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Orissa High Court · body

2009 DIGILAW 479 (ORI)

Sarat Ch. Sethi v. State of Orissa

2009-07-02

H.P.DAS, J.M.PATTNAIK

body2009
ORDER 2.7.09 O.A.1971(c)/2000 O.A.1972(c)/2000 O.A.1976(c)/2000 O.A.1977(c)/2000 O.A.1978(c)/2000 O.A.1981(c)/2000 The batch of cases consisting of O.A. 1984(c)/2000 & 19 other cases was taken up for analogous hearing. A perusal of the counter filed by respondent No.1 brings out the fact that all the applicants do not belong to the same category in as much as six of them (O.A.1971(c)/2000, O.A.1972(c)/2000, O.A.1976(c)/2000, O.A.1977(c)/2000, O.A.1978(c)/2000 and O.A.1981(c)/2000) belong to a category of displaced persons. These cases are segregated therefore for disposal, leading aside the other cases in the batch considered for separate adjudication. Respondent no.1 has detailed the policy initiative taken by the Government for pro¬viding rehabilitation to the displaced persons. It is stated in the counter as follows: 6. That the Government has formulated a policy which is known as Rehabilitation & Resettlement Policy, 1994 for displaced family members affected by any project, which does not contem¬plate job assurance to all land losers. As an alternative strate¬gy to the land based rehabilitation especially in view of the agricultural land not being available, alternative strategies have been envisaged in the policy. One of the alternative strate¬gies is the opportunity for employment of preferential basis for eligible affected persons in the project Establishment and else¬where in different Project activities in Class-III and Class-IV posts for which no specific recruitment rule has been prescribed.” 2. The respondents have taken the general stand that the orders terminating the services of all the applicants are justi¬fied on the ground that even though recruitment was made by the appointing authority, prior approval of the Government or the R.D.C. was not taken. Leaving aside the technical point for the time being, the point at issue is as to whether the six appli¬cants admittedly belonging to the displaced category were enti¬tled to be considered for appointment in the Land Acquisition organization. The learned government Advocate submits that the Land Acquisition posts being temporary in nature and being tied to the first phase of the Project could not accommodate regular employment as a matter of rule and therefore it was not the intention of the Government to adjust/accommodate any of the displaced persons in Land Acquisition jobs. The learned government Advocate submits that the Land Acquisition posts being temporary in nature and being tied to the first phase of the Project could not accommodate regular employment as a matter of rule and therefore it was not the intention of the Government to adjust/accommodate any of the displaced persons in Land Acquisition jobs. Referring to an earlier sanction of posts in the Land Acquisition organization in February 1981 the learned Government Advocate contends that those posts were filled up by accommodating the surplus Delta employees as one time measure and thereafter the posts in the Land Acquisi¬tion were not available for accommodating rehabilitation appoint¬ees of the type to which the applicants belong. 3. We have carefully noted the policy initiative of the Government as recorded in the counter. We find that the eligible affected persons could be employed in different project related activities in Class III and IV posts. We do not see why the Land Acquisition establishment would not be included in this category. As a matter of fact the Land Acquisition organisation is created as admitted by the learned Government Advocate for acquisition of land for the Project and the employees are very much employed in project related activities. We find that there are to obstacles on the way. The first obstacle that was placed was that there was no sanctioned post. The posts in Land Acquisition organisation were earlier meant only for Delta surplus staff. That was cleared by the admission of the Land Acquisition Officer, Rengali Irriga¬tion Canal, Baghuabol that all the Surplus Delta staff had been accommodated by June 1981 and that there was no one available for further redeployment from amongst Delta employees. The second obstacle that was placed was that even in the current set up no sanctioned post was available for accommodating the displaced persons. That obstacle was also removed by the admission of the respondents themselves that the displaced persons could be con¬sidered for appointment in project related activities and as we have said the Land Acquisition posts being very much project related activities, the respondents cannot make a difference between the Land Acquisition establishment and the regular Gov¬ernment establishment for the purpose of denying employment to the displaced persons. As we said we take only the cases of six applicants, admittedly belonging to displaced persons category for final disposal. As we said we take only the cases of six applicants, admittedly belonging to displaced persons category for final disposal. These applicants had faced the interviews and had been regularly appointed by the appointing authority. The re¬spondents have taken the position that some persons were recruit¬ed by the Land Acquisition Officer without possessing proper qualification. That is not the matter before us as the matter now concerns only six persons who are admittedly displaced persons. We sought to know from the learned Government Advocate as to the exact problem that the respondents encountered in the recruitment process. We find from the report submitted by the R.D.C. (ND) to the Government that the recruitment was conducted by the Land Acquisition Officer on the basis of the recommendations of a Board constituted with the approval of the R.D.C., but before issuing appointment orders neither the R.D.C. nor the Government was consulted. 4. We have gone into the reason why the Government had sought prior approval before issuing appointment orders. This decision of the Government was warranted apparently by an exer¬cise in fiscal discipline and ban was imposed on further appoint¬ments. Some persons aggrieved by the stalling of the recruitment process had approached the Hon’ble High Court in O.J.C.9920/1998 and the Hon’ble High Court having taken note of the fact that the petitioners were the land oustees of Rengali Irrigation Project had directed that the process of interview should be carried forward as the ban order was no more in force. The applicants belong to that group of persons who faced the interview in pursu¬ance of the order of the Hon’ble High Court. When a view was taken by the R.D.C. and on that basis by the Government that there have been irregularities in the recruitment process, termi¬nation orders were issued to the applicants, but not to those who had been interviewed as per the direction of the Hon’ble High Court and had been appointed even though both these categories of persons were on the same footing. The crux of the matter is that the impediment of a ban not being operational at the point of time when the applicants were appointed, the exact reason why the Government sought prior approval or for that matter involvement of the R.D.C. is only a matter of technicality. The crux of the matter is that the impediment of a ban not being operational at the point of time when the applicants were appointed, the exact reason why the Government sought prior approval or for that matter involvement of the R.D.C. is only a matter of technicality. This is a further obstacle placed by the respondents and that is removed by the fact that there was nothing else per se irregular in the recruit¬ment excepting that prior approval was not obtained. 5. The applicants succeeded in obtaining an order of stay on the direction of the R.D.C. to the Rehabilitation Officer for cancellation of irregular appointments excepting those given in compliance to the orders of the Hon’ble High Court. This has been referred to as creation of a class within a class under the shadow of the orders of the Hon’ble High Court. But then on the strength of the protection granted by the Tribunal the applicants are continuing until now in their posts. The applicants have prayed for quashing the communication of the R.D.C. to the Reha¬bilitation Officer. We decline to quash that order. But we de¬clare that being displaced persons their cases would not be covered in the category of irregular appointees who were not displaced persons and who were recruited from the open market. They have also filed separate cases. That matter would be dealt with separately. Our intention in segregating these six applica¬tions out of batch of cases that is before us is that we wish to treat the displaced persons who have lost their lands as the beneficiaries of alternative strategy of the rehabilitation of the Government. 6. With this observation we direct that the appointments of the applicants in O.A.1971(c)/2000, O.A.1972(c)/2000, O.A.1976(c)/2000, O.A.1977(c)/2000, O.A.1978(c) of 2000 and O.A.1981(c) of 2000 would not be encumbered by Annexure-4 direc¬tion of the R.D.C. to the Rehabilitation Officer nor would they be affected by it. All dues as per entitlement of the applicants which might have been held up on account of pending litigation would be cleared in accordance with the rules, within a period of three months from the date of receipt of a copy of this order. Disposed of with the above orders. Copies be handed over to the learned counsel for the parties for onward transmission to the parties concerned. Application disposed of.