STATE OF ORISSA versus MD. FAKIRUDDIN AND DR. (MRS.) GIRISHABALA MOHANTY

Citation: [1993] SUPP. 3 S.C.R. 269 · Decided: 14-10-1993 · Supreme Court of India · Bench: S.C. AGRAWAL · Disposal: Appeal(s) allowed

Judgment (excerpt)

STATE OF ORISSA 
A 
v. 
MD. FAKIRUDDIN AND DR. (MRS.) GIRISHABALA MOHANTY 
OCTOBER 14, 1993 
(S.C. AGRAWAL AND N. VENKATACHALA, JJ.) 
B 
Service Law: 
Education Service 
c 
Orissa Education Service (Senior Administrative Grade) Recruitment 
Rules, 1990 rr.9, 10, JJ, 12, 13-Director, Higher Education-Appointment-
Eligibility-By promotion of Principals (Grade I) ·oi three years' service as 
such with a provision for relaxation of requirement of minimum service 
experience and in absence of a suitable candidate, by trans/ er of a Director D 
of Education Department-Held, Rules do not provide for appointment being 
made from Principals (Grade I) not possessing required minimum experience 
by relaxing service experience by State Government itself, without reference to 
Educational Promotion Board and State Public Service Commission. 
Rule 9 of Orissa Education Service (Senior Administrative Grade) E 
Recruitment Rules, 1990 their prior to as stool amendments In 1992, 
provided that appointment to the post of Director, Higher Education 
should be made by way of promotion from among the officers having 
rendered service of three years as Principal (Grade-I). The promotion was 
to be based on merit and sultablllty with due regard to seniority. The F 
Government was also enabled to relax the condition of minimum service 
experience if adequate number of persons with the required experience 
were not available. 
The appellant-State issued order dated 24.6.1992 appointing respon-
dent no.2 (in both the appeals) as Director, Higher Education by transfer G 
from the post of Director, Elementary Education, as none of the Principals 
(Grade-I) could satisfy the requirement of minimum service experience 
and the Government after examining the question of relaxation of service 
experience, decided not to so relax. Respondents No.1 in both the appeals 
challenged the said order before the Orissa Administrative Tribunal. 
H 
269 
A 
B 
c 
D 
270 
SUPREME COURT REPORTS (1993) SUPP. 3 S.C.R. 
Meanwhile, Rule 9 was amended by the Orissa Education Service 
(Senior Administrative Grade) Recruitment (Amendment) Rules, 1992. In 
the amended Rule 9, though almost all the provisions of rule 9 of 1990 
Rules, were retained and rearranged in its sub-rules (1) and (3) but a 
provision was inserted as sub-rule (2) to the effect that notwithstanding 
anything contained i.n sub-rule (1) where a suitable candidate with the 
required experience was not available to fill up the post of Director, Higher 
Education and the Government was of the opinion that relaxation of such 
requirement would not be in public interest, it may fill up the post by 
transfer of an officer who had held the post of a Director under the 
Education Department. 
The appellant state after the amendment of r.9, again decided not to 
relax the requirement of minimum period of three years' experience as 
envisaged by sub-rule(l), and on 17.10.1992 is sued a fresh order appoint· 
ing by transfer respondent no.2 as Director, Higher Education. 
The Tribunal allowed the applications of respondents no.1 and 
quashed the order of appointment of respondent no.2 as Director, Higher 
Education holding that the same was vitiated by law as there was no 
mate.rial indicating that the State Government before the said appoint-
ment had considered the cases of all the Principals (Grade-I). It directed 
E the State Government to consider the cases of all the Principals Grade I 
and decide whether the required minimum experience could be relaxed for 
appointment of any of the Principals Grade I as Director Higher Educa· 
tion and make such appointment. Aggrieved, the State Government filed 
the appeals. Allowing the appeals, and setting aside the Tribunal's order, 
F 
this Court 
HELD 1.1 In view of the overriding effect of sub-rule (2) on sub· 
rule(l) of Rule 9 of the Orissa Education Service (Senior Administrative 
Grade) Recruitment Rules, 1990 as amended in 1992, it cannot be said that 
the cases of each of the Principals (Grade-I) have to be considered for 
G relaxation even though they did not possess the minimum experience of 
three years as Principal (Grade-I), as a condition precedent for filling up 
the post of Director, Higher Education by transfer of an officer who had 
held the post of Director in the Education Department. The plain language 
employed in the sub-rule makes it incumbent on the State Government to 
H take a decision on the question whether it would be in the public inte

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