Orissa High Court
Secretary vs State Of on 19 February, 2021
W.A. No. 261 of 2020
12. 19.2.2021 W.A.Nos.261,234,247,262,280,293,331,332,336,337,338,
339,340,341,342,343,344,345,386,387,390,391,392,393,
394,395,396,397,420,421,422,452,453,455,456,457,458,
459,460,461,462,463,677,678,702,705,741 & 742 of 2020.
These matters are taken up through video
conferencing.
2. Heard learned Senior Advocates for the appellants,
learned Advocate General assisted by learned Additional
Government Advocate for the State-Respondents and learned
counsel for the interveners.
3. Since the issues involved in all these Writ Appeals are
one and the same, these Writ Appeals are taken up together and
disposed of by this common order.
4. All the appellants are the appointees pursuant to the
common advertisement made in the year 2013, for Ad hoc
appointment for the post of Junior Lecturers (+2) and Lecturers
(College Branch) (+3) in different Disciplines of Junior Colleges and
Degree Colleges of Odisha respectively under the Higher Education
Department. Some of the appellants are appointed as Lecturers
(College Branch) (+3) in different disciplines under Degree Colleges
of Odisha and some of the appellants are appointed as Junior
Lecturers (+2) in different disciplines of Junior Colleges. All are
under the Higher Education Department. Lecturers in College
Branch (+3) are Group-'A' posts where as Junior Lectures (+2) are
Group-'B' posts.
5. For better appreciation, the 1st Case, i.e. Writ Appeal
No. 261 of 2020 is taken as the leading case so far as Degree
Arun
College Lecturers are concerned. The facts narrated by the
2
appellant in the said writ appeal is as follows:
6. The appellant in W.A. No. 261 of 2020 had filed a writ
application bearing W.P.(C) No. 9127 challenging the order dated
14.10.2019 passed by opposite party no.1-Deputy Secretary to
Government, Higher Education Department, wherein it has been
indicated as follows:-
"The term of Ad hoc Lecturers who were engaged in
different Government Degree/ Autonomous/ Model Degree
Colleges with consolidated remuneration of Rs.48,600/- P.M. is
hereby extended till 31.05.2020 (A.N.) with the following
conditions.
i) This will be the last extension and their ad hoc
engagement shall be automatically terminated on
31.05.2020 (A.N.)
ii) The present remuneration structure and other service
conditions shall remain unchanged."
7. According to the writ petitioner, for the last time the
recruitment of the lecturers (College Branch) was made by Odisha
Public Service Commission way back in the year 1991. The
Director of Higher Education, Orissa floated an advertisement for
ad hoc appointment for the post of Junior Lecturers (+2) and
Lecturers (College Branch) (+3) in different Disciplines of Junior
Colleges and Degree Colleges of Odisha respectively under the
Higher Education Department, after a lapse of 22 years, in the
year 2013 as there was shortage of faculties due to which higher
education in the State was adversely affected. The State
Government decided to recruit ad-hoc Lecturers with approval of
the Chief Minister and concurrence of Finance Department.
3
Pursuant to such advertisement, the petitioner having the
requisite qualification and was fulfilling all the eligibility criteria
applied for the post of Lecturer in Sanskrit in Degree Colleges. A
selection committee was constituted taking the senior officers
including the Director, Higher Education as the members. Such
selection committee prepared the provisional merit list and the
final selection list. In the said final selection list the petitioner was
selected for appointment as Lecturer in Sanskrit. Thereafter, the
opposite party no.2 on 19.06.2014 issued appointment order in
favour of the petitioner and she was appointed as the Lecturer in
Sanskrit in D.D.(Auto) College, Keonjhar in the existing vacancy in
the scale of pay of RS.15600-39,100/- with Academic Grade Pay of
Rs.6,000/-. Accordingly the petitioner joined the post on
04.07.2014. The service of the petitioner was extended on yearly
basis and she was continuing and discharging her duty to the
utmost satisfaction of the higher authorities. Though the petitioner
was enjoying the scale of pay as has been mentioned in the
advertisement for a Degree Lecturer, but in an arbitrarily and
whimsical manner, in the year 2017, opposite party no.1 recalled
the said pay structure and extended consolidated remuneration of
Rs.48,000/- for the same post. On 23.06.2018, a letter was
communicated by the Additional Secretary to Government,
Department of Higher Education to the Principal Secretary to
Government, Finance Department, Principal Secretary to
Government, Law Department, Principal Secretary to Government
G.A. Department and Director Higher Education to have a meeting
on 26.06.2018 with regard to regularization of services of Ad hoc
Lecturers/ Ad hoc Jr. Lecturers engaged in Government Degree
4
and Junior Colleges. However, instead of taking any step for
regularization of such Ad hoc Lecturers, opposite party no.1 issued
an order on 14.10.2019 indicating therein that the same will be
the last extension and their Ad hoc engagement shall be
automatically terminated on 31.05.2020. Such order was
challenged by the present petitioner in W.P.(C) No.9127 of 2020
along with the prayer for regularization of his service. However, on
06.02.2020, Odisha Public Service Commission issued
Advertisement No. 18 of 2019-20 for Recruitment to the post of
Lecturers in different disciplines in Group-A of Odisha Education
Service (College Branch) in Government Degree Colleges under
Department of Higher Education.
8. The Hon'ble Single Judge, disposed of W.P.(C) No.
9127 of 2020 vide order dated 06.05.2020 with the following
observation/direction:-
"06.05.2020 W.P.(C) No. 9127 of 2020
xxx xxx xxx
In course of hearing, learned counsel appearing
for the petitioner states that highlighting the grievance,
the petitioner has made representation to opposite
party no.1 vide Annexure-10 and direction be given to
consider the same within a stipulated time, to which
learned Additional Government Advocate has no
objection.
In view of the aforesaid limited grievance of the
petitioner, without expressing any opinion on the
merits of the case, this Court disposes of the writ
petition directing opposite party no.1 to take a decision
5
on the representation filed by the petitioner under
Annexure-10 and pass appropriate order in accordance
with law within a period of three months from the date
of production of authenticated/certified copy of this
order."
9. The writ petitioner of W.P.(C) No.9127 of 2020
challenged such order of the Hon'ble Single Judge by filing W.A.
No. 261 of 2020 since the petitioner was going to be terminated on
31.05.2020 and no protection was extended by the Hon'ble Single
Judge, even till disposal of the representation. The writ petitioner
had also brought to the notice of the Court that in identical
matters, this Court has given protection to the employees. It is
brought to the notice of this Court that in some of the writ
petitions, the Hon'ble Single Judge also did not incline to interfere
with the same on the ground that the petitioner joined the post
accepting the conditions mentioned therein. In some of the writ
petitions, however, protection was extended to the petitioners. The
orders passed in all such writ petitions are under challenge in the
aforementioned Writ Appeals.
10. The Writ Appeal was taken up on 28.05.2020. The
Division Bench of this Court vide order dated 28.05.2020 passed
an interim order with reason and allowed the appellants to
continue till regularly selected candidates are made available
under the Rules, which is subject to further order of the Court.
11. Let us take the factual aspects of the 2nd Case, i.e.
W.A. No. 234 of 2020 as the leading case so far as Junior College
Lecturers are concerned. The facts narrated by the appellant in the
said writ appeal is as follows:
6
12. Pursuant to the self same advertisement made in the
year 2013, the appellant in W.A. No.234 of 2020 was also
appointed as a Junior College Lecturer and posted as such, at
Government Women's Junior College, Titilagarh. Her service was
also extended from time to time. Similarly though in the
advertisement made in the year 2013 a scale of pay was prescribed
for the Junior Lecturers, but arbitrarily and whimsically
Respondent No.1 in the year 2017 recalled such scale of pay and
extended the consolidated remuneration of Rs. 31,275/- in favour
of the appellant and similarly situated Junior Lecturers. Be that as
it may, while the appellant was so continuing, Respondent No.1
passed the office order dated 14.10.2019 as has been passed in
favour of Degree College Lecturers indicating therein that this will
be the last extension and their ad hoc engagement shall be
automatically terminated on 31.05.2020 (A.N.). The appellant
challenged such order in W.P.(C) No. 11408 of 2020. The Hon'ble
Single Judge dismissed the writ petition vide order dated
05.05.2020 by observing that once the petitioner joined on the
condition of appointment vide Annexure-7, she has no right to
challenge the same thereafter. Further in the event the petitioner
was not satisfied with the condition in Annexure-7, nothing
prevented her to challenge the same at the relevant point of time,
i.e. before her joining. Such order has been challenged in W.A. No.
234 of 2020.
13. An interim order was passed by this Court on
28.05.2020 in W.A. No. 261 of 2020 to the extent that the
appellant shall be allowed to continue in service on the same terms
and conditions, till regularly selected candidates are made
7
available under "the 2009 Rules".
14. It is worth mentioning here that no advertisement has
been made for filling up the post of Junior Lecturers as has been
made in the case of Degree College Lecturers in the year 2020.
Therefore, on 15.10.2020 an order was passed in W.A. No. 261 of
2020 after hearing the counsel for the OPSC that total number of
vacancies is 1100 and O.P.S.C. has only published advertisement
for 606 posts so far as degree colleges are concerned. The
appellants and interveners are only 111 persons holding the posts
pursuant to the interim order and no advertisement was issued in
respect of the +2 colleges (Group-B posts). Accordingly the interim
orders were allowed to continue.
15. Let us analyze the submissions made with regard to
Degree College Lecturers are concerned:-
Mr. B. Routray, learned Senior Advocate for the
appellants submits that the last recruitment of Lecturers (College
Branch) was made way back in the year 1991. After a long gap of
around 22 years, in order to cater to the needs of higher
education, the State Government under the Chairmanship of Chief
Secretary approved by the Chief Minister made a policy decision to
appoint ad hoc Lecturers in Government Colleges (College Branch
and Junior Lecturers). After concurrence of the Finance
Department and approval of Government, open advertisement was
made in the year 2013. In the said advertisement the vacancies
were indicated following the ORV Act and the eligibility criteria as
well as educational qualifications were fixed as per the norms
prescribed by the UGC. The appellants having brilliant academic
career and having the requisite qualifications applied for different
8
posts. A selection committee was constituted consisting of senior
officers including the Director, Higher Education, who prepared
the select list after making assessment/ academic career and
recommended for their appointment against the vacant posts. The
appellants were appointed as Lecturers in the year 2014 against
the vacant posts with the prescribed scale of pay of Rs.15,600 to
39,100/- with Grade Pay of Rs.6000/- with usual D.A. and other
allowances. However, while they were so continuing, in the year
2016, they were extended with consolidated remuneration of
Rs.48,600/-. During the continuance of the appellants, though
number of advertisements were made for filling up the vacant
posts, but the posts against which the appellants were continuing,
were not included in the said advertisement. Accordingly the
appellants filed representations for regularization of their services.
A High Level Meeting was held on 26.06.2018 for the purpose of
regularization of the service of the appellants. In the said meeting,
it was decided that the regularization matter of the appellants will
be considered as per the Government decision and accordingly file
was sent to Law and Finance Department for their views. However,
to the ill luck of the appellants, on 14.10.2019 the impugned
notice was issued making the last extension till 31.05.2020 and
the advertisement No.18/2019-20 was published, without any
decision with regard to regularization of services of the appellants.
16. According to Mr. Routray, Odisha Education Service
(College Branch) Rules, 1990 is a Rule made under Article 309 of
the Constitution of India, not only provided for appointment of Ad
hoc lecturers, but contemplates their regularization. In the past,
the Government had regularized the services of 246 and 198
9
number of ad hoc Lecturers in College Branch, who were
appointed on ad hoc basis. After following due procedure of
selection by the Selection Committee, the appellants were not only
appointed in existing vacancy, but also in a regular scale of pay
and Grade Pay. In the meantime they have completed six years of
service. The appellants were appointed as per the Policy decision of
the Government. After the concurrence of the Finance Department
and approval of the Government, applications were invited through
an open advertisement in the year 2013. According to him, when
the appellants having the requisite qualifications have been duly
selected and appointed against sanctioned post and were allowed
to continue for years together there is no justification on the part
of opposite party no.1 to disengage the appellants, particularly
when large number of vacancies are available. In support of his
claim, learned Senior Advocate cited number of decisions, such as:
1. Karnataka State Private College Stop gap Lecturers
Association Vrs. State of Kantaka, reported in (1992) 2
SCC 29.
2. Sachin Ambadas Dawale & Anr V State of
Maharastra and others, reported in 2015 (7) SLR 148.
3. Gopi Sao and Others v. State of Chhatisgarh and
Others, reported in 2016 SCC online Chh 902.
4. Rattan Lal and Others v. State of Haryana and Ors,
reported in AIR 1987 SC 478.
5. Rabi Narayan Mohapatra v. State of Orissa and
others, reported in AIR 1991 SC 1286.
6. Sheo Narain Nagar & Ors v. State of U.P. & Ors,
reported in AIR 2018 SC 233.
7. Narendra Kumar Tiwari & Ors. V. The State of
Jharkhand & Ors, reported in (2018) 8 SCC 238.
8. K. Krishna & Ors. V. The University of Mysore,
reported in ILR 2003 KAR 2578.
Learned Senior Advocate submits that in the case of State
10
of Maharastra & Anr v. Sachin Ambadas Dawale & Ors, it was
the case that the appointments were made as per the policy
incorporated in Government Resolution as there was a ban on
recruitment by the Finance Department and in order to avoid the
adverse effect on the education system, the Government had taken
such a policy decision and filled up 2/3rd teaching post on
contractual basis. Persons who are continuing in employment of
the said period ranging from three years to ten years when not
given the permanency in the appointment, they have approached
the Court. Considering those facts the Court came to a conclusion
that in view of the fact that the appointments of the petitioners are
as per the policy incorporated in the Government Resolution and
they appointed through a regular selection process, it cannot be
said that the appointment of the petitioners are back door or illegal
and it cannot be said that the petitioners are appointed arbitrarily
or haphazardly or clandestinely without issuing advertisement and
without giving an opportunity to all the eligible candidates to
participate in the selection process. It is not the case of the
respondents that any illegalities took place during the selection
process.
At paragraphs-10, 15 and 18, it has been observed as follows:
10. We have considered the submissions on behalf
of the petitioners and the respondents. It is undisputed that
the appointments of the petitioners are as per the policy
incorporated in the Government resolution dated 25th of
July, 2002 in which it is laid down that the appointments will
be on contractual basis and till the availability of the
candidates appointed through regular selection process.
However, it is important to consider that the petitioners are
appointed after following the procedure of issuance of
advertisement and conducting interviews by a duly
11
constituted Selection Committee. The Selection Committee
constituted as per the Government resolution dated 2nd
August, 2003 comprises of highly experienced and technical
persons like:
(i) Joint Director, Technical Education Department,
(ii) representative of women,
(iii) Principal of the concerned institution,
(iv) representative of backward class, and
(v) two Experts of concerned subject.
In view of the above facts, it cannot be said that the
appointments of the petitioners are back door or illegal. It
cannot be said that the petitioners are appointed arbitrarily
or haphazardly or clandestinely without issuing
advertisement and without giving an opportunity to all the
eligible candidates to participate in the selection process.
From the record it clearly appears to be an undisputed
position that in response to the advertisement several
candidates had participated in the selection process and it is
the petitioners who were found eligible and suitable for the
posts and as such were selected and appointed. It is not the
case of the respondents that any illegalities took place during
the selection process.
15. The submission of the Government of
Maharashtra that whether the posts should be filled in on
regular basis or contractual basis is a matter of policy and
falls within the domain of the Government of Maharashtra
(employer), does not appeal to us. It being an admitted
position that the posts, in which these employees have been
appointed and continued for a considerable length of time, on
contractual basis, are regular and full time posts; the
appointments in these posts cannot be at the whims and
fancies of the Government of Maharashtra. The State cannot
adopt a policy of hire and fire or use and throw.
18. The submissions made by Shri Khapre, learned
advocate for the petitioners, regarding the discrimination of
the Lecturers working in the Government Polytechnics viz-a-
12
viz Lecturers working in the Private Polytechnics is not
without substance. The Lecturers who are appointed in the
Private Polytechnic Institutions are selected by the School
Committee which comprises of the Members of the Trust
which administers the Private Polytechnic Institutions. The
Committee which is constituted under the Government
resolution dated 2nd August, 2003 is a broad based
Committee comprising of Joint Director (Technical
Education), two Subject Experts, representative of women,
representative having technical knowledge, a member who
belongs to backward classes and the Principal of the
Polytechnic Institution concerned.
The Lecturers who are appointed in the Private
Polytechnic Institutions after selection through the School
Committee are appointed on contractual basis as "Shikshan
Sevak" for the period of three years as per the policy of the
Government of Maharashtra incorporated in the resolution
dated 27th April, 2000. It is not in dispute that the selection
process through which the petitioners are selected is much
less stringent than the selection process of the 38 wp2046.10
Private Polytechnic. We see no reason as to why the
petitioners, who are otherwise eligible and qualified for the
posts and who are selected by a duly constituted Selection
Committee appointed by the Government of Maharashtra and
who are appointed in sanctioned posts after the issuance of
advertisement and following regular procedure of selection
should not be treated at par with their counterparts in the
Private Polytechnic Institutions. We are of the view that the
petitioners cannot be discriminated viz-a-viz their
counterparts working in the Private Polytechnic Institutions.
We are conscious that the Lecturers working in the
Government Institutions form a different class than the
Lecturers working in the Private Institutions. However, when
all other service conditions are similar, we are of the view that
the petitioners are also entitled for the same benefits as their
counterparts working in the Private Polytechnic Institutions
are entitled as far as the conferment of regularization and
permanency are concerned.
17. Mr. Routray, further submitted that in the case in
Sachin Ambadas Dawale (supra) the case of Umadevi (supra)
13
was also taken into consideration wherein it was observed that:-
"xxx xxx xxx Courts should desist from issuing orders
preventing regular selection or recruitment at the instance of
such persons and from issuing directions for continuance of
those who have not secured regular appointments as per
procedure established. In the present case though the
petitioners are not selected through MPSC, it is undisputed
that the petitioners are selected after the procedure for
selection is followed and through the duly constituted
Selection Committee as constituted by the Government of
Maharashtra. The advertisement was issued before the
petitioners were selected and all interested candidates had
applied for the posts for which the petitioners are selected.
Thus, it cannot be said that the petitioners have got the
employment through back door entry. It cannot be said that
the candidates qualified for the posts were deprived of the
opportunity to compete for the selection for the posts in
which the petitioners are working
The Hon'ble Court in the said decision also observed
that:-
There are more than 5000 teaching posts which are
still vacant and the advertisement issued by the MPSC is
only for 400 posts. It can, thus, be clearly seen that even after
the candidates who would be selected through the selection
process conducted by the MPSC are available, more than
4500 posts will be vacant. It is, therefore, clear that the
petitioners' absorption would in no way affect the candidates
who would now be selected through the MPSC. It is, thus,
clear that the petitioners' continuation in service would not
adversely affect the fundamental right guaranteed
under Article 16 to the citizens. We are of the considered view
that the respondent-State having extracted the work from the
petitioners for years together, the petitioners cannot be
deprived of the right of regular employment particularly when
their entry can neither be termed as "illegal" nor "back door"
He further submitted that the aforesaid decision has
been relied on, by Hon'ble Chhatisgarh High Court in the case of
Gopi Sao and others (supra). Mr. Routray, learned Senior
14
Advocate also relied on the decision in the case of K. Srishna and
ors v. the University of Mysore, reported in ILR 2003 KAR 2578
and Rabinarayan Mohapatra v. State of Orissa and ors,
reported in 1991 (1) OLR (SC) 450.
In the case of Gopi Sao and others (supra), the Hon'ble
Chhatisgarh High Court at paragraph-22 and 23 observed as
follows:-
22. The Court, in the given facts and circumstances will
have to stand by the citizens whose right to life and livelihood
is at peril and we will be failing in our duty if we do not stand
by them especially when their appointments have been made
by due process of law against vacant sanctioned posts after
advertisement and a regular selection process laid down in
the Rules. It is not the case of the State that there is any
element of illegality in the manner the Appellants had been
hired or engaged.
23. We notice from the reading of the Rules that such
selection and appointment has all the attributes of a
permanent and valid appointment except for the fact that a
label of contractual engagement was initially given which was
never adhered to by the State. One of the reasons which is
obvious is that they needed these hands. They had no option
but to continue with their services and that somewhere at the
back of their mind they did not want to take the burden of
financial kind by conferring status of permanency, which by
itself smacks of unfairness. Resorting to 'hire and fire' has
been deprecated by the Courts time and again, especially
when the employer is a State. Such action cannot be given
judicial approval.
Therefore, according to learned counsel for the
appellants, the services of the appellants ought to have been
regularized.
18. Mr. Jagannath Patnaik, learned Senior Advocate for
some of the appellants, relied on the decisions in the case of
15
Kuldeep Singh v. Government of NCT of Delhi, reported in
(2006) 5 SCC 702, Ashok Smokeiess Coal India(P)Ltd. v. Union
of India, reported in (2007) 5 SCC 640, Nihal Singh and others
v. State of Punjab and Others, reported in (2013)14 SCC 65,
B.P.U.T v. Prasanna Kumar Mishra, reported in 2016(Supp-1)
OLR 507.
Mr. A.K. Dash, learned counsel for some of the
appellants also relied on the decisions in the case of Union Of
India and Ors. v. Hindustan Development Corporation and
ors, reported in (1993)3 SCC 499, National Building
Construction Corporation v. S.Raghunath and Ors, reported in
(1998) 7 SCC 66, Union of India and Ors v. Sant lal and Ors,
reported in (2019) 4 SCC 290,Nihal Singh and other v. State of
Punjab and others, reported in (2013) 14 SCC 65.
In the case of National Building Construction
Corporation (supra), the Hon'ble Apex Court observed as follows:-
"The doctrine of "Legitimate Expectation" has its
genesis in the field of administrative law. The Government
and its departments, in administering the affairs of the
country are expected to honour their statements of policy or
intention and treat the citizens with full personal
consideration without any iota of abuse of discretion. The
policy statements cannot be disregarded unfairly or applied
selectively. Unfairness in the form of unreasonableness is
making to violation of natural justice. It was in this context
that the doctrine of "Legitimate Expectation" was evolved
which has today became a source of substantive as well as
procedural rights. But claims based on "Legitimate
16
Expectation" have been held to require reliance on
representations and resulting detriment to the claimant in
the same way as claims based on promissory estoppel."
Mr. Satyabrata Mohanty, learned counsel for the
appellants also relied on the decisions in the case of Amba Das v.
State of Maharashtra reported in 2014 SCC online Bom 4013.
19. Learned Additional Government Advocate on the other
hand submitted that Odisha Education Service (College Branch)
Recruitment Rules, 1990 deals for direct recruitment of Lecturers
(Group-A) for Government Degree Colleges (+3). Rule-4 and 5 of the
said Rules provide for the eligibility criteria for direct recruitment
to the post of Lecturers and the procedure for selection by OPSC
respectively. The Method of Selection followed by the OPSC
included "career assessment" followed by viva voce (interview).
Here in this case, Government of Odisha has decided to make ad
hoc appointments and accordingly the director issued the
advertisement and the appellants were appointed as Lecturers on
ad hoc basis for a period of one year with effect from the date of
joining in the post or the recommendation of OPSC for the regular
appointment is made in the said post, whichever is earlier. Since
the selection was not made by the OPSC, the statutory body and
the appellants were appointed on ad hoc basis for certain period,
therefore, they are not entitled to be regularized.
He further pointed out the Orissa Group-B Posts
(Contractual Appointment) Rules, 2013, which came into force on
the date of its publication in the Odisha Gazette on 17th January,
2014.
17
At Point No.1 (3) of Part-I, it has been indicated that
there shall not be any ad hoc appointment in Group-B
posts under the State Government.
At point Nos. 5, 9, 10 and 16 of Part-III of the Rule, it
has been prescribed as follows:-
5. Recruitment Procedure:
(1) Recruitment to the posts as may be decided by
the State Government shall be made on the basis of the
provisions of the relevant recruitment rules or executive
instructions, as the case may be, in force.
9. Tenure of Contractual Appointment:
Persons appointed under sub-rule (2) of rule 5 against
the contractual posts shall continue on contractual basis for a
period of six years. The period of six years shall be counted
from the date of their contractual appointment under rule 5.
10. Remuneration:
During the period of contractual appointment they
shall draw consolidated monthly remuneration equal to the
initial of the corresponding Pay plus Grade Pay.
According to him, the appointment letters were issued
to the selected candidates on 26th July, 2014 so far as Junior
Lecturers are concerned in the scale of pay of Rs.9300-34,800/-
with Grade Pay of Rs.4,600/- with usual DA and other allowances
as may be sanctioned by the Government of Odisha. It is
submitted that since the Grade pay was fixed at Rs.4600/- which
is not at par with the pay provided under 2013 Rules, rather the
Pay fixed in 2009 Rules, therefore, their claim for regularization
after completion of six years of service pursuant to 2013 Rule is
18
not applicable.
He further submitted that regular recruitment to the
post of Junior Lecturer were advertised by the OPSC and the same
was finally concluded in the year 2017-18 and only 270 candidates
were selected for the said post of Junior Lecturers, where as the
petitioners have not availed such opportunity.
With regard to the applicability of the Sachin Ambadas
(supra) to the case of the present appellants, it is submitted by
learned Advocate General that this decision are not applicable as
there are different facts. According to him M.P.S.C. has not
conducted any selection process, however in the present case, the
OPSC has conducted the selection process.
19. In support of his claim, learned Additional
Government Advocate referred the decisions in the case of:
1. Secretary, State of Karnataka & Ors v. Umadevi (3)
& Ors, reported in [(2006) 4 SCC 1]
2. Sachin Ambadas Dawale & Anr. Vs. State of
Maharashtra & Ors, reported in 2015 (7) SLR 148
3. Gopi Sao & Ors Vs. State of Chhattisgarh & Ors,
reported in 2016 SCC Online Chh 902.
4. Snigdha Panigrahi & Ors Vs. State of Orissa & Ors,
reported in 2017 (II) IPR-CUT 280.
5. Sethi Auto Service Station v. DDA, reported in (2009) 1
SCC 180.
20. So far as Junior College Lecturers are concerned, it is
submitted on behalf of the appellants that Orissa Education
Service (Method of Recruitment and Conditions of Service) Rules,
2009 deals with method of recruitment and conditions of service
for Junior Colleges. On the basis of the decision of the Government
19
advertisement was made and the appellants having the requisite
qualifications and satisfying eligibility criteria were issued with
appointment orders. In exercise of the powers conferred under
Article 309 of the Constitution of India and in supresession of
respective recruitment rules/ orders/ instructions, for the
employment of selected candidates to Group-B posts of the State,
the Orissa Group-B (Contractual Appointment) Rules, 2013 came
into effect. Rule-5 read with Rule-9 and 16 (a) makes it very clear
that a person appointed on contractual basis for a period of six
years, on the date of completion of six years of satisfactory service,
his service shall be deemed to be regularized. Since the appellants
have already completed 6 years of satisfactory service, they are
required to be regularized.
21. Per Contra, learned Additional Government Advocate
submitted that Orissa Education Service (Method of Recruitment
and Conditions of Service) Rules, 2009 governs for direct
recruitment of Jr. Lecturer (Group B) and the selection process has
to be conducted by OPSC. As large number of vacancies could not
be filled up by OPSC, the Government of Odisha decided to make
ad hoc appointments. The method of selection for the ad hoc
appointment did not include either a "written test" or an
"interview".
22. Apart from the submission of Mr. B. Routray, learned
Senior Advocate for some of the appellants, this Court also heard
extensively Mr. Jagannath Patnaik, learned Senior Advocate on
behalf of some of the appellants, Mr. J.K. Rath, learned Senior
Advocate on behalf of some of the interveners, who are equally
placed like that of the appellants and other learned Counsel on
20
behalf of the appellants. Extensive hearing also advanced on
behalf of Mr. Ashok Kumar Parija, learned Advocate General, being
assisted by learned Additional Government Advocate.
23. It is also brought to the notice of this Court that the
Government of Odisha in the Department of Higher Education
issued a notification on 24.05.2016 for separation of the Junior
Colleges and Degree Colleges. It has been decided to bring junior
colleges to the Administrative control of the School & Mass
Education Department from the academic session 2016-17, by
creating a separate Directorate with the nomenclature 'Directorate
of Higher Secondary Education' with the following clauses:-
"1. xxx
2. Separation of +2 and +3 will be given effect from 1st
July 2016 as detailed below:-
i. xxx
ii. All the teaching staff, including Junior and Degree
lecturers presently working in Jr. Colleges shall be
deemed to be on deployment to School & Mass
Education Department for a period of one year initially.
Simultaneously School & Mass Education Deptt. Shall
create equal number of PGT posts against the current
sanctioned strength of 1023 Junior Lecturers and take
steps for their recruitment within a year. Upon the
joining of new recruits after due recruitment process, the
Junior/Degree Lecturers working on deployment to
School & Mass Education Department shall get reverted
to Higher Education Deptt. To work against the existing
vacancies in Degree Colleges. This will include
21
Government college lecturers, as well as the aided
college lecturers, i.e. those covered under GIA or Block
grant, as the case may be."
24. On hearing learned counsel for the parties, the
following points as raised by counsel for the respective parties are
to be considered on its own merit while deciding these appeals.
It is contended by the parties that Regular
Recruitment to the posts of Junior Lecturers were advertised by
the OPSC in the year 2013-14 and the said recruitment process
was finally completed in 2017-18. Only 272 candidates were
selected for the post of Junior Lecturers. In spite of completion of
such posts, the ad hoc appointees were allowed to continue as
requirement of lecturers is much more than the recruitment. It
also reveals that the advertisement of the year 2013 was completed
by OPSC and 272 candidates have been regularly appointed.
Further advertisement was made for 119 vacancies and thereafter
advertisement in the year 2019-20 was made for 606 vacancies.
The advertisement of the year 2019-20 for 606 vacancies have not
yet been completed and more than 1000 posts are lying vacant
including the posts held by the appellants, which have not yet
been advertised to be filled up by OPSC.
Admittedly large number of vacancies could not be
filled up to meet the public exigency, for which the Government of
Odisha decided to make ad hoc appointments in the year 2013 for
Junior Colleges and Degree Colleges. The petitioners are
continuing from 2014 till the date of filing of the writ application,
though the tenure as per the advertisement was for a period of one
year with effect the date of joining in the post or the
22
recommendation of OPSC for regular appointment made in the
said post, whichever is earlier.
As stated above, the requirement is much more than
1000 posts and till date the posts in which the petitioners are
continuing have not yet been filled up. While the matter stood
thus, the Government has been pleased to decide to separate the
Junior Colleges and Degree Colleges. It has been decided to bring
Junior Colleges to the Administrative Control of the School & Mass
Education Department from the academic session 2016-17 by
creating a separate Directorate with the nomenclature of
Directorate of Higher Secondary Education. It was also decided
that all the teaching staff, including Junior and Degree lecturers
presently working in Jr. Colleges shall be deemed to be on
deployment to school & Mass Education Department for a period
of, one year initially. Simultaneously the School & Mass Education
Department shall create equal number of PGT posts against the
current sanctioned strength of 1023 Junior Lecturers and take
steps for their recruitment within a year. Upon the joining of new
recruits after due recruitment process, the Junior/Degree
Lecturers working on deployment to School & Mass Education
Department shall get reverted to Higher Education Dept. to work
against the existing vacancies in Degree Colleges. This will include
Government college lecturers, as well as the aided college
lecturers, i.e. those covered under GIA or Block grant, as the case
may be.
The Junior Lecturer cadre has become a dying cadre
and against 149 ad hoc Junior Lecturers who has joined initially,
only 70 remain on the rolls.
23
The Appellants have the option to apply for other
services, for which regular recruitment is being conducted is the
stand of the Government. The Government also contended that ad
hoc employees is in existence due to the vacancy in the teaching
cadre is much more than the number of such ad hoc employees.
The vacancies are currently managed by engaging approximately
1500 number of guest faculty and if 85% of the vacancy in
teaching cadre can be managed by guest faculties, the remaining
vacancies can also be very well managed by the provision of guest
faculty.
The +2 Vocational teachers working under Department
of Higher Education have been regularized on 3rd July, 2016
pursuant to the order passed by this Court, who have received the
similar grade pay as that of the appellants, i.e. Rs.4600/- . The
Standing Committee meeting was held on 26.06.2018 under the
Chairmanship of Minister, Higher Education, Odisha and in the
said meeting, the Principal Secretary to Government in Finance
Department, Commissioner-cum-Secretary, Higher Education
Department, Special Secretary, Finance Department, Director &
Addl. Secretary of Higher Education Department and Additional
Secretary of G.A. & P.G. Department were present to consider the
representation of the appellants. It was decided that the Law
Department will examine the matter and give their view. The view
of the Law Department is that if the situation so demands, there is
no bar for the Government to create a separate cadre or float a
scheme for them under due exercise of executive power. However,
the Higher Education Department took a different view and passed
the impugned orders.
24
25. After going through the exhaustive arguments on
behalf of learned counsel for the parties, the observation of this
Court is as follows:-
(a) From the submission made by the parties, it reveals that
the OPSC made the advertisement for direct recruitment to
the post of Lecturers in the year 2013-14, which was
concluded in the year 2017-18 and they were not able to
provide required number of Lecturers in different streams,
which hampered the education system of the state as well
as the career and future of the students due to lack of
faculty members. The Government being aware of such a
situation and keeping in view the fact that large number of
vacancies are available, decided to make ad hoc
appointments to the posts of Lecturers and published the
advertisement on 30.11.2013, completed the selection
process and issued the appointment letters to the
appellants, who are having not only the eligibility criteria,
required qualification, but some of them have also acquired
Ph.D. and other higher qualifications from the recognized
institutions in their respective disciplines.
(b) The 2009 Rule which was regulating the method of
recruitment and conditions of service of persons appointed
to Orissa Education Service, at Chapter-V provides other
conditions of service. Paragraph-14 deals with Probation
and Confirmation to the following extent:-
14. Probation and Confirmation--(1) Every person appointed
to the service shall be on probation for a period of two years in
case of appointment made by direct recruitment and one year in
25
case of appointment made by promotion, from the date of joining
the post :
Provided that the appointing authority may, if thinks fit in
any case or class of cases, extend the period of probation :
Provided further that such period of probation shall not
include--
(a) extraordinary leave;
(b) period of unauthorized absence; or
(c) any other period held to be not being on actual duty.
(2) On completion of the period of probation, including the extended
period, if any under sub-rule (1), the performance of the person
appointed to the post shall be reviewed and if he/she is found
unfit--
(a) his/her services shall be terminated in case he/she
is a direct recruitee; or
(b) he/she shall be reverted to his/her former post in case
of a promotee.
(3) A probationer after completing the period of probation to the
satisfaction of Government shall be eligible for confirmation subject
to the availability of substantive vacancy in the service."
In view of the aforesaid views, the candidates selected
by OPSC are eligible for confirmation after completion of the
period of probation, which is for a period of two years, which
shall not include extraordinary leave, period of
unauthorized absence or any other period held to be not
being on actual duty.
Here the appellants have completed more than 6 years
of service and selected through selection process by duly
constituted Selection Committee. Their selection cannot be
termed as defective just because they have not appeared in
the written test through OPSC as has been provided in
26
2009 Rules.
(c) In Rule-1 of Odisha Group-B (Contractual Appointment)
Rules, 2013, which came into force on the date of its
publication in the Orissa Gazette on 17.01.2014, at sub
paragraph- (3) prescribes that From the date of
commencement of these rules, there shall not be any ad hoc
appointment in Group 'B' posts under the State
Government.
So far as the Definitions are concerned, at Rule-2 (1)
(b) it has been prescribed that "Group-B posts" means any
Group-B post classified as such by the State Government
from time to time.
At 2 (1)(c) it has been indicated that "Recruitment Rules"
means the rules framed under the proviso to Article 309 of
the Constitution of India regulating recruitment to different
State Civil Services and Posts.
At Rule-3, it has been provided the Applicability and at sub-
clause- (1) it has been mentioned that These rules shall
apply to direct recruitment to such Group 'B' Posts as the
Government may decided by notification from time to time.
Though the appointment orders were issued after the 2013
Rule came into force, whether the Government has taken a
decision to relax the said rules and issue appointment
letters in the year 2014 has not been explained. At Rule-17
of 2013 Rules, it has been indicated "when it is considered
by the Government that it is necessary or expedient so to do
in the public interest, it may, by order, for reasons to be
recorded in writing, relax any provision of these rules in
27
respect of any Class or Category of the Employees."
In absence of any Government Resolution or reasons
to be recorded in writing, the relaxation of 2013 rules while
issuing appointment orders to the appellants, speaks
volume regarding the action of the government to exploit the
employees and create disturbing situation in the field of
education pertaining to the faculty members and their
service conditions are concerned. Such employees are
always on the threat of being removal, which is not the
congenial autoscore for such faculty members to impart
teaching in the education system of the state. In such a
situation, such faculty members cannot give their best. The
present appellants have also acquired experience of more
than 6 years and they are successfully discharging their
duties. At no point of time any adverse remark has been
raised against anybody by the authority. So far as Hindi and
Sanskrit Lecturers are concerned as well as the Junior
College Lecturers are concerned, no advertisement has yet
been published.
(d) The State Government, in the earlier occasions has also
taken steps to validate those employees who have appointed
on temporary basis against the approved and admissible
posts by the concerned Governing Bodies during the period
between the 1st January, 1985 and the 31st December,
1992, in the year 1998.
26. Taking into consideration all the aforesaid aspects and
on going through the judicial pronouncement as has advanced by
the respective parties, it reveals that the State Government is the
28
model employer and due to delay in recruitment and there were
requirement of faculties in different disciplines, instead of sending
requisition to OPSC decided to appoint ad hoc lecturers both in
Group-A and Group-B posts through a selection process.
Admittedly, though the advertisement was published by OPSC for
recruitment of lecturers in the year 2013, same was completed
only in the year 2017 for limited posts and not covering all the
vacant posts as per requirement. The Higher Education studies in
the state are being suffered and to protect the interest of the
students in mass, the State Government decided to engage College
Lecturers and Junior Lecturers. Though, initially the engagement
was for one year, it was extended from time to time. The
appellants who were duly selected and no irregularity or illegality
have been committed in their selection and that they are
continuing for years together sincerely and efficiently, in such
background, it is expected that the Government should honour
their work and treat them with full reasonableness without any
iota of abuse of discretion regarding their regularization as
number of vacancies are available and recruitment was not made
for years together. However, the same was not taken care of and
since the employer is in a dominating position, the appellant-
petitioners have surrendered before the mighty employer and
accepted the terms and conditions offered to them. In the
meantime having requisite qualification and being selected
through a selection committee, they have been continuing and
discharging their duties efficiently without any adverse remark. By
passage of time, the appellants have also become age barred to
compete in the regular recruitment. It is also revealed that the
29
State has not raised any objection with regard to any irregularity
and illegality in the selection process of the present appellant-
petitioners. In view of the above reasoning, this Court respectfully
disagrees with the views taken in the impugned orders, since all
such orders have been passed without considering the above
aspect. Thus, such impugned orders are set aside. This Court also
sets aside the order dated 14.10.2019 passed by Respondent
No.1-Governemnt of Odisha, Department of Higher Education,
which were impugned in the writ petitions, wherein it has been
indicated that the same will be the last extension and their ad hoc
engagement shall be automatically terminated on 31.05.2020
(A.N.).
27. In the result, this Court directs the State Government
to take step, as one time measure, regarding regularization of the
services of the appellants and the interveners equally placed,
since it has been admitted by the parties and indicated in the
aforementioned paragraphs that number of vacancies available is
much more than the advertisement issued by the OPSC for
recruitment of Lecturers and the appellants having the requisite
qualifications have experience in the respective fields for more
than six years by now.
The Appellants and the Interveners equally placed like
that of the appellants shall not be disengaged till the government
takes the step for their regularization.
With the above observation/direction, all the writ
appeals stand disposed of.
......................
S. Panda, J.
30 S.K. Panigrahi, J.
28. The judgment/order penned down by my Learned Sister has been crafted painstakingly which otherwise merits appreciation, however, ultimately I have failed to persuade myself to fall in line with the final conclusion, not because of my tall thinking on the issue or to present something innovative or novel but merely because of a painful failure in arriving at a congruous conclusion. Given the importance of the issues raised and the questions posed, I feel it may be expedient to examine the issue in question holistically. Such an approach, in my humble view, would also ensure substantial justice.
29. Since the issues involved in the present batch of Writ 31 Appeals are identical, these are heard together for disposal by this common order.
I. Facts of the case:
30. Brief facts of the case and events necessary to be noted for deciding this batch of Writ Appeals arising out of the orders of the learned Single Judge that the appellants have been appointed as Junior Lecturers (+2) and Lecturers (College Branch) (+3) in different streams in different Junior Colleges and Degree Colleges of the State under the Higher Education Department, Government of Odisha. All the Appellants have been appointed as ad hoc Lecturers under the Department of Higher Education, Government of Odisha. The Lecturers belonging to College Branch (+3) formed as Group-'A' category and the Junior Lecturers appointed by the Department of Higher Education belongs to Group - 'B' category.
31. The present batch of Writ Appeals have been filed assailing the various orders passed by the learned Single Judge in a batch of Writ Petitions. The issue is common to all the Writ Appeals and for proper appreciation of facts, I have proceeded to deal with Writ Appeal No.261 of 2020 arising out of the judgment dated 6.5.2020 passed in W.P.(C) No.9127 of 2020 which is the first case in the batch wherein the learned Single Judge, while disposing of the Writ Petition, has passed an order directing Respondent No.1 to take a decision on the issue in accordance with law within a period of three months from the date of receipt of certified copy of the order. Similarly, in another Writ Appeal bearing No.247 of 2020, arising out of Writ Petition (Civil) No.9322 of 2020, the appellant had claimed for regularization of service in 32 the post she was holding. Since the appellant was engaged for a particular period with certain terms and conditions contained in the Engagement Letter, the learned Single Judge dismissed the Writ Petition with certain observations including that she cannot turn around and challenge it after accepting the ad hoc appointment.
32. The foundation of the present litigation hinges on the issue of legality of the demand for regularization of the ad hoc Lecturers appointed purely as a stop gap arrangement till the regular appointees are posted in the Government Colleges both in Degree College and Junior College Branches. With this backdrop, it is worthwhile to mention that an Advertisement was issued by the Director of Higher Education, Government of Odisha, Bhubaneswar calling upon the candidates for appointment for the post of Junior Lecturers (+2) and Lecturers (College Branch) (+3) in different disciplines of Junior Colleges and Degree Colleges of Odisha respectively. The said advertisement clearly prescribed that the appointment would be purely on ad hoc basis and that the Lecturers are entitled to receive the salary in the Pay Scale of Rs.9,300-34,000/- with Grade Pay of Rs.4,600/- with usual D.A and other allowances as may be sanctioned by the Government of Odisha from time to time. Similarly, for the Lecturers of College Branch (+3), the Scale of Pay was Rs.15600-39,100/- with Academic Grade Pay of Rs.6,000/-with usual D.A. and other allowances as may be sanctioned by the Government of Odisha from time to time. Para 7 of the said Advertisement, postulates a sunset clause with respect to tenure of appointment which is as under:
33"Tenure The posting is purely temporary and the candidates cannot claim their right to continue in the post on the basis of such appointment. The tenure will be only for a period of one-year w.e.f. the date of joining in the post or the recommendation of O.P.S.C. for the regular appointment is made in the said post whichever is earlier".
33. The said advertisement sought to fill up 272 vacancies in Junior College Branch (+2), 352 in Degree Colleges (+3) under the Department of Higher Education, Government of Orissa. It is trite to mention that the advertisement for appointment of ad hoc Lecturers was purely intended to be a stop gap arrangement made by the opposite party till the regular recruitments took place. The regular recruitment of Lecturers in Government Colleges under the Department of Higher Education is governed by Rule 6 & 7 of the Odisha Education Service in State's Scale of Pay (Method of Recruitment and Conditions of Service) Rules, 2009. The said Rule unambiguously contemplates that the selection is to be made by Orissa Public Service Commission (in short, the "O.P.S.C") in compliance with Rule 7(1) of the said Rule and no other method is acceptable.
34. In the present case, as per the appointment letter issued to the appellants, they were appointed for a maximum period of one year and the same was renewed by the Government from time to time till 31.05.2020 on some pretext or other especially due to protracted litigation. In fact, after the end of the drawn out litigation, the O.P.S.C. could finally complete the selection process for regular appointment of Lecturers in the year 34 2017-18. Consequently, 272 Lecturers were appointed in different Colleges on regular basis. Subsequently, in 2018, another batch of 135 Lecturers were also appointed on regular basis after getting selected by O.P.S.C. through a rigorous method of selection. In the meantime, these newly appointed batches of regular Lecturers have also completed their two years' probation in 2019-20. Many of the ad hoc Lecturers including the present appellants of the instant batch of Writ Appeals also applied for recruitment tests for selection of Lecturers (both in College and Junior Colleges) for regular posts which were conducted by the O.P.S.C. but were unsuccessful in the same. After successful induction of 407 number of regular Lecturers on probation, the Department of Higher Education, Government of Odisha took a decision vide Office Order No.21308 dated 14.10.2019 with a direction to renew the ad hoc appointment of the said ad hoc Lecturers up to 31.5.2020 as the last renewal and categorically stipulated that their service shall stand terminated automatically on 31.5.2020.
35. Being aggrieved by the said office order dated 14.10.2019, the present appellants filed Writ Petition (Civil) No.9127 of 2020 with the prayer for quashing the said office order dated 14.10.2019 and for regularization of their services. Some other candidates also filed Writ Petitions seeking similar relief. The learned Single Judge vide order dated 6.5.2020 rejected the prayers of some of the petitioners including the petitioner herein which is impugned in this Writ Appeal. Similar Writ Petitions were also filed by some candidates who were appointed as ad hoc Lecturers in Junior College Branch (+2) and the same were rejected by the learned Single Judge. Being aggrieved by the order 35 passed by the learned Single Judge in W.P. (C) No.11408 of 2020, the appellant has preferred the Writ Appeal No.234 of 2020.
36. Heard learned counsels for the appellants, learned counsels appearing for the intervenors and the learned counsels for the State.
37. Learned Counsel for the appellants submits that the advertisement was floated in 2013 under Annexure-1 for recruitment of Lecturers both in Colleges (+3) Branches as well as Junior Colleges (+ 2) Branch under the Department of Higher Education, Government of Orissa. The process of recruitment is conducted under the Odisha Education Service in State's Scale of Pay (Method of Recruitment and Conditions of Service) Rules, 2009 which holds the field with respect to regular recruitment. However, in so far as the ad hoc appointment is concerned, there is no such rule which governs the field and such appointment process is purely based on executive instructions. Therefore, the State Government under Article 162 of the Constitution of India through Executive instruction wanted to recruit the ad hoc appointees. Accordingly, the advertisement was floated by the Department of Higher Education, Government of Odisha and in response to the said advertisement, the appellants applied for the said post, appeared in the interview and on the basis of career marking, they were selected to be appointed as ad hoc Lecturers.
38. He further submitted that after floating of advertisement and before the actual appointment took place, the Orissa Group B posts (Contractual Appointment) Rules, 2013 came into force on 17.7.2014. It is pertinent to mention herein that 36 Rule 6 of the said Contractual Appointment Rules, 2013 clearly stipulates that all vacancies existing on the date of commencement of these Rules as well as the future vacancies shall be deemed to have been converted into contractual posts from the date of commencement of these Rules. The Rule 6 further provides that consequent upon regular appointment under Rule 10 (1) of the said Contractual Appointment Rule, 2013, the contractual posts get re-converted to regular sanctioned post. Further, Rule 9 of the said Rules provides that persons appointed in terms of Rule 5(2) against the contractual post shall continue for a period of 6 years and the said period shall be counted from the date of their contractual appointment under Rule 5. In fact, Rule 16 (a) of the said Rule provides that on the date of satisfactory completion of 6 years of contractual service under Rule 9, they shall be deemed to have been appointed on regular basis and a formal order of regular appointment is to be issued by the appointing authority and the Appellants' case are squarely covered under the said Rule. He further submitted that this ground alone is sufficient for the Writ Appeal to be allowed and consequently an order for regularization ought to be passed.
39. Similarly, the factual aspects of Second Appeal i.e., W.A. No.234 of 2020 which is the leading case in so far as Junior College Lecturers are concerned and the facts of the said case is put succinctly hereinafter.
40. The appellant in W.A. No.234 of 2020 was appointed as a Junior College Lecturer on ad hoc basis and posted as such at Government Women's Junior College, Titilagarh. Her service was 37 also extended from time to time with a consolidated pay scale of Rs.31,275/-. In the present case also, the office order dated 14.10.2019 as has been passed in favour of the Degree College Lecturers indicating therein that this would be the last extension and their ad-hoc engagement shall automatically be terminated on 31.5.2020.
41. Being aggrieved by such order, the appellant challenged before this Court vide Writ Petition (Civil) No.11408 of 2020. Having heard the parties, the learned Single Judge dismissed the Writ Petition vide order dated 5.5.2020 with an observation that once the petitioner joined after accepting the condition of appointment vide Annexure-7, she has no right to challenge the same thereafter. Further, if the petitioner was aggrieved with the condition as prescribed under Annexure-7, nothing prevented her to challenge the same at the relevant point of time i.e., before her joining. Learned counsel for the appellant in the Writ Appeal No.261 of 2020 contended that there was no advertisement issued by the O.P.S.C. for regular recruitment for appointment of Lecturers for a considerable long time to fill up the posts of Lecturers in Degree and Junior Colleges. He further submits that since there are total numbers of 1100 vacancies available and O.P.S.C. has come out with only 606 vacancies for recruitment of Lecturers in Degree Colleges, the appellant and the interveners are only 111 in number holding the posts, hence they can be regularized by the Government without any difficulties.
42. Proprio vigore, Mr. B. Routray, learned Senior Counsel appearing for some of the appellants submitted on the issue of long gap in the recruitment process and the irregular recruitment 38 by the OPSC. He contended that the last recruitment of Lecturers (in the College Branch) was conducted in the year 1991 which is after long gap of about 23 years. He submitted that the State Government under the Chairmanship of Chief Secretary took a decision, which was approved by the Chief Minister to appoint ad hoc Lecturers in Government Colleges both in College Branch and in Junior College Branch. Accordingly, the advertisement was issued in compliance with ORV Act and the Rules, Regulations, clarifications and norms as prescribed by UGC. The appellants herein, he submits, are having brilliant academic careers and also possess requisite qualification to be eminently suitable for being appointed to teaching posts under different disciplines. Accordingly, a Selection Committee was constituted by the Department of Higher Education, Government of Odisha comprising Senior Officers of the Department including the Director of Higher Education, Odisha and a list of selected candidates was prepared on the basis of assessment of their academic career and finally they were recommended for appointment on ad hoc basis against those vacant posts in 2014. Their appointment to the services were extended from time to time with the consolidated remuneration of Rs.48,600/- for the College Branch. During the continuance of the appointment on those posts, the O.P.S.C. floated advertisements for filling up of the regular posts but the posts on which the appellants were continuing were not included in those advertised vacancies. Accordingly, the appellants filed representation for regularization of their services, but their prayers for regularization fell on deaf ears and a decision was taken on 14.10.2019 for termination of 39 the ad hoc appointee after 31.5.2020.
43. Mr. Routray, further submits that Orissa Education Service (College Branch) Rule, 1990 is a Rule made under Article 309 of the Constitution of India, which not only provides for appointment of ad hoc Lecturers but also contemplates their regularization. In the past, the Government has also regularized a number of such ad hoc Lecturers in the College Branch who were appointed on ad hoc basis. The appellants herein were appointed in response to the advertisements issued against sanctioned post. Hence, there is absolutely no reason on the part of Respondent No.1 to disengage the appellants, especially when large numbers of vacancies are available. Learned counsel for the appellants cited divergent decisions in support of his contentions, namely:
1. Karnataka State Private College Stop gap Lecturers Association Vrs. State of Karnataka, reported in (1992) 2 SCC 29.
2. Sachin Ambadas Dawale & Anr V. State of Maharastra and others, reported in 2015 (7) SLR 148.
3. Gopi Sao and Others v. State of Chhatisgarh and Others, reported in 2016 SCC Online Chh 902.
4. Rattan Lal and Others v. State of Haryana and Ors, reported in AIR 1987 SC 478.
5. Rabi Narayan Mohapatra v. State of Orissa and others, reported in AIR 1991 SC 1286.
6. Sheo Narain Nagar & Ors v. State of U.P. & Ors, reported in AIR 2018 SC 233.
7. Narendra Kumar Tiwari & Ors. V. The 40 State of Jharkhand & Ors, reported in (2018) 8 SCC 238.
8. K. Krishna & Ors. V. The University of Mysore, reported in ILR 2003 KAR 2578.
44. Mr. Routray, heavily relied on the case of Sachin Ambadas Dawale & Another Vs. State of Maharashtra & Ors1, wherein the appointment was made as per the Policy incorporated in the Government Resolution since there was a ban on the recruitment by the Finance Department, Government of Maharashtra and in order to avoid adverse impact on education of the student, the Government had taken a policy to fill up 2/3rd of the teaching post on contractual basis and the candidates who were continuing in such employment were ranging from three years to ten years and were not given permanency in the appointment. The said appointees approached the Court.
Considering the peculiar facts therein, the Court concluded that since the petitioners were appointed as per Policy of the Government and were appointed through regular selection process, it cannot be said that the appointment of the petitioners is through backdoor or illegal means. Accordingly, the High Court of Bombay held that the petitioners could not be deprived of their right of regular appointment, when their entry is not through backdoor or through illegal manner.
45. Arguendo, the petitioner's articulation and strong reliance on Gopi Sao and others v. State of Chhatisgarh and Others2 and K. Krishna & Ors v. The University of Mysore3, 1 2015 (7) SLR 148 2 2016 SCC online Chh 902.
3ILR 2003 KAR 2578 41 and Rabi Narayan Mohapatra v. State of Orissa and others4 in buttressing his submission emphasizing that since the petitioners were appointed against vacant sanctioned post following a proper advertisement via a regular selection process, it cannot be said that any illegality has been committed in their appointment.
46. A similar stand was also taken by Mr. Jagannath Pattanaik, learned Senior Advocate appearing for some of the appellants relied on the decisions in the cases of Kuldeep Singh v. Government of NCT of Delhi5, Ashok Smokeless Coal India (P) Ltd. V. Union of India6, Nihal Singh and others v. State of Punjab and Others7 and B.P.U.T v. Prasanna Kumar Mishra8 in support of his contention by supporting the submissions of Mr. Routray.
47. Mr. A.K. Dash, learned counsel for some of the appellants also relied on the decisions in the case of Union of India and Ors. v. Hindustan Development Corporation and Ors9., National Building Construction Corporation v. S. Raghunath and Ors10, Union of India and Ors. v. Sant Lal and Ors.11 and Nihal Singh and others v. State of Punjab and others12. He also submitted that in the case of National Building Construction Corporation (supra), the Hon'ble Supreme Court 4 AIR 1991 (1) OLR SC 450 5 (2006) 5 SCC 702 6 (2007) 5 SCC 640 7 (2013) 14 SCC 65 8 2016 (Supp-1) OLR 507 9 (1993) 3 SCC 499 10 (1998) 7 SCC 66 11 (2019) 4 SCC 290 12 (2013) 14 SCC 65 42 has held that "the doctrine of Legitimate Expectation" has its genesis in the field of administrative law. The Government and its Departments, in administering the affairs of the country are expected to honor their statements of policy or intention and the legitimate expectation of the employees.
48. Mr. Satyabrata Mohanty, learned counsel for the appellant relied on the case of Amba Das v. State of Maharashtra (supra) and submitted that since appellants are legally appointed though on ad hoc basis, they deserve a consideration for regularization by the Government. Similar contentions were raised at heightened frequencies by Mr. Manoranjan Mohanty, learned Counsel appearing for some of the intervenors.
49. Learned Additional Government Advocate, Mr. J. P. Patnaik appearing for the State led by Mr. A.K. Parija, learned Advocate General submitted that the appointment to the posts of Lecturers Group-A in Government Degree Colleges (+3) are done on the basis of Orissa Public Service Commission (hereinafter referred to 'OPSC') in compliance with the provisions of the Odisha Education Service (College Branch) Recruitment Rules, 1990 framed under Article 290 of the Constitution. In particular:
"Rule 4 of the said Rules prescribes that the Recruitment to the post of Lecturer both in Junior as well as College Branch shall be made directly through the said Public Service Commission".
Hence, it was submitted that no other mode of selection is a valid selection except through Public Service Commission.
4350. Similarly, Section 5 of Odisha Education Service (College Branch) Recruitment Rules, 1990 prescribes for selection procedure to be adopted by the Public Service Commission. The procedure of such selection by the OPSC is contemplated under Rule-5(1) which reads as under:
"5. Selection by the Commission-(1) The vacancies in the post of lecturer occurring in a year shall be notified to the Commission by the Government to recommend the names of eligible persons considered suitable by them for appointment to the posts. The Commission shall invite applications through open advertisement from eligible candidates and after conducting interview forward to the Government in respect of each subject a list of suitable candidates in order of merit for which requisition has been made. The commission may screen out application for calling candidates to appear in the interview to be conducted by them. The selection of eligible candidates shall be made on the basis of merit."
51. On 24.06.2013, an advertisement was issued by the OPSC for recruitment to 281 posts of Lecturers in different disciplines in Group A of Odisha Education Service (College Branch) under the Department of Higher Education. However, the regular recruitment process by OPSC got mired in litigation, due to which, on 30.11.2013, the Department of Higher Education, Government of Odisha decided to make some ad hoc appointment to the post of Lecturer in Government Colleges vide Advertisement 2013. Clause 4(b) of the said advertisement prescribes that:
"4(b) Under each category, a provisional merit list would be prepared assigning 40% (forty) weightage of the percentage of marks obtained in Bachelor Degree (Hons.) and 60% (Sixty) weightage of the 44 percentage of marks obtained in the P.G."
52. It is pertinent to note here that the method of selection for the ad hoc appointment did not include any interview. On 15.07.2014 the candidate who participated in the aforesaid advertisement for recruitment of ad hoc Lecturers, upon selection they were appointed as Lecturers on ad hoc basis for a period of one year with effect from the date of joining in the post or from the date when the recommendation of OPSC for the regular appointment is made in the said post, whichever is earlier.
53. On 21.04.2017 another advertisement was issued by the OPSC for recruitment of 119 posts of Lecturers in different disciplines in Group A of Odisha Education Service (College Branch) under the Department of Higher Education. In fact, a note of submission sent by the Commissioner-cum-Secretary for the approval of the Government succinctly observes:
"xxx xxx xxx
13. Selection of candidates in the year 2014-15 for such ad hoc engagement had been made purely on mark basis by the Higher Education Department. There was no provision of written test or interview for selecting candidates. Half of them have already left the ad hoc engagement for better livelihood option including some who have, in the meantime, been selected by OPSC as regular Lecturer/Jr. Lecturer. The ad hoc employees, who failed to get better livelihood option, are the ones who are currently continuing. Therefore, from amongst the ad hoc Lecturers and Jr. Lecturers engaged initially in 2014-15, the more meritorious persons have already left for better livelihood option; leaving behind those who can be deemed to be less meritorious.
Since quality of Higher Education depends 45 totally on quality of teaching faculty, continuing with the present lot of ad hoc Lecturers/Jr. Lecturers will definitely have adverse effect on the quality of Higher Education in Odisha.
14. If the engagement of current lot of ad hoc Lecturer/Jr. Lecturer is further extended by one year, at the end of such extension period, they will be completing six years of ad hoc engagement which will encourage them to make a claim for regularization, giving rise to litigations against the Government.
15. In view of this, I am of the strong opinion that engagement of ad hoc Lecturers/Jr. Lecturers should not be extended further after expiry of their present ad hoc engagement.
However, considering that we are already in the midst of the current academic session, disengagement of these ad hoc Lecturers/Jr. Lecturers in the month of September-October may adversely affect the academic calendar of the colleges. Therefore, it may be considered for further extension of the ad hoc engagement of these Lecturers/Jr. Lecturers upto the end of present academic year, i.e. till 31.05.2020 with the following non-negotiable conditions.
i. This will be the last extension and their ad hoc engagement shall automatically terminate on 31.05.2020 (A/N).
ii. The present remuneration structure and other service conditions shall remain unchanged."
54. In view of this, the continuation of ad hoc Lecturer was held to be untenable and an executive decision was taken keeping in view the larger interest of students. In view of this, the Government decision to bring an end to the extensions being 46 provided to the ad hoc Lecturers and introducing an automatic termination after 31.05.2020 (end of academic year) seems quite natural and was poignantly reflected in the letter issued by the Higher Education Department, Government of Odisha which reads as follows:
"The term of Ad hoc Lecturers who were engaged in different Government Degree/Autonomous/Model Degree Colleges with consolidated remuneration of Rs.48,600/- P.M. is hereby extended till 31.05.2020 (A.N.), with the following conditions- i. this will be the last extension and their ad hoc engagement shall be automatically terminated on 31.05.2020 (A.N.) ii. The present remuneration structure and other service conditions shall remain unchanged."
55. Learned Advocate General further contended that the Appellants' reliance on the Orissa Group B posts (Contractual Appointment) Rules, 2013 which came into force on 17.7.2014, is erroneous since the Appellants are not governed by this Rule. It is thoroughly misleading and is in fact a futile effort to compare apples to oranges. He strenuously argued and clarified that The Odisha Education Service State's Scale of Pay (Method of Recruitment and Conditions of Service) Rules, 2009 has not been repealed and the said Rule still governs the method of recruitment of Junior Lecturers. The Notification of the G.A. Department dated 15.02.2014 indicates clearly that:
"In exercise of the powers conferred under 3(i) of the Odisha Group-B posts (Contractual Appointment) Rules, 2013, Government have been pleased to decide that these rules shall apply to direct recruitment to all Group-B posts in Pay Band-2 with Pay Scale Rs.9300-34800/- and Grade Pay of 47 Rs.4200/- only and to exclude the following posts from the purview of the said rules...." (emphasis supplied) In fact, Rule-3 of the Odisha Education Service State's Scale of Pay (Method of Recruitment and Conditions of Service) Rules, 2009 provides for Group-B Junior Lecturers in the scale of pay of Rs 9300-34,800/- with Grade Pay of Rs.4,600/-. Therefore, the Odisha Group-B Posts (Contractual Appointment) Rules, 2013 shall not be applicable to the Appellants herein. Hence, the appellants relying on the aforesaid Rules cannot fortify their claims of being regularised and the Writ Appeal ought not be allowed.
56. Learned Advocate General further submits that the appellant's contention that the Government has not recruited any Lecturer during last 23 years, is entirely misplaced and bereft of any truth. In fact, a large number of Lecturers and Junior Lecturers have been duly appointed between 2016 to 2019 which has been depicted by table hereunder:
Year Number of Recruitment
candidates recruited conducted by
2016 1625 Lecturers SSB
(Aided College)
2017 270 Junior Lecturers OPSC
2018 407 Lecturers OPSC
2019 604 Lecturers (Aided SSB
College)
57. He submitted that most of the appellants herein, in fact, have participated in the aforesaid recruitment process but 48 failed to make it to the merit list of the selected candidates. Having so failed in the recruitment examination, they now lay claim to being regularized as they have worked for six years as ad hoc Lecturers in Colleges, which is contrary to the letter and spirit of the Umadevi (supra) judgment. On 06.02.2020 another advertisement has also been issued by the OPSC for recruitment of 660 posts of Lecturers in different disciplines in Group A of Odisha Education Service (College Branch) under the Department of Higher Education. Hence, the allegation of the appellants regarding no recruitment during these years is contrary to the record. In fact, on most occasions, when the Government proceeds with regular recruitment through OPSC on account of several factors mostly due to a barrage of litigation, the recruitment process gets unduly derailed and delayed. Because of such delay, the Government being duty bound to fulfil its constitutional and legal obligations gets compelled to appoint ad hoc Lecturers, as a stop gap arrangement. In Clause 7 of the advertisement, it has been clearly enunciated that:
"The posting is purely temporary and the candidates cannot claim their right to continue in the post on the basis of such appointment. The tenure will only be for a period of one-year w.e.f. the date of joining in the post or the recommendation of OPSC for the regular appointment is made in the said post, whichever is earlier."
58. The appellants, it was submitted, were fully aware of the fact that the vacancies advertised for ad hoc appointment of Lecturers was purely a stop gap arrangement, which would remain valid only till the time OPSC completed the regular recruitment 49 process. In 2017, following the judgment of this Court in the case of Snigdha Panigrahi & Others v. State of Orissa & Others13, the OPSC completed the selection process under Advertisement No.5 of 2013 read with corrigendum dated 16.01.2014 and 272 posts of Lecturers were filled up. Since 272 posts out of 352 posts of Lecturers, which were the subject matter of ad hoc appointments were filled up by the OPSC by way of regular recruitment in terms of Clause-7 of the ad hoc Advertisement of 2013. In view of that the same period of ad hoc appointment of Lecturers is no longer necessary to be extended. With this backdrop, a decision was taken by the State Government that no further extension of appointment of ad hoc Lecturers ought to be made. He further contended that the above decision of the State Government was assailed by the present appellants before the learned Single Judge on the plea that they were entitled to regularisation taking into account the six years' service rendered by them as ad hoc Lecturers. Learned Single Judge finding no merit in the contentions of the appellants, dismissed the Writ Application. Hence, the present Writ Appeal has been filed with the contention that the appellants are entitled to regularization since they have been validly appointed in accordance with the existing law. The appellants have heavily relied upon the following decisions:
a. Judgment dated 19.10.2013 in W.P.(C) No.2046 of 2010 passed by the Hon'ble High Court of Bombay in Sachin Ambadas Dawale & Anr. V. State of Maharashtra.
b. Judgment dated 07.12.2018 passed by the Hon'ble High Court of Chhattisgarh in W.A No 14 of 2017 being Gopi Sao v. State of 13 2017 (II) ILR-CUT 280 50 Chhattisgarh.
59. The aforesaid contentions of the Appellants are without any basis and do not merit any consideration, inter alia, for the following reasons:
i. the OPSC had issued an advertisement dated 24.06.2013 for regular recruitment in accordance with the Odisha Education Service (College Branch) Recruitment Rules, 1990.
ii. The aforesaid regular recruitment was delayed due to various factors including litigation and a high-level meeting chaired by the Chief Secretary on 05.08.2013 decided to make ad hoc appointments till regularly selected candidates were made available by OPSC.
iii. The ad hoc appointments were not made in accordance with the procedure prescribed under Odisha Education Service (College Branch) Recruitment Rules, 1990.
iv. In 2017, after the judgment of the Hon'ble
High Court in Snighdha Panigrahi
(supra), OPSC completed its recruitment
process and filled up the posts occupied by the Appellants with regularly selected candidates.
51v. The State Government, keeping in mind the exigencies of administration, has a right to make ad hoc/temporary appointments.
vi. The judgments of the Hon'ble High Courts of Bombay and Chhattishgarh, relied upon by the appellants are distinguishable and have no bearing on the facts of the present case.
60. In view of the aforesaid rival contentions, the following questions arise for consideration in the batch of Writ Appeals;
i. Whether the appellants are justified in contending that their appointments were made in accordance with prevailing laws?
ii. Whether the judgments relied upon by the appellants confer any right on the appellants for being regularised?
61. In order to answer the aforesaid questions, learned Advocate General invited the attention of the Court to the fact that the appointment of Lecturers (Group A) being public posts are to be recruited through OPSC under Article 320 of the Constitution and as well as in consonance with Rules framed under Article 309 of the Constitution of India. The said Rules are called the Odisha Education Service (College Branch) Recruitment Rules, 1990 and Rule 5 (1) which governs the field.
62. He further submitted that, the process of selection of ad hoc candidates was made on the basis of "40% (Forty) weightage 52 of the percentage of marks obtained in Bachelor's Degree (Hons.) and 60% (Sixty) weightage of the percentage of marks obtained in the P.G."
The process of ad hoc appointment of the Appellants was not conducted in terms of the Orissa Education Service (College Branch) Recruitment Rules, 1990 on account of the following reasons:
(a) OPSC did not conduct the examination process as required under Rule-5.
(b) The Appellants were not recruited pursuant to an interview in accordance with Rule-5.
It is contended that the process of selection was not in consonance with the procedure laid down in the Orissa Education Service (College Branch) Recruitment Rules, 1990 hence the said appointment is not a valid appointment rather a stop gap/ad interim arrangement. In view of this, the contention of the appellants that their appointments were validly done in accordance with the existing procedure does not merit any consideration and is completely fallacious. The contention of the appellants is that the regular recruitment has not been conducted by OPSC Rules and, therefore, the ad hoc method of Recruitment i.e., career assessment was the valid method of recruitment for the purpose of appointing the ad hoc Lecturers.
63. The said submission is totally erroneous and misconceived. It is not in dispute that the OPSC had issued an advertisement dated 24.06.2013 being Advertisement No.05 of 2013-14 with further corrigendum dated 16.01.2014 inviting 53 application for regular recruitment in accordance with Odisha Education Service (College Branch) Recruitment Rules, 1990. As already stated the regular recruitment was delayed due to some litigations, a high level meeting chaired by the Chief Secretary on 05.08.2013 which decided to make ad hoc appointments till regularly selected candidates were made available by OPSC. In the meantime, in 2017, the recruitment process vide Advertisement No.5 of 2013 read with corrigendum dated 16.01.2014 was completed by OPSC and 272 candidates have been regularly appointed to the very same posts occupied by the appellants herein.
Further, the remaining vacancies have also been advertised by the OPSC vide Advertisement No.01 of 2017-18 (total 119 vacancies) and Advertisement No.18 of 2019-20 (total 606 vacancies). It is pertinent to mention that the appellants herein had got ample opportunities to participate in the recruitment process conducted by OPSC. It is also a fact that many of the appellants did participate in the selection process but failed to qualify in the same. Some of the Appellants may not have deliberately participated. It is wrong to suggest that there was no opportunity for the Appellants to appear in the recruitment test for the regular post conducted by the OPSC.
64. The entire selection process for the ad hoc appointment was neither made by the OPSC nor was it done in terms of Rule 5 of the 1990 Rules. Hence, the appellants have no right to continue in such public post beyond the prescribed time. He also dealt with the case of Sachin Ambadas Dawale (supra) wherein the Hon'ble High Court of Bombay directed to regularise 54 the services of the petitioner. It is also contended that the said case is wholly inapplicable in the present case. In the said case the recruitment of Lecturers in the Government Polytechnics was made by the Government based on Government notification dated 25.08.2003. As per the said notification, the appointments were to be made on a contract basis for a period of two years or until the candidates were nominated by the Maharashtra Public Service Commission.
65. The said judgment is clearly distinguishable and wholly inapplicable to the facts of the present case. As it appears from paragraphs 4,6, 12 and 13 of the said judgment that-
i. at the time of issuance of notification dated 25.08.2003 pursuant to which the recruitment was conducted no Rules were framed under the proviso to Article 309 of the Constitution but in the present case there is an existence of a Rule framed under Article 309 of the Constitution of India.
ii. In the absence of any Rules framed under the provision of Article 309, the Government resolution which was the basis for the method of selection of Lecturers in that case whereas in the instant case there is a Rule for recruitment of Lecturers.
iii. The High Court of Bombay observed that no selections were held through the Maharashtra Public Service Commission till 2020 and the 55 Government selected in the Government resolution whereas in the instant case the selection was made purely on ad hoc basis as a stop gap arrangement without resorting to Odisha Education Service (College Branch) Recruitment Rules 1990.
iv. The Government did not hold selection process
through Maharashtra Public Service
Commission for a period of more than ten years and selected the lecturers only through the selection process as provided under the said Government resolution and the petitioners were duly selected through that process. In the present case, the factual matrix is completely different.
v. It is on the basis in the aforesaid facts that Hon'ble High Court of Bombay held that the Uma Devi (supra) judgment was not applicable whereas in the present case that is not the case.
66. Further in the present case, the recruitment was conducted by OPSC simultaneously, which is depicted in the table hereunder:
Year Number of Recruits
2013 352
2017 119
56
2020 606 (ongoing)
In fact, due to uncertainty in the regular recruitment and due to the unabated spate of litigations in this Court, delay was caused in the completion of appointment process in response to Advertisement No.5 of 2013. It was a conscious decision taken by the State Government to allow ad hoc appointment as a stop gap arrangement, for the said posts till the regular recruitment is done. In view of the aforesaid distinguishable facts, the judgment passed in case of Sachin Ambadas Dawale (supra) is not applicable to the present case.
67. Learned Advocate General also distinguished another judgment passed by Hon'ble High Court of Chhattishgarh in W.A. No.14 of 2017 in the case of Gopi Sao v. State of Chhattisgarh (supra). The said decision also depicts a different factually matrix which is depicted hereunder:
i. The Chhatisgarh Technical Education Three Years Contract Service (Appointment and Service Conditions) Rules, 2002, framed under the proviso to Article 309 of the Constitution, prescribed a contractual appointment with a tenure of three years, even for employees who were appointed after valid selection in accordance with the Rules.
ii. Appointments were made in terms of a Rule notified under Article 309 of the Constitution of India and all the requirements of advertisement, selection by a legally constituted committee and even roster of 57 reservation was followed it was a legal and valid appointment.
68. However, the facts of the case in hand are clearly distinguishable for the following reasons:
i. Selection of the Appellants, which was made via career marking assessment, was not in accordance with the Odisha Education Service (College Branch) Recruitment Rules, 1990 which mandates that an interview ought to be conducted to assess to suitability.
ii. The advertisement clearly stated that the appointments were only ad hoc in nature and were to remain valid till such time OPSC completed its pending regular recruitment exercise under Advertisement No.5 of 2013.
iii. Under the Odisha Education Service (College Branch) Recruitment Rules, 1990, all appointments made by OPSC are regular, unlike the Chhattisgarh Technical Education Three Years Contract Service (Appointment and Service Conditions) Rules, 2002 where appointments were temporary in nature.
In view of the aforesaid submissions, the judgment of the Hon'ble High Court of Chhattisgarh in Gopi Sao (supra) is clearly not applicable to the facts of the present case.
69. Learned Advocate General further submitted that given the exigencies of public administration the Government is 58 duty bound to make some temporary ad hoc appointment to meet the emergent situation and it is very well within the competency of the Government. He further placed reliance at para-25 of the Constitution Bench Judgment of the Secretary, State of Karnataka v Uma Devi14, in which the Hon'ble Supreme Court while referring to State of Haryana v Piara Singh15 held as under:
"25. This Court then concluded in paras 45 to 49:
(SCC p. 152) "45. The normal rule, of course, is regular recruitment through the prescribed agency but exigencies of administration may sometimes call for an ad hoc or temporary appointment to be made. In such a situation, effort should always be to replace such an ad hoc/temporary employee by a regularly selected employee as early as possible. Such a temporary employee may also compete along with others for such regular selection/ appointment. If he gets selected, well and good, but if he does not, he must give way to the regularly selected candidate. The appointment of the regularly selected candidate cannot be withheld or kept in abeyance for the sake of such an ad hoc/temporary employee.
46. Secondly, an ad hoc or temporary employee should not be replaced by another ad hoc or temporary employee; he must be replaced only by a regularly selected employee. This is necessary to avoid arbitrary action on the part of the 14 (2006) 4 SCC 1 15 (1992) 1 SCC 118 59 appointing authority.
47. Thirdly, even where an ad hoc or temporary employment is necessitated on account of the exigencies of administration, he should ordinarily be drawn from the employment exchange unless it cannot brook delay in which case the pressing cause must be stated on the file. If no candidate is available or is not sponsored by the employment exchange, some appropriate method consistent with the requirements of Article 16 should be followed. In other words, there must be a notice published in the appropriate manner calling for applications and all those who apply in response thereto should be considered fairly.
48. An unqualified person ought to be appointed only when qualified persons are not available through the above processes.
49. If for any reason, an ad hoc or temporary employee is continued for a fairly long spell, the authorities must consider his case for regularization provided he is eligible and qualified according to the rules and his service record is satisfactory and his appointment does not run counter to the reservation policy of the State."
Furthermore, in paragraph 45, the Hon'ble Supreme Court has observed:
"45. While directing that appointments, temporary or casual, be regularized or made permanent, the courts are swayed by the fact that the person concerned has worked for some time and in some cases for a considerable length of time. It is not as if the person who accepts an engagement either temporary or casual in nature, is not aware of the nature of his employment. He accepts the 60 employment with open eyes. It may be true that he is not in a position to bargain - not at arm's length - since he might have been searching for some employment so as to eke out his livelihood and accepts whatever he gets. But on that ground alone, it would not be appropriate to jettison the constitutional scheme of appointment and to take the view that a person who has temporarily or casually got employed should be directed to be continued permanently. By doing so, it will be creating another mode of public appointment which is not permissible if the court were to void a contractual employment of this nature on the ground that the parties were not having equal bargaining power, that too would not enable the court to grant any relief to that employee. A total embargo on such casual or temporary employment is not possible, given the exigencies of administration and if imposed, would only mean that some people who at least get employment temporarily, contractually or casually, would not be getting even that employment when securing of such employment brings at least some succor to them. .....".
70. It is further submitted by the learned Advocate General that if such ad hoc or temporary appointments are regularized, the same will have a humongous impact on the State Exchequer and will saddle the State with undue financial burden. It would also create a heart burning among other eligible candidates by denying them of opportunity to compete for such posts in accordance with Rules framed to ensure a level playing field. He further referred to Para 19 in the case of Secretary, State of Karnataka v Uma Devi (supra) -
"19. One aspect arises. Obviously, the State is also controlled by economic considerations and financial implications of any public employment. The viability of the department 61 or the instrumentality of the project is also of equal concern for the State. The State works out the scheme taking into consideration the financial implications and the economic aspects. Can the court impose on the State a financial burden of this nature by insisting on regularisation or permanence in employment, when those employed temporarily are not needed permanently or regularly? As an example, we can envisage a direction to give permanent employment to all those who are being temporarily or casually employed in a public sector undertaking. The burden may become so heave by such a direction that the undertaking itself may collapse under its own weight. It is not as if this had not happened. So, the court ought not to impose a financial burden on the State by such directions, as such directions may turn counterproductive."
Moreover, the Hon'ble Supreme Court, at para 50, has observed:
"50. It is argued that in a country like India where there is so much poverty and unemployment and there is no equality of bargaining power, the action of the State in not making the employees permanent, would be violative of Article 21 of the Constitution. But the very argument indicates that there are so many waiting for employment and an equal opportunity for competing for employment and it is in that context that the Constitution as one of its basic features, has included Articles 14, 16 and 309 so as to ensure that public employment is given only in a fair and equitable manner by giving all those who are qualified, an opportunity to seek employment. In the guise of upholding rights under Article 21 of the Constitution, a set of persons cannot be preferred over a vast majority of people waiting for an opportunity to compete for State employment. ....."
71. Having heard and considered the submissions of the 62 learned counsels for the parties and having perused the records and notes of submissions, it is crystal clear that the continuation of ad hoc Lecturer is untenable since it was purely in the nature of an executive decision in the larger interest of students as a stop gap arrangement. The candidates were also fully alive as to the nature of appointment which stipulated to be purely on ad hoc basis without any accrual of any vested rights, whatsoever.
72. The Rule 5(1) of Odisha Education Service (College Branch) Recruitment Rules, 1990, clearly mandates that the regular selection ought to be done in accordance with the Orissa Public Service Commission and in the manners prescribed by such rules and any other manner of appointment is anathema to the law governing the field. The Appellants' misplaced reliance on the Orissa Group B posts (Contractual Appointment) Rules, 2013 is erroneous since Rule-3 of the Odisha Education Service State's Scale of Pay (Method of Recruitment and Conditions of Service) Rules, 2009 provides for Group-B Junior Lecturers in the scale of pay of Rs.9300-34,800/- with Grade Pay of Rs.4,600/- (whereas the said Group B posts is applicable to the Pay Band-2 with Pay Scale of Rs.9300-34800/- and Grade Pay of Rs.4200/- only and excludes others). Therefore, the Odisha Group-B Posts (Contractual Appointment) Rules, 2013 shall not be applicable to the Appellants herein. Hence, the said rule cannot by any stretch of imagination be said to apply to the facts of the present lis.
73. The argument of legitimate expectation as advanced by some of the appellants is also not applicable in the present case since there was no promise made in terms of any policy nor is it a classic situation of legitimate expectation. Further, heavy reliance 63 in support of Sachin Ambadas Dawale (supra) and Gopi Sao v. State of Chhattisgarh (supra) are clearly distinguishable from the facts of the present case. The two cases vehemently relied upon by the petitioners are entirely misplaced which stem from an improper understanding of the facts in the present controversy. I am totally in sync with the submissions made by the learned Advocate General on this issue in the foregoing paragraphs.
74. In this context, it is apposite to refer to the case of State of Rajasthan & Ors v Daya Lal & Ors.16 which had followed the view of the Constitution Bench in the case of Secretary, State of Karnataka v. Umadevi (3)17 wherein the Hon'ble Supreme Court had laid down the well settled principles relating to regularization by inter alia holding that:
"(i) High Courts, in exercising power under Article 226 of the Constitution will not issue directions for regularization, absorption or permanent continuance, unless the employees claiming regularization had been appointed in pursuance of a regular recruitment in accordance with relevant rules in an open competitive process, against sanctioned vacant posts. The equality clause contained in Articles 14 and 16 should be scrupulously followed and courts should not issue a direction for regularization of services of an employee which would be violative of constitutional scheme. While something that is irregular for want of compliance with one of the elements in the process of selection which does not go to the root of the process, can be regularized, back door entries, appointments 16 (2011) 2 SCC 429 17 [(2006) 4 SCC 1 : 2006 SCC (L&S) 753] 64 contrary to the constitutional scheme and/or appointment of ineligible candidates cannot be regularized.
(ii) Mere continuation of service by an temporary or ad hoc or daily-wage employee, under cover of some interim orders of the court, would not confer upon him any right to be absorbed into service, as such service would be `litigious employment'.
Even temporary, ad hoc or daily- wage service for a long number of years, let alone service for one or two years, will not entitle such employee to claim regularization, if he is not working against a sanctioned post. Sympathy and sentiment cannot be grounds for passing any order of regularization in the absence of a legal right."
75. The aforesaid view was reiterated by the Hon'ble Apex Court in the case of State of UP v Rekha Rani18. Merely because some others had been regularised, it does not confer any right upon a party. An illegality cannot be perpetuated. Also, it is well settled that a temporary employee has no right to the post vide State of U.P. v. Kaushal Kishore Shukla19. In the case of Secretary to Government, School Education Department, Chennai v R. Govindswamy & Ors.20 it has been held that misdirected sympathy and sentiments cannot be valid grounds for regularisation of services in absence of legal rights which provide 18 (2011) 11 SCC 441 19 [(1991) 1 SCC 691 20 (2014) 4 SCC 769 65 otherwise. In the case of Secretary, State of Karnataka v Uma Devi & Ors (supra), the Constitution Bench of the Hon'ble Supreme Court has authoritatively mandated courts against directing regularization of appointments when the same were either prohibited as per procedure established or were being done when no such provision existed for the same in law. The Hon'ble Apex Court therein held that:
"4.The courts have not always kept the legal aspects in mind and have occasionally even stayed the regular process of employment being set in motion and in some cases, even directed that these illegal, irregular or improper entrants be absorbed into service. A class of employment which can only be called "litigious employment", has risen like a phoenix seriously impairing the constitutional scheme. Such orders are passed apparently in exercise of the wide powers under Article 226 of the Constitution. Whether the wide powers under Article 226 of the Constitution are intended to be used for a purpose certain to defeat the concept of social justice and equal opportunity for all, subject to affirmative action in the matter of public employment as recognised by our Constitution, has to be seriously pondered over. It is time, that the courts desist from issuing orders preventing regular selection or recruitment at the instance of such persons and from issuing directions for continuance of those who have not secured regular appointments as per procedure established. The passing of orders for continuance tends to defeat the very constitutional scheme of public employment. It has to be emphasised that this is not the role envisaged for the High Courts in the scheme of things and their wide powers under Article 226 of 66 the Constitution are not intended to be used for the purpose of perpetuating illegalities, irregularities or improprieties or for scuttling the whole scheme of public employment. Its role as the sentinel and as the guardian of equal rights protection should not be forgotten."
It was further held that;
"39.There have been decisions which have taken the cue from Dharwad case [(1990) 2 SCC 396 :
1990 SCC (L&S) 274 : (1990) 12 ATC 902 : (1990) 1 SCR 544] and given directions for regularisation, absorption or making permanent, employees engaged or appointed without following the due process or the rules for appointment. The philosophy behind this approach is seen set out in the recent decision in Workmen v. Bhurkunda Colliery of Central Coalfields Ltd. [(2006) 3 SCC 297 : 2006 SCC (L&S) 530 : JT (2006) 2 SC 1] though the legality or validity of such an approach has not been independently examined. But on a survey of authorities, the predominant view is seen to be that such appointments did not confer any right on the appointees and that the Court cannot direct their absorption or regularisation or re-
engagement or making them permanent."
76. It must be noted at this juncture that the Hon'ble Supreme Court while dealing with the aforesaid case was presented with the contention that in earlier case of Dharwad District PWD Literate Daily Wage Employees Assn. v. State of Karnataka21 similarly placed temporary and contractual 21 (1990) 2 SCC 396 67 employees had been directed to be regularised and therefore a similar approach must be taken for the remaining employees belonging to the State of Karnataka. The Hon'ble Apex Court did not appreciate this argument, but held that the acceptance of such an argument would mean that the appointments made otherwise than by a regular process of selection would become the order of the day completely jettisoning the constitutional scheme of appointment. It also had that merely because a certain section of persons had been given a benefit does not mean that the Court could not correct/remedy the error later on and should instead chose to perpetuate such an illegality.
On this issue, the Constitution Bench of the Hon'ble Supreme Court returned the following finding:
"43. Thus, it is clear that adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution, a court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the Constitution. Therefore, consistent with the scheme for public employment, this Court while laying down the law, has necessarily to hold that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee. If it is a contractual appointment, the appointment comes to an end at the end of the contract, if it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is 68 discontinued. Similarly, a temporary employee could not claim to be made permanent on the expiry of his term of appointment. It has also to be clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules. It is not open to the court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad hoc employees who by the very nature of their appointment, do not acquire any right. The High Courts acting under Article 226 of the Constitution, should not ordinarily issue directions for absorption, regularisation, or permanent continuance unless the recruitment itself was made regularly and in terms of the constitutional scheme."
The aforesaid view in Uma Devi's case (supra) has been followed in a series of cases for this principle including in the case of Accounts Officer (A&I), A.P. SRTC v. P. Chandra Sekhara Rao22; RBI v. Gopinath Sharma23 and Surinder Prasad Tiwari v. U.P. Rajya Krishi Utpadan Mandi Parishad24. Taking a cue from Uma Devi's case, it has been consistently held that the courts cannot countenance appointments to public office which have been made against the constitutional scheme and that it would be improper for the courts 22 (2006) 7 SCC 488 23 (2006) 6 SCC 221 24 (2006) 7 SCC 684 69 to give directions for regularisation of services of the persons who are working either as daily-wager, ad hoc employee, probationer, temporary or contractual employee, who were not appointed following the procedure laid down under Articles 14, 16 and 309 of the Constitution. Thus, taking a view that back door entry in the matter of public employment would tantamount to defrauding the Constitutional scheme emerged.
77. An important aspect that has to be borne in mind is that the Hon'ble Apex Court in the case of State of Karnataka v. KGSD Canteen Employees' Welfare Assn.25 has categorically held that it is not open to a High Court to exercise its discretion under Article 226 of the Constitution either to frame a scheme by itself or to direct the State to frame a scheme for regularising the services of ad hoc employees or daily-wage employees who had not been appointed in terms of the extant service rules framed either under a statute or under the proviso to Article 309 of the Constitution. It was held that such a scheme, even if framed by the State, would not meet the requirements of law as the executive order made under Article 162 of the Constitution cannot prevail over a statute or statutory rules framed under the proviso to Article 309 thereof.
78. In the case of Indian Drugs & Pharmaceuticals Ltd. v. Workmen26, relying on an earlier judgement in the case of P.U. Joshi v. Accountant General27 the Hon'ble Supreme Court has held that creation and abolition of posts and regularisation are 25 (2006) 1 SCC 567 26 (2007) 1 SCC 408 27 [(2003) 2 SCC 632 70 purely executive functions. Hence, the Court cannot create a post where none exists. Also, that any High Court would be beyond its powers to issue any direction to absorb the respondents or continue them in service, or pay them salaries of regular employees, as these are purely executive functions. Thus, courts cannot arrogate to itself the powers of the executive or legislature which would in turn become an act of judicial over-reach. There is broad separation of powers under the Constitution, and the judiciary, too, must be alive to its boundaries. Similar view echoed forth in the case of Union of India v. All India Trade Union Congress28 wherein it was held that the High Court failed to see that it is not the function of the courts to frame any scheme but it is the sole prerogative of the Executive to do it.
79. In the case of State of T.N. v. A. Singamuthu29 it was held that casual employments by their very nature are meant to serve the exigencies of administration. It is a settled principle of law that continuance in service for long period on part-time or temporary basis confers no right to seek regularisation in service. The person who is engaged on temporary or casual basis is well aware of the nature of his employment and he consciously accepts the same at the time of seeking employment. It was categorically noted in A. Singamuthu (supra) that, generally, while directing that temporary or part-time appointments be regularised or made permanent, the courts are swayed by the long period of service rendered by the employees. However, this may not be always the correct approach to adopt especially when the scheme of 28 (2019) 5 SCC 773 29 (2017) 4 SCC 113 71 regularisation is missing from the rule book and regularisation casts huge financial implications on public exchequer.
80. In the case of State of U.P. v. Ajay Kumar30 wherein a direction had been passed by the High Court to appoint a person when a vacancy arose despite the fact that no such regular posts were available either under the administrative instructions or statutory rules was held to be illegal and set aside. Similarly, in the case of Managing Director, U.P. Land Development Corpn. v. Amar Singh31 which dealt with a case of contractual employment of limited tenure under the engagement letter for a specific project. It was held that when the project comes to a close, the employees who are working in the project will not get any vested right. In other words, once the project comes to an end, services of the employees also come to an end. In the case of Executive Engineer, ZP Engg. Divn. v. Digambara Rao32 the Hon'ble Apex Court frowned upon the courts placing a misplaced compassion in the matter of public employment which held that while being sympathetic to the person who comes before the court, the courts cannot at the same time be unsympathetic to the large number of eligible persons waiting for a long time in a long queue seeking employment. In the case of Union of India v. Tejram Parashramji Bombhate33 the Hon'ble Apex Court has taken a view that no court or the tribunal could compel the Government to change its policy involving expenditure. Thus, in the matter of public employment the State which is the employer is always best 30 (1997) 4 SCC 88 31 (2003) 5 SCC 388 32 (2004) 8 SCC 262 33 (1991) 3 SCC 11 72 suited to assess the requirement of manpower to man different positions in its machinery. All such employments are made by the State after putting expert thought into the process of requirement and recruitment. The most important aspect, however, remains that of the impact on the public exchequer.
81. Further, there are certain categories of employments which can be said to be "litigious employments". Often, it has been seen by this court where the party who participates in a selection process rushes to the court in order to take a chance, the moment his name figures on a "select list". It is also noted that such litigations form a large chunk of the dockets of the courts and in most of these cases the parties though well aware of the legal position, still take their chances with the court by appealing to it's sense of compassion or parity. The Hon'ble Supreme Court has held categorically that merely because a person's name appears in the select list, the said person does not acquire any indefeasible right to appointment. The empanelment of such a person in a select list can at best said to be a condition of eligibility for the purpose of appointment and that by itself, by no stretch of imagination can be said to have created a vested right to be appointed. The employer/state in matters of public employment is obligated to follow the statutory rules and act in conformity with the constitutional mandate while making appointments in matters of public employment. However, that being said, it must not be forgotten that it is the exclusive prerogative of the State to initiate and conduct the recruitment process. It may so happen that there may be a large number of vacancies which may exist with regard to certain posts, which may have been initially advertised. Merely 73 because there exist vacancies in relation to the posts that were advertised and recruitment process therefor was initiated, the State can by no stretch of imagination be compelled to fill up all the vacancies. The State may in it's wisdom choose to not fill up all the vacancies at a time which were advertised as every State operates with it's own financial constraints or a certain financial plan which confirms to the larger scheme of things. Therefore, any direction by the court should always keep the aforesaid factor in mind while dealing with matters of public employment. Such a view was taken by the Supreme Court for the first time in the case of Shankarsan Dash v. Union of India34 which has since consistently been followed in the cases of Union of India v. S.S. Uppal35 ; State of Orissa v. Rajkishore Nanda36 ; Manoj Manu v. Union of India37 ; and Dinesh Kumar Kashyap v. South East Central Railway38.
82. Another aspect which the courts have to deal with from time to time is the fact that certain persons continue remain in jobs by resorting to such "litigious employment", who then turn around and approach the courts and claim equity for having served for such a long period of time under court orders. This, surely cannot be a consideration to direct the regularisation of such employees who have in fact sought to use the court process to stay employed. Mere passage of time in a certain job also cannot create a right to be appointed. The Hon'ble Apex Court in the case 34 (1991) 3 SCC 47 35 (1996) 2 SCC 168 36 (2010) 6 SCC 777 37 (2013) 12 SCC 171 38 (2019) 12 SCC 798 74 of Indian Drugs (supra) has relied upon the Constitution Bench ruling in the case of Uma Devi (supra) to hold that temporary, contractual, casual or daily wage ad hoc employees appointed de hors the Constitutional scheme to public employment have no legitimate expectation to be absorbed or, regularized or granted permanent continuation in service on the ground that they have continued for a long time in service. In fact, it has been observed by the Apex Court that non grant of permanent continuation in service of such employees is not violative of Article 21 of the Constitution and such employees do not have any enforceable legal right to be permanently absorbed, nor to be paid salary of regular employees. A regular process of recruitment or employment must be resorted to when regular vacancies and posts are to be filled up. This Court further observed that public employment must comply with Articles 14 and 16 of the Constitution as the rule of equality in public employment is a basic feature of the Constitution.
83. In Indian Drugs case (supra), it has been held that the courts must exercise judicial restraint in this connection. It has been noted that there is a tendency in some courts/tribunals to legislate or perform executive functions which cannot be appreciated. Judicial activism in some extreme and exceptional situation can be justified, but resorting to it readily and frequently, as has lately been happening, is not only unconstitutional, but is also fraught with grave peril for the judiciary itself.
84. In the case of Asif Hameed vs. State of Jammu & Kashmir39, the Hon'ble Supreme Court observed that although the doctrine of separation of powers has not been recognized under 39 AIR 1989 SC 1899 75 the Constitution in its absolute rigidity, the Constitution makers have meticulously defined the functions of various organs of the State. Legislature, Executive and Judiciary have to function within their own spheres demarcated under the Constitution. No organ can usurp the functions assigned to another. The Constitution trusts the judgment of these organs to function and exercise their discretion by strictly following the procedure prescribed therein. The functioning of democracy depends upon the strength and independence of each of its organs. The legislature and executive- the two facets of people's will, have all the powers including that of finance. The judiciary has the power of judicial review. It is the sentinel of democracy. Judicial review is a powerful weapon to restrain unconstitutional exercise of power by the legislature and executive. The expanding horizon of judicial review has taken in its fold the concept of social and economic justice. While exercise of powers by the legislature and executive is subject to judicial restraint, the only check on our own exercise of power is the self- imposed discipline of judicial restraint. When the State action is challenged, the function of the court is to examine the action in accordance with law and to determine whether the legislature or the executive has acted within the powers and functions assigned under the constitution and if not, the court must strike down the action. While doing so, the court must remain within its self- imposed limits. While exercising power of judicial review of administrative action, the court is not an appellate authority. The constitution does not permit the court to direct or advise the executive in matters of policy or to sermonize quo any matter which under the constitution lies within the sphere of the legislature or executive, provided these authorities do not 76 transgress their constitutional limits or statutory powers.
85. It has further held in Asif Hameed case (supra) that the courts must, therefore, exercise judicial restraint, and not encroach into the executive or legislative domain. Orders for creation of posts, appointment on these posts, regularization, fixing pay scales, continuation in service, promotions, etc. are all executive or legislative functions, and it is highly improper for Judges to step into this sphere, except in a rare and exceptional case. Thus, the Hon'ble Supreme Court has advised the High Courts to jealously guard against judicial overreach. The relevant case law and philosophy of judicial restraint has been succinctly laid down by the Madras High Court in great detail in the case of Rama Muthuramalingam vs. Dy. S.P.40.
86. It has also been held in the case of Asif Hameed (supra) that although the Hon'ble Supreme Court has directed regularization of temporary or ad hoc employees but it is well settled that a direction simplicitor of the Supreme Court without laying down any principle of law is not a precedent. It is only where the Hon'ble Supreme Court lays down a principle of law that it will amount to a precedent. Often the Supreme Court issues directions without laying down any principle of law which cannot be said to have precedent value or be binding on the High Courts. For instance, the Supreme Court often directs appointment of someone or regularization of a temporary employee or payment of salary, etc. without laying down any principle of law. This is often done on humanitarian considerations under a power available to it under Article 142 of the Constitution of India. Absent of such a power, 40 AIR 2005 Mad 1 77 the High Court cannot and ought not to pass such directions. In Municipal Committee, Amritsar vs. Hazara Singh41, the Supreme Court observed that only a statement of law in a decision is binding. In State of Punjab vs. Baldev Singh42, it has been observed that everything in a decision is not a precedent. In Delhi Administration vs. Manoharlal43, the Supreme Court observed that a mere direction without laying down any principle of law is not a precedent. In Divisional Controller, KSRTC vs. Mahadeva Shetty44, it was held that the only thing binding as an authority upon a subsequent Judge is the principle, upon which the case was decided. That having been said it is with such a backdrop that this court must proceed to decide cases in which a claim for parity is made based on directions passed in an earlier matter by the Court.
87. It is often seen that the court while dealing a case confines itself to the facts and circumstances of that case only. Doing so, it proceeds to direct the appointment of a party or directs the State to consider the appointment of a party by holding that such a direction is being passed which is limited only to "the facts and circumstances of the case". The pitfall here is having done so the other parties who are similarly situated then approach the court seeking parity as they too fall within similar or identical facts and circumstances which moved the court earlier. Such an approach, foments litigation as one party after another takes liberties with the court by stoking up its sense of compassion or 41 AIR 1975 SC 1087 42 1999 (6) SCC 172 43 AIR 2002 SC 3088 44 2003 (7) SCC 197 78 equity and such claims more often than not are bereft of any footing in law. The trend of Judicial Populism by means of passing judicial order to regularise the undeserving is a dangerous trend and has far-reaching consequences. In fact, in that process, a person who is not suitable might end up getting appointed armed with a court order, ultimate casualty will be on the state and its resources. It cannot be emphasised enough, as to how important it is in the matter of public employment, to find the right candidate for the right job. After all, appointing an unsuitable person is like putting a square peg in a round hole.
88. It has been further submitted on behalf of the respondent-State that the appellants have option to apply for other posts for which regular appointment is being conducted namely, Lecturers in Government Degree Colleges by OPSC and Lecturers in Aided Colleges by SSB. It was further stated that the State Government is ready and willing to ensure granting adequate age relaxation in order to enable the present appellants to compete in the regular recruitment process in the future. Accordingly, the Government is directed to consider the age relaxation aspect qua the Appellants sympathetically and give them at least two opportunities to participate in the forthcoming recruitment tests as and when the same are brought out.
89. In the light of the discussions made herein above, it is held that the appellants have no right to get regularized against the advertised public posts. The orders passed by the learned Single Judge in batch of writ petitions are upheld. Therefore, the present Writ Appeals are sans merit and accordingly the same are dismissed. No order as to cost.
79................................
S. K. Panigrahi, J.