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2009 DIGILAW 181 (ORI)

Kanhu Charan Sethy v. State of Orissa

2009-03-04

B.P.DAS, M.M.DAS

body2009
JUDGMENT B.P. DAS, J. — The petitioners, who are 35 in number, have filed this writ application challenging the office orders dated 05.02.1996 and 09.02.1996 issued by opposite party No.3-Secretary of Orissa State Housing Board (hereinafter ‘Board’) under Annex¬ure-1 and 2 terminating their services and relieving them from their duties. 2. The Secretary of the Board by letter dated 07.09.1992, under Annexure-9, requested the Director, Employment, Orissa to sponsor candidates for the posts of Junior Assistant for appoint¬ment under the Board. In the said requisition letter, it was indicated that the Board in its 175th meeting held on 29.07.1992 decided that the minimum educational qualification for the post of Junior Assistant in the Board would be Bachelor’s Degree in Arts, Science & Commerce and accordingly decided to place revised requisitions with the Employment Exchanges to sponsor candidates with the above qualification. Thereafter the names of the petitioners alongwith others were sponsored and they faced the written test, personal interview as well as career marks. The Selection Committee, which was constituted by the Board for the purpose of selecting candidates for the aforesaid posts of Junior Assistant, prepared a merit list in their proceedings dated 02.12.1995, vide Annexure-30 and recommended the names of candi¬dates including the names of the petitioners for the posts basing upon the written test, personal interview and career marks in order of merit (category-wise) and for the purpose of gradation list. In terms of the aforesaid recommendation of the Selection Committee as per Annexure-30, the Board issued identical but separate appointment orders dated 8.12.1994 to the petitioners and one of such appointment orders issued to petitioner No.16-Tusharkanti Mohanty is annexed as Annexure-4. In the said ap¬pointment order, it was indicated that the appointment under the Board was temporary against the existing vacancies for Rural Housing Programme for a period of one year in the scale of pay of Rs.950-20-1150-EB-25-1500/- with usual allowances as admissible to the Board employees from time to time until further orders and the appointee would be on probation for a period of one year. The petitioners on being appointed submitted their joining reports, whereafter they were posted in different District Offices of the Board. The petitioners on being appointed submitted their joining reports, whereafter they were posted in different District Offices of the Board. While continuing as such, the petitioners were served with Office Order dated 05.02.1996 vide Annexure-1 terminating their service and indicating therein that as the petitioners were appointed temporarily for a period of one year and since they have completed the said term, they are relieved from their duties with effect from 05.02.1996. Similar order was passed in respect of petitioner No.35-Debendra Patra, Junior Assistant on 09.02.1996 vide Annexure-2. The aforesaid orders under Annexures-1 and 2 are under challenge in the present writ application. 3. While issuing notice on the writ application, this Court passed interim order dated 22.02.1996 in Misc.Case No.1337 of 1996, staying operation of Annexures-1 and 2 until further orders. Thereafter by order dated 19.03.1996 this Court considering the stand of the opposite parties that prior to the passing of the interim order of stay, the petitioners had been disengaged, made it clear that the intention of the order dated 22.02.1996 was that the petitioners would continue in service and directed to take back the petitioners to service. 4. Shri Dora, learned counsel for the petitioners, submits that the petitioners were recruited through a regular process of recruitment and the period of probation was for one year. The appointment was regular and their appointment letters show that though they were appointed temporarily for a period of one year, they were on probation for a period of one year. They had already completed the said period of probation of one year by the date the order of termination was passed. The further case of the petitioners is that some of the candidates, who were placed below the petitioners in the merit list prepared by the Selection Com¬mittee vide Annexure-30, have been retained in service, whereas the petitioners have been asked to be relieved by virtue of the orders under Annexures-1 and 2. This, according to Shri Dora, is discriminatory. That apart, he draws our attention to the list of staff available in the district office at the combined offices of the Assistant Administrative Officers of Cuttack, Jajpur, Jagat¬singhpur at Badambadi, Cuttack annexed to the inspection report of the Chairman of the Board, vide Annexure-16, which shows that some of the petitioners were working as regular employees. That apart, he draws our attention to the list of staff available in the district office at the combined offices of the Assistant Administrative Officers of Cuttack, Jajpur, Jagat¬singhpur at Badambadi, Cuttack annexed to the inspection report of the Chairman of the Board, vide Annexure-16, which shows that some of the petitioners were working as regular employees. Under the aforesaid facts and circumstances, the petitioners have prayed for quashing the orders in Annexures-1 and 2 and for issuance of a direction to the opposite parties to regularize them in the posts in which they are continuing. 5. A counter affidavit has been filed by opposite parties 2 and 3 through the Secretary of the Board taking a stand that Annexure-4, which is the letter of appointment, is tell-tale in regard to temporary appointment of the petitioners and it has been specifically indicated therein that the appointment of the petitioner was made against the vacancies for the Rural Housing Programme for a period of one year in the scale of pay of Rs.950-20-1150-EB-25-1500/- with usual allowances as admissible to the Board employees from time to time until further orders. Banking upon the aforesaid clause in the order of appointment, Shri Nayak, learned counsel for opposite parties 2 and 3, submits that there is no vested right with the petitioners to continue in the posts in question beyond the period of one year, and the tempo¬rariness of service of the petitioners is evident from Annexure-4, which cannot be ignored. As regards continuance of some candi¬dates, who were placed below the petitioners in the merit lst, the reply of opposite party Nos.2 and 3 is that the same has been done on the basis of a pick and choose method considering their performance and, therefore, no discrimination has been meted out to the petitioners while regularizing the candidates shown below the petitioners in the merit list and relieving the petitioners from their duties. 6. In this factual background of the case and having regard to the contentions of the learned counsel for the parties, let us first examine whether Annexure-4 in any manner gives any right to the petitioners to be regularized or whether any dis¬crimination has been shown to the petitioners by relieving them and keeping their juniors by regularizing their services. It would be profitable to quote herein below the appointment letter (Annexure-4). It would be profitable to quote herein below the appointment letter (Annexure-4). “You are appointed as Junior Assistant under the Orissa State Housing Board temporarily against the existing vacancies for the Rural Housing Programme for a period of one year in the scale of pay of Rs.950-20-1150-EB-25-1500/- with usual allowances as admissible to the Board employees from time to time until further orders. 2. The appointment is purely temporary and can be terminated at any time without notice and assigning any reason thereof. 3. You will be governed by the rules and regulations of the Board as may be prescribed from time to time. 4. You will be on probation for a period of one year.” The letter of appointment issued on 08.12.1994, even though shows that the same is for a period of one year, the petitioners have been shown to be entitled to the scale of pay of Rs.950-20-1150-EB-25-1500/- and to cross the Efficiency Bar at Rs.1150/- and they were allowed usual allowances as admissible to Board employees. But clause-4 of the letter of appointment makes it very clear that the probation period would be for one year. If the appointment was contractual and for a period of one year, then the question of probation would not have arisen. A conjoint reading of the letter of requisition, the letter of appointment and the merit list prepared by the Committee shows that the recruitment was made against the existing vacancies and in re¬spect of permanent posts because in the letter of requisition there is nothing to indicate that the appointment was for a fixed period. The Selection Committee also recommended the names of the petitioners for the posts of Junior Assistant. There is nothing to show that the appointment was to be for a specific period. The opposite parties have not disputed the allegation of the peti¬tioners that about 80 persons, who failed in the interview, have also been given appointment and they are continuing. If this is not discriminatory, then what action of the opposite parties shall be called is discriminatory ? Learned counsel for the opposite parties further relies upon a decision of the apex Court in the case of Secretary, State of Karnataka v. Umadevi and others, (2006) 4 SCC 1 . If this is not discriminatory, then what action of the opposite parties shall be called is discriminatory ? Learned counsel for the opposite parties further relies upon a decision of the apex Court in the case of Secretary, State of Karnataka v. Umadevi and others, (2006) 4 SCC 1 . The facts of the aforesaid case are not applicable to the present case, because of the reason that the petitioners were not appointed through back door method but through a regular recruitment process, their names were sponsored by the Employment Exchange and they were selected by a Selection Committee constituted for the purpose. 7. For the reasons indicated above, we hold that the action of the opposite parties relieving the petitioners and keeping their juniors and other failed candidates and regularizing their services, is discriminatory for which the orders in Annexures 1 and 2 are liable to be quashed. That apart, the petitioners have been working since 1994 till date. In the orders in Annexures 1 and 2 relieving the petitioners, no defi¬ciency in their performances has been indicated. In this back¬ground, we hold the orders under Annexure 1 and 2 as discrimina¬tory, arbitrary and liable to be quashed. Accordingly we quash the said orders under Annexures 1 and 2 and direct the opposite parties to regularize the petitioners within a period of six months from the date of communication of this order and consider their claim for consequential benefits. The writ application is accordingly disposed of. No costs. M.M. DAS, J. I agree. Application disposed of.