Supreme Court - Daily Orders
Bilash Kumar Behera vs The State Of Odisha on 25 November, 2021
Bench: Sanjay Kishan Kaul, M.M. Sundresh
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IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 5761-5763/2019
BILASH KUMAR BEHERA .. APPELLANT(S)
VERSUS
THE STATE OF ODISHA & ORS. .. RESPONDENT(S)
O R D E R
The travesty of justice in the case of the appellant which persuades us to interfere in the present case is that had the appellant continued on an ad hoc basis instead of getting the benefit of the special drive for recruitment for the reserved category by the Odisha Public Service Commission, his seniority would have been higher than what the seniority has been fixed at present.
The appellant acquired a diploma in Engineering in 1988 and was appointed as a Junior Engineer(PH). In 1994, he acquired a degree in Engineering. We are informed that even otherwise after a period of 10 years of service, a diploma holder is entitled to be treated as a degree Signature Not Verified holder. The appellant was promoted to the post of Digitally signed by Charanjeet kaur Date: 2021.11.29 16:21:19 IST Reason: ad hoc Assistant Engineer on 27.05.1997. The promotion list would show that the appellant was 2 at Serial No. 7 in the particular category just after Sri Bhagyadhar Sahoo.
It appears that ad hoc regimes continued so far as the engineering services were concerned in the State and ultimately realizing that these Engineers have rendered long years of service on ad hoc basis, the Orissa Service of Engineers (Validation of Appointment) Act, 2002 was brought into force on 15.02.2003 for the benefit of stipendiary Engineers. The stipendiary Engineers were from different places brought in for purposes of assistance of the department but continued in that position for a long period of time. Since this in turn in some way affected the regular persons, a challenge was laid to the said Act by the persons of regular cadre before the High Court of Orissa. Interim orders were granted qua the said Act on 22.12.2005 and ultimately the High Court quashed the said Act by the judgment dated 15.10.2008. However, this Court upheld the said Act in Amarendra Kumar Mohapatra And Ors. vs. State of Orissa and Others1 treating the Scheme as one for regularization and thus categorized the statute or the Act as a regularization statute on account of these Engineers having worked for a long period of time.
1 (2014) 4 SCC 583 3 A perusal of the aforesaid judgment shows that the questions to be determined by the Court were set out in paragraph 21 as under :
“21. We have heard the learned counsel for the parties as also those appearing for the interveners. The following three questions of law arise for consideration:
21.1 (i) What is the true nature and purport of the impugned legislation? More particularly is the impugned legislation a validation enactment or is it an enactment that grants regularisation to those appointed on ad hoc basis?
21.2 (ii) If the impugned enactment simply grants regularisation, does it suffer from any constitutional infirmity? 21.3 (iii) Does Section 3(2) of the impugned legislation suffer from any unconstitutionality, insofar as the same purports to grant Stipendiary Assistant Engineers seniority with effect from the date they were appointed on ad hoc basis?
The relevant portion answering Question No. 3 is contained in paragraph 78 which reads as under :
“78 Having said so, there is no reason why a similar direction regarding the writ petitioners degree-holder Junior Engineers who have been held by us to be entitled to regularisation on account of their length of service should also not be given a similar benefit. We must mention to the credit of Dr.Dhavan, appearing for the Stipendiary Engineers who have been regularised under the provisions of the legislation that such Stipendiary ad hoc Assistant Engineers cannot, according to the learned counsel, have any objection to the degree-holder Junior Engineers currently working as Assistant Engineers on ad hoc basis being regularised in service or being given 4 seniority from the date they were first appointed. It was also conceded that Stipendiary Engineers all of whom were appointed after the appointment of the Junior Engineers would en bloc rank junior to such ad hoc Assistant Engineers from out of degree-holder Junior Engineers. But all such regularised Assistant Engineers from Stipendiary stream and from Junior Engineers category would together rank below the promotee Assistant Engineers.” The consequence of this has been set out in paragraph 82.2 as under:
“82.2 Writ Petitions Nos.9514 of 2003, 12494-95, 12627 of 2005, 12706 and 8630 of 2006 filed by the degree-holder Junior Engineers working as Assistant Engineers on ad hoc basis are also allowed but only to the limited extent that the services of the writ petitioners and all those who are similarly situated and promoted as ad hoc Assistant Engineers against the proposed 5% quota reserved for in- service Junior Engineers degree-holders shall stand regularised w.e.f. the date the Orissa Service of Engineers (Validation of Appointment) Act, 2002 came into force. We further direct that such in-service degree-holder Junior Engineers promoted as Assistant Engineers on ad hoc basis shall be placed below the promotees and above the Stipendiary Engineers regularised in terms of the impugned legislation. The inter se seniority of the Stipendiary Engineers regularised as Assistant Engineers under the impugned legislation and Junior Engineer degree-holders regularised in terms of this order shall be determined on the basis of their date of first appointment as Assistant Engineers on ad hoc basis.” 5 In pursuance to the aforesaid judgment, a provisional gradation/seniority list was issued in March, 2014 which was assailed by the appellant before the Odisha Administrative Tribunal. Thereafter the final gradation list was issued by the respondent(s) on 28.06.2014, which was also challenged by the appellant. The endeavour by the appellant in contempt jurisdiction before this Court was not successful and this Court by an order dated 29.07.2015 permitted the appellants therein to take out appropriate proceedings before appropriate forums in support of their grievance.
The appellant thereafter approached the Odisha Administrative Tribunal but that petition was dismissed on 05.08.2016 predicated on the reasoning that the appellant was neither before this Court in the aforesaid judgment nor situated similarly to them, and was below respondent No. 4, a person under the stipendiary category. The appellant thereafter filed a writ petition before the High Court challenging the order of the Odisha Administrative Tribunal. That writ petition was dismissed by order dated 17.01.2017. The reasoning of the judgment of the High Court is primarily based on the fact that the appellant having availed of the benefit of the special drive 6 thus went out of the category and was not similarly situated with the persons with whom he was seeking parity. It was the view of the High Court that this Court had regularized the services of the persons before it, and the appellant already being part of the regular establishment could not be regularized for a second time and thus could not avail of the benefit of the judgment of this Court.
The appellant assailed this order in a special leave petition but withdrew the same on 04.05.2017 to approach the High Court by way of a review petition. Thereafter, the appellant filed a review petition before the high Court which was dismissed on 27.06.2017, and then filed a special leave petition assailing both the original order dated 17.01.2017 and the review order dated 27.06.2017.
Learned counsel for respondent no. 5 pointed out that there was an initial impediment in the way of the appellant as no liberty was granted to him to approach this Court after having withdrawn the SLP to file a review petition (Municipal Corporation of Delhi vs. Yashwant Singh Negi2). It is also trite to say that the special leave petition would not lie only against 2(2020) 9 SCC 815 7 the review order (Municipal Corporation of Delhi vs. Yashwant Singh Negi) (supra). Thus, the only way to entertain the claim of the appellant would be to now grant liberty to challenge the order after the decision of the review petition.
We were conscious of these impediments when we granted leave in this matter on 19.07.2019. On examination of the facts of the case and the points raised before us which were also sought to be urged in review, we are of the view that this is a fit case where such liberty should be granted even at this stage.
We have heard learned counsel for parties and perused the record as well as the judgment in Amarendra Kumar Mohapatra And Ors. vs. State of Orissa and Others (supra).
Insofar as the judgment is concerned, it is suffice for us to turn to paragraph 78 in respect of the aforesaid which gives the rationale as to why the said Act was upheld, i.e., to give benefit of regularization on account of length of service to the stipendiary Engineers who have been working for a long period of time. The concession fairly made by the learned counsel for stipendiary Engineers has also been recorded in terms whereof the degree holder Junior Engineers currently working as Assistant Engineers on ad 8 hoc basis being regularized in service, will be entitled to seniority above the stipendiary Engineers en bloc. It was also conceded that stipendiary Engineers all of whom were appointed after the appointment of Junior Engineers would en bloc rank junior to such ad hoc Assistant Engineers from out of the degree holder Junior Engineers. But all such regularized Assistant Engineers from stipendiary stream and from Junior Engineers category would together rank below the promotee Assistant Engineers. Para 82.2 also sets out how the seniority list ought to be worked out considering the conflicting claims of the parties.
In conspectus of the aforesaid facts, and taking into consideration the intent of the aforesaid judgment, there is no doubt in our mind that the view adopted in the case of the appellant by the Courts below would be both iniquitous and contrary to the service jurisprudence where a person who is recruited through a competitive system, albeit, through a special drive meant for the SC candidates cannot be put to a worse position than what he would have, had were he not so recruited through the Odisha Public Service Commission. We say that this is a peculiar situation because the appellant opting for 9 consideration under the special right cannot be said to have adopted a special privilege or channel in his career which would deprive him by placing him below the rank of persons to whom he was senior while he was working on an ad hoc basis as an Assistant Engineer.
It is really not in dispute on perusal of the record before us that had the appellant continued on the ad hoc basis without being so recruited to the Odisha Public Service Commission, his seniority would have been just below Shri Bhagyadhar Sahoo. If we now look to the seniority list, Shri Bhagyadhar Sahoo is at serial No. 15 and the candidates senior to him are part of the promotion order which we have referred to aforesaid. After serial No. 15 starts the candidates who are regularized as per the aforesaid judgment of this Court and in terms of the said judgment have been placed below the candidates who were so promoted to which the appellant was a part. The seniority list seeks to place the appellant at serial No.139 by giving en bloc placement to be recruited through Odisha Public Service Commission through special drive. This list begins from serial No.138 and goes on to serial No.145. Thus, treating the appellant as one under the special drive, he has been placed 10 junior to other categories, while on the other hand, continuing on an ad hoc basis would have placed him between serial No.15 and serial No.16.
We are thus of the considered view that the appeal filed by the appellant is liable to be allowed to the extent of placing him immediately after serial No.15 and before serial No. 16 at serial No. 15A, and to that extent the seniority list is liable to be altered.
Learned counsel for respondent No.5 expressed some apprehensions that the aforesaid direction has the possibility of disturbing the whole seniority and may give rise to other claims/disturb the post held by persons who are at present senior to the appellant.
Insofar as other candidates are concerned, the seniority list was framed vide office order dated 28.06.2014. None of the candidates made a grievance. The fact that the case of the appellant is being considered favourably cannot give rise to any other party now seeking the claim on that basis seven years after the seniority list has been finalized. Thus, there cannot be any claim predicated on our judgment today based on parity, if any.
Insofar as the other apprehensions of learned counsel for respondent No. 5 are 11 concerned, in view of the passage of time, we are of the view that in case the placement of the appellant so on the seniority list leads to a consequence of demotion of any person, the same should not be given effect to and the post may be created till the next available vacancy. This would balance the equities qua all others.
We have endeavoured to take into account the complete record with the able assistance of the counsels though the State has somehow remained unrepresented before us despite the fact that matter has gone on in the pre- lunch session and the post lunch recess.
The appeals are allowed in the aforesaid terms leaving the parties to bear their own costs. The judgment be implemented within a period of two months from today.
....................J. [SANJAY KISHAN KAUL] ...................J. [M.M. SUNDRESH] NEW DELHI, NOVEMBER 25, 2021.
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ITEM NO.101 COURT NO.6 SECTION XI-A
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Civil Appeal No(s). 5761-5763/2019
BILASH KUMAR BEHERA Appellant(s)
VERSUS
THE STATE OF ODISHA & ORS. Respondent(s)
Date : 25-11-2021 These appeals were called on for hearing today. CORAM :
HON'BLE MR. JUSTICE SANJAY KISHAN KAUL HON'BLE MR. JUSTICE M.M. SUNDRESH For Appellant(s) Mr. Pallav Shishodia, Sr. Adv.
Mr. U.C. Mohanty, Adv.
Mr. Kumar Gaurav, Adv.
Mr. R.K. Singh, Adv.
Mr. Neeraj Singh, Adv.
Ms. Ritu Reniwal, Adv.
Mr. B.N. Dubey, Adv.
Mr. Robin Khokhar, AOR For Respondent(s) Mr. Rajiv Dutta, Sr. Adv.
Mr. Radha Shyam Jena, AOR Mr. Som Raj Choudhury, AOR UPON hearing the counsel the Court made the following O R D E R The appeals are allowed in the aforesaid terms leaving the parties to bear their own costs. The judgment be implemented within a period of two months from today.
[CHARANJEET KAUR] [POONAM VAID]
ASTT. REGISTRAR-cum-PS COURT MASTER (NSH)
[ Signed order is placed on the file ]