The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P(C) Nos.17268 of 2018, 4914,6355 & 18563 of 2022 In the matter of an application under Section 19 of the Administrative Tribunals’ Act, 1985. ……………… Sushil Kumar Nayak & Others …. Petitioners -versus- State of Odisha & Others …. Opposite Parties For Petitioners :M/s. G. Mukherji, Sr. Advocate, M/s. Nirmal Ch. Mohanty, Advocate (In W.P.(C) No.4914 of 2022) For Opp. Parties :M/s. B.P. Tripathy, Advocate PRESENT: THE HONBLE JUSTICE BIRAJA PRASANNA SATAPATHY ----------------------------------------------------------------------------- Date of Hearing: 20.10.2022 & Date of Judgment: 18.11.2022 ----------------------------------------------------------------------------- Biraja Prasanna Satapathy, J. 1. Heard Mr. G. Mukherjee, learned Senior counsel appearing for the petitioners in W.P.(C ) Nos.17268 of 2018 6355 of 2022 and 18563 of 2022 and Mr. Nirmal Chandra Mohanty, learned counsel appearing for the petitioner in // 2 // W.P.(C ) No.4914 of 2022. In all these cases, Opp. Party- Odisha Power Transmission Corporation Ltd (In short, “OPTCL”) was represented by Mr. B.P. Tripathy, learned counsel. 2. W.P.(C ) No.17268 of 2018 was filed with the following prayer. to “It is therefore humbly prayed before this Hon’ble Court that in view of the above mentioned facts and circumstances of the case, this Hon’ble Court may be graciously pleased issue appropriate Writ/Order(s) /Director(s)/Declaration under Article 226 of the Constitution of India and more particularly: (i) Quash the advertisement no.MPP&R- 01/2018 dtd.25.08.2018 floated by the Odisha Power Transmission Corporation Limited for recruitment of Management trainee (electrical) vide Annexure-13. Direct the opposite parties to conduct a special recruitment test in respect of the petitioners as special case as per the proposal submitted before the Hon’ble Apex to Court participate with freshers, and for such purpose, carve out such number of posts as required. other such Pass order/direction/declaration/ writ(s) as this Hon’ble Court may deem proper in the interest of justice. instead of requiring them (iii) (ii) W.P.(C ) No.6355 of 2022 along with the other two writ petitions in W.P.(C ) Nos.18563 of 2022 and 4914 of 2022 were filed with the prayer to quash the Advertisement No.MPP & R-08/2022 dated 04.01.2022 (Annexure-10)floated by the Odisha Power Transmission Page 2 of 29 // 3 // Corporation Limited for recruitment of Junior Management Trainee (Electrical) and for other reliefs. The prayer made in W.P.(C ) No.6355 of 2022 is quoted hereunder:- “It is therefore humbly prayed before this Hon’ble Court may be graciously pleased to issue appropriate under Writ(s)/Order(s)/Direction(s)/Declaration Article 226 of the Constitution of India and more particularly: 1. Quash the advertisement no. MPP & R-08/2022 dtd.04.01.2022 (Annexure-10) floated by the Odisha Power Transmission Corporation Limited for recruitment of Junior Management Trainee (electrical). 2. Direct the opposite parties to conduct a special recruitment test in respect of the petitioners as special case as per the proposal submitted before the Hon’ble Apex Court instead of requiring them to participate with freshers, and for such purpose, carve out such number of posts as required. 3. Pass other order/direction/declaration/Writ9s) this Hon’ble Court may deem proper in the interest of justice. such as And for the said act of kindness, the petitioner as in duty bound shall ever pray”. 3.
Legal Reasoning
Mr. G. Mukherji, learned Senior Counsel appearing for the petitioners submitted that pursuant to the memorandum dated 15.03.2005 issued by the Board of Directors of GRIDCO in terms of their Resolution made in its 92nd Board Meeting, it was resolved that due to ban order imposed by the Government to fill up the vacancies on regular basis and in order to provide uninterrupted Page 3 of 29 // 4 // power supply and to take up World Bank Funded Scheme, proposal was made to deploy Engineering personnel on contract basis through outsourcing agency on payment of consolidated salary. In terms of the said Resolution issued vide Memorandum dated 15.03.2005, the petitioners in W.P.(C ) No.17268 of 2018 being Graduate Engineers in Electrical, they were engaged with consolidated salary for an amount of Rs.5,000/- per month. The said monthly salary was subsequently enhanced from time to time. Subsequently, when the present Management came into picture in the name and style “Orissa Power Transmission Corporation Limited”, vide notice dated 02.09.2005, it was indicated that OPTCL would be responsible towards legal and statutory dues including payment of remuneration to the employees. It was also decided that since the Board of Directors of GRIDCO have approved the engagement of the Labour Contractor for the said purpose, the proposal had been accepted by OPTCL also. In terms of such arrangement made by GRIDCO and followed by OPTCL, the petitioners in W.P.(C) No.17268 of 2014 were allowed to continue in service. Page 4 of 29 // 5 // 4. While so continuing without any break from the year 2005, when OPTCL instead of absorbing the petitioners in W.P.(C) No.17268 of 2018 floated an advertisement on 25.08.2018 to fill up the post of Management Trainees, the said advertisement was challenged in a batch of Writ Petitions in W.P.(C) No.3319 of 2009 and batch. This Court vide order dated 11.05.2011 disposed of the said writ petition with the following direction. “14. In view of the above finding, we dispose of all the writ applications with the following directions: (1) these Petitioners can be That State Government shall take a decision in consultation with the Corporation as to whether recruited as Management Trainees or to such posts as they are entitled to according to their qualification under Clause 15 of the Recruitment Policy or not. While taking a decision in this regard, the observation of this court with regard into consideration. to discrimination may be taken (2) In the event all the posts advertised under Annexure-5 have been filled up in the meantime, the State Government shall consider creation of such number of posts or grant approval for appointment to such number of vacancies so that all the petitioners can be considered for recruitment. This exercise shall be completed within a period of six months from the date of communication of this order. Till a decision is taken in this regard, the Petitioners shall be permitted to continue in their respective posts on contractual basis and on consolidated pay.” 5. Pursuant to the order passed by this Court on 11.05.2011 when the State Government vide its letter dated 14.10.2011 decided not to consider the engagement Page 5 of 29 // 6 // of the petitioners, who were engaged through outsourcing agency in OPTCL, the said action of the Government was once again challenged before this Court in W.P.(C ) No.28747 of 2011. This Court vide order dated 09.10.2013 disposed of the said writ petition with the following direction. “13. In view of the same, we have no other option except to quash the order dated 14.10.2011 passed by the Government to take a fresh decision in consultation with the Corporation to consider the case of the Petitioners under Clause-15 of the Recruitment Policy in terms of the earlier judgment dtd.11.05.2011 passed by this court in W.P.(C ) NO.3319 of 2009 and other similar batch of writ applications. More particularly, while taking a decision, the observation made in paragraph 14(1) and (2) of the judgment dtd.11.5.2011 passed in W.P.(C ) No.3319 of 2009 shall be kept in mind. Since the petitioners are continuing, we direct that their services shall not be terminated till a decision is taken by the Government. 6. Challenging the order passed by this Court on 09.10.2013, OPTCL moved the Hon’ble Apex Court in SLP (Civil) No.11569 of 2014 and the same was subsequently converted as Civil Appeal No.8415 of 2017. It is contended that while the matter was pending before the Hon’ble Apex Court, basing on the proposal submitted by the learned Senior Counsel appearing for OPTCL, the aforesaid Civil Appeal No.8415 of 2017 was disposed of vide order dated 05.07.2017. The relevant extract of the said order is quoted hereunder. Page 6 of 29 // 7 // xxx. Mr. P.P. Rao, learned senior counsel for the appellants has placed the following proposal: “ The respondents will be allowed to continue on provisional basis till the next round of selection process takes place in the respective categories of posts for recruitment. The respondents will be at liberty to participate in such Selection Process. They shall be allowed relaxation of upper age limit to the extent of service rendered by the, provided they satisfy all other eligibility criteria for the posts as laid down in the Recruitment Rules. They shall also be allowed 1% extra marks on the total marks of CBT (Computer Based Test) for each completed year of service subject to a maximum of 15%, which shall be added to the marks secured by them in the CBT. Such of the respondents who get selected will be appointed on regular basis and others who either do not participate in the selection process or are unsuccessful in the selection, their services shall be discontinued. The above concessions will be granted as a special case n having regard to the facts of this case and will not be regarded as a precedent.” Shri Rao submitted that the proposal is partly based on observation of this Court in Ashok Kumar and Another Vs. State of Bihar and Others, 2017(4) SCC 357 para 22. We are satisfied that the stand of the appellants is fair. The appellants are at liberty to proceed in accordance with the said proposal. Accordingly, the appeals are disposed of in terms of the above proposal. 7. It is contended that OPTCL without acting in terms of its proposal which was accepted by the Hon’ble Apex Court in its order dated 05.07.2017, when floated an advertisement on 25.08.2018 under Annexure-13 to the said Writ Petition to conduct a recruitment test for recruitment of Management Trainee(Electrical), the said advertisement was challenged by the Graduate Engineers engaged in the year 2005 on contract basis before this Page 7 of 29 // 8 // Court in W.P.(C ) No.17268 of 2018. This Court while issuing notice of the matter vide order dated 19.11.2018 passed an interim order with the observation that any action taken pursuant to the advertisement dated 25.08.2018 under Annexure-13 shall abide by the result
Decision
of the writ petition. 8. During pendency of W.P.(C ) No.17268 of 2018, when another advertisement of self-same nature was issued by the Corporation on 04.01.2022 for recruitment of Junior Management Trainee (Electrical), the Diploma Engineers engaged in the year 2005 on contract basis, challenging the said advertisement filed W.P.(C ) No.4914 of 2022, 6355 of 2022 and 18563 of 2022 with the prayer as indicated hereinabove. 9. It is the main contention of the learned counsels appearing for the petitioners in all the above writ petitions that the selection process adopted by OPTCL in the advertisement issued on 25.08.2018, which is the subject matter of challenge in W.P.(C ) No.17268 of 2018 and the advertisement issued on 04.01.2022, which is the subject matter of challenge in the writ petitions filed in the year 2022 have not been issued in terms of the proposal submitted by the learned Senior Counsel appearing for Page 8 of 29 // 9 // OPTCL before the Hon’ble Apex Court in Civil Appeal No.8415 of 2017, which was accepted by the Hon’ble Apex Court while disposing the appeal vide order dated 05.07.2017. It is the main contention of the learned counsels appearing for the petitioners that OPTCL in its proposal submitted before the Hon’ble Apex Court unequivocally agreed that such of the petitioners who get selected will be appointed on regular basis. But the advertisements which are impugned in the aforesaid writ petitions since does not contain such provision for appointment on regular basis on being coming out successful in the selection process, the said advertisements being not in consonance with the proposal accepted by the Hon’ble Apex Court, needs interference of this Court. It is vehemently contended that both the impugned advertisements issued by the Corporation on 25.08.2018 and 04.01.2022 since contain various stipulations, the same cannot be said to have been issued in terms of the proposal duly accepted by the Hon’ble Apex Court in its order dated 05.07.2017. 10. It is also contended that even though as per the proposal accepted by the Hon’ble Apex Court, the petitioner on coming out successful in the selection Page 9 of 29 // 10 // process are deemed to be appointed on regular basis, but in the advertisements which are impugned in the writ petitions, there is no such provisions for regular appointment of the petitioner on their coming out successful in the recruitment test. It is contended that as provided in both the advertisements, the selected candidates after coming out successful in the written test, have to undergo training for a period of one year at field units of OPTCL including Induction training at Power Training Centre, Chandaka, Bhubaneswar. Not only that all selected candidates have to undergo not only one year training period but also it is subject to further extension. It is also stipulated that during training period, the trainees can be terminated without any notice or without any reason whatsoever thereof. In both the advertisements, there is also a provision that even after successful completion of the training, there shall be no obligation on the part of the Corporation to offer regular appointment. Accordingly, it is contended that since as per the proposal submitted by the Corporation, such of the petitioners on coming out successful in the selection process are required to be appointed on regular basis, the stipulation contained in both the advertisements being Page 10 of 29 // 11 // contrary to the said proposal, the said advertisements have been rightly challenged by the petitioners in the writ petitions in question. 11. It is also contended that while in W.P.(C ) No.17268 of 2018, this Court passed an Interim Order that any action taken shall abide by the result of the Writ Petition, but in the Writ Petition filed in the year 2022, this Court has passed interim order restraining OPTCL from filling up required number of posts so advertised in its advertisement dated 04.01.2022. 12. It is also submitted that as like the conditions indicated in the first advertisement issued on 25.08.2018, in the second advertisement issued on 04.01.2022, similar stipulations are also there i.e to undergo training for a period of one year and only on successful completion of the training period, a candidate shall be appointed as Junior Manager (Electrical) on contractual basis for a period of five years. It is also provided in the said advertisement that on completion of six years (one year training + 5 year contractual), the candidates may be considered for appointment to the post of Junior Manager (Electrical) on regular establishment. In the said second advertisement, as like the first advertisement, there is Page 11 of 29 // 12 // also a condition that during the training period, the trainees may be terminated without any notice or without assigning any reason thereof and even after successful completion of the training, there shall be no obligation on the part of the Corporation to offer contractual appointment. 13. Learned Senior Counsel appearing for the Petitioners further submitted that since in both the advertisements which are impugned in the Writ Petitions, the advertisement in question have been issued without any provision for regular appointment of the petitioners on their coming out successful in the selection process, the said selection process initiated by the Corporation basing on the aforesaid two advertisements cannot be treated to have been initiated in terms of the proposal submitted by the Corporation and accepted by the Hon’ble Apex Court in its order dated 05.07.2017. Accordingly, learned Senior Counsel submitted that the impugned advertisement issued on 25.08.2018 and 04.01.2022 needs to be quashed with a direction on the Opp. Parties to conduct a special recruitment test in respect of the petitioners herein in terms of the proposal submitted before the Hon’ble Apex Court. Page 12 of 29 // 13 // 14. Mr. B.P. Tripathy, learned counsel appearing for OPTCL on the other hand made his submission basing on the stand taken in the counter affidavit. 15. It is contended that in terms of the decision taken by the Board of Directors of GRIDCO in its 92nd meeting held on 15.03.2005, it was decided to avail the services of Graduates and Diploma Engineering (personnel) on outsourcing basis until permission for regular recruitment from the Government is received. In terms of the said decision, an advertisement was issued in the daily “Samaj” on 16.12.2005 inviting applications from Diploma Engineers in Electrical, Telecom and Civil discipline for temporary engagement on contract basis with consolidated remuneration of Rs.4,000/- per month. The petitioners in the writ petitions filed in the year 2022 were all engaged on such contract basis through outsourcing agency. Similarly in terms of the aforesaid Board Meeting, an advertisement was issued on 01.08.2005 for engagement of Graduate Engineers on contractual basis and the petitioners in W.P.(C) No.17268 of 2018 were engaged on such contract basis through outsourcing agency for a consolidated pay of Rs.5,000/- per month. Page 13 of 29 // 14 // 16. Mr. Tripathy, learned counsel appearing for OPTCL further contended that while so continuing when the Corporation issued an advertisement on 15.02.2009 to fill up the post with regular recruitment of Management Trainee, the same was challenged before this Court in W.P.(C ) No.3319 of 2009 and batch. Pursuant to the order passed by this Court on 11.05.2011, when the State Government after careful consideration of the matter was not pleased to consider the appointment of the petitioners, who were engaged through outsourcing agency through OPTCL, the said action of the Government issued vide letter dated 14.10.2011 was challenged once again in W.P.(C ) No.28747 of 2011. This Court vide order dated 09.10.2013 when disposed of the writ petition, the same was challenged by OPTCL before the Hon’ble Apex Court in Civil Appeal No.8415 of 2017. It is contended that the said matter was disposed of by the Hon’ble Supreme Court in terms of the proposal submitted by the learned Senior Counsel appearing for OPTCL vide order dated 05.07.2017. It is accordingly submitted that in terms of the said proposal which was accepted by the Hon’ble Apex Court, both the advertisements which were the subject matter of challenge in the aforesaid writ Page 14 of 29 // 15 // petitions were issued by providing opportunities to the petitioners herein to compete along with other candidates. In both the advertisements, OPTCL in terms of its proposal also extended extra mark for each completed year of service subject to a maximum of 15%. The petitioners herein were also allowed the age relaxation in terms of the said proposal and the petitioners not only were extended with the relaxation as accepted by the Hon’ble Apex Court in the above said Civil Appeal, but also the petitioners took part in the said selection process. It is further contended that once the petitioners have taken part in the selection process in terms of the advertisements issued by the Corporation on 25.08.2018 and 04.01.2022, the petitioners cannot come back and challenge the same with a prayer to quash both the advertisements. Since the Corporation as undertaken before the Hon’ble Apex Court has allowed required relaxation to the petitioners enabling them to take the recruitment test, the petitioners having taken part in the said selection process, they are estopped from challenging the same in the present writ petitions. It is also contended that the petitioners since were apprehensive of their qualifying the tests in spit of being extended with the Page 15 of 29 // 16 // relaxation, the present writ petitions have been filed with the prayers which are not entertainable by this Court. Since the Corporation as undertaken before the Hon’ble Apex Court has allowed the petitioners to take part in the selection process, they cannot be permitted to challenge both the advertisements in question after taking part in the selection process. Mr. Tripathy, learned counsel appearing for OPTCL in support of his submission relied on a decision of the Hon’ble Apex Court relied in the case of D. Sarojakumari Vs. R. Helen Thilakom and Others (2017) 9 S.C.C 478. Hon’ble Apex Court in Para 4 to 12 of the said judgment has held as follows: 4. The main ground urged on behalf of the appellant is that Respondent No.1 having taken part in the selection process could not be permitted to challenge the same after she was unsuccessful in getting selected. The law is well settled that once a person takes part in the process of selection and is not found fit for appointment, the said person is estopped from challenging the process of selection. 5. In Dr. G. Sarna vs. University of Lucknow & Ors.,1 the petitioner after appearing in the interview for the post of Professor and having not been selected pleaded that the experts were biased. This Court did not permit the petitioner to raise this issue and held as follows :- “15.We do not, however, consider it necessary in the present case to get into the question of the reasonableness of bias or real likelihood of bias as despite the fact that the appellant knew all the relevant facts, he did not before appearing for the interview or at the time of the interview raise even his little finger against the constitution of the Selection (1976) 3 SCC 585 Committee. He seems to have voluntarily appeared before the committee and taken a chance of having a favourable recommendation from it. Having done so, it is not now open to him to turn round and question the constitution of the committee……” Page 16 of 29 // 17 // 6. In Madan Lal & Ors. vs. State of J&K & Ors. 2 , the petitioner laid challenge to the manner and method of conducting viva-voce test after they had appeared in the same and were unsuccessful. This Court held as follows :- “9…….Thus the petitioners took a chance to get themselves selected at the said oral interview. Only because they did not find themselves to have emerged successful as a result of their combined performance both at written test and oral interview, they have filed this petition. It is now well settled that if a candidate takes a calculated chance and appears at the interview, then, only because the result of the interview is not palatable to him, he cannot turn round and subsequently contend that the process of interview was or Selection Committee was not properly unfair constituted……” 7. In Manish Kumar Shahi vs. State of Bihar,3 , this Court held as follows :- “23…….Surely, if the petitioner’s name had appeared in the merit list, he would not have even dreamed of challenging the selection. The petitioner invoked jurisdiction of the High Court under Article 226 of the Constitution of India only after he found that his name (1995) 3 SCC 486 (2010) 12 SCC 576 does not figure in the merit list prepared by the Commission. This conduct of the petitioner clearly disentitles him from questioning the selection and the High Court did not commit any error by refusing to entertain the writ petition.” 8. In the case of Ramesh Chandra Shah and others vs. Anil Joshi and others 4 the petitioners took part in the process of selection made under the general Rules. Having appeared in the interview and not being successful they challenged the method of recruitment itself. They were not permitted to raise such an objection. This Court held as follows :- “24. In view of the propositions laid down in the above noted judgments, it must be held that by having taken part in the process of selection with full knowledge that the recruitment was being made under the General Rules, the respondents had waived the advertisement or methodology adopted by the Board for making selection and the learned Single Judge and the Division Bench of the High Court committed grave error by entertaining the grievance made by the respondents.” to question their right 9. Same view has been taken in Madras Institute of Development vs. Dr. K. Sivasubramaniyan and others 5. and Another Studies