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2017 DIGILAW 218 (ORI)

Kishore Chandra Jena v. State of Odisha

2017-03-02

SANJU PANDA, SUJIT NARAYAN PRASAD

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JUDGMENT : S.N. Prasad, J. Both these writ petitions are under Article 226 and 227 of the Constitution of India wherein the orders passed by the Orissa Administrative Tribunal, Cuttack Bench, Cuttack passed in O.A. Nos. 3295(C) and 3296(C) of 2001 dtd.23.3.2006 are under challenge, whereby and where under the original application filed by the applicants has been dismissed being devoid of merit. 2. The brief facts of the case is that the Government of Orissa has come out with a letter on 25.3.2000 by its Panchayati Raj Department directing the Block Development Officers to fill up the vacancies in the post of peon in respective Blocks, in terms thereof the recruitment process has been initiated by publishing a notice inviting applications from the respective candidates. The petitioners, out of them, has made application in which they have has been declared successful and accordingly the appointment order has been issued vide memo No.2386 dtd.01.12.2000, they have started discharging their duty and accordingly the salary has also been paid in their favour but all of a sudden the service of the petitioners has been terminated vide order dtd.12.11.2001, which has been challenged by the petitioners before the Orissa Administrative Tribunal vide O.A Nos.3295(C) and 3296(C) of 2001 but the same has been dismissed vide order dtd.23.3.2006, impugned in this writ petition. 3. The petitioners have taken the grounds to challenge the said order that before terminating his service the principle of natural justice has not been followed and they have been appointed after following due procedure, but the Tribunal has not taken into consideration these aspects of the matter. 4. While, on the other hand, learned counsel representing the State of Orissa has vehemently opposed the prayer and submission of the learned counsel appearing for the petitioner by arguing that there is no infirmity in the order impugned, reason being that the petitioner has been appointed by the Block Development Officer but before his appointment, the approval, as required under the Government decision issued by the Finance Department dtd.20.3.1998 which requires to obtain approval before making appointment in Class-IV post, has not been accorded by the concerned Block Development Officer and as such his appointment is void ab initio. It has further been argued that the Block Development Officer was knowing about the Government decision dtd.20th March, 1998 but even though he has ignored the same by not seeking approval for the post, rather the Block Development Officer has sought for post facto approval after appointing the petitioner to the post of peon, the competent authority, after taking into consideration this aspect of the matter and on the basis of the decision taken by the Panchayati Raj Department of the Government of Orissa, as contained in order No.14405/PR dtd.07.11.2001, has terminated the service of the petitioner, hence there is no infirmity either in the order of termination or in the order passed by the Orissa Administrative Tribunal. He has submitted by controverting the argument advanced on behalf of the petitioner regarding the principle of natural justice having not been followed by arguing that even though the principle of natural justice would have been followed, then also there would not have been any material change in the factual aspect and as such it will be said to be empty formality and futile exercise and it is settled that merely on the ground of non-observance of principle of natural justice the order cannot be said to be vitiated unless there is chance of dispute in the factual aspect, but here in the instant case there is no dispute in the factual aspect reason being that admittedly the petitioner was appointed as Peon without seeking any prior approval as per the Government resolution dtd.20.03.1998, hence on the ground of following the principle of natural justice the order of termination cannot be quashed. 5. We have heard the learned counsels for the parties and perused the documents available on record. The admitted position in the instant case is that the petitioner has approached this court on earlier occasion by invoking the writ jurisdiction of this court by preferring writ petition being OJC No.7913 of 1998 praying therein to quash the order dtd.11.06.1998 whereby and where under he has been terminated from service w.e.f.01.06.1998 and a coordinate Bench of this court, while disposing of the writ petition vide order dtd.15.09.1999 has passed the following order:- “Heard. On instruction, learned counsel for the petitioner states that the Sub-Collector, Jagatsinghpur has requested the Block Development Officer, Biridi to engage the petitioner on casual basis till a regularly selected person is appointed as a peon. On instruction, learned counsel for the petitioner states that the Sub-Collector, Jagatsinghpur has requested the Block Development Officer, Biridi to engage the petitioner on casual basis till a regularly selected person is appointed as a peon. Learned counsel for the State submits that in that view of the position, the desire of the Sub-Collector will be worked out. It would be appropriate if action is taken within a month from the date of receipt of our order. Our order along with a copy of the writ petition be sent to the opposite parties forthwith. Requisites shall be filed within three days.” The concerned authorities in pursuance to the order passed by this court in O.J.C. No.7913 of 1998 has come out with an advertisement for fulfilling the post of Peon and in terms thereof the petitioner has been appointed, as would be evident from the order dtd.16.10.2000, the order reflects that the appointment of the petitioner was on ad hoc basis for 44 days w.e.f. 16.10.2000 to 28.11.2000 in the scale of pay of Rs.2550-55-2660-60-3200/- per month in the office of the Block Development Officer, Biridi against the vacant post, the appointment was purely temporary and to be terminated at any time without prior notice. The petitioner has given his joining in pursuance to the offer of appointment dtd.16.10.2000 but he has been terminated vide order dtd.12.11.2001 by the order of the Block Development Officer, Biridi placing reliance upon the decision taken by the Government in the Panchayati Raj Department order No.14405/PR dtd.7.11.2001, the same has been challenged by the petitioner before the Orissa Administrative Tribunal, the Tribunal has dismissed the original application treating it being devoid of merit, which is under judicial scrutiny before this court by way of this writ petition. 6. 6. We have gone through the averments made by the State – opposite parties in the counter affidavit and from its perusal it is evident that the Finance Department of the State of Orissa has come out with a decision communicating to the Secretaries of all departments regarding the policy decision for resource mobilization and observance of economy and one of the conditions contained therein is that all proposal for filling up of base level post shall require clearance of a High Power Committee comprising the Chief Secretary, Development Commissioner, Additional Chief Secretary and Principal Secretary, Finance Department, the Secretary of the Administrative Department concerned would prepare a memorandum for consideration of the committee. The State – opposite party has taken specific stand that the petitioner has been appointed in terms of the order dtd.16.10.2000 but without following the direction of the Finance Department of the Government of Orissa contained in letter No.11172(40)F dtd.20.03.1998 which is also being corroborated from the letter issued by the Block Development Officer as contained in letter No.829 dtd.03.05.2001 whereby and where under the Block Development Officer, Birid has requested the Deputy Secretary to Government, Panchayati Raj Department, Orissa to accord ex-post facto approval for appointment of two peons posted in Biridi block, including the petitioner which suggests that the concerned Block Development Officer has not followed the Government instruction dtd.20th March, 1998 since the same does not contain the decision regarding taking post facto approval. The appropriate Government at the Panchayati Raj Department, after taking into consideration the fact that the appointment is being made to the post of Peon contrary to the Government decision dtd.20th march, 1998, has issued an order being order No.14405/PR dtd.7.11.2001, thereafter the Block Development Officer, Biridi, in compliance of the order dtd.7.11.2001 has issued the order of termination dtd.12.11.2001. 7. 7. The petitioner has taken the ground before the Tribunal that the order dtd.12.11.2001 is not sustainable in the eye of law since before passing the same, the principle of natural justice has not been followed, but according to our conscious view and in the facts and circumstances of the present case, even for non compliance of this principle, the order of termination is not fit to be quashed, reason being that even the matter would be remitted before the authority for compliance of principle of natural justice, there would no chance of change in the situation for the reason that the fact regarding prior approval of the appointment is not in dispute and as such in that situation if the matter would be remitted on the ground of non observance of principle of natural justice, it would lead to useless theory or empty formality, since it is settled proposition that if the notice would have been issued, the things could not have been changed as such in that situation on the ground of following the principle of natural justice the quashing of the order would not be proper. This proposition has been settled in catena of decisions rendered by Hon’ble Supreme Court, few of them are A.K. Kraipak Vs. Union of India, reported in (1969) 2 SCC 262 , Chairman, Board of Mining Examination Vs. Ramjee, reported in (1977) 2 SCC 256 , Institute of Chartered Accounts of India Vs. L.K. Ratna, reported in (1986) 4 SCC 537 , Charan lal Sahu Vs. Union of India, reported in (1990) 1 SCC 613 and C.B. Gautam Vs. Union of India, reported in (1993) 1 SCC 78 . Accordingly the ground taken by the petitioner in this respect is having no force, hence the same is rejected. 8. So far as the merit of the case is concerned, it is admitted position that the petitioner has been appointed purely on ad hoc basis but without compliance of the Government decision dtd.20th March, 1998 and as such the Government has taken decision to terminate the service of such employees and accordingly the service of the petitioner has been terminated. So far as the merit of the case is concerned, it is admitted position that the petitioner has been appointed purely on ad hoc basis but without compliance of the Government decision dtd.20th March, 1998 and as such the Government has taken decision to terminate the service of such employees and accordingly the service of the petitioner has been terminated. It is settled that if any policy decision is being taken by the Government, the subordinate authority is duty bound to follow the same, but the concerned Block Development Officer, Biridi, even though, knowing about the Government decision dtd.20th March, 1998, has appointed the petitioner and thereafter sought for post facto approval of his appointment which is not permissible. Further the order of termination cannot be quashed since the same has been passed in compliance of the decision of the Panchayati Raj Department of the Government of Orissa as contained in letter No.14405/PR dtd.7.11.2001 which has not been challenged by the petitioner, even no averment has been made in this regard in the writ petition which is the basis for the order of termination and so long as the decision dtd.7.11.2001 passed by the Panchayati Raj Department of the Government of Orissa is in existence, the order of termination cannot be said to be illegal. We have also gone through the order passed by the Tribunal and according to us the Tribunal has not committed any error in passing the order. 9. In view of the reasons mentioned herein above and the reasoning given by the Tribunal in the order impugned, we are of the opinion that there is no infirmity in the order, accordingly the writ petitions lack merit, hence dismissed.