This Appeal has been filed by the appellants challenging the judgment dated 26.09.2008 passed by the High Court of Orrisa at Cuttack (for short “ the High Court ”) in Writ Petition (C) No 7080 of 2005.
These rules regulated the in-situ promotion of Scientific and Technical Group A posts and were called The Scientific and Technical Group “A” (Gazetted) posts in the Ministry of Information Technology (in-situ Promotion under Flexible Complementing Scheme) Rules 1998 (for short “ Rules ”).
On 30.12.2000, she was again called for interview but again she could not find place in the promotion list, while her juniors were recommended and granted promotion vide order dated 14.02.2001.
We are not however impressed with the prayer of the applicant that the respondents should give her promotion to Scientist E (Grade of Technical Director) from the date when her juniors were promoted to the said post as the promotion policy of the scientist is not based on the principle of seniority but wholly and solely on the basis of merit as propounded by them both in the counter as well as before us during oral argument. In the said Writ Petition filed before the High Court, vires of Rule 4(b) was not under challenge.
The operative part of the order passed by the High Court is reproduced as thus: “In view of the above, we allow the writ application with the following directions: (A) We declare Rule-4(b) of the Ministry of Information Technology (In- situ promotion under Flexible Complementing Scheme) Rules, 1998 to be invalid in law and fixation of the basis of percentage in interview to be excessive and beyond the limits prescribed by the Hon’ble Apex Court in the case of Ashok Kumar Yadav (supra). For ready reference, prayer made in the original application is reproduced as under:-
“It is therefore humbly prayed that this Hon’ble Tribunal may be graciously pleased to issue notice to the Respondents for show cause as to why the prayer made here under shall not be allowed.
(C)
No 7080 of 2005 seeking a writ in the nature of certiorari for setting aside the order dated 04.05.2005 passed by the CAT. 1 did not set out any grounds to declare Rule 4(b) of the Rules as ultra vires. Marlapalle, learned senior counsel along with Shri Shibashish Mishra appearing on behalf of the respondents and intervenors, as to how, in absence of any pleading setting out grounds challenging the vires of Rule 4(b) and in the absence of seeking any relief to that effect, the High Court was justified in exercising jurisdiction to declare Rule 4(b) as ultra vires? We are also of the considered view that, in the writ petition seeking a writ of certiorari challenging the order of the CAT, the High Court ought not to have declared Rule 4(b) as ultra vires in the above fact situation.
Case Title: UNION OF INDIA Vs. MANJURANI ROUTRAY
Case Number: C.A. No.-002299-002299 / 2010
