Research › Search › Judgment

Orissa High Court · body

2014 DIGILAW 641 (ORI)

Narendra Kumar Ratha v. State of Orissa

2014-09-26

B.R.SARANGI

body2014
Judgment Dr. B.R.Sarangi, J. Both the writ applications having arisen out of same cause of action were heard together and are disposed of by this common judgment. The petitioners in both the two writ petitions, who are working as Sales Assistant-cum-Godown Assistant, Drivers and Kantabalas respectively under the Orissa State Civil Supplies Corporation Ltd. have challenged the notice dated 29.12.1999 issued by the Collector, Sundargarh, vide Annexure-3, inviting applications for engagement of daily wage employees in respect of the very same posts manned by the petitioners specifying the rate of wages to be paid and the required qualification and have sought direction to opposite party that as they are the existing staff working on daily wage basis as per the direction of previous Collector, they be allowed to continue in service as long as the distribution system is continuing until their services are regularized by the competent authority. 2. The short facts of the case, in hand, are that Orissa State Civil Supplies Corporation Ltd. vide letter no. 6659 dated 25.8.1999 addressed to the District Managers of Bargarh/ Mayurbhanj/ Nabarangpur/ Rayagada/ Sambalpur and Sundargarh allotted Mobile Vans to facilitate distribution of food-grains in the interior areas in their respective districts. Accordingly, seven mobile vans were allotted and District Managers were instructed to engage staff for the vehicles, namely, Sales Assisant-cum-Godown Assistant, Drivers and Kantawallas on daily basis and to pay them wages as per the norms prescribed by the Corporation. The District Manager, Sundargarh after considering the suitability and qualification of the petitioners engaged them on daily wage basis. As per the guidelines, such engagements were temporary, liable to be terminated at any point of time by the appointing authority. Petitioners on being selected, were engaged to work in the respective posts. While they were so working, due to change of the Collector, the new incumbent directed cancellation of such engagement of the petitioners and further directed the District Manager, Sundargarh to take steps for fresh selection. As a consequence thereof the Notice dated 29.12.99, Annexure-3 was issued, hence the present writ applications seeking to suspend operation thereof until disposal of these writ applications and to issue necessary direction as deemed proper. 3. Mr. As a consequence thereof the Notice dated 29.12.99, Annexure-3 was issued, hence the present writ applications seeking to suspend operation thereof until disposal of these writ applications and to issue necessary direction as deemed proper. 3. Mr. P.K. Ray, learned counsel for the petitioners, relying upon the settled position of law laid down in R.T. Rangachari v. Secretary of State, AIR 1937 P.C. 27 , wherein it is held that in a case in which after government officials duly competent and duly authorized in that behalf, have arrived honestly at one decision, their successors-in-office, after the decision has been acted upon and is in effective operation, cannot purport to enter upon a reconsideration of the matter to arrive at another and totally different decision, submitted that once a Collector has engaged the present petitioners to work in the respective posts, his successor Collector could not have directed otherwise overriding the order of the earlier Collector stating that the said categories of posts were required to be filled up through the local Employment Exchange on daily wage basis pursuant to Annexure-3. He further submitted due procedure having already been followed while engaging the petitioners and the engagement orders having been acted upon; the successor Collector is not permitted in law to allow another procedure to be followed for filling up of the very same posts against which the petitioners are continuing instead of regularizing their services. Therefore, such action of the successor Collector being arbitrary, unreasonable and contrary to the provisions of law, and the Notice, Annexure-3 to O.J.C. No. 590/2000 being unwarranted in law, further action pursuant thereto may be directed not to be carried on. 4. Mr. A.K. Mishra, learned Addl. Govt. Advocate for the State relies upon the office order dated 6.8.1996 Annexure-A/1 of the Orissa State Civil Supplies Corporation Ltd. addressed to the Collectors of all districts as well as District Managers of OSCSC Ltd., wherein it was stated that the power of recruitment in respect of Grade-III posts were delegated to the District Level Committee of the district concerned as provided under sub-rule-(6) to Rule-9 of the OSCSC Employees’ Service Rules 1993. As per the said order Annexure-A/1, the Collector of the concerned district would function as the Chairman of the district level committee as provided under the 1993 Rules. As per the letter dated 9.10.1996, Govt. As per the said order Annexure-A/1, the Collector of the concerned district would function as the Chairman of the district level committee as provided under the 1993 Rules. As per the letter dated 9.10.1996, Govt. of Orissa in Food Supplies and Consumer Welfare Department issued guidelines relating to the procedure to be followed for selection to fill up the Class-III/IV posts in the office of the District Manager, OSCSC Ltd. As per the said guidelines a Committee has to be formed under the Chairmanship of C.S.O.-cum-District Manager consisting of the representative of Sub-Collector of the Sub-Division, District Welfare Officer of the district and A.C.S.O. of the district office. It is further directed that the committee while recommending any appointment should meticulously follow the procedure of recruitment as prescribed by Labour Department and also follow the provision of O.R.V. Act as prescribed from time to time by the Government. But the said guidelines dated 9.10.1996 were modified vide letter dated 31.10.1996 issued by the OSCSC Ltd relating to Class-III/IV employees in the office of the District Managers to the extent that Collector of the district would be the District Chairman of the selection committee in place of District Manager. 5. Mr. Mishra, further submitted that the predecessor of opposite party no.1 recommended the selection list for approval without examining the file in detail and overlooking the interest of the local candidates which was against the norms specified in the guidelines dated 31.10.1996 and after the joining of the present incumbent representations were received from various quarters and therefore in the interest of the local candidates, steps have been taken by issuing fresh notice inviting applications from the local candidates. 6. Mr. S.K. Nayak-1, learned Sr. Counsel appearing for opposite party no.2, reiterated the same contention and added that pursuant to letter dated 17.12.1999 the present incumbents requested the Chairman-cum-Managing Director, O.S.C.S.C. Ltd. not to approve the selection made earlier on the allegation that the Ex-Civil Supply Officer, Sundargarh has selected the persons for engagement as Sales Assistant-cum-Godown Assistant, Drivers and Kantawals for seven numbers of mobile vans deployed recently in Sundargarh district without following the prescribed procedure ignoring the interest of the local candidates. Therefore, vide letter dated 17.01.2000, the incumbent with reference to letter no. Therefore, vide letter dated 17.01.2000, the incumbent with reference to letter no. 10038 dated 27.12.1999 examine the same and found that no procedure was followed for such engagement and therefore the same was withdrawn and to regularize the issue local employment exchanges have been asked to sponsor the names by 15.01.2000 for filling up of the vacancies as per the notice vide Annexure-3. It is further urged that the ratio decided in R.T. Rangachari case (supra) has no application in the present context and, therefore, seeks dismissal of the writ applications. 7. On the basis of the pleaded facts mentioned above, it appears that seven number of mobile vans were deployed in the district of Sundargarh in order to facilitate the Public Distribution System in the interior areas of Sundargarh district to keep up Public Distribution System of rice and other food grains and in order to avoid corruption in the system. For effective distribution, the OSCSC Ltd. vide letter dated 25.08.1989 addressed to all the District Managers of Baragarh/ Mayurbhanj/ Nabarangpur/ Rayagarh/ Sambalpur and Sundargarh issued instruction to engage staff for the seven mobile vans, such as, Sales Assistant-cum-Godown Assistant, Drivers and Kantawalas on daily wages basis and to pay them wages as per the norms prescribed by the Corporation. The ultimate power of engagement of the above mentioned categories of vehicle staff was retained by the Corporation but the same was re-delegated to the District Managers of the respective districts authorizing them to make such appointments. The District Manager, Sundargarh engaged some local people after considering their suitability and competency for the job and preparing a list of such persons sent the same to the Managing Director for information on 6.12.1999. The District Manager, Sundargarh had also issued instruction to the Sub-Collector, B.D.Os. and all Marketing Officials of the district for engagement of those staff on daily wage basis keeping in mind the guidelines dated 6.12.1999 issued by the Managing Director. Adherering to the said guidelines, the petitioners were engaged in their respective posts and while they were discharging duty effectively, due to change of the Collector, the impugned notification was issued vide Annexure-3 dated 29.12.1999 on the plea of interest of the local candidates having been ignored. Therefore the subsequent step was taken by the new incumbent, Collector on that ground. 8. Therefore the subsequent step was taken by the new incumbent, Collector on that ground. 8. The aforesaid contention is violative of Article 16 (1) and (2) of the Constitution of India, which reads as follows:- 16. Equality of opportunity in matters of public employment- (1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under State. (2). No citizen shall, on grounds only of religion, race, caste, sex, decent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under State. The main object of Article 16 is to create a Constitutional right to equality of opportunity and employment in public offices. The words ‘employment or appointment’ cover not merely the initial appointment, but also other attributes like salary, increments, revision of pay, promotion, gratuity, leave, pension and age of superannuation, etc. Appointment to any post under the State can only be made in accordance with the provisions and procedure envisaged under the law and guidelines governing the field. 9. In Prabodh Verma and others v. State of U.P. and others, (1984) 4 SCC 251 , the apex Court held that Article 16 is an instance of the application of the general rule of equality laid down in Article 14, with special reference to the opportunity for appointment and employment under the Government. 10. Similar view has also been taken by the apex Court in Km. Neelima Mishra v. Harinder Kaur Paintal and others, (1990) 2 SCC 746 : AIR 1990 SC 1402 and E.P. Royappa v. State of Tamilnadu and another, (1974) 4 SCC 3 . Clause-1 of Article 16 guarantees equality of opportunity for all citizens in the mattes of employment or appointment to any office under the State. The very concept of equality implies recourse to valid classification for preference in favour of the disadvantaged classes of citizens to improve their conditions so as to enable them to raise themselves to positions of equality with the more fortunate classes of citizens. This view has been taken note of by the Apex Court in the case of Indra Sawhney and others v. Union of India and others, 1992 Supp. (3) SCC 217 : AIR 1993 SC 477 . 11. This view has been taken note of by the Apex Court in the case of Indra Sawhney and others v. Union of India and others, 1992 Supp. (3) SCC 217 : AIR 1993 SC 477 . 11. Article 16 (2) prohibits discrimination against the citizens on the ground of (1) Religion (2) Race (3) Class, (4) Sex, (5) Descent, (6) Place of birth and (7) Residence and ofcourse article 16 (3) of the Constitution of India. 12. As it appears in the present context, the successor Collector tried to nullify the selection of the petitioners on the ground that his predecessor had not taken into consideration the employment opportunity available to the local people. This ground is no more germane to be considered in view of the provisions contained in Article 16 (2) of the Constitution of India because no distribution system can be made on the basis of the equalities in public employment. Bereft of that, it appears that the predecessor Collector having considered the case of the petitioners those who were local people in giving a public employment in conformity with the Constitutional mandate and the same is not permissible to be reopened after their joining. Rather, he should have acted upon on the basis of the ratio decided in R.T. Rangachari case (supra). 13. As it appears, the notification issued vide Annexure-3 was challenged before this Court and this Court passed interim order in O.J.C. No. 590 of 2000 to the following effect:- “As an interim measure, we direct that the petitioners shall be allowed to continue in their service until further orders. The personal appearance of the Law Officer is dispensed with for the time being. Sd/- B.P. Das, J. Sd/- L. Mohapatra, J. In O.J.C. No. 15057 of 1999, this Court passed interim order on 30.12.1999 in Misc. Case No. 14128 of 1999 to the following effect: The service of the petitioners may not be terminated in the meantime without leave of this Court. Sd/- Vacation Judge. This interim order was allowed to continue until further orders vide order dated 9.5.2000. 14. Case No. 14128 of 1999 to the following effect: The service of the petitioners may not be terminated in the meantime without leave of this Court. Sd/- Vacation Judge. This interim order was allowed to continue until further orders vide order dated 9.5.2000. 14. By virtue of the interim orders passed by this Court, since the petitioners were still continuing in service enjoying the benefits, in the event at this point of time any action is taken for disengagement of such employees, it will grossly dislocate the entire family set up and cause prejudice to them since they have attuned their family life with the income received from such employment. 15. In view of all the above, this Court is of the considered view that the action taken by the Successor Collector in issuing the advertisement as per Annexure-3 is vitiated in law being hit by Article 16 (1) and (2) of the Constitution of India. Accordingly, the same is quashed. Since the petitioners in both the writ applications have already rendered service for such a long period, the authorities are directed to take steps for regularization of their services considering their past experience subject to availability of vacancy in the interest of justice, equity and fair play. The above exercise shall be completed within a period of sixty days. 16. With the above observation and direction, the writ applications are disposed of.