Orissa High Court
Case Details
ORISSA HIGH COURT : CUTTACK W.P.(C) No.25323 of 2022 In the matter of an Application under Articles 226 and 227 of the Constitution of India, 1950 *** Achyuta Patra Aged about 38 years Son of Purusottam Patra At: Chouka, P.O.: Mursundhi P.S.: Subalaya District:Sonepur. … -VERSUS- 1. State of Odisha Represented through Principal Secretary to Government in Agriculture and Farmers’ Empowerment Department At: Secretariat Building Bhubaneswar, District: Khordha. 2. Director of Horticulture, Odisha Bhubaneswar At: Heads of the Department Building At/P.O.: Bhubaneswar District: Khordha … Counsel appeared for the parties: Petitioner. Opposite Parties. For the Petitioner : M/s. Kunal Kumar Swain, Premananda Mohanty, W.P.(C) No.25323 of 2022 Page 1 of 23 U. Chhotray, Kaushik Swain, Advocates For the Opposite parties : Mrs. Saswata Pattnaik, Additional Government Advocate P R E S E N T: HONOURABLE MR. JUSTICE MURAHARI SRI RAMAN Date of Hearing : 16.08.2024 :: Date of Order : 23.08.2024 ORDER Challenging the Office Order No.7127, dated 11.07.2022 passed by the Director of Horticulture, Odisha, Bhubaneswar-opposite party No.2 under Annexure-8, wherein the representation of the petitioner for appointment in the post of Gardener under the Directorate of Horticulture in pursuance of direction contained in the Order dated 29.03.2022 passed in WPC (OAC) No.1268 of 2014 has been rejected on the ground that the said post has already been abolished, the petitioner has come up before this Court craving to for exercise of extraordinary power under Articles 226 & 227 of the Constitution of India with the following prayer(s):
Decision
“Under the above circumstances, it is humbly prayed that the writ petition may be allowed; And W.P.(C) No.25323 of 2022 Page 2 of 23 (A) a writ of mandamus or an appropriate writ may be issued quashing the Order dated 11.07.2022 passed by the Director of Horticulture, Odisha, Bhubaneswar under Annexure-8 and necessary direction may be made to the opposite parties to consider the case of the petitioner and appoint him against the post of Gardener/Horticulture Extension Worker by giving him preference and also by taking training qualification by into consideration his relaxing his upper age limit at par with 12 Trainee Candidates, who were given appointment against information the post of Gardeners as per the obtained by the petitioner under the Right to Information Act on 24.01.2012 under Annexure-3 series, within a time to be stipulated by this Hon’ble Court; (B) And any other order/orders or direction/directions may be issued to as to give complete relief to the petitioner; And for this act of kindness, the petitioner shall as in duty bound remain ever pray. ” Facts: 2. The petitioner, namely, Achyuta Patra, was issued with Certificate bearing No.151, dated 09.01.2008 having successfully completed the Self Employment Gardeners’ Training Course under National Horticulture Mission Programme 2007-08 conducted in the School of Horticulture, Odisha, Khordha from 28.06.2007 to 27.12.2008. W.P.(C) No.25323 of 2022 Page 3 of 23 2.1. Specifying last date for applying for the post of Gardener as 15.04.2011, an advertisement was published by the Director of Horticulture, Odisha, Bhubaneswar-opposite party No.2 whereby personnel having Class-VII pass qualification were required for filling up of 12 numbers of posts on Contractual basis with a consolidated monthly remuneration of Rs.4440/-, pursuant to which twelve personnel were selected with Gardener and Supervisory Training and given appointment on contractual basis. 2.2. Though there were large numbers vacancies in the posts of Gardeners, the Department only advertised twelve numbers of posts, which prompted the petitioner to submit a representation to the Director of Horticulture, Odisha, Bhubaneswar, which yielded no result. Therefore, the petitioner approached the Odisha Administrative Tribunal, Cuttack Bench, Cuttack by way of filing Original Application under Section 19 of the Administrative Tribunals Act, 1985, giving rise to O.A. No.1270 (C) of 2012, which came to be disposed of vide Order dated 11.05.2012 with the following direction: “*** The applicant had undergone training in Horticulture, conducted in the School of Horticulture, Orissa, Khurda from 2nd July, 2007 to 1st October, 2007 and has Employment successfully under National Entrepreneurs Training Course completed Self the W.P.(C) No.25323 of 2022 Page 4 of 23 Horticulture Mission Programme 2007-08 as per Annexure-1. The Director of Horticulture invited applications under Annexure-2 to fill up 12 posts of Gardeners on contractual basis. It was stipulated that personnel who have undergone Gardeners’ training under the Director of Horticulture will be given preference at the time of selection. Accordingly, the applicant along with others applied for the post of Gardeners on contractual basis. The Director of Horticulture took up the process of selection and appointed 12 candidates, who had undergone training in Horticulture. Unfortunately the applicant is not one of them. It is stated that some more posts of Gardeners are still lying vacant under the disposal of respondent No.2. The applicant has made a representation to the Director of Horticulture (respondent No.2) under Annexure-4 for being considered to be appointed against any one of the remaining posts of Gardeners on contractual basis. However, no action on his representation has been taken as yet. Learned counsel for the applicant submits that the applicant would be satisfied if respondent No.2 is directed to consider and dispose of his representation at an early date. Learned Standing Counsel has no objection to such course of action. In the result, the O.A. is disposed of with a direction to the respondent No.2 representation of the applicant under Annexure-4 keeping in view the averments made in the O.A. within a period of three months from the date of receipt of this order.” to consider and dispose of 2.3. No steps was taken by the authority pursuant to aforesaid Order dated 11.05.2012 of the Odisha Administrative Tribunal; nevertheless, an advertisement W.P.(C) No.25323 of 2022 Page 5 of 23 dated 25-31st January, 2014 was published in the local daily “Nijukti Khabar” for the posts of Horticulture Extension Worker (HEW) [which is claimed to be converted from Gardener] on contractual basis in the Office of the Deputy Director of Horticulture, Kandhamal, Phulbani. Therefore, the petitioner made a representation to the Director, Horticulture, Odisha, Bhubaneswar on 21.01.2014 to comply with the Order dated 11.05.2012 passed by the Odisha Administrative Tribunal, Cuttack Bench, Cuttack in O.A. No.1270 (C) of 2012. 2.4. Since said representation came out to be in vain, the petitioner again approached the learned Odisha Administrative Tribunal, Cuttack Bench, Cuttack invoking Section 19 of the Administrative Tribunals Act, 1985 by way of filing Original Application being O.A. No.1268 (C) of 2014, which after abolition of the said Tribunal by virtue of Ministry of Personnel, Public Grievances and Pensions (Department of Personnel and Training) Notification F. No. A-11014/10/2015-AT [G.S.R.552(E)], dated 2nd August, 2019), got transferred to this Court, and renumbered as WPC (OAC) No.1268 of 2014. This Court disposed of the said case by Order dated 29.03.2022 with the following observations: “*** W.P.(C) No.25323 of 2022 Page 6 of 23 4. However, taking into account the claim raised in the present Writ Petition, liberty is granted to the Petitioner to make a fresh representation before Opposite Party No.2 by enclosing all the relevant documents and citations in support of his claim, if any, within a period of three weeks hence. 5. It is observed that if such a representation is filed within the aforesaid period, Opposite Party no.2 shall do well to take a lawful decision on the same within a period of three months from the date of receipt of such representation. The order so passed by the Opposite Party No.2 be communicated to the petitioner. 6. With the aforesaid observation and direction, the writ petition is disposed of.” 2.5. In compliance of the aforesaid Order dated 29.03.2022 of this Court, the petitioner made a fresh representation to the opposite party No.2 on 16.04.2022, which has been rejected vide Office Order No.7127— 3P(H6)58/2016, dated 11.07.2022 on the ground that the post of Gardener has already been abolished. Said Order reads as under: “*** Whereas, during the year 2010-11, it was decided by the Government to fill up 12 number of Gardener on contractual basis through open advertisement. The advertisement was floated in the two local dailies. Accordingly, 131 number of candidates were appeared for the list was published and 12 candidates were selected for the post of test/examination. Then a final merit W.P.(C) No.25323 of 2022 Page 7 of 23 Gardener on Contractual basis as per the merit list. It is pertinent to mention here that the petitioner could not succeed in the test/examination. Whereas, as per the policy decision of the Govt. of Odisha on 09.05.2012 there will be no further recruitment in the cadre of Gardener and the post would stand abolished when Gardener retires or gets promoted. Since then no recruitment has been done in the post of Gardener till today. the petitioner has undertaken Whereas, the Self course under Employment Entrepreneurs Training National Horticulture Mission Programme during the year 2007. Whereas, the self-employment Gardeners Training was imparted in the School of Horticulture, Khurdha to encourage the unemployed youth of the State to earn their livelihood by way of self-employment. There was no condition in the self-employment Gardeners Training for appointment in the Govt. service after completion of training. Whereas, the recruitment to the post of Horticulture Extension Worker is now conducted by the Odisha Sub- ordinate Staff Selection Commission, Odisha by publishing open advertisement.” Hearing: 3. Heard Sri Premananda Mohanty, learned Advocate appearing for the petitioner and Smt. Saswata Pattnaik, learned Additional Government Advocate appearing for the opposite parties. Pleadings being completed, on consent of counsel for both sides, this matter taken up W.P.(C) No.25323 of 2022 Page 8 of 23 for final hearing. Having heard, the matter was kept reserved for preparation and delivery of Order. Submissions: 4. Sri Premananda Mohanty, learned Advocate has reiterated the facts stated in the writ petition and submitted that since the petitioner has got training in Horticulture, and has requisite qualification, in terms of policy of the Government preference should have been given to the petitioner by allowing him to work as Gardener (Horticulture Extension Worker). 5. Smt. Saswata Pattnaik, learned Additional Government Advocate appearing for the opposite parties referring to the contents of the counter affidavit filed on behalf of the opposite party No.2, submitted that the advertisement was issued for filling up of the post of Horticulture Extension Worker on contractual basis, but not for the post of Gardener. The petitioner is misconceived in stating that the post of Gardener has been converted to the post of Horticulture Extension Worker. 5.1. She also submitted that the post of Horticulture Extension Worker (HEW) was converted and re- designated after merging the two posts, i.e., Grafter and Field Technician. The Government in Agriculture Department vide Resolution No.21090/Ag., Dated 10.10.2012 framed rules for appointment of Group-C W.P.(C) No.25323 of 2022 Page 9 of 23 and Group-D posts of Odisha Horticulture Service, wherein 50% posts of HEW, which requires qualification of +2 Science pass, would be filled up by way of direct recruitment through open advertisement. Therefore, the Odisha Subordinate Staff Selection Commission is entrusted with publishing advertisement to fill up the post of Horticulture Extension Worker by direct recruitment through open advertisement. 5.2. She further submitted that certain applicants having approached the Odisha Administrative Tribunal in O.A. No.1510 of 2012 in connection with appointment of Gardener under the Directorate of Horticulture got order in their favour vide Order dated 27.06.2014. Challenging the said Order the State of Odisha filed W.P.(C) No.11307 of 2016 before this Court, which got dismissed on 22.12.2017. Said Order of this Court, being carried to the Hon’ble Supreme Court of India in Civil Appeal Nos.6227-6228 of 2019 (arising out of SLP (Civil) Nos.1363-1364 of 2019), vide Judgment dated 09.08.2019 [Director of Horticulture, Odisha Vrs. Pravat Kumar Dash, (2019) 11 SCR 708] allowed the said appeal and held that the Order of the Odisha Administrative Tribunal as affirmed by this Court directing the State to appoint the applicants as Gardeners is beyond jurisdiction. W.P.(C) No.25323 of 2022 Page 10 of 23 5.3. Smt. Saswata Pattnaik, learned Additional Government Advocate submitted that in the instant writ petition, the petitioners having claimed identical relief as was under consideration before the Hon’ble Supreme Court of India in the above reported Judgment, no writ of mandamus be issued to the opposite parties. It is, therefore, urged by Smt. Saswata Pattnaik, learned Additional Government Advocate that in view of the above position as set at rest by the Hon’ble Supreme Court of India, there remains nothing for adjudication in the present case, and insisted to dismiss the case. Discussion & Conclusion: 6. The petitioner has made approach to this Court on the expectation that having got training in Horticulture in the School of Horticulture, Odisha on the basis of preference he should have been given appointment to the post of Gardener. It is the claim of the petitioner that even if the post is stated to be abolished, he should have been given opportunity to be Horticulture Extension Worker. Such a plea was turned down by the Hon’ble Supreme Court in the case of Director of Horticulture, Odisha Vrs. Pravat Kumar Dash, (2019) 11 SCR 708, as cited by Smt. Saswata Pattnaik, learned Additional Government Advocate. W.P.(C) No.25323 of 2022 Page 11 of 23 6.1. It may be worthwhile to quote relevant portion of the said Judgment to draw similitude with the present context: “2. The challenge in the present appeals is to a judgment passed by Orissa High Court on December 22, 2017 maintaining the order dated June 27, 2014 passed by Odisha Administrative Tribunal in Original Application (OA) No. 1510 of 2012 and other petitions. The Tribunal decided nine OAs by a common order whereby the orders passed by the Government not to fill up the posts of Gardener and to create the equal number of posts of Horticulture Extension Workers were set aside. The State was directed to consider the applicants for appointment against the existing vacant posts of Gardener. *** in 17. The respondents were subjected to training in pursuance of circular dated July 4, 1998. The training was proposed in the circular dated April 16, 1998. It clearly contemplates that there is no guarantee the matter of employment after successful completion of training by the trainees. At that time, training was contemplated only in the School of Horticulture, Khurda during the year 1998- 1999. Subsequently, the training was proposed to be held in ten selected departmental farms but there is no assurance in the said communication dated July 4, 1998 that candidates would be appointed. The appointment to the post of Gardener is the required Recruitment Rules if any, applicable thereto or in terms of instructions issued under executive to be made terms of in W.P.(C) No.25323 of 2022 Page 12 of 23 power of the State but the appointments cannot be made merely for the reason that a candidate has undergone training. Out of 1359 candidates who applied in pursuance of circular dated July 4, 1998, 362 candidates were selected for training but the manner of their selection has not come on record. 18. We find the selection of the candidates for training was not by way of transparent procedure nor there was any commitment to appoint candidates who have completed training as Gardeners, therefore, even if a candidate has completed training, he cannot seek right of employment unless such posts are advertised and filled up by giving opportunity to all similarly situated candidates. The directions of the Tribunal, as affirmed by the High Court, intended to be that the candidates are employed are wholly unjustified as there cannot be any direction for appointment only for the reason that the candidates have undergone training. It is not necessary for this Court to examine whether the post of Gardener has been upgraded to the post of Horticulture Extension Worker or that it is the same post having a different nomenclature. The fact remains that all public posts are required to be filled up by giving an opportunity to all the candidates to apply and to compete for the post. 19. The services of six persons who were appointed were ordered to be terminated on December 10, 1999 but even if their termination was set aside on April 24, 2001, it will not confer any right on the basis of equity in favour of the other candidates. W.P.(C) No.25323 of 2022 Page 13 of 23