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2017 DIGILAW 785 (ORI)

Manoj Kumar Dash v. State of Orissa

2017-07-24

S.K.MISHRA

body2017
JUDGMENT S.K. MISHRA, J. - The petitioner in this case prays for a direction to the opposite parties to grant regular scale of pay to the petitioner to regularize his services and to grant all consequential service and financial benefits including seniority from the date of his initial appointment and also prays for other reliefs as deemed just and proper by the Court. 2. The petitioner was appointed as Assistant Computer Operator, in short ‘ACO’ for brevity, on 26.06.2015 in pursuance of advertisement dated 09.04.2015. It is the case of the petitioner that the Orissa University of Agriculture and Technology, Bhubaneswar, hereinafter referred to as the “OUAT” for brevity, has appointed as many as 63 ACOs in different grades starting from 2006 to 2015. Though such appointments were on contractual basis but they have been allowed to continue keeping in view the requirements of manpower. However, the petitioner claims that he was not given extension after 30.09.2016. It is the positive case of the petitioner that OUAT requires the services of these ACOs. 3. The petitioner claims that the Finance Committee of the OUAT in its Resolution dated 15.11.2013 has recommended for appointment of computer knowing hands and to fill up posts on regular establishment. At present 135 posts are lying vacant in different grades. These vacancies are increasing due to increase of the work load. With the aforesaid documents, the petitioner and other ACOs have been duly selected and appointed and the petitioner has been disengaged on 30.09.2016, which is the subject matter of this writ application. It is also the admitted fact that several other writ petitions are pending before the Court which have been filed by other aggrieved contractual employees of the OUAT. 4. Opposite parties 2 to 4 have filed their counter affidavit. Their first contention is that the prayer of the petitioner is contrary to the terms and conditions of the appointment and that he does not deserve to be regularised. The petitioner has joined in the post of ACO on 26.06.2015 and he has only worked for a period of one year and three months. It is the case of the OUAT that there is no requirement at present by the University to keep so many ACOs for the limited workload. The petitioner was never appointed against sanctioned post. The petitioner has joined in the post of ACO on 26.06.2015 and he has only worked for a period of one year and three months. It is the case of the OUAT that there is no requirement at present by the University to keep so many ACOs for the limited workload. The petitioner was never appointed against sanctioned post. The petitioner cannot have any legitimate expectation for regularisation when the initial appointment was on contractual basis. The petitioner was aware about the nature of the job he was holding. Therefore, the prayer of the petitioner for regularization should be rejected. Therefore, the action of the University in not extending term of service is justified and there is no illegality or infirmity in the same so as to warrant interference by this Court. 5. The opposite parties also plead that in the meantime the Odisha Group-C and D post (Contractual Appointment) Rules, 2013 has been relied upon by the petitioner and the same is completely misconceived. It is also contended by the opposite parties 2 to 4 that the OUAT is facing serious resource crunch and, therefore, the Finance Department of the State of Odisha has granted money to them with certain conditions that the funds should not be utilized for the non-sanctioned post and only for the purpose of giving salaries to the regular employees. So it is contended that the OUAT is under severe financial crunch and is facing immense hardships in disbursing salaries to the concerned employees. Moreover, learned Counsel appearing for the opposite parties 2 to 4 has heavily relied upon the ratio decided by the Constitution Bench of the Supreme Court in the case of Secretary, State of Karnataka and others v. Umadevi and others, (2006) 4 SCC 1 . 6. Having heard Mr.S.K.Das, learned Counsel for the petitioner, Mr.Goutam Mishra, learned Counsel for the OUAT and Mr. T.K. Mishra, learned Addl. Standing Counsel for the State, this Court is of the opinion that following points need to be decided in this case: (1) Whether the petitioner was given appointment in pursuance of an advertisement and selection based on merit. (2) Whether the decision of the Finance Committee of the OUAT to merge all the vacant sanctioned posts and to create ACOs to be posted in all the department of Class III employees has any binding effect. (2) Whether the decision of the Finance Committee of the OUAT to merge all the vacant sanctioned posts and to create ACOs to be posted in all the department of Class III employees has any binding effect. (3) Whether it confers the petitioner with a right to claim for regularization. (4) Whether the contractual employees are being substituted by other contractual employees i.e. some retired persons of the OUAT without following any procedure; and (5) Whether the conditions of service of the regular Group C and D employees are applicable to the present petitioner. 7. For the sake of convenience, the Court takes up the question Nos. 1,2 and 3 together. It is not disputed that an advertisement was issued for a walk-in-interview for eight contractual employees to work as Assistant Computer Operator by the OUAT. The advertisement forms part of the brief, as Annexure-1. The petitioner faced the interview, got selected and was posted for one year on contractual basis as apparent from Annexure-2. However, it is also not disputed that OUAT do not have any sanctioned post of Assistant Computer Operators. There are other sanctioned posts such as Clerks, Accountants, Cashier and other Group C employees. To counter this, learned counsel for the petitioner had submitted that the Finance Committee of the OUAT has taken a decision to merge all the group C posts as A.C.O. and to post computer literate persons to man different sanctioned posts of Clerks, Cashier etc. It is not disputed that actually such a decision has been taken by the Finance Department of the OUAT. But there is also no material on record to show that the decision of the OUAT was approved by the Finance Department of the Government of Odisha. So, in other words, it can be said that though process of selection was adopted for selection of contractual emplo6yees, there is no sanctioned post known as A.C.Os. Moreover, the decision of the Finance Committee to merge all the Class III employees and to recruit A.C. is also apparently not a proper decision in view of the fact that different types of employees are engaged for different work, for example, the graduate having commerce background should be suitable for a job of accountant, the graduates of any discipline may be appointed as a Clerk. It is not brought to the notice of the Court that the Finance Committee of OUAT has in fact devolves any procedure for selecting ACOs and appointed them in different posts as per their qualifications. The OUAT has a statute. It is governed by the Orissa University of Agriculture and Technology Act, 1965. Though it is an independent body, it is an instrumentally of the State. In that view of the matter, it cannot be said that the OUAT is completely and totally separate from the State of Odisha and it can take any decision for their own without concurrence of the Finance Department of the Government of Odisha. So, this Court is of the opinion that though the appointment of petitioner as a contractual employee was in pursuance of an advertisement and by a process of selection, his post is not a sanctioned post and, therefore, he cannot claim for regularization. 8. This Court further holds that the decision of the Finance Committee of the OUAT to manage all the group C posts as A.C.Os. has not received the approval of the State Government and, therefore, has no binding effect of any party. It has not conferred any right with the petitioner for seeking regularization of his service. 9. The learned Counsel for the petitioner contends that there is need for such employment and, therefore, the petitioner should be regularized in this post. It is also argued that the ratio decided in Secretary, State of Karnataka and others v. Umadevi and others (supra) should not be used as a tool to exploit the employees of the State. Learned Counsel for the petitioner relies upon the case of Nihal Singh and others v. State of Punjab and other, (2013) 14 SCC 65. In the aforesaid case, the Hon’ble Supreme Court held that there is no justification for the State to take a defence that after permitting the utilization of the services of a large number of people like the appellants for decades to say that there are no sanctioned posts to absorb the appellants. Sanctioned posts to not fall from heaven. The State has to create them by a conscious choice on the basis of some rational assessment of the need. Hon’ble Supreme Court, therefore, opined that neither the Government of Punjab nor a Public Sector Banks shall continue such a practice to function according to the Constitution of India. Sanctioned posts to not fall from heaven. The State has to create them by a conscious choice on the basis of some rational assessment of the need. Hon’ble Supreme Court, therefore, opined that neither the Government of Punjab nor a Public Sector Banks shall continue such a practice to function according to the Constitution of India. The Supreme Court judgment can be held as a criteria not to exploit the employees of the State Government and its instrumentalities. It is apparent from the records that the present petitioner has worked only for one year and three months and he was well aware of the fact that the appointment is only for one year and it is temporary in nature. But the benefit of the judgment mentioned in the case of Nihal Singh and others v. State of Punjab and others (supra) should be made applicable to the employees who have been in employment for a very long period. 10. In the case of Amarkant Rai v. State of Bihar and others, (2015) 8 SCC 265 , the Hon’ble Supreme Court clarifying the ratio decided in the judgment in Secretary, State of Karnataka and others v. Umadevi and others (supra) has held that exception should be carved out and regularization of those employees continuing for a long period even if knowing tenure of the post should be carried out. Hence, it is contended by the learned Counsel for the petitioner that in view of the decision of the Finance Committee of the OUAT, those ACOs were appointed against sanctioned post. However, this Court has already held in the preceding paragraphs that those posts are neither sanctioned posts nor the Finance Committee of the OUAT de hors the approval of the State Government can merge the sanctioned posts to the cadre of ACOs and post different Group C employees out of the selected ACOs. Moreover, it is seen that the Supreme Court has rendered judgment in Secretary, State of Karnataka and others v. Umadevi and others (supra) in the year 2006, wherein the Constitution Bench of the Supreme Court has categorically held that the appointment given against the non-sanctioned posts and without following a due procedure of selection is illegal in spite of that, the petitioner participated in the selection procedure and therefore, the petitioner should not be given any benefit. 11. 11. In view of the aforesaid discussion, this Court is of the opinion that there is no merit in the contention that the decision rendered in the case of Secretary, State of Karnataka and others v. Umadevi and others (supra) have been taken into account to exploit the employees of the OUAT and because of need of such employees there, the petitioner should be allowed to continue in the same. Hence, these three questions are answered against the petitioner and in favour of the OUAT. 12. To answer last two questions whether the contractual employees are being substituted by other temporary employees of the OUAT and the conditions of service of Group C and D employees are applicable to the present petitioner, it is held that it is no more res integra that a contractual employee cannot be substituted for another contractual employee. But that does not mean contractual employee had to be continued in the post. The State Government have formulated rule regarding regularization of employees against the sanctioned post with the concurrence of the Finance Department. This Court is of the opinion that though the petitioner is entitled to regularization, he is to comply with the provisions envisaged under Rule 8 of the Odisha Group C and D Post (Contractual Appointment) Rules, 2013, though it does not strictly come under the category 1. As the appointment in the contractual post has not been made with the concurrence of the Finance Department of the Government of Odisha, but since a large number of persons will be affected, this Court feels that in the event of any advertisement for employment, the benefit that accrues to category No.1 and contractual employees described under Rule 4 of the aforesaid Rule should also be extended to the petitioner. 13. Lastly, it is seen that the OUAT is giving employment to the retired persons in different posts without following any guideline. The State of Odisha in its General Administration Department as per Resolution No.1409 dated 27.08.2014 published in the extraordinary issue of the Odisha Gazette on September 1, 2014 lays down a comprehensive guideline relating to engagement of retired employees. In Clause 3 of the aforesaid Guideline, it is provided selection of such persons for re-engagement of retired persons will be made though open advertisement and it would be done through a Selection Committee as may be decided by the appointing authority. In Clause 3 of the aforesaid Guideline, it is provided selection of such persons for re-engagement of retired persons will be made though open advertisement and it would be done through a Selection Committee as may be decided by the appointing authority. So clearly the OUAT has not followed this principle and, therefore, this Court is constrained to make an observation that the procedure adopted by the opposite parties 2 to 4 in re-engaging the retired employees without an open advertisement is illegal. 14. In the result, the writ petition is disposed of refusing the prayer made by the petitioner. However, this Court is constrained to make an observation that the opposite parties 2 to 4 shall refrain from appointing any retired persons without following the guidelines issued by the State Government. Keeping in view the facts of the case, there shall be no order as to cost. Petition disposed of.