In the matter of an application under Articles 226 and 227 of the Constitution v. – State of Odisha and others
Case Details
HIGH COURT OF ORISSA: CUTTACK W.P.(C) No.33721 of 2020 In the matter of an application under Articles 226 and 227 of the Constitution of India. Pravakar Barik … Petitioner ----------- - Versus – State of Odisha and others … Opposite parties For Petitioner … M/s. Kabir Kumar Jena & Siba Prasad Swain. For Opposite Parties … Mr. A.P. Das, Additional Standing Counsel -------------- PRESENT: THE HONOURABLE SHRI JUSTICE A.K. MOHAPATRA Date of hearing & judgment : 12.01.2024 A.K. Mohapatra, J. 1. This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode). 2. Heard learned counsel appearing for the Petitioner as well as learned Additional Standing Counsel appearing for the // 2 // State-Opposite Parties. Perused the pleadings of the respective parties and the documents annexed thereto. 3. The present writ petition has been filed by the Petitioner with a prayer to quash order dated 06.11.2020 passed by the Opposite Party No.1-Commissioner-cum-Secretary to Government of Odisha, Information and Public Relations
Decision
Department under Annexure-9 to the writ petition and further for a direction to release all financial service and retiral pensionary benefits to him within a stipulated period of time. 4. The factual background leading to filing of the present writ petition, in a narrow compass, is that the Petitioner was initially engaged as a Junior Store Keeper on adhoc basis on 12.3.1992 by the Information and Public Relations Department, Government of Odisha. While working as such, on 16.03.1993, the Petitioner joined at DIPRO, Keonjhar as a Junior Store Keeper. On 30.09.1993, the I&PR Department, Government of Odisha issued a letter directing the Petitioner to appear in a written test for recruitment to the post of Junior Store Keeper to be held on 14.10.1993. Pursuant to the aforesaid letter, the Petitioner appeared in the written test on 14.10.1993 held at I&PR Department, Bhubaneswar for recruitment to the post of Junior Store Keeper along with other participants. // 3 // 5. Thereafter, the Petitioner vide letter dated 07.10.1994 was intimated that he has come out successfully in the written test conducted by the department for recruitment to the post of Junior Store Keeper held on 14.10.1993 and the Petitioner was further directed to appear before the Department Selection Committee, I&PR Department, Bhubaneswar on 14.11.1994 for the viva voce test. Accordingly, the Petitioner appeared before the Department Selection Committee on 14.11.1994 and participated in the viva voce test conducted by the department. 6. On 01.12.1994, the final result of the recruitment test was published and in the said final merit list, the Petitioner was placed at third position and he had secured total 47 marks which include 35 marks in the written test and as claimed by the Petitioner, he has secured the highest mark in the written test among all the candidates. Although the Petitioner’s name finds place in the final select list, he was not given appointment to the post of Junior Store Keeper as no vacancy was available at the relevant point of time. However, two other person, who appeared in the recruitment test, were given appointment. The Petitioner continued to serve on adhoc basis under the I&PR Department, Government of Odisha. // 4 // 7. While the matter stood thus, the Petitioner approached the Odisha Administrative Tribunal, Bhubaneswar by filing O.A. No.880 of 1995. The Tribunal on 27.6.1995 passed an interim order directing the Opposite Parties to adjust the Petitioner on adhoc basis and allowing him to continue in service. Further, it was also directed to consider the case of the Petitioner for appointment against any future vacant post as the Petitioner has successfully completed the recruitment test. The above noted O.A. No.880 of 1995 was finally disposed of on 7.4.1999 without regularizing the service of the Petitioner in the post of Junior Store Keeper. However, the learned Tribunal directed the Opposite Parties that in the event any recruitment test takes place in the future, the Petitioner shall be allowed to participate in the said recruitment test by granting him age relaxation. Challenging the order passed by the Tribunal, the Petitioner approached this Court by filing O.J.C. No.12308 of 1999. The said writ petition was withdrawn by the Petitioner vide order dated 07.11.2007. 8. Learned counsel for the Petitioner contended that the Petitioner was given assurance by the Opposite Parties that he will be appointed against a regular vacant post of Junior Store Keeper. Since no action was taken to regularize the service of // 5 // the Petitioner, the Petitioner filed a representation on 11.10.2000 before the departmental authorities with the prayer to regularize his service after obtaining concurrence from the Finance Department. In course of his argument, learned counsel for the Petitioner drawing attention of this Court to Annexure-4 submitted that the Hon’ble Minister of State (Independent), I&PR Department had initiated a proposal for regularization of service subject to the concurrence of the Finance Department. He further contended that the Finance Department, Government of Odisha on 11.04.2001 had granted concurrence for regularization of the service of the Petitioner subject to certain conditions as stipulated in the note sheet dated 11.4.2001. 9. It was also contended by the learned counsel for the Petitioner that despite obtaining such concurrence from the Finance Department for regularization of the service of the Petitioner, the service of the Petitioner was never regularized, although the Petitioner continued to discharge his duty on adhoc basis as a Junior Store Keeper till he approached this Court by filing the present writ petition. While the matter stood thus, another proposal was moved by the I&PR Department seeking regularization of 21 employees and the department file was sent to the Finance Department for their // 6 // concurrence. The Finance Department took a decision which was uploaded in the official website of the Government, namely, Odisha Secretariat Workflow Automation Service (OSWAS). The downloaded copy of such decision reveals that the Finance Department has regretted the proposal of regularization of 21 nos. of adhoc employees working under the I&PR Department of the Government of Odisha. Further, the Finance Department has advised to allow the said adhoc employees to continue with their existing remuneration structure. Being aggrieved by such decision of the Finance Department in rejecting the proposal for regularization of the service of the Petitioner, the Petitioner has approached this Court by filing the present writ petition. 10. Learned Additional Standing Counsel appearing for the State-Opposite Parties submitted that the State-Opposite Parties have filed a counter affidavit. In the counter affidavit, it has been stated that the proposal for regularization of service of 21 employees including the present Petitioner was sent to the Finance Department for concurrence. However, the Finance Department has rejected the same vide order dated 14.7.2020, which was uploaded in OSWAS website. Further, drawing attention to the Circular dated 3rd August, 2004 under Annexure-G/2 to the counter affidavit, learned Additional // 7 // Standing Counsel submitted that the Government of Odisha has taken a decision for abolition of 75% of the base level vacant post as on 01.04.2004. 11. In course of his argument, learned Additional Standing Counsel also referred to the proceeding of the minutes of the High Power Committee held on 18.04.2015. By referring to the aforesaid proceeding, learned Additional Standing Counsel submitted that a decision has been taken by the aforesaid High Power Committee with regard to the adhoc cases under the Point No.(ii). He further contended that the High Power Committee has taken a specific decision not to regularize the service of some employees who have been named in the proceeding of the High Power Committee under Annexure-H/2 to the counter affidavit. Referring to Point No.(iii) of the minutes of the High Power Committee, he further contended that the High Power Committee has observed that they did not consider the cases of other employees for their regular employment as such persons have been given contractual/adhoc appointed without being selected by any Selection Board/Committee conducting recruitment tests and following reservation principles. 12. The aforesaid Point No.(iii) further reveals that the High Power Committee has taken note of the advice of G.A.&PG // 8 // Department which has recommended for taking appropriate steps to fill up the posts held by the contractual/adhoc employees on contractual basis following the new recruitment policy. Therefore, the contractual/adhoc will be allowed to apply for their participation in the recruitment test with age relaxation and weightage in marks and that their regularization can only be considered as per law. Till such adhoc/contractual employees are regularized, they will be allowed to continue in service by extending their contract from time to time. 13. Learned Additional Standing Counsel further contended that the rejection order dated 06.11.2020 under Annexure-J/2 to the counter affidavit further reveals that since one of the conditions of the Finance Department could not be fulfilled, i.e. to abolish the other post of Junior Store Keeper, the case of the Petitioner was not considered by the Opposite Parties. He further contended that so far the other post of Junior Store Keeper is concerned, one Achyutananda Basita was continuing on adhoc basis and by virtue of the interim order dated 13.10.1993 passed by the OAT in O.A. No.1818/93, the said Achyutananda Basita was continuing in the other post. Learned Additional Standing Counsel further referring to order dated 06.11.2020 under Annexure-J/2 to the counter // 9 // affidavit, submitted before this Court that the Opposite Party No.1 has rejected the case of the Petitioner by passing a speaking order and, as such, the same does not call for any interference by this Court by invoking the jurisdiction under Article 226 of the Constitution of India. 14. In reply to the submission made by the learned Additional Standing Counsel appearing for the State-Opposite Parties, learned counsel for the Petitioner submitted that initially the Finance Department had granted concurrence laying down certain conditions vide order dated 11.04.2001. Therefore, there was no necessity to again seek for the concurrence of the Finance Department in the year 2020. He further contended that the I&PR Department, Government of Odisha was to implement the decision taken by it, to which, the Finance Department had given concurrence vide order dated 11.04.2001. Although the concurrence of the Finance Department was conditional, however the fact remains that such conditions were to be complied by the Opposite Parties not by the Petitioner. In reply to the decision of the High Power Committee referred to by the learned Additional Standing Counsel, learned counsel for the Petitioner submitted that it is a matter of record that the Petitioner was appointed on adhoc basis on being selected by following a // 10 // valid selection procedure. Therefore, it cannot be said that the Petitioner has not been engaged without following a valid selection procedure. With regard to regularization of service of the adhoc/contractual employees, learned counsel for the Petitioner submitted that the decision taken by the High Power Committee is not applicable to the Petitioner. 15. He further contended that the present Petitioner stands in a different footing as he has been selected and appointed by following a valid selection procedure. Further, in reply to Point No.(iii) of the High Power Committee decision, learned counsel for the Petitioner submitted that the bar imposed by the High Power Committee is applicable to the candidates who have been appointed on contractual/adhoc basis without being selected by following any valid selection procedure. Therefore, such bar created by the High Power Committee is not applicable to the Petitioner’s case. Moreover, the recommendation of the G.A. Department is applicable to such employees who have been engaged on adhoc/contractual basis without following a valid selection procedure. Therefore, such advice of the G.A. Department is also not applicable to the facts of the Petitioner’s case. Learned counsel for the Petitioner further referring to the decision of a coordinate Bench of this Court in the case of Achyutananda // 11 // Bastia v. State of Odisha and others (WPC(OA) No.1888 of 1993 decided vide judgment dated 18.10.2022), submitted before this Court that the learned coordinate Bench has been pleased to allow the writ application of the Petitioner with a direction to the Opposite Parties to absorb the Petitioner against the post of Junior Store Keeper within a period of three months. 16. Having heard the learned counsels appearing for the respective parties and on a careful analysis of the factual background of the case as well as the submissions made by the learned counsels for both the sides and on perusal of the pleadings of both the sides, this Court observes that the only question that falls for consideration is with regard to the fact that whether the Petitioner’s service should have been regularized after a proposal was moved by the I&PR Department and necessary concurrence was granted by the Finance Department vide its order dated 11.04.2001 under Annexue-4 to the writ petition which has also been filed under Annexure-D/2 to the counter affidavit. On perusal of the note sheet dated 11.04.2001 under Annexure-4 to the writ petition, this Court observed that the Finance Department has categorically granted concurrence for regularization of the Petitioner’s service to the post of Junior Store Keeper in the // 12 // scale of pay of Rs.3050-75-3950-80-4590/- in the office of the D.I.P.R.O., Chhatrapur, Ganjam on regular basis. However, on further scrutiny of the record, it appears that the decision of the concerned department as well as the order granting concurrence by the Finance Department dated 11.4.2021 was not given effect to till 2020. In the year 2000, again the file was sent to the Finance Department for obtaining concurrence for regularization of the service of the Petitioner for reasons best known to the authorities. 17. Upon a careful consideration of the materials on record, this Court is of the considered view that there was no necessity to send the records to the Finance Department for obtaining concurrence for the second time in the year 2020. Once the Finance Department had granted concurrence on 11.4.2001, the Opposite Parties were duty bound to implement the decision taken by them with the concurrence of the Finance Department. This Court on perusal of the record further observes that the Petitioner was duly selected through a valid selection process and due to non-availability of the regular post, the Petitioner was appointed on adhoc basis with the condition that he will be regularized against the future vacancy. Accordingly, concurrence of the Finance Department was obtained when there was regular vacancy in // 13 // the post of regular Store Keeper. Therefore, the Opposite Parties should have regularized the Petitioner in service immediately after obtaining the concurrence from the Finance Department. 18. This Court further observed that the decision of the High Power Committee in its proceeding held on 18.04.2015 is not applicable to the facts of the Petitioner’s case, inasmuch as the Petitioner stands in a completely different footing than the case of the persons that was under consideration by the High Power Committee inasmuch as the case of the regularization of the Petitioner had been duly moved by the concerned department and the Finance Department had already granted concurrence for regular appointment of the Petitioner in a scale of pay as has been mentioned hereinabove. Moreover, the advice of the G.A. Department which has been considered by the High Power Committee in its proceeding held on 18.04.2015 is not applicable to the case of the Petitioner as the Petitioner was appointed on being selected by a duly constituted Selection Committee. Therefore, on all counts, this Court is of the considered view that the service of the Petitioner should have been regularized immediately after obtaining concurrence of the Finance Department vide order dated 11.04.2001 and that there was // 14 // no necessity to send the matter for the second time to obtain concurrence from the Finance Department. 19. On a careful analysis of the impugned rejection order dated 06.11.2020 under Annexure-9 to the writ petition, this Court observes that the Opposite Parties have failed to consider the case of the Petitioner in its proper perspective and, accordingly, they have come to a erroneous conclusion, as a result of which, the case of the Petitioner for regularization of his service has been illegally and arbitrary rejected vide the aforesaid impugned order under Annexure-9 to the writ petition. 20. In view of the aforesaid analysis of the factual background and upon a careful consideration of the submissions made by the learned counsels appearing for the respective parties, this Court has no hesitation to quash the impugned rejection order dated 06.11.2020 under Annexure-9 to the writ petition. Accordingly, the same is hereby by quashed. Further, the Opposite Parties are directed to regularize the service of the Petitioner against the post of Junior Store Keeper as has been concurred by the Finance Department vide its order dated 11.04.2001 under Annexure-4 to the writ petition. It is needless to clarify that the Petitioner is to be regularized in the post of Junior Store // 15 // Keeper with effect from the date of concurrence of the Finance Department and, accordingly, necessary differential arrears payable to the Petitioner be calculated and paid to the Petitioner within a period of three months from the date of communication of a copy of this judgment. 21. With the aforesaid observation/direction, the writ petition is allowed. However, there shall be no order as to costs. (A.K. Mohapatra) Judge Orissa High Court, Cuttack The 12th January, 2024/Debasis Aech, Secretary. Signature Not Verified Digitally Signed Signed by: DEBASIS AECH Designation: Secretary Reason: Authentication Location: OHC, CUTTACK. Date: 16-Jan-2024 12:17:10