODISHA AND ORS.
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[2025] 1 S.C.R. 834 : 2025 INSC 87 Jyostnamayee Mishra v. The State of Odisha and Ors. (Special Leave Petition (Civil) No. 13984 of 2023) 20 January 2025 [J.K. Maheshwari and Rajesh Bindal,* JJ.] Issue for Consideration Whether an employee in an establishment is entitled to claim promotion on a post for which he does not fall in the feeder cadre and the post is required to be filled up 100% by way of direct recruitment; whether a vacancy meant for direct recruitment can be filled up merely by issuing a circular in the establishment and not by issuing an advertisement calling application from the eligible candidates from public at large. Headnotes† Sub-ordinate Architectural Service Rules, 1979 – Claim of petitioner for the post of Tracer on promotion basis – Petitioner herein was working as a peon with respondent-State – Petitioner disappointed with the various rounds of the litigation before the Tribunal followed by writ petition before the High Court – Petitioner alleged the discriminatory action of the respondent authorities with regard to her promotion to the post of Tracer as two persons were promoted by communications dated 28.06.1999 from the post of peon to Tracer – Petitioner is claiming violation of Article 14 of the Constitution: Held: The claim of the petitioner has been rejected on the ground that she is not eligible for the post of Tracer – As per 1979 Rules, the post of Tracer is to be filled up to 100% by way of direct recruitment in terms of Rule 5(1)(e) of the 1979 Rules and the method of direct recruitment has been provided in Rule 7 thereof – Undisputedly, the process as provided in the Rules was not followed – The post of Tracer, not being promotional post from the post of Peon, there is no merit in the claim of the petitioner – As far as violation of Article 14 and discriminatory action is concerned, this Court cannot put a stamp on the illegalities committed by the department while perpetuating the same – A litigant coming to * Author [2025] 1 S.C.R. 835 Jyostnamayee Mishra v. The State of Odisha and Ors. the Court cannot claim negative discrimination seeking direction from the Court to the department to act in violation of the law or statutory Rules – It is a settled proposition of law that Article 14 does not envisage negative equality – Thus, there is no merit in the petition – In the case in hand there was casualness on the part of the State Authorities while dealing with the litigation – Even before the Tribunal, the petitioner had three rounds of litigation followed by one Writ Petition before the High Court by the State and thereafter this Court – At none of these stages, the relevant statutory 1979 Rules were referred to either in the counter or in the petition – Such conduct is not expected from the State which is the major litigant and the case in hand is an example of unnecessary generation of litigation by the State where the authorities need to circumspect and be more careful. [Paras 30, 31, 33] Sub-ordinate Architectural Service Rules, 1979 – Rules 5, 6, 7 – Post of Tracer – Category to be filled by direct recruitment – Importance of public advertisement – Whether in the instant case, the procedure prescribed in Rule 7 was followed: Held: From a perusal of the Rules, it is evident that the post of Tracer in all three categories is to be filled up by direct recruitment only, after following the procedure as prescribed – It is not in dispute that the procedure as prescribed in Rule 7 of the 1979 Rules has not been followed by issuing advertisement and inviting application for the post of Tracer – All what is said is that a Circular was issued in the department inviting applications from the Peons for appointment or promotion for the post of Tracer – The Supreme Court in Union Public Service Commission v. Girish Jayanti Lal Vaghela and others, has emphasised the importance of a public advertisement for inviting applications to a post under the State. [Para 22] Case Law Cited Saumya Chaurasia v. Directorate of Enforcement [2023] 15 SCR 848 : (2024) 6 SCC 401; R. Muthukumar & Others v. The Chairman and Managing Director TANGEDCO & Others, 2022 INSC 157 : [2022] 1 SCR 577 : 2022 SCC OnLine SC 151 – relied on. Union Public Service Commission v. Girish Jayanti Lal Vaghela and Others [2006] 1 SCR 1006 : (2006) 2 SCC 482; Basawaraj v. Special Land Acquisition Officer [2013] 8 SCR 227 : (2013) 14 SCC 81; Kusha Duruka v. The State
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