Orissa High Court
Biswa Ranjan Sahoo And Another vs Union Of India And Others on 3 March, 2017
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
HIGH COURT OF ORISSA: CUTTACK.
O.J.C. No.16339 of 1998
In the matter of application under Articles 226 and 227 of the
Constitution of India.
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Biswa Ranjan Sahoo and Another ...... Petitioners.
- Versus-
Union of India and Others ...... Opposite Parties.
Counsel for Petitioners : M/s. A. K. Mishra, B. B. Acharya, J.
Sengupta, D. K. Panda, P. R. J. Dash and
G. Sinha.
Counsel for Opp.Parties : Mr. Bidyadhar Mishra (for Union of
India)
M/s. Bijoy pal, A. K. Mishra, A. Pal, B. P.
Mohapatra.
PRESENT:
THE HONOURABLE KUMARI JUSTICE SANJU PANDA
&
THE HONOURABLE SHRI JUSTICE SUJIT NARAYAN PRASAD
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Date of hearing and judgment : 03.03.2017
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S. N. Prasad, J.The petitioner / applicant has approached this Court under Article 226 and 227 of the Constitution of India questioning the order passed by the Central Administrative Tribunal, Cuttack Bench, Cuttack in O.A. No.810 of 1997 dtd.23.09.1998 whereby and where under the Tribunal has refused to interfere with the order of termination. 2
2. The brief fact of the case is that in pursuance to an advertisement issued by the opposite party no.3 in the year 1992 vide employment notice No.6/1992 for selection to the post of Chargeman-B both mechanical and electrical for fulfilling 9 posts for Chargeman - B mechanical and 6 posts for Chargeman-B electrical. The candidates had applied for the said post including the petitioner / applicant, a written test was conducted, 18 candidates were selected in the written test and were called for viva-voce test on 30th April, 1993, the petitioner was informed that he was selected for the post and was also directed to undergo training for 12 months, while continuing, one Susanta Kumar Dinda, filed one original application being O.A. No.137 of 1993 before the Central Administrative Tribunal, Cuttack Bench, Cuttack, the tribunal while disposing of the original application vide order dtd.10.11.1994 has cancelled the entire selection process with a direction to go for fresh selection process by holding fresh written examination and fresh evaluation.
After the order having been passed by the Tribunal, the opposite party no.3 had issued fresh employment notice being Notice No.2/1995 to fill up the post of Chargeman-B in the electrical engineering discipline, the last date for submission of application was 31.03.1995 with a specific stipulation therein that the selection earlier made has been cancelled pursuant to the order passed by the Central Administrative Tribunal dtd.10.11.1994 in O.A. No.137 of 1993. The concerned competent 3 authority has issued order against the petitioner for termination of his service in pursuance to the direction passed by the Central Administrative Tribunal, Cuttack Bench, Cuttack in O.A. No.137 of 1993 on 13.03.1995 (Annexure-5).
The petitioner, being aggrieved with the order of termination and order passed in O.A. No.137 of 1993, has filed Special Leave Petition before the Hon'ble Supreme Court but the same was withdrawn on 07.04.1995 with liberty to file review petition before the Tribunal. The petitioner has filed review petition being Review Petition No.7/1995 before the Tribunal but the same was also dismissed.
3. It is the case of the petitioner that while the review petition was pending, notices were issued to him to appear in the written test for the post of Chargeman-B Electrical which was scheduled to be held on 11.06.1995, the petitioner, having no option, has filed miscellaneous petition before the tribunal being M.P. No.399 of 1995 with a prayer to direct the opposite parties to exempt him from participating in the examination to be conducted in pursuance to the order passed in O.A. No.137 of 1993, the Tribunal has passed order in the miscellaneous petition wherein the direction has been passed by staying the order dtd.13.03.1995 and in pursuance to the interim order the petitioner did not appear in the examination which was scheduled to be held on 11.06.1995. Ultimately the review petition was dismissed vide order dtd.20th March 1996.
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The petitioner after rejection of the review petition, again approached the Hon'ble Apex Court vide SLP (C) No.10250 of 1996 but the same was also dismissed on 8.5.1996.
The petitioner submits that since he was continuing on the post since the year 1993, as such he should be allowed to continue in service and when his grievance has not been redressed, he along with other similarly situated employees had approached before the Central Administrative Tribunal, Cuttack Bench, Cuttack vide O.A. No.810 of 1997 along with other original applications having been filed by the other similarly situated employees challenging the order of termination dtd.13.03.1995 on the ground that before terminating principle of natural justice has not been followed and they have not appeared in the recruitment test in view of the stay order passed by the Tribunal in Review Application No.7 of 95 (M.P. No.399 of 95) and as such they are entitled to continue in service but the Tribunal has rejected the claim on the ground that the petitioner, since has not participated in the regular recruitment process and the Tribunal has passed order in O.A. No.137 of 1993 that the ad hoc arrangement will continue till the fresh selection is made and the authority have gone for fresh selection and in pursuance thereto the regular recruitment has been made, hence the petitioner has got no right to continue in service in pursuance to the order passed in O.A. No.137 of 1993.
4. None appears for the opposite parties.
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5. We have heard the learned counsel for the petitioner and perused the documents available on record.
The fact which is not in dispute in this case is that the petitioner along with others have been appointed as chargeman-B in the Electrical discipline in pursuance to an advertisement issued by the authority in the year 1992 being Notice No.6 of 1992. The entire selection process has been challenged by one Susanta Kumar Dinda by filing one original application before the Central Administrative Tribunal, Cuttack Bench, Cuttack being O.A. No.137 of 1993, the Tribunal while disposing of the original application vide order dtd.10.11.1994 has passed the following order:-
".........The petitioner is right when he marks a grievance that these corrections were motivated only to favour some of the candidates and confer benefit on them. While such a state of affairs is so clear on the face of this tabulation form, what is left to us is only to quash the select list as also the results of the examination. It would not meet the ends of justice if only re-valuation is ordered to be made as so much could be said in the matter of evaluation or tabulation, as the case may be. It is only proper that the entire process of selection shall be made afresh by holding fresh written examination and the evaluation entrusted to persons with unbiased integrity who could be trusted. With these observations, we quash the select list prepared by virtue of the notification referred to above and we also quash the results of the examination as also the viva-voice test results and we direct that a fresh notification advertising the posts be issued and fresh examinations both written and viva-voice be held within 90 days from the date of receipt of a copy of the order."
The authorities, in pursuance to the order passed by the Tribunal in O.A. No.137 of 1993, has come out with a fresh advertisement by cancelling the entire selection process by directing the petitioner and other appointees to participate in the fresh selection process notified in 6 pursuance to the fresh advertisement by cancelling the appointment. The petitioner along with others rushed to Hon'ble Supreme Court directly by filing Special Leave Petition but the same was permitted to be withdrawn with liberty to file review before the Tribunal. The petitioner along with others had filed review before the Tribunal being Review Petition No.7 of 1995 and while the review petition was pending the petitioner along with other similarly situated employees have been directed to appear in the written test, the petitioner along with others had filed one miscellaneous petition before the tribunal in review petition No.7 of 1995 being M.P. No.399 of 1995 for directing the authorities not to compel them to participate in the recruitment process, the tribunal has passed the following order:-
"M.P. No.399 of 1995 was taken up for admission and hearing. Ad- interim measure, it is directed that operation of the order dtd.13.3.1995 vide Annexure-3 is stayed in so far as it relates to the petitioners, Shri Biswaranjan Sahu, Rajanikanta Guru and Umakanta Panigrahi. Copy of this order be handed over to the learned counsel both sides."
The tribunal ultimately, has dismissed the review petition. The petitioner along with others had again approached the Hon'ble Supreme Court by filing SLP (C) No.10250 of 1996 but the same was dismissed vide order dtd.08.05.1996. The authorities in the meanwhile have completed the selection process afresh.
The order of termination dtd.13.03.1995 was challenged before the Central Administrative Tribunal by the petitioner and other similarly situated employees by filing analogous original applications, the petitioner 7 has filed O.A. No.810 of 1997, the Tribunal has rejected the same, which is under challenge in this writ petition.
There is no dispute that the petitioner was selected in pursuance to the advertisement issued vide employment notice No.6/1992, the entire selection process has been cancelled by the Central Administrative Tribunal vide its order passed in O.A. No.137 of 1993 dtd.10.11.1994, as would be evident from the order dtd.13.03.1995 (Annexure-5) by terminating their services, the relevant portion of the order is being quoted herein below:-
"............In obedience to the above direction given by the Hon'ble CAT / Cuttack, the Chairman, RRB/Bhubaneswar vide his letter No.RRB/BBS/ Court Case / OA No.137/ S. K. Dinda / 248 dated 13.02.1995 has cancelled the panel of the following six persons, whose names were recommended under his No.RRB/BBS/ Palen /6/92 dated 26.02.1993:
Roll No. Name Father's Name
000401 Shri Iswar Singh (SC) Shri Dhanpat Singh
002299 Shri Zafrul hasan (UR) Shri Zahurul hasan
001187 Shri Ajay Kr. Nayak (UR) Shri Bimbadhar Nayak
001567 Shri Rajani Kanta Guru (UR) Shri Dhirendranath Guru
001018 Shri Umakanta Panigrahi(UR)Shri Sitaram Panigrahi
001325 Shri Biswa Ranjan Sahoo (UR) Shri Bhagaban Ch. Sahoo.
In view of the cancellation of the panel, the offer of appointment to the above 6 candidates who have been appointed on this Railway on the basis of the select list mentioned above are hereby cancelled and their regular services are terminated.
However, due to exigency of services they are allowed to continue in service purely on ad hoc basis, subject to the conditions of their passing the written / viva-voce test and empanelment on their merit obtaining in the examination, to be conducted by the RRB/Bhubaneswar afresh. If they fail to qualify / empanelment as a result of the fresh selection, their services would be terminated.........."
It is evident from the order passed by the Central Administrative Tribunal in O.A. No.137 of 1993 that the entire selection 8 process, initiated in terms of advertisement No.6/92 has been directed to be cancelled and in terms thereto the authorities have acted upon by passing an order on 13.03.1995, as quoted herein above, however, due to exigency of work, the petitioner and other similarly situated employees have been allowed to continue in service, purely on ad hoc basis, subject to the conditions of their passing the written / viva-voce test and empanelment on their merit obtaining in the examination to be conducted by the Railway Recruitment Board / Bhubaneswar afresh. If they fail to qualify / empanelment as a result of the fresh selection, their services would be terminated.
The petitioners had challenged the order dtd.13.03.1995 first directly before the Hon'ble Supreme Court but the same was withdrawn with liberty to file review petition before the Tribunal, review has been filed being Review Case No.7 of 1995 in which one miscellaneous petition has been filed being M.P. No.399 of 1995 wherein prayer has been made to stay the operation of order dtd.13.03.1995, learned Tribunal has passed an interim order staying operation of the order dtd.13.03.1995 but ultimately the review case No.7 of 1995 itself has been dismissed on merit, against which Special Leave Petition has been filed before Hon'ble Supreme Court being SLP (Civil) No.10250 of 1996 but the same has also been dismissed.
The petitioners claim that since they have been allowed to continue in service in pursuance to the order dtd.13.03.1995, as such even if they have not participated in the written test by virtue of the order passed 9 by the learned Tribunal in M.P. No.399 of 1995, they cannot be disengaged from service, but this argument is not acceptable to us, reason being that the petitioners have been allowed to continue in service purely on ad hoc basis, subject to the condition of their passing in the written examination to be conducted afresh with the condition that if they fail to qualify / empanelment as a result of the fresh selection, their service would be terminated. The petitioners have not participated in the recruitment process conducted afresh pursuant to the order passed in O.A. No.137 of 1993 and as such they have got no right to continue in service by virtue of the interim order passed in M.P. No.399 of 1995 as because the interim order passed in M.P. No.399 of 1995 also lost its force the day when review petition No.7 of 1995 has been dismissed, which has also been affirmed by the Hon'ble Apex Court in SLP (Civil) No.10250 of 1997.
Hence the petitioners have got no right to remain in service for the reasons mentioned above.
6. The claim of the petitioner for passing an interim order in O.A. No.810 of 1997 has also been dismissed vide order dtd.23.09.1998 for allowing them to continue in service and stay operation of the termination order, the same has not been challenged by them.
7. The main ground taken by the petitioner that the order of termination is not sustainable in the eye of law since the same has been issued without following the principle of natural justice but in the facts and 10 circumstances of the instant case, since the appointment of the petitioner has been terminated in pursuance to the order passed by the Central Administrative Tribunal in O.A. No.137 of 1993 with liberty to participate in the fresh selection process, as such in this situation there is no requirement to follow the principle of natural justice since the state has taken action in pursuance to the order passed by the Central Administrative Tribunal.
Further the Tribunal has discussed the other aspect of the matter that the principle of natural justice is required in a case where the termination is punitive but in the case of termination simplicitor there is no requirement to follow the principle of natural justice, moreover, in the instant case, the termination is simplicitor, that too in pursuance to the order passed by the Central Administrative Tribunal in O.A. No.137 of 1993 with the liberty to the petitioner to participate in the fresh selection process to be initiated in pursuance to the order passed in O.A. No.137 of 1993 but the petitioner has not availed the same.
We have gone through the order passed by the Tribunal and have found that the tribunal has taken into consideration all aspects of the matter in detail and thereafter found that the petitioner has got no case on merit and accordingly rejected the original application.
8. We after going through the finding given by the Tribunal in the order impugned, as also scrutinizing the factual aspect, are of the 11 considered view that the petitioner has got no case on merit and since the tribunal has taken into consideration all aspects of the matter, we decline to interfere with the same.
In the result the writ petition stand dismissed.
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S.N.Prasad, J. Sanju Panda, J. Orissa High Court, Cuttack, Dated the 3rd March, 2017/mkp