The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C). No. 8231 of 2011 (An Application under Articles 226 & 227 of the Constitution of India) --------------- Laxmikanta Pattnayak ...… Petitioner -Versus- State of Odisha and Others .... Opposite Parties Advocate(s) appeared in this case:- ________________________________________________ For Petitioner : M/s. P.K.Mohanty, Advocate, For Opp. Party : Mr. A.R.Dash, Additional Government Advocate for the State. Mr. S.C.Rath , learned counsel appearing for the OUAT _______________________________________________________ CORAM: JUSTICE SASHIKANTA MISHRA SASHIKANTA MISHRA, J. JUDGMENT 15th July, 2024 The petitioner has filed this writ application with the following prayer: “It is therefore prayed that this Hon’ble Court may graciously be pleased to: (i) Admit the writ application; (ii) Call for the records; (iii) Issue writ of mandamus directing the Opp. Parties to pay the salary with consolidated remuneration of there counter Rs. 9,000/- only per month as Page 1 of 16 parts/similar situated Artist are getting after the direction of this Hon’ble Court in O.J.C. No. 845/96; (iv) The Opp. Parties may be directed to regularize the service of the present petitioner as Artist with effect initial appointment with from consequential service benefits including differential arrear salary as well as current salary; the date of his (V) The petitioner may be allowed to continue in his (vi) post till the date of his regularization; other pass order/orders, any direction/directions as this Hon’ble Court deem fit and proper; And And for this act of kindness, the petitioner as in duty bound shall ever pray.
Facts
2. The facts of the case, briefly stated, are that pursuant to an advertisement issued by the Odisha University, Odisha University, Agriculture and Technology (OUAT) for appointment to the post of Artist, the Petitioner along with other applicants submitted his application. He was asked to appear before the interview board on 03.01.1994. On that date a written test was held. Being selected, the petitioner was called upon to attend the Viva Voce test before the Dean Committee on 18.04.1994. Ultimately, four candidates including the petitioner was selected as per panel prepared in order of merit. Despite such selection, the petitioner was not issued with order of appointment for a long time on the ground that a ban order had been imposed by the Chancellor. The ban order Page 2 of 16 was lifted on 11.01.1995. The petitioner submitted a representation on 21.08.1995 and approached the Chancellor on 28.09.1995. The Chancellor recommended the name of the petitioner for appointment to the Vice Chancellor on 20.11.1995. Despite such recommendation, no action was taken for which the petitioner and two other selected candidates namely, Trilochan Samal and Susanta Kumar Pattnaik
Legal Reasoning
approached this Court in OJC No. 845 of 1996. By order dated 24.06.1996, which is quoted herein below, a Division Bench of this Court disposed of the writ application with the following direction: “Heard Mr. Mohapatra, learned counsel for petitioners and Mr. B.Mishra, learned counsel for the Orissa university of Agriculture and Technology. The undisputed position is that petitioners were selected for engagement as artists on temporary basis. Subsequently, the Chancellor put a ban on such appointment. Thereafter, ban was listed and process for selection on regular basis was initiated. If the post have not been filled up. Let petitioners be engaged temporarily without claiming any preferential right till posts are filled up on regular basis by the authorities. This order shall operate if the vacancies exist. Let necessary action be taken by the University within three weeks from today. The writ application is disposed of accordingly.” Despite such order, no action was taken for which the petitioner filed a contempt application being OCRMC No. 481 of 1996 which was disposed of by order dated 16.01.1997 in the following manner: Page 3 of 16
Decision
“By order dated 24.06.1996, passed in O.J.C. No. 845 of 1996 this Court directed that if the posts have not been filled up let the petitioners be engaged temporarily without claiming any preferential right till posts are filled up on regular basis by the authorities. As the order was not complied with the present petitioner has been filed. 2. It is stated by the learned counsel for Opp. Party that Susanta Kumar Pattnaik and Trilochan Samal have been appointed. If any posts are available. Laxmikanta Pattnaik be also appointed. With the above direction the original Crl. Misc.Case is disposed of.” When the petitioner requested for compliance of the orders of this Court, the Registrar of OUAT, in his letter dated 31.03.1997, informed that there is neither any need nor budget at that time for the post of Artist and that his case will be considered only when need arises. It is further the case of the petitioner that out of the panel so prepared, the person at Sl. No.1, Aparna Ray did not join for which one post was lying vacant. Further, one S.N.Rath working as artist had also retired from service on 31.05.1998 on superannuation. The Dean, Extension Education, in his letter dated 16.02.1999, stated that the service of an artist is very much essential for the institution. Despite all these developments, no step was taken in the matter for which the petitioner filed an interlocutory application being Misc. Case No. 14 of 1997 in the disposed of contempt application (OCRMC No. 481 Page 4 of 16 of 1996) which was disposed of on 12.03.2001 with the following order: “It is most unfortunate that the order dated 24.06.1996 passed by this Court in O.J.C. No. 845/96 has not been complied with by the Opp. Parties for long time. However, as a last chance we grant eight week time to the Opp. Parties to comply with aforesaid order of this Court, if not already complied with failing which it will be seriously viewed. If the petitioner feels aggrieved by the order if any passed or is going to be passed, it is open to him/her took challenge the same in an appropriate proceeding. With the above observation, the contempt petition is closed and disposed of.” It is stated that inspite of all these efforts, the University authorities took no steps to comply with the order of this Court. On query being posed by the petitioner under the Right to Information Act on 24.07.2007, which was answered on 18.08.2007, information that three posts were lying vacant during 1996 and subsequently two vacancies arose, was disclosed. In the meantime, by order dated 24.06.1996, the persons at Sl. Nos. 2 and 3 of the merit list were appointed but the petitioner’s case was not considered. Again, another artist, C.K.Samantray retired on 31.01.2004. Under such circumstances, the petitioner again filed a contempt application being CONTC No. 724 of 2009, wherein notice was issued to show cause. It is only upon receipt of notice of the Page 5 of 16 contempt application that the petitioner was appointed as artist in the College of Agriculture at Chipilima, Sambalpur on 29.08.2009 on consolidated remuneration of Rs.2,000/- per month. Subsequently, as per resolution of the Board of Management, the petitioner was paid wages admissible to highly skilled workers whereas the other two artists were paid Rs. 9,300/- per month. On such facts, alleging discrimination the petitioner has approached this Court in the present writ application. 3. Counter affidavit has been filed on behalf of the University (Opposite Party No. 2 and 3). In the said counter, the basic facts averred in the writ application relating to selection of the petitioner and preparation of merit list, the orders passed in the previous writ application etc, have been admitted. A stand has been taken that as per instructions of the Government in Finance Department in its letter dated 02.02.2000, the Board of management resolved to employ the same and accordingly all vacant posts of artist as on 01.01.2000 were abolished. In order to comply with the directions of this Court passed in the writ application as well as in the Page 6 of 16 contempt application, the Board of Management resolved to create the post of artist in the college of Agriculture, Chipilima on 16.01.2009 and the matter was referred to the Government for approval for creation of posts or revalidation of the abolished posts. Government ultimately regretted the proposal. Under such circumstances the petitioner was engaged on contractual basis with his remuneration being paid out of contingency funds. 4. The petitioner has filed a rejoinder to the counter basically stating that the plea taken by the University is untenable since this Court has on multiple occasions directed the authorities to engage the petitioner. Moreover, persons from the same panel have, in the meantime been regularized as per order dated 27.11.2015 whereas the petitioner has been getting Rs. 9,000/- per month since 07.09.2009. It is reiterated that five posts of artists are still lying vacant. The authorities have discriminated the petitioner as compared to similarly placed persons in the panel. Page 7 of 16 5. Counter affidavit has also been filed on behalf of the State stating that the Finance Department, after due examination, regretted the proposal for creation of posts because as per Indian Counsel of Agriculture Research (ICAR) manual, the post of artist is available in the ICAR institute but not in an agricultural college. It is also stated that the matter relating to creation, abolition of posts and appointment made under the OUAT establishment is within the power of the university, as it is an autonomous body. 6. Heard Mr. P.K.Mohanty, learned counsel for the petitioner, Mr. A.R. Dash learned Additional Government Advocate for the State and Mr. S.C.Rath, learned counsel appearing for the OUAT. 7. Mr. Mohanty would argue that this is a clear case of discrimination by the authorities against the petitioner inasmuch as when persons from the same select list were engaged during 2009 on contractual basis and regularized after six years, there is no reason why the petitioner should be continued on contractual basis on a salary of Rs. 9,000/- per month. Mr.Mohanty further Page 8 of 16 argues that this Court specifically directed the authorities to engage the petitioner and such order was never challenged before the higher forum and is therefore, binding on them. Under such circumstances, the plea of abolition of the posts and the regretting of proposal for creation of posts by the Government cannot be accepted. The petitioner has been running from pillar to post since 1994 and has become over aged and ineligible for any other public employment only for the continued inaction of the authorities. 8. Mr. A.R.Dash, learned Additional Government Advocate, would argue that the State has no role to play in the matter as the OUAT is an autonomous organization. The Government only provides grant-in-aid and to such extent the proposal of the administrative department for creation of posts was considered and examined by the Finance Department and found to be untenable for which it was regretted. 9. Mr. S.C.Rath learned counsel appearing for the OUAT would argue that as per the settled position of law mere inclusion of the name in the select list does not confer Page 9 of 16 any right on a person to be appointed and secondly, the petitioner could not be appointed as initially there was a ban order imposed by the Chancellor and subsequently the Government imposed austerity measures which provided for abolition of base level vacancies. Under such circumstances, the petitioner could not be appointed. Mr. Rath further argues that in any event the petitioner was given contractual appointment but his services could not be regularized because the Government in Finance Department regretted the proposal for creation of post. There is no post against which the petitioner could be regularized for which he has been allowed to continue on contractual basis in compliance of the order of this Court. 10. As is evident, the basic facts of the case are not disputed inasmuch as the petitioner and three other persons were selected for appointment in the Professional Test held on 18.04.1994 with the petitioner being placed at Sl. No. 4. The copy of extract of notes and orders of the relevant file (page No.42/43/N), enclosed as Annexure-3 to the writ application are not disputed by the University. Page 10 of 16 It is seen that the Vice Chancellor in his order dated 12.07.1994 directed that except Sl. No.1(Aparna Ray) the remaining three candidates including the petitioner should be posted in KVK on consolidated pay of Rs. 2,000/- per month pending final selection. It is otherwise borne out from the pleadings that a ban order imposed by the Chancellor was in operation till 11.01.1995. Despite lifting of the ban order, no appointment order was issued. In the letter dated 31.03.1997, copy enclosed as Annexure-4, it has been given out that there is no need nor budget provision for the post of artist. This is a highly surprising stand taken by the authorities inasmuch as having selected four persons for the post of artist and there being a specific order of the Vice Chancellor regarding their manner of appointment and pay etc as stated above, how could a stand be taken that there is no need nor budget provision for the post of artist. This is something that is not explained by the University authorities to the satisfaction of this Court. That apart, a Division Bench of this Court in OJC No. 845/96 had already directed for engagement of the Page 11 of 16 petitioners temporarily till filling up of the posts on regular basis. Such order was reiterated in the order passed in the contempt application on 16.01.1997 and 12.03.2001. This is therefore a clear case of disregard by the authorities to the specific direction issued by this Court repeatedly. This is something that cannot be countenanced in law moreso, as the orders of this Court referred above have not been challenged before the higher forum. 11. Thus, despite being selected for appointment way back in the year 1994, the petitioner was not favoured with order of appointment till as late as 28.08.2009 i.e. after a gap of 15 years. The other two candidates, who were also petitioners in OJC No. 845 of 1996 were appointed on 07.09.2009 and 30.09.2009 respectively on contractual basis and their services were regularized after completion of six years i.e. on 06.09.2015 and 29.09.2015 respectively by order dated 27.11.2015 of the Vice Chancellor. The Opposite Party authorities have not explained to the satisfaction of this Court their inaction in appointing the petitioner despite his selection and Page 12 of 16 placement in the panel till the Government issued austerity measures. The imposition of austerity measures leading to the so-called abolition of base level vacancies is obviously a subsequent development and cannot in any manner over-ride the specific direction issued by this Court much before. To put it differently, had it been a case of consideration of appointment against a vacancy after coming into force of the austerity measures, the plea taken by the OUAT would have been accepted. But as stated earlier, much water had flown down the bridge by such time. Most importantly, a Division Bench of this Court in its order passed in the writ application and in a contempt application had specifically directed the authorities to appoint the petitioner and others. As it appears, initially a strange plea was taken that there is no need for an artist and no budget provision had been made which was followed up by the plea of imposition of austerity measures by the Government. This Court is therefore, constrained to observe that the university has not only dealt with the matter in a lackadaisical manner Page 13 of 16 but also has shown scant regard to the directions of this Court. 12. Another glaring aspect that strikes to the mind is the apparent discrimination meted out to the petitioner by the authorities. As has already been stated hereinbefore, two other persons from the same panel and who were appointed on contractual basis in the year 2009 have in the meantime been regularized upon completion of 6 years of service. The petitioner has been left out on the ground of non-availability of posts. From what has been stated hereinbefore, such a plea can be considered only to be rejected. This Court is not impressed with the arguments advanced in this regard on behalf of the university. 13. Yet another surprising aspect that has come to fore is the apparently contradictory stand taken by the State in its counter. At one place, regretting of the proposal for creation of posts is sought to be justified by referring to ICAR Manual whereas at another place, it is stated that creation and abolition of posts is within the domain of the university as it is an autonomous body. The result of Page 14 of 16 such mutually contradictory pleas is that the concerned employee, i.e. the petitioner, is unnecessarily caught in the cross-fire for no fault of his own. The state being a model employer cannot resort to such technicalities and subterfuges to deprive its citizens of their legitimate rights. 14. Thus, from a conspectus of the analysis of facts and the discussion made thereon, this Court finds that the continued inaction of the Opposite Party authorities including the State in appointing the petitioner to the post in question at the relevant time and in discriminating him in the matter of regularization of services cannot be countenanced in law. This Court reiterates that the plea of abolition of post is not available to be taken because of specific order passed by a Division Bench of this Court that has become final. It is for the authority concerned to do whatever is necessary to comply with the same. Whatever consequential or incidental order or action including creation of post or revival of the purportedly abolished post that may be required to be taken by the authorities including the Page 15 of 16 State authorities for giving effect to the direction of this Court, the same has to be taken by them without any further delay. 15. In the result the writ application succeeds and is therefore, allowed. The Opposite Party authorities are directed to pass necessary orders to regularize the services of the petitioner in the post of artist with effect from the date he completed six years of contractual service along with all consequential service and financial benefits within two months from today. ……..………………….. Sashikanta Mishra, Judge Deepak Signature Not Verified Digitally Signed Signed by: DEEPAK PARIDA Reason: Authentication Location: OHC,Cuttack Date: 18-Jul-2024 10:53:32 Page 16 of 16