Orissa High Court
Priti Ranjan Maharana vs The State Of Orissa And Others on 18 December, 2014
Author: B.R.Sarangi
Bench: B.R.Sarangi
ORISSA HIGH COURT: CUTTACK
ORIGINAL JURISDICTION CASE No. 7293 OF 1994
In the matter of an application under Articles 226 & 227 of the
Constitution of India.
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Priti Ranjan Maharana ......... Petitioner
- versus -
The State of Orissa and Others ......... Opp. Parties
For Petitioner : Mr. G.A.R. Dora
For Opp.Parties: Mr.S.K. Nayak-1
(opposite party nos, 2 and 3)
Mr. A.K.Mishra, learned A.G.A.
PRESENT:
THE HONOURABLE DR. JUSTICE B.R.SARANGI
Date of hearing: 04.12.2014 | Date of Judgment: 18.12.2014
Dr. B.R.Sarangi, J.The petitioner, who was working as Assistant Research Officer in Action Research Centre, Ambura, filed this application seeking a direction to opposite party nos. 2 and 3 to consider his case for promotion to the post of Lecturer from the date opposite party no.4 was promoted to the said post w.e.f. 27.02.1992 by quashing the letter dated 24.10.1994 (Annexure-11) rejecting his representation and for declaration that the promotion of opposite party no.4 vide 2 Annexure-2 dated 27.02.1992 is improper, opposed to public policy and violative of Articles 14 and 16 of the Constitution of India. Since the appointment was made without holding any interview or following due procedure of law and further seeking to quash Annexure-3, the resolution passed by the authority and the subsequent advertisement vide Annexure-7, fixing M.E./M.Tech with 5 years teaching/field experience for appointment of Lecturer.
2. The factual matrix of the case, in hand, is that the Water and Land Management Institute, Odisha (hereinafter referred to as 'WALMI'), was established by the Government of Odisha in the year 1985 and was registered as an autonomous registered Society under the Societies Registration Act. The institution is financed by the Government of Odisha and is administrated by a Governing Council under the President-ship of the Commissioner-cum-Secretary to Government of Odisha, Department of Water Resources. By following due procedure of selection, the petitioner was appointed as Assistant Research Officer on 22.06.1991 in the scale pay of Rs.2000-3500/- with usual D.A and A.D.A. Pursuant to such letter of appointment, the petitioner joined on 24.06.1991 and vide office order dated 26.06.1991, he was reposted at Pratapnagari (Atala Miner) at Pahala, which is one of the stations of action research areas of WALMI and was directed to work under administrative control of the Joint Director, WALMI. Opposite party No.4 was also selected along with the 3 petitioner and in the said selection the petitioner stood first in the merit list whereas the opposite party No. 4 stood third in the said list. But the opposite party No.4 was promoted to Lecturer in Engineering faculty of WALMI on 27.02.1992 and he was allowed to draw the scale of pay of Assistant Research Officer, i.e., Rs. 2000-3500/- till the scale of pay to the post of Lecturer was decided by the Government. The scale of pay of the lecturers was revised from Rs.700-1600/- to Rs.2200-4000/- by the Government. Considering the fact that opposite party No.4 was discharging the duty of Lecturer, he has been extended the scale of pay of Rs.2000-4000/-. The minimum qualification required for the post of the lecturer in Engineering subject was M.E/M.Tech. in appropriate branch of Engineering /Technology, with at least 55% of marks and 5 years teaching/field experience. Opposite party no.4 having no requisite qualification, by virtue of arbitrary and unreasonable exercise of power, he was promoted to the post of Lecturer ignoring the petitioner, who stood first in the select list of Assistant Research Officer. The petitioner submitted a representation claiming such benefit of promotion to the post of Lecturer. While such representation was pending for consideration, an advertisement was published in daily newspaper on 24.08.1994 for appointment of Lecturer in Engineering fixing minimum qualification as M.E/M.Tech. with 5 year teaching/field experience. The illegal promotion of the opposite party No.4 having been objected to by way of filing 4 representation and the same having been kept pending, the petitioner approached this Court by filing O.J.C No. 5950 of 1994 against the inaction of authorities, which was disposed of vide order dated 08.09.1994 directing the authorities to consider the representation and dispose of the same by passing a reasoned order expeditiously. The representation filed by the petitioner was rejected by opposite party No.3 vide order dated 24.10.1994 in Annexure-11 refusing to grant the benefit as claimed by the petitioner. Hence, this writ application.
3. Mr. G.A.R. Dora, learned Senior Counsel for the petitioner strenuously urged that opposite party No.4 having no requisite qualification, has been given promotion to the post of Lecturer on the ground that he had already completed 8 terms out of 9 terms of Master in Business Administration course with excellent performance. He further submitted that opposite party No.4 had no extra qualification other than A.M.I.E degree at the time of promotion to the post of Lecturer on 27.02.1992. The petitioner having stood first in the merit list which was prepared by the authority for the post of Assistant Research Officer, ignoring his claim for the promotion, opposite party No.4, who stood 3rd in the merit list, has been given benefit of promotion to the post of Lecturer without issuing any advertisement and without following due procedure of law, which is opposed to the public policy. He further submitted that the appointment of opposite party no.4 in the post of Lecturer having been made in a surreptitious 5 manner, it violates the settled position of law. Had the opportunity been given to the petitioner, he would have also gained the experience and he would have been appointed as a Lecturer on promotion basis. He further submitted that the promotion of opposite party No.4 having not been done without following due procedure of law, the same amounts to illegal promotion and therefore should be quashed.
4. Mr. S.K. Nayak-1, learned Senior Counsel for opposite party Nos. 2 and 3 stated that the promotion of opposite party No.4 to the post of Lecturer in Engineering faculty was made on 27.02.1992 vide Annexure-2, but the petitioner filed the writ application in the year 1994 and therefore, it is hit by doctrine of delay and laches. It is further urged that a vacancy in the post of Lecturer occurred due to promotion of one R.C.Nayak, Lecturer, Engineering to the post of Reader in Engineering and the opposite party No.4 was taking classes and gained the experience and thereafter he was promoted to the said post, but he was permitted to draw the scale of pay of Assistant Research Officer, until the revision of pay scale of lecturers was made. He further submitted that the promotion of opposite party no.4 was considered taking into account his satisfactory performance and also the fact that he possessed background of Management degree, which was of great advantage to WALMI. It is further stated that as per the Government resolution in Annexure-3, order was issued to keep the petitioner out of zone of consideration for the post of Lecturer and 6 therefore, the opposite party No.4 having got requisite qualification at the relevant point of time, was given promotion to the said post. Therefore, no infirmity can be found as against opposite party No.4 while granting the promotion to the post of Lecturer and this Court should not interfere with the same.
5. Mr.A.K.Mishra, learned counsel for opposite party No.4 reiterating the contention raised by Mr.S.K.Nayak-1, learned counsel for opposite party No.3, submitted that since opposite party no.4 gained experience in teaching, considering his performance, he has been given promotion to the post of Lecturer and therefore no illegality or irregularity has been committed by the authority in giving promotion to opposite party No.4.
6. Considering the contentions raised by the learned counsel for the parties and after going through the records, it is admitted fact that by following a due process of selection, the petitioner vis-à-vis opposite party No.4 was selected for appointment of Assistant Research Officer in WALMI. In the merit list, which was prepared by the authority, the petitioner's name found place in Sl. No.1 being stood first in the selection whereas opposite party no.4's was in 3rd position in the said list. Therefore, ignoring the claim of the petitioner for consideration of the post of Lecturer, opposite party no.4 has been appointed by opposite party no.2 & 3 as a Lecturer in WALMI. By the 7 time opposite party no.4 was appointed as Lecturer, he had neither any requisite qualification, i.e. Master's Decree in Engineering nor he was otherwise eligible for such appointment. The petitioner claimed such benefit on the ground that if opposite party no.4 has been considered for promotion to the post of Lecturer, similar opportunity should have been given to him to participate in the process of selection of such post. As it appears from the records, no process of selection has been followed with regard to the appointment/ selection for the post of Lecturer in Engineering, against which opposite party no.4 has been appointed. That apart, no advertisement has ever been issued, no procedure has been followed and no rules have been framed for giving such benefits to opposite party no.4. Therefore, the appointment of opposite party no.4 to the post of Lecturer being dehors the provisions of law, is hit by Articles 14 and 16 of the Constitution of India. The petitioner having stood first in the selection for the post of Assistant Research Officer, he has a legitimate expectation that in the event any vacancy arises in future taking into account his qualification, experience, he should also equally be considered for the post of lecturer and he should be extended with the benefit admissible to him in conformity with provision of law. Without following due procedure of law, the promotion having been given to opposite party No.4, the same is hit by Articles 14 and 16 of the constitution of India.
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7. So far as gaining of experience is concerned, learned counsel for the petitioner states that the petitioner having been appointed as Assistant Research Officer, he had been posted at Kusunpur which is 150 km away from the Institution and from that place it is not possible to impart any teaching so as to be considered for promotion to the post of Lecturer by the authority. In absence of any provision made for selection of the Lecturer for promotion, the entire action of the authority giving promotion to opposite party no.4 to the post of Lecturer is arbitrary, unreasonable and violative of Articles 14 and 16 of the Constitution of India.
8. No doubt creation and abolition of post, formation and structuring/restructuring of cadres, prescribing the source and mode of recruitment and qualifications and criteria of selection, etc. are matters which fall within the exclusive domain of the employer. Although the decision of the employer to create or abolish posts or cadres or to prescribe the source or mode of recruitment and laying down the qualification, etc. is not immune from judicial review, the Court should be extremely cautious and circumspect in tinkering with the exercise of discretion by the employer. The public employment in a sovereign socialist secular democratic republic, has to be as set down by the Constitution and the laws made thereunder. The constitutional scheme envisages employment by the Government and its instrumentalities on the basis of a procedure established in that behalf. Equality of 9 opportunity is the hallmark, and the Constitution has provided also for affirmative action to ensure that un-equals are not treated as equals. Thus, any public employment has to be in terms of the constitutional scheme. A sovereign Government, considering the economic situation in the country and the work to be got done, is not precluded from making temporary appointments or engaging workers on daily wage basis. Sometimes this process is not adhered to and the constitutional scheme of public employment is bypassed at the peril of more meritorious candidates awaiting for getting appointment inconformity with the provisions of law.
9. As it appears from the record, the minimum qualification prescribed for the appointment of Lecturer is ME/M.Tech. Neither the petitioner nor the opposite party no.4 possesses the said qualification. In addition to the same, neither any advertisement was issued nor has any procedure been followed for selection for the post of Lecturer on promotion and as such, no opportunity has been given to the petitioner even to acquire experience to be considered for appointment as Lecturer. Opposite party no.4 has been favoured by appointing him as lecturer reason of which is best known to the authorities without giving opportunity to the petitioner, which is hit by Article 14 and 16 of the Constitution of India.
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10. The contention raised that the writ application suffers from doctrine of delay and laches is absolutely misconceived one inasmuch as, opposite party no.4 has been given promotion to the post of Lecturer in Engineering on 27.02.1992 against which the petitioner filed a representation, but the same was kept pending. Thereafter he approached this Court by filing the writ petition in OJC No.5950 of 1994, which was disposed of on 08.09.1994. In compliance to direction given by this Court in the said writ application, his representation was disposed of by competent authority rejecting his claim vide Annexure- 11, whereafter, he immediately approached this Court in the present writ application. In view of such position, it cannot be construed that the writ application suffers from delay and laches. Such contention raised by learned counsel for the opposite parties cannot sustain.
11. It is urged that in the meantime more than 20 years have elapsed after the appointment/promotion and therefore, this Court may not pass any order unsettling the settled position at the behest of the petitioner. If the benefit has been extended contrary to the provision of law even if matter has been settled for a quite long time that ipso facto cannot inure to the benefit of an illegal holder of the post.
12. In Secretary, State of Karnataka and others v.
Umadevi (3) and others, (2006) 4 SCC 1, the Constitution Bench of 11 the apex Court has clearly held that absorption, regularization or permanent continuance of temporary, contractual, casual, daily-wage or ad hoc employees appointed/recruited and continued for long in public employment dehors the constitutional scheme of public employment is contrary to equality of opportunity, therefore, if a person who has been appointed/promoted illegally and continued his service during pendency of the writ application, challenging such appointment/promotion by a person who is deprived of getting such benefit cannot be construed that settled position is going to be unsettled. Illegal holder of the post in a public employment no right can accrue in his favour. The question of delay and laches also will not stand of the way in view of the fact that the petitioner approached this Court immediately after rejection of his representation in Annexure-11 in the year 1994 and during pendency of the litigation, illegally opposite party no.4 is continuing in the post and vide order dated 19.01.1995 passed in Misc. Case No. 7508 of 1994 this Court held that any promotion made would be subject to the result of the writ petition and this condition shall be indicated in the appointment order to be issued to the promotee. Therefore, any preliminary benefit enjoyed by opposite party no.4 is subject to result of this writ petition. In that view of the matter, it cannot be said that the settled position is going to be unsettled by this Court when the writ application is entertained at this stage.
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13. In the case of Official Liquidator v. Dayanand and Others, (2008) 10 SCC 1, the apex Court has held that the menace of illegal and backdoor appointment compelled the Courts to rethink and in a large number of subsequent judgments this Court declined to entertain the claims of ad hoc and temporary employees for regularization of services and even reversed the orders passed by the High Courts and Administrative Tribunals. The appointment of opposite party no.4 having been made dehors the rules without any advertisement and without following due procedure of law, is hit by Articles 14 and 16 of Constitution of India. In case of illegal appointment even though the appointee has spent a quite long time because of pendency in the High Court that ipso facto cannot entitle him to claim any benefit to that extent. The Constitution of India puts a mandate that in public employment there must be strict adherence to the provisions of law by giving equal opportunity to all the parties. In the present case it appears that promotion has been given to opposite party no.4 in a backdoor method without giving an opportunity to the similarly situated persons, thereby the action of the authority giving promotion to the opposite party no.4 is violative of Article 14 and 16 of Constitution of India.
14. In view of the aforesaid facts and circumstances of the case and the law discussed above, this Court is of the considered opinion that the appointment of opposite party no.4 as Lecturer 13 (Annexure-2 dated 27.02.1992) being in violation of Articles 14 and 16 of Constitution of India, the same should be quashed. Accordingly, the same is quashed.
15. With the aforesaid observation and direction, the writ application is disposed of. No order as to cost.
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Dr.B.R.Sarangi, J.
Orissa High Court, Cuttack The 18th December, 2014/Ajaya/PKSahoo