Orissa High Court
Pramod Kumar Sahoo vs State Of Odisha And Ors. .... Opp. ... on 14 September, 2022
Author: S.K. Panigrahi
Bench: S.K. Panigrahi
IN THE HIGH COURT OF ORISSA AT CUTTACK
WPC (OA) Nos.1191 and 1190 of 2001
In WPC (OA) No.1191 of 2001
Pramod Kumar Sahoo .... Petitioner
-versus-
State of Odisha and Ors. .... Opp. Parties
Advocates appeared in the case:
For Petitioner : Mr. Sachidananda Sahoo, Adv.
-versus-
For Opp. Parties : Mr. G.R. Mohapatra, AGA
In WPC (OA) No.1190 of 2001
Narendra Kathar .... Petitioner
-versus-
State of Odisha and Ors. .... Opp. Parties
Advocates appeared in the case:
: Mr. Sachidananda Sahoo, Adv.
-versus-
For Opp. Parties : Mr. G.R. Mohapatra, AGA
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CORAM:
DR. JUSTICE S.K. PANIGRAHI
DATE OF HEARING:-22.08.2022
DATE OF JUDGMENT:-14.09.2022
Dr. S.K. Panigrahi, J.
I. Facts of the cases:
In WPC(OA) No.1191 of 2001
1. The Petitioner entered into Government service as a Peon in the Office of the Opposite Party No.3/ Soil Conservation Officer, Bolangir vide order No.3790 dated 14.09.1995 and continued as such till the date of termination of his service.
While continuing in service as indicated above, like a bolt from the blue, the Petitioner received Memo No.1779 (2) dated 21.07.2001 issued by the Opposite Party No.3/ Soil Conservation Officer, Bolangir whereby his services have been terminated with effect from 21.7.2001 (AN).
2. Challenging the said order of termination, the Petitioner has filed this Writ Petition with a prayer to quash the same and direct the Opposite Parties that the Petitioner shall be deemed to be continuing in service and they may be directed to allow the Petitioners' all consequential service and financial benefits.
2 of 15 In WPC(OA) No.1190 of 2001
3. The Petitioner entered into Government service as a Peon in the Office of the Opposite Party No.3/ Soil Conservation Officer, Bolangir vide order No.5026 dated 09.10.1995 and continued as such till the date of termination of his service. While continuing in service as indicated above, the Petitioner's received Memo No.1779 (2) dated 21.07.2001 issued by the Opposite Party No.3/ Soil Conservation Officer, Bolangir whereby his services have been terminated with effect from 21.7.2001 (AN).
4. Challenging the said order of termination, the Petitioner has filed this Writ Petition with a prayer to quash the same and direct the Opposite Parties that the Petitioner shall be deemed to be continuing in service and they may be directed to allow the Petitioner all consequential service and financial benefits.
II. Submissions advanced on behalf of the petitioner:
5. Learned counsel for the Petitioners submits that the Petitioner in both the cases (hereinafter referred to as "the Petitioners" for brevity) challenged the order dated 21.07.2001 issued by the Opposite Party No.3/ Soil Conservation Officer, Bolangir whereby their services were terminated without serving notice on them. Page 3 of 15
6. He further submitted that the Petitioners were initially appointed as Peons on ad-hoc basis for a period of 44 days and continued as such till their regular appointment. On successful completion of one year service, the Petitioners were allowed to draw annual increment of Rs.12/- in the Scale of Pay of Rs. 750-12-870-EB-14-940 per month. On introduction of Orissa Revised Scale of Pay Rules, 1998, the pay of the Petitioners was fixed in revised scale with effect from 01.01.1996. While continuing as regular Peons in the office of Opposite Party No.3/ Soil Conservation Officer, Bolangir, the Petitioners were transferred to the office of Asst. Soil Conservation Officer, Patnagarh vide orders dated 30.10.1998. The Opposite Party No.3/ Soil Conservation Officer, Bolangir has also opened the Service Books and GIS Pass Books in the names of the Petitioners. However, while continuing as such the services of the Petitioners were terminated vide orders dated 21.07.2001 issued by the Opposite Party No.3/ Soil Conservation Officer, Bolangir on the ground that they were appointed illegally and irregularly.
7. He further submitted that the orders of termination were challenged on the following grounds:
(i) No notice was given prior to issuance of order of termination.
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(ii) Since no fraud has been practiced by the Petitioners to get the appointment, termination of service without asking for explanation that too at the fag end of approaching upper age limit is highly illegal.
(iii) As the Petitioner are regular employees, their services cannot be terminated without following due process of law under OCS (C.C & A) Rules, 1962.
(iv) As the Petitioners possess required educational qualification and appointed by an order of competent authority, their appointment cannot be termed as illegal.
III. Submissions of the Opposite Parties
8. A reply affidavit has been filed by the Opposite Party No.2/ Director of Soil Conservation, Odisha, Bhubaneswar in WPC (OA) No.1190 of 2001 stating therein that the Petitioner Narendra Kathar, an outsider was appointed vide order dated 03.06.1995 as a Peon against leave vacancy for a period of 28 days from 03.06.1995 to 30.06.1995 or joining of Sri Giridhari Mahanta whichever is earlier with the conditions that the said temporary appointment is terminable at any time without assigning any reason thereof. The appointment will be treated as automatically Page 5 of 15 terminated on expiry of 28 days of service. In fact, the services of the Petitioner was also terminated on expiry of the period vide order dated 21.07.1995 of the Opposite Party No.3/ Soil Conservation Officer, Bolangir. The Petitioner was further given adhoc appointment vide Order dated 03.07.1995 of the Opposite Party No.3/ Soil Conservation Officer, Bolangir for a period of 44 days or till the post is filled up by regular manner whichever is earlier with the further condition that the appointment will stand automatically terminated on expiry of 44 days. The said appointment was terminated vide Order dated 18.08.1995 of Opposite Party No.3/ Soil Conservation Officer, Bolangir. The Petitioner was again given appointment by Opposite Party No.3/ Soil Conservation Officer, Bolangir for 44 days on adhoc basis of the same terms and conditions vide Order dated 22.08.1995 and his services were terminated vide order dated 04.10.1995 of Opposite Party No.3/ Soil Conservation Officer, Bolangir. The Petitioner was further given adhoc appointment as a Peon vide Order dated 09.10.1995 of Opposite Party No.3/ Soil Conservation Officer, Bolangir for 44 days or till the post is filed up on regular manner whichever is earlier. The appointment was made with the condition that it can be terminated at any time without assigning any reason and without issuance of 6 of 15 any notice thereof and will stand automatically terminated on expiry of 44 days. Before completion of the said period of 44 days, the Petitioner was given appointment to work as such until further orders vide order dated 10.11.1995 of Opposite Party No.3/ Soil Conservation Officer, Bolangir.
9. It has further been mentioned that the vacancy in which the Petitioner was appointed was neither notified in the local Employment Exchange nor published in the local Newspaper through open advertisement in compliance to the Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959 and Employment Exchanges (Compulsory Notification of Vacancies) Rules, 1960 and executive orders of the Government in the matter of employment against public posts. The appointment was made only through pick and choose process without conducting any interview by any Selection Committee. Petitioners' appointment was made without following the process. Hence, it is illegal.
10. It is further stated that the Order No.5026/SC, dated 09.10.1995 of the Opposite Party No.3/ Soil Conservation Officer, Bolangir was an Order of Adhoc appointment of the Petitioners' for 44 days. He was also allowed to continue as such until further orders illegally vide order dated 10.11.1995 without following the regular recruitment Page 7 of 15 process and, therefore, the Petitioners' had no right to continue in service. Opening of Service Book and G.I.S. Passbook etc. are the records and outcome of service and are never the documentary proof of regular appointment.
11. It has also been stated that in view of the pronouncement of the Orissa Administrative Tribunal vide order dated 08.03.1999 passed in Original Application No.24 of 1999, the order of termination dated 21.07.2001 passed by the Opposite Party No.3/ Soil Conservation Officer, Bolangir is not illegal and wrongful. The Petitioners' service being illegal and wrongful as submitted above, no notice was required as the Petitioners' had no right to continue. Show cause notice for termination/removal from service is required only under Rule-15 of O.C.S. (CCA) Rules, 1962 in the matter of disciplinary action for misconduct of Government servant.
12. It has further been stated that the directions of the Government vide order dated 08.06.2001 of Opposite Party No.1/ Government of Orissa, Agriculture Department and communication letter dated 03.07.2001 of Opposite Party No.2/ Director of Soil Conservation, Odisha, Bhubaneswar have been issued to all Head Offices under Soil Conservation Directorate and there is no illegality in doing so. It is well settled in law that recruitment to public service 8 of 15 shall be governed by appropriate statutory rules and any appointment made indiscriminately in contravention of statutory provisions neither confers any right on the petitioner nor can such appointee claim any equitable relief. The order of termination passed by the Opposite Party No.3/ Soil Conservation Officer, Bolangir is, therefore, not at all arbitrary.
13. At this stage, learned counsel for the Petitioners brought to the notice of the Court to the judgment of the Division Bench of this Court and submitted that these cases are covered by the common judgment dated 05.08.2022 passed in the cases of W.P.(C) Nos.9335 and 23062 of 2016. The contents of the said common judgment is quoted hereunder.
"1. The common judgment dated 7th September 2021 passed earlier dismissing these writ petitions has been recalled by a separate common order passed by this Court today in RVWPET Nos.201 and 202 of 2021 and both these writ petitions have been restored to file. They are being disposed of afresh, after hearing counsel for the parties, by this common judgment.
2. The respective Petitioners in both these writ petitions question an order dated 10th September 2015 passed by the Odisha Administrative Tribunal, Cuttack Bench (OAT) in dismissing O.A. Nos.648(C) and 696(c) of 2013 filed by them.
3. The background facts are that the Petitioners were appointed as a Field Man Demonstrator in the Office of the Soil Conservation Officer (SCO), Koraput Division by an order dated 2nd April, 1992. The said order, which Page 9 of 15 was common to the Petitioners and four others, reads as under:
"The following outsiders are appointed as Field Man Demonstrator on ad hoc basis for a period of 89 days (eighty-nine) with effect from the date they report themselves for duties in the respective offices noted against them in the time scale of pay Rs.800-15-1010-EB-20-1150/- P.M. with usual D.A. as admissible under rules. The candidate should join the post within 7 days from the date of issue of this order failing which the appointment will be treated as automatically cancelled.
The appointment is purely temporary and terminable at any time without assigning any reason thereof. This appointment will have no statutory value to claim for regular appointment either in the same post or in any other post in the Department in future."
4. Subsequently, by an order dated 20th November 1993, Ramesh Chandra Mohapatra was appointed as Junior Soil Conservation Assistant "purely on ad hoc basis for a period of 89 (eighty-nine) days in the scale of pay of Rs.950/- to 1500/- per month and all other allowances as admissible under the Rules from time to time." The usual clause that he would not have any legal claim to get a regular job in the Department by virtue of such ad hoc appointment was inserted. He was then deputed to work under the IFAD assisted Orissa Tribal Development Project, Kashipur by an order dated 23rd August 1995 in the newly created post of Junior Soil Conservation Assistant.
5. On 15th September 2000, the Agriculture Department of Government of Odisha issued an order dispensing with the services of the Petitioners and six others due to 10 of 15 the shrinkage of funds in various schemes. Consequentially, the Director of Soil Conservation, Orissa issued an order dated 20th September 2000 dispensing with the services of the Petitioners. Aggrieved by the said order of termination, the Petitioners approached the OAT in O.A. Nos.3246(C) and 3123(C) of 2000 respectively which were disposed of on 20th November 2003 with the observation that the principle of "last come first go" had not been followed. A direction was issued to the Opposite Parties to examine and reconsider the issue and take appropriate action.
6. On 5th October 2007, the Director, Soil Conservation, Orissa was directed to accommodate the Petitioners and similarly situated persons and take appropriate action as per the decision dated 15th December 2006 of the Government.
7. Meanwhile, some of the similarly placed persons approached the OAT in different O.As., which were allowed. The orders of the OAT were challenged by the State in this Court in W.P.(C) No.14678 of 2008 [against Hrudananda Panda] and W.P. (C) 12972 of 2009 [against Narayan Pattanaik] which were dismissed confirming the order of the OAT. SLP (C) [ cc Nos.11249 and 11322 of 2011] filed by the State were also dismissed by the Supreme Court on 18th July, 2011.
8. On 28th January 2013, the OAT allowed another O.A. No.918 of 2001 filed by a similarly situated person viz., Manoj Kumar Parida setting aside his termination order and directing his reinstatement on par with Hrudananda Panda. The OAT noted that Hrudananda Panda was admittedly junior to Manoj Kumar Parida. Following the decision of the OAT in O.A. No.439 of 2007 filed by Hrudananda Panda, who had already been reinstated, the OAT allowed the application of Manoj Kumar Parida. In the above orders the OAT followed the decision of the Supreme Court in State of Karnataka v. Uma Devi AIR (2006) SC 1806 and State of Karnataka v. M.L. Keshari AIR (2010) SC 1806 and of this Court in Smt. Page 11 of 15 Mira Piri v. State 2007 (II) OLR 533 on the ground that they were "irregular and not illegal recruitees".
9. In the reply filed to O.A. No.648(C) of 2013 filed by the Petitioner-Ramesh Chandra Mohapatra in the OAT seeking similar relief, the stand of the Opposite Parties was that the order of this Court dismissing the State's W.P.(C) No.14678 of 2008 [against Hrudananda Panda] by this Court and of the Supreme Court in SLP (C) [ cc Nos.11249 and 11322 of 2011] "is a specific one and it will not applicable to the cases of all retrenched/terminated employees. If they need for their reinstatement/reappointment they should have obtain the orders of the Hon'ble Court as done in case of three applicants and State respondents have no scope to interfere against such order." The Petitioner-Ramesh Chandra Mohapatra filed a rejoinder before the OAT in the said O.A. and claimed the same benefits as was given to Hrudananda Panda, Narayan Pattanaik and Suresh Kumar Sahoo, who are at Sl. Nos.26 to 28 in the gradation list. The Petitioner-Ramesh Chandra Mohapatra was at Sl. No.41.
10. The OAT in the impugned order declined the relief to the present Petitioners on the ground that the aforementioned persons were senior to the Petitioners; further that the Petitioners had not worked for ten years and it had not been shown that their appointments were against any sanctioned posts. Therefore, it was held by the OAT that the Supreme Court's judgment in State of Karnataka v. Uma Devi (supra) would not apply.
11. Correspondingly in W.P.(C) No.9335 of 2016 filed by Ramesh Chandra Mohapatra, the State has filed a reply taking the same stand viz., that the Petitioner cannot claim parity with the aforementioned employees who had been reinstated pursuant to the orders of the Supreme Court.
12. Importantly, in the rejoinder filed in W.P.(C) No.9335 of 2016, Ramesh Chandra Mohapatra has pointed out that persons junior to him have been 12 of 15 reinstated pursuant to the orders of the High Court. The order of the High Court dismissing the State's W.P. (C) 5548 of 2014 against Prahallad Sahoo has in fact been affirmed by the Supreme Court on 12th September, 2018 by the dismissal of the State's SLP (C) 32178 of 2014. The information set out in a tabular form in the rejoinder reads as under:
Sl Names of Date of Date of Date of the Apex No. similarly appointment High Court's Court's order situated order persons 01 Prahallad Sahu 13.11.1998 16.04.2014 12.09.2018
02. Harihar Prusty 26.06.1997 30.01.2018
03. Manoj Kumar12.09.1995 03.12.2019 Parida
13. The orders appointing each of the above persons, the corresponding order of the OAT and that of the High Court and the Supreme Court of India have all been enclosed with the rejoinder affidavit. Specifically, in SLP (C) No.32178 of 2014 (State of Orissa v. Prahallad Sahoo), the observation of the Supreme Court in its order dated reads as under:
"xxx xxx xxx Though the appointments of the respondents were irregular as they were not sponsored by the Employment Exchange, we do not intend to interfere with the judgment of the High Court in view of the long period of service rendered by the respondents. The question of law raised in these petitions is left open. The special leave petitions are dismissed accordingly."
14. In the case of Harihar Prusty, this Court while dismissing the State's W.P. (C) 9475 of 2016 by the order dated 30th January, 2018 declined to interfere with the order dated 15th September 2015 passed by the OAT in O.A. No.2137(C) of 2001 whereby the OAT had directed his regularization. Likewise, in the case of Manoj Kumar Parida, the order of the OAT was Page 13 of 15 affirmed by this Court by an order dated 3rd December 2019 in W.P.(C) No.1366 of 2014.
15. This Court has heard the submissions of Mr. Manoranjan Mishra, learned counsel appearing for the Petitioners and Mr. P.K. Muduli, learned Additional Government Advocate for the State in both the matters.
16. Mr. Muduli is unable to dispute the fact that the aforementioned three persons viz., Prahallad Sahoo, Harihar Prusty and Manoj Kumar Parida were juniors to both the Petitioners. However, he seeks to contend that the method of recruitment of the Petitioners was different from the aforementioned three persons. Further, he submits that Prahallad Sahoo and Harihar Prusty were in the "Soil Conservation Technical Cadre" whereas Manoj Kumar Parida belonged to a different Ministerial cadre.
17. The Court has compared the appointment orders issued to Prahallad Sahoo, Harihar Prusty and the present Petitioners and it finds that they are no different. The appointment orders of Prahallad Sahoo and Harihar Prusty also refer to them as 'outsiders' and they were appointed as Field Man Demonstrator in a scale of pay. The wording of their appointment letters is no different from that of the present Petitioners. As far as the cadres are concerned, the Petitioners belong to the Soil Conservation Technical Cadre to which Prahallad Sahoo and Harihar Prusty belong. Therefore, there can be no justification for treating the present Petitioners differently. Meanwhile, as already pointed out even by the Government, another employee Subasish Sarangi who was also earlier Field Man Demonstrator has been reinstated in service pursuant to the order passed by this Court in W.P.(C) No.31174 of 2020.
18. With all these cases being identical and that the aforementioned three persons who have been reinstated being junior to the present Petitioners, there can be no justification for treating the present Petitioners differently.
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19. Consequently, both these writ petitions are allowed. The orders dated 20th September, 2000 dispensing with the services of the present two Petitioners are hereby set aside. The impugned order of the OAT is also set aside. The Petitioners are directed to be reinstated in service. Necessary orders be issued by the concerned authorities within a period of eight weeks."
14. From the aforesaid judgment it is apparent that the issues involved in the present cases are similar to the above quoted judgment. Learned counsel for the State also conceded that the present cases are similar to the above-mentioned common judgment passed by the Division Bench of this Court.
15. Therefore, in the light of the above quoted common judgment passed by the Division Bench of this Court, both the present Writ Petitions are disposed of.
( Dr. S.K. Panigrahi ) Judge Orissa High Court, Cuttack, Dated the 14th of September , 2022/B. Jhankar Page 15 of 15