The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK WPC(OAC) No.3365 of 2017 Mahendra Paramanik & Ors. ..... Petitioners Dr. J.K. Lenka, Advocate State of Odisha & Ors. -versus- ..... CORAM: Opposite Parties Mr. S.K. Samal, AGA THE HON'BLE MR. JUSTICE BIRAJA PRASANNA SATAPATHY ORDER 09.07.2024 Order No. 06 1. This matter is taken up through hybrid mode. 2. Heard Dr. J.K. Lenka, learned counsel appearing for the Petitioners and Mr. S.K. Samal, learned Addl. Govt. Advocate appearing for the Opp. Parties. 3. Petitioners have filed the present writ petition inter alia with the following prayer:- “Direct the Respondents to sanction and pay regular scale of pay to the Applicants of Rs.5,200/- -Rs.20,200/- with grade pay of Rs.1800/- from the date of their respective joining in the post of Junior Fisheries Technical Assistant within a stipulated period as fixed by this Hon’ble Tribunal and accordingly, direct the State-Respondents to modify the appointment orders dated 9.6.2015 and 8.1.2016 issued by the Respondent No. 4 at Annexure-5 series. Direct the Respondents to sanction annual increments, D.A. etc. as due and admissible form time to time in the said time scale of pay and sanction and pay the differential arrear salary to the Applicants as due and admissible forthwith within a reasonable period. Page 1 of 7. Quash the order of rejection dt.5.5.2016 under Annexure-9 by holding that the same is illegally, arbitrary; And pass such other order/orders as would be deemed fit and proper in the facts and circumstances of the case;” 4. It is the case of the Petitioners that pursuant to the requisition issued by the Govt. In the Department of Fisheries and ARD on 22.04.2013 vide Annexure-2 series for recruitment of Junior Fisheries Technical Asst. on regular basis, Odisha Staff Selection Commission issued the advertisement on 24.12.2013 vide Annexure-3 inviting applications from intending candidates as against the post of Junior Fisheries Technical Asst. on regular basis. 4.1. It is contended that pursuant to such advertisement issued by the Commission, Petitioners participated in the selection process and their names were recommended by the Commission vide notification No. 2603/OSSC dtd.16.05.2015. However, instead of providing appointment to the Petitioners on regular basis, vide order under Annexure-5 dtd.09.06.2015, all the Petitioners were appointed on contractual basis taking recourse to the G.A. Department notification issued on 12.11.2013 under Annexure-8. 4.2. It is contended that since Petitioners participated in the selection process, advertisement of which was issued under Annexure-3 to fill up the post of Junior Fisheries Technical Asst. on regular basis basing on the requisition made on 22.04.2013, after the recommendation made by the Commission, Petitioners should not have been appointed on contractual basis, basing on the resolution issued by the G.A. Department on 12.11.2013. However, after such issuance of order of appointment on contractual basis, Petitioners when made a joint representation before Opp. Party No. 4 under Annexure-6 with a prayer to treat them as regular Page 2 of 7. employees, the said prayer was rejected vide the impugned order dtd.05.05.2016 under Annexure-9. It is contended that once the Petitioners participated in the selection process as against the post to be filled up on regular basis, they should not have been appointed on contractual basis vide order issued under Annexure-5 and subsequent rejection of their claim to treat them as regular employees vide order issued under Annexure-9. 4.3. Learned counsel appearing for the Petitioners also contended that even though relying on the notification issued by the G.A. Department on 12.11.2013, Petitioners were appointed on contractual basis, but the same was not followed in respect of another advertisement issued by the Odisha Public Service Commission under Annexure-11. The selectees in terms of the said advertisement issued under Annexure-11, were appointed on regular basis vide notification issued by the self same Fisheries and ARD Department on 14.12.2015 under Annexure-12. 4.4. It is also contended that applicability of the provisions of Odisha Group-C & Group-D (Contractual Appointment) Rules, 2013 and Odisha Group-B (Contractual Appointment) Rules, 2013 was further clarified by the Govt. in the G.A. Department vide order dtd.19.07.2017 under Annexure-15. The clarification issued in order dtd.19.07.2017 reads as follows:- “And whereas, considering the ground exhibited in the litigations, it is now opined by the Law Department, “where advertisements have been made for regular posts prior to coming into force of 2013 Rules and the conditions of such advertisements remain unaltered till the recruitment process is complete, appointments to such posts should be Page 3 of 7. made as per the relevant recruitment rules without treating them as contractual under the provisions of 2013 Rules.”
Legal Reasoning
4.5. Learned counsel for the Petitioners accordingly contended that since basing on the advertisement issued under Annexure-3, Petitioners faced the recruitment process as against regular post, appointment of them on contractual basis relying on 2013 Rules is not sustainable in the eye of law. In support of his aforesaid submission Dr. Lenka also relied on a decision of the Hon’ble Apex Court in the case of Subash Ranjan Behera & Ors. Vs. State of Odisha & Ors. (Civil Appeal No. 6157-58 of 2015) decided on 10.08.2015. The direction of the Hon’ble Apex Court so reflected in the said order reads as follows:- “Keeping in view the aforesaid position in mind, we set aside the final directions contained in the impugned judgment and substitute the same with the following directions:- (1) The Commission shall fill up the posts which had arisen or fallen vacant prior to 18.12.2013 in accordance with Rules, 2009. (2) The posts which arose from 18.12.2013 onward will be filled up in accordance with Rules, 2013. (3) Advertisement shall be issued accordingly. (4) We make it clear that in both the kinds of advertisements, the Assistant Professor already working on ad hoc/contractual basis as well as others shall have right to apply and be considered for the post.” 5. Mr. S.K. Samal, learned Addl. Govt. Advocate on the other hand while supporting the appointment of the Petitioners on contractual basis vide order under Annexure-5 and consequential rejection of Page 4 of 7. their claim vide order under Annexure-9, made his submission basing on the stand taken in the counter affidavit. It is contended that since by the time advertisement was issued by the Commission on 24.12.2013 under Annexure-3, provisions of the 2013 Rules was already notified having been brought into existence w.e.f.12.11.2013, Petitioners even though participated in the selection process as against the regular vacancy, but in view of the stipulation contained in Para 5 of the resolution dtd.12.11.2013 under Annexure-8, they were appointed on contractual basis. It is also contended that the clarification issued by the Govt. vide order dtd.19.07.2017 under Annexure-15 cannot be made applicable to the case of the Petitioners as by the time advertisement under Annexure-3 was issued, 2013 Rules had already been notified. 5.1. With regard to the benefit extended in favour of the selectees in terms of the advertisement issued by the OPSC under Annexure-11, learned State Counsel contended that since the advertisement under Annexure-11 is in respect of a Group-B post, they were appointed on regular basis. It is also contended that since Petitioners were appointed initially on contractual basis vide order dtd.09.06.2015 under Annexure-5, they have been regularized in the meantime vide order dtd.17.06.2021 under Annexure-B to the counter affidavit. It is accordingly contended that since Petitioners have already been treated as regular employee vide order dtd.17.06.2021 w.e.f. the date of their respective completion of 6 years of service, the prayer
Decision
as made in the writ petition has become infructuous. 6. Having heard learned counsel appearing for the Parties and considering the submissions made, this Court finds that basing on the requisition issued by the Govt. on 20.04.2013 under Annexure-2 Page 5 of 7. series to fill up the vacancy on regular basis, Odisha Staff Selection Commission issued the advertisement on 24.12.2013 under Annexure-3 for recruitment to the post of Junior Fisheries Technical Asst. on regular basis with regular scale of pay. As found from Annexure-5, the Commission after conducting the recruitment test recommended the names of the present Petitioners vide notification dtd.16.05.2015. Even though Petitioners participated in the selection process as against regular vacancy, but vide order dtd.09.06.2015 under Annexure-5 series, Petitioners were appointed on contractual basis. Such order of appointment on contractual basis was issued basing on the resolution issued by the G.A. Department on 12.11.2013 under Annexure-8. 6.1. It is the view of this Court that since Petitioners faced the recruitment as against regular vacancy and they were also recommended accordingly, Petitioners could not have been appointed on contractual basis basing on the resolution issued by the G.A. Department on 12.11.2013 under Annexure-8. It is also the view of this Court that similar appointment pursuant to the advertisement issued under Annexure-11 was made on regular basis, even though the resolution issued by the G.A. Department on 12.11.2013 was very much in existence. 6.2. Placing reliance on the decisions of the Hon’ble Apex Court as cited supra, this Court is of the view that Petitioners are eligible and entitled to get the benefit of regular appointment from their initial date of appointment so issued under Annexure-5 series. Since Petitioners in the meantime have been regularized vide order dtd.17.06.2021 under Annexure-B to the counter, this Court while disposing the writ petition, directs Opp. Party No. 4 to treat the Page 6 of 7. Petitioners to have been appointed on regular basis from their very initial date of appointment, but on notional basis. This Court directs Opp. Party No. 4 to issue a fresh order by extending the benefit as directed within a period of two (2) months from the date of receipt of this order. 7. The writ petition is disposed of accordingly. Sneha (BIRAJA PRASANNA SATAPATHY) Judge Signature Not Verified Digitally Signed Signed by: SNEHANJALI PARIDA Reason: Authentication Location: High Court of Orissa, Cuttack Date: 11-Jul-2024 17:55:02 Page 7 of 7.