Orissa High Court
Purna Chandra Hota vs Sambalpur University ......... Opp. ... on 20 November, 2018
Equivalent citations: 2019 LAB. I. C. 522, (2019) 194 ALLINDCAS 813 (ORI), (2019) 1 ORISSA LR 5, (2019) 127 CUT LT 432
Author: B.R. Sarangi
Bench: B.R. Sarangi
HIGH COURT OF ORISSA : CUTTACK
W.P.(C) NO. 19228 OF 2009
In the matter of an application under Articles 226 and 227 of
the Constitution of India.
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Purna Chandra Hota ........ Petitioners and others
-Versus-
Sambalpur University ......... Opp. Parties and others For petitioners : M/s. H.M. Dhal, B.B. Swain, A.K. Pattnaik, A.S. Das and N. Mishra, Advocates.
For opp. parties : M/s. R.K. Dash, P.K. Tripathy and S. Pattnaik, Advocates (opposite parties no.1 and 2) M/s. G.N. Mishra, S. Sahoo and B. Priyadarshini, Advocates (opposite parties no.3 to 26 except Opp. Party nos. 6, 12, 17 and 22)
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PRESENT:
THE HONOURABLE DR. JUSTICE B.R. SARANGI
--------------------------------------------------------------------------------- Date of hearing : 16.11.2018 :: Date of Judgment:20.11.2018
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DR. B.R. SARANGI, J. The petitioners, who are working as Senior Assistants under the opposite party-Sambalpur University, have filed this application seeking to quash the office order dated 29.07.2008 in Annexure-6, by which the inter se seniority which has been fixed by the authority at serial nos.124, 125 and 123 has been changed to serial nos.
148, 149 and 147 respectively on consideration of the grievance made by opposite parties no.3 to 26 in compliance of the order dated 07.01.2008 passed by this Court in OJC No.3246 of 1997, and consequential order dated 07.08.2008 in Annexure-7 restoring the seniority of opposite parties no.3 to 26 over and above the present petitioners.
2. The factual matrix of the case, in hand, is that Sambalpur University is a statutory body in which the petitioners were initially appointed as class-IV employee in the year 1981. Thereafter, by following due process of selection, they were appointed as Jr. Assistant vide order dated 26.11.1984, though the initial appointment was for a period of three months or till the posts are filled up by 3 regular appointment, whichever was earlier. But such temporary appointment of the petitioners was extended from time to time by opposite parties no.1 and 2 and last appointment was made on 24.08.1988 by which order the petitioners appointment was extended for a period of six months w.e.f. 20.06.1988 or till regular appointment was made, whichever was earlier. Though the petitioners were promoted on ad hoc basis, they were given time scale of pay. Subsequently, the opposite parties no.1 and 2 issued an order on 16.01.1989 in which services of the petitioners in the post of Jr. Assistant were regularized w.e.f. 27.11.1984. The services of the petitioners were confirmed against such post vide order dated 29.02.1992. But no objection was received from any quarter for regularization of the services of the petitioners w.e.f. 27.11.1984 and confirmation made thereof vide order dated 29.02.1992. Consequentially, they were promoted to the post of Sr. Assistant vide order dated 21.04.2003. The opposite parties no.1 and 2 published a provisional gradation list of non-teaching employees of the University by notification dated 27.09.2007. The said 4 gradation list also contained the list of the Sr. Assistants in col.14 in which the names of the petitioners find place at serial nos.124, 125 and 123 respectively and the names of opposite parties no.3 to 26 below the names of the petitioners in the said gradation list.
2.1 The opposite parties no.7, 15 and 16 approached this Court by filing OJC No.3246 of 1997 challenging the fixation of inter se seniority of the petitioners over and above them. This Court, vide order dated 07.01.2008, disposed of the said writ application directing the authority to reconsider the grievance made by the said opposite parties within a period of six weeks. In compliance of the order dated 07.01.2008, opposite parties no.1 and 2 disposed of the representation of opposite parties no.7, 15 and 16 by re- fixing the seniority of the petitioners placing them at serial nos.148, 149 and 147 below opposite parties no.3 to 26. Thereby, the original placement made at serial nos.124, 125 and 123 has been changed to serial nos.148, 149 and 147 so far it relates to the petitioners. Thereafter, opposite parties 5 nos.3 to 26 were given the placement over and above the petitioners vide order dated 29.07.2008 in Annexure-6 and consequentially vide order dated 07.08.2008 communication has been made to the parties which is the subject matter of challenge before this Court in the present application.
3. Mr. H.M. Dhal, learned counsel for the petitioners strenuously urged that even though the petitioners were initially appointed as Jr. Assistant w.e.f. 26.11.1984 for a temporary period which was extended from time to time, subsequently, vide order dated 16.01.1989, their services were regularized w.e.f. 27.11.1984 and being confirmed on 29.02.1992 they continued as regular employee. Consequentially, they were given promotion to the post of Sr. Assistant vide order dated 21.04.2003, and as such they continued in the said post. Thereby, once the services of the petitioners were confirmed as Jr. Assistant and none made any objection to their regularization and confirmation in service w.e.f. 27.11.1984 and accordingly gradation list was prepared placing them at serial nos.124, 125 and 123 6 respectively, any alteration made thereof, may be in compliance of the order passed by this Court, opportunity of hearing should have been given to the petitioners. Therefore, the order so passed in Annexures-6 and consequential order in Annexure-7, having been passed without complying the principles of natural justice, should be quashed.
4. Mr. R.K. Dash, learned counsel for opposite parties no.1 and 2 argued with vehemence stating inter alia that reconsideration of fixation of inter se seniority has been made in consonance with the order dated 07.01.2008 passed by this Court in OJC No.3246 of 1997. If in adherence of the order passed by this Court revision has been made, no illegality or irregularity has been committed by the authority so as to cause interference by this Court at this stage. It is further contended that recruitment test to the post of Jr. Assistant was held on 29.06.1984, but regularization was made w.e.f. 27.11.1984, which was the date when the Jr. Assistants were directed to work as typists retrospectively, which was escaped from the notice of the appointing 7 authority. Thereby, such regularization is illegal in view of the judgments of the apex Court in Secretary, State of Karnatak and others v. Umadevi, AIR 2006 SC 1806; Punjab Water Supply and Sewerage Board, Hoshiarpur v. Harihar Yadav, AIR 2007 SC 1082; and Dr. (Mrs.) Juthika Mohanty v. State Administrative Tribunal, 2001 (II) OLR 342. It is further contended that such regularization is not admissible as per Rule-32 of Orissa University Recruitment Promotion Rules, 1992. Therefore, re-fixation of seniority in the gradation list of the petitioners cannot be said to be illegal and he justifies the action taken by the authority concerned.
5. Mr. G.N. Mishra, learned counsel for opposite parties no.3 to 26 (except opposite party nos.6, 12, 17 and
22) has categorically stated that fixation of seniority having been done in consonance with the order passed by this Court and, as such, the authority considering the grievance made by opposite party nos.3 to 26 having revised the gradation list by fixing the seniority of the petitioners below them, no 8 illegality or irregularity has been committed so as to warrant interference by this Court at this stage.
6. This Court heard Mr. H.M. Dhal, learned counsel for the petitioners, Mr. R.K. Das, learned counsel for opposite parties no.1 and 2, and Mr. G.N. Mishra, learned counsel appearing for opposite parties no.3 to 26 except opposite parties no.6, 12, 17 and 22, and with their consent this case is being disposed of at the stage of admission.
7. On perusal of the record it reveals that though notice was made sufficient against opposite parties no.3, 12, 17 and 22, they have chose not to appear. Since the matter is of the year 2009 and in the meantime 9 years have elapsed, this Court proceeded to decide the matter on the basis of pleadings available and the arguments advanced by learned counsel for the parties.
8. Undisputedly, the petitioners were initially appointed against Class-IV posts and were allowed to continue on ad hoc basis as Junior Assistant. Subsequently, by adopting due procedure they were appointed as Junior 9 Assistant and thereafter their services were regularized with effect from 27.11.1984 pursuant to order dated 16.01.1989. Their services were confirmed by order dated 29.02.1992. Thereafter, they were promoted to the post of Senior Assistant with effect from 20.10.2001, 22.12.2001 and 20.10.2001 respectively, vide order dated 21.04.2003. When inter se seniority was fixed pursuant to notification dated 27.09.2007, the petitioners were placed against Sl. No.125, 124 and 123 respectively, but such fixation of seniority was objected to by opposite parties no.7, 15 and 16, who in turn filed writ petition registered as OJC No.3246 of 1997. This Court disposed of the said writ petition vide order dated 07.01.2008 with the following order:
"In course of submission various documents were referred o by both parties and the dispute is between the petitioner and University relating to inter se seniority between petitioner and opposite parties 2 to 5 to be reconsidered by the Vice- Chancellor, Sambalpur University within a period of six weeks from the date of representation of the petitioner. Petitioner undertakes to file a certified copy of this order together with the representation within a period of two weeks. Therefore, requisites need not be filed to communicate the order.
The writ petition is disposed of accordingly."10
9. In compliance of the order passed by this Court mentioned above, opposite parties no.1 and 2 revised the gradation list and fixed inter se seniority of the petitioners by placing them against serial nos.148, 149 and 147 respectively instead of serial nos.124, 125 and 123 pursuant to Annexure-6 dated 29.07.2008 and consequential order issued vide order dated 07.08.2008 under Annexure-7.
10. The reasons for fixation of such inter se seniority of the petitioners have been explained in paragraphs-8 and 4 of the counter affidavit filed by opposite parties no.1 and 2 to the following effect.
"8. That in reply to the averments made in paragraph-6 of he writ petition the deponent humbly begs to submit that the petitioners though did not qualify themselves in the recruitment test for the post of Junior Assistant held on 29.06.1984 i.e., the date of their adhoc appointment as "Junior Assistants to work as Typist" retrospectively under Annexure-3 to the writ petition dated 16.01.1989 which was apparently escaped from the notice of the appointing authority. Therefore, the said regularization is illegal in view of the law laid down by the Hon'ble Supreme Court and also by this Hon'ble Court in AIR 2006 SC 1806, AIR 2007 SC 1082 and 2001 (II) OLR 342 and further such regularization is not admissible as per Rule 32 of Orissa University Recruitment Promotion Rules, 1992.
4. xxxxxxx This Hon'ble Court by order dated 07.01.2008 was pleased to dispose of the writ petition with a direction for reconsideration of the 11 inter se seniority between petitioners and O.Ps. No.2 and 5 of that writ petition by the Vice- Chancellor, Sambalpur University within a period of 6 weeks from the date of submission of representation. In accordance with the direction of this Hon'ble Court the gradation list of Senior Assistants was examined on the basis of the relevant records, and was revised. An office order was issued vide order No.8623/Estt.-1 dated 07.08.08 and as peer the modified gradation list the present petitioners were placed below the petitioners of the OJC No.3246/1997."
11. In course of hearing a query was made by this Court to the extent that while the authority re-fixed the inter se seniority of the petitioners whether any opportunity of hearing was given to them in compliance of principles of natural justice or not. Learned counsel for opposite parties no.1 and 2, save and except pleadings made in paragraph-8 mentioned above, has not indicted anything that there was compliance of principles of natural justice in changing inter se seniority of the petitioners nor learned counsel appearing for opposite parties no.3 to 26 (except opposite parties no.6, 12, 17 and 22) has indicated anything from record that the petitioners were given opportunity of hearing, while changing inter se seniority, in compliance of the principles of natural justice.
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12. If the services of the petitioners were regularized with effect from 27.11.1984 pursuant to office order dated 16.01.1999 which was confirmed on 29.02.1992, and none had raised any objection to the said confirmation, a vested right had already been accrued in their favour, and on that basis if inter se seniority of the petitioners was placed at serial nos. 124, 125 and 123 respectively, that cannot and could not have been changed without complying the principles of natural justice. The arguments advanced by learned counsel for opposite parties no.1 and 2 indicates that such re-fixation of inter se seniority has been done in view of the order dated 07.01.2008 passed by this Court in OJC No.3246 of 1997. But the said order clearly indicates that there was no direction to fix the seniority of opposite parties no.3 to 26 over and above the petitioners, rather this Court noting down the submission of learned counsel for opposite parties no.7, 15 and 16, who approached this Court by filing OJC No.3246 of 1997, permitted them to file certified copy of the order together with representation within two weeks and the same was to be considered in accordance with law. As 13 such, no principle has been decided by this Court, while disposing of the said writ petition, nor any such direction was given that opposite parties no.3 to 26 would be placed senior to the petitioners. Therefore, opposite parties no.1 and 2 in a camouflaged manner passed the impugned orders in the name of compliance of the order dated 07.01.2008 passed by this Court in OJC No.3246 of 1997.
13. The soul of natural justice is 'fair play in action' In HK (An Infant) in re, 1967 1 All ER 226 (DC), Lord Parker, CJ, preferred to describe natural justice as 'a duty to act fairly'.
In Fairmount Investments Ltd. v. Secy of State for Environment, 1976 2 All ER 865 (HL), Lord Russel of Killowen somewhat picturesquely described natural justice as 'a fair crack of the whip' In R. v. Secy. Of State for Home Affairs, ex p. Hosenball, Geoffrey Lane, LJ, 1977 3 All ER 452 (DC & CA), preferred the homely phrase 'common fairness' in defining natural justice.
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Natural justice, another name of which is common sense justice, is the name of those principles which constitute the minimum requirement of justice and without adherence to which justice would be a travesty. Natural justice accordingly stands for that "fundamental quality of fairness which being adopted, justice not only be done but also appears to be done".
14. In Swadeshi Cotton Mills v. Union of India, AIR 1981 SC 818, the meaning of natural justice came up for consideration and the apex Court held as follows:-
"The phase is not capable of a static and precise definition. It cannot be imprisoned in the straight-jacket of cast-iron formula. Historically, "natural justice" has been used in a way, "which implies the existence of moral principles of self evident and unarguable truth", "natural justice" by Paul Jackson, 2nd Ed, page-1, In course of time, judges nurtured in the traditions of British jurisprudence, often invoked it in conjunction with a reference to "equity and good conscience". Legal experts of earlier generations did not draw any distinction between "natural justice" and "natural law". "Natural justice" was considered as "that part of natural law which relates to the administration of justice".15
15. In Bhagwan v. Ramchand, AIR 1965 SC 1767, the apex Court held that the rule of law demands that the power to determine questions affecting rights of citizens would impose the limitation that the power should be exercised in conformity with the principles of natural justice.
16. In Shridhar v. Nagar Palika, Jaunpur, AIR 1990 SC 307, the appellant was appointed to the post of Tax Inspector. His appointment was cancelled by the authorities on the representation made by a departmental candidate who contended that a Tax Inspector's post should have been exclusively filled by promotion. The authority as well as the High Court proceeded on the assumption that the extant Government orders provided for filling up the post of Tax Inspector exclusively by promotion and therefore the appellant's appointment was illegal. The Supreme Court did not agree with the interpretation of the Government order made by the High Court. But, the Court proceeded to observe that since the order of appointment had conferred a vested right in the appellant to hold the post of Tax Inspector, that 16 right could not be taken away without affording an opportunity of hearing to him. The Court observed as follows:
"It is an elementary principle of natural justice that no person should be condemned without hearing. The order of appointment conferred a vested right in the appellant to hold the post of Tax Inspector, that right could not be taken away without affording opportunity of hearing to him. Any order passed in violation of principles of natural justice is rendered void. There is no dispute that the Commissioner's Order had been passed without affording any opportunity of hearing to the appellant therefore the order was illegal and void."
In view of law laid down by the apex Court it cannot, however, be doubted that cancellation of appointment has adverse civil consequences and therefore before making the order of cancellation the employee concerned must be given an opportunity of making a representation and the elementary of principles of natural justice has to be complied with.
17. In Rajendra v. State of Maharastra, (2008) 11 SCC 90, the apex Court held that even if the appointment is by mistake, the abrupt withdrawal of the same after the 17 employee has worked for 17months amounts to violation of natural justice.
18. So far as reliance placed on the judgment, referred to above, by learned counsel for the opposite parties no.1 and 2 has been decided on its own facts and circumstances which may not have any application to the present context.
19. In view of the law discussed above, the inevitable conclusion is that once the petitioners have acquired a vested right by continuing in a post as Jr. Assistant and subsequently regularized and confirmed against that post on 29.02.1992 and thereafter promoted to the post of Sr. Assistant on 21.04.2003 and in the gradation list their seniority has been fixed as serial nos.124, 125 and 123 respectively, the same cannot and could not have been altered merely on the basis of consideration of representation filed by opposite parties nos.7, 15 and 16 and re-fixed their seniority against serial nos.148, 149 and 147 by placing them below the opposite parties nos.3 to 26. Thereby, this Court is of the opinion that the rudiment of law of 18 compliance of principles of natural justice has not been followed. In such view of the matter, the order so passed in Annexure-6 dated 29.07.2008 with regard to re-fixation of seniority and consequential order dated 07.08.2008 in Annexure-7 cannot sustain in the eye of law and are liable to quashed. Accordingly, the same are hereby quashed and the petitioners seniority are restored to their original position, i.e., serial nos.124, 125 and 123 respectively.
19. Accordingly, the writ petition is allowed. However, there shall be no order as to cost.
Sd/-
(DR. B.R. SARANGI) JUDGE Orissa High Court, Cuttack The 20th November, 2018, Alok/Ashok True Copy P.A.