The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK WP(C) No.22407 of 2018 Nirupama Nayak -versus- 1) State Of Odisha 2) Director Of Higher Education 3) Governing Body Of J.N. College ..... ..... Petitioner Mr. S.K. Das, Advocate Opposite Parties Mr. H.M. Dhal, AGA Mr. P.K. Mohanty, Advocate (Opp. Party No. 3) CORAM: THE HON'BLE MR. JUSTICE BIRAJA PRASANNA SATAPATHY ORDER 09.04.2024 Order No. 06 1. This matter is taken up through hybrid mode. 2. Heard Mr. S.K. Das, learned counsel for the Petitioner, Mr. H.M. Dhal, learned Addl. Govt. Advocate appearing for the State-Opp.
Legal Reasoning
expressed by this Court in Para 6 and 6.1 of the order is reproduced hereunder:- “6. Having heard learned counsel for the Parties and after going through the materials available on record, it is found that on consideration of the claim of the Petitioners and similarly situated persons, the list of eligible candidates were published on 09.06.2014 under Annexure-1 for their appointment under the Rehabilitation Assistance Scheme. It is also found that from the list under Annexure-1, persons placed at Sl. Nos.9, 37 and 21 as reflected from Annexure-9, were appointed on regular basis. Not only that in view of the decision of the Hon’ble Apex Court in AIR 1989 SC-1133, the clarification issued by the Government in the G.A Department on 06.02.2015 under Annexure-6 cannot take away the benefit available to the Petitioners under the provisions of OCS Rehabilitation Assistance Rules, 1990, which is a rule framed under Article-309 of the Constitution of India. 6.1. Placing reliance on the decision of the Hon’ble Apex Court as cited (supra) it is the view of this Court that any clarification issued contrary to the provisions contained in the rule cannot override the statutory rules. Therefore, the action taken by the Opposite Parties in providing appointment to the Petitioners on contractual post relying on the clarification issued on 06.02.2015 under Annexure6 is not legal and justified. Therefore, placing reliance on the decision of the Hon’ble Apex Court as well as of this Court as cited (supra) and the benefits extended in favour of similarly stiatued persons as reflected in Annexure-9, this Court is inclined to Page 3 of 6. quash the order of rejection so passed in the case of Biplap Kumar Sahoo in WPC(OAC) No.2062 of 2017. While quashing the said order, this Court directs the Opposite Parties to extend the benefit of regular appointment in favour of the Petitioners from their initial date of appointment. On such extension of the benefit of regular appointment, all service and financial benefit as due and admissible shall also be extended in favour of the Petitioners. This Court directs the Opposite Party No.3 to complete the entire exercise within a period of three months from the date of receipt of this order.” 5. Even though notice of the writ petition has been issued since 12.04.2019, but no counter affidavit has been filed as yet. However, basing on the materials available, Mr. Dhal, learned Addl. Govt. Advocate contended that subsequent to the appointment of the Petitioner vide order dtd.25.09.2013 under Annexure-3 and consequential approval of the same by Opp. Party No. 2 vide order dtd.05.01.2015 under Annexure-6, basing on the letter issued by the Govt. on 19.11.2014 under Annexure-5, when a decision was taken to provide appointment under the provisions of Rehabilitation Assistance Scheme on contractual basis vide letter issued by the Govt. in G.A. Department on 06.02.2015 under Annexure-7, basing on the notification issued by the self same G.A. Department on 31.12.2014 under Annexure-9, it was decided to provide appointment to the Petitioner on contractual basis and accordingly order dtd.24.06.2015 under Annexure-11 was issued. 5.1. Even though this Court in its order dtd.28.03.2017 in W.P.(C) NO. 4477 of 2017 directed for consideration of the Petitioner’s claim to continue on regular basis, but since in terms of the notification issued by the G.A. Department on 31.12.2014 under Page 4 of 6. Annexure-8 and further clarification issued on 06.02.2015 under Annexure-7, a decision was taken to provide appointment on contractual basis under the provisions of Rehabilitation Assistance Scheme, the order of appointment so issued in favour of the Petitioner on regular basis was modified vide order dtd.24.06.015 under Annexure-11 so confirmed vide order dtd.20.11.2018 under Annexure-13. 6. To the submission made by the learned Addl. Govt. Advocate, learned counsel for the Petitioner placing reliance on the aforesaid decision in the case of Biplab Kumar Sahoo contended that since prior to coming into force of the notification issued by the G.A. Department on 31.12.2014, Petitioner was already appointed on regular basis, the said notification has no application to the case of the Petitioner. It is also contended that there is no such provision under the provisions of Rehabilitation Assistance Scheme to provide appointment on contractual basis, which has been upheld by this Court in the case of Biplab Kumar Sahoo. 7. Having heard learned counsel for the Parties and considering the materials available on record, this Court finds that Petitioner was provided with appointment under the prvoisions of Rehabilitation Assitance Scheme on regular basis vide order of appointment issued in his favour on 25.09.2013 under Annexure-3. The said order of appointment was duly approved by the Director-Opp. Party No. 2 vide his order dtd.05.01.2015 under Annexure-6 and that too basing on the direction issued by the Govt.- Opp. Party No. 1 vide letter dtd.19.11.2014 under Annexure-5. Since by the time the notification dtd.31.12.2014 under Annexure-8 was issued with issuance of the Page 5 of 6. subsequent one on 06.02.2015 under Annexure-7, Govt.-Opp. Party No. 1 had already directed to approve the services of the Petitioner on regular basis, which was accordingly done on 05.01.2015, as per the considered view of this Court, there was no occasion to modify the order of appointment to a contractual one vide order dtd.24.06.2015 under Annexure-11. Not only that, placing reliance on the decision in the case of Biplab Kumar Sahoo, it is also the view of this Court that no such appointment on contractual basis can be made under the provisions of Rehabilitation Assistance Scheme. 7.1. In that view of the matter, this Court is of the view that the action of Opp. Party No. 2 in modifying the order of appointment to a contractual one vide order dtd.24.06.2015 under Annexure-11, so confirmed vide order dtd.20.11.2018 under Annexure-13 are not sustainable in the eye of law. Therefore, this Court is inclined to quash both the orders issued under Annexure-11 & 13 and while quashing both the orders, this Court upheld the order of appointment issued under Annexure-3, so approved vide order dtd.05.01.2015 under Annexure-6.
Arguments
Parties and Mr. P.K. Mohanty, learned counsel appearing for Opp. Party No. 3. 3. Petitioner has filed the present writ petition inter alia challenging office order dtd.24.06.2015 so issued by the Director, Higher Education, Odisha - Opp. Party No. 2 under Annexure-11, so confirmed vide order dtd.20.11.2018 under Annexure-13. 4. It is the case of the Petitioner that Petitioner was appointed on regular basis vide order of appointment issued on 25.09.2013 under Annexure-3. The appointment of the Petitioner was also duly approved by the Govt. vide office order dtd.19.11.2014 under Page 1 of 6. Annexure-5 and subsequent order passed by the Director, Higher Education – Opp. Party No. 2 on 05.01.2015 under Annexure-6. 4.1. It is contended that while so continuing on regular basis, Opp. Party No. 2 suo moto when modified the order of appointment to a contractual one vide order dtd.24.06.2015 under Annexure-11, the same was challenged by the Petitioner before this Court in W.P.(C) No. 4477 of 2017. This Court when directed Opp. Party No. 2 to take a fresh decision on the claim of the Petitioner, the same was rejected vide order dtd.20.11.2018 under Annexure-13. 4.2. Learned counsel for the Petitioner contended that since Petitioner was appointed under the provisions of Rehabilitation Assistance Scheme, under the said scheme there is no such provision for appointment on contractual basis. Therefore, in view of such provision contained under the scheme, Petitioner was appointed on regular basis vide order of appointment issued under Annexure-3, which was approved by the Director vide order dtd.05.01.2015 under Annexure-6 in terms of the letter issued by the Govt. in the Department of Higher Education on 19.11.2014 under Annexure-5. Since under the provision of the scheme Petitioner was rightly appointed on regular basis, there was no occasion to modify the same to a contractual one unilaterally vide order dtd.24.06.2015 under Annexure-11 so confirmed vide order dtd.20.11.2018 under Annexure-13. 4.3. In support of his aforesaid submission, learned counsel for the Petitioner relied on a decision of this Court so passed on 22.03.2023 in W.P.C.(OA) No. 2062 of 2017 (Biplab Kumar Sahoo Vs. State of Odisha & Ors.). It is contended that in the aforesaid order this Page 2 of 6. Court has held that no appointment on contractual basis can be made under the provisions of Rehabilitation Assistance Scheme. The view
Decision
8. The writ petition is disposed of accordingly. Sneha ( BIRAJA PRASANNA SATAPATHY) Judge Signature Not Verified Digitally Signed Signed by: SNEHANJALI PARIDA Designation: Sr. Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 11-Apr-2024 13:28:41 Page 6 of 6.