The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.A. No.1106 of 2022 …. Appellant Sasmita Ray @ Sasmita Roy, aged about 50 years, W/o. Mitu Pradhan, At- Basistha Nagar, P.O./P.S. Lingaraj, Bhubaneswar, as Dist-Khurda, Vocational Counsellor, Regional Spinal Injury Centre, Cuttack, SCB Medical College At/P.O./P.S. and Hospital Mangalabag, Dist-Cuttack. present working Campus, at Mr. S. P. Mishra, Senior Advocate along with Mr. R. Achary, Advocate -versus- 1. State of Odisha, represented through its Commissioner-cum-Secretary to Govt., Health and Family Welfare Department, Govt. of Odisha, At-Secretariat Building, P.O./P.S. Bhubaneswar, Dist-Khurda, 2. Director, Regional Spinal Injury Centre, S.C.B. Medical College & Hospital Campus, At/P.O./P.S. Mangalabag, Dist-Cuttack, Family 3. Deputy Secretary to Government, Health and Department, Bhubaneswar, At/P.O. Bhubaneswar, Dist- Khurda, Welfare 4. Premanjali Behura, aged about 45 years, D/o. Ramesh Chandra Behura, At-Basant Niwas, Plot No.96/8, Sankha Nagar, Near College, Navajyoti Sishupalgarh, Bhubaneswar, Dist-Khurda, at present working as Vocational Counsellor, Injury under Director, Regional Spinal Science Junior Page 1 of 11 Centre, SCB, Medical College & Hospital Campus, At/P.O./P.S. Mangalabag, Dist- Cuttack. …. Respondents
Legal Reasoning
Mr. R. N. Mishra, AGA for State Mr. J. K. Mohapatra, Advocate for Respondent No.4 CORAM: HON’BLE THE CHIEF JUSTICE HON’BLE MISS JUSTICE SAVITRI RATHO
Decision
ORDER 24.07.2024 This matter is taken up through Hybrid mode. Order No. 19. 2. In the present intra-court appeal, the appellant has put to challenge an order dated 13.07.2022 passed in WPC (OAC) No.950 of 2013 whereby a writ petition filed by respondent No.4 has been disposed of with certain observations and directions. 3. We have heard Mr. S.P. Mishra, learned Senior Counsel with Mr. R. Achary, learned counsel for the appellant; Mr. R.N. Mishra, learned Additional Government Advocate for the State and Mr. J.K. Mohapatra, learned counsel for respondent No.4. 4. The facts of the case, which are not in dispute, need to be taken note of first. 4.1 The Regional Spinal Injury Centre (RSIC) was established in 2001 by the Government of India for a period of 5 years with an aim to provide rehabilitation measures to the persons with disabilities, specially spinal injured persons and the persons with orthopaedic and neurological problems. Based on the exigencies, Page 2 of 11 the staff of RSIC were engaged through walk-in-interview. The dispute relates back to the engagement of the appellant and respondent No.4 based on a notice for walk-in-interview, for filling up various posts, including one post of Vocational Counsellor on contractual basis. The said notice specifically mentioned the requisite essential qualification as under:- “Graduate with PG Diploma in Social Science from Tata Institute of Social Science.” 4.2. The contractual engagement was to be made for 89 days which was extendable if necessary. The interested candidates were required to attend the interview with bio-data, two recent passport size photographs, certificates in support of age and qualification, before the negotiation board, to be held on 25.05.2001. The appellant possessed qualification of Certificate Course (not PG Diploma) in rehabilitation counselling from Tata Institute of Social Science (TISS). She was a graduate. Respondent No.4 was undergoing the same course (Certificate Course) at TISS at the time of advertisement for the walk-in-interview on 25.05.2001. Both had appeared in the walk-in interview pursuant to the said notice. 4.3. The appellant was selected for the post of Vocational Counsellor for 89 days by an order dated 04.06.2001 issued by the Director, RSIC. Later, respondent No.4 was also provisionally selected for the post and was engaged on contractual basis initially, for a period of 89 days by an order dated 01.03.2002. Admittedly, Page 3 of 11 both of them continued to serve RSIC on contractual basis, as their services were extended from time to time. 4.4. It is not in dispute that the post of Vocational Counsellor was not created then. On 25.10.2012, the State Government of Odisha, considering the requirements of RSIC, created 41 posts including one post of Vocational Counsellor. It was clearly stipulated in the said letter dated 25.10.2012 that the said post shall be filled up in a transparent manner, following relevant recruitment rules/procedures and provisions of the Orissa Reservation of Vacancies in Posts and Services (for Scheduled Castes and Scheduled Tribes) Act, 1975 (ORV Act), whenever applicable. 4.5 Under an apprehension that the present appellant shall be absorbed against the post of Vocational Counsellor illegally, ignoring the claim of respondent No.4, respondent No.4 approached the Odisha Administrative Tribunal, Cuttack Bench (Tribunal for short) by filing OA No.347(C) of 2013 seeking direction to absorb her against the said created post. She also sought a direction not to absorb the appellant. The Tribunal disposed of the said original application on 29.01.2013 with a direction that no recruitment shall be done in contravention of paragraph 3 of the said order dated 25.10.2012, which read as under:- “3. The above posts are to be filled up in a transparent manner relevant recruitment rules/procedure and provisions of ORV Act whenever applicable.” following the Page 4 of 11 4.6 However, Government of Odisha approved the engagement of the appellant against the only created post of Vocational Counsellor by an order dated 02.04.2013. The said decision to engage the appellant ignoring the case of respondent No.4 came to be challenged by the respondent No.4 before the Tribunal by filing the original application giving rise to OA No.950 of 2013. Upon abolition of the Tribunal, the said case stood transferred to this Court and re-registered as WPC (OAC) No.950 of 2013. Apart from seeking quashing of the order whereby the appellant was engaged against the created post of Counsellor, respondent No.4 also sought a direction to absorb her against the said post from the date the appellant was selected. The respondent No.4 challenged the approval of engagement of the appellant against the sole created post mainly on two grounds; firstly that it was in contravention of paragraph 3 of the order dated 25.10.2012 whereby the said post was created, despite specific direction in this regard by the Tribunal, and secondly, the appellant did not possess the requisite essential qualification of PG Diploma in Social Science from TISS. 5. It is noteworthy that indisputably the qualification which the appellant possessed was not PG Diploma in Social Science nor the certificate which she possessed was equivalent to the PG Diploma. Learned Single Judge has noted in the impugned judgment and order that neither the appellant nor the respondent No.2 could satisfy the Court that the appellant possessed the Page 5 of 11 essential qualification for the post of Vocational Counsellor as was stipulated in the notice of walk-in-interview. After having taken into account the admitted fact, learned Single Judge, by the impugned judgment and order has held the appellant‟s engagement against the created post as illegal with a direction to the opposite party No.2 to take a fresh decision, taking into account the qualification possessed by the petitioner vis-à-vis the opposite party No.4. Learned Single Judge further directed that the entire exercise must be completed within three months from the date of receipt of the order. 6. Mr. S.P. Mishra, learned Senior Counsel appearing on behalf of the appellant has argued that since respondent No.4 had not questioned the initial selection and engagement of the appellant on contractual basis in 2001 on the ground of lack of qualification, subsequent challenge to the absorption of the appellant upon creation of regular post based on a decision of the selection Committee could not have been sustained. He has also argued that respondent No.4 was herself the beneficiary of the said notice of walk-in-interview. She was engaged as the Vocational Counsellor though she too did not have the requisite qualification as PG Diploma in Social Science from TISS, when she was engaged on contractual basis. 7. Mr. J.K. Mohapatra, learned counsel for respondent No.4 has argued that since respondent No.4 possesses the requisite qualification for the post of Vocational Counsellor, she had a better right to be absorbed. Further, since the appellant did not have Page 6 of 11 requisite qualification even on the date of approval of engagement by order dated 02.04.2013 by the State Government, learned Single Judge has rightly set aside her engagement against duly created posted. He accordingly submits that there is no illegality in the impugned judgment and order passed by the learned Single Judge. 8. Before we address the rival submissions made on behalf of the parties with reference to the finding recorded in the impugned judgment of learned Single Judge, it would be pertinent to mention that earlier when the matter was taken up on 09.03.2023, following interim order was passed by a Coordinate Bench of this Court:- “xxx I. A. No.2735 of 2022 xxx xxx 4. Till the next date of hearing, there shall be stay of the impugned order of the learned Single Judge dated 13th July, 2022 passed in WPC (OAC) No.950 of 2013. Issue urgent certified copy of this order as per rules.” 8.1 Later, on 29.01.2024, the Coordinate Bench of this Court, considering the submission made on behalf of the appellant, passed the following order:- “1. This matter is taken up through hybrid mode. learned Senior Counsel 2. Mr. S. P. Mishra, appearing for the Appellant, draws our attention to the letter dated 25th October, 2012 issued by the Health & Family Welfare Department, Government of Odisha regarding creation of posts in Regional Spinal Injury Centre, Cuttack (Annexure-4), particularly paragraph-3 therein, where it has been specifically mentioned that the above posts are to be filled up in a Page 7 of 11 the following relevant transparent manner recruitment rules/procedure and provisions of ORV Act whenever applicable, but in Paragraph-4 (page- 38) of the counter affidavit filed before the State Administrative Tribunal in O.A. No.950(C) of 2013, it is stated as follows: “Accordingly, the staff rendering services on contractual basis were recommended and absorbed in the regular posts so created on the the relevant principle of seniority following recruitment rule/procedure and provision of ORV Act whenever applicable. As such there is no contraventions of para 3 of order No.-277857/H, dtd.25.10.12 of the Govt. in Health & F.W. Dept., Odisha and the order of Hon’ble Tribunal dtd. 29.01.2011 passed in OA No.347(C)/13 was duly complied with while taking up the Selection process.” 3. It is, therefore, contended that the Appellant could not locate the rules/procedures as has been indicated in the aforementioned letter dated 25th October, 2012 found mentioned in the above counter filed before the Tribunal by the Respondents-State and let the State produce such rules which is stated to have been followed to fill up the posts in a transparent manner. 4. Mr. R. N. Mishra, learned Additional Government Advocate for the State, seeks time to examine this issue and produce the relevant rules before this Court on the next date. 5. Accordingly, call this matter after four weeks. The interim order passed earlier shall continue till the next date of listing.” 9. In compliance of the said order dated 29.01.2024 and subsequent orders, an affidavit has been filed, sworn by the Director, RSIC, Cuttack. It has been stated in paragraph 6 of the Page 8 of 11 said affidavit that the appellant was possessing qualification of Certificate Course in Rehabilitation Counselling from Tata Institute of Social Science (TISS) and had a Graduate Degree. The respondent No.4 was undergoing the same course at the time of advertisement for walk-in-interview on 23.05.2001. These facts have remained uncontroverted and, therefore, it can be easily deduced that neither the appellant nor the respondent No.4 were possessing the requisite qualification for engagement on contractual basis as stipulated in walk-in-interview notice dated 23.05.2001, as none of them were having PG Diploma in Social Science from TISS. One (the appellant) possessed qualification of having completed Certificate Course whereas respondent No.4 was undergoing the said Certificate Course in TISS. In our opinion, thus, none of them had a right to be considered for absorption based on their selection pursuant to the walk-in-interview, as their initial selection itself for engagement on contractual basis was wholly unjustified. 10. Secondly, as has been noted hereinabove, in paragraph 3 of the letter dated 25.10.2012 whereby the post of Vocational Counsellor and other posts in RSIC, Cuttack were created, it was specifically mentioned that the posts were to be filled up in „transparent manner‟ following the relevant recruitment rules/procedure and provisions of ORV Act wherever applicable. The said post of Vocational Counsellor created in 2012 was thus required to be filled up by open advertisement, not only by virtue of the requirement under paragraph 3 of the letter dated 25.10.2012 Page 9 of 11 but also to satisfy the requirements of Articles 14 and 16 of the Constitution of India. 11. Unfortunately, in the present case, as it emerges from the affidavit filed by the Director, RSIC, evidently no selection process was adopted to fill up the post of Vocational Counsellor by due advertisement/notice. The appellant was given appointment on the ground that she was senior and qualified, based on recommendation made by a Committee comprising of Director of Medical Education and Training (DMET), Odisha, Dy. Secretary to Govt. Health and Family Welfare Department, District Welfare Officer (DWO), Cuttack and the Director, RSIC. The recommendation of the said Selection Committee was approved by the Government on 02.04.2023. 12. It has been also stated in the said affidavit that in the meanwhile, during the pendency of the writ appeal, the Government of Odisha in the Health and Family Welfare Department has communicated through letter dated 01.03.2023 that the Department has resolved to merge the RSIC with SCB Medical College and Hospital, Cuttack. 13. After having perused the pleadings on record and considered rival submission made on behalf of the parties, we are of the considered view that the decision to absorb/approve engagement of the appellant against the post of Vocational Counsellor created on 25.10.2012 was illegal for two reasons. Firstly, she did not possess the minimum qualification of PG Page 10 of 11 Diploma in Social Science from TISS as stipulated in the walk-in- interview notice. Secondly, upon creation of the post of Vocational Counsellor on 25.10.2012, the State-respondents were under constitutional obligation to adopt a fair process for filling up the post in conformity with the constitutional obligation under Articles 14 and 16 of the Constitution of India. They were under obligation to fill up the post in a transparent manner following due procedure of selection. 14. Accordingly, the impugned judgment and order of the learned Single Judge does not require interference to the extent that the approval of engagement of the appellant by order dated 02.04.2013 has been held to be illegal and set aside. Learned Single Judge has directed respondent No.2 to take a fresh decision after taking into account the qualification possessed by respondent No.4. We, however, observe that the respondents shall adopt a fair procedure by inviting applications from eligible candidates for filling up the post of Vocational Counsellor. 15. This appeal is dismissed, but with the observation as noted above. Chief Justice (Chakradhari Sharan Singh) Judge S.K.Guin/M. Panda (Savitri Ratho) Signature Not Verified Digitally Signed Signed by: MRUTYUNJAYA PANDA Designation: Secretary Reason: Authentication Location: High Court of Orissa, Cuttack Date: 20-Aug-2024 20:00:46 Page 11 of 11