Orissa High Court
Nihar Kanta Biswal And vs State Of Odisha & Others .... Opposite ... on 8 May, 2024
Author: Biraja Prasanna Satapathy
Bench: Biraja Prasanna Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) Nos.7924, 8034, 8037, 8039, 8516, 10948, 10949, 10950, 10951, 10952, 10953 & 10954 of 2023 In the matter of an application under Section 19 of the Administrative Tribunal's Act, 1985. .................. Nihar Kanta Biswal and Others .... Petitioners -versus- State of Odisha & Others .... Opposite Parties W.P.(C) No.8034 of 2023 Sephali Guru .... Petitioner -versus- State of Odisha & Another .... Opposite Parties W.P.(C) No.8037 of 2023 Keshab Dash and Another .... Petitioners -versus- State of Odisha & Another .... Opposite Parties W.P.(C) No.8039 of 2023 Soubhagya Chandra Lenka .... Petitioner -versus- State of Odisha & Another .... Opposite Parties // 2 // W.P.(C) No.8516 of 2023 Priyabrata Behera .... Petitioner -versus- State of Odisha & Others .... Opposite Parties W.P.(C) No.10948 of 2023 Jagannath Behera .... Petitioner -versus- State of Odisha & Others .... Opposite Parties W.P.(C) No.10949 of 2023 Bikram Swain and Others .... Petitioners -versus- State of Odisha & Others .... Opposite Parties W.P.(C) No.10950 of 2023 Pratap Rudra Panda and .... Petitioners Others -versus- State of Odisha & Others .... Opposite Parties W.P.(C) No.10951 of 2023 Dilip Kumar Mahanta .... Petitioner -versus- State of Odisha & Others .... Opposite Parties Page 2 of 60 // 3 // W.P.(C) No.10952 of 2023 Haradhan Debanath .... Petitioner -versus- State of Odisha & Others .... Opposite Parties W.P.(C) No.10953 of 2023 Shyamaghan Pani .... Petitioner -versus- State of Odisha & Others .... Opposite Parties W.P.(C) No.10954 of 2023 Sanjib Kumar Dash and Others .... Petitioners -versus- State of Odisha & Others .... Opposite Parties For Petitioners : Mr. B. Routray, Senior Advocate appearing in(W.P.(C) Nos.7924, 8039, 8034, 8037 of 2023 Mr. Manoj Kumar Mishra, Senior Advocate appearing in (W.P.(C) Nos.8516, 10949, 10948, 10950, 10953, 10954, 10952, 10951, of 2023) For Opp. Parties : Mr. S.K. Samal, AGA Page 3 of 60 // 4 // PRESENT: THE HONBLE JUSTICE BIRAJA PRASANNA SATAPATHY --------------------------------------------------------------------------------- Date of Hearing:19.03.2024 and Date of Judgment:08.05.2024 -------------------------------------------------------------------------------- Biraja Prasanna Satapathy, J.
1. Since the issue involved in the present batch of Writ Petitions is similar, all the matters were heard analogously and disposed of by the present common order.
2. All these Writ Petitions have been filed inter alia challenging order dated 08.08.2018, so passed by the O.P. No.1 and with a further prayer to direct the Opp. Parties to regularize the services of the petitioners as against the post of Junior Lecturers (Post Graduate Teacher) with all service and financial benefits. But for effectual adjudication of the dispute in question, W.P.(C) No.7924 of 2023 is taken as the lead case and pleadings made and documents annexed thereto are to be treated as the points for disposal of the matter by this Court.
3. Mr. B. Routray, learned Senior Counsel appearing in W.P.(C) No.7924 of 2023 contended that Government in Page 4 of 60 // 5 // ST & SC Development Department vide its notification issued on 31.01.2006 decided to upgrade Government High Schools (SSD), Higher Secondary School (+2 Science) w.e.f. the Academic Session 2005-06 under the State plan (SP).
3.1. As per the said decision, it was decided that after such up-gradation, the schools will be renamed as Government Higher Secondary School (+2 Science). Basing on the decision taken by the Government on 31.01.2006 under Annexure-1, a further communication was issued by the Director (ST & SC)-cum-Addl. Secretary to Govt., ST & SC Development Department on 17.06.2006 under Annexure-2. Vide the said letter, taking into account the decision of the Govt. to upgrade 8 nos. of High Schools in KBK area to Higher Secondary Schools (+2 Science and Commerce) w.e.f. Academic Session 2005-06, in proceeding of the meeting held on 07.06.2006 which was forwarded to the Collectors coming under the KBK districts vide Annexure-2, the criteria for selection of teaching and non-teaching staffs in such Higher Secondary Schools was formulated.
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// 6 // 3.2. As against the post of teaching staff, it was decided to invite applications through open advertisement by ST & SC Development Department in the News Papers for walk- in-interview for selection of candidates for their engagement on contractual basis having Masters' Degree qualification in the respective subject with at least 55% of mark from a recognized University. It was further decided that selection of candidates for engagement of Jr. Lecturers are to be conducted by a committed headed by the Director (ST & SC)-cum-Addl. Secy., as Chairman, Director, Higher Education and Chairman, +2 Council as Member Secretary with the subject experts. It was further decided that the selection will carry 100 marks i.e. 50% for Career mark and 50% for Interview. In the said proceeding of the meeting dated 07.06.2006 so enclosed to Annexure-2, it was also decided that on such engagement of Junior Lecturers, they will get salary @ Rs.6500/- per month consolidated.
3.3. It is contended that for recruitment of such Junior Lecturers and Laboratory Assistant, 72 posts of Junior Lecturers and 32 Posts of Laboratory Assistant were Page 6 of 60 // 7 // created on contractual basis vide Department Govt. Order No.30136 (SSD) dated 28.07.2006. It is contended that basing on the decision so taken by the Govt. under Annexure-1 and by the Director under Annexure-2 with the proceeding of the meeting held on 07.06.2006, an advertisement was issued on 28.06.2006 under Annexure- 3, inviting applications from eligible candidates for engagement as Junior Lecturers on contractual basis for the Session 2006-07 in Shri Ekalabya Model Residential School managed by OMTES, Odisha and 8 High Schools upgraded to +2 Higher Secondary Schools under the management of ST & SC Development Department, Government of Odisha.
3.4. Pursuant to the advertisement so issued under Annexure-3, all the petitioners participated in the selection process as against the post of Junior Lecturers in different discipline and on being duly selected, petitioners were issued with the order of engagement by the Department on 04.08.2006. After due execution of the agreement, engagement order was issued on 10.08.2006. After such execution of the agreement with the order of Page 7 of 60 // 8 // engagement issued on 10.08.2006, petitioners joined as Junior Lecturers in different discipline and posted to various Government (SSD) Higher Secondary Schools in KBK districts.
3.5. It is contended that even though vide the engagement order issued on 10.08.2006, the term of appointment was up to the end of Feb, 2007, but the same was extended from time to time vide orders issued by the Department on 09.07.2009 and 19.07.2012 under Annexure-5 series. It is also contended that considering the demand of such contractual Junior Lecturers and Laboratory Assistants working in Higher Secondary Schools under ST and SC Development Department, vide office order dated 09.12.2011 under Annexure-6, the monthly remuneration was enhanced from Rs.9300/- to Rs.12,500/- for Junior Lecturers and to Rs.11,000/- in respect of Laboratory Assistants. The said order under Annexure-6 was also issued with due concurrence of the Finance Department. Not only that continuance of the petitioners as Junior Lecturers, was also extended vide Page 8 of 60 // 9 // order dated 09.07.2009 and 19.07.2012 with due concurrence of the Finance Department. 3.6. It is contended that even though petitioners continued as Junior Lecturers on contractual basis vide order of engagement issued in the year 2006 without any break in engagement and with due extension issued by the Govt. from time to time, but on the face of such continuance, when no step was taken to regularize their services, the petitioners along with similar situated Junior Lecturers approached the State Administrative Tribunal (In short "Tribunal") in O.A. No.1225 (C) of 2015 and batch.
3.7. It is contended that during pendency of the matter before the Tribunal with the prayer for regularization of the services of the petitioners, Odisha Higher Secondary Education Service (in State Scale of Pay), (Method of Recruitment and Conditions of service of Post Graduate Teachers of the Schedule Tribe & Schedule Caste Development Department) Rules, 2016 came into force (in short the Rules). The aforesaid 2016 Rule was published Page 9 of 60 // 10 // in the Odisha Gazette Extra-Ordinary on 20.05.2016. It is contended that while publishing the rules in question vide notification dated 12.05.2016, it was clearly indicated that such rule was framed in supersession of the Rules/Regulations/Orders/ Instructions issued in this regard except as in respect to things done or omitted to be done before such supersession.
3.8. It is contended that in view of the provisions contained in the Preamble to the Rules, that the Rules were framed in supersession of the Rules/Regulations/Orders / Instructions issued in this regard except as respect to things done or omitted to be done before such supersession, learned Senior Counsels appearing for the Petitioners contended that in view of such provision contained in the Preamble, since basing on the earlier instruction issued by the Government in the ST & SC Development Department on 31.01.2006 and 17.06.2006 under Annexure-1 and 2, a conscious decision was taken to provide appointment to Junior Lecturers on contractual basis, petitioners are not governed under the provisions of the aforesaid 2016 rules, since they were Page 10 of 60 // 11 // appointed in terms of the earlier instruction issued under Annexure-1 and 2.
3.9. With regard to the provisions contained in the Preamble "except as respect to things done or omitted,"
and its true intent, learned Senior Counsel appearing for the Petitioners relied on a decision of the Hon'ble Apex Court in the case of Anushka Rengunthwar and Others Vs. Union of India and Others. Hon'ble Apex Court in Para-21, 27 and 51 of the said Judgment has held as follows:-
"21. In that background, it would be necessary to refer to the impugned notification dated 04.03.2021 which reads as hereunder:
"MINISTRY OF HOME AFFAIRS NOTIFICATION New Delhi, the 4th March, 2021 S.O. 1050(E) - In exercise of the powers conferred by sub- section (1) of section 7B of the Citizenship Act, 1955 (57 of 1955) and in supersession of the notification of the Government of India in the Ministry of Home Affairs published in the Official Gazette vide number S.O. 542(E), dated the 11th April, 2005 and the notifications of the Government of India in the erstwhile Ministry of Overseas Indian Affairs published in the Official Gazette vide numbers S.O. 12(E), dated the 5th January, 2007 and S.O. 36(E), dated the 5th January, 2009, except as respect things done or omitted to be done before such supersession, the Central Government hereby specifies the following rights to which an Overseas Citizen of India Cardholder (hereinafter referred to as the OCI cardholder) shall be entitled, with effect from the date of publication of this notification in the Official Gazette, namely:--
(1) grant of multiple entry lifelong visa for visiting India for any purpose Page 11 of 60 // 12 // Provided that for undertaking the following activities, the OCI cardholder shall be required to obtain a special permission or a Special Permit, as the case may be, from the competent authority or the Foreigners Regional Registration Officer or the Indian Mission concerned, namely:--
(i) to undertake research;
(ii) to undertake any Missionary or Tabligh or Mountaineering or Journalistic activities;
(iii) to undertake internship in any foreign Diplomatic Missions or foreign Government organisations in India or to take up employment in any foreign Diplomatic Missions in India;
(iv) to visit any place which falls within the Protected or Restricted or prohibited areas as notified by the Central Government or competent authority; (2) exemption from registration with the Foreigners Regional Registration Officer or Foreigners Registration Officer for any length of stay in India:
Provided that the OCI cardholders who are normally resident in India shall intimate the jurisdictional Foreigners Regional Registration Officer or the Foreigners Registration Officer by email whenever there is a change in permanent residential address and in their occupation; (3) parity with Indian nationals in the matter of,-
(i) tariffs in air fares in domestic sectors in India; and
(ii) entry fees to be charged for visiting national parks, wildlife sanctuaries, the national monuments, historical sites and museums in India;
(4) parity with Non-Resident Indians in the Matter of,-
(i) inter-country adoption of Indian children subject to the compliance of the procedure as laid down by the competent authority for such adoption;
(ii) appearing for the all India entrance tests such as National Eligibility cum Entrance Test, Joint Entrance Examination (Mains), Joint Entrance Examination (Advanced) or such other tests to make them eligible for admission only against any Non-Resident Indian seat or any supernumerary seat;
Provided that the OCI cardholder shall not be eligible for admission against any seat reserved exclusively for Indian citizens.
(iii) Purchase or sale of immovable properties other than agricultural land or farm house or plantation property; and
(iv) Pursuing the following professions in India as per the provisions contained in the applicable relevant statutes or Acts as the case may be, namely:--
(a) doctors, dentists, nurses and pharmacists;
(b) advocates;Page 12 of 60
// 13 //
(c) architects;
(d) chartered accountants;
(5) in respect of all other economic, financial and educational fields not specified in this notification or the rights and privileges not covered by the notifications made by the Reserve Bank of India under the Foreign Exchange Management Act, 1999 (42 of 1999), the OCI cardholder shall have the same rights and privileges as a foreigner.
xxxx xxxx xxxx xxxx
27. Shri K.V. Viswanathan, learned senior counsel while contending that the right which had accrued cannot be taken away and the 'things done' or 'omitted to be done' before such supersession is to be kept in view, has relied on the decision in (1961) 1 SCR 305 Universal Imports Agency v. Chief Controller of Imports and Exports wherein it is held as hereunder:
"16. What were the "things done" by the petitioners under the Pondicherry law? The petitioners in the course of their import trade, having obtained authorization for the foreign exchange through their bankers, entered into firm contracts with foreign dealers on C.I.F. terms. In some cases irrevocable Letters of Credit were opened and in others bank drafts were sent towards the contracts. Under the terms of the contracts the sellers had to ship the goods from various foreign ports and the buyers were to have physical delivery of the goods after they had crossed the customs barrier in India. Pursuant to the terms of the contracts, the sellers placed the goods on board the various ships, some before and others after the merger, and the goods arrived at Pondicherry port after its merger with India. The prices for the goods were paid in full to the foreign sellers and the goods were taken delivery of by the buyers after examining them on arrival. Before the merger if the Customs Authorities had imposed any restrictions not authorised by law, the affected parties could have enforced the free entry of the goods in a court of law. On the said facts a short question arises whether para 6 of the Order protects the petitioners. While learned counsel for the petitioners contends that "things done" take in not only things done but also their legal consequences, learned counsel for the State contends that, as the goods were not brought into India before the merger, it was not a thing done before the merger and, therefore, would be governed by the enactments specified in the Schedule. It is not necessary to consider in this case whether the concept of import not only takes in the factual bringing of goods into India, but also the entire process of import commencing from the date of the application for permission to import and ending with the crossing of the customs barrier in Page 13 of 60 // 14 // India. The words "things done" in para 6 must be reasonably interpreted and, if so interpreted, they can mean not only things done but also the legal consequences flowing therefrom. If the interpretation suggested by the learned counsel for the respondents be accepted, the saving clause would become unnecessary. If what it saves is only the executed contracts i.e. the contracts whereunder the goods have been imported and received by the buyer before the merger, no further protection is necessary as ordinarily no question of enforcement of the contracts under the pre-existing law would arise. The phraseology used is not an innovation but is copied from other statutory clauses. Section 6 of the General clauses Act (10 of 1897) says that unless a different intention appears, the repeal of an Act shall not affect anything duly done or suffered thereunder. So too, the Public Health Act of 1858 (38 & 39 Vict. c. 55) which repealed the Public Health Act of 1848 contained a proviso to Section 343 to the effect that the repeal "shall not affect anything duly done or suffered under the enactment hereby repealed", This proviso came under judicial scrutiny in Queen v. Justices of the West Riding of Yorkshire [[L.R.] 1 Q.B.D. 220]. There notice was given by a local board of health of intention to make a rate under the Public Health Act, 1848, and amending Acts. Before the notice had expired these Acts were repealed by the Public Health Act, 1875, which contained a saving of "anything duly done"
under the repealed enactments, and gave power to make a similar rate upon giving a similar notice. The board, in ignorance of the repeal, made a rate purporting to be made under the repealed Acts. It was contended that as the rate was made after the repealing Act, the notice given under the repealed Act was not valid. The learned Judges held that as the notice was given before the Act, the making of the rate was also saved by the words "anything duly done" under the repealed enactments. This case illustrates the point that it is not necessary that an impugned thing in itself should have been done before the Act was repealed, but it would be enough if it was integrally connected with and was a legal consequence of a thing done before the said repeal. Under similar circumstances Lindley, L.J., in Heston and Isleworth Urban District Council v. Grout [[1897] 2 Ch. 306] confirmed the validity of the rate made pursuant to a notice issued prior to the repeal. Adverting to the saving clause, the learned Judge tersely states the principle thus at p. 313:"That to my mind preserves that notice and the effect of it". On that principle the court of appeal held that the rate which was the effect of the notice was good."
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xxxx xxxx xxxx xxxx
51. Further, as on the year 2021 when the impugned notification was issued the petitioner No. 1 was just about 18 years i.e., full age and even if at that stage, the petitioner was to renounce and seek for citizenship of India as provided under Section 5(1)(f)(g), the duration for such process would disentitle her the benefit of the entire education course from pre-school stage pursued by her in India and the benefit for appearing for the Pre-Medical Test which was available to her will be erased in one stroke. Neither would she get any special benefit in the country where she was born. Therefore in that circumstance when there was an assurance from a sovereign State to persons like that of the petitioner No. 1 in view of the right provided through the notification issued under Section 7B(1) of Act, 1955 and all 'things were done' by such Overseas Citizens of India to take benefit of it and when it was the stage of maturing into the benefit of competing for the seat, all 'such things done' should not have been undone and nullified with the issue of the impugned notification by superseding the earlier notifications so as to take away even the benefit that was held out to them.
3.10. Placing reliance on the aforesaid decision, learned Senior Counsel contended that since the Petitioners were engaged on contractual basis in terms of the earlier instruction issued by the Government in ST and SC Development Department under Annexure-1 and 2, their cases are not governed under the provisions of 2016 Rule and they are exempted to be governed under the said Rules. It is contended that such things done in terms of the instruction issued under Annexure- 1 and 2, cannot be nullified with issuance of the 2016 Rules. In view of such provision enacted in the Preamble to the 2016 Rules, it cannot take away the benefit that Page 15 of 60 // 16 // was already extended in favour of the petitioners basing on Annexure-1 and 2.
3.11. It is contended that in view of the clear provisions contained in the Preamble to the 2016 Rule and the decision in the case of Anushka Rengunthwar as cited (supra), petitioners though are not too be governed under the 2016 Rules, but the Tribunal without proper appreciation of the provisions contained under the Preamble, while disposing the batch of Original Applications in O.A. No.1225(C) of 2015 and batch, vide order dated 14.03.2018, came to a wrong conclusion that no direction can be issued to regularize the services of petitioners in violation to the statutory rules framed under the aforesaid 2016 Rules. While holding so, the Tribunal disposed of the all the Original Applications with a direction on the Opp. Parties to take a policy decision for regularization of the applicants or to take such action in exercise of the relaxation provision contained under Rule- 17 of 2016 Rules and by resorting to such provisions, if Page 16 of 60 // 17 // the petitioners are otherwise found eligible and suitable, they should be considered for appointment. 3.12. It is contended that though as per the provisions contained in the Preamble to the 2016 Rule, petitioners were not to be governed under the 2016 Rules and they are otherwise protected, but the Tribunal by committing an error directed the Opp. Parties to take a policy decision on the claim of petitioners to get the benefit of regularization and to relax the stipulation so contained under the Rules in exercise of relaxation provisions contained under Rule 17 of 2016 Rules. Petitioners being aggrieved by order dated-14.03.2018 so passed by the tribunal in O.A. No.1225(C) of 2015 and batch filed individual writ petitions before this Court in the year 2018 in W.P.(C) No.11442 of 2018 and batch.
3.13. Learned Senior Counsels appearing for the petitioners however contended that during pendency of the matter before the Tribunal and prior to its disposal, when steps were taken to fill up the post in which the petitioners are continuing in accordance with the 2016 Page 17 of 60 // 18 // Rules through Regular Selection Process and advertisement was issued by Odisha Public Service Commission vide Advertisement No.6 of 2017-18 for recruitment to the post of Post Graduate Teacher, the same when was challenged, the Tribunal protected the petitioners by passing an interim order. It is accordingly contended that till passing of such an interim order in the year 2018, petitioners were never protected by any interim order for their continuance, even though they continued on contractual basis w.e.f. Aug, 2006. 3.14. Petitioners when challenged the order passed by the Tribunal on 14.03.2018 by filing appropriate Writ Petitions before this Court, this Court also protected the interest of the petitioners by passing interim order in their favour. However, during pendency of the Writ Petition before this Court in W.P.(C) No.11442 of 2018 and batch, when it came to the knowledge of the petitioners that in terms of the directions issued by the Tribunal, claim of the present petitioners to get the benefit of regularization has been rejected vide order dated 08.08.2018, this Court vide order dated 07.02.2023 while disposing the batch of Writ Page 18 of 60 // 19 // Petitions, permitted the petitioners to challenge the order dated 08.08.2018 so passed by the O.P. No.1. Order dated 07.02.2023 is reproduced hereunder:-
"This matter is taken up through hybrid mode.
2. Heard Mr. S. Routray, learned counsel appearing for the petitioner and Mr. A.K. Mishra, learned Additional Government Advocate appearing for the State-opposite parties.
3. The petitioner has filed this writ petition seeking to quash the order dated 14.03.2018 under Annexure-13 passed by the State Administrative Tribunal in O.A. No.1225 (C) of 2015 and further to issue direction to the opposite parties to regularize the service of the petitioner from the initial date of appointment with all consequential service and financial benefits within a stipulated period.
4. Mr. S. Routray, learned counsel appearing for the petitioner contended that seeking regularization of service, the petitioner had approached the State Administrative Tribunal, Cuttack Bench, Cuttack by filing O.A. No. 1225 (C) of 2015, and the Tribunal, vide common order dated 14.03.2018 directed the opposite parties to take a policy decision for regularization of the petitioner or to take such other action in exercising the relaxation provision under Rule-17 of the 2016 Rules and by resorting to such provision, if the petitioner is otherwise found eligible and suitable, he should be considered for appointment and such action shall be taken within a period of three months and till such action is taken, the petitioner may be allowed to continue in the present post. It is contended that this Court passed an interim order protecting the interest of the petitioner. It is further contended that even though opposite party no.1 has passed the order in compliance of the order dated 14.03.2018 passed by the Tribunal, that ipso facto cannot take away the rights of the petitioner to approach this Court.
5. Mr. A.K. Mishra, learned Additional Government Advocate appearing for the State-opposite parties contended that this Court, while entertaining this writ petition, has not granted any interim order staying operation of the order/judgment passed by the Tribunal. Rather, this Court protected the interest of the petitioner granting status quo to continue in service. Therefore, in compliance of the order passed by the Tribunal, opposite Page 19 of 60 // 20 // party no.1 has passed the order dated 08.08.2018 rejecting the claim of the petitioner, which has been placed on record by way of amendment sought by the petitioner. The said order having been passed in compliance of the order of the Tribunal, nothing remains to be adjudicated in this writ petition, rather fresh cause of action arises for the petitioner to approach the appropriate Court. Instead of doing so, the petitioner cannot pursue his remedy by the present writ petition.
6. Considering the contentions raised by learned counsel for the parties and after going through the records, this Court finds that the petitioner, who is working as Junior Lecturer in Government (S.S.D.) Higher Secondary School, had approached the Tribunal seeking direction for regularization of his service from the date of his initial appointment with all consequential service and financial benefits. The Tribunal, after due adjudication, passed order dated 14.03.2018, paragraphs-15 and 16 whereof read as under:
"15. Law is well settled that any appointment made to public service is to be done following the regular recruitment process or in the absence of any statutory rule, on the basis of any resolution and circular of the Government. Thus, recruitment to a post is the prerogative of the Government and there is no scope for the Tribunal to issue any direction in violation of the statutory rule. Rule -17 of the Orissa Higher Secondary Education Service (in State's Scales of Pay) (Method of Recruitment and Conditions of service of post Graduate teachers of the Scheduled Tribe and Scheduled Caste Development) Rules 2016 Rules provide for relaxation of any provision which read as follows:
"17. Relaxation - Whenever it is considered necessary or expedient to do so in the public interest, the Government may by order, for reasons to be recorded I writing in consultation with the Commission, relax any of the provisions of these rules in respect of any class or category of persons."
In the case of the Dental Surgeon, it appears from the order vide Annexure-10 that their services have been regularized as pre the resolution of the Government. Therefore, considering the plight of the applicants and that the applicants have been appointed being duly selected through walk-in-interview, they should be extended with similar benefits invoking the relaxation provision under Rule-17 of the 2016 rules and there is no scope to issue any direction for regularization in violation of the statutory rule.
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16. In view of the discussion, the O.As are disposed of with a direction to respondents to take a policy decision for regularization of the applicants or to take such other action in exercising of the relaxation provision under Rule-17 of the 2016 Rules and by resorting to such provision, if the applicants are otherwise found eligible and suitable, they should be considered for appointment and such action be taken within a period of three months from the date of receipt of a copy of this order and till any such action is taken the applicants may be allowed to continue in the present post".
Aggrieved by such order, the petitioner has approached this Court by filing this writ petition and, this Court has not passed interim order staying the order/judgment passed by the Tribunal, rather passed the order of status quo with regard to continuance of the petitioner in service. But during pendency of this writ petition, opposite party no.1 has passed order dated 08.08.2018 rejecting the claim of the petitioner in compliance of the order passed by the Tribunal. Needless to say, if the grievance of the petitioner has been complied with in terms of the order dated 14.03.2018 passed by the Tribunal, that itself creates separate cause of action for the petitioner, which is the assignment of the learned Single Judge of this Court.
7. As a consequence thereof, this Court is of the considered view that the order dated 14.03.2018 passed by the Tribunal having been complied with by opposite party no.1, nothing remains to be adjudicated in this writ petition. Thereby, this Court disposes of this writ petition granting liberty to the petitioner to assail the order dated 08.08.2018 passed by opposite party no.1 in compliance of the order passed by the Tribunal before the appropriate Court.
8. Issue urgent certified copy as per rules." 3.15. Pursuant to the liberty granted by this court on 07.02.2023 in W.P.(C) No.11442 of 2018 and batch, present batch of Writ Petitions were filed challenging the order dated 08.08.2018, so passed by the O.P. No.1 in terms of the order passed by the Tribunal on 14.03.2018. Vide order dated 08.08.2018, O.P. No.1 while declining to relax the provisions contained under 2016 Rules in Page 21 of 60 // 22 // exercise of the relaxation provision contained under Rule- 17 of the said Rules, held that petitioners are not eligible to get the benefit of regularization, as it will be in complete violation of the Principle enshrined in Article-14 of the Constitution of India.
3.16. Learned Senior Counsels appearing for the Petitioners contended that since in terms of the decision taken by the Department with due issuance of the instruction/guideline on 31.01.2006 and 17.06.2006 under Annexure-1 and 2, Petitioners were duly selected and engaged as Junior Lecturers now treated as Post Graduate Teacher on contractual basis vide order of engagement issued on 10.08.2006, in view of the provisions contained in the Preamble to the 2016 Rules, they are protected and not governed under the provisions of 2016 Rules. However, the Tribunal without proper appreciation of the provisions contained in the Preamble, illegally directed the Opp. Party No.1 to consider the claim of the petitioners to get the benefit of regularization by relaxing the provisions of the said rules taking recourse to Rule-17 of the Rules. However, since during pendency of Page 22 of 60 // 23 // the matters before this Court, order passed by the Tribunal on 14.03.2018 was complied, with rejection of the petitioners' claim vide order dated 08.08.2018, which is impugned in the present batch of Writ Petitions, the order passed by the Tribunal on 14.03.2018 merged with order dated 08.08.2018.
3.17. Learned Senior Counsel appearing for the Petitioners contended that since petitioners in the present batch of Writ Petitions were allowed to continue on contractual basis with due extension of their services and with due concurrence of the Finance Department w.e.f. Aug, 2006, they also became eligible and entitled to get the benefit of regularization, since they continued for more than 10 years prior to being protected by the Tribunal for the first time in 2018 and subsequent interim order passed by this Court in the earlier batch of Writ Petitions as well as in the present batch of Writ Petitions, in view of the decision of the Hon'ble Apex Court in the case of Uma Devi Vs. State of Karnataka, Nihal Singh Vrs. State of Punjab. Hon'ble Apex court in para-44 of the decision in the case of Uma Devi and Para - 22 to Page 23 of 60 // 24 // 24 & 35 to 38 of the decision in the case of Nihal Singh has held as follows :-
"44. The concept of "equal pay for equal work"
is different from the concept of conferring permanency on those who have been appointed on ad hoc basis, temporary basis, or based on no process of selection as envisaged by the rules. This Court has in various decisions applied the principle of equal pay for equal work and has laid down the parameters for the application of that principle. The decisions are rested on the concept of equality enshrined in our Constitution in the light of the directive principles in that behalf. But the acceptance of that principle cannot lead to a position where the court could direct that appointments made without following the due procedure established by law, be deemed permanent or issue directions to treat them as permanent. Doing so, would be negation of the principle of equality of opportunity. The power to make an order as is necessary for doing complete justice in any cause or matter pending before this Court, would not normally be used for giving the go- by to the procedure established by law in the matter of public employment. Take the situation arising in the cases before us from the State of Karnataka. Therein, after Dharwad decision [(1990) 2 SCC 396 : 1990 SCC (L&S) 274 : (1990) 12 ATC 902 : (1990) 1 SCR 544] the Government had issued repeated directions and mandatory orders that no temporary or ad hoc employment or engagement be given. Some of the authorities and departments had ignored those directions or defied those directions and had continued to give employment, specifically interdicted by the orders issued by the executive. Some of the appointing officers have even been punished for their defiance. It would not be just or proper to pass an order in exercise of jurisdiction under Article 226 or 32 of the Constitution or in exercise of power under Article 142 of the Constitution permitting those persons engaged, to be absorbed or to be made permanent, based on their appointments or engagements. Complete justice would be justice according to law and though it would be open to this Court to mould the relief, this Court would not grant a relief which would amount to perpetuating an illegality." Page 24 of 60
// 25 // Hon'ble Apex Court in the case of Nihal Singh in Para-22 to 24 & 35 to 38 has held as follows:-
"22. It was further declared in Umadevi (3) case [State of Karnataka v. Umadevi (3), (2006) 4 SCC 1 : 2006 SCC (L&S) 753] that the jurisdiction of the constitutional courts under Article 226 or Article 32 cannot be exercised to compel the State or to enable the State to perpetuate an illegality. This Court held that compelling the State to absorb persons who were employed by the State as casual workers or daily-wage workers for a long period on the ground that such a practice would be an arbitrary practice and violative of Article 14 and would itself offend another aspect of Article 14 i.e. the State chose initially to appoint such persons without any rational procedure recognised by law thereby depriving vast number of other eligible candidates who were similarly situated to compete for such employment.
This extract is taken from Nihal Singh v. State of Punjab, (2013) 14 SCC 65 : (2013) 3 SCC (L&S) 85 : 2013 SCC OnLine SC 713 at page 76
23. Even going by the principles laid down in Umadevi (3) case [State of Karnataka v. Umadevi (3), (2006) 4 SCC 1 : 2006 SCC (L&S) 753] , we are of the opinion that the State of Punjab cannot be heard to say that the appellants are not entitled to be absorbed into the services of the State on permanent basis as their appointments were purely temporary and not against any sanctioned posts created by the State.
This extract is taken from Nihal Singh v. State of Punjab, (2013) 14 SCC 65 : (2013) 3 SCC (L&S) 85 : 2013 SCC OnLine SC 713 at page 76
24. In our opinion, the initial appointment of the appellants can never be categorised as an irregular appointment. The initial appointment of the appellants is made in accordance with the statutory procedure contemplated under the Act. The decision to resort to such a procedure was taken at the highest level of the State by conscious choice as already noticed by us.
xxxx xxxx xxxx
35. Therefore, it is clear that the existence of the need for creation of the posts is a relevant factor with reference to which the executive government is required to take rational decision based on relevant Page 25 of 60 // 26 // consideration. In our opinion, when the facts such as the ones obtaining in the instant case demonstrate that there is need for the creation of posts, the failure of the executive government to apply its mind and take a decision to create posts or stop extracting work from persons such as the appellants herein for decades together itself would be arbitrary action (inaction) on the part of the State.
This extract is taken from Nihal Singh v. State of Punjab, (2013) 14 SCC 65 : (2013) 3 SCC (L&S) 85 : 2013 SCC OnLine SC 713 at page 80
36. The other factor which the State is required to keep in mind while creating or abolishing posts is the financial implications involved in such a decision. The creation of posts necessarily means additional financial burden on the exchequer of the State. Depending upon the priorities of the State, the allocation of the finances is no doubt exclusively within the domain of the legislature. However in the instant case creation of new posts would not create any additional financial burden to the State as the various banks at whose disposal the services of each of the appellants is made available have agreed to bear the burden. If absorbing the appellants into the services of the State and providing benefits on a par with the police officers of similar rank employed by the State results in further financial commitment it is always open for the State to demand the banks to meet such additional burden. Apparently no such demand has ever been made by the State. The result is--the various banks which avail the services of these appellants enjoy the supply of cheap labour over a period of decades. It is also pertinent to notice that these banks are public sector banks. This extract is taken from Nihal Singh v. State of Punjab, (2013) 14 SCC 65 : (2013) 3 SCC (L&S) 85 : 2013 SCC OnLine SC 713 at page 80
37. We are of the opinion that neither the Government of Punjab nor these public sector banks can continue such a practice consistent with their obligation to function in accordance with the Constitution. Umadevi (3) [State of Karnataka v. Umadevi (3), (2006) 4 SCC 1 : 2006 SCC (L&S) 753] judgment cannot become a licence for exploitation by the State and its instrumentalities.
This extract is taken from Nihal Singh v. State of Punjab, (2013) 14 SCC 65 : (2013) 3 SCC (L&S) 85 : 2013 SCC OnLine SC 713 at page 80 Page 26 of 60 // 27 //
38. For all the abovementioned reasons, we are of the opinion that the appellants are entitled to be absorbed in the services of the State. The appeals are accordingly allowed. The judgments under appeal are set aside."
3.18. Learned Senior Counsel also relied on the decision of this Court rendered in the case of Dr. Prasanna Kumar Mishra Vrs. State of Odisha and Others, disposed of on 01.12.2015, so upheld by this Court in its order dated 11.12.2019 in Writ Appeal No.4 of 2016 and further confirmed by the Hon'ble Apex Court in its order dated 07.08.2020 in SLP(Civil) No.4945 of 2020. This Court in Para-21 and 22 in the case of Prasanna Kumar Mishra has held as follows:-
"21. No doubt after establishment of BPUT, the institutions under control of BPUT have to fill up the vacancies in accordance with the provisions of BPUT Act and Rules framed thereunder. If the institution has been taken over along with its staffs, in that case BPUT has to take necessary steps for regularization of the services instead of terminating them though the employees have not been appointed under the provisions of BPUT Act and Rules.
22. In that view of the matter, this Court is of the considered view that the opposite parties should absorb the petitioner on regular basis against sanctioned vacant post taking into account the length of service rendered by him as a Lecturer in Mathematics in which he is continuing without insisting him to undergo the rigors of the selection procedure laid down under the BPUT Act and Rules framed thereunder reason being in the meantime the Page 27 of 60 // 28 // petitioner has become over aged and he has also been exploited for 20 years for no reasons though he has qualified in all the interviews conducted by the authority for his engagement on contractual basis. The petitioner being not a backdoor entrant to the service, the opposite party-University should extend all consequential benefits as due and admissible in accordance with law as expeditiously as possible preferably within a period of four months."
Reliance was also made to the decision of this Court in the case of Sanatan Sahoo Vrs. State of Odisha and Others, reported in 2017 (II) ILR-CTC- 1059.This court in Para 6 to 9 has held as follows:-
"6. On perusal of the record, it reveals that the petitioner having the requisite qualification was engaged as Data Entry Operator on 01.09.1995. Since he was computer literate by then and computers were introduced in various departments of the State Government, being satisfied with the performance of the petitioner, on the discussion made between the Chief Engineer, P.H. Orissa with Secretary Housing & Urban Development Departments, vide order dated 06.11.2002, the petitioner was directed to work under Housing & Urban Development Department, at Bhubaneswar. Since then the petitioner has been performing his duty to the best of the satisfaction of all concerned. The Chief Engineer, PH (Urban) vide order dated 17.06.2009 directed all the Executive Engineers of PH divisions to furnish the information about DLR/NMR/HR workers engaged after 12.04.1993 for their regularization. Prior to deployment of the petitioner in Housing & Urban Development Department, there was a meeting on 30.10.2002 wherein it was decided to create the post of Computer Assistants in lieu of abolition of equal numbers of Junior Assistants. After the posting of the petitioner also Housing & Urban Development Department vide letter No. 641/HUD dated 16.08.2004 recommended the case of the petitioner for regularization with concurrence of Finance Department. Thereafter in the meeting of all Principal Secretary, it was decided to absorb Data Entry Operators. While the petitioner was so Page 28 of 60 // 29 // continuing two posts of Jr. Data Entry Operator in the Administrative Department of Housing & Urban Development Department recommended the case of the petitioner and others since their services are badly required. Thus, it is apparent that appreciating his performance, time and again steps are being taken for regularization of his service both by PH Department and U & UD Department. While he was so continuing, even though two posts of Jr. Data Entry Operators were created under H& UD Department, the same were filled up on out sourcing basis from the service provider without due process of selection. Their services have also been regularized. Thus non consideration of the case of an employee, whose services have been utilized for last 22 years, is nothing but exploitation of such employee by his employer. The persons who were sponsored through outsourcing agency by the Service Provider and not through the due process of selection, have already been regularized, whereas the petitioner, has been discriminated on the plea that he has not been appointed by following the Rules meant for Data Entry Operators.
7. Law is well settled in the case of Secretary State of Karnataka and others v. Umadevi reported in (2006) 4 SCC 1, Wherein at paragraph 53 it has been held as thus:-
"53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. NARAYANAPPA (supra), R.N. NANJUNDAPPA (supra), and B.N. NAGARAJAN (supra), and referred to in paragraph 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of Courts or of tribunals. The question of regularization of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularize as a onetime measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of Courts or of tribunals and should further endure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary Page 29 of 60 // 30 // employees or daily wagers are being now employed.
The process must be set in motion within six months from this date. We also clarify that regularization, if any already made, but not subjudice, need not be reopened based on this judgment, but there should be no further by-passing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme."
However in the case of State of Karnataka & others v. M.L. Keshari & others reported in (2010) 9 SCC 247, the principle decided by the Apex Court in the case of Umadevi (supra) has been further clarified and followed.
8. This Court in the case of Prakash Kumar Mohanty v. State of Odisha and others (W.P.(C) No. 22159 of 2012 decided on 28.02.2017) referring to the decisions in the case of Umadevi (Supra) and M.L. Kesari (supra) directed the competent authority to take a decision on the grievance of the petitioner in the light of the observations made in paragraph-53 of the Umadevi case within eight weeks from the date of receipt of copy of the order.
09. Admittedly in the present case, the petitioner having the requisite qualification was engaged as Data Entry Operator since September, 1995 and he has been continuing as such till date without the intervention of the Courts. He approached the Tribunal in the year 2013 for his regularization before the notification issued by the State Government regarding Odisha Group 'C' and Group 'D' posts (contractual appointment) Rules, 2003. The recruitment rule came into force only in the year 2008 and the rule regarding contractual engagement as contended by the State Government was followed latter on. Thus the engagement of the petitioner at best can be termed as irregular engagement and not illegal engagement. That apart, it is also admitted that sanctioned posts are available since 2009 and the petitioner had also completed more than 10 years by then."
Reliance was also placed to the decision in the case of Ranjeet Kumar Das Vrs. State of Odisha and Page 30 of 60 // 31 // Others, reported in 2018 (I) ILR-CTC-659. This Court in Para-6, 11, 14, 15 and 17 has held as follows:-
"6. Before delving into the niceties of the order passed by the tribunal, this Court deems it proper to examine the claims of the petitioner on the basis of the factual matrix available on record itself. On the basis of the pleadings available before this Court, no doubt the petitioner had approached the tribunal seeking regularization of his services. Regularization in service law connotes official formalisation of an appointment, which was made on temporary or ad hoc or stop gap or casual basis or the like, in deviation from the normal rules of applicable norms of appointment. Such formalisation makes the appointment regular. The ordinary meaning of regularisation is "to make regular" according to The 12 Shorter Oxford English Dictionary, 3rd Edition, and according to Black's Law Dictionary, 6th Edition, the word "regular" means: "Conformable to law. Steady or uniform in course, practice, or occurrence; not subject to unexplained or irrational variation. Usual, customary, normal or general. Gerald v. American Cas. Co of Reading, Pa., D.C.N.C., 249 F, Supp. 355, 357. Made according to rule, duly authorised, formed after uniform type; built or arranged according to established plan, law, or principle. Antonym of "casual" or "occasional,"
Palle v. Industrial Commission, 79 Utah 47, 7 P. 2d. 248, 290."
Xxxx xxxx xxxx xxxx
11. In view of above constitutional philosophy, whether courts can remain as mute spectator, is a matter to be considered to achieve the constitutional goal in proper perspective. But all these questions had come up for consideration and decided by the Constitution Bench of the apex Court in Umadevi (3) mentioned supra. The factual matrix of the case in Umadevi (3) arose for consideration from a judgment of Karnataka High Court. In some of the cases, the Karnataka High Court rejected the claims of persons, who had been temporarily engaged as daily wagers but were continued for more than 10 years in the Commercial Taxes Department of the State of Karnataka for regularization as permanent Page 31 of 60 // 32 // employees and their entitlement to all the benefits of regular employees. Another set of civil appeals arose from the order passed by the same High Court on a writ petition challenging the order of the government directing cancellation of appointments of all casual workers/daily rated workers and seeking a further direction for the regularization of all such daily wage earners engaged by the State or local bodies. These claims were rejected by the Division Bench of the Karnataka High Court on appeal from the judgment of the learned Single Judge. The reason for the mater being considered by the Constitution Bench arose because of two earlier orders of reference made by a Bench of two-Judge and subsequently by a Bench of three- Judge- Secretary, State of Karnatak v. Uma Devi (1) (2004) 7 SCC 132, and Secretary, State of Karnataka v. Uma Devi (2) (2006) 4 SCC 44, respectively, as they noticed the conflicting opinions expressed by the earlier 3 Bench judgments in relation to regularization.
xxxx xxxx xxxx xxxx
14. Applying the ratio of Umadevi (3) case, this Court in Nihal Singh v. State of Punjab, (2013) 14 SCC 65 directed the absorption of the Special Police Officers in the services of the State of Punjab holding as under: "35. Therefore, it is clear that the existence of the need for creation of the posts is a relevant factor with reference to which the executive government is required to take rational decision based on relevant consideration. In our opinion, when the facts such as the ones obtaining in the instant case demonstrate that there is need for the creation of posts, the failure of the executive government to apply its mind and take a decision to create posts or stop extracting work from persons such as the appellants herein for decades together itself would be arbitrary action (inaction) on the part of the State. 36. The other factor which the State is required to keep in mind while creating or abolishing posts is the financial implications involved in such a decision. The creation of posts necessarily means additional financial burden on the exchequer of the State. Depending upon the priorities of the State, the allocation of the finances is no doubt exclusively within the domain of the legislature. However in the instant case creation of new posts would not create any additional financial burden to the State as the various banks at whose disposal the services of each of the Page 32 of 60 // 33 // appellants is made available have agreed to bear the burden. If absorbing the appellants into the services of the State and providing benefits on a par with the police officers of similar rank employed by the State results in further financial commitment it is always open for the State to demand the banks to meet such additional burden. Apparently no such demand has ever been made by the State. The result is-the various banks which avail the services of these appellants enjoy the supply of cheap labour over a period of decades. It is also pertinent to notice that these banks are public sector banks."
15. As it appears from the record itself, the case of the petitioner is covered under the exception carved out in paragraph 53 of Umadevi (3) (supra), which is applicable to the present case. Meaning thereby, against an existing vacancy the petitioner having been engaged by following due procedure of selection and continued for a quite long period and, as admitted by Mr. R.K. Mohapatra, learned Government Advocate appearing for the State opposite parties and as is evident from the pleadings in the counter affidavit, the petitioner is still continuing, the same cannot be treated as an "illegal" appointment rather it may be nomenclature as an "irregular" appointment.
17. The tribunal having failed to give any direction so far as relief claimed in the Original Application for regularization of services of the petitioner, we are of the view that the impugned order, having not been passed in conformity with the relief sought, cannot sustain in the eye of law and the same is liable to be quashed. Accordingly, the order dated 04.10.2010 passed by the Orissa Administrative Tribunal, Bhubaneswar in O.A. No.1335 of 2003 is hereby quashed. The opposite parties are directed to take necessary steps in accordance with law for regularization of services of the petitioner treating the same as 24 an irregular appointment as per the exception carved out in the case of Umadevi (3) mentioned supra as expeditiously as possible, preferably within a period of four months from the date of communication of this judgment, and also release the legitimate dues as admissible to the petitioner forthwith."
Page 33 of 60
// 34 // Learned Senior Counsels also relied on the decision in the case of Subrat Narayan Das Vrs. State of Odisha and Others (in W.P.(C) No.18569 of 2016 and batch, disposed of on 12.07.2022). This Court in para-21 and 22 has held as follows:-.
"21. Similar view has also been taken by the apex Court in Km. Neelima Mishra v. Harinder Kaur Paintal, (1990) 2 SCC 746 : AIR 1990 SC 1402 and E.P. Royappa v. State of Tamilnadu, (1974) 4 SCC 3. It was held that Clause-1 of Article-16 guarantees equality of opportunity for all citizens in the matters of employment or appointment to any office under the State. The very concept of equality implies recourse to valid classification for preference in favour of the disadvantaged classes of citizens to improve their conditions so as to enable them to raise themselves to positions of equality with the more fortunate classes of citizens. This view has also been taken note of by the apex Court in the case of Indra Sawhney and others v. Union of India and others, 1992 Supp. (3) SCC 217 : AIR 1993 SC 477.
22. In view of such position, if the Petitioners have been allowed to continue for a quite long period on contractual basis, due to financial crunch, they cannot be thrown out stating that they were not recruited as per the provisions of BPUT Act and the Rules framed thereunder. Therefore, the Petitioners case should be taken into consideration for regularization of their services."
4. Making all these submissions, learned Senior Counsel appearing for the Petitioners contended that since Petitioners were all engaged on contractual basis by facing due recruitment process in the year 2006 and they are continuing as such till date, they are eligible and entitled Page 34 of 60 // 35 // to get the benefit of regularization with quashing of the impugned order dated 08.08.2018 so passed by the O.P. No.1. Petitioner in view of the stipulation contained in the Preamble to 2016 Rules are also protected and are not governed under the said Rules to face the recruitment so conducted by OPSC.
5. Per contra, Mr. S.K. Samal, learned Addl. Govt. Advocate made his submission basing on the stand taken in the counter affidavit. Though it is not disputed by the learned Addl. Govt. Advocate that basing on the instruction issued by the Government under Annexure-1 and 2 in the year 2006, petitioners were selected and engaged on contractual basis as against the post of Junior Lecturer in various discipline, but as found from the advertisement issued for the said purpose under Annexure-3, the selection was made basing on the performance in the walk-in-interview and accordingly it cannot be taken that petitioners were selected by facing due selection process. It is also contended that for the purpose of appointment of the petitioners on contractual basis, 72 nos. of post of Junior Lecturers and 32 nos. of Page 35 of 60 // 36 // Laboratory Assistants were only created on contractual basis vide Government order dated 28.07.2006. It is accordingly contended that since petitioners were all engaged on contractual basis, with due creation of contractual posts, petitioners are not eligible to get the benefit of regular appointment as they were never recruited and appointed as against Sanctioned Regular Post.
5.1. It is also contended that even though petitioners after such engagement on contractual basis, were allowed to continue with due extension of their engagement vide order issued under Annexure-5 series, but all those extensions were also issued while allowing the petitioners to continue on contractual basis. It is contended that since there was no recruitment rule for appointment of such Junior Lecturer at the relevant time, State Govt. in ST & SC Development Department in its wisdom, framed the rules namely Orissa Higher Secondary Education Service (In State Scale of Pay) (Method of Recruitment and Conditions of Service of Post Graduate Teachers of the ST & SC Development Department) Rules, 2016, which was Page 36 of 60 // 37 // published on 20th May, 2016. Rule-6 of the said Rules prescribes the eligibility criteria for direct recruitment as against the post of Junior Lecturer (Post Graduate Teacher).
5.2. As provided under Rule-6, a candidate will be held eligible for direct recruitment to the post of Post Graduate Teacher, if he has got Masters Degree in the subject concerned with 50% mark and have B.Ed. or Equivalent degree recognized by National Council of Teacher Education. The Diploma and degree in Computer Application is also a desirable qualification. It is also contended that as provided under Rule-7 of the said Rules, the procedure for direct recruitment was prescribed and as provided therein, the Commission shall conduct a test in General English, General Knowledge and the subject concerned for which vacancies have been advertised. Since the petitioners in the present batch of cases were engaged by facing walk-in-interview, which is not in terms of the provisions contained under Rule-6 & 7 of the 2016 Rules, it cannot be said that the Petitioners Page 37 of 60 // 38 // were duly recruited and engaged as Junior Lecturers (Post Graduate Teacher).
5.3. It is further contended that in view of the clear provision contained under the aforesaid 2016 Rules, the Tribunal while disposing the batch of Original Applications vide order dated 14.03.2018 in O.A. No.1225(C) of 2015 and batch was not inclined to issue any direction, directing Opp. Parties to regularize the services of the petitioners. The Tribunal instead when directed the State- Opp. Party No.1 to take a policy decision for regularization of the services of the petitioners in exercise of the relaxation provision contained under Rule-17 of the aforesaid Rules, claim of the petitioners in terms of the said order was duly considered and rejected vide the impugned order dated 08.08.2018 so passed by the Opp. party No.1. It is also contended that the order passed by the Tribunal though was challenged by the present petitioners before this Court in W.P.(C) No.11442 of 2018 and batch, but the Writ Petitions were disposed of by granting liberty to the petitioners to assail the order dated 08.08.2018.
Page 38 of 60
// 39 // 5.4. Since the Tribunal while deciding the issue in its order dated 14.03.2018, held that in view of the provisions contained under the 2016 Rules, no direction can be issued to the Opp. Parties to regularize the services of the Petitioners taking into account their continuance as Junior Lecturers on contractual basis, the claim as made in the present Writ Petition being of similar nature is also not entertainable. It is also contended that the post of Junior Lecturer subsequently renamed as Post Graduate Teacher belong to State level Class-II category and the recruitment to fill up such post is to be made by the OPSC.
5.5. Pursuant to the aforesaid provisions contained under the 2016 Rules, OPSC issued Advertisement No.6 of 2017- 18 and in terms of the said advertisement though 230 Nos. posts were advertised, but 150 candidates were provided with the appointment. Subsequently, in terms of similar advertisement issued by the Commission vide Advertisement No.12 of 2020-21, though 139 posts were advertised, but 124 candidates were selected and provided with the appointment. It is contended that after coming Page 39 of 60 // 40 // into force of the aforesaid 2016 Rules, Regular Vacancies can only be filled up by way of direct recruitment to be conducted in terms of the provisions contained under Rule-6 and 7 of the aforesaid 2016 Rules. 5.6. It is also contended that the submissions made by the learned Senior Counsel appearing for the Petitioners that they are protected by the provisions contained in the Preamble to the 2016 Rules, cannot be made applicable as the petitioner all through were engaged on contractual basis as against 72 nos. of contractual posts so created by the Govt.-O.P. No.1.
5.7. It is also contended that provisions contained under Rule-17 of the 1976 Rules, can only be relaxed for a limited purpose and objective of such Rules does not permit total suspension of the Rules and recruitment dehors the Rules. In support of his aforesaid submission, learned Addl. Govt. Advocate relied on a decision of the Hon'ble Apex Court in the case of State of Odisha and Others Vrs. Sukanti Mohapatra and Others, 1993 (2) Page 40 of 60 // 41 // SCC 486. Hon'ble Apex Court in Para 8 of the Judgment has held as follows:-
"8. The Rules were made under the proviso to Article 309 for regulating the method of recruitment to the posts of Lower Division Assistants in the offices of the Heads of Departments. The method of recruitment set out in Rule 3 is through a competitive examination to be held once in every year. According to Rule 4 this competitive examination has to be conducted by a Board of Examiners after the Chairman of the Board has invited applications from those desirous of appearing at the examination through public advertisement. Rule 8 lays down the eligibility criteria as regards age, educational qualification, knowledge of Oriya language, etc. Rule 9 sets out the syllabus of the examination and Rule 10 provides for allotment of successful candidates to different departments. Rule 11 is somewhat important since it lays down the procedure for filling up vacancies after the list of candidates is exhausted. Where the vacancy has arisen after the list is exhausted such vacancy may be filled by a successful candidate of the previous year and failing that by any qualified candidate on a temporary basis till the result of the next year's examination is declared. Rule 12 provides the period of probation while Rule 13 lays down the rule for fixation of seniority. It says that the relative seniority of each candidate shall be determined with reference to his position in the competitive examination in any particular year. Where, however, a candidate of the previous year is selected under Rule 11 for appointment in the subsequent year he shall rank just below the successful candidates of the year in which the appointment was made. To this a proviso has been added as under:
"Provided that those appointed as junior assistants, in relaxation of provisions under Rule 14, shall in that year rank below all candidates who have been validly recruited under Rule 3 and under first part of Rule 11 of the said rules."
Rule 14 we have already extracted earlier. Rule 15 provides for reservations and concessions to SC/ST and other candidates. Rule 16 stipulates that these rules shall have overriding effect notwithstanding anything inconsistent therewith contained in any other recruitment rules, orders, etc. It becomes clear from these rules that after they came into force they alone held the field. Secondly, the method of recruitment is only one, namely, direct recruitment through a competitive examination to be conducted by the Board of Examiners. The only exception that we find is in Rule 11 which permits a temporary Page 41 of 60 // 42 // appointment till the next year's examination result is declared. Despite the Rules having come into force with effect from January 1, 1976, appointments were made in disregard of the Rules from 1976 and onwards. It is this batch of irregularly appointed employees whose services were sought to be regularised under Rule 14 by the orders of January 3, 1985 and February 14, 1985. Counsel for the regular recruits contend that what the Government has done in exercise of power under Rule 14 is to set at naught the entire body of the Rules as if they never existed. The power of relaxation, contend counsel, cannot be so used as to render the Rules non est. In support of this contention strong reliance was placed on the following observations in the case of R.N. Nanjundappa v. T. Thimmiah [(1972) 1 SCC 409 : AIR 1972 SC 1767 : 1972 SLR 94] : (SCC pp. 416-17, para 26) "... If the appointment itself is in infraction of the rules or if it is in violation of the provisions of the Constitution, illegality cannot be regularised. Ratification or regularisation is possible of an act which is within the power and province of the authority but there has been some non-compliance with procedure or manner which does not go to the root of the appointment. Regularisation cannot be said to be a mode of recruitment. To accede to such a proposition would be to introduce a new head of appointment in defiance of rules or it may have the effect of setting at naught the rules." In the present case also the appointments of the employees whose services are sought to be regularised were dehors the Rules. Rule 14 merely permits relaxation of any of the provisions of the Rules in public interest but not the total shelving of the Rules. The orders do not say which rule or rules the Government considered necessary and expedient in public interest to relax. What has been done under the impugned orders is to regularise the illegal entry into service as if the Rules were not in existence. Besides the reasons for so doing are not set out nor is it clear how such regularisation can subserve public interest. Rule 14 has to be strictly construed and proper foundation must be laid for the exercise of power under that rule. The Rules have a limited role to play, namely, to regulate the method of recruitment, and Rule 14 enables the Government to relax any of the requirements of the Rules pertaining to recruitment. The language of Rule 14 in the context of the objective of the Rules does not permit total suspension of the Rules and recruitment dehors the Rules. In the present case the recruitments had taken place years back in total disregard of the Rules and now what is sought to be done is to regularise the illegal entry in exercise of power under Page 42 of 60 // 43 // Rule 14. Rule 14, we are afraid, does not confer such a blanket power; its scope is limited to relaxing any rule, e.g., eligibility criteria, or the like, but it cannot be understood to empower Government to throw the Rules overboard. If the rule is so construed it may not stand the test of Article 14 of the Constitution. The proviso to Rule 13 can come into play in the matter of fixation of seniority between candidates who have successfully cleared the examination and a candidate who cleared the examination after availing of the benefit of relaxation. We are, therefore, of the opinion that the Tribunal committed no error in understanding the purport of Rule 14."
5.8. Making all these submissions, learned Addl. Govt. Advocate contended that since the petitioners were all engaged on contractual basis and they were never recruited as against the vacant Sanctioned Regular Post by facing due recruitment process as provided under the 2016 Rules, they are not eligible and entitled to get the benefit of Regularization as claimed. Not only that similar prayer for regularization having been not entertained by the Tribunal while disposing the batch of Original Applications vide order dated 04.03.2018 taking into account the provision contained under 2016 Rules, similar prayer cannot be entertained by this Court. It is accordingly contended that the impugned order does not require any interference and the petitioner be directed to face the recruitment process, so Page 43 of 60 // 44 // conducted by the Commission to fill up the post in question in term of 2016 Rules if they are otherwise eligible.
6. To the submissions made by the learned Addl. Govt. Advocate, learned Senior Counsels appearing for the Petitioners contended that 72 nos. of posts so created on contractual basis in the year 2006 vide Department order No.30136 dated 28.07.2006, basing on which the present petitioners were engaged on contractual basis in the year 2006, have already been regularized with creation of 72 nos. of Regular Posts vide office order dated 16.06.2016 of the Govt. in the ST & SC Development Department. Contents of letter dated 16.06.2016 is reproduced hereunder:-
"From:
R. Raghu Prasad, IFS Director (ST)-cum-Additional Secretary to Govt.
To, The Accountant General (A & E) Odisha, Bhubaneswar.
Sub: Creation of Regular Posts for, 8 upgraded Higher Secondary Schools (+2 Science & Commerce Colleges) of ST & SC Development Deptt. under State Plan.
Sir, Page 44 of 60 // 45 // I am directed to convey the sanction of Governor to the creation of following regular posts for the 8 upgraded Higher Secondary School (+2 Science & Commerce Colleges) of the ST & SC Development Department on abolition of 72 contractual posts of Jr. Lecturers created vide this Department order No.30136 dated 28.07.2006, for smooth functioning of the Higher Secondary Schools. A detailed Statement indicating the name of the Higher Secondary Schools and the number of posts created under different categories is enclosed at Annexure-A
i) 8 (Eight) posts of Post Graduate Teachers in Physics, one post for each upgraded Higher Secondary School carrying scale of pay of Rs.9300-
34,800/- + Grade Pay Rs.4600/- in Pay Band-2.
ii) 8 (Eight) posts of Post Graduate Teachers in Chemistry, one post for each upgraded Higher Secondary School carrying scale of pay of Rs.9300-34,800/- + Grade Pay Rs.4600/- in Pay Band-2.
iii) 8 (Eight) posts of Post Graduate Teachers in Mathematics, one post for each upgraded Higher Secondary School carrying scale of pay of Rs.9300-34,800/- + Grade Pay Rs.4600/- in Pay Band-2.
iv) 8 (Eight) posts of Post Graduate Teachers in Botany, one post for each upgraded Higher Secondary School carrying scale of pay of Rs.9300- 34,800/- + Grade Pay Rs.4600/- in Pay Band-2.
v) 8 (Eight) posts of Post Graduate Teachers in Zoology, one post for each upgraded Higher Secondary School carrying scale of pay of Rs.9300- 34,800/- + Grade Pay Rs.4600/- in Pay Band-2.
vi) 16 (Sixteen) posts of Post Graduate Teachers in English, two posts for each upgraded Higher Secondary School carrying scale of pay of Page 45 of 60 // 46 // Rs.9300-34,800/- + Grade Pay Rs.4600/- in Pay Band-2.
vii) 16 (Sixteen) posts of Post Graduate Teachers in Odia, two posts for each upgraded Higher Secondary School carrying scale of pay of Rs.9300- 34,800/- + Grade Pay Rs.4600/- in Pay Band-2.
viii) 16 (Sixteen) posts of Post Graduate Teachers in Commerce, two posts for each upgraded Higher Secondary School carrying scale of pay of Rs.9300-34,800/- + Grade Pay Rs.4600/- in Pay Band-2.
2. The Charge is debitable to Dernand No.11-2225- Welfare of SCs, STs and OBCs State Plan- District Sector-02-Welfare of STs-227-Education 1923- Higher Secondary Schools (+2 Science College)
3. The concerned Principal/Headmaster (Principal-in- Charge) of the upgraded Higher Secondary School of ST & SC Development will be the DDO. The Director (ST)-cum-Addl. Secretary to Govt., ST & SC Development Department is the controlling officer and ST & SC Development Deptt. is the Administrative Deptt. in respect of the expenditure.
4. The recruitment to the teaching posts shall be made through OPSC following the relevant recruitment rules and provisions of ORV Act.
5. Creation of those posts has been concurred in by the Finance Department vide their UOR No.233 SS- II dated 12.12.2012."
6.1. It is also contended that since 72 nos. of post of Junior Lecturer now designated as Post Graduate Teacher so created on contractual basis vide order dated 28.07.2006 have been abolished with creation of equal nos. of Regular Post vide order dated 16.06.2016, petitioners who will now be around 27 in numbers, can Page 46 of 60 // 47 // very well be accommodated and regularized as against such 72 nos. of post so created on regular basis. 6.2. It is also contended that since the petitioners w.e.f. their initial date of engagement in the month of Aug, 2006 continued on contractual basis without getting any protection from any Court of law till the year 2018, in view of the provisions contained under Para-44 of the decision in the case of Uma Devi as cited (supra) coupled with the decision in the case of Nihal singh, petitioners are otherwise eligible to get the benefit of regularization as prayed for. It is also contended that basing on the selection process conducted by OPSC, all the posts so advertised have not been filled up.
6.3. It is also contended that after passing of the impugned order on 08.08.2018, the earlier order passed by the Tribunal on 14.03.2018, no more subsists and it merged with the impugned order dated 08.08.2018. Not only that in view of the provisions contained under the Preamble to the 2016 Rules, the Tribunal having committed an illegality in not relying on the said Page 47 of 60 // 48 // provisions while disposing the matters vide order dated 14.03.2018, there is no bar on the part of this Court to pass appropriate order while exercising the power under Artile-226 of the Constitution of India. In support of the aforesaid submission Mr. Routray, learned Senior Counsel relied on the following decision.
Hon'ble Apex Court in the case of State of U.P. and Another Vrs. Synthetics and Chemicals Ltd. and Another reported in (1991) 4 SCC 139 in Para- 41 has held as follows:-
"41.Does this principle extend and apply to a conclusion of law, which was neither raised nor preceded by any consideration. In other words can such conclusions be considered as declaration of law? Here again the English Courts and jurists have carved out an exception to the rule of precedents. It has been explained as rule of sub- silentio. A decision passed sub-silentio, in the technical sense that has come to be attached to that phrase, when the particular point of law involved in the decision is not perceived by the Court or present to its mind'' (Salmond 12th Edition). In Lancaster Motor Company {London) Ltd. v. Bremith Ltd. 1941 1KB 675, the Court did not feel bound by earlier decision as it was rendered ''without any argument, without reference to the crucial words of the rule and without any citation of the authority''. It was approved by this Court in 290330 . The Bench held that, ''precedents sub-silentio and without argument are of no moment''. The Courts thus have taken recourse to this principle for relieving from injustice perpetrated by unjust precedents. A decision which is not express and is not founded Page 48 of 60 // 49 // on reasons nor it proceeds on consideration of issue cannot be deemed to be a law declared to have a binding effect as is contemplated by Article 141 Uniformity and consistency are core of judicial discipline. But that which escapes in the judgment without any occasion is not ratio decedendi. In Shama Rao v. State of Pondicherry AIR 1967 SC 1680 it was observed, ''it is trite to say that a decision is binding not because of its conclusions but in regard to its ratio and the principles, laid down there-in''. Any declaration or conclusion arrived without application of mind or preceded without any reason cannot be deemed to be declaration of law or authority of a general nature binding as a precedent. Restraint in dissenting or overruling is for sake of stability and uniformity but rigidity beyond reasonable limits is inimical to the growth of law."
6.4. In support of the submission that order passed by the Tribunal on 14.03.2018 merged with order dated 08.08.2018 and accordingly there is no bar on the part of this Court to pass appropriate order, learned Senior Counsels appearing for the Petitioners relied on a decision of the Hon'ble Apex Court in the case of Commissioner of Income Tax, Bombay Vrs. Amritlal Bhogilal and Co., reported in (1958) 34 ITR 130. Hon'ble Apex Court in Para-10 of the judgment has held as follows:-
"10. There can be no doubt that, if an appeal is provided against an order passed by a tribunal, the decision of the appellate authority is the operative decision in law. If the appellate authority modifies or reverses the decision of the tribunal, it is obvious that it is the appellate decision that is Page 49 of 60 // 50 // effective and can be enforced. In law the position would be just the same even if the appellate decision merely confirms the decision of the tribunal. As a result of the confirmation or affirmance of the decision of the tribunal by the appellate authority the original decision merges in the appellate decision and it is the appellate decision alone which subsists and is operative and capable of enforcement; but the question is whether this principle can apply to the Income-tax Officer's order granting registration to the respondent."
Reliance was also placed in the case of Shankar Ramchandra Abhyankar Vrs. Krishnaji Dattatreya Bapat, reported in (1969) 2 SCC 74. Hon'ble Apex Court in Para-7 of the judgment has held as follows:-
"7. It may be useful to refer to certain other decisions which by analogy can be of some assistance in deciding the point before us. In U.J.S. Chopra v. State of Bombay the principal of merger was considered with reference to Section 439 of the Criminal Procedure Code which confers revisional jurisdiction on the High Court. In the majority judgment it was held, inter alia, that a judgment pronounced by the High Court in the exercise of its appellate or revisional jurisdiction after issue of a notice and a full hearing, in the presence of both the parties would replace the judgment of the lower court thus constituting the judgment of the High. Court-the only final judgment to be executed in accordance with law by the court below. In Chandi Prasad Chokhani v. The State of Bihar it was said that save in exceptional and special circumstances this Court would not exercise its power under Article 136 in such a way as to bypass the High Court and ignore the latter's decision which had become final and binding by entertaining an appeal directly from orders of a Tribunal. Such exercise of power would be particularly inadvisable in a case where the result might lead to a conflict of decisions of Page 50 of 60 // 51 // two courts of competent jurisdiction. In our opinion the course which was followed by the High Court, in the present case, is certainly one which leads to a conflict of decisions of the same court. "
Reliance was also placed in the case of Kunhay Yammed and Others Vrs. State of Kerala and Another reported in (2000) 6 SCC 359. Hon'ble Apex Court in Para- 42 and 44(iii) of the said judgment has held as follows:
"42. To merge means to sink or disappear in something else; to become absorbed or extinguished; to be combined or be swallowed up. Merger in law is defined as the absorption of a thing of lesser importance by a greater, whereby the lesser ceases to exist, but the greater is not increased; an absorption or swallowing up so as to involve a loss of identity and individuality. (See Corpus Juris Secundum, Vol. LVII, pp. 1067-1068)
44. (iii) Doctrine of merger is not a doctrine of universal or unlimited application. It will depend on the nature of jurisdiction exercised by the superior forum and the content or subject-matter of challenge laid or capable of being laid shall be determinative of the applicability of merger. The superior jurisdiction should be capable of reversing, modifying or affirming the order put in issue before it. Under Article 136 of the Constitution the Supreme Court may reverse, modify or affirm the judgment-decree or order appealed against while exercising its appellate jurisdiction and not while exercising the discretionary jurisdiction disposing of petition for special leave to appeal. The doctrine of merger can therefore be applied to the former and not to the latter. "
Similarly decision reported in the case of Experion Developers Private Limited Vrs. Himanshu Dewan and Sonali Dewan and Others, reported in 2023 LiveLaw Page 51 of 60 // 52 // (SC) 674 was also relied on by the learned Senior Counsels for the petitioners. Hon'ble Apex Court in Para-32 of the said Judgment has held as follows:-
"32. The dismissal of the appeal in the case of Pawan Gupta (supra) without any reasons being recorded would not attract Article 141 of the Constitution of India as no law was declared by the Supreme Court, which will have a binding effect on all courts and tribunals in India. There is a clear distinction between the binding law of precedents in terms of Article 141 of the Constitution of India and the doctrine of merger and res judicata. To merge, as held in Kunhayammed (supra), and Khoday Distilleries Ltd. (supra) means to sink or disappear in something else, to become absorbed or extinguished. The logic behind the doctrine of merger is that there cannot be more than one decree or operative orders governing the same subject matter at a given point of time. When a decree or order passed by an inferior court, tribunal or authority is subjected to a remedy available under law before a superior forum, then the decree or order under challenge continues to be effective and binding; nevertheless, its finality is put in jeopardy. Once the superior court disposes the dispute before it in any manner, either by affirming the decree or order, by setting aside or modifying the same, it is the decree of the superior court, tribunal or authority, which is the final binding and operative decree. The decree and order of the inferior court, tribunal or authority gets merged into the order passed by the superior forum. However, as has been clarified in both decisions, this doctrine is not of universal or unlimited application. The nature of jurisdiction exercised by the superior court and the content or subject matter of challenge laid or could have been laid will have to be kept in view. "
Similarly reliance was also placed in the case of Mary Pushpam Vrs. Telvi Curusumary and Others in Civil Appeal No.9941 of 2016 decided on 03.01.2024. Page 52 of 60
// 53 // Hon'ble Apex Court in Para-17 of the said Judgment has held as follows:-
"17. The doctrine of merger is a common law doctrine that is rooted in the idea of maintenance of the decorum of hierarchy of courts and tribunals.
The doctrine is based on the simple reasoning that there cannot be, at the same time, more than one operative order governing the same subject matter. The same was aptly summed up by this Court when it described the said doctrine in Kunhayammed & Ors. v. State of Kerala & Anr.1:
"44 (i) Where an appeal or revision is provided against an order passed by a court, tribunal or any other authority before superior forum and such superior forum modifies, reverses or affirms the decision put in issue before it, the decision by the subordinate forum merges in the decision by the superior forum and it is the latter which subsists, remains operative and is capable of enforcement in the eye of the Law."
7. I have heard Mr. B. Routray and Mr.Manoj kumar Mishra, learned Senior Counsels appearing for the petitioners and Mr. S.K. Samal, learned Addl. Govt. Advocate for the State. On the consent of the learned counsels appearing for the parties and with due exchange of pleadings, the matter was heard at the stage of admission and disposed of by the present order.
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// 54 //
8. Having heard learned counsel for the parties and after going through the materials available on record, this Court finds that pursuant to the decision taken by the Government-O.P. No.1 under Annexure-1 and 2 and with due creation of 72 nos. of post of Junior Lecturer on contractual basis vide order No.30136 dated 28.07.2006, petitioners as per the criteria of selection decided in the proceeding of the meeting dated 07.06.2006 under Annexure-2, participated in the selection process in terms of the advertisement issued to that effect on 28.06.2006 by the O.P. No.2 for the post of Junior Lecturer. Since by the time petitioners face the recruitment process in terms of the advertisement issued on 28.06.2006 under Annexure-3, there was no recruitment rule governing the field, petitioners were selected and engaged in terms of the eligibility criteria so fixed by the committee in its proceeding dated 07.06.2006 under Annexure-2. In terms of the advertisement issued under Annexure-3, petitioners on being found suitable in all respect, were engaged as Page 54 of 60 // 55 // Junior Lecturers on contractual basis vide order of engagement issued in the month of Aug, 2006. 8.1. Petitioners on being so engaged on contractual basis w.e.f. Aug, 2006 were allowed to continue as such with due extension of their services vide orders issued on 09.07.2009 and 19.07.2012 under Annexure-5 series. All such extensions were also issued with due concurrence of the Finance Department. Not only that the remuneration of the petitioners was also enhanced from time to time with due concurrence of the finance department and the same is also reflected in order dated 09.12.2011 under Annexure-6.
8.2. It is also found from the record that after such engagement as Junior Lecturer on contractual basis in the month of Aug, 2006, petitioners were allowed to continue without any break in engagement and without any protection from any court of law. However, during pendency of the matter before the Tribunal In O.A. No.1225(C) of 2015 and batch, pursuant to coming into force of the 2016 rules and basing on the requisition made Page 55 of 60 // 56 // by the department, when OPSC issued the advertisement vide Advertisement No.6 of 2017-18, to fill up the post of Junior Lecturer/Post Graduate Teacher on regular basis, petitioners when challenged the same by filing appropriate applications in the pending OAs, the Tribunal for the first time in the year 2018 passed an interim order protecting the interest of the petitioners.
8.3. It is not the case of the Opp. Parties that the petitioners were earlier protected by virtue of any interim order passed by any Court of law. Petitioners since from their initial date of engagement in the month of Aug, 2006, were allowed to continue as Junior Lecturer (Post Graduate Teacher) on contractual basis without any interim protection from any Court of law, till such interim order was passed in the year 2018, placing reliance on the decision in the case of Uma Devi as cited (supra). It is the view of this Court that the petitioners by the time they were protected by the Tribunal with passing of the interim order in the year 2018, had otherwise become eligible to get the benefit of regularization having completed more than 10 (ten) years of service on contractual basis. Page 56 of 60
// 57 // 8.4. Not only that as found from the Preamble to the 2016 Rules, the said rules were framed in supersession of the earlier Rules/Regulations/Orders/Instructions except as respect to things done. Since by virtue of the instructions/circulars issued by the Govt. under Annexure-1 and 2, with due creation of the 72 nos. of contractual posts vide Office Order No.30136 dated 28.07.2006, petitioners were all engaged on contractual basis, in view of the provisions contained in the Preamble "except as respect to things done" and the decision in the case of Anushka Rengunthwar as cited (supra), it is the view of this Court that petitioners are protected with regard to their selection and engagement as Jr. Lecturers in terms of Annexures-1 and 2 and they are not covered under the provisions of 2016 Rules.
8.5. However, on the face of such provision contained in the Preamble to the 2016 Rule, the Tribunal while disposing the batch of Original Applications vide order dated 14.03.2018, though held that no such direction can be issued in violation to the provisions contained under 2016 Rules and accordingly directed for consideration of Page 57 of 60 // 58 // the claim of the petitioners to get the benefit of regularization taking recourse to the provisions contained under Rule-17 of the said Rules, but the directions so issued by the Tribunal in its order dated 14.03.2018 merged with the impugned order dated 08.08.2018. Placing reliance on the decision in the case of Kunhay Yammed, Experion Developers Private Limited, Shankar Ramchandra Abhyankar, Amritlal Bhogilal and Co. and Mary Pushpam as cited (supra), it is the view of this Court that order passed by the Tribunal on 14.03.2018 merged with the impugned order dated 08.08.2018 and it cannot be taken as a bar for this Court to reconsider the claim of the petitioners to get the benefit of regularization as made in the present batch of the Writ Petition while exercising the power under Article- 226 of the Constitution of India.
8.6. Since the provisions contained under the Preamble to 2016 rules clearly protects any action or things done prior to enactment of the Rules in question, petitioners since in terms of the earlier instruction issued by the Govt. under Annexure-1 and 2, were selected and engaged Page 58 of 60 // 59 // on contractual basis, they are not required to face the direct recruitment for their selection and appointment on regular basis in terms of 2016 Rules. The tribunal as per the considered view of this Court passed order dated 14.03.2018 without proper appreciation of the Preamble to the 2016 Rules and in view of the decision in the case of State of U.P. and Another as cited (supra), it cannot be taken as a bar on the part of this Court to consider the claim of the petitioners to get the benefit of regularization. 8.7. Since 72 nos. of contractual posts of Jr. Lecturer so created vide order dated 28.10.2006, have now been sanctioned on regular basis vide order dated 16.06.2016, there is no impediment on the part of the Opp. parties to absorb the petitioners as against such sanctioned Regular Posts.
8.8. In view of the aforesaid analysis, it is the view of this Court that petitioners because of their continuance on contractual basis w.e.f. Aug, 2006, are eligible and entitled to get the benefit of regularization. While holding so, this Court directs Opp. parties to pass appropriate order in Page 59 of 60 // 60 // regularizing the services of the petitioners as Junior Lecturers (Post Graduate Teacher) as against the 72 nos. of post created on regular basis with due abolition of the 72 nos. of contractual post. This Court directs O.P. No.1 to pass appropriate order in regularizing the services of the petitioners, within a period of 2 months from the date of receipt of this order. Till such an order is issued as directed, interim order passed in the present batch of Writ Petitions shall continue.
09. All the Writ Petitions are accordingly disposed of.
(Biraja Prasanna Satapathy) Judge Orissa High Court, Cuttack Dated the 8th May, 2024/Basudev Signature Not Verified Digitally Signed Signed by: BASUDEV SWAIN Reason: Authentication Location: High Court of Orissa, Cuttack Date: 16-May-2024 16:59:27 Page 60 of 60