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2019 DIGILAW 303 (ORI)

Sarojakanta Mohapatra v. State Of Odisha

2019-04-10

B.R.SARANGI

body2019
JUDGMENT B.R. Sarangi, J. - The petitioners have filed this application seeking to quash letter dated 27.01.2016 in Annexure-8, by which the grievance of the petitioners, with regard to allowing them to continue on regular basis has been rejected. They also seek for direction to the opposite Decided on 10th April, 2019 parties to modify the appointment orders dated 11.01.2016 and 22.01.2016 in Annexure-6 series conferring regular status by extending all consequential benefits from the date of their initial appointment. 2. The factual matrix of the case, in hand, is that all the petitioners are the local self government diploma holders and eligible to be considered for employment in LFS cadre posts under local bodies. Earlier, some diploma holders had approached this Court by filing OJC No.5379 of 2000 seeking direction to the authorities to consider their candidature for the post of Jr. Assistant in LFS cadre relaxing the age limit. Thereafter, a selection board was constituted and considering the eligibility and suitability of the candidates sponsored by the employment exchange, a panel of 181 persons was prepared and while preparing the panel, the selection board has specifically indicated that the currency of the panel will remain valid till the entire list is exhausted. The said writ petition was disposed of vide order dated 05.12.2007, considering the counter affidavits filed by opposite parties no.1 and 2 therein, directing the State Government in Urban and Housing Development Department to take steps in terms of the affidavit and complete the entire exercise within a period of three months. But no effective steps were taken by the government except publishing the result of the selection. 3. Thereafter, the petitioners approached this Court by filing CONTC No.696 of 2008 and during pendency of such application, the opposite parties offered regular appointment to 27 nos. of selected candidates and abandoned further appointment awaiting concurrence from the Finance Department. The said contempt application was disposed of, vide order dated 03.03.2011, directing the Secretary, Housing and Urban Development Department and Secretary, Finance Department to take a decision and implement the same within a period of two months from the date of communication of the order. of selected candidates and abandoned further appointment awaiting concurrence from the Finance Department. The said contempt application was disposed of, vide order dated 03.03.2011, directing the Secretary, Housing and Urban Development Department and Secretary, Finance Department to take a decision and implement the same within a period of two months from the date of communication of the order. Since no action was taken, the petitioners filed CONTC No.1070 of 2011 alleging non-compliance of the order passed by this Court in OJC No.5739 of 2000 and in CONTC No.696 of 2008 and this Court, vide order dated 25.07.2012, disposed of the said contempt application basing on the undertaking submitted by the department. 4. Again appointment orders were issued by the opposite parties on 14.04.2012 offering appointment to 40 candidates, vide order dated 24.09.2012, and after giving last appointment on 24.09.2012, further appointment was abandoned by the department. Challenging such abandonment of select list, some of the petitioners approached this Court by filing W.P.(C) No.25634 of 2012 and this Court, vide order dated 19.06.2015, disposed of the said writ petition with a direction to the department to offer appointment to the petitioners within a period of one month from the date of order. In spite of specific direction, no action has been taken. However, on receipt of notice on contempt application, the petitioners were called upon to attend the counselings and vide office order dated 11.01.2016 appointment letters were issued in respect of 43 persons and vide order dated 22.01.2016 in respect of 4 candidates on contractual basis. Hence this application 5. Mr. S.K. Ojha, learned counsel for the petitioners contended that the petitioners are working under the local bodies of the government and are eligible to be considered for employment under LFS cadre posts. Earlier, they had approached this Court by filing OJC No.5379 of 2000 seeking direction to the authorities to consider their candidature for the post of Jr. Assistant in LFS cadre by relaxing age limit. During pendency of such writ petition, the selection board was constituted and considering the eligibility and suitability of the candidates sponsored by the employment exchange, a panel of 181 candidates was prepared. Assistant in LFS cadre by relaxing age limit. During pendency of such writ petition, the selection board was constituted and considering the eligibility and suitability of the candidates sponsored by the employment exchange, a panel of 181 candidates was prepared. Out of the said list, though regular appointment was given to some of the candidates, but the petitioners have been discriminated by giving contractual appointment on the ground that in the year 2013 government has formulated a regulation with regard to regularization of service, which is the subject-matter of challenge before this Court in the present application. 6. Mr. B. Senapati, learned Addl. Government Advocate contended that the persons those who have been given regular appointment from the select list, they have been given such benefit because of the availability of regular vacancy. So far as the petitioners are concerned, regular vacancies are not available, thereby they have been given contractual appointment subject to availability of regular vacancy in future and following the Regulation, 2013 their services will be regularized. 7. This Court heard Mr. S.K. Ojha, learned counsel for the petitioners; Mr. B. Senapati, learned Addl. Government Advocate and perused the record. Pleadings having been exchanged, with the consent of learned counsel for the parties, this writ petition is being disposed of finally at the stage of admission. 8. Considering the contention raised by learned counsel for the parties and after going through the records, it appears that the petitioners had approached this Court by filing OJC No.5379 of 2000 seeking direction to the authorities to consider their candidature for the post of Jr. Assistant in LFS cadre relaxing the age limit. The said writ petition was disposed of vide order dated 05.12.2007 directing opposite parties no.1 and 2 therein to take steps in terms of the affidavit filed by them and complete the entire exercise within a period of three months from the date of communication of the order. As per the-affidavit filed by opposite party nos.1 and 2, it has been indicated that the names of the petitioners have been sponsored and the interview of LSGD holders for the post of Jr. As per the-affidavit filed by opposite party nos.1 and 2, it has been indicated that the names of the petitioners have been sponsored and the interview of LSGD holders for the post of Jr. Assistant under LFS cadre has already been conducted to enable the Housing and Urban Development Department to prepare a merit list and after finalization of the same, suitable steps will be taken for appointment of selected candidates, including the petitioners, against the available vacant posts of Jr. Assistant against direct recruitment quota taking into ratio 50:50 as per the provisions of the OLFS Rules, 1975. Against the regular vacancies from the list which had been prepared on 27.01.2016, the selected candidates have been given regular appointment. But due to non-compliance of the order dated 05.12.2007, the petitioners filed CONTC No.696 of 2008 and during pendency of the said application, though 27 nos. of selected candidates have been given regular appointment, so far as others are concerned, the appointment was abandoned awaiting concurrence from the Finance Department. This Court, while disposing of the contempt application on 03.03.2011, directed the Secretary, Housing and Urban Development Department and Secretary Finance Department to take a decision and implement the same within a period of two months from the date of communication of the order. As no action was taken, CONTC No.1070 of 2011 was filed for non-compliance of the order passed by this Court. The said contempt application has been disposed of by this Court, vide order dated 25.07.2012, basing on the undertaking submitted by the Department. As a consequence, further appointment orders have been issued on 14.04.2012 offering appointment to 40 candidates; vide office order dated 24.09.2012. 9. After giving last appointment on 24.09.2012, the further appointment was abandoned by the department. Challenging the said abandonment of the select list, some of the petitioners approached this Court by filing W.P.(C) No.25634 of 2012, wherein opposite parties raised objection stating that no further appointment could be given to the selected candidates after lapse of so-many years and also took a stand that while disposing of the contempt application this Court indicated that no further appointment is to be given, after appointing 40 persons, against the available vacancies. In one hand, the department concerned has objected to the prayer of the petitioners and denied any further appointment from the panel, and on the other hand, issued further appointment orders, vide office order dated 13.02.2013, appointing 14 persons, vide office order dated 27.04.2013, appointing 33 persons, vide office order dated 08.08.2013 offering appointment to 5 persons and vide office order dated 28.02.2014 another 20 persons were appointed on regular basis as Jr. Assistant in various ULBs. Such appointment orders were issued indicating to be made pursuant to the affidavit filed before this Court in CONTC No. 1070 of 2011. 10. It is of relevance to note, W.P.(C) No.25634 of 2012 filed by some of the petitioners was allowed vide judgment dated 19.06.2015 and direction was issued to the department to offer appointment to the petitioners within a period of one month from the date of judgment and also in paragraph-8 of the said judgment this Court deprecated the action of the department with the following words:- "Under the circumstances and law referred to herein above, this Court finds force in the submission of petitioners and observes that the action of the opposite parties is not only arbitrary but also unconstitutional and thus while allowing the writ petition directs the opposite party nos.1 and 2, i.e., the Commissioner-cum-Secretary to Government of Odisha, Housing and Urban Development Department and Director, Municipal Administration-cum-Addl. Secretary to Government of Odisha, Housing and Urban Development Department respectively to appoint the petitioners in the vacant post of Junior Assistants in the L.F.S. Cadre. The appointment shall be made as expeditiously as possible, preferably within a period of one month hence..." 11. Since no action was taken, contempt proceeding was initiated and on receipt of the notice, the petitioners were called upon to attend the counselling and finally vide office order dated 11.01.2016 the department issued appointment order in respect of 43 candidates and again on 22.01.2016 appointment orders were issued in favour of 4 candidates. Interestingly, these 47 persons were issued with offer of appointment on contractual basis without giving them regular appointment by the department. Reasons for giving such contractual appointment has not been indicated anywhere. Therefore, the petitioners have approached this Court by filing the present application stating that when similarly situated persons have been given regular appointment, there is no justification to give contractual appointments to these 47 persons. 12. Reasons for giving such contractual appointment has not been indicated anywhere. Therefore, the petitioners have approached this Court by filing the present application stating that when similarly situated persons have been given regular appointment, there is no justification to give contractual appointments to these 47 persons. 12. Pursuant to notice, opposite parties have filed counter affidavit, wherein it has been stated that due to commencement of Group-C and Group-D Posts (Contractual Appointment) Rules, 2013, which came into force w.e.f. 12.11.2013, appointment orders have been issued to the petitioners on contractual basis and on completion of six years, their services would automatically be regularized. Since other appointments from the panel of 181 candidates have been issued prior to the issuance of the notification, those candidates have been given regular appointment. Thereby, no illegality or irregularity has been committed by the authority. 13. The justification shown in the counter affidavit cannot be accepted in view of the fact that admittedly the petitioners belong to one select list, out of which some of the candidates have been appointed on regular basis whereas the petitioners have been appointed on contractual basis, which itself amounts to arbitrary, discriminating and unreasonable exercise of power by the authority violate Article 14 of Constitution of India. The petitioners have time and again approached this Court ventilating their grievance pointing out the apathetic attitude of the authority concerned in not giving regular appointment and causing harassment to them for no reasons. More particularly, the opposite party-State authority has lost sight of the fact that if the selection was done prior to promulgation of Rules, 2013 and on that basis select list was prepared and appointments were given, in the midst of continuance of the said list, in view of promulgation of a new rule i.e., Rules, 2013 the rule of game cannot be changed. Even if 2013, Rules came into force, the same will not change the nature and character of the list already prepared and given effect to prior to commencement of the Rule 2013. Furthermore, due to delay and laches on the part of the authority, the petitioners cannot be allowed to suffer because similarly situated persons have already been given employment on regular basis for the said list of 181. 14. Furthermore, due to delay and laches on the part of the authority, the petitioners cannot be allowed to suffer because similarly situated persons have already been given employment on regular basis for the said list of 181. 14. Similar question had come up consideration before this Court in W.R(C) No. 14856 of 2014 (Abhishek Dey and others vs. District and Sessions Judge, Mayurbhanj and another), disposed of on 04.03.2016 and this Court, relying upon the judgments of the apex Court in Union of India vs. P C. Mishra, (1994) Sup 1 SCC 39 and Government of A.P. vs. Syed Yousuddin Ahmed, (1997) 7 SCC 24 , held that the terms of the appointment of the persons cannot be modified in the midst by promulgating rules and ultimately quashed the said terms of appointment of the petitioners in the said case. 15. Applying the law laid down by the apex Court as well as this Court to the present context, the appointments given to the petitioners on contractual basis cannot sustain in the eye of law, as similarly situated persons from the very same select list, have already been given regular appointment. Thereby, the orders of appointment given to the petitioners deserves to be modified from contractual to regular. 16. The opposite parties are accordingly directed to modify the orders of contractual appointments of the petitioners under Annexure-6 series to regular appointment from the date of their initial appointment and grant all consequential service and financial benefits attached to the said post, as due and admissible in accordance with law, as expeditiously as possible, preferably within a period of four months from the date of passing of this judgment. With the above observation and direction, the writ petition stands disposed of. There shall be no order as to costs.