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2003 DIGILAW 510 (ORI)

Jayanta Kumar Maitra v. State of Orissa

2003-08-14

A.S.NAIDU, P.K.MISRA

body2003
JUDGMENT A. S. NAIDU, J. — The petitioner who is working as a Junior Engineer in Puri Municipality, is an employee under the Local Fund Services. The only grievance of the petitioner is that while regularising his services, the authorities have not taken into consideration the period from 1.1.1993 i.e. date of initial appointment as Junior Engineer till the date of his regularisa¬tion i.e 13.8.1998 in the said post. 2. Admittedly, the petitioner who is a graduate Engineer, was initially appointed as Work Supervisor on daily wage basis. While the matter stood thus, in the year 1993, a post of Junior Engineer in the said Municipality fell vacant. Taking into con¬sideration the eligibility, suitability and competency of the petitioner, the Municipal Council appointed him in the post of Junior Engineer on temporary basis with effect from 1.1.1993 in the prescribed scale (Annexure-1). This appointment was made in consonance with the resolution of the Council in their meeting held on 30.12.1992. Copies of the resolution and the appointment order were immediately sent by the Municipality to the Government of Orissa, Housing and Urban Development Department with a re¬quest to regularise the same. The Government in their letter dated 16.7.1996 (Annexure-3) intimated the Executive Officer, Puri Municipality that the post of Junior Engineer comes under the Local Fund Service cadre and appointment to the said post is to be done as per the provisions under Local Fund Service Rules, 1975, through a process of recruitment to be conducted by the Selection Board constituted under Rule-7 of the OLFS Rules. It was further observed that the petitioner had to continue purely on temporary and ad hoc basis if the council was agreeable and such ad hoc appointment was to be as a stop-gap arrangement. In consonance with the aforesaid order, the petitioner continued on temporary/ad hoc basis at Puri Municipality. In the year 1998, the recruitment test was conducted by the Selection Board consti¬tuted under Rule-7 of the OLFS Rules. The petitioner appeared at the recruitment and stood first. In consonance with the recom¬mendation of the Selection Board, the Government by its order dated 13.8.1998 (Annexure-4) was pleased to regularise provision¬ally the services of the petitioner and Others who were working in different Municipalities. But then, it was directed that the order of regularisation would take effect from the date of issue of the order i.e. 13.8.1998. In consonance with the recom¬mendation of the Selection Board, the Government by its order dated 13.8.1998 (Annexure-4) was pleased to regularise provision¬ally the services of the petitioner and Others who were working in different Municipalities. But then, it was directed that the order of regularisation would take effect from the date of issue of the order i.e. 13.8.1998. The simple grievance of the peti¬tioner is that his past service from 1.1.1993 should have been taken into consideration and his services should be regularised from 1.1.1993. 3. The claim of the petitioner is repudiated by opp.par¬ties 1 and 2 by filing a counter affidavit. It is submitted that the initial appointment of the petitioner having not been done in accordance with the prescribed procedure, it is non est in the eye of law and cannot be counted towards his regular service. It is further submitted that as per the provisions of the OLFS Rules, 1975 selection for appointment against any post under the Local Funds Service Cadre is to be made through a Selection Board constituted under Rule-7 of the aforesaid Rules. It is also submitted that in consonance with the provisions of Selection 73(2) of the Municipal Act, the appointing authority (Chairperson of the Urban Local Body) in case of emergency could appoint temporarily any person for not more than six months, which has subsequently been amended and now limited to 44 days subject to prior approval of the Government. The appointment of the peti¬tioner having not been approved earlier, he is not entitled to any benefit. Opp.Parties 3 and 4 have also filed a counter affi¬davit mostly reiterating the submissions made on behalf of opp.parties 1 and 2. A rejoinder affidavit is also filed by the petitioner to the counters filed by the opp.parties. 4. We heard Mr. Dash, learned counsel for the petitioner, Mr. Swain, learned State Counsel and Mr. Pradipta Mohanty, learned counsel for Puri Municipality at length. 5. In support of his contention, learned counsel for the petitioner relied upon the decision of the Supreme Court in the case of The direct recruit Class-II Engineering Officers Associa¬tion Vrs. State of Maharashtra and others, AIR 1990 SC 1607 . Swain, learned State Counsel and Mr. Pradipta Mohanty, learned counsel for Puri Municipality at length. 5. In support of his contention, learned counsel for the petitioner relied upon the decision of the Supreme Court in the case of The direct recruit Class-II Engineering Officers Associa¬tion Vrs. State of Maharashtra and others, AIR 1990 SC 1607 . The Supreme Court after discussing the points in issue, in paragraph-44-B held as follows : “If the initial appointment is not made by following the procedure laid down by the Rules but the appointee continues in the post uninterruptedly till the regularisation of his service in accordance with the Rules, the period of officiating service will be counted.” Learned counsel for the State reiterated his stand and submitted that as the initial appointment of the petitioner was de hors the Rules, he cannot get the benefit of the ad hoc services rendered. Mr. Mohanty, learned counsel for the Municipality relied upon Section 73-D of the Orissa Municipal Act and submitted that all appointments to the Local Fund Service have to be made by Selec¬tion Board. But then, the said Section was inserted by amendment in the year 2002 and has absolutely no application to the present case. 6. In these case at hand, the petitioner was working as a work Supervisor of Puri Municipality. In the year 1993 a post of Junior Engineer fell vacant. He possessed the requisite qualifi¬cation. The Municipality was satisfied with his performance. The council found him suitable for the post and on 30.12.1992 re¬solved to appoint him in the post of Junior Engineer. The matter was intimated to the Government of Orissa in the Housing and Urban Development Department. On 16.7.1996(Annexure-3) opp.party No.1 intimated the Municipality to allow the petitioner to con¬tinue purely on temporary and ad hoc basis if the Council was agreeable. It was also clarified that such ad hoc appointment would be stop-gap and until a proper selection of candidate by the Selection Board to be constitute as per Rule-7 of the Orissa Local Fund Service Rules. Thus, the petitioner was permitted to continue on ad hoc basis and he discharged his duties as a Junior Engineer to the satisfaction of all concerned. The Selection Board constituted under Rule-7, initiated the Selection process. Thus, the petitioner was permitted to continue on ad hoc basis and he discharged his duties as a Junior Engineer to the satisfaction of all concerned. The Selection Board constituted under Rule-7, initiated the Selection process. The petitioner faced the rigorous of the selection process and was not only selected, but also stood first as would be evident from the merit list prepared by the Selection Board and also the order dated 13.8.1998 (Annexure-4) by which his services were provisionally regularised, of course with effect from 13.8.1998. The Supreme Court in the decision referred to supra while dealing with such appointments have clearly held that if the initial appointment is not made by following the procedure laid down by the Rules and the appointee continues in the post uninterruptedly till regularisation of his service in accordance with the Rules, the ad hoc period will be counted towards his service. According to us, the ratio of the said decision clearly applies to the case at hand. The petitioner was appointed as a Junior Engineer after the Municipality became satisfied regarding his eligibility and performance. Opp.Party No.1 by its letter (Annexure-3) advised the Municipality to allow the petitioner to continue in the post on temporary and ad hoc basis. The Selection Board constituted in consonance with Rule-7 of the OLFS Rules, conducted interview in which the petitioner stood first. Only because opp.party No.1 delayed in constituting the Selection Board and/or conducing the selection process, the petitioner should not suffer. Admittedly, the petitioner is holding the post of Junior Engineer in the Municipality on ad hoc basis continuously right from 1993. No laches, whatsoever, can be attributed to the petitioner. Thus, according to us, it is a fit case where the ratio of the decision of the Supreme Court should be extended to the petitioner. 7. Accordingly, we allow this writ petition and direct the opp.parties to count the period of temporary/ ad hoc service rendered by the petitioner from 1.1.1993 to 13.8.1998 towards his service. Parties to bear their own cost. CH. P. K. MISRA, J. I agree. Petition allowed.