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2004 DIGILAW 417 (ORI)

Pratap Behera v. State of Orissa

2004-09-28

N.PRUSTY, P.K.TRIPATHY

body2004
ORDER 28.9.2004 — All the above noted writ petitions are filed challenging to the order passed in a common judgment delivered by the Orissa Administrative Tribunal, Cuttack Bench, Cuttack on 2.8.2000 in Original Application Nos. 2511 (C), 2499 (C), 2484 (C), 2482 (C), 2500 (C), 2530 (C), 2537 (C), 2483 (C), 2536 (C), 2491 (C), 2501 (C) and 2492 (C) all of 1999. The order of the applicants in the Original Applications and the corresponding writ petitions have been maintained in the cause title serial- wise from the cause title of the impugned judgment, Annexure-5. All the writ petitions except W.P.(C) No. 8313 of 2004 are in the weekly list. Since that is a connected matter and to be disposed of alongwith this batch of cases, the said case record is called for and taken up for admission and disposal on consent of both the parties. 2. The State being the Opposite Party in all the Original Applications, has filed W.P.(C) No. 6661 of 2002 against the impugned judgment of the Tribunal. The said judgment has differ¬ent Annexure numbers in different writ petitions. 3. On consent of both the parties, i.e. the writ petition¬ers and the opposite party, we dispose of all the above noted writ petitions at the stage of admission and by this common order after an analogous hearing. 4. The writ petitioners (except the petitioner in W.P.(C) No. 6661 of 2002) were granted ad hoc appointment in Class-III or Class IV posts by the Chief District Medical Officer, Bhadrak (in short, ‘C.D.M.O.’) and such ad hoc appointment was subsequently regularised through a process of selection by the Selection Committee headed by the C.D.M.O. and later on the superior authorities annulled such orders of appointment on the ground that the recruitment was illegal and accordingly the C.D.M.O. was directed to cancel the appointments. The bone of contention of the applicants before the Tribunal was that cancellation of appointment amounts to termination of service and that could not be achieved by the Government without following due procedure of law in the concerned Service Rules by serving a show-cause notice and providing opportunity of hearing. The State Government, C.D.M.O. and other Officers appearing as the Opposite Party members had a common case and common show-cause. The State Government, C.D.M.O. and other Officers appearing as the Opposite Party members had a common case and common show-cause. They put forth before the Tribunal the fact and circumstance and the illegal act of the then C.D.M.O. in undertaking a process of selection after making ad hoc appointment and without notifying the vacancy by inviting applications from interested persons. The State Govern¬ment also defended the order of cancelling the appointments accordingly. After considering the contention of both the parties and taking note of the rules and G.A.Department’s Resolution relating to the method of notifying the vacancy and the procedure for conducting the selection and the Chairman and Members there¬of, the Tribunal held as follows : "7. These applications are, therefore, disposed of with the direction that a fresh selection be conducted in accordance with the procedure prescribed observing all the required formalities like publication of vacancies, selection by the Selection Board constituted according to the Government instructions and following the provisions of the O.R.V. Act. This exercise be completed within six months from the date of receipt of a copy of this order and the applicants be allowed to take part in the selection in respect of the posts which are ear-marked for the categories to which they belong according to the model roster and for which they have the eligibility. If neces¬sary, their upper age limit be condoned so as to enable them to participate in the selection. Till a select list is prepared after conducting the recruitment in a proper manner as indicated above, the applicants be allowed to continue in their respective posts on ad hoc basis subject to the condition that such continu¬ance shall not confer any right on them to claim regular appoint¬ment in those posts. This direction is given because in the coun¬ter there is no allegation that the applicants themselves have committed any misconduct and secured the appointment by adopting any fraudulent method or misguiding the selection board. However, since violation of the ORV Act is one of the grounds given in the counter, their continuance in the respective posts shall be in spells of 45 days so that the ORV Act will not be violated in case some of them are continuing against vacancies reserved for other categories.” 5. However, since violation of the ORV Act is one of the grounds given in the counter, their continuance in the respective posts shall be in spells of 45 days so that the ORV Act will not be violated in case some of them are continuing against vacancies reserved for other categories.” 5. In challenging to the above noted order when the petitioners state that illegality in the order of termination was not properly visualised by the Tribunal and therefore the said order be set aside. Learned Standing Counsel argues to set aside the relevant portion from the above quoted order in which direction has been given for continuance of the petitioners on ad hoc appointment till completion of a regular process of recruitment. He also states that since the State Government has prohibited recruitment of certain percentage of the base level posts due to ban order as an outcome of financial constraints of the State, the State Government should be given the liberty to undertake the process of recruitment as and when it is found convenient. 6. It is stated at the Bar that because of an order of stay passed by this Court in some of the writ petitions (from the present batch), the order of the Tribunal for recruitment and for continuance in service on ad hoc basis by the petitioners has not been complied so far. Therefore, at present, the writ petitioners are not under ad hoc employment. 7. On consideration of the contentions of the parties and regard being had to the fact and circumstances leading to the ad hoc employment and thereafter regularisation of the petitioners by violating the procedure (by the erstwhile C.D.M.O.) and the Rules and Circulars which the Tribunal referred to for issuing the above quoted direction, we feel that fair play and equity should be available to both the parties in a situation like this. Therefore, the writ petitioners/ad hoc employees should not be stigmatised for the mistake/misdeed committed by the erstwhile C.D.M.O. in committing illegalities and irregularities in the process of selection and appointment. Since they were appointed as against the existing vacancies, they would have been drawing their salary if the Tribunal would not have passed the order in the above quoted manner. Therefore, the financial constraint, which the State advances as the cause against the direction for recruitment, is found to be not sustainable. Since they were appointed as against the existing vacancies, they would have been drawing their salary if the Tribunal would not have passed the order in the above quoted manner. Therefore, the financial constraint, which the State advances as the cause against the direction for recruitment, is found to be not sustainable. We find that the Tribunal in the impugned judgment has considered the provision of law as well as the practical aspect involving both the parties and has passed a reasonable order and that order does not suffer from any illegality or perversity. Under such circumstances, while exercising the writ jurisdiction, we are not inclined to interfere with that order. Since the process of recruitment requires notifying the vacancies and processing the applications, etc., therefore we direct that the process of recruitment be initiated expeditiously and completed within a period of six months, i.e., by end of March, 2005. In the meanwhile, we leave it for consideration of the Government to consider continuance of the petitioners in service on ad hoc basis subject to the stipu¬lation, which has been made by the Orissa Administrative Tribunal in the impugned order. All the above noted writ petitions are accordingly disposed of. Petition disposed of.