The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No. 6785 of 2011 (In the matter of application under Articles 226 and 227 of the Constitution of India). Rajendu Mishra … Petitioner -versus- State of Odisha and Others … Opposite Parties For Petitioner : Mr. J.K. Lenka,Advocate For Opposite Parties : Mr. M.K. Khuntia, AGA (for O.P. Nos.1 to 4) Mr. S.K. Joshi, Advocate (O.P.7) CORAM: JUSTICE G. SATAPATHY DATE OF HEARING :22.11.2023 DATE OF JUDGMENT :07.12.2023 G. Satapathy, J. 1. Instant Writ at the instance of petitioner seeks to quash the order passed on 18.06.2010 by O.P. No.2 in appeal petition dated 30.01.2008 (at Annexure-9) as well as the order of disengagement/termination issued by the O.P. No.6 on 31.03.2001 under Annexure-6. W.P.(C) No. 6785 of 2011 Page 1 of 13 2. The factual matrix as involved in this case are that in the year 1997, there were four vacancies consisting of two posts of Trained Graduate Teacher TGT Arts, one post of TGT Science and one post of Hindi Teacher in Saraswati High School under N.A.C., Khariar Road in the District of Nuapada and in order to fill up such vacancies, application were invited from intending candidates having requisite qualification. Accordingly, the petitioner having qualification of M.A.B.Ed. with valid University Employment Exchange card applied for the post of TGT Arts along with other candidates and thereafter, pursuant to an interview, she came out successful along with O.P. No.7. Accordingly, O.P. No.5 issued an appointment order to the petitioner on 17.09.1997 against the vacant post of TGT Arts on a consolidated salary of Rs.1200/- per month on ad-hoc basis for the period of 44 days and the appointment of the petitioner was extended from W.P.(C) No. 6785 of 2011 Page 2 of 13 time to time by different appointment orders, but while continuing as such, the petitioner came to know that the services of Hindi Teacher and O.P. No.7, were regularized by O.P. Nos. 5 and 6, notwithstanding to the fact that the petitioner had stood
Legal Reasoning
first in the selection process. Feeling discriminated, petitioner submitted representation to O.P. Nos. 5 and 6 through the Headmaster of the School for regularization of her service and enhancement of salary, but instead of taking any positive action on her representation, O.P. No.5 all of a sudden terminated her service by issuing disengagement order on 31.03.2001 under Annexure-6. Being aggrieved, the petitioner challenged such order before this Court in O.J.C. No. 4190 of 2001, which was disposed of on 18.01.2008 granting an opportunity to the petitioner to prefer an appeal and thereafter, the petitioner filed an appeal before O.P. No.2 for the relief as claimed in the Writ, but after much W.P.(C) No. 6785 of 2011 Page 3 of 13 persuasion including an order from this Court in
Decision
W.P.(C) No. 18366 of 2009, O.P. No.2 disposed of the appeal on 18.06.2010 vide Annexure-9 refusing to quash the order of termination of the petitioner from service as well as directing to regularize her service. It is stated that in the appeal, the claim of the petitioner was rejected mainly on the ground that the post in which the petitioner was appointed on ad-hoc basis was reserved for ST Candidate as well as her name was not being sponsored by Employment Exchange. The petitioner challenges such findings of the O.P. No.2 in this Writ. In response to the notice of the Writ, O.P. No.2 filed his counter supported with an affidavit denying all the allegations made in the Writ by inter-alia averring that the appointment of the petitioner was purely temporary and she was engaged for a specific period and thereby, after expiry of such specified period, her service was W.P.(C) No. 6785 of 2011 Page 4 of 13 terminated. It is further averred by OP No.2 in such counter that since the post against which the petitioner claimed her appointment was reserved for ST Candidate, the service of the petitioner cannot be regularized as she belongs to General Category. Besides, O.P. No.2 while supporting the impugned order passed by the O.P. No.2 has also averred in the counter that the petitioner’s name was never sponsored by the Employment Exchange; rather she had applied for the post on her own. In its counter, O.P. No.2 has also relied upon the counter affidavit filed by the O.P. Nos. 4 and 5 in O.J.C. No. 4190 of 2001 under Annexure- A/2. Although, O.P. No.4 has filed the counter affidavit, but it is only claimed therein that since no relief is claimed against O.P. Nos. 1 and 4, the present Writ is not maintainable against them. In response to the counter affidavit of O.P. No.2, petitioner has also filed her rejoinder inter-alia W.P.(C) No. 6785 of 2011 Page 5 of 13 stating that TGT Science was in fact reserved for ST Candidate, but not the post of TGT Arts and since the petitioner stood first in the merit list, she is entitled to the first post meant for General Candidate, out of two posts of TGT Arts. 3. In the course of argument, Mr. J.K. Lenka, learned counsel for the petitioner has submitted that although the petitioner stood first in the selection process, the authority instead of regularizing her service has regularized the service of the O.P. No.7, who was less meritorious than the petitioner, but when the petitioner challenged her illegal termination from service, O.P. No.2 rejected her claim on the ground that the post in which the petitioner was appointed was in fact reserved for ST Candidate and her name was not sponsored by Employment Exchange, which is contrary to the fact, since Annexure-3 by which the petitioner was appointed w.e.f 04.11.1997 reveals that she stood first in the selection process W.P.(C) No. 6785 of 2011 Page 6 of 13 and thereby; even if, out of two posts of TGT Arts, one post must be reserved for General Candidate and the petitioner having stood first selection process was to be preferred to the Unreserved post, then O.P. No.7 who stood next to the petitioner in the selection process and the claim of the O.Ps. was that the post of TGT Arts was reserved for ST Candidate was erroneous because it revealed from Annexure-11 that the post of TGT Science (CBZ) was meant for ST Candidate. On the aforesaid submission, Mr. Lenka has prayed to allow the Writ by quashing Annexure-6 and 9 and directing for regularization of service of the petitioner w.e.f. the date of her termination. On the contrary, Mr. M.K. Khuntia, learned AGA appearing for O.P. Nos. 1 to 4 has submitted that since the petitioner’s appointment was purely on ad-hoc basis for a temporary period of 44 days, her claim for regularization of service merits no consideration. Mr. Khuntia has further W.P.(C) No. 6785 of 2011 Page 7 of 13 submitted that since the post in which the petitioner was appointed temporarily was meant for ST Candidate, the petitioner by no stretch of imagination can be regularized against a Reserved Candidate post. Mr. Khuntia has, accordingly, prayed to dismiss the Writ. On the other hand, Mr. S.K. Joshi, learned counsel appearing for O.P. No.7 has submitted that there is no illegality in regularizing O.P. No.7, since she was appointed against Unreserved Candidate and Annexure-3 never discloses it to be a merit list since it contains only the name of appointee Teachers of different faculty. Mr. Joshi, has, accordingly, prayed to dismiss the Writ. 4. Admittedly, the petitioner claims for regularization of her service to the post of TGT Arts, but it is never disputed by anybody that the petitioner was disengaged w.e.f. 31.01.2001 in terms of Annexure-6, which was challenged by the petitioner in an appeal, but O.P. No.2 had passed W.P.(C) No. 6785 of 2011 Page 8 of 13 order in the appeal by Annexure-9 refusing to quash the termination order of the petitioner. It is no doubt true that a person in the service cannot be terminated on the whims and caprice of the appointing authority and the termination of a person from service have to be on sound reasoning. In this case, the petitioner was undisputedly appointed on ad-hoc basis for a temporary period of 44 days from the date of her joining, but the petitioner claims her to be continuing in the service till her disengagement as her tenure of service was extended from time to time by different orders issued by O.P. No.5. Although O.P. No.2 in his counter has not denied about extension of the appointment of the petitioner from time to time, but it has been claimed by O.P. No.2 that the post in which the petitioner was engaged was meant for ST Candiate. It is albeit claimed by the petitioner that she stood first in the merit list, but Annexure-3 W.P.(C) No. 6785 of 2011 Page 9 of 13 was not the merit list of the Candidates, rather it was an order of appointment of four TGTs to different faculties. Besides, the petitioner in her rejoinder to counter affidavit of O.P. No.2 has also annexed the appeal memo instituted before the Director, Municipal Administration under Annexure-12, wherein the petitioner had never averred that she stood first in the selection list, rather it was stated therein that along with the petitioner, other three candidates named as Nanda Kr. Mittal, Sumanta Kumar Sethi and Golap Chandra Sahu were appointed to the post of Hindi Teacher, TGT Science, TGT Arts respectively. Further, O.P. No.2 has also relied upon the counter affidavit filed by O.P. N.A.C. Khariar in O.J.C. No. 4190/2001, wherein the N.A.C. Khariar had averred that in the year 1999, a selection committee meeting was held and on the basis of names sponsored by Employment Exchange, O.P. Nos. 7 and 8 therein did appear before the W.P.(C) No. 6785 of 2011 Page 10 of 13 Selection Board and came out successful and thereafter, the service of O.P. Nos. 7 and 8 therein were regularized, but the petitioner herein did not appear in the Selection Board held in the year 1999. The petitioner has neither brought this fact in the writ nor had denied the same in her rejoinder. It is, therefore, clear that in the year 1999, another selection process was held in which the petitioner had not appeared before the Selection Board. 5. It is claimed by the petitioner that the post of TGT Science (CBZ) was in fact reserved for ST Candidate, not for the post of TGT Arts, but such claim of the petitioner appears to be without any basis inasmuch as neither the petitioner had produced the notice inviting application of desirous candidates to the post of TGT Arts nor any document to indicate that the post in which she was appointed on ad-hoc basis was not reserved for ST Candidate. It also defies any logic that W.P.(C) No. 6785 of 2011 Page 11 of 13 merely because another post i.e. TGT Science (CBZ) was reserved for ST Candidate would exclude the reservation in TGT Arts. Moreover, a person in employment on ad-hoc basis for a temporary period of 44 days cannot claim as a matter of right to be regularized in service, unless the same is permissible under applicable rules. Neither any document has been brought to the notice of the Court by the petitioner to indicate that the post for which she claims for regularization was not reserved for any category nor could she produce any merit list of the candidates in such Selection Process. Had the petitioner stood first in the merit list, she could have produced some document(s) indicating her position in the merit list, but merely because she was placed at SL No. 1 in the appointment order would not go to say that she stood first in the selection process and the person placed at SL. No.4 in such appointment order was next to her in W.P.(C) No. 6785 of 2011 Page 12 of 13 the merit list. Furthermore, in absence of any fact disclosing merit list of Candidates, Annexure-3 being an order disclosing appointment of Candidates cannot be considered as a merit list of the Candidates, even when it does not disclose the fact of the seniority of the Candidates. 6. In view of the above discussions and on a conspectus of the averments placed in writ and documents annexed thereto, this Court does not find any justifiable reason to consider that the petitioner stood first in the merit list and she thereby, entitled to the first post, rather the petitioner having eventually found not to have participated in the selection process in the year 1999, she cannot claim for regularization of service. Further, no document being produced by the petitioner contrary to the observation of O.P. No.2 in the appeal that the post was reserved for ST Candidate and thereby, the petitioner being a General Candidate cannot claim for regularization W.P.(C) No. 6785 of 2011 Page 13 of 13 of service against a Reserved Post. Hence, the claim of the petitioner merits no consideration. 7. In the result, the Writ stands dismissed on contest being devoid of merit, but in the circumstance, there is no order as to costs. (G. Satapathy) Judge Orissa High Court, Cuttack, Dated the 7 th of December, 2023/S.Sasmal Signature Not Verified Digitally Signed Signed by: SUBHASMITA SASMAL Reason: Authentication Location: High Court of Orissa Date: 07-Dec-2023 18:44:47 W.P.(C) No. 6785 of 2011 Page 14 of 13