The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) (OA) No.1650 of 2006 Mahesh Chandra Bhuyan …. Petitioner Mr. A. Rath, Advocate State of Odisha & Others -versus- ….
Legal Reasoning
Opposite Parties Mr.B. Panigrahi, ASC CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY Order No.
Decision
ORDER 12.07.2023 09. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode. 2. Heard Mr. A. Rath, learned counsel for the Petitioner and Mr. B. Panigrahi, learned Addl. Standing Counsel for the State. 3. The present Writ Petition has been filed inter alia with the following prayer:- “(i) The Hon’ble Tribunal be pleased to quash the rejection order as at Annexure-22 and the Hon’ble Tribunal be pleased to direct that the applicant’s case for regularization be considered keeping in view the backgrounds and submissions made in the original application and consequently his service be regularized and he be given all service benefits including future service benefits on the said basis. And the Hon’ble Tribunal be pleased to pass such other order/orders as is deemed fit and proper in the facts and circumstances of this case.” 4. It is contended that while continuing under the Opposite Parties, when no step was taken to regularize the services of the Petitioner, the Petitioner approached // 2 // the Tribunal in O.A No.1426/1995. Pursuant to the order passed by the Tribunal on 24.08.2005 when the claim of the Petitioner for his regularization was rejected, the Petitioner challenging the said order is before this Court in the present matter. 4.1. It is contended that even though prayer of the Petitioner for his regularization was rejected but in terms of the interim order passed on 04.01.2007, the Petitioner was not only allowed to continue, but he is continuing as on date. Accordingly, it is contended that in view of such continuance even after passing of the order at Annexure-22, the Petitioner has accrued a right of regularization in his favour. 4.2. In support of submission, Mr. Rath, learned counsel for the Petitioner relied on the decision of this Court reported in 106 (2008) CLT 870. This Court in Para-7 to 10 of the said judgment has held as follows:- “7. From the above, it would be clear that while the Petitioner was appointed against a temporary vacant post of Lower Division Clerk caused due to adhoc promotion of a regular incumbent, the vacancy so created in the grade of Lower Division Clerk automatically becomes regular. If the said post becomes regular by virtue of the regular incumbent having been promoted on regular basis then the case of the present Petitioner becomes identical to that of others who were initially appointed on adhoc basis against regular posts of Lower Division Clerks in different areas and subsequently, have been regularized maintaining the proper procedure by the competent authority. It is clear that the Selection Committee is competent to conduct the selection test made for the Department to regularize the service of the Lower Division Clerk and in the instant case, the initial appointment of the Petitioner was not held by way of pick and choose through the Special Employment Exchange where number of candidates had faced that interview and the Petitioner had been found as most superior. Since it is the fact that the recommendations made by the Deputy Director, Weavers Service Centre, Bhubaneswar-Opposite Party No. 3 under Annexures 4, 5 and 6 confirming the fact that the Petitioner fulfils all the required qualifications, typing experience and other eligibility for regularization, it cannot be said that the Petitioner has not been selected through the proper procedure. Page 2 of 5 // 3 // 8. In the Judgment of the Hon'ble Supreme Court in the case of Vijay Goyal (supra), the fact of the present case squarely apply to the facts of the said case and in particular, paragraphs-12 and 16 of the said Judgment are quoted here in below: “12. Be that as it may. The question that arises for our consideration is: If the Appellants were appointed on ad hoc basis from the start and if not were the orders regularizing their services necessary. We have seen that recruitment to the LDCs in the hospital is governed by the statutory rules framed by the Central Government under proviso to Article 309 of the Constitution. It is nobody's case that the Appellants did not fulfill the requisite qualifications or that they did not qualify the typing test with the speed 30 w.p.m. as required by the rules. It is also not disputed that the Appellants were selected after they had undergone the process of selection by the Selection Board. It is correct that by subsequent government resolution the test was to be conducted by SSC and so also selection for appointment to the post of LDC. We need not go into the question if in the existence of the statutory rules could they be amended to the extent that certain functions were left to be performed by SSC and not by the DPC. It is not that the SSC could prescribe any qualifications different than that prescribed in the Recruitment Rules for appointment to the post of LDCs. The fact, however, remains that when the hospital authorities approached the SSC it expressed its inability to conduct the test and select candidates for appointment to the post 0 LDCs in the hospital and rather told them that the authorities could themselves make arrangement to fill up the vacancies through other authorized channels if it was urgent. SSC did not say that the authorities could fill up the vacancies on ad hoc basis only till such time candidates sponsored by SSC were made available to the hospital. In pursuance of the communication received from the SSC the hospital authorities asked the local employment exchange to sponsor candidates and at the same time issued a circular allowing the eligible departmental candidates to apply for the post of LDCs. The posts were in existence. The authorities conducted the examination, found the Appellants to fulfil the qualifications and then selected them by duly constituted DPC. The Respondents have neither stated nor contradicted that the selection of the Appellants was not in conformity with the Recruitment Rules. That being so we fail to see why the order of 19-5-1986 regularising the services of ad hoc LDCs including the Petitioners should have been cancelled on technical grounds five years after they had been regularized and absorbed in the cadre. the Recruitment Rules, fell back on 16. We are also aware of the decision of this Court that there cannot be any claim for regularization for having worked for a number of years if the regularization was not in accordance with the rules. That is not so here. As noted above in the present case appointments were made in accordance with the Rules which appointments have continued for a number of years and cannot be treated as ad hoc or fortuitous.” 9. The aforesaid Judgment of the Hon'ble Supreme Court was relied upon by the Central Administrative Tribunal, Calcutta Bench, Calcutta in O.A. No. 779 of 2004 who by the Judgment dated 31st January, 2008 have been pleased to direct that the applicant therein was entitled to be considered for regularization from the date regular vacancy to the post of Lower Division Clerk was available in the office of the Weavers' Service Centre, Calcutta. In terms of the Judgment of the Hon'ble Supreme Court as well as the Judgment of the Central Administrative referred hereinabove, we are of the view that both the decisions fit into the present case at hand and the staff Selection Commission having Page 3 of 5 Tribunal, Calcutta Bench, Calcutta // 4 // exhibited its inability to conduct selection of Lower Division Clerks and since the Petitioner had been sponsored by the Employment Exchange and the Petitioner was choosen from out of numerous candidates appeared in the interview, the Petitioner had been selected by the Deputy Director, Weavers Service Centre, Bhubaneswar and his satisfaction by observing the Petitioner in both the fields of qualification and typing experience etc., the Petitioner is entitled to be considered for regularization to the post of Lower Division Clerk available in the office at the Waivers' Service Centre, Bhubaneswar. 10. In view of the observations made, the impugned Judgment dated 3.1.2000 passed by the Central Administrative Tribunal in O.A. No. 127 of 1998 is quashed and the writ application is allowed with the declaration that the Petitioner is entitled to be considered for regularization in the vacant post of Lower Division Clerk at Weavers' Service Centre, Bhubaneswar on a regular basis and the Opposite Parties are directed to regularize the appointment of the Petitioner as Lower Division Clerk in the aforesaid centre within a period of six weeks from the date of communication of this Judgment. It is made clear that the Petitioner be granted his continuance in service and all other service benefits including seniority but in the circumstances with no back wages. The Petitioner shall be entitled actual pay and allowances from the date of expiry of six weeks”. 5. Mr. B. Panigrahi, learned Addl. Standing Counsel for the State on the other hand contended that after rejection of the claim for regularization passed vide order under Annexure-22, the Petitioner was only allowed to continue in view of the interim order passed by the Tribunal on 4.1.2007. Therefore, in view of such continuance, Petitioner is not entitled to get the benefit of regularization. It is also contended that once the prayer for regularization has been rejected with due consideration of the Petitioner’s claim, the order at Annexure-22 needs no interference. 6. Having heard learned counsel for the Parties and taking into account the continuance of the Petitioner as on date as submitted by the learned counsel for the Petitioner, this Court while disposing the writ petition directs Opposite Party No.1 to take a fresh decision on the claim of the Petitioner for his regularization within a period of two (2) months from the date of receipt of this Page 4 of 5 // 5 // order. It is observed that while taking such a fresh decision, the earlier rejection available at Annexure-22 shall not be taken into consideration. It is also observed that while considering the claim, the decision as cited (supra) be taken into consideration. 7. Accordingly, the Writ Petition stands disposed of with the aforesaid observations and directions. (Biraja Prasanna Satapathy) Judge Subrat Signature Not Verified Digitally Signed Signed by: SUBRAT KUMAR BARIK Reason: ... Location: HIGH COURT OF ORISSA, CUTTACK Date: 17-Jul-2023 16:52:40 Page 5 of 5