The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) (OA) No.936 of 2014 Dibakar Dalai …. Petitioner Mr. N. Rath, Advocate State of Odisha & Others …. -versus- Opposite Parties Mr. H.K. Panigrahi, ASC CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY Order No. ORDER 28.07.2023 13. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode.
Legal Reasoning
2. Heard Mr. N. Rath, learned counsel for the Petitioner and Mr. H.K. Panigrahi, learned Addl. Standing Counsel for the State. 3. The Petitioner has filed the present Writ Petition challenging the order dated 07.05.2010 so passed by the Government-Opposite Party No.1 under Annexuxre-7. 4. It is the contention of the learned counsel for the Petitioner that pursuant to the advertisement issued by Opposite Party No.1 under Annexure-1, though the Petitioner was appointed on contractual basis vide order dated 09.07.1997 under Annexure-2, but pursuant to similar advertisement issued by the self-same Opposite Party No.2 under Annexure-4 the selected candidates were appointed on regular basis. The Petitioner however // 2 // was subsequently regularized as Homeopathic Medical Officer vide order dated 07.01.1999 under Annexure-3. 4.2. It is contended that since by facing due recruitment process of similar nature of advertisement issued by Opposite Party No.2 under Annexure-1, the Petitioner was appointed on contractual basis and basing on similar advertisement issued under Annexure-4, appointment was made on regular basis, the Petitioner claiming similar benefit of regular appointment from the date he was initially appointed on contractual basis vide order under Annexure-2, approached the Tribunal in O.A No.1616/2000. 4.3. The Tribunal vide its order dated 23.12.2008 under
Decision
Annexure-6 disposed of the matter with a direction on the Opposite Party No.1 to consider the case of the Petitioner for regularization of his service from the date of his joining in the light of the observations made in Para-9 of the said order. Para-9 of the order is quoted hereunder:- “9. The O.A 2416/97 and 2313/97 were called for reference. As it appears from the above case records both the cases were disposed of by a common order dated 14.5.1997. Thus, there was no restriction for appointment of the applicant on regular basis when the appointment order was issued on 9.7.1997. There is also no dispute that the applicant had not undergone a regular selection process before he was given contractual appointment. Advertisement as at Annexure-4 was made for appointment of Homeopathic Medical Officer on contractual basis with consolidated monthly salary in the year, 1998 and the respondents have justified their action contending that in the year, 1998 there was no order of the Court restricting such appointment and hence appointment were given on regular basis as per the advertisement in the year, 1998 and appointment o n contractual appointment basis were given in the year, 1997. By the time the contractual appointment order was issued in favour of the applicant on 9.7.1997 the O.A 2416/92 was already disposed of and there was no bar for the Page 2 of 7 // 3 // respondents to give regular appointment as has been done in the case of Homeopathic Medical Officers, in the year 1998. The Homeopathic Medical Officers selected in the year, 1997 were appointed on contractual basis and latter they were regularized but the batch of the Homeopathic Medical Officers selected in pursuance of the advertisement of the year, 1998, were directly appointed on contractual basis and thereby the applicant has been discriminated and the principle of natural justice has been violated and so also Article 14 & 15 of the Constitution of India”. 4.3. However, it is contended that without following the observation so given by the Tribunal in its order under Annexure-6, the claim of the Petitioner was rejected vide the impugned order dated 07.05.2010 under Annexure-7. Government-Opposite Party No.1 rejected the claim on the ground that since by the time the Petitioner was appointed there was a ban on regular appointment, the Petitioner was appointed on contractual basis and by the time selected candidates pursuant to advertisement under Annexure-4 were appointed the ban was not there they were appointed on regular basis. Taking such a stand the claim of the Petitioner was rejected vide Annexure-7. 4.4. Learned counsel for the Petitioner contended that the restrain order so passed by the Tribunal in O.A No.2416 of 1992 was already vacated with disposal of the matter on 14.05.1997. Therefore, since the restrain order so passed in O.A. No.2416 of 1992 was not there by the time the Petitioner was appointed vide order under Annexure-1, the Petitioner should have been extended with the benefit of regular appointment in terms of the order passed by the Tribunal under Annexure-6. But by taking a wrong plea that because of ban imposed on regular appointment, the Petitioner was appointed on Page 3 of 7 // 4 // contractual basis is not sustainable in the eye of law and accordingly the impugned order is liable for interference of this Court. 5. Even though a counter affidavit has been filed by the Opposite Party Nos.1 to 3 justifying the rejection of the claim of the Petitioner, but this Court taking into account the submission made by the learned counsel for the Petitioner passed an order on 10.04.2023 to the following effect:- “2. Heard learned counsel appearing for the Parties. 3. Considering the nature of dispute is involved, this Court directs learned Addl. Government Advocate to obtain instruction with regard to the date of appointment of the candidates made in pursuance of the advertisement issued under Annexure-4. Such instruction shall be provided to this Court before the next date. 4. As requested, list this matter in the week commencing 1st of May, 2023”. 5.1. Pursuant to the order passed on 10.04.2023, learned Addl. Standing Counsel produced before this Court the instruction provided by the Government- Opposite Party No.1 vide letter dated 04.07.2023. In the said letter, it is clearly indicated that pursuant to the advertisement issued under Annexure-4, the selected candidates were appointed on regular basis in the year 1999, starting from 22.02.1999. 6. Mr. Panigrahi, learned Addl. Standing Counsel basing on the instruction accordingly contended that since by the time the Petitioner was appointed there was a restrain order of the Tribunal in providing regular appointment, no illegality has been committed by the Page 4 of 7 // 5 // Opposite Parties in appointing the Petitioner on contractual basis vide order under Annexure-2. 6.1. It is also contended that in the meantime the Petitioner had also been regularized vide order dated 07.01.1999 under Annexure-3. Since the Petitioner has already been regularized, he has got no further grievance with regard to the claim for regularization from retrospective date. 7. Having heard learned counsel for the Parties and after going through the materials available on record, it is found that the Petitioner was appointed on contractual basis basing on the advertisement issued under Annexure-1 in the year 1997 by Opposite Party No.2. In the said advertisement, it was clearly provided that the selected candidates will be appointed on contractual basis. Similarly in the advertisement issued by the self- same Opposite Party No.2 under Annexure-4 in the year 1998 similar condition was also there that the selected candidate will be appointed on contract basis. But it is found from the record as well as instruction provided by the Government on 04.07.2023 that the selected candidates pursuant to Annexure-4 were appointed on regular basis w.e.f. 22.02.1999. 7.1. The Petitioner though faced similar recruitment process but he was appointed on contractual basis. The Petitioner claiming extension of the benefit of regular appointment as has been extended in favour of the candidates appointed basing on Annexure-4 when Page 5 of 7 // 6 // approached the Tribunal in O.A No.1616 of 2000, the Tribunal in Para-9 of the order clearly indicated that by the time the Petitioner was appointed on 9.7.1997 under Annexure-2, the restrain order so passed in O.A No.2416 of 1992 was not there as O.A No.2416 of 1992 along with a batch were disposed of on 14.05.1997. But it is found from the record that without following the said observation of the Tribunal as indicated in para-9 of the order under Annexure-6, Opposite Party No.1 by taking a plea that there was a ban order and accordingly the Petitioner could not be appointed on regular basis rejected the claim vide the impugned order dated 07.05.2010 under Annexue-7. 7.2. Since it is found from the record that similarly situated candidates by facing similar recruitment process were appointed on regular basis w.e.f. 22.02.1999 and the Petitioner though similarly situated since was appointed on contractual basis, this Court is of the view that the prayer made by the Petitioner to provide him appointment on regular basis by treating his initial appointment to have been issued on regular basis is required to be allowed. Accordingly, this Court is inclined to quash the order at Annexure-7. While quashing the same, this Court directs Opposite Party No.1 to issue a fresh order by treating the Petitioner to have been appointed on regular basis w.e.f. 09.07.1997. Such an exercise shall be undertaken and completed within a period of two (2) months from the date of receipt of this order. Consequential follow up action to release Page 6 of 7 // 7 // the financial benefits as due and admissible shall also be taken within the aforesaid time period. 8. With the aforesaid observations and directions, the Writ Petition stands disposed of. (Biraja Prasanna Satapathy) Judge Subrat SUBRAT KUMAR BARIK Digitally signed by SUBRAT KUMAR BARIK Date: 2023.08.01 14:49:10 +05'30' Page 7 of 7