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2019 DIGILAW 588 (ORI)

Gadei Swain v. State of Orissa

2019-09-17

B.R.SARANGI

body2019
JUDGMENT : Dr. B.R. Sarangi, J. 1. The petitioner, by means of this writ application, seeks to quash order dated 24.10.2011 passed by the Director, Higher Education, Orissa in Annexure-3 and issue direction to the opposite parties to regularize his services and grant all consequential benefits, as due and admissible to him, in accordance with law. 2. This is the second journey of the petitioner to this Court for the self same relief. The petitioner earlier approached this Court by filing W.P.(C) No. 21745 of 2010, which was disposed of vide order dated 25.08.2011 directing opposite party No. 3, namely, Director, Higher Education, Orissa to take a decision on the request of opposite party No. 4-Principal, S.C.S. (Autonomous) College, Puri within a period of two months from the date of communication of that order. In compliance thereof, the order dated 24.10.2011 in Annexure-3 has been passed, that it is not possible to absorb the petitioner as Jr. Clerk in violation of Orissa Ministerial Service Rules, 1985. 3. The fact of the case is that the petitioner was engaged by the Principal, S.C.S. (Autonomous) College, Puri on daily wage basis to work as Jr. Clerk-cum-Typist in the year 1995 and is continuing as such till date. The Principal, S.C.S. (Autonomous) College, Puri in his letter dated 31.07.2010 requested the Director Higher Education, Orissa to instruct him to take follow up action for regular absorption of the D.L. workers. Since no action was taken, the petitioner approached this Court by filing W.P.(C) No. 21745 of 2010, which was disposed of on 21.08.2011 directing the Director to take a decision on the request of the Principal, S.C.S. (Autonomous) College, Puri in his letter dated 31.07.2010. Accordingly, the Director passed the order oh 24.10.11 in Annexure-3 stating inter alia that after promulgation of Orissa Govt. Colleges Ministerial Service (Method of Recruitment and conditions of Service) Rules, 1999 there is no post of Jr. Clerk-cum-Typist in the Ministerial cadre available. The Junior Clerk is the base level post in the Ministerial Cadre of Govt. Colleges. Therefore, recruitment to that post is to be made through direct recruitment by means of competitive examination conducted by the Board of Examiners consisting of the Collector of the district as, Chairman and the other Heads of District office nominated by the Chairman of Members. The Principal has no authority to recruit/appoint candidates as Jr. Clerk-cum-Typist. 3.1. Colleges. Therefore, recruitment to that post is to be made through direct recruitment by means of competitive examination conducted by the Board of Examiners consisting of the Collector of the district as, Chairman and the other Heads of District office nominated by the Chairman of Members. The Principal has no authority to recruit/appoint candidates as Jr. Clerk-cum-Typist. 3.1. It is further stated that the Government in Finance Department issued office memorandum No. 10954/F dated 14.03.2001, where the authorities have taken measures imposing ban on filling up of the base level vacant posts meant for direct recruitment and instructed for abolition of 50% of base level vacant posts as on 31.03.2001 on 20% of total base level posts in any grade. In case there is absolute necessity for filling up of base level vacant posts in connection with enforcing collection of revenue of enforcing law and order on meeting the basic needs of Govt. or other Govt. organizations like security and like it can be filled up only with the prior concurrence of Finance Department. As the said office memorandum is still in force, the Principal, S.C.S. (Autonomous) College, Puri, vide letter dated 31.07.2010, had already been informed by the directorate letter No. 38033 dated 01.10.2010 that in view of Finance Department memorandum dated 14.03.2001, it is not possible to fill up vacant Group-C and Group-D posts. Therefore, after obtaining prior concurrence of the Finance Department to fill up the vacant posts of Jr. Clerks in Govt. Colleges, recruitment to these posts will be made as per Orissa Ministerial Services (Method of Recruitment to the post of Jr. Clerks in the District Office) Rules, 1985. Thereby, rejected the claim of the petitioner. Hence this application. 4. Mr. P. Jena, learned counsel for the petitioner contended that the grounds stated in the order itself cannot sustain in view of the fact that the petitioner was engaged in the year 1995 and by that time the Orissa Govt. Colleges Ministerial Service (Method of Recruitment and Conditions "of Service) Rules, 1999 had not seen the light of the day. It is further contended that office memorandum issued by the Finance Department dated 14.03.2001, on which reliance has been placed, has got prospective 'application and as such, the same cannot be given effect to' in case of the petitioner. Colleges Ministerial Service (Method of Recruitment and Conditions "of Service) Rules, 1999 had not seen the light of the day. It is further contended that office memorandum issued by the Finance Department dated 14.03.2001, on which reliance has been placed, has got prospective 'application and as such, the same cannot be given effect to' in case of the petitioner. Thereby, the order of rejection passed in Annexure-3 cannot sustain in the eye of law to substantiate his case, he has relied upon the judgments of this Court in Prafulla Kumar Sahoo v. State of Orissa, 2003 (I) OLR 91 and Rajendra Prasad Singh v. State of Orissa, 2001 (II) OLR 683 . 5. Mr. D.K. Pani, learned Addl. Standing Counsel for the State reiterated the grounds of rejection of the claim made by the petitioner, as have been stated in the order impugned, and further, contended that due to non-availability of any record in the College with regard to the process of selection and appointment of the petitioner as Junior Clerk-cum-Typist and the petitioner having been paid on daily wage basis, the claim of the petitioner for regularization of his services against the sanctioned post of Junior Clerk-cum-Typist is not justified. It is also contended that the petitioner was not appointed against the vacant post of Junior Clerk-cum-Typist or any temporary/ad hoc appointment, rather the petitioner had been engaged on daily wage basis to manage the day to day official work due to shortage of staff, for which he has been paid from available fund of college with discontinuity. Thereby, seeks for dismissal of the writ application. 6. The facts delineated above are not in dispute. One of the grounds, on which the order impugned in Annexure-3 has been passed, is that due to promulgation of Orissa Govt. Colleges Ministerial Service (Method of Recruitment and Conditions of Service) Rules, 1999 where there is no post of Junior Clerk-cum-Typist available and as such, the same is to be filled up by way of direct recruitment by means of competitive examination conducted by the Board of Examiners consisting of the Collector of the district as Chairman and the other Heads of District Office nominated by the Chairman of Members Admittedly, the petitioner was engaged in the year 1995 on daily wage basis. By that time the Rules, 1999 had not seen the light of the day. By that time the Rules, 1999 had not seen the light of the day. Therefore, the process of recruitment, as prescribed in the said Rules, could not have followed in case of the petitioner. More so, the said Rules have no retrospective application. But fact remains that the petitioner has been rendering service w.e.f. 1995. Therefore, the contention raised in the order impugned in Annexure-3 cannot sustain in the eye of law. 7. Coming to the applicability of office memorandum issued by the Finance Department dated 14.03.2001, that cannot supersede the claim for absorption made by the petitioner, because it has come into force on 14.03.2001, being an executive instruction, may be applicable prospectively. Similar question had come up for consideration before this Court in Prafulla Kumar Sahoo (supra). In paragraph-11 of the said judgment, this Court observed as follows: "11. Yet, by a circular dated 2.2.2000 annexed to the writ petition as Annexure-7, the Government of Orissa in the Finance Department has imposed some restrictions on the claims to eligibility or admissibility to grant-in-aid. The relevant portion of the said circular dated 2.2.2000 of the Finance Department, Government of Orissa, is quoted herein below: XX XX XX 2. As a medium term fiscal reform, steps have already been taken to Abolish 50% of the existing vacancies at the base level posts under State Government establishments. Restrictions have also been imposed not to fill up any vacant post without prior concurrence of Finance Department. But it has been noticed that in most of the aided institutions the vacancies are being filled up and there is increase in demand for grant-in-aid. 3. It has, therefore, been decided that the restrictions as indicated below should be made applicable to the aided institutions under your administrative control. "(i) All the base level vacancies in the non-teaching posts as on 1.1.2000 shall stand abolished immediately and Government shall not pay grant-in-aid henceforward in respect of those posts stand abolished; (ii) The non-teaching posts in the aided institutions that may fall vacant with effect from 1.2.2000 onwards due to retirement/resignation/death or any other reason, shall not be filled up and those posts falling vacant would stand automatically abolished. State Government shall not pay any grant-in-aid in respect of those vacant posts thus abolished. State Government shall not pay any grant-in-aid in respect of those vacant posts thus abolished. (iii) The existing vacancies and also future vacancies in the teaching posts shall not be filled up without specific approval of Government with due concurrence of Finance Department." The aforesaid Circular of the Finance Department is the basis of the decision in the impugned order dated 9.8.2000 of the Government of Orissa, Department of Higher Education rejecting the case of the petitioner for approval and grant-in-aid as would be clear from the very language of the impugned order dated 9.8.2000 quoted above. As the Finance Department, Government of Orissa, had no jurisdiction to impose restrictions by an executive order on the claim of any educational institution or any member of its teaching or non-teaching staff to grant-in-aid, the impugned order dated 9.8.2000 of the Government of Orissa, Higher Education Department which is based on such executive order of the Finance Department, Government of Orissa is ultra vires Sub-section (4) of Section 7-C of the Orissa Education Act and the Grant-in-Aid Order, 1994 and is also without jurisdiction and is liable to be quashed." 8. In Rajendra Prasad Singh (supra), this Court held that notification issued on November 11, 1999; which came into force on 17th December, 1999 prescribing stipulation for passing Accounts Examination as condition precedent for promotion to post of U.D.C. and Head Clerk, the petitioner in the said case being an employee of an aided Government College, was promoted to the post of U.D.C. in 1980 and Head Clerk in 1986. Therefore, restriction of passing Accounts examination is not applicable to his case. In view of such position, if the petitioner has been engaged in the year 1995 on daily wage basis and discharging his duty till date, the office memorandum which has been issued by the Finance Department on 14.03.2001 may have a prospective application, and is not applicable to the present case. 9. In the above view of the matter, this Court is of the considered opinion that while passing the order impugned in Annexure-3 dated 24.10.2011, the Director has lost sight of the fact in proper perspective. Therefore, the impugned order dated 24.10.2011 in Annexure-3 cannot sustain in the eye of law. The same is liable to be quashed and is hereby quashed. Therefore, the impugned order dated 24.10.2011 in Annexure-3 cannot sustain in the eye of law. The same is liable to be quashed and is hereby quashed. The matter is remitted back to the Director, Higher Education, Orissa for reconsideration of the matter in accordance with law as expeditiously as possible, preferably within a period of two months from the date of communication of this order, keeping in mind the observations made by this Court. 10. The writ application is thus disposed of. However, there shall be no order as to cost.