Orissa High Court
Case Details
ORISSA HIGH COURT: CUTTACK W.P.(C) No. 17064 OF 2016 In the matter of an application under Articles 226 and 227 of the Constitution of India, 1950. --------------- State of Odisha represented by its Secretary, Food Supplies & Consumer Welfare Department, Bhubaneswar … Petitioner -VERSUS- 1. Sri Rushava Rana @ Rustava Rana son of Jugindra Rana Kushanga, via: Chandanhati Bolangir 2. Raja Kishore Mishra (since dead, represented by his Legal Representatives) Sana Sathiabatia Dhenkanal Sadar, Dhenkanal 3. Sri Basanta Kumar Tripathy son of Late Duti Krushna Tripathy Kabirajpur, Nenipada P.O., via: Gangapur, Ganjam ASWINI KUMAR SETHY Digitally signed by ASWINI KUMAR SETHY Date: 2023.05.08 18:35:48 +05'30' 4. Sri Bijaya Bhanu Panigrahi son of Braja Mohan Panigrahi Aurobinda Nagar, 2nd Lane, Berhampur P.O. Ganjam W.P.(C) No.17064 of 2016 Page 1 of 30 5. Director of Legal Metrology Food Supplies & Consumer Welfare Department, Bhubaneswar 6. Jyoti Bhusan Das Office of the President, District Consumer Redressal Forum, Balasore 7. Sri A.K. Sathua Junior Clerk Office of the MIO Sambalpur … Opposite Parties Counsel appeared for the parties: For the Petitioner : Sri Amiya Kumar Mishra, Additional Government Advocate For the Opposite Party : Sri Asok Mohanty, Senior Advocate with Sri Gouri Mohan Rath and Ms. Lopamudra Pradhan, Advocates P R E S E N T: THE HONOURABLE DR. JUSTICE B.R. SARANGI AND THE HONOURABLE MR. JUSTICE MURAHARI SRI RAMAN Date of Hearing: 03.05.2023 :: Date of Judgment: 08.05.2023 MURAHARI SRI RAMAN, J.— In the writ petition filed under Article 226/227 of the Constitution of India, the petitioner- Government of Odisha in Food Supplies & Consumer Welfare Department, Bhubaneswar, by assailing the W.P.(C) No.17064 of 2016 Page 2 of 30 Order dated 03.02.2016 passed in Original Application being No.1569 of 2002 by the learned Odisha Administrative Tribunal, Bhubaneswar, vide Annexure- 6, questioned the legal sanctity of direction to reconsider the cases of the opposite parties for regularisation of their services, as they had completed more than 20 years of service by the date of said Order, even while the contention of the petitioner, that the promotion of the opposite party Nos.1 to 3 as Junior Clerk-cum-Typist from Group D post and the opposite party No.4 on ad hoc basis is in contravention of the Odisha Ministerial Service (Method of Recruitment to Posts of Junior Clerks in the District Offices) Rules, 1985 (for brevity referred to as “OMS Rules”), has been accepted by said Tribunal.
Legal Reasoning
FACTS OF THE CASE: 2. The facts, as adumbrated by the petitioner, reveal that the opposite party Nos.1 to 3, while working as Class-IV (Group-D) employees in different zones of the Legal Metrology Organisation, being selected for the promotion pursuant to recommendation of the Departmental Promotion Committee held on 25.09.1995 under the Chairmanship of the Controller, Legal Metrology, were appointed as Junior Clerk-cum-Junior Grade Typist in the pay scale of Rs.950/- — Rs.1,500/- vide Order dated 12.10.1995 issued by the Order of the Commissioner- W.P.(C) No.17064 of 2016 Page 3 of 30 cum-Secretary to Government, Food Supplies & Consumer Welfare Department, Directorate of Legal Metrology. Similarly, the opposite party No.4 was directly appointed by virtue of Office Order dated 12.02.1996 issued from the Directorate of Legal Metrology, Food Supplies & Consumer Welfare Department and posted as Junior Clerk-cum-Junior Grade Typist on ad hoc basis in the Office of the Assistant Controller, Legal Metrology, Keonjhar vide Order dated 28.12.1996 of the Controller, Legal Metrology, Odisha, Bhubaneswar, who is the senior most administrative officer heading the Metrology Department. While the opposite party Nos.1 to 3 joined respective duties on 12.10.1995, the opposite party No.4 joined on 12.02.1996. 2.1. Shorn off unnecessary details, suffice it to note that though the names of the opposite party Nos.1 to 4 appeared at serial Nos.16, 17, 18 and 31 respectively in the “Tentative Gradation List of Junior Clerks/Junior Clerk-cum-Typist appointed under Composite Cadre of Food Supplies & Consumer Welfare Department” vide Office Order No. FE-II-VI(M)— 25291/Bhubaneswar, dated 05.09.2001, their names did not find place in the Final Gradation List vide Office Order No.FE-II-VI- (M)/15/2001— 31614/Bhubaneswar, dated 16.11.2001. 2.2. Therefore, the opposite parties approached the learned Odisha Administrative Tribunal invoking Section 19 of W.P.(C) No.17064 of 2016 Page 4 of 30 the Administrative Tribunals Act, 1985, which was registered as O.A. No.1569 of 2002, with the following prayer: “Modify the Final Gradation List under Annexure-3 and direct the Respondents to fix the seniority of the applicants 1 to 3 above Jyoti Bhusan Das (Serial No.16) and below R.K. Rath (Serial No.15) and fix the seniority of applicant No.4 above A.K. Sathua (Serial No.27) and below R.K. Mallia (Serial No.26).” 2.3. Having considered claims of respective parties and taking into consideration its earlier Order dated 11.09.2012 passed in O.A. No.1110/2010 and also O.A. No.2168(C)/2012, the learned Odisha Administrative Tribunal, disposed of the Original Application of the opposite parties herein vide Order dated 03.02.2016 with the following observation: “9. In the present case, admittedly the applicants were appointed as Junior Clerks in violation of the OMS Rules in the year 1995-96 and by now they have completed nearly 20 years of service. Hence keeping in view the earlier orders of this Tribunal (supra), we direct the State-respondents to reconsider the cases of the applicants for regularization of their services by relaxation of OMS Rules and pass appropriate Orders within a period of three months from the date of receipt of a copy of this Order. Till a decision is taken in this regard, no coercive action be taken against the applicants.
Decision
With these orders, the O.A. is disposed of.” W.P.(C) No.17064 of 2016 Page 5 of 30 2.4. Aggrieved by such a direction, the State of Odisha approached this Court by way of the present writ petition. ARGUMENTS ADVANCED BY COUNSEL FOR THE RESPECTIVE PARTIES: 3. Sri Amiya Kumar Mishra, learned Additional Government Advocate, appearing for the petitioner submitted that on consideration of objection against the Tentative Gradation List dated 05.09.2001 and as instructed by the Government of Odisha in Food Supplies & Consumer Welfare Department vide Order dated 10.12.2002 issued by the Under Secretary vide Letter No. FE-II-VI-M/18/2001— 27818/FS&CW, dated 10.12.2002, on the advice of the General Administrative Department to revert the opposite parties, who were promoted from the Class-IV posts, the names of the opposite parties were not placed in the Final Gradation List dated 16.11.2001. It is forcefully argued by the learned Additional Government Advocate that the promotions of the opposite parties were neither in consonance with the provisions of OMS Rules, 1985 (as amended in 2001) nor in terms of the Resolution dated 09.02.1994 of the General Administrative Department which fact was acceded to by the learned Odisha Administrative Tribunal in its Order dated 03.02.2016, and, hence, the direction contained therein for W.P.(C) No.17064 of 2016 Page 6 of 30 reconsideration of regularization of their services is not only fallacious but also incoherent. 4. Sri Asok Mohanty, learned Senior Counsel being assisted by Ms. Lopamudra Pradhan, Advocate appearing for the opposite parties submitted that it is admitted fact vide Tentative Gradation List, dated 05.09.2001 (Annexure-2) that whereas the opposite party Nos.1 to 3 were appointed on 12.10.1995, the opposite party No.4 got appointment on 12.02.1996. This is indicative of the fact that on the date of passing of Order dated 03.02.2016 by the learned Tribunal, they had completed more than 20 years of service. It is submitted that since Departmental Promotion Committee took up their cases as per the requirements in Resolution dated 09.02.1994, their eligibility to man the promotional post cannot be doubted. Therefore, their respective promotion could not be imputed as “illegal” albeit the same may be irregular (for the sake of argument, but not conceding). 4.1. The learned Senior Counsel went on to urge that at the relevant point of time, no rules with regard to promotion of Class-IV employees to the post of Class-III were in vogue. Thus, Resolution No.3180-Gen., dated 9th February, 1994, of the Government of Odisha in General Administrative Department was the guiding factor. Said Resolution inter alia provided as follows: W.P.(C) No.17064 of 2016 Page 7 of 30 “In order to provide adequate promotional facilities to qualified Class-IV Government Servants to Class- III Posts, Government after careful consideration have been pleased to decide that 50% of the vacancies arising in the categories of Class-III posts like Recorder, Assistant Recorder, Diarist, Pasting Clerk and similar other posts in which noting and drafting are not ordinarily required should be filled up by Class-IV employees who have passed atleast M.E. School Certificate Examination or an equivalent examination and have rendered not less than 5 years of service under Government, provided they come out successful in a qualifying test prescribed for the purpose of this Resolution. *** 5. For each Department of Government the qualifying test will be conducted once a year by a Committee consisting of two officers of the rank of Joint Secretary/Deputy Secretary to Government to be nominated by the Secretary of the Department and the Under-Secretary/Section Officer in-charge of the Office Establishment in the Department. In respect of other Offices, the qualifying test will be conducted by a Committee consisting of the Officer in-charge of the Office Establishment in the Office of appointing authority and two other Gazetted Officers to be nominated by the appointing authority. The senior most Officer will preside over the meeting of the Committee.” 4.2. It is not in dispute that the promotions of the opposite parties to the post of Clerk-cum-Typist in the category of Class-III were accorded pursuant to recommendation of the Departmental Promotion Committee. Therefore, the W.P.(C) No.17064 of 2016 Page 8 of 30 objection of the learned Additional Government Advocate, that the Controller, Legal Metrology, who heads the Legal Metrology Organisation, was not the competent authority, cannot be held to be in tune with the terms of Resolution, dated 09.02.1994. 4.3. Amplifying further, Sri Asok Mohanty, learned Senior Counsel contended that Rule 12 of the OMS Rules as substituted by virtue of Government of Odisha in General Administration Department Notification No.10974/Gen., dated 30.03.2001, as relied on by Sri Amiya Kumar Mishra, learned Additional Government Advocate, cannot have any bearing on the present fact- situation. He sought to cite distinction between pre- amended and post amended position in Rule 12 of OMS Rules, 1985 with respect to “Validity of the Select List”. The provisions of Rule 12 are given hereunder which were substituted by virtue of the Odisha Ministerial Service (Method of Recruitment to the Posts of Junior Clerks in the District Offices) Amendment Rules, 2001 vide Government of Odisha in General Administration Notification bearing Memo No.10974/Gen., dated 30.03.2001: Position prior to 01.04.2001 since 06.03.1986, i.e., date of effect of OMS Rules, Position after 01.04.2001 W.P.(C) No.17064 of 2016 Page 9 of 30 1985 12. up Filling vacancies after the list successful of candidates is exhausted.— been In case a vacancy occurs after the list of successful candidates for the year has exhausted before announcement of the results of the next examination such vacancy may be filled up by a successful candidate of the previous year; by that that his age Provided the does not exceed laid maximum age-limit down in the rules and failing any candidate who satisfies the condition laid down shall not continue beyond the date when the results of year’s examination are declared. next the 12. Validity of Select List.— The Select List prepared under sub- rule (1) of Rule 11* in case of direct recruitment and by the Departmental Promotion Committee in case of promotion under Rule 11D(1)** to the post of Junior Clerk shall remain valid for a period of one year from the date of publication of the same or till drawal of the next year’s list, whichever is earlier. *Rule 11(1).— The Chairman of the Board shall ensure completion of evaluation of answer papers and preparation of the list of successful candidates who have qualified by such standard as will be decided by him ordinarily within two months from the date of examination. The candidates’ names shall be arranged in order of merit on the basis of marks secured by the examination them conducted by Board. This List of successful candidates drawn in order of merit shall be equal to the number of vacancies as determined under Rule 6. in **Rule 11D(1).— The Departmental Promotion Committee while preparing the list of suitable Group-D employees for promotion to the post of Junior Clerk shall follow the provisions of the Odisha Civil Services (Zone of Consideration for Promotion) Rules, 1988, and the Odisha Civil Services (Criteria for Promotion) Rules, 1992. 4.4. It is contended that the Odisha Ministerial Service (Method of Recruitment to the Posts of Junior Clerks in the District Offices) Amendment Rules, 2001 is W.P.(C) No.17064 of 2016 Page 10 of 30 prospective in nature. With the above backdrop, it is submitted by the learned Senior Counsel that as per the Resolution dated 09.02.1994, qualifying test was required to be conducted by the Committee consisting of Officer in-charge of the Office Establishment in the Office of the Appointing Authority and two other Gazetted Officers to be nominated by the Appointing Authority. Therefore, the objection of the State of Odisha based on the Odisha Ministerial Service (Method of Recruitment to the Posts of Junior Clerks in the District Offices) Amendment Rules, 2001, cannot hold water in view of the fact that the Controller, Legal Metrology, Odisha is the Appointing Authority and respective promotions of the opposite parties were considered in the duly constituted Departmental Promotion Committee. Sri Mohanty pressed into service the following fact as stated in the written note of submission dated 20.04.2023 filed on behalf of the opposite parties: “4. That the Controller, Legal Metrology, Odisha is the Appointing Authority and their promotion orders were issued by the Order of the Commissioner-cum- Secretary to Government, Food Supplies and Consumer Welfare Department. Further all the eligible Class-IV employees working in different zones under the Controller, Legal Metrology were considered for such promotion which will be evident from Annexure-1 (Page 17) of the writ application.” W.P.(C) No.17064 of 2016 Page 11 of 30 Said averment of the opposite parties remained unchallenged by the learned Additional Government Advocate. Under such premise, it is vehemently impressed upon that even though the promotion is considered to be not consistent with the Odisha Ministerial Service (Method of Recruitment to the Posts of Junior Clerks in the District Offices) Amendment Rules, 2001, by the learned Odisha Administrative Tribunal, there is no occasion for the State of Odisha to contend that the appointments of the opposite parties are “illegal”. The learned Tribunal has rightly exercised its power by directing the Government to reconsider the cases for regularization in services of the opposite parties. 4.5. Sri Asok Mohanty, Senior Advocate brought on record the fact by way of Memo dated 01.08.2017 to submit that by Letter bearing No.2E(16)/16/2010— 2317/Agril., dated 19th November, 2010 issued from the Office of the Director of Agriculture & Food Production, Odisha, Bhubaneswar, the posts of Junior Clerks/Junior Clerk- cum-Typist in respect of forty-nine “irregular recruitees” in the “district and subordinate offices under the control of Directorate of Agriculture and Food Production” were considered for regularization by the Government of Odisha in Agriculture Department “in exercise of powers conferred under Rule 14 of the Odisha Ministerial W.P.(C) No.17064 of 2016 Page 12 of 30 Services (Method of Recruitment to the Post of Junior Clerks in the District Offices) Rules, 1985”. He submits that parity be maintained in respect of present opposite parties. 4.6. Pursuant to direction of this Court vide Order dated 17.07.2017, an affidavit dated 17.11.2017 sworn to by Joint Secretary to Government, Food Supplies & Consumer Welfare Department has come to be filed. Sri Amiya Kumar Mishra, learned Additional Government Advocate sought to distinguish the situations by referring to the contents of paragraph 7 of said affidavit that the promotions of the present opposite parties are illegal inasmuch as “the opposite parties were promoted to the post of Junior Clerk/Junior Clerk-cum-Typist from Group-D post irregularly recruited in the post of Junior Clerk. In fact, the opposite parties Sri Rushava Rana, Sri R.K. Mishra and Sri B.K. Tripathy who were working as Peons in Class-IV category in different zones of Legal Metrology Organisation were promoted to the post of Junior Clerk-cum-Typist during 1995 by Order dated 12.10.1995 on ad hoc basis in the Office of the Assistant Controller, Legal Metrology, Keonjhar under Chairmanship of the Controller, Legal Metrology and while Sri Bijay Bhanu Panigrahi was promoted from Class-IV to the post of Junior Clerk vide Order No.594, dated 12.02.1996 and then continued as such vide W.P.(C) No.17064 of 2016 Page 13 of 30 Order No.9352, dated 28.12.1996 of the Controller, Legal Metrology without recommendation of Departmental Promotion Committee or the appropriate authority as the Cadre of Class-III is a composite Cadre under the Government in Food Supplies & Consumer Welfare Department”. 4.7. At this juncture, Sri Asok Mohanty, learned Senior Counsel being assisted by Ms. Lopamudra Pradhan, Advocate appearing for the opposite parties submitted that the learned Additional Government Advocate has not disputed the power conferred on the competent Government under Rule 14 of the OMS Rules with regard to “relaxation” to the effect that “where the Government are of opinion that it is necessary or expedient to do so, they may by order and for reasons to be recorded in writing, relax any of the provisions of these rules in respect of any class or category of persons in public interest” nor has he denied steps being taken in respect of forty-nine “irregularly recruitees” for regularization of services in the post of Junior Clerk/Junior Clerk-cum-Typist. Sri Mohanty, submitted that the opposite party No.2-Raja Kishore Mishra died on 04.02.2017, leaving behind Kiran Tripathy-wife, Sonam Mishra-married daughter, Punam Mishra- unmarried daughter and Ashish Mishra-unmarried son, who are brought on record by consideration of petition W.P.(C) No.17064 of 2016 Page 14 of 30 for substitution bearing I.A. 10742 of 2022 vide Order dated 07.09.2022. He further submitted that during the pendency of the writ petition, the opposite party No.1 has already attained the age of superannuation. On account of such subsequent events, therefore, while not pressing for fixation of seniority in the promotional post, he confined his argument by urging that the respective cases of the opposite parties are required to be reconsidered for regularization of services by the authorities concerned as directed by the learned Odisha Administrative Tribunal. 4.8. It is submitted by the learned Senior Counsel for the opposite parties that after discharging duties of peon for 5 years, the opposite parties were considered for promotion in the post of Junior Clerk-cum-Typist by the Departmental Promotion Committee and accordingly, they continued to serve in the said promoted post since 1995-96. Sri Asok Mohanty, learned Senior Counsel, resisting the contention of Sri Amiya Kumar Mishra, learned Additional Government Advocate stated that if at all the promotions of the opposite parties are considered to be irregular, the appointments of the opposite parties cannot be said to be illegal. The promotion may be irregular one, but the services of the opposite parties can be considered for regularization. Though the learned Odisha Administrative Tribunal held that “the promotion W.P.(C) No.17064 of 2016 Page 15 of 30 to the post of Junior Clerk-cum-Junior Typist from Group-D post given to the applicant Nos.1 to 3 and appointment of the applicant No.4 on ad hoc basis, is in contravention of Odisha Ministerial Services (Method of Recruitment to the Post of Junior Clerks in the District Offices) Rules, 1985”, since the opposite parties have served for more than 27-28 years against vacant sanctioned posts, the Order dated 03.02.2016 does not suffer from any infirmity in directing the Government to reconsider their cases for regularization in services particularly when the Government have been conferred with power to relax under Rule 14 of the OMS Rules. ANALYSIS AND DISCUSSIONS CONTENTIONS AND ARGUMENTS: IN CONSIDERATION OF RIVAL 5. Before delving into merit of the matter, it is felt expedient to discuss the criteria for regularization in service as propounded in various Judgments. 5.1. In Vibhuti Shankar Pandey Vrs. State of Madhya Pradesh & Others, 2023 LiveLaw (SC) 91 = (2023) 3 SCC 639, it has been restated as follows: “*** The Division Bench rightly held that the learned Single Judge has not followed the principle of law as given by this Court in Secretary, State of Karnataka and Others Vrs. Umadevi and Others, (2006) 4 SCC 1, as initial appointment must be done by the competent authority and there must be a sanctioned post on which the daily rated employee must be working. ***” W.P.(C) No.17064 of 2016 Page 16 of 30 5.2. This Court in the case of Niranjan Nayak Vrs. State of Odisha & Others, 2023 (I) OLR 407, held as follows: “It is a settled position in law that when a particular set of employees is given relief by the court, all other identically situated persons need to be treated alike by extending that benefit. Not doing so would amount to discrimination and would be violative of Article 14 of the Constitution of India. This view has also been iterated in State of Uttar Pradesh and Others Vrs. Arvind Kumar Srivastava and Others, (2015) 1 SCC 347.” 5.3. After noticing the Judgment of the Hon’ble Supreme Court in the case of Secretary, State of Karnataka and Others Vrs. Umadevi and Others, (2006) 4 SCC 1, in Niranjan Nayak (supra) the observation of this Court runs as follows: “12. Similarly, in