In the matter of an application under Articles 226 and 227 of the Constitution v. State of Odisha and another
Case Details
HIGH COURT OF ORISSA: CUTTACK W.P.(C) No.32081 of 2021 In the matter of an application under Articles 226 and 227 of the Constitution of India. ----------- Arun Kumar Nath and others … Petitioners - Versus - State of Odisha and another … Opposite parties For Petitioners … M/s. A.K. Acharya, S. Mishra & A. Acharya. For Opposite Parties … Mr. P.C. Das, Additional Standing Counsel -------------- PRESENT: THE HONOURABLE SHRI JUSTICE A.K. MOHAPATRA Date of hearing & judgment : 05.02.2024 A.K. Mohapatra, J. 1. Heard Mr. A.K. Acharya, learned counsel appearing for the Petitioners as well as Mr. P.C. Das, learned Additional Standing Counsel appearing for the State-Opposite Parties. // 2 // Perused the pleadings of the respective parties as well as documents annexed thereto. 2. The present writ petition was initially filed by the Petitioners with a prayer for a direction to the Opposite Parties to regularize their service by taking into consideration the recommendation made by Opposite Party No.2 under Annexure-1 and keeping in view the G.A. & P.G. Department Resolution under Annexures-6 & 7 as well as the instructions
Decision
of the Government as per Annexure-8 to the writ petition. 3. On perusal of the record, it appears that a coordinate Bench took up the matter for hearing analogously with W.P.(C) No.19951 of 2020. The aforesaid W.P.(C) No.19951 of 2020 has been allowed by the coordinate Bench vide judgment dated 09.09.2021. Since the case of the Petitioners stands in a similar footing with that of W.P.(C) No.19951 of 2020, the learned coordinate Bench vide order dated 25.10.2021 allowed the present writ petition in terms of the // 3 // judgment dated 09.09.2021 passed in the said writ petition with a further direction to the Opposite Parties to regularize the service of the Petitioners and to grant all consequential service and financial benefits in accordance with law as expeditiously as possible, preferably within a period of two months. 4. The order so passed in the present writ petition on 25.10.2021 was assailed before the Division Bench by the State-Opposite Parties by filing W.A. No.1022 of 2022. A Division Bench of this Court vide order dated 28.03.2023 allowed the writ appeal on the ground that the present writ petition was disposed of on the very first day without giving any opportunity to the State Government to file reply to the grounds taken in the writ petition and, accordingly, the order dated 25.10.2021 was set aside and the matter was remanded back to the learned Single Judge Bench for rehearing the matter. Under the aforesaid circumstances, the matter has been listed again before this Court after filing of the counter // 4 // affidavit by the State-Opposite Party No.2 on 10.07.2023. The Petitioners have also filed a rejoinder to the counter affidavit filed by the State-Opposite Party No.2 on 24.07.2023. 5. The factual matrix of the present writ petition, in a narrow compass, is that the Petitioners, who are five in number, were initially appointed as a Gardner in the office of the Opposite Party No.2. Prior such appointment, the office of the Opposite Party No.2 requested the District Employment Exchange of different districts to sponsor candidates to be engaged as Gardeners and, accordingly, the names of the Petitioners along with other candidates were sponsored by the respective Employment Exchanges. Pursuant to a call letter, the Petitioners appeared before the authority for selection/interview. Following due procedure, the Petitioners were validly selected and thereafter they were sent to undergo a Pre-Gardner training at the School of Horticulture, Khordha. Despite successful completion of // 5 // training, the Petitioners were not given appointment due to the ban order imposed by the Finance Department which continued upto the year 2009. 6. While the matter stood thus, vide letter dated 19.5.2010, the Government in Agriculture Department with due concurrence of the Finance Department created 71 numbers of contractual posts of Gardner after abolishing 71 numbers of posts of Gardner vide letter dated 19.05.2010. After creation of such contractual post, the Opposite Party No.1 vide letter dated 19.05.2010 directed the Opposite Party No.2 to fill up 61 numbers of vacancies in the post of Gardner on contractual basis from among the persons who have completed the training, and the rest of the posts were to be filled up through open advertisement. 7. Pursuant to the instruction dated 19.05.2010 under Annexure-2 to the writ petition, the Opposite Party No.2 vide its letter No.2042 dated 05.06.2010 issued letters of // 6 // appointment thereby appointing the Petitioners on contractual basis. Such contractual appointment under Annexure-3 to the writ petition was being extended from time to time by the State Government. With regard to the procedure followed in selecting the 61 numbers of Gardeners including the Petitioners, the administrative officer of the Opposite Party No.2’s office made a communication to the Opposite Party No.1 thereunder clarifying the procedure to be adopted while selecting the Petitioners. 8. Mr. A.K. Acharya, learned counsel appearing for the Petitioners submitted that although the Petitioners have been working on contractual basis, their services were never regularized by following the G.A. & P.G. Department Notification dated 17th September, 2013 as well as Resolution dated 16th January, 2014. He further contended that the cases of the Petitioners are squarely covered under the aforesaid two resolutions of the G.A. & P.G. Department, Government of Odisha. Therefore, the services of the Petitioners should // 7 // have been regularized as they have been selected by following a valid and transparent selection procedure and also they have been appointed on contractual basis after abolition of the regular posts of Gardner. In such view of the matter, learned counsel for the Petitioners submitted that the Petitioners fulfilled the eligibility criteria for regularization of their service under the aforesaid two resolutions of the G.A. & P.G. Department of Government of Odisha. 9. Learned counsel for the Petitioners further contended that since the services of the Petitioners were not being appointed despite repeated approach to the authorities, some of the persons, who were selected along with Petitioners to be appointed as contractual Gardner, approached the Odisha Administrative Tribunal by filing O.A. No.1297(C) of 2010 and O.A. No.1298(C) of 2010 for a direction to the Opposite Parties to give them appointment as Gardeners. The Tribunal vide order dated 14.05.2010 disposed of the Original // 8 // Applications with a direction to the Opposite Parties to consider the grievance of the applicants. 10. Learned counsel for the Petitioners further contended that since the Petitioners have completed 6 years of continuous service on contractual basis, and they were engaged on such contractual basis after being duly selected through the valid selection procedure, and such continuous service is without any intervention by any court of law, the Petitioners are entitled to be absorbed on completion of 6 years of service as has been provided in the G.A. Department Notification dated 12.11.2013. 11. In course of his argument, learned counsel for the Petitioners submitted that the Petitioners have been appointed on contractual basis and are continuing as such till date. In the aforesaid context, learned counsel for the Petitioners further referring to the judgment of the Hon’ble Supreme Court in Secretary, State of Karnataka v. Uma Devi (3), // 9 // (2006) 4 SCC-1; State of Karnatak v. M.L. Keshari, (2010) 9 SCC 247; Nihal Singh & Others v. State of Punjab & Others, 2013 (14) SCC 65; and Amarkant Rai v. State of Bihar & Others, 2015 (8) SCC 265, contended before this Court that the services of the Petitioners are to be regularized on completion of 10 years of uninterrupted service. Mr. Acharya, learned counsel for the Petitioners emphatically argued that the cases of the Petitioners are squarely covered by the ratio laid down in the above noted judgments of the Hon’ble Supreme Court and, as such, they are entitled to the benefits as has been given to the persons under the aforesaid judgments by the Hon’ble Supreme Court. 12. Learned counsel for the Petitioners further referring to the judgment of this Court in Patitapaban Dutta Dash and others v. State of Odisha & others (W.P.(C) No.19951 of 2020, decided on 09.09.2021, contended before this Court that the observation made by the learned coordinate Bench in para-27 of the aforesaid judgment squarely applies to the // 10 // facts of the Petitioners’ case. He, in fact, submitted that the case of the Petitioners was heard analogously with the case of Patitapaban Dutta Dash’s case (supra). However, the case of Patitapaban Dutta Dash’s case (supra) was disposed of vide a common judgment dated 09.09.2021. Since the case of the Petitioners is akin to the fact of the case of Patitapaban Dutta Dash’s case (supra), the learned coordinate Bench initially disposed of the writ application vide order dated 25.10.2021 thereby allowing the writ petition in terms of the aforesaid judgment. He further contended that the judgment in Patitapaban Dutta Dash’s case (supra) was assailed before a Division Bench of this Court by filing W.A. No.777 of 2021. The Hon’ble Division by a common judgment dated 12.04.203 dismissed the batch of writ appeals with a further direction to the State-Opposite Parties to implement the judgment of the learned Single Judge in letter and spirit within a period of twelve weeks from the date of disposal of the writ appeals. // 11 // 13. To justify the claim of the Petitioners for regularization/absorption of their service, learned counsel for the Petitioners emphatically argued that the Petitioners have been sponsored by the Employment Exchange and that they were made to appear in the selection test conducted by the Opposite Parties. On being duly selected by the Selection Committee by strictly following the recruitment procedure as well as provisions of the O.R.V. Act, the Petitioners were initially sent to undergo training. However, due to the ban order, they were not engaged. After lifting of the ban order although the Petitioners were engaged, however the same was against contractual posts of Gardener. 14. Mr. Acharya further contended that after working for so many years, the services of the Petitioners should have been regularized/absorbed against regular vacant posts. Although a request was made by the office of the Opposite Party No.2 to the Opposite Party No.1 to issue formal regular appointment orders, no action was taken pursuant to such request. In // 12 // course of his argument, he also referred to the judgment of this Court in Gopinath Sahoo v. State of Odisha (W.P.(C) No.27900 of 2021, decided on 21.09.2021). In the said case, the Petitioner was appointed as a contractual Gardner in the year 2011 and admittedly he was appointed after the Petitioners were appointed. However, pursuant to the order passed by this Court, the service of the Petitioner has been regularized and he has been working as Gardner in the office of the Deputy Director, Horticulture, Gajapati District. 15. Per contra, a counter affidavit has been filed by the Opposite Party No.2 opposing the claim of the Petitioners for regularization/absorption of their service. The Opposite Party No.2 while denying the assertions made in para-2 to 11 of writ petition has stated that pursuant to the guideline dated 16.04.1998, the Deputy Director of Horticulture of the Districts sponsored the selected candidates to the Schools of Hrticulture, Khordha to undergo Pre-Service Gardeners training for a period of 10 months. As such, total 61 numbers // 13 // of Gardener Trainees after successfully completed the training were relieved from the School of Horticulture, Khordha vide order dated 30.09.2000. It has also been stated that in the guideline dated 16.04.1998, it has been categorically indicated that no guarantee can be given in the matter of employment after successfully completion of training by the trainees. Therefore, the claims of the Petitioners are not justified. 16. The counter affidavit further reveals that due to imposition of austerity measures by the Finance Department, Government of Odisha, there was a ban on filling up of the base level posts. As such, the cases of the Petitioners could not have been considered by the Opposite Parties for appointment. In the year 2010, 71 numbers of posts of contractual Gardeners were created in view of abolition of 71 sanctioned posts of Gardener under the Directorate of Horticulture vide letter dated 19.5.2010. After creation of such contractual posts, the Petitioners have been appointed on // 14 // contractual basis with a consolidated remuneration of Rs.5,200/-. Further, a ground has been taken that the claim of the Petitioners for regularization does not hold ground as the Petitioners have not been recruited through the open advertisement. 17. Learned Additional Standing Counsel appearing for the State-Opposite Parties contended that the Petitioners were not engaged through an open advertisement. Therefore, their very appointment is irregular and, as such, their services cannot be regularized by the Opposite Parties. He further contended that the Petitioners have not been appointed under the G.A. Department Resolutions referred to by the Petitioners in the writ petition. 18. In course of his argument, learned Additional Standing Counsel further contended that the cases of the Petitioners are not covered by the judgments of the Hon’ble Supreme Court as has been referred to hereinabove. In such view of the // 15 // matter, learned Additional Standing Counsel submitted that the writ petition is devoid of merit and, accordingly, the same should be dismissed. 19. In the rejoinder affidavit filed by the Petitioners to the counter affidavit of Opposite Party No.2, it has been stated that Opposite Party No.2 himself vide his letter No.3/5321 dated 25.04.2017 recommended to the State Government for issuance of formal orders of regular appointment of 55 contractual Gardeners under the Odisha Group ‘C’ and Group ‘D’ Posts (Contractual Appointment) Rules, 2013 as the Director is the appointing authority. The rejoinder affidavit further reveals that the Petitioners were sponsored by the Employment Exchange and, accordingly, they attended the interview/selection process as stipulated in the guidelines and after being duly selected in the interview, the Petitioners and similarly situated other persons were sent for training and on successful completion of their training, they have been appointed, albeit on contractual basis. Moreover, starting // 16 // from 1981-82 till 1998-99 all the batches of Gardener trainees have been appointed on regular basis after completion of their trainings. 20. Having heard the learned counsels appearing for both the sides and on a careful consideration of their submissions, and on due examination of the materials on record, this Court observes that it is an admitted fact that pursuant to the guideline dated 16.04.1998, the names of the persons including the Petitioners were called for from the Employment Exchange. Thereafter, they were made to appear in an interview and on being duly selected for Pre-Service Gardner training, the Deputy Director of Horticulture of the District sponsored the selected candidates to the School of Horticulture, Khordha to undergo Gardner’s training for a period of 10 months. Total 61 numbers of Gardeners successfully completed their training and were relieved from the School of Horticulture, Khordha vide order dated // 17 // 30.09.2000. Thereafter, they were not given appointment immediately. 21. This Court further observes that it is also an admitted fact that in the year 2010, 71 numbers of posts of contractual Gardeners were created in lieu of abolition of 71 sanctioned posts of Gardeners under the Directorate of Horticulture vide letter dated 19.05.2010. Furthermore, on perusal of the note sheet under Annexure-C/2 to the counter affidavit of the Opposite Party No.2, it reveals that necessary instructions were issued to all the Deputy Directors, Horticulture for issuance of appointment order in favour of 61 contractual Gardner trainees including the present Petitioners with a consolidated remuneration of Rs.5,200/- per month vide Director of Horticulture, Odisha letter dated 05.06.2010. Such instruction, as it appears from the counter affidavit, has the concurrence of the Finance Department, Government of Odisha. // 18 // 22. The only valid ground that has been taken in the counter affidavit of the Opposite Party No.2 to deny the claim of the Petitioners is that the Petitioners were not recruited through an open advertisement. However, while saying so, in the counter affidavit, the Opposite Parties have not denied that the Petitioners were sponsored by the District Employment Exchange. As such, it cannot all together be denied that the selection and recruitment was not fair and transparent. Moreover, the Petitioners along with the others were sent for training and they have successfully completed such training. 23. It also appears from the rejoinder affidavit that same practice was being adopted by the Opposite Parties since the year 1981-82 to 1998-99 and all such persons, who were selected in those years, were asked to undergo training and had successfully completed the training and pursuant to which they were appointed on regular basis. The deviation, so far as the Petitioners are concerned, occurred due to a ban order which was imposed in filling up of base level posts in // 19 // the year 2000. Therefore, the Petitioners were not given appointment after completion of their training. However, the Petitioners were validly appointed on contractual basis in the year 2010. Such fact has also been admitted by the Opposite Party No.2 in its counter affidavit. It is also an admitted position that the Petitioners have been working since their engagement on contractual basis in the year 2010. In the meantime they have completed more than 10 years of service as Gardners. 24. This Court came across the case of Kabindranath Sahoo & Another v. State of Odisha & Another (WPC(OAC) No.2629 of 2015, decided on 04.08.2022). The case of aforesaid Kabindranath Sahoo and another is identical to the facts of the Petitioners’ case. In the aforesaid Kabindranath Sahoo’s case (supra), a coordinate Bench vide its order dated 04.08.2022 allowed the writ petition with a direction to the Opposite Parties to absorb the Petitioners in the post of Gardner on regular basis in which they were // 20 // continuing within a period of three months from the date of receipt of a copy of that order. 25. On a careful analysis of the factual background of the present case as well as the settled legal position, this Court is of the considered view that the Petitioners deserve to be regularized in service. Such regularization/absorption is permissible under the G.A. Department Resolutions referred to hereinabove as well as by following the principle laid down by the Hon’ble Supreme Court in Uma Devi’s case (supra). In such view of the matter, this Court is of the considered view that the Opposite Parties have committed illegality by not considering the case of the Petitioners for regularization/absorption. 26. Accordingly, while allowing the writ petition, this Court directs the Opposite Parties to regularize the service of the Petitioners within a period of two months from the date of communication of a copy of this judgment by the Petitioners. // 21 // Further, it is directed that while regularizing/absorbing the Petitioners in service, the Opposite Parties shall keep in mind the inter se seniority of the Petitioners and, accordingly, the Petitioners be regularized in service from the date any of their batchmates who have been regularized in the meantime by the Opposite Parties. 27. It is needless to clarify here that upon such regularization/absorption of service, the Petitioners would be entitled to all consequential service and financial benefits. 28. With the aforesaid observations and directions, the writ petition is allowed. However, there shall be no order as to costs. (A.K. Mohapatra) Judge Orissa High Court, Cuttack The 5th February, 2024/Debasis Aech, Secretary Signature Not Verified Digitally Signed Signed by: DEBASIS AECH Designation: Secretary Reason: Authentication Location: OHC, CUTTACK. Date: 12-Feb-2024 20:06:17