Pralipsa Rout v. Odisha University Of Agriculture And Technology
2020-05-12
P.PATNAIK
body2020
DigiLaw.ai
JUDGMENT P.Patnaik, J. - In the accompanied writ petition, the petitioner has inter alia prayed for direction to opposite parties to treat the appointment as regular with regular scale of pay of Rs.9300/-Rs.34800/- + G.P. Rs.4,200/- with effect from 19.09.2014 as mentioned in the Advertisement and further the petitioner has prayed for quashing of the re-engagement order vide Annexure-6 with all consequential service benefits. 2. The factual matrix in a nutshell is that pursuant to the Advertisement dated 30.11.2013 vide Annexure-2 for recruitment to the post of Junior Engineer (Civil), the petitioner applied for the said post having requisite qualification and experiences. Seven candidates including the petitioner appeared before the statutory Selection Committee for one unreserved vacancy. The petitioner having stood first among the lot, her case was recommended for appointment and accordingly, she was appointed as per order dated 19.09.2014 under Annexure-4. Though the petitioner was appointed through a regular selection process, but in the appointment order, it was mentioned that the appointment would be on contractual basis. Being aggrieved by such terms of appointment, the petitioner submitted representation on 30.07.2015 vide Annexure-5 and the opposite parties have passed the order on 01.12.2015 vide Annexure-6 modifying the earlier order at Annexure-4 and an order of re-engagement vide Annexure-6 has been issued which is impugned in this writ application. Being aggrieved and dissatisfied with the impugned order under Annexure-6, the petitioner has been constrained to approach this Court invoking the extraordinary jurisdiction under Article 226 of the Constitution of India. 3. Controverting the averments made in the writ petition, a counter affidavit has been filed on behalf of opposite party nos.1 & 2 wherein it has been submitted that keeping in view of the work load of the Directorate of Physical Plants and as per Resolution No. 3834 of the Board of Management, OUAT, an Advertisement was made to recruit one Junior Engineer in Civil (UR Category) vide letter no. 43095/UAT dated 30.11.2013 with minimum qualification of Diploma in Civil Engineering with minimum six years experience in any Govt. Organization. Therefore, a corrigendum was published by the OUAT under Annexure-2 of the writ petition, in which the Advertisement dated 30.11.2013 was modified and the candidates are required to follow G.O. No. 32010/GA, dated 12.12.2013. Further it has been submitted that the engagement of the petitioner was purely on contractual basis as per Notification No. 32010/GA dated 12.11.2013 of the Govt.
Therefore, a corrigendum was published by the OUAT under Annexure-2 of the writ petition, in which the Advertisement dated 30.11.2013 was modified and the candidates are required to follow G.O. No. 32010/GA, dated 12.12.2013. Further it has been submitted that the engagement of the petitioner was purely on contractual basis as per Notification No. 32010/GA dated 12.11.2013 of the Govt. in General Administration Department, wherein it is stipulated that all the existing vacancies on the date of commencement of the above notification as well as future vacancies shall be deemed to have been converted to contractual posts in notification dated 12.11.2013 as annexed under Annexure-B/1. Therefore the engagement of the petitioner was on contractual basis. Further it has been submitted that since the Government in its notification under Annexure-B/1 has categorically converted the existing vacancies to contractual posts, so the OUAT cannot deviate the same. Though the petitioner has made representation for regular appointment as per Advertisement under Annexure-2, but the same deserves no consideration as per Notification under Annexure-B/1 which says a regular appointment will be made on the date of satisfactory completion of six years of contractual service. But the petitioner got engagement only on 19.09.2014 on contractual basis, so her engagement cannot be regularized before completion of six years. The claim made by the petitioner to count her previous service rendered by her on outsourcing basis is inappropriate and gross violation of Government Rules. 4. A rejoinder to the counter affidavit has been filed on behalf of petitioner wherein it has been submitted that as per Clause (1) of Para-10 of Annexure-A/2 notification, on the date of the satisfactory completion of 6 years of contractual service, they shall be deemed to have been regularly appointed, since 6 years contractual service is required for regular appointment, and the selection in question was for regular appointment, the Advertisement required minimum six years experience in the field of Civil Engineering. It is clear from Annexure-3 that the petitioner had worked for more than seven years in the field of Civil Engineering. The petitioner was selected by a statutory Selection Committee for appointment in a regular scale of pay pursuant to open Advertisement. Therefore, treating petitioner s appointment as contractual appointment is wrong. Further, it has been submitted that the notification at Annexure-A/2 replied upon by the opposite parties relates to recruitment to Group C and Group D posts.
The petitioner was selected by a statutory Selection Committee for appointment in a regular scale of pay pursuant to open Advertisement. Therefore, treating petitioner s appointment as contractual appointment is wrong. Further, it has been submitted that the notification at Annexure-A/2 replied upon by the opposite parties relates to recruitment to Group C and Group D posts. It is clear from the order of the Government in G.A. Department dated 08.07.2013 vide Annexure-7 that the scale of pay of Rs.9300/- Rs.34,800/- in pay band plus G.P. Rs.4,200/- mentioned in Annexure2, the Advertisement relates to Group B post service. Therefore, Annexure-A/2 to the counter is not applicable. The reply affidavit of the opposite party nos.1 & 2 to the rejoinder has been filed wherein the Odisha Group B post (Contractual appointment) Rules, 2013 has been annexed as Annexure-C/1 and the said Rules was notified vide Notification No. 1147 dated 17.01.2014 in the Odisha Gazettee. Further it has been submitted that any appointment made in a regular post has to be in consonance with the aforesaid Rules, 2013, as such, only after six years of continuous service, the appointee is deemed to be regularized. Further it has been submitted that Annexure-B/1 has been filed inadvertently by oversight. It has also been submitted that the petitioner has never objected to her letter of appointment i.e. office order dated 19.09.2014. In the said appointment letter, it is specifically stated that the appointment is on contractual basis. Clause 5 of the said Office Order clearly stipulates that the petitioner shall not have any right to claim for regular appointment and not for further continuance under any of the Office/ Scheme / Department of OUAT. Therefore, the petitioner is bound by the conditions of her appointment and is only legally entitled to be regularized under the Contractual Rules, 2013 under Annexure-C/1. 5. Mr. G.A.R. Dora, learned Senior Counsel on behalf of petitioner strenuously urged that the memorandum vide Annexure-1 was placed before the Board of Management to consider and approve for appointment of one Junior Engineer (Civil) on regular scale of pay in the Directorate of Physical Plants against the existing vacancy. Accordingly, the Advertisement was published and the petitioner along with the other eligible candidates appeared and was selected.
Accordingly, the Advertisement was published and the petitioner along with the other eligible candidates appeared and was selected. In the Advertisement, six years of experience in the field of Civil Engineering in any Government Organization was insisted upon meaning thereby the person having six years of experience was eligible for consideration of appointment. Therefore, the petitioner is deemed to have been appointed on regular basis with effect from 19.09.2014. Learned Senior Counsel on behalf of petitioner further submitted that the terms and conditions as per impugned office order dated 01.12.2015 vide Annexure-6 cannot be made applicable to the petitioner s case, since she was appointed on regular basis having more than six years of experience. 6. Mr. Avijit Pal, learned counsel for the opposite parties, OUAT submitted with vehemence that the corrigendum which was issued on 21.12.2013 to the Advertisement dated 30.11.2013 refers to Odisha Group B post (Contractual appointment) Rules, 2013 and as per the Rule 5 shall be referred to recruitment procedure and Rule 9 envisages conditions of service and as per the terms and conditions the person appointed under sub-rule (2) of Rule 5 against the contractual posts shall continue on contractual basis for a period of six years. Further learned counsel for the OUAT submitted that the appointment order dated 19.09.2014 under Annexure-4 has been issued after coming into force of the Odisha Group B post (Contractual appointment) Rules, 2013 which was published in Odisha Gazettee notification dated 17.01.2014 vide Annexure-C/1. Learned counsel for the opposite parties, OUAT has also referred to Clause 5 of the office order under Annexure-4 wherein it has been mentioned that the contractual engagement shall not confer any right or claim for regular appointment not for further continuance under any of the office/scheme/deptt. of OUAT. No claim for any service benefits from the contractual engagement shall be admissible. Further, learned counsel for OUAT submitted that there can be no estoppels against the statute and the corrigendum which was issued on 21.12.2013 as part and parcel of the Advertisement and Odisha Group B post (Contractual appointment) Rules, 2013 which was published on 17.01.2014, prior to the appointment of the petitioner. 7.
Further, learned counsel for OUAT submitted that there can be no estoppels against the statute and the corrigendum which was issued on 21.12.2013 as part and parcel of the Advertisement and Odisha Group B post (Contractual appointment) Rules, 2013 which was published on 17.01.2014, prior to the appointment of the petitioner. 7. After hearing of the learned counsel for the respective parties and after having bestowed my thoughtful consideration to the rivalised submission advanced by the learned counsel for the parties and on perusal of records, there is absolutely no doubt that the State Government has formulated the Rules for recruitment, regularization of employees against the sanctioned post that the concurrence of the Finance Department and the Odisha Group B post (Contractual appointment) Rules, 2013 which was published by the Odisha Gazettee on 17.01.2014 on the date of satisfactory completion of six years of contractual service under Rule 9, the appointee shall be deemed to have been regularly appointed. In the corrigendum dated 21.12.2013 under Annexure-2, the Govt. in General Administration Department Notification No. 32010/GA dated 12.11.2013 recruited to Odisha Group B post (Contractual appointment) Rules, 2013 has been referred to. Though the petitioner s post comes under Group B and Odisha Group B post (Contractual appointment) Rules, 2013 was published on 17.01.2014 in the Odisha Gazettee. Therefore, on the date of appointment Odisha Group B post (Contractual appointment) Rules, 2013 was in vogue. Therefore, though the petitioner was under a regular process of selection but in view of the aforesaid Rules, the appointment of the petitioner was made on contractual basis. 8. In the back drop of the peculiar facts and circumstances of the case, the prayer of the petitioner to treat her as regular appointee with effect from 19.09.2014 vide Annexure-4 cannot be acceded to and the petitioner shall be deemed to be treated as a regular appointee on completion of six years of experience in the field of Civil Engineering. 9. Accordingly, the writ petition stands disposed of.