The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK WPC(OAC) Nos.1736 & 1737 of 2015 In the matter of an application under Section 19 of the Administrative Tribunals’ Act, 1985. ……………… …. Subrat Kumar Mohanty Petitioner -versus- State of Odisha & Others …. Opposite Parties For Petitioner :M/s. D.N. Rath,A.K. Saa. Advocate For Opp. Parties :M/s. D.K. Mohanty, Additional Standing Counsel PRESENT: THE HONBLE JUSTICE BIRAJA PRASANNA SATAPATHY ---------------------------------------------------------------------------------------------------- Date of Hearing: 16.01.2023 and Date of Judgment: 03.02.2023 --------------------------------------------------------------------------------------------------- Biraja Prasanna Satapathy, J. Since common question is involved in both the writ petitions and the claim is same, both the matters were heard analogously and disposed of by the present common order. 1 Both the writ Petitions have been filed challenging the order dated 31.12.2014 passed under Anneuxre-14 and with a further prayer to direct the Opp. Parties, more particularly, Opp. Party No.4 to treat the Petitioners at par with the other candidates those who have been appointed as Junior Clerks in terms of the merit list issued under Annexure-3. The Petitioners have also prayed to direct the Opp. Parties to the effect that they are governed under the Old pension scheme and they are not covered under the New Restructured Defined Contribution Pension Scheme, 2005. The Petitioners have also prayed to direct the opposite parties to give seniority to the petitioners at par with the persons who were appointed in terms of the merit list vide Annexure-3 and also to protect the seniority of the Petitioners at par with those persons who joined in the year 1999 vide Annexure-3. 2. Shorn of unnecessary detail, the facts giving rise to filing of the present writ petitions by both the Petitioners is that pursuant to the decision taken by the Government in the Finance Department on 05.01.1999 to fill up all vacant posts and new posts created in different Government offices, Opp. Party No.4 issued an advertisement on 18.01.1999 to fill up 29 posts of Junior Clerk under Annexure-2. In the said advertisement, it / 2 / was indicated that the vacancy position as shown is subject to change on account of subsequent accrual of vacancies. 2.1. Both the petitioners pursuant to Annexure-2 submitted their applications and they were called to appear the written and type test in terms of the provision contained under Orissa Ministerial service (Method of recruitment to posts of Junior Clerks in the district Offices) Rules,1995. 2.2. After completion of the written test and typing test, Opp. Party No.4 published the merit list of 103 candidates vide Notification dated 31.05.1999 under Annexure-3. But out of the selected 103 candidates after providing appointment to 86 candidates in order of merit, the balance17 candidates were not appointed inter alia on the ground that because of the ban imposed by the Finance Department on 16.07.1999, the Opp. Party No.4 is not in a position to provide appointment to the rest 17 selected candidates, which includes both the Petitioners. 2.3. Subsequently vide letter dated 25.03.2000 issued by the Finance Department under Annexure-4, it was clarified that post created in Financial year 1999-2000 shall not be filled up without a review regarding the operational necessity of these posts in consultation with the Finance Department and the / 3 / stipulation will held good even in cases where the process of recruitment /selection has been finalised. 2.4. In the meantime, Opp. Party No.4 vide letter dated 30.03.2000 under Annexure-5 though requested the Government- Opp. Party No.1 seeking necessary permission to fill up 57 Class-III and Class-IV posts including 16 posts of Jr. Clerk, but no permission was accorded. Opp. Party No.4 thereafter vide letter dated 29.05.2000 moved the General Administration Department for extension of the validity of the merit list, which was prepared pursuant to the selection undertaken by him as per the advertisement issued on 18.01.1999 Annexure-2. In the said letter issued on 29.05.2000, it was also indicated that out of 103 candidates, 17 candidates could not be given appointment because of the ban imposed by the Government in the Finance Department on 16.07.1999. 2.5. On receipt of letter dated 29.05.2000, Government in General Department vide letter dated 04.07.2000 under Annexure-6 sought for clarification from the Opp. Party No.4 as well as from the Finance Department as to why all the 103 selected candidates were not provided with appointment prior to imposition of the ban on 16.07.1999. But prior to receipt of such clarification, Opp. Party No.4 basing on the letter issued by the / 4 / Government-Opp. Party No.1 on 29.5.2000, though appointed the petitioners as Junior Clerk vide order dated 09.06.2000, but on temporary basis till 31.05.2001 under Annexure-7. 2.6. After completion of the term on 31.05.2001 when the Petitioners were not appointed on regular basis, they approached the Tribunal in O.A. No.1433 of 2001. O.A. No.1433 of 2001 was disposed of vide order dated 13.09.2012 under Annexure-9 and while disposing the same, the Tribunal in Para 5 to 8 of the order held as follows: “5. leaving behind
Legal Reasoning
The results of the recruitment examination were published by a notice dtd.31.5.1999 at Annexure-3. The Finance issued on 16.7.1999. Department Office memorandum was Therefore, there was no reason why the respondents could not issue appointment orders in favour of the applicants within the intervening period of one and half months. It appears from Annexure-‘B’ to the respondents counter that the Govt. In their G.A Department had deprecated the citon of the respondent no.4 for not issuing the appointment letters in favour of all the 103 successful candidates before Finance Department’s instructions came into force. It is thus seen that the applicants were prevented from getting employment only for the negligence of respondent no.4. 6. Admittedly, out of 103 successful candidates 86 candidates were given appointment the remaining 17 candidates including the applicant out of the select list, who were offered temporary appointment for one year and were retrenched on completion of one year of temporary service. Learned counsel for the applicant relied n the select list dtd.31.5.1999 at Annexure- 3 and pointed out that the respondent nos.3,6 and 9, who were SEBC candidates and placed at Sl. Nos.60,61 and 101 respectively, were not given appointment whereas the SEBC candidates placed below them at Sl. Nos.62 and 63 of the select list were given such appointment. Similarly, the applicant no.4 who belongs to S.C. category and was placed at Sl. No.64 was not given appointment bu the S.C candidates placed at Sl. Nos.79,84,86 & 87 were given appointment. Further, the applicant Nos.1 and 8, who were S.T. candidates and were placed at Sl. Nos.72 and 73 were not given appointment whereas the candidates of the S.T category, who are placed below them in the merit list at Sl. Nos.80,82 & 83 were given appointment. It was also brought to my notice that the applicant nos.2,5 & 7, who belong to U.R category and placed at Sl. Nos.92,93 and 97 were not given appointment though they were included n the merit list. Since candidates placed below in the erit list were appointed and / 5 / the applicants who were placed above them were refused appointment, this is clearly a case of gross discrimination. 7. The learned Govt. Advocate submitted that abolition of posts being a policy decision, the Court should not nterfere with the same, but the fact remains that the applicants were selected and theri selection was notified one and half months prior to the issuance of the Finance Department Notification abolishing 50% of the base level posts. The applicants, therefore, could have been easily appointed. The learned Govt. Advocate submits tht the life of a select list was for one year and before the expiry of the one year, ban order has been imposed for making appointment in W.P.(C ) No.11601 of 2000 our own High Court came across such arguments. Their Lordships in their judgment dtd.29.09.2003 observed that when the life of a select list was for one year but before the expiry of one year the ban order imposed for making appointment, the life of the select list could not have been treated to have come to an end. According to their Lordships the period for which the ban order was imposed was liable to be excluded from the list of the select list as it was not possible to act upon the select list. 8. In view of the above mentioned facts, the O.A is allowed. The respondents are directed to consider the case of the applicants for appointment against the vacancies, which were existing in the year 1999. If appointments have already been made against those vacancies, the applicants shall be considered against the existing vacancies, as their right to be considered for appointment against the vacancies, which were existing at the time when the select list ws in force has been curtailed. The applicants shall also be given necessary age relaxation. This order be complied with within a period of 90 days from the date of receipt of a copy of this order by the Respondents.” 2.7. Pursuant to the order passed by the Tribunal on 13.09.2012, both the Petitioners vide letter dated 06.06.2014 under Annexure-11 were directed to appear before the Opp. Party No.4 for verification of documents on 09.06.2014. After such verification of the documents and vide Office order dated 28.06.2014 under Annexure-12, both the Petitioners though were appointed as Junior Clerk in the regular scale of pay, but in Para 4 of the said order it was indicated that the GPF and pension shall be regulated as per the New Restructured Defined Contribution Pension Scheme, 2005 issued by the Government in / 6 / the Finance Department on 17.09.2005. The Petitioners challenging such stipulation in the office order dated 28.06.2014
Decision
under Annexure-12 have filed the Writ Petition with the prayer as indicated hereinabove. 3. Learned counsel for the petitioner vehemently contended that pursuant to the advertisement issued under Annexure-2 and after qualifying the written and typing test, Opp. Party No.4 published a select list of 103 successful candidates on 31.05.1999 vide Annexure-3. Instead of providing appointment to all the selected candidates and after providing appointment to 86 selected candidates, the balance 17 candidates which includes the present petitioners, were not given appointment on the ground that ban order has been imposed by the Finance Department on 16.07.1999. Thereafter while vide letter dated 30.03.2000 under Annexure-5, Opp. Party No.2 moved the Government-Opp. Party No.1 seeking permission to fill up 57 Class-III and Class IV posts including 16 posts of Jr. Clerk, Opp. Party No.1 vide letter dated 29.05.2000 when accorded such permission, Opp. Party No.4 appointed both the Petitioners as Jr. Clerk on temporary basis upto 31.05.2001 vide order dated 09.06.2000 under Annexure-7. / 7 / 3.1. Since the order of appointment issued under Annexure-7 was up to 31.05.2001, the Petitioners on completion of the term, when were not appointed on regular basis, they approached the Tribunal in O.A. No.1433 of 2001. The Tribunal vide Order dated 13.09.2012 disposed of the O.A with a direction on the Opp. Parties to consider the case of the petitioners for their appointment against the vacancies which was existing in the year 1999. Pursuant to the said order passed by the Tribunal, the Petitioners were appointed on regular basis vide order dated 28.06.2014 under Annexure-12. But in Para-4 of said order, since a condition was incorporated that the GPF and Pension shall be regulated as per the New Restructured Defined Contribution Pension Scheme, 2005 in terms of the Memorandum issued by the Government in the Finance Department on 17.09.2005, the Petitioners being aggrieved by the said stipulation, have approached this Court. 3.2. Learned counsel for the Petitioner contended that since pursuant to the advertisement issued under Annexure-2 on 18.01.1999, the Petitioners were selected with publication of the select list on 31.05.1999 under Annexure-3 and out of the 103 candidates selected, 86 candidates were appointed prior to imposition of the ban on 16.7.1999, the Petitioners are eligible / 8 / and entitled to be treated at par with the candidates who were appointed prior to 16.7.1999. It is also contended that basing on the permission granted by the Opp. Party No.1 on 29.05.2000, the Petitioners though were appointed vide order dated 09.06.2000, but the said appointment was made for a stipulated period i.e. till 31.05.2001. The Opposite Parties instead of allowing the petitioners to continue after 31.05.2001, did not take any further step and accordingly the matter was assailed before the Tribunal in O.A. No.1433(C ) of 2001. The Tribunal only vide order dated 13.09.2012 while deprecating the action of the opp. Parties, directed for consideration of the case of the Petitioners for appointment against vacancies which were existing in the year 1999. The Petitioners were accordingly appointed vide order dated 28.06.2014 under Annexure-12. 3.3. It is contended that since the post against which the Petitioners were appointed vide order dated 28.06.2014 were the subject-matter of the selection process initiated in the year 1999 and out of 103 selected candidates, 86 were provided with appointment prior to imposition of the ban by the Finance Department on 16.07.1999, the Petitioners are required to be treated at par with such candidates who were appointed prior to 16.07.1999. / 9 / 3.4. Learned counsel for the Petitioner accordingly contended that in view of such nature of dispute, the stipulation contained in paragraph-4 of Annexure-12 cannot be made applicable to the case of the Petitioners and instead they are eligible and entitled to be covered under the provisions of Old Pension Rules, 1992 and GPF(O) Rules, 1938. In support of his aforesaid submission, learned counsel for the Petitioners relied on a decision of this Court passed in the case of Anand Das Vs. State of Orissa) reported on 24.04.2013, 2014 (I) ILR-CUT 459. This Court in the said reported judgment in paragraph 15 to 18 has held as follows: “15. In the case at hand, as already stted above, all the petitioners joined in their due assignments on 02.04.2005 by which dte, the amended Rules were not existing. The said amended Rules, which were introduced by Notification dated 31.08.2007 and 17.09.2005, could not have been given retrospective effect by stating that they will come into operation from 01.01.2005, which is prior to the date, when the petitioners joined in their new assignments. 16. We, are therefore, of the considered view that the said amendments brought to the General Provide Fund (Orissa) Rules,1938 and the Orissa Civil Service (Pension) Rules, 1992 will not apply to the petitioners, who will be governed by the said Rules as it existed on the dte of their joining in service prior to the amendments brought into those Rules. 17. We also find that the Opposite Parties-State have discriminated the petitioners by allowing the benefits under the Old Pension Rules and General Provident Fund (Orissa Rules in he case of 13 regularly recruited OES officers, though they have been appointed on 14.02.2005 and joined in the Government service much after 01.10.2005. The said action on to discrimination and violates Articles 14 & 16 of the Constitution of India. 18. We, therefore, quash the impugned orders by which the representations of the Petitioners were rejected arbitrarily inasmuch as without assigning any reason in support of such rejection and direct that the Petitioners will be governed by the provisions of the Old General Provident the State also amounts the part of / 10 / Fund(Orissa) Rules, 1938 and the Orissa Civil Service (Pension) Rules, 1992 as it stood prior to the amendments brought into the same and will be entitled to all the benefits, which were provided thereunder prior to such amendments. These writ petitions accordingly stand allowed. No costs.” 3.5. Similarly, the Petitioners also relied on another decision of this Court rendered on 27.05.2022 in W.P.(C) No.3244 of 2022 and batch. This Court after following the decision of the Hon’ble Apex Court in a number of cases held as follows in Para 18 to 22. “18. Moreover, by virtue of the order of the learned Tribunal, 23 number of Jr. Lecturers who were appointed along with the Petitioners and in accordance with the same recruitment process have been brought under the Old Pension Scheme vide order dated 21.01.2021. Therefore, the inaction of the Opposite Parties in not bringing the Petitioners under the Old Pension Scheme is not just discriminatory but also untenable. 19. In the case at hand, as already stated above, all the Petitioners joined their due assignments before the amendment of the Old Pension Rules. The said amended Rules, which were introduced by Notification dated 31.08.2007 and 17.09.2005 there could not have been given retrospective effect by stating that they will come into operation from 01.01.2005, which is prior to the date,when the Petitioners joined in their new assignments. 20. It is crystal clear that the statutes or Rules dealing with substantive rights – is prim facie/generally prospective unless it is expressly or by necessary implications made to have retrospective operation. In the case of Young v. Adams, the observation reveals that a statue cannot be provided with a retrospective effect unless the language of the statute intends or expressly mentions the same. The fact that the legislature can execute the power to extinguish the existing rights and obligations provided by a statute by means of retrospective enactment seems unfair. While the apex court in the case of Govind Das v. Income Tax Officer has followed in the maxim “lexprospicit non respicit” which means that the law in hand always looks forward and / 11 / not towards the back. The essence of this principle is to subject current activities under the current laws only. 21. This Court is, therefore, of the considered view that the said amendments brought to the General Provident Fund(Orissa) Rules, 1938 and the Orissa Civil Service (Pension) Rules, 1992 will not apply to the Petitioners, who will be governed by the said Rules as it existed on the date of their joining in service. quashes therefore, 22. This Court, the impugned orders by which the representations of the Petitioners were rejected arbitrarily inasmuch as without assigning any reason in support of such rejection and direct that the Petitioners will be governed by the provisions of the old General Provident Fund(Orissa) Rules, 1938 and the Orissa Civil Service (Pension) Rules, 1992 as it stood prior to the amendments brought into the same and will be entitled to all the benefits, which were provided thereunder prior to such amendments. The amendments brought into the above two Rules, will have prospective effect from the date, such amendments were notified.” 4. Mr. D.K. Mohanty, learned Additional Standing Counsel on the other hand made his submission basing on the stand taken in the counter affidavit. It is contended that though initially in the advertisement issued under Annexure-2, 29 posts were advertised for being filled up, but Opp. Party No.4 published the select list of 103 candidates on 31.05.1999 under Annexure-3. Taking into account the vacancy available at the relevant point of time, 86 candidates were appointed leaving behind remaining 17 candidates which includes the present petitioners. The Petitioners were not appointed subsequently due to the ban imposed by the Finance Department vide Memorandum dated / 12 / 16.07.1999 under Annexure-A. Subsequently when the ban was lifted and the claim of the Petitioners were moved by Opp. Party No.4, both the Petitioners were appointed vide order under Annexure-7 for a period till 31.05.2001. 4.1. It is also contended that the select list published on 31.05.1999 became inoperative after completion of one year i.e. 30.05.2000. Since the remaining 17 candidates which includes the petitioners could not be appointed due to the imposition of the ban issued by the Government in the Finance Department and the select list became invalid after 30.05.2000, the Petitioners vide order under Annexure-7 were appointed on temporary basis till 31.05.2001 as against available vacancies. Subsequently due to non-availability of vacancies, the services of the petitioners were not extended beyond 31.05.2001. But in view of the order passed by the Tribunal in O.A No.1433 of 2001 on 13.09.2012, the case of the Petitioners were considered and they were appointed vide order dated 28.06.2014 under Annexure-17. 4.2. Since by the time the petitioners were appointed vide order under Annexure-12, the provisions of New Restructured Defined Contribution Pension Scheme, 2005 was already under operation w.e.f 01.01.2005 in terms of the Finance Department / 13 / Memorandum dated 17.09.2005, the service conditions of the petitioners were governed under the New Pension Scheme, 2005. It is accordingly contended that in view of the fact that the petitioners were appointed after coming into force of the Finance Department memorandum dated 17.09.2005, no illegality has been committed by Opp. Party No.4 by including the stipulation in para 4 of Annexure-12. 5. I have heard Mr. D.N. Rath, learned counsel appearing for the Petitioner and Mr. D.K. Mohanty, learned Additional Standing Counsel appearing for the State-Opp. Parties. On their consent, the matter is finally heard at the stage of admission and disposed of by the present common order. 6. Having heard learned counsel for the parties and after going through the materials available on record, it is found that pursuant to the advertisement issued under Annexure-2 on 18.01.1999, the Petitioners having qualified in the written and type test, they were included in the select list of 103 candidate published on 31.05.2019 under Annexure-3. It is also found that out of the 103 selected candidates whose names were published under Annexure-3, 86 candidates were provided with appointment prior to imposition of the ban on 16.07.1999. After lifting of the ban and on being moved, the petitioners though / 14 / were appointed vide order dated 09.06.2000 under Annexure-7, but instead of appointing them on regular basis, they were appointed for a term ending on 31.05.2001. After completion of the said term on 31.05.2001, no further steps were taken by the Opp. Parties in providing appointment to the petitioners on regular basis. 6.1. Even though the Petitioners challenging such inaction approached the Tribunal in O.A. No.1433 (C ) of 2001, but the Opp. Parties did not take any step till the matter was finally decided by the Tribunal vide order dated 13.09.2012. Pursuant to the order passed by the Tribunal on 13.09.2012 under Annexure-9, the Petitioners were ultimately appointed vide office order dated 28.06.2014 under Annexure-12. 6.2. Therefore, from the materials available on record, this Court finds that the petitioners though are similarly situated at par with other 86 candidates, who were appointed prior to imposition of the ban on 16.07.1999, but the authorities never took any step to appoint the petitioners after lifting of the ban. Pursuant to the order under Annexure-7 though the Petitioners were appointed as Jr. Clerk, but the said appointment was on a term basis i.e till 31.05.2001. After completion of the said term, the Petitioners were never considered for their appointment on / 15 / regular basis and in spite of the pendency of the matter before the Tribunal since 2001, no action was also taken to appoint them on regular basis. Only after the matter was finally disposed of by the Tribunal on 13.09.2012, the Petitioners were appointed vide order dated 28.06.2014 under Annexure-12. 6.3. Therefore, in view of the admitted fault on the part of the Opp. Parties in not providing appointment to the petitioners even after lifting of the ban by the Finance Department, placing reliance on the decision of this Court in the case of Anand Das Vs. State of Orissa and Ranjan Kumar Sahu Vs. State of Orissa as cited supra , this Court is of the view that the service conditions of the petitioners are required to be governed under the provisions of Orissa Civil Service (Pension) Rules, 1992 and Old General Provident Fund( Orissa Rules), 1938 as they were appointed pursuant to the selection process initiated in the year 1999. This Court accordingly while disposing the writ petition directs the Opp. Parties to take effective steps to bring over the Petitioners under the OCS (Pension) Rules, 1992 and GPF (O) Rules, 1938. The Opp. Parties are directed to take appropriate step in the matter within a period of three months from the date of receipt of this order. / 16 / Both the Writ Petitions are disposed of with the aforesaid observation and direction. Photocopy of this order be placed in the connected case. (Biraja Prasanna Satapathy) Judge Orissa High Court, Cuttack Dated the 3rd February, 2023/sangita / 17 /