The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK RVWPET (RPC) No.86 of 2017 Santosh Kumar Barik …. Petitioner -versus- State of Odisha & Others …. Opposite Parties COROM: JUSTICE BIRAJA PRASANNA SATAPATHY ORDER 27.03.2023 Order No 08. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode. 2. Heard Mr. S. Mallik, learned counsel for the Petitioner, Mr. M.K. Balabantaray, learned Addl.
Legal Reasoning
Government Advocate for the State and Mr. S.N. Pattnaik, learned counsel appearing for Opposite Party No.2. 3. This Review Petition has been filed seeking review of the order dated 17.05.2017 passed by the Tribunal in a batch of Original Application, which includes O.A No.1196(C)/2016 so filed by the present review Petitioner. 4. Mr. S. Mallik, learned counsel for the Petitioner contended that pursuant to the advertisement issued by the Odisha Staff Selection Commission (in short ‘Commission’) for recruitment to the post of Junior Stenographer on 26.09.2013, the Review Petitioner made his application for the said post. In the said advertisement issued by the Odisha Staff Selection Commission on // 2 // 26.09.2013, the total vacancies was indicated at 94 and out of those posts 25 posts were to be filled up on contractual basis and the rest of the posts on regular basis. 4.1. Mr. Mallik, contended that in the recruitment test conducted by the Commission, the petitioner’s position was at Sl. No.8 of the merit list. Taking into account the vacancies available to be filled up on regular basis at 69 and the petitioner’s position in the merit list being at Sl. No.8, the Petitioner was due to be appointed on a regular vacancy. But instead of appointing him as against a regular vacancy, he was appointed on contractual basis vide order dated 18.05.2015 issued by the Opposite No.3, Office of the Chief Architect, Nirman Soudha, Bhubaneswar. The Petitioner challenging his appointment on contractual basis in stead of being appointed as against a regular vacancy approached the Tribunal in O.A No.1196(C) of 2016. The Tribunal vide a common order passed on 17.05.2017 disposed of the said original application along with a batch. But while disposing the matter, the Tribunal in Para-8 of the order observed as follows:- “8) Accordingly, relying upon the aforesaid decision of the Hon’ble High Court as well as this Tribunal, we allow the O.As and direct the state respondents to modify the appointment of the applicants on regular basis from the date of their appointment, pursuant to the advertisement as at Annexure-1 and such modified order be issued within a period of three months from the date of receipt of a copy of this order subject to the conditions that the applicants are not appointed against the 25 contractual posts as advertised under Annexure-1”. 4.2. The Tribunal in its order dated 17.05.2017 though directed the Opposite Parties to modify the appointment of the applicants in all the OAs on regular basis from the date Page 2 of 8 // 3 // of their appointment, but since imposed the condition that the applicant must not have been appointed against the 25 contractual posts so advertised, the review petitioner being appointed on contractual basis was aggrieved by the said condition. 4.3. Mr. Mallik, contended that since the Petitioner’s position in the merit list was at Sl. No.8 and the regular vacancy was 69, the Petitioner should not have been appointed as against a contractual vacancy vide order under Annexure-5. It is accordingly contended that in view of such observation made by the Tribunal it its order dated 17.05.2017, the Petitioner will not get the benefit of the order and will be deprived from being appointed on regular basis from the date he was so appointed on contractual basis. It is accordingly contended that since because of the fault committed by the Opposite Parties, the review petitioner was appointed on contractual basis, taking into account his position in the merit list, the condition imposed by the Tribunal cannot not be applied to his claim for regular appointment from the date of his initial appointment. 5. In course of hearing of this Review Petition, this Court when found that the Petitioner is placed at Sl. No.8 of the merit list and the vacancy available to be filled up on regular basis was 69, this Court directed the Commission to apprise this Court the basis for recommending various selected candidates for their appointment. Pursuant to the order passed by this Court on 16.11.2022, an affidavit was filed by the Opposite Party No.2 on 21.11.2022. The stand Page 3 of 8 // 4 // taken by the Commission in Para-4 to 9 of the affidavit are reproduced hereunder:- “4. That the Commission has published an advertisement dated 26.09.2013 for filling up 99 vacancies of Junior Stenographers under different Heads of Department out of which 25 posts were earmarked as contractual post including 01 contractual vacancy in the office of Chief Architect, Odisha, Bhubaneswar. That when 5. the aforesaid advertisement was published, at that time the Odisha Group-‘C’ & Group-‘D’ posts (Contractual Appointment) Rules, 2013 were not in force and subsequently the above contractual rules came into force w.e.f. 18.11.2013. That after completion of the recruitment process only 6. 51 candidates could find place in the select list against 99 advertised vacancies and the applicant placed at Sl. No.8 in the select list and his name was sponsored to the Office the of Chief Architect, Odisha, Bhubaneswar appointment. for 7. That it is humbly submitted here that at the time of sponsoring of names of the candidates to different Heads of Department, the Odisha Group-‘C’ & Group-‘D’ posts (Contractual Appointment) Rules, 2013 was in force. As per Clause-5(2) of the aforesaid Rules, all appointment shall be made on Contractual basis from the date of its commencement. Further Rule-6 of the said rules stipulates that for the purpose of contractual appointments made under sub-rule(2) of Rule-5, all vacancies existing on the date of commencement of these rules as well as the future vacancies shall be deemed to have been converted to contractual posts from the date of commencement of these rules.
Decision
8. That in view of the above Orders of Government, and since all posts are to be treated as contractual posts, candidates were sponsored irrespective of their merit irrespective of position regular/contractual posts. No separate select list was prepare/published for contractual or regular post and the select list was prepared from a single merit list. list and select the in 9. That as per stipulations of the aforesaid Contractual Appointment Rules, 2013 all the selected candidates sponsored to different Heads of Department have been issued with appointment orders on contractual basis irrespective of their merit position in the select list. Copies of such appointment orders issued in favour of the selected candidate who are above the merit position than the applicant are annexed to this affidavit as Annexure-I, Annexure-II & Annexure-III for kind appraisal of Hon’ble High Court”. Page 4 of 8 // 5 // 6. It is contended by the learned counsel appearing for the Commission that even though the Petitioner was placed at Sl. No.8 in the select list but since he was allotted to the Office of Chief Architect, Bhubaneswar and the post of Junior Stenographer in the office of Chief Architect was required to be filled up on contractual basis, he was so appointed on contractual basis vide order dated 18.05.2015. 6.1. It is also contended that even though the advertisement was issued to fill up 94 posts with 25 posts meant for contractual and 69 posts meant for regular basis and subsequently the vacancy was enhanced to 99, but since all the appointments were made after coming into force of the Odisha Group-C and Group-D post (Contractual Appointment) Rules, 2013, all the selected candidates were appointed on contractual basis irrespective of their position in the merit list. Accordingly, it is contended that the Petitioner is no way aggrieved by the condition contained in the order at para-8. 7. Taking into account the stand taken by the Commission in its affidavit dt.21.11.2022, this Court directed the State Counsel to clarify the position by filing an affidavit. Pursuant to such direction of this Court an affidavit was filed by the Opposite Party No.3 on 07.02.2023. 7.1. Mr. Balabantaray, learned Addl. Government Advocate made his submission basing on the affidavit filed by the Opposite Party No.3 on 07.02.2023. It is contended that prior to taking up of the selection by the Commission, Government in the Works Department vide its letter dated Page 5 of 8 // 6 // 02.09.2013 addressed to the Opposite party No.3 directed to fill up the single vacant post of Junior Stenographer available in his office on contractual basis. 7.2. It is contended that since the Petitioner was recommended by the Commission to the Office of Chief Architect, the Petitioner was appointed on contractual basis. The stand taken by the Opposite Party No.3 from Para-2 to 11 are reproduced hereunder:- “2. That an advertisement was made for selection and appointment to the post of Jr. Stenographer by the Staff Selection Commission vide its Advertisement No.2613/OSSC dtd.26.09.2013 receiving requisition from various Heads of Departments to fill up the post of Jr. Stenographers on regular basis and on contractual basis as per their requisitions. 3. That receiving such requisitions the advertisement was published to fill up 94 vacancies for the post of Jr. Stenographers. In the above advertisement dtd.26.09.2013, out of 94 nos. of posts of Junior Stenographer, 25 posts are earmarked as contractual basis and rest 69 post are to be filled up on regular basis. It is pertinent to mention here that necessary permission was given by the Government in Works Department vide their letter no.9629 dated 02.09.2013 to fill up the single vacant post of Junior Stenographer of this office on contractual basis. Accordingly, a requisition was submitted to Odisha Staff Selection Commission, Bhubaneswar to sponsor a name of the candidate to this office to fill up of the vacant post of Junior Stenographer on contractual basis vide this office letter no.2412 dated 04.09.2013. Copy of Works Department letter no.9629 dated 02.09.2013 is annexed herewith as Annexure-A/3 to the present affidavit. Copy of requisition to the Staff Selection Commission vide is annexed herewith as letter no.2412 dtd.04.09.2013 Annexure-B/3 to the present affidavit. That after publishing 4. the advertisement on 26.09.2013 to enhance the numbers of vacancies, the Commission (Opp. Party No.2) published a corrigendum vide Letter No.1048/OSSC dtd.17.03.2015 indicating 99 posts of Jr. Stenographer those posts whether regular or contractual. irrespective categorizing It is pertinent to mention here that in the meantime the Contractual Appointment Rule-2013 came into force on Page 6 of 8 // 7 // 12.11.2013 which is in between the advertisement published and the subsequent corrigendum drawn thereon. 5. That the Opp. party no.2, the Commission after on completion of the selection process, selected 51 numbers of candidates on merit basis following the reservation policy but however did not indicate the candidates who are selected under which category (regular or contractual). That out of 6. the Commission forwarded the name of the petitioner who was placed at sl.no.8 in the merit list to the office of the present deponent for appointment in the post of Jr. Stenographer. the 51 selected candidates, Copy of such letter no.2528/OSSC dtd.07.05.2015 is annexed herewith as Annexure-C/3. 7. That since the requisition was made from the office of the deponent to fill up the post of Jr. Stenographer on contractual basis and since in the meantime Contractual Appointment Rules-2013 has already came into force. Therefore, the petitioner was appointed as Jr. Stenographer on contractual basis. 8. That at this juncture, the petitioner along with other applicants filed the original application with a prayer to treat their appointment on regular basis as the advertisement was made prior to Contractual Appointment Rules-2013 came into force. That the said original application was disposed of 9. vide order dtd.17.05.2017 with a direction to the State/Opp. Parties to modify the appointment of the applicants on regular basis from the date of their appointment, pursuant to the advertisement as at Annexure-1 and such modified order be issued within a period of three months from the date of receipt of a copy of this order subject to the conditions that the applicants are not appointed against the 25 contractual posts as advertised under Annexure-1. Operating the part of the order is quoted below for kind perusal of this Hon’ble Court. “…8 Accordingly relying upon the aforesaid decision of the Hon’ble High Court as well as this Tribunal, we allow the OAs and direct the State respondents to modify the appointment of the applicants on regular basis from the date of their appointment, pursuant to the advertisement as at Annexure-1 and such modified order be issued within a period of three months from the date of receipt of a copy of this order subject to the conditions that the applicants are not appointed against the 25 contractual posts as advertised under Annexure-1”. 10. That now the Review Application has been filed by the petitioner seeking a direction to review the order dtd.17.05.2017 deleting the observation in paragraph-8 of the order that “Subject to condition that the applicants are not appointed against the 25 contractual posts as advertised under Annexure-1” and direct that the appointment of the Page 7 of 8 // 8 // applicant shall be treated as regular appointment from the date of joining. 11. That even though the Commission has selected the candidates irrespective of their category but the requisition made from the office of the present deponent as against the contractual post. So, when the name was sponsored by the Commission, he was appointed as Jr. Stenographer on contractual basis on 18.05.2015. More so in the meantime Contractual Appointment Rules, 2013 came into force”. 8. Having heard learned counsel for the Parties and taking into account the fact that the Petitioner was placed at Sl. No.8 of the select list and as per the advertisement issued under Annexure-1 dated 16.09.2013, since 69 posts were required to be fill up on regular basis, this Court held that the condition imposed by the Tribunal in Para-8 of the order will not be made applicable to the claim of the Petitioner. In terms of the order passed by the Tribunal which has not been assailed by the Opposite Parties, Petitioner’s appointment be treated as a regular appointment from the date of his initial appointment. 9. With the aforesaid modification and directions, the Review Petition stands disposed of. Judge (Biraja Prasanna Satapathy) Subrat Page 8 of 8