Orissa High Court
Sujit Kumar Nag vs The District Judge-Cum-Chairman ... on 3 January, 2018
Author: B.K.Nayak
Bench: B.K.Nayak
HIGH COURT OF ORISSA:CUTTACK
W.P. (C) No.8980 of 2015
In the matter of an application under Articles 226 and 227 of the
Constitution of India, 1950.
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Sujit Kumar Nag ......... Petitioner
Versus
The District Judge-cum-Chairman,
District Recruitment Committee,
Judgeship of Sonepur ......... Opposite Party
For Petitioner : M/s.Umakant Sahoo
S.K.Mohanty
For Opp. Party : Mr.J.P.Pattnaik
Additional Government Advocate
.........
PRESENT:
THE HON'BLE MR. JUSTICE B.K.NAYAK
AND
THE HON'LE DR. JUSTICE D.P.CHOUDHURY
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Date of judgment:03.01.2018
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Dr. D.P.Choudhury, J. Challenge has been made to the action of the
opposite party in issuing order dated 02.07.2014 (Annexure-4) by which
the enrolment of the petitioner as Candidate Peon was stopped and
issuance of fresh advertisement to fill up the said vacancy.
2. FACTS
The infiltrated factual matrix leading to the case of the writ
petition is that pursuant to an advertisement dated 12.12.2012 issued
by the opposite party to fill up the post of Candidate Peon as per Rule-
71 of the General Rules and Circular Orders (Civil) Volume-1
(hereinafter called as "G.R.C.O."), the petitioner applied for the said
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post. After due selection, appointment letter dated 24.03.2014 was
issued to the petitioner.
3. The above selection purportedly was made after due
publication of the advertisement in the newspaper and in the notice
board. Out of 22 selected Candidate Peons, fourteen candidates were
already absorbed in Group-D post by March, 2014. But, the petitioner
along with others were asked to join as Candidate Peon and they
continued to work. All on a sudden on 02.07.2014 (Annexure-4), a letter
was issued to disengage the petitioner because of the letter issued from
this Court on 28.06.2014 in the administrative side.
4. It is the further case of the petitioner that another
advertisement was issued in the later part of 2014 for filling up 13 posts
of Group-D when the petitioner was expecting his regularization in the
Group-D post for which he preferred a representation on 09.01.2015
vide Annexure-7. The opposite party sought for clarification from the
High Court and the petitioner came to know that due to the instruction
of this Court and the decision of the Hon'ble Supreme Court in the case
of Renu and others -V- District and Sessions Judge, Tis Hazari
and another; AIR 2014 SC 2175, his regularization is taking
backseat. It is stated by the learned counsel for the petitioner, the said
decision of the Hon'ble Supreme Court is not applicable to the case of
the petitioner as he was appointed after due selection. It is the further
claim of the petitioner that since some persons from the very selected
list have already been absorbed in Group-D post, his disengagement is
not only contrary to law but also violates Articles 14 and 16 of the
Constitution of India. Hence, the writ petition.
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5. SUBMISSIONS
Mr.Sahoo, learned counsel for the petitioner submitted that
as per Rule-71 of the G.R.C.O. and after due selection, the petitioner
was selected for enrolment as Candidate Peon and out of 22 candidates,
14 persons were already regularized as Group-D employee but the
authorities made sure discrimination between the petitioner and other
similarly situated employees by not regularizing his service. He
submitted that Article 14 of the Constitution has been squarely violated
due to such discriminatory decision by the opposite party. While the
petitioner was working as a Candidate Peon, his engagement was
stopped abruptly without any prior notice or any proceeding started
against him for which the principles of natural justice has been violated.
In support of his contention, he relies on the decision of the Hon'ble
Supreme Court in the case of East Coast Railway and another -V-
Mahadev Appa Rao and others; (2010) 7 SCC 678.
6. Mr.Sahoo, learned counsel for the petitioner further
submitted that after receiving a letter from this Court, the
disengagement letter was issued to the petitioner and that letter
pertains to the decision of the Hon'ble Supreme Court's judgment dated
12.02.2014passed in the case of Renu and others (Supra). The ratio of that case decided by the Hon'ble Supreme Court is not applicable to the facts and circumstances of this case for which the letter of the High Court directing the opposite party to stop the engagement of the petitioner as Candidate Peon is highly illegal and arbitrary. As due selection process has been adopted under the sub-ordinate legislation like G.R.C.O. and the petitioner has been selected to join the duty, the -4- decision of the Hon'ble Supreme Court will have no application to this case. According to him, the ratio of the Hon'ble Supreme Court is relevant where due process of selection has not been followed as per instruction imparted in that decision. Since in the instant case, there was an advertisement duly made and pursuant to such advertisement, the petitioner has been selected under due process of law, the instruction of the High Court basing on the decision of the Hon'ble Supreme Court is nugatory one.
7. Mr.Sahoo, learned counsel for the petitioner further contended that since the letter dated 10.12.2014 of the High Court also instructs that if the enrolment of the Candidate Peons prior to the decision of the Hon'ble Supreme Court has already been started, their case will not be affected and thus, the opposite party is required to regularize the service of the petitioner in Group-D post with proper perspective. Hence, the advertisement made in 2014 for selection to Group-D post should not be resorted to without regularization of service of the petitioner. On the other hand, the service of the petitioner should be regularized in Group-D post like similarly situated employees, who have also been selected along with others and got their service regularized. Hence, he prayed to allow this writ petition.
8. Mr.Pattnaik, learned Additional Government Advocate, relying upon the counter affidavit of opposite party, submitted that the petitioner has no cause of action to file the present writ petition and the same is fully misconceived. According to him, the merit list was prepared on 31.3.2013 on the test conducted and out of the said merit list, fourteen Candidate Peons were already absorbed in Group-D post -5- and the name of the petitioner finds place in the merit list prepared but the engagement of the petitioner as Candidate Peon was stopped due to receipt of the letter dated 28.06.2014 of the High Court as there was an instruction in that letter not to recruit the Candidate Peon and if any process in that regard is undertaken, the same be cancelled or stopped. So, there is no mistake on the part of the opposite party in stopping the engagement of the petitioner as Candidate Peon.
9. Mr.Patnaik, learned Additional Government Advocate further submitted that the stoppage of engagement of the petitioner is neither illegal nor discriminatory as the same is based on the instructions imparted administratively from this Court. He further submitted that the opposite party received another letter dated 10.12.2014 where the High Court informed that the Candidate Peons those who have already been enrolled before pronouncement of the judgment of the Hon'ble Supreme Court as per Rule 71 of G.R.C.O and wait for regularization would not be covered by the principles decided by the said judgment. But by that time, the advertisement of 2014 has already been issued to fill up 13 Group-D posts and the petitioner had already applied for that post. Since the final merit list, in pursuance of the advertisement, had not been published, the representation of petitioner is pending for consideration. As such, there is no violation of Articles 14, 15, 16 and 21 of the Constitution. However, the petitioner has no merit to file this writ petition and the same should be dismissed.
10. POINTS FOR DETERMINATION The main points for determination are as to whether (I) the petitioner has been recruited legally to the post of Candidate Peon and -6- his disengagement is legal and proper? and (II) Whether the petitioner is entitled to be absorbed against the regular vacancy of Group-D post?
11. DISCUSSIONS POINT No.(I) It is not in dispute that the merit list was prepared for enrolment of Candidate Peons under Rule 71 of the G.R.C.O. as per the advertisement made in 2012 and the name of the petitioner finds place at Serial No.17 of the merit list. It is admitted fact that out of 22 selected candidates, 14 candidates have already been absorbed in Group-D Post. It is also not in dispute that there was an advertisement for filling up of 13 Group-D posts during 2014 and the petitioner was also an applicant.
12. Rule-71, 73 and 75 of G.R.C.O are placed below in the following manner:
"71.Candidate Peons:-The Nazir shall keep a register of candidates for filling up leave and permanent vacancies. These candidates will be enrolled under orders of the Judge-in-charge of Nazarat and their number shall not exceed 15 per cent of the total strength of permanent peons employed at any station subject to the minimum of one candidate.
73. Appointment of process-servers:-No process server shall be appointed except from these candidates.
Note:-Orderlies, office peons and night watchmen will be eligible for appointment as process servers without being enrolled as candidates.
75. Vacancies have to be filled in:- Vacancies occurring at any Judgeship shall ordinarily be filled up by appointment respectively of peons and enrolled candidates attached to that Judgeship.
Note:-The appointment of peons lies with the District Judge.
13. From the aforesaid provisions, it is clear that 50% of the total strength of the permanent peons shall be from Candidate Peons and unless a person is Candidate Peon, he cannot be a Process-Server. -7- Moreover, the regular vacancy in the judgeship has to be filled up by appointment of the Peons and enrolled Candidate Peons attached to the Judgeship. The aforesaid provisions under G.R.C.O. have been incorporated by virtue of the power conferred on the High Court to make rules under Section 122 of CPC read with Section 128 of CPC. It appears that the Rules have been made with the previous approval of the State Government. So, the recruitment and appointment of Process-Server is under the relevant Rules of G.R.C.O. and it cannot be said that the appointment is arbitrary one.
14. For better appreciation, Rule-11(e) of Orissa District and Subordinate Court's Non-Judicial Staff Services (Method of Recruitment & Conditions of Service) Rules, 2008 (hereinafter called as "the Rules, 2008") is reproduced below in the following manner:
"11.(e):- 50% of the posts of Process Servers shall be made by promotion on the basis of Merit-cum-Seniority from amongst Peons/Orderlies and other Group-'D' employees who possess the requisite qualification and rest 50% of the posts shall be made by direct recruitment from open market who have had minimum VIII standard or equivalent qualification."
From a perusal of the above rule, it is crystal clear that 50% of the posts of Process Server shall be made by promotion on the basis of merit-cum-seniority from amongst the peons and orderlies and other Group-C and Group-D employees who possess the requisite qualification and rest 50% by direct recruitment from open market. If Rule-11(e) and Rule-71 of G.R.C.O. are enjoined together, it would only indicate that 15% of said 50% of Process-Server would be regularized from amongst the Candidate Peons provided the Candidate Peons have come by following the manner of selection as embodied in the judgment of Hon'ble Supreme Court.
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15. Letter dated 28.06.2014 under Annexure-B to the counter affidavit referred to by the learned Additional Government Advocate shows that the Candidate Peon appointed was abandoned and instruction was issued by the High Court to undertake recruitment of Group-C and Group-D employees in compliance with the Rules, 2008. It appears that such letter was issued in order to comply the direction of the Hon'ble Supreme Court. But later on, on 10.12.2014 (Annexure-C), the High Court issued clarification to the effect that the Candidate Peons who have been enrolled as per Rule-71 of G.R.C.O. prior to 12.02.2014 and waiting for their regularization would not be covered by the judgment of the Hon'ble Supreme Court. So, instruction was issued in administrative side to take up their cases for regularization at the time of giving appointment to the candidates to be selected in the ongoing recruitment process. From the aforesaid letters of the High Court, it is made clear that Rule-71 of G.R.C.O. would continue to reign in the matter if the requirements of the Hon'ble Supreme Court are fulfilled by itself. It is also emanating from the aforesaid letters that the Candidate Peon, waiting for their regularization, would be regularized if the process of recruitment has already been initiated and finalized prior to 12.02.2014 when the judgment of the Hon'ble Supreme Court was pronounced. On the other hand, the letter dated 28.06.2014 of the High Court was somewhat diluted by the latest letter dated 10.12.2014 (Annexure-C). It appears from that letter that after the recruitment made to the petitioner for the post of Candidate Peon, the query was made by the opposite party from time to time and reply last received vide Annexure-C. -9-
16. The Hon'ble Supreme Court, in the case of Renu and others (Supra), at paragraph-35 of the judgment, have held in the following manner:
35. In view of the above, the appeal stands disposed of with the following directions:
i) All High Courts are requested to re-examine the statutory rules dealing with the appointment of staff in the High Court as well as in the subordinate courts and in case any of the rule is not in conformity and consonance with the provisions of Articles 14 and 16 of the Constitution, the same may be modified.
ii) To fill up any vacancy for any post either in the High Court or in courts subordinate to the High Court, in strict compliance of the statutory rules so made. In case any appointment is made in contravention of the statutory rules, the appointment would be void ab-initio irrespective of any class of the post or the person occupying it.
iii) The post shall be filled up by issuing the advertisement in at least two newspapers and one of which must be in vernacular language having wide circulation in the respective State. In addition thereto, the names may be requisitioned from the local employment exchange and the vacancies may be advertised by other modes also e.g. Employment News, etc. Any vacancy filled up without advertising as prescribed hereinabove, shall be void ab- initio and would remain unenforceable and inexecutable except such appointments which are permissible to be filled up without advertisement, e.g., appointment on compassionate grounds as per the rules applicable. Before any appointment is made, the eligibility as well as suitability of all candidates should be screened/tested while adhering to the reservation policy adopted by the State, etc., if any.
iv) Each High Court may examine and decide within six months from today as to whether it is desirable to have centralised selection of candidates for the courts subordinate to the respective High Court and if it finds it desirable, may formulate the rules to carry out that purpose either for the State or on Zonal or Divisional basis.
v) The High Court concerned or the subordinate court as the case may be, shall undertake the exercise of recruitment on a regular basis at least once a year for existing vacancies or vacancies that are likely to occur within the said period, so
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that the vacancies are filled up timely, and thereby avoiding any inconvenience or shortage of staff as it will also control the menace of ad-
hocism.
With due respect to the aforesaid judgment, now it has to be seen whether the aforesaid provisions have been followed while recruiting Candidate Peon much less than the Peon or Process Server?
17. It is reiterated to state that the opposite party has admitted that after due advertisement, the selection process took place and twenty-two candidates were found in the selected list as per Annexure-2 to the writ petition. It is also not in dispute that the petitioner has been duly selected and enrolled as Candidate Peon. The petitioner had worked after 24.03.2014 (Annexure-3) at different places till his engagement was stopped on 02.07.2014 (Annexure-4). So, the selection procedure for the post of Candidate Peon has already been over in respect of the petitioner's post. As such, the selection procedure, in our opinion, is not contravened by the aforesaid decision of the Hon'ble Supreme Court.
18. Moreover, it is reported in the case of Maharashtra State Road Transport Corporation and others -V- Rajendra Bhimrao Mandve and others; (2001) 10 SCC 51 where Their Lordships, at paragraphs-5 and 6, have observed in the following manner:
"5............It has been repeatedly held by this Court that the rules of the games, meaning thereby, that the criteria for selection cannot be altered by the authorities concerned in the middle or after the process of selection has commenced. Therefore, the decision of the High Court, to the extent it pronounced upon the invalidity of the Circular Orders dated 24.6.1996, does not merit acceptance in our hand and the same are set aside.
6.We have held that the Circular Orders dated 24.6.1996 will have no relevance or application to the selections in question, undertaken pursuant to the advertisement issued on 20.9.1995. It has also been noticed by us that the Circular Order dated 4.4.1995, on the face of it, will apply only in cases where the selection has to be finalized on the basis of any
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Written Examination and Interview. There being no Written Examination for selection of Drivers for appointment, the selection process has to be on the basis of only Circular Orders dated 21.8.1980 and 23.1.1995. These aspects were left to lie in a nebulous state, leaving much for assumptions on either side to be possible. This should have been averted by the Corporation, by proper and appropriate action at the crucial and relevant point of time before setting the selection process in motion. It is high time that the Board takes up this for consideration resolve it by an appropriate decision. For such lapses, neither the candidates, who got selected and appointed, nor the Writ Petitioners, who lost in the selection, could be entirely blamed. The Writ Petitioners also have not chosen either to allege or substantiate any malafides or bias against any member of the Selection Committee, except making a grievance that within the course of the time available on a single day about 322 applicants could not have properly subjected to interview for assessment of merits or assignment of marks for selection. The learned counsel for the appellants would seek to place reliance upon the decisions of this Court reported in Sardara Singh Vs. State of Punjab (1991) 4 SCC 555 and Madan Lal Vs. State of J & K (1995) 3 SCC 486 to contend that such contentions are not sufficient to warrant interference with the selections made."
In the case of P. Mohanan Pillai -V- State of Kerala and others; AIR 2007 SC 2840, Hon'ble Supreme Court, at paragraph-11, have observed in the following manner:
"11.It is now well-settled that ordinarily rules which were prevailing at the time, when the vacancies arose would be adhered to. The qualification must be fixed at that time. The eligibility criteria as also the procedures as was prevailing on the date of vacancy should ordinarily be followed."
In the case of Tej Prakash Pathak and others -V-
Rajasthan High Court and others; (2013) 4 SCC 540, Hon'ble Supreme Court, at paragraph-7, have observed in the following manner:
"7. The question whether the "rules of the game" could be changed was considered by this Court on a number of occasions in different circumstances. Such question arose in the context of employment under State which under the scheme of our Constitution is required to be regulated by "law" made under Article 309 or employment under the instrumentalities of the State which could be regulated either by statute or subordinate legislation. In either case the "law" dealing with the recruitment is subject to the discipline of Article 14."
With due regard to the aforesaid decisions of the Hon'ble Supreme Court, it is made clear that the Rule prevalent at the time of
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vacancy would prevail and if the selection process has already been commenced or over, the same cannot take away by changing any Rule. In the instant case, the selection of the petitioner for the post in question being over and the petitioner having been enrolled as Candidate Peon and was working in that post, the instruction dated 28.06.2014 of the High Court vide Annexure-B would not be applicable to the case of the petitioner or similarly situated candidates being de hors the aforesaid principles emanated. Realizing the defect in the order, later on, a letter was issued vide Annexure-C on 10.12.2014 which we find in correct approach of the High Court subject to the condition that selection process commenced prior to the judgment of the Hon'ble Supreme Court in the case of Renu and others (Supra) passed or the selection process has obeyed the procedure as per the decision of the Hon'ble Supreme Court in the said case. Be that as it may, in view of the said decision of the Hon'ble Supreme Court and Rule-71 of G.R.C.O still being followed even after commencement of Rules, 2008, the recruitment of the petitioner as Candidate Peon, in our opinion, is held to be legal and proper. Point No.(I) is answered accordingly.
19. POINT NO.(II) It is contended by Mr.Sahoo, learned counsel for the petitioner that the petitioner should be absorbed against a regular vacancy of Group-D post as he has been selected and enrolled as a Candidate Peon and the letter of stoppage of engagement should be declared as illegal. Mr.Pattnaik, learned Additional Government Advocate fairly concedes that the petitioner, being enrolled as Candidate Peon, was disengaged without prior notice by virtue of the order of the High
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Court. But, he further assured that the case of the petitioner would be considered for regularization in due course as per letter dated 10.12.2014 of the High Court under Annexure-C.
20. Since we have already observed that the enrolment of the petitioner as Candidate peon being proper and legal and Rule-71 of G.R.C.O. still holds the field being not repealed and admittedly settled principles of law is that any worker temporary or regular cannot be removed from service without prior notice, we are of the view that the letter of stoppage of enrolment as Candidate Peon dated 02.07.2014 (Annexure-4) is liable to be quashed.
21. The letter dated 10.12.2014 under Annexure-C being issued to consider the case of Candidate Peons already enrolled towards regularization of service in Group-D post and there being no submission by the opposite party that the advertisement made in the year 2014 being finalized, the contention of Mr.Sahoo, learned counsel for the petitioner that the service of the petitioner should be regularized in Group-D post finds sufficient force. As the engagement of the petitioner as Candidate Peon is valid and legal, the petitioner is liable to be regularized as Group-D employee as other fourteen candidates from the same merit list have already been regularized in Group-D post. Therefore, we are of the view that the petitioner should be absorbed in Group-D post against a regular vacancy before any vacancy is filled up under the advertisement of 2014. Point No.(II) is answered accordingly.
22. CONCLUSION In the writ petition, the petitioner has prayed to quash the order dated 02.07.2014 (Annexure-4) issued by the opposite party and
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to direct for regularization of the petitioner against a regular vacancy of Group-D post. We are of the view that the letter of disengagement dated 02.07.2014, being contrary to law is liable to be quashed, the Court do so.
23. In terms of our above discussion, we hereby direct as follows:
(I) The petitioner should be reinstated as Candidate Peon by the opposite party within a period of two weeks from today; and (II) After the reinstatement of the petitioner as Candidate Peon, he would be absorbed against regular Group-D vacancy within a period of two weeks from the date of his reinstatement as Candidate Peon with due regard to the roaster under the Orissa Reservation of Vacancies in Posts and Services (For Scheduled Castes and Scheduled Tribes) Act, 1975 maintained against the regular vacancy.
The writ petition is disposed of accordingly.
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Dr.D.P.Choudhury,J.
B.K.Nayak, J I agree.
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B.K.Nayak,J.
Orissa High Court, Cuttack
Dated the 3rd Day of Jan,2018/B.Nayak