Orissa High Court
Kishore Kumar Sahu And Others vs State Of Orissa & Others .... Opp. ... on 4 November, 2024
Author: A.K. Mohapatra
Bench: A.K. Mohapatra
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.33857 of 2020
An application under Articles 226 and 227 of the
Constitution of India.
Kishore Kumar Sahu and others .... Petitioners
Mr. Aditya N. Das, Advocate
-versus-
State of Orissa & others .... Opp. Parties
Mr. D. Nayak, A.G.A.
W.P.(C) No.30828 of 2020
Manoranjan Mallick .... Petitioner
Mr. B.B. Mohanty, Advocate
-versus-
State of Odisha & others .... Opp. Parties
Mr. D. Nayak, A.G.A.
W.P.(C) No.33060 of 2020
Bikram Charan Sethy .... Petitioner
Mr. B.B. Mohanty, Advocate
-versus-
State of Odisha & others .... Opp. Parties
Mr. D. Nayak, A.G.A.
Page 1 of 55
W.P.(C) No.33062 of 2020
Ratnakar Behera .... Petitioner
Mr. B.B. Mohanty, Advocate
-versus-
State of Odisha & others .... Opp. Parties
Mr. D. Nayak, A.G.A.
W.P.(C) No.33208 of 2020
Nirmal Chandra Sahoo & Ors. .... Petitioners
Mr. A.K. Mohapatra, Advocate
-versus-
State of Odisha & others .... Opp. Parties
Mr. D. Nayak, A.G.A.
W.P.(C) No.33789 of 2020
Jyoti Ranjan Padhi .... Petitioner
Mr. B. Routray, Sr. Advocate
-versus-
State of Odisha & others .... Opp. Parties
Mr. D. Nayak, A.G.A.
W.P.(C) No.36046 of 2020
Dilip Kumar Sabar & Ors. .... Petitioners
Mr. A.N. Das, Advocate
-versus-
State of Odisha & others .... Opp. Parties
Mr. D. Nayak, A.G.A.
Page 2 of 55
W.P.(C) No.36720 of 2020
Badal Bihari Swain & Ors. .... Petitioners
Mr. B. Routray, Sr. Advocate
-versus-
State of Odisha & others .... Opp. Parties
Mr. D. Nayak, A.G.A.
W.P.(C) No.36725 of 2020
Satya Narayan Behera & Ors. .... Petitioners
Mr. B. Routray, Sr. Advocate
-versus-
State of Odisha & others .... Opp. Parties
Mr. D. Nayak, A.G.A.
W.P.(C) No.36970 of 2020
Prasant Kumar Rout .... Petitioner
Mr. K.P. Mishra, Advocate
-versus-
State of Odisha & others .... Opp. Parties
Mr. D. Nayak, A.G.A.
W.P.(C) No.36974 of 2020
Sanjib Kumar Singh .... Petitioner
Mr. K.P. Mishra, Advocate
-versus-
State of Odisha & others .... Opp. Parties
Mr. D. Nayak, A.G.A.
Page 3 of 55
W.P.(C) No.36975 of 2020
Prakash Kumar Malik & Ors. .... Petitioners
Mr. A.N. Das, Advocate
-versus-
State of Odisha & others .... Opp. Parties
Mr. D. Nayak, A.G.A.
W.P.(C) No.36991 of 2020
Dusmanta Kumar Mahanta & Ors. .... Petitioners
Mr. A.N. Das, Advocate
-versus-
State of Odisha & others .... Opp. Parties
Mr. D. Nayak, A.G.A.
W.P.(C) No.37093 of 2020
Muralidhar Nayak & Ors. .... Petitioners
Mr. S.D. Routray, Advocate
-versus-
State of Odisha & others .... Opp. Parties
Mr. D. Nayak, A.G.A.
W.P.(C) No.37095 of 2020
Antaryami Nayak & Ors. .... Petitioners
Mr. S.D. Routray, Advocate
-versus-
State of Odisha & others .... Opp. Parties
Mr. D. Nayak, A.G.A.
Page 4 of 55
W.P.(C) No.37126 of 2020
Chitta Ranjan Mishra & Ors. .... Petitioners
Mr. S. Mishra, Advocate
-versus-
State of Odisha & others .... Opp. Parties
Mr. D. Nayak, A.G.A.
W.P.(C) No.37127 of 2020
Sudhansu Sekhar Pati & Ors. .... Petitioners
Mr. S. Mishra, Advocate
-versus-
State of Odisha & others .... Opp. Parties
Mr. D. Nayak, A.G.A.
W.P.(C) No.37128 of 2020
Subasis Das & Ors. .... Petitioners
Mr. S. Mishra, Advocate
-versus-
State of Odisha & others .... Opp. Parties
Mr. D. Nayak, A.G.A.
W.P.(C) No.37129 of 2020
Jagannath Gouda & Anr. .... Petitioners
Mr. S. Mishra, Advocate
-versus-
State of Odisha & others .... Opp. Parties
Mr. D. Nayak, A.G.A.
Page 5 of 55
W.P.(C) No.37131 of 2020
Geetanjali Sagaria .... Petitioner
Mr. S. Mishra, Advocate
-versus-
State of Odisha & others .... Opp. Parties
Mr. D. Nayak, A.G.A.
W.P.(C) No.37143 of 2020
Nihar Ranjan Pradhan & Anr. .... Petitioners
Mr. S.P. Nath, Advocate
-versus-
State of Odisha & others .... Opp. Parties
Mr. D. Nayak, A.G.A.
W.P.(C) No.37324 of 2020
Saroj Kumar Nayak & Ors. .... Petitioners
Mr. S. Mishra, Advocate
-versus-
State of Orissa & others .... Opp. Parties
Mr. D. Nayak, A.G.A.
W.P.(C) No.37325 of 2020
Manas Ranjan Rout .... Petitioner
Mr. S. Mishra, Advocate
-versus-
State of Orissa & others .... Opp. Parties
Mr. D. Nayak, A.G.A.
Page 6 of 55
W.P.(C) No.37329 of 2020
Tapaswini Satapathy .... Petitioner
Mr. S. Mishra, Advocate
-versus-
State of Orissa & others .... Opp. Parties
Mr. D. Nayak, A.G.A.
W.P.(C) No.37332 of 2020
Gopal Krushna Panda & Ors. .... Petitioners
Mr. S. Mishra, Advocate
-versus-
State of Orissa & others .... Opp. Parties
Mr. D. Nayak, A.G.A.
W.P.(C) No.38098 of 2020
Sanjay Kumar Pradhan & Ors. .... Petitioners
Mr. S.K. Samal, Advocate
-versus-
State of Odisha & others .... Opp. Parties
Mr. D. Nayak, A.G.A.
W.P.(C) No.3158 of 2021
Manoranjan Mallick .... Petitioner
Mr. B.B. Mohanty, Advocate
-versus-
State of Odisha & others .... Opp. Parties
Mr. D. Nayak, A.G.A.
Page 7 of 55
W.P.(C) No.3633 of 2023
Sangram Kumar Palo .... Petitioner
Ms. K.R. Choudhury, Advocate
-versus-
State of Odisha & others .... Opp. Parties
Mr. D. Nayak, A.G.A.
W.P.(C) No.5054 of 2023
Ajay Kumar Samal & Ors. .... Petitioners
Ms. K.R. Choudhury, Advocate
-versus-
State of Odisha & others .... Opp. Parties
Mr. D. Nayak, A.G.A.
W.P.(C) No.24893 of 2023
Ashok Kumar Pramanik & Ors. .... Petitioners
Mr. S. Rath, Advocate
-versus-
State of Odisha & others .... Opp. Parties
Mr. D. Nayak, A.G.A.
W.P.(C) No.35048 of 2023
Ranjita Rout .... Petitioner
Mr. A.N. Das, Advocate
-versus-
State of Odisha & others .... Opp. Parties
Mr. D. Nayak, A.G.A.
Page 8 of 55
W.P.(C) No.37890 of 2023
Kishor Pradhan .... Petitioner
Ms. B.K. Pattanaik, Advocate
-versus-
State of Odisha & others .... Opp. Parties
Mr. D. Nayak, A.G.A.
W.P.(C) No.37891 of 2023
Babulal Senapati .... Petitioner
Ms. B.K. Pattanaik, Advocate
-versus-
State of Odisha & others .... Opp. Parties
Mr. D. Nayak, A.G.A.
W.P.(C) No.37893 of 2023
Manoranjan Karmi .... Petitioner
Ms. B.K. Pattanaik, Advocate
-versus-
State of Odisha & others .... Opp. Parties
Mr. D. Nayak, A.G.A.
W.P.(C) No.40190 of 2023
Jyoti Prakash Das & Ors. .... Petitioners
Ms. K.R. Choudhury, Advocate
-versus-
State of Odisha & others .... Opp. Parties
Mr. D. Nayak, A.G.A.
Page 9 of 55
W.P.(C) No.41351 of 2023
Jasani Dehuria .... Petitioner
Mr. G.R. Sethi, Advocate
-versus-
State of Odisha & others .... Opp. Parties
Mr. D. Nayak, A.G.A.
CORAM:
JUSTICE A.K. MOHAPATRA
_____________________________________________________
Date of hearing : 26.07.2024 | Date of Judgment: 04.11.2024
______________________________________________________
A.K. Mohapatra, J. :
1. The Petitioners named in the above noted writ applications are discharging their duties as Constables in different districts of the State of Orissa, and have approached this Court by filing the present writ application under Article 226 of the Constitution of India with a prayer to quash the impugned order dated 04.11.2020 passed by the O.P. No.5, order dated 10.11.2020 passed by the O.P. No.2 and order dated 20.11.2020 passed by the O.P. No.5. A further prayer has also been made for a concurrent direction to the Opposite Parties to regularize the services of the Petitioners from the date of their initial joining/appointment as Constables along with all consequential service benefits. Lastly, the Petitioners have Page 10 of 55 also prayed for a direction to the Opposite Parties to permit the Petitioners to participate in the ASI qualifying examination to be held on 06.12.2020 or in the alternative to stay operation of the ASI qualifying examination scheduled to be held on 06.12.2020.
2. On perusal of the record it appears that the present writ application, at the first instance, was placed before a Coordinate Bench of this Court vide order dated 04.12.2020, the learned Coordinate Bench was pleased to issue notice to the Opposite Parties. In the meantime, although the matter was placed before different benches of this Court, however, this Bench vide order dated 15.12.2023 was pleased to pass an interim order directing that in the event the Opposite Parties were contemplating sending any of the Constables for training for the post of A.S.I., the case of the Petitioners be also considered for such training by the Opposite Parties without prejudice to the rights and contentions of the Petitioners raised in the present writ application. It was also directed that in the event the Petitioners are sent for training for the post of A.S.I., such decision shall be subject to the result of the present Writ Application and that the Petitioners shall not claim any equity solely on the basis of the fact that they were allowed to go on training pursuant to the order of this Court. Thereafter, the matter was listed for the final hearing, and after conclusion of the hearing, Page 11 of 55 the matter was kept for delivery of the judgment. It is further made clear that the present writ application was heard along with W.P.(C) Nos.30828, 33060, 33062, 33208, 33789, 36046, 36720, 36725, 36970, 36974, 36975, 36991, 37093, 37095, 37126, 37127, 37128, 37129, 37131, 37143, 37324, 37325, 37329, 37332, 38098 of 2020, W.P.(C) No.3158 of 2021 & W.P.(C) Nos.3633, 5054, 24893, 35048, 37890, 37891, 37893, 40190, 41351 of 2023. Although the above batch of writ applications were heard initially on 20.02.2024, however, at the time of dictating the judgment it was observed that certain clarifications are required with regard to the factual position involved in the matter. Accordingly, the matters were again listed on 26.07.2024 and the hearing was finally concluded. Further, this Court observed that due to work pressure and a heavy assignment, the judgment could not be delivered immediately. This Court expresses its regret for the delay in pronouncement of the final judgment.
3. The factual backdrop of the present writ applications, on a narrow compass, is that the State of Odisha published an advertisement for recruitment of Constables in respective districts and Sepoys in respective Battalions during the year 2006. Pursuant to the aforesaid advertisement dated 04.10.2006, the Petitioners in the present batch of writ applications along with many others Page 12 of 55 submitted their candidature to participate in the recruitment process for appointment as Constables/Sepoys in the district cadre. The advertisement dated 04.10.2006 reveals that there were a total number of 1749 posts of Constables, and 2750 posts of Sepoys were sought to be filled up through the recruitment process. The said advertisement further provides that the reservation percentage for the SC category was 16.25%, 22.5% for the ST category and 11.25% for the SEBC category. The entire process of recruitment was carried out in accordance with the provisions contained in the relevant rules. The present Petitioners were selected through a regular and rigorous selection process and accordingly they were given appointment to the post of Constables/ Sepoys in their respective districts.
4. The writ petition further reveals that the Petitioners are the regular recruits/ employees, and they have been selected and appointed to sanctioned vacant posts pursuant to the advertisement of the year 2006. It further appears that the Petitioners are presently in regular employment from the date of their initial appointment and that they have been receiving all consequential service benefits at par with the regular employees. They have also been undergoing regular training including specialized trainings like SOG and NSG including advanced commando training, anti-naxal combat training, Page 13 of 55 VIP security training, bomb dispersal training etc. While discharging their duties, the Petitioners' services have also been recognized by the authorities and they have received various commendations, awards, rewards, etc. in their service career spanning over 14 years.
5. So far the Petitioners Nos.32 to 38 in W.P. (C) No.33857 of 2020 are concerned, such Petitioners approached this Court earlier by filing W.P. (C) No.5050 of 2012 and a batch of other writ applications and a Review Petition bearing No.221 of 2012. The judgments delivered in the earlier writ applications were challenged before the Hon'ble Apex Court in SLP (C) No.19979-81 of 2013 and Review Petition thereon were all dismissed by the Hon'ble Apex court. It has also been stated that pursuant to the aforesaid order, the services of the Petitioners were regularized, and the Petitioners are receiving all service benefits, promotion etc. as regular police personnel.
6. While the matter stood thus, the Petitioners were informed about the eligibility criteria and the qualifying examination for the post of Assistant Sub Inspector. The most important criteria being 7 years of service experience as Constables/ Sepoys. Although the Petitioners were eligible to participate and to compete for the post of A.S.I., the Petitioners were illegally prevented from participating Page 14 of 55 in such recruitment process for the post of A.S.I. and the applications submitted by them, for recruitment to the post of A.S.I., were not forwarded to the police headquarters by the respective districts. Moreover, while the Petitioners, in anticipation of the fact that the selection process for the post of A.S.I. was about to commence shortly, were preparing for the recruitment process, the Opposite Party No.5, on 04.11.2020, issued a letter to the district police heads thereunder asking them not to send the names of the Petitioners for the A.S.I. examination on the ground that they have been treated as ad hoc and, as such, they are ineligible for appearing in such examination. As a result of the letter, the vested and accrued right of the Petitioners were infringed and they were seriously prejudiced. Consequently, having no other respite, the Petitioners approached this Court by challenging the letter dated 04.11.2020 issued by the Opposite Party No.5 under Annexure-3 to the writ application bearing W.P.(C) No.33857 of 2020.
7. It has also been stated in the writ application that the while the Petitioners were serving in the regular establishment, no intimation whatsoever was given to them with regard to alteration in their status and finally, letter dated 04.11.2020 was issued, thereby debarring the Petitioners from participating in the selection process for the post of A.S.I. It has also been stated in the Writ Page 15 of 55 Petition that the Opposite Parties are well aware of the status of the Petitioners and that the Petitioners are regularly recruited by following a valid selection process. Not only that, but the Petitioners have also received all service benefits as is due and admissible to the regular employees. Thus, the decision of the State Government to treat the Petitioners as ad hoc has been seriously disputed by the Petitioners in the present writ application. Such treatment, as it appears, is unilateral and without intimation whatsoever to the Petitioners. Moreover, the decision vide letter dated 04.11.2020 was also communicated by the Opposite Party No.2 vide his letter dated 10.11.2020 under Annexure-4 to the writ application bearing W.P.(C) No.33857 of 2020.
8. Additionally, the Petitioners have also seriously disputed the decision of the Opposite Party No.5, vide the communication in the letter dated 20.11.2020 under Annexure-5 to the writ application bearing W.P.(C) No.33857 of 2020, inter alia regularizing the Petitioners who are either already regularly recruited or have been regularized pursuant to the orders of this Court in W.P.(C) No.5050 of 2012 and a batch of other similar writ applications. The pleading in the writ application further expresses the petitioners' astonishment with regard to the fact that the Petitioners who were regularly recruited in the year 2006 are being regularized in the year Page 16 of 55 2020, although they were not parties to any kind of litigation, and they were never treated as ad hoc until 04.11.2020.
9. It would also be profitable to note the facts pertaining to the Petitioner Nos.32 to 38 in W.P.(C) No.33857 of 2020. Pursuant to an order passed by the State Administrative Tribunal, although the Petitioner Nos.32 to 38 were recruited through a regular recruitment process against sanctioned vacant posts, they were nevertheless made ad hoc employees. Such a decision of the tribunal was assailed by the Petitioner Nos.32 to 38 by filing W.P.(C) No.5050 of 2012 and Review Petition No.221 of 2012. The order dated 14.08.2012 passed in W.P.(C) No.5050 of 2012, which has been filed as Annexure-6 to the writ application bearing W.P.(C) No.33857 of 2020, reveals that both the writ petition as well as the review petition were taken up for hearing together.
The aforementioned Order dated 14.08.2012, further reveals that altogether 773 persons, including the present Petitioners, were appointed beyond the 50% reservation quota ceiling. A Division Bench of this Court in the order dated 14.08.2012 has recorded the statement of the learned Additional Government Advocate to the effect that, at that point in time there existed a vacancy of 10,000 posts of Constables and Sepoys. Accordingly, the Division Bench of this Court has further observed Page 17 of 55 that for giving effect to order dated 15.12.2011 passed in W.P.(C) No.20249 of 2009 and the batch of connected writ petitions, it would be proper for the State Government not to dispense with the services of the Petitioners who have admittedly worked for 5-6 years from the date of their appointment for no fault of theirs and, that the termination of their services at this stage would result in great hardship to them and their families. The Division Bench has further directed that it would be appropriate for the State Government to create a separate cadre for them for their continuance on ad hoc basis, as a one-time measure and to adjust them against future vacancies of their respective categories. Moreover, it was observed by the Division Bench that recruitment to the future vacancies by way of new/fresh advertisement should take care of the adjustment of the Petitioners and similarly situated persons and the vacancies so advertised shall be reduced to the extent of such adjustments/ regularization of the Petitioners, category-wise. Finally, the Division Bench observed that in compliance with the order dated 15.12.2011 that a fresh select list be redrawn for filling up of 773 posts, as per merit, from the select list and that the same shall be done without any further delay.
10. Thereafter, the Review Petition No.221 of 2012 was filed by some of the Petitioners seeking review of the common judgment Page 18 of 55 dated 15.12.2011 passed in W.P.(C) No.20249 of 2009 and a batch of connected writ petitions. While disposing of the review petition, the Hon'ble Division Bench had referred to the order dated 14.08.2012 passed in W.P.(C) No.5050 of 2012 and have laid emphasis on their views and observations made in said order dated 14.08.2012 to the extent that it would be appropriate for the State Government to not to dispense with the services of the Petitioners, who have admittedly worked for 5-6 years from their appointment, for no fault of theirs since such termination would cause undue hardship to the Petitioners and their families, and that it would be appropriate for the State Government to create a separate cadre for them for their continuance on ad hoc basis, as a onetime measure and to adjust them against future vacancies of their respective categories. Further, it has been observed that the new/fresh advertisement should take care of the adjustment of the Petitioners and similarly situated other persons and, the vacancies so advertised shall be reduced to the extent of such adjustments/ regularization of the Petitioners category-wise. The Hon'ble Division Bench has also laid emphasis on the order dated 14.08.2012 to the extent that while drawing the fresh select list for unreserved candidates, 773 posts are to be filled up from the redrawn select list without any further delay. Thus, the review application was disposed of by reiterating Page 19 of 55 the order dated 14.08.2012 passed in W.P.(C) No.5050 of 2012 with suitable modification to order dated 15.12.2011 passed in W.P.(C) No.20294 of 2009.
11. A counter affidavit has been filed on behalf of Opposite Party Nos.2 to 5, sworn by one Sri Madhu Sudan Behera working as Additional Superintendent of Police in the office of D.G. & I.G. of Police, Odisha, Cuttack. In the said counter affidavit, the Opposite Party Nos.2 to 5 have stated that the Petitioners in the present batch of writ applications, appeared in the recruitment test in their respective districts during the year-2006 for the post of Constable. Accordingly, on being duly selected they were appointed in the year 2006 in their respective districts to the post of Constables/Sepoys. The select list so prepared, pursuant to the advertisement in the year 2006, was redrawn pursuant to the order of the Odisha Administrative Tribunal in O.A. No.2915(C)/2006 and a batch of other cases. Pursuant to the said order, the Petitioners were placed afresh in the 1st Redrawn Select List and were appointed as Constable in the year-2008. Moreover, those who did not find place in the 1st Redrawn Select List were treated as ad hoc.
12. The counter affidavit further reveals that pursuant to the final order by the learned Odisha Administrative Tribunal in O.A. No.1854(C)/2008 and O.A. No.2194(C)/2008 & a batch of similar Page 20 of 55 other matters, the select list was redrawn for the 2nd time thereby fixing a upper limit of 50% to the reserved category posts. Since the number of posts which were initially advertised in SEBC category were subsequently reduced by virtue of the order of the learned Odisha Administrative Tribunal, the Petitioners belonging to the SEBC category were removed from the select list drawn pursuant to the advertisement of the year 2006 and were placed in the 2nd Redrawn Select List and, as such, they were treated as ad hoc. Though the order passed by the learned O.A.T. was upheld by the Hon'ble Division Bench of this Court in W.P.(C) No.20249 of 2009, vide order dated 15.12.2011, additionally the Hon'ble Division Bench had directed to prepare the list afresh by eliminating the names of ad hoc constables. It is pursuant to this direction of the Division Bench that the 3rd Redrawn Select List came into existence by eliminating names of ad hoc declared employees.
13. While this was the position, the Hon'ble Division Bench of this Court, once again on 14.08.2012 in W.P.(C) No.5050 of 2012, directed not to dispense with the service of the ad hoc employees and to regularize their services in future vacancies. The order dated 14.08.2012 has been discussed in detail in the preceding paragraph, as such, the same need not be reiterated here. The order dated Page 21 of 55 14.08.2012 was challenged before the Hon'ble Supreme Court by the State Government, in SLP(C) No.19979-19981/2013. After disposal of the aforesaid SLP, a 4th Redrawn Select List was prepared for UR categories. Thereafter, the matter was referred to the State Government in the Home Department for regularization of the ad hoc employees. After consultation with the General Administration Department, Finance Depart and Law Department, the Government of Odisha issued order dated 10.11.2020, through the Home Department, to regularize the services of all ad hoc employees appointed beyond the advertised capacity in respect of each District and Battalion pursuant to the advertisement of the year 2006. In the said counter affidavit, it has been stated that since the present Petitioners' name did not find place in the Redrawn Select List, therefore, they were allowed to continue on ad hoc basis pursuant to the order passed by the Hon'ble Division Bench of this Court. Furthermore, the continuance of the present Petitioners on regular basis, as has been asserted by the present Petitioners, has been seriously disputed by the Opposite Parties. Further, the Opposite Parties have stated that the service of the Petitioners was regularized only pursuant to the Government order dated 10.11.2020 and the treatment of the Petitioners as ad hoc Page 22 of 55 employees is pursuant to the order of learned O.A.T. as well as of the Hon'ble Division Bench of this Court.
14. With regard to the eligibility of the Petitioners, for participating in the written test for the post of A.S.I, the counter affidavit states that the Petitioners were continuing as ad hoc employees pursuant to the order passed by the Hon'ble Division Bench of this Court and they were never brought over to the regular establishment till 10.11.2020. As such, the Petitioners had not acquired the requisite eligibility, i.e. the 7 years of experience. It has also been stated that steps were taken up for regularization of the services of the Petitioners pursuant to a direction of the Hon'ble Division Bench which was eventually confirmed by the Hon'ble Apex Court. Accordingly, the Govt. of Odisha in the Home Department issued order dated 10.11.2020, thereby regularizing the services of the Petitioners from the date of issuance of that order i.e. 10.11.2020. Accordingly, the Appointing Authorities were directed to take further action keeping in view the facts stated in order dated 10.11.2020. Furthermore, the contention of the Petitioners that their services were regularized w.e.f. 01.11.2010, has been seriously disputed by the Opposite Parties and it has been stated that the same is contrary to the order dated 15.12.2011 passed by the Hon'ble Division Bench in W.P.(C) No.20249 of 2009. Finally, the counter Page 23 of 55 affidavit filed by the Opposite Party Nos.2 to 5 reveals that the Petitioners, being ad hoc employees, are not eligible to get promotion to higher rank before their services are regularized. It has also been stated that some of the ad hoc employees were inadvertently promoted as Lance Naik and Havildar by their respective District Superintendents of Police during the ad hoc Period. Finally, it has been contended that the ad hoc employees were not eligible for promotion to A.S.I. of Police before their regularization and their eligibility for promotion shall be reckoned from the date of their regularization i.e. 10.11.2020.
15. A counter affidavit has also been filed on behalf of the Opposite Party No.16 i.e. the Superintendent of Police, Malkangiri District. In the counter affidavit it has been stated that the letter dated 04.11.2020 was received from the Opposite Party No.2 calling for willingness of the eligible candidates to appear in the examination for promotion to the rank of A.S.I. of Police. He has further referred to the letter dated 10.11.2020 issued by the Home Department, Govt. of Odisha as well as the letter dated 20.11.2020 issued by the I.G. of Police (Personnel), Odisha. The Opposite Party No.16 has stoutly denied the assertion of the Petitioners that their service status was altered to that of ad hoc from regular. It has also been stated that the impugned order has been issued pursuant Page 24 of 55 to the order passed by the learned O.A.T. as well as this Hon'ble Court. It has also been stated that the Select List was redrawn on a number of occasions pursuant to the direction of the Tribunal as well as this Court at different points in time. However, finally the dispute was set to rest vide order dated 14.08.2012 passed by the Hon'ble Division Bench of this Court wherein it has been directed not to dispense with the services of the Petitioners and to allow them by creating a separate cadre and to let the Petitioners continue on ad hoc basis.
16. Heard Sri A.N.Das, learned counsel appearing for the Petitioners in W.P.(C) No.33857 of 2020, Sri Budhadev Routray, learned Senior Counsel appearing for the Petitioners in W.P.(C) No.33789 of 2020 and learned counsels representing the Petitioners in the batch of writ applications which were taken up for hearing analogously, as well as learned Additional Government Advocates appearing for State-Opposite Parties in the respective writ applications. Perused the pleadings of the parties as well as their written note of submissions and the documents placed on record for consideration by this Court.
17. Mr.A.N.Das, learned counsel appearing for the Petitioners in the lead matter i.e. W.P.(C) No.33857 of 2020, at the outset contended that, pursuant to the advertisement in the year 2006, the Page 25 of 55 Petitioners appeared in the recruitment test and on being duly selected they were recruited in the post of Constables/ Sepoys. On such appointment, the Petitioners continued to discharge their duties sincerely and diligently and were receiving all consequential service benefits. He further contended that in the year 2012, the status of some of the Petitioners were declared as ad hoc due to a flaw in implementing the reservation policy by the State Government. Such reservation policy was assailed before the learned O.A.T. at the instance of some of the candidates. The learned O.A.T., in its final judgment, has categorically held that the total reservation cannot exceed 50% ceiling. Thus, the appointments made beyond the 50% ceiling, i.e. a total of 773 posts, were declared illegal.
18. The aforesaid judgment was challenged before this Court and a Division Bench of this Court upheld the judgment of the Tribunal. Thereafter, some of the Petitioners again approached this Court by filing W.P.(C) No.5050 of 2012 which was taken up for hearing along with the Review Petition No.221 of 2012. While disposing of the writ petition as well as review petition, the Division Bench had modified the order passed in the earlier writ petition to the extent that, the services of the Petitioners shall not be terminated, and they shall be allowed to continue on ad hoc basis Page 26 of 55 by creating a separate cadre. Further, it was also directed to regularize the service of 773 candidates who were given appointments in excess of the 50% reservation quota in the subsequent recruitment years.
19. In the course of his argument, learned counsel appearing for the Petitioners laid emphasis on the statement made by the learned Additional Govt. Advocates during of W.P.(C) No.5050 of 2012, to the extent that 10,000 posts of Constables/ Sepoys were lying vacant at the relevant point of time. Keeping the aforesaid facts in view, the Hon'ble Division Bench of this Court directed the State Government to regularize the above named 773 persons who were recruited in excess of the 50% reservation quota on the ground that no fault could be attributed to the Petitioners and that the termination of services of the Petitioners would cause serious prejudice, not only to the Petitioners but also to the families of such Petitioners. The order passed by the Division Bench of this Court in W.P.(C) No.5050 of 2012 has been upheld by the Hon'ble Apex Court.
20. Learned counsel appearing for the Petitioners also contended that the Petitioners were validly selected, pursuant to the advertisement published in the year 2006, therefore, they were regularly selected against sanctioned vacant posts and were duly Page 27 of 55 appointed. On such ground, learned counsel appearing for the Petitioners submitted that the Petitioners were appointed against regular vacancies in posts since the year 2006. Therefore, the subsequent alteration in their status from Regular to ad hoc is highly illegal and arbitrary. Alternatively, it was also argued that the order passed by a Hon'ble Division Bench of this Court, on 14.08.2012 in W.P.(C) No.5050 of 2012, confers a substantial right on the Petitioners to be regularized against the vacant posts of Constables/ Sepoys in their respective districts.
21. Furthermore, referring to the order passed by the Division Bench of this Court, learned counsel appearing for the Petitioners submitted that the Hon'ble Division Bench of this Court had categorically directed that the Petitioners shall be regularized against the future vacancies by way of a new/fresh advertisement and, that such fresh advertisement should take into account the adjustments of the Petitioners and similarly situated persons and that the vacancies so advertised shall be reduced to the extent of such adjustments/regularization of the Petitioners, category-wise. The Division Bench had also directed that 773 posts should be filled up, as per merit, from the select list and that the same should be done without any further delay. He further contended that the order dated 14.08.2012 passed in the W.P.(C) No.5050 of 2012, Page 28 of 55 filed as Annexure-6 to the present writ application bearing W.P.(C) No.33857 of 2020, was also reiterated in the order dated 05.11.2012 passed in Review Petition No.221 of 2012. The said review petition was filed against the common judgment dated 15.12.2011 in W.P.(C) No.20249 of 2009 and a batch of similar other writ petitions. He further submitted that order dated 14.08.2012 has attained finality as the same has been confirmed by the Hon'ble Supreme Court. It was also argued that while implementing the judgment of this Court by the Division Bench, the Appointing Authority i.e. the Superintendent of Police of the respective districts have already regularized the services of many of the candidates in the year 2010, 2012, 2016, and that each of them are receiving all financial and service benefits from the date of their respective joining. Furthermore, emphasis was also laid on the fact that in the meantime many such constables have been given promotion to the post of Lance Naiks and Havildars and that they have undergone further training in the meantime.
22. Learned counsel appearing for the Petitioners in course of his argument, questioned the authenticity of the impugned order dated 10.11.2020 and 20.11.2020. In the said context, he further argued that the order has been issued under the signature of the Officer on Special Duty, Home Department, Govt. of Odisha and Page 29 of 55 by no stretch of the imagination can it be presumed that the aforesaid order has been passed by the State Government. He further contended that the aforesaid order should have been passed by the Principal Secretary of the Home Department to make it a valid one and that the OSD of the department is not a competent office to pass any such order under the Rules of Business of Govt. of Odisha. Moreover, it was also contended that the impugned orders passed by the OSD runs contrary to the order passed by the Division Bench of this Court on 14.08.2012 which was eventually confirmed by the Hon'ble Supreme Court. In the context of the validity of the impugned order, learned counsel appearing for the Petitioners, further referring to the rules of business of the Government, submitted that the OSD is not competent to pass any order on behalf of the State Government and such orders cannot be referred to and called as policy decisions of the State having any binding effect. The impugned orders were also assailed by the learned counsel for the Petitioners on the ground of violation of principles of natural justice and on the ground that the same takes away a vested right of the Petitioners.
23. With regard to the rights flowing from the order passed by the Division Bench of this Court, which was ultimately confirmed by the Hon'ble Supreme Court, learned counsel appearing for the Page 30 of 55 Petitioners contended that such a right is a vested and crystalized right conferred upon the Petitioners, and as such, the same cannot be abridged and/or curtailed at the whims and fancies of the State. Moreover, the State authorities have no right to either override and/or supplant their views, when the right of the present Petitioners to be regularized flows from the judicial orders pronounced by a Division Bench of this Court and such order conferring a right has been ultimately confirmed by the Hon'ble Supreme Court. On the contrary, it was argued that the State is under a legal obligation to implement the judicial pronouncements of the constitutional courts with certainty, exactness and with all promptitude. Learned counsel appearing for the Petitioners at this juncture would argue as to whether the employees who were initially appointed as regular employees should, after alteration of their service status, be treated as ad hoc and be re-regularized 14 years after their joining in regular service pursuant to a valid advertisement and a recruitment process, against sanctioned vacant posts? Learned Counsel for the Petitioner further argued that pursuant to the order passed by the Division Bench in W.P.(C) No.5050 of 2012 on 14.08.2012 and the Review Petition, which was eventually confirmed by the Supreme Court by dismissing the SLP, whether it is open to the Opposite Parties to regularize the Page 31 of 55 services of the Petitioners in the year 2020 in compliance to a direction which was issued in the year 2012, although several advertisements were issued in the meantime to fill up the vacant posts?
24. In the aforesaid context, learned counsel for the Petitioners further stated that the conduct of the Opposite Parties in the present case is in complete violation of the order dated 14.08.2012 and, as such, the same is contemptuous in nature. Learned Counsel for petitioner, at this point also advanced the argument that, even though a statement was made on behalf of the Government before this Court, at the time of hearing of the earlier writ application, to the effect that 10,000 posts of Constables/ Sepoys are lying vacant, then, instead of regularizing the 773 numbers of ad hoc employees immediately with promptness, in terms of the order dated 14.08.2012 as well as in the review petition, the Opposite Parties opted to wait for almost 8 years and only in the year 2020 the order of regularization of the services of the Petitioners were issued by the State Government. It was further contended that such a delay on the part of the State-Opposite Parties in complying with the direction given by the Division Bench of this Court is wholly unjust, unfair, arbitrary and discriminatory in nature. On such Page 32 of 55 grounds, it was submitted that the impugned orders challenged in the present writ applications are wholly unsustainable in law.
25. In course of his argument, learned counsel for the Petitioners further laid emphasis on the fact that while passing the order dated 14.08.2012 in W.P.(C) No.5050 of 2012 and while reiterating the said order in the Review Petition No.221 of 2012, the Hon'ble Division Bench had categorically issued a direction to prepare a select list in respect of 773 posts, carving out the same from the general pool of 10,000 posts, "without any further delay". He further contended that while considering the case of the Petitioners, this Court was aware of the ground realities and the fact that no fault can be attributed to the Petitioners. He also submitted that although the Petitioners were duly selected by following a regular recruitment process, however, they have been made to suffer due to the discrepancies found in the advertisement while providing reservation which, the learned O.A.T., eventually found to be illegal and arbitrary. It was also argued that the direction of the Division Bench vide order dated 14.08.2012 inter alia directing that the select list shall be made without any further delay is not only an integral part of that order, but, in a way, the said direction is the essence of order dated 14.08.2012. Therefore, in light of the order dated 14.08.2012, which has attained finality in the meantime, Page 33 of 55 it was not open to the Opposite Parties to simply sit over the matter for 8 years and pass orders of regularization in the year 2020 as per their sweet will and in gross disregard to the letter and spirit of the order passed by a Division Bench of this Court.
26. He further contended that the Opposite Parties, through their pleading as well as submissions, have been trying to mislead this Court. In the aforesaid context, it was submitted that although the Opposite Party Nos.2 to 5 filed an affidavit to the effect that there is no vacancy for the year 2010, however, contrary to such stand, pursuant to the order dated 26.11.2016 in O.A. No.2194 (DC)/2008, the S.P. Headquarters, Cuttack and S.P. Khurda have regularized the services of four constables indicating that there are 30 vacancies in the rank of constables from October 2010 to October 2011. In support of his contention, he also referred to the order of regularization at Annexure-8 to the writ application bearing W.P.(C) No.33857 of 2020. He further contended that regularization of the service of the Petitioners would not have imposed any additional financial burden on the State Government as all the Petitioners have been extended with all service and financial benefits notionally from their respective date of joining in the years 2006, 2008, as the case may be. Learned counsels for the Petitioners have further questioned the rationale in fixing the cutoff Page 34 of 55 date, 10.11.2020, as the date of regularization. In the aforesaid context, he further submitted that in respect of some of the districts the constables/ sepoys have been regularized much prior to that date.
27. In course of his argument, learned counsel for the Petitioners, referring to the judgment of the Hon'ble Supreme Court in Maneka Gandhi vs. Union of India reported in 1978 AIR 597, submitted that the Hon'ble Supreme Court has opined that the principles of natural justice are an integral part of guarantee of equality assured by Article 14 of the Constitution. Therefore, an order passed by an authority depriving a person of his civil right without affording him an opportunity is a nullity in the eye of law. Furthermore, referring to the judgment of the Hon'ble Supreme Court in Karnaik Singh vs. State of Punjab and Anr. reported in 1994 Supp (3) SCC 72, learned counsel for the Petitioners submitted that the Hon'ble Supreme Court has deprecated the practice of reversion of the Petitioners as head constables as illegal inasmuch as such reversion was based on the ground of bad records, and no enquiry whatsoever was initiated in respect of the adverse remark made against the Petitioners in that case.
28. Learned Counsel for the Petitioner also referred to the judgment of the Hon'ble Supreme Court in Principal, Mehar Page 35 of 55 Chand Polytechnic and Anr. vs. Anu Lamba and ors. reported in (2006) 7 SCC 161. In the aforesaid judgment, Hon'ble Supreme Court has observed that public employment is a facet of the right to equality envisaged under Article 16 of Constitution of India and that the right of the state to create posts and recruit people emanates from the statutes or statutory rules framed under the proviso appended to Article 309 of the Constitution of India and that the recruitment rules have been framed with a view to give equal opportunity to all citizens in the matter of public employment. In addition to the above-mentioned judgments, learned counsel for the Petitioner also referred to a catena of similar other judgments to impress upon this Court that while changing the status of the Petitioners from regular to the ad hoc no opportunity whatsoever was provided. Thus, such conduct is a nullity in the eyes of law.
29. Finally, learned counsel for the Petitioners also referred to the latest judgment of the Hon'ble Supreme Court in Vivek Kaisth and Anr. vs. State of Himachal Pradesh & Ors. decided in Civil Appeal Nos.6233-6234 of 2023 vide judgment dated 20.11.2023. Referring to the aforesaid judgment, learned counsel for the Petitioners submitted that the Petitioners before the Hon'ble Supreme Court were judicial officers in the rank of Senior Judge, Civil Division and they were discharging duties for nearly 10 years, Page 36 of 55 therefore, unseating the appellants from their posts would not be in public interest. It has also been observed in the aforesaid judgment that unseating the Petitioners would not have mattered much had the court come to a conclusion that the very appointment of such petitioners was wrong. In the said case it was found that the appellants were appointed from the list of candidates who had successfully passed the written examination and viva-voce, and they were placed in the merit list. As such, the equity leans in favour of the appellants. While deciding the aforesaid case, the Hon'ble Supreme Court has also referred to the Constitution Bench Judgment Sivanandan C.T. and Ors. vs. High Court of Kerala and Ors. reported in (2023) SCC OnLine SC 994 and in the said judgment, the Hon'ble Apex Court has declined to interfere or unsettle the appellants on the ground that they were working for more than 6 years.
30. Learned counsel for the Petitioners in W.P.(C) No.33208 of 2020, while adopting the argument advanced by Mr.A.N.Das, learned counsel appearing for the Petitioners in W.P.(C) No.33857 of 2020, further contended that the Petitioners were selected by following a due selection procedure pursuant to the advertisement of the year 2006. He further contended that the State-Opposite Parties have committed a mistake in providing for reservation in Page 37 of 55 excess of the 50% cap as has been fixed by the Hon'ble Supreme Court in Indra Sawhney's case reported in 1992 Supp (3) SCC
217. He further submitted that the Petitioners who were appointed in the year 2006 have undergone regular training and they have been discharging their duties to the satisfaction of their higher authorities. He also submitted that the Petitioners are getting all service benefits along with their batch-mates, including RACP and MACP benefits and that in the service book it has been mentioned that the Petitioners are regular employees. Since the other submissions and grounds taken in the note of submission are almost identical to the one taken in the lead matter, this Court does not want to reiterate the same here as the same would only amount to repetition of the submissions which have already been taken note of in this judgment.
31. Learned counsel for the Petitioners in W.P.(C) No.3633 of 2023 and two other similar matters submitted that the said writ application pertains to the regularization of Sepoys of OSAP. While adopting the argument advanced by Mr.A.N.Das, learned counsel for the Petitioners in W.P.(C) No.33857 of 2020 submitted that the Petitioners were selected by following a regular procedure pursuant to the advertisement in the year 2006. Since the date of their initial appointment, they have been discharging their duties and they have Page 38 of 55 been paid all service and financial benefits at par with all regular employees. On a consideration of his submission as well as upon a close scrutiny of the written note of submission, this Court is of the view that not only the facts are identical, but also the issues involved are very much similar to the one involved in the lead matter i.e. W.P.(C) No.33857 of 2020.
32. Shri Budhadev Routray, learned Senior Counsel appearing for the Petitioner in W.P.(C) No.33789 of 2020 also raised the identical grounds as has been raised by Mr.A.N.Das, learned counsel for the Petitioner in W.P.(C) No.33857 of 2020. It is also not disputed by the parties that the facts are almost similar and the same are not disputed by either side. Learned Senior Counsel in course of his argument also laid emphasis on the order of the Division Bench dated 14.08.2012. Learned Senior Counsel emphatically pointed to the submission of the learned Additional Govt. Advocates, recorded by the Hon'ble Division Bench in its order dated 14.08.2012 to the extent that 10,000 posts of constables and sepoys were lying vacant at the relevant point of time. He also referred to the direction by the Division Bench vide order dated 14.08.2012. Since the order dated 14.08.2012 has been discussed elaborately in the preceding paragraph, any further discussion would only amount to repetition of the facts. Mr. Routray, learned Page 39 of 55 Senior Counsel for the Petitioner also emphasized the inaction/ delayed action of the Opposite Parties in carrying out the direction contained in order dated 14.08.2012 in W.P.(C) No.5050 of 2012. In course of his argument, learned Senior Counsel for the Petitioner also raised a very pertinent point that a contempt proceeding bearing CONTC No.169 of 2013 was filed before this Court. This Court, vide order dated 28.06.2017, has accepted the submission of the Petitioner and it was clearly observed by the Division Bench of this Court that the appointment of the Petitioner No.6 shall relate back to 2006 and his appointment shall not be contractual, rather it shall be on regular basis and a further direction was given to issue a revised order. He further submitted that pursuant to the order dated 28.06.2017, the Opposite Parties passed order dated 06.09.2017, whereby the service of the Petitioner No.6 in W.P.(C) No.33789 of 2020 was converted to a regular one and notional benefits were also allowed in favour of the said Petitioner from the date of his initial appointment i.e. on 20.12.2006.
33. Mr.Routray, learned Senior Counsel for the Petitioners, in course of his argument, further alleged that although the service of the aforementioned Petitioner was regularized, however, the Petitioner has not been extended with RACP and MACP benefits which has been allowed in favour of his juniors. Such inaction on Page 40 of 55 the part of the Opposite Parties compelled the Petitioner to file another contempt bearing CONTC No.715 of 2018. In the said contempt proceeding, the D.G. & I.G. of Police, Odisha filed a compliance affidavit wherein it has been stated that after obtaining views of the Law Department and Home Department of the Govt. of Odisha, the D.G.P., Odisha has directed for compliance of the order passed by this Court. Accordingly, the S.P., Railway Police, Cuttack was requested to allow notional benefits to the concerned Petitioner from the date his juniors were extended with such benefits. Accordingly, the Appointing Authority has allowed notional benefits to the Petitioner in the aforesaid (contempt proceeding) from the date of his juniors by giving such benefits i.e. 22.12.2006 with subsequent revision thereto.
34. In the aforesaid factual backdrop, learned Senior Counsel for the Petitioner in W.P.(C) No.33789 of 2020 contended that since the Opposite Parties have regularized the service of the Petitioner from 2006, and extended him with all benefits at par with the appointees under the very same advertisement, and the Petitioner has also received the RACP and MACP benefits taking into consideration the date of his appointment from 2006, there remains no doubt that the Petitioner is a regular employee from such date. Therefore, the subsequent order regularizing the Page 41 of 55 Petitioners w.e.f. 10.11.2020, 20.11.2020 is highly illegal, arbitrary and contrary to the order dated 14.08.2012 passed in W.P.(C) No.5050 of 2012, which has ultimately been upheld by the Hon'ble Supreme Court by dismissing the State's SLP. He further contended that the Review Petition filed by the State has also been dismissed by the Hon'ble Supreme Court. Thus, there remains no doubt that the order dated 14.08.2012 has attained finality in the meantime thereby leaving no scope to revisit the order dated 14.08.2012 in any manner whatsoever. Finally, learned Senior Counsel for the Petitioner in W.P.(C) No.33789 of 2020 argued that it is the settled principle of law that once a direction is issued by a competent court of law, the same has to be obeyed and implemented without any reservation. He also contended that unless the orders passed by the Constitutional Courts are obeyed in its letter and spirit by the concerned authorities, such conduct on the part of the authorities would bring an end to the rule of law. In the aforesaid context, learned Senior Counsel for the Petitioner referred to the judgment of the Hon'ble Apex Court in the case of Commissioner, Karnataka Housing Board vs. C. Muddaiah reported in (2007) 7 SCC 689.
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35. Per contra, learned Additional Govt. Advocates appearing in different writ applications of the present batch of writ applications, at the outset submitted that the Opposite Parties have not committed any illegality in passing the impugned orders dated 04.11.2020, 10.11.2020 and 20.11.2020. They further contended that the impugned orders were passed pursuant to the order dated 14.08.2012 passed by the Division Bench in W.P.(C) No.5050 of 2012 as well as in the connected Review Petition. They further contended that pursuant to the advertisement in the year 2006, the recruitment process was carried out strictly in terms of the applicable rules as well as the terms and conditions reflected in the advertisement itself. Pursuant to the advertisement of the year 2006, the applicants who were successful and, whose names appeared in the final merit list, were given appointment. Subsequently, some of the candidates belonging to the Unreserved Category challenged the advertisement on the ground that the reservation provided in the advertisement for the reserved category exceeded the 50% ceiling for the reserved category quota in violation of the law laid down by the Hon'ble Supreme Court in Indra Sawhney's case (supra). The learned Odisha Administrative Tribunal, vide a detailed judgment, quashed the selection and appointment of candidates who were selected in the reserved category in excess of the 50% quota. Such Page 43 of 55 judgment of the Tribunal was assailed before the Division Bench of this Court by filing W.P.(C) No.20249 of 2009. The judgment of the Tribunal was upheld by this Court vide order dated 15.12.2011.
36. The selected candidates belonging to the SEBC category, whose names were removed from the select list, owing to the fact that their selection was found to be in excess of 50% total reservation quota, again approached this Court by filing W.P.(C) No.5050 of 2012. The said writ petition was disposed of vide order dated 14.08.2012 with a suitable modification to order dated 15.12.2011. Similarly, the Review Petition No.221 of 2012 filed by some of the Petitioners was also disposed of vide order dated 05.11.2012 by reiterating the order dated 14.08.2012 with consequential modification to judgment dated 15.11.2012 passed in W.P.(C) No.20294 of 2009. Learned Additional Govt. Advocates further contended that the matter went up to the Supreme Court at the instance of the State-Opposite Parties by filing an SLP. After dismissal of the SLP, the State preferred a Review Petition. They further contended that the review petition also got dismissed. Since the Hon'ble Supreme Court declined to interfere with the aforesaid two orders dated 14.08.2012 and 05.11.2012, the State-Opposite Parties, after due deliberation and consultation with respective departments, finally passed the impugned orders regularizing the Page 44 of 55 service of the 773 persons who were brought from the select list after it was found that they have been selected over and above the 50% reservation quota. With regard to the other cases that have been cited by the learned counsel appearing for the Petitioners, that their services have been regularized in the meantime w.e.f. 2006 although they come within the aforesaid 773 employees, learned Additional Govt. Advocates submitted that those orders for regularization were passed pursuant to the judicial orders either by the learned O.A.T. or by this Court in the writ petition. On such grounds, learned Additional Govt. Advocates representing the State-Opposite Parties, contended that the State-Opposite Parties have not committed any illegality in passing the impugned orders and the present writ petitions are being devoid of merit, accordingly, the same should be dismissed.
37. Having heard the learned counsel appearing for the Petitioners in the present batch of writ applications, as well as learned Additional Govt. Advocates, further on a careful examination of the respective pleadings of the parties and upon a careful consideration of the written note of submissions as well as other documents on record, this Court, at the outset of the observes that the factual aspects of the present batch of writ applications, are not disputed by the State-Opposite Parties. The pleadings of the Page 45 of 55 parties further reveals that pursuant to the advertisement of the year 2006, the Petitioners in the batch of the present writ applications, along with other candidates, submitted their candidature for appointment to the post of Constables/ Sepoys in their respective districts/ battalions. The selection process was duly carried out in accordance with the applicable rules and in terms of the advertisement. Once the Petitioners were selected, they were given appointment in their respective districts/ battalions as constables/ sepoys.
38. While the matter stood thus, the process of selection, particularly by providing more than 50% reservation in the advertisement, was questioned by some of the Unreserved category candidates before the learned O.A.T. The learned O.A.T. by a detailed judgment and by taking note of the law laid by the constitution bench of the Hon'ble Supreme Court in Indra Sawhney's case (supra) allowed the O.A. application to the extent that persons who were appointed in SEBC category over and above the maximum 50% quota for the reserved category, shall have their names removed from the selection list and a direction was given to redraw the select list in terms of the judgment of the learned Tribunal. As has been discussed elsewhere in this judgment, the order passed by the Tribunal was upheld by a Division Bench of Page 46 of 55 this Court which was eventually confirmed by the Hon'ble Supreme Court, thereafter, the order dated 14.08.2012 came into picture. The circumstances under which order dated 14.08.2012 of the Division Bench of this Court was passed has also been discussed in the preceding paragraphs of this judgment. The order dated 14.08.2012 was also reiterated by a Division Bench in the review petition preferred against the order confirming the judgment of the learned O.A.T.
39. Taking into consideration the submissions advanced by the learned counsels appearing for the Petitioners, this court further observes that the Petitioners were initially appointed on regular basis, therefore, their status of service could not have been altered subsequently without providing them an opportunity of hearing. The question, therefore, arises for consideration before this Court, is, whether the impugned orders passed by the Opposite Parties altering the status of the Petitioners from regular to ad-hoc without following the principles of natural justice is sustainable in law or not? Particularly in the background that, the Petitioners were not parties to such proceeding and the judgment which was the basis for taking such a decision. The next question for consideration before this court is, in the event this Court comes to a conclusion that the principles of natural justice have not been followed prior to the Page 47 of 55 passing of the impugned orders, whether it would be proper and desirable to set aside the impugned orders keeping in view the judgment of the Tribunal that has already attained finality in the meantime?
40. In reply to the aforesaid questions, this Court found force in the submission of learned counsels appearing for the Petitioners that before altering the status of service of the Petitioners, the Opposite Parties were under a legal obligation to provide an opportunity of being heard to the petitioners, since the impugned orders have civil consequences. Moreover, the Petitioners were initially appointed on regular basis, as would be evident from their service book, subsequent to the judgment of the learned O.A.T. Later, although 773 employees were found to have been appointed over and above the 50% reserved category quota, however no specific order was passed altering their status from regular to ad hoc. The Division Bench of this Court, on 14.08.2012 and 05.11.2012, had given a specific direction, with regard to the Petitioners and others coming under 773 employees category, by directing not to terminate the service of the said Petitioners. Therefore, the state authorities were under an obligation to provide an opportunity of hearing to the Petitioners before passing the impugned orders. However, in view of the judgment of the Tribunal and the subsequent orders passed Page 48 of 55 by the Division Bench in W.P.(C) No.5050 of 2012 on 14.08.2012, as well as the order passed in the Review Petition No.221 of 2012 disposed of on 05.11.2012, this Court is of the view that the observance of the principles of natural justice would have been a futile exercise on the part of the Opposite Parties. It is more so, keeping in view the fact that the judgment passed by the Tribunal as well as the order of this Court have been upheld by the Hon'ble Apex Court. Therefore, such judgment and order have attained finality. In the aforesaid factual backdrop, this Court is of the view that the non-observance of the principles of natural justice does not change the ground scenario and ultimately the same would not have changed the result as well as the fate of the Petitioners.
41. The next question that falls for consideration by this court in the present batch of writ applications, is, as to whether the Opposite Parties have implemented the order dated 14.08.2012 passed in W.P.(C) No.5050 of 2012 and in Review Petition No.221 of 2012 dated 05.11.2012? The order dated 14.08.2012 as well as 05.11.2012 have been discussed in detail in the preceding paragraphs. Both the aforesaid orders, having been assailed by the State-Opposite Parties before the Hon'ble Supreme Court by filing SLP and such SLP having been dismissed, the aforesaid orders have attained finality. Therefore, the State-Opposite Parties were Page 49 of 55 left with no option other than to implement both the orders in their letter and spirit. It is needless to mention here that any deviation in compliance with the aforesaid two orders would amount to a gross violation of this Court's order which would attract punishment under the Contempt of Courts Act, 1971. Moreover, this Court observes that the core issue involved in the present writ applications having attained finality in the previous adjudication and the outcome of such adjudication in respect of the present Petitioners having been crystallized in orders dated 14.08.2012 and 05.11.2012, it is no more open to this Court to enter into the merits of the matter as the issue has already attained finality.
42. Therefore, this Court now confines its adjudication to the limited question as to whether the orders dated 14.08.2012 and 05.11.2012 passed by the Division Bench of this Court, which have been confirmed by the Hon'ble Supreme Court by dismissing the State's SLP, have been implemented by the State-Opposite Parties in their letter and spirit. The order dated 14.08.2012 reveals that this Court, while passing the said order, has taken note of the fact that altogether 773 number of persons including the Petitioners who were appointed beyond 50% quota of reservation. Further, the said order also takes note of the statement of the learned Additional Govt. Advocates that there are 10,000 posts of Constables/ Sepoys Page 50 of 55 lying vacant at the relevant point in time. In the aforesaid two factual backgrounds, the Hon'ble Division Bench directed the State Government not to dispense with the services of the Petitioners. Moreover, it has also been observed that the Petitioners be absorbed against the future vacancies of their respective categories and recruitment to the future vacancies by way of fresh advertisement should take care of the adjustment of the Petitioners and similarly situated persons, and that the vacancies so advertised shall be reduced to the extent of such adjustments/ regularization of the Petitioners category-wise. Finally, it has been directed to fill up 773 posts, as per the merits, from the select list without any further delay.
43. On a careful analysis of the impugned orders, this Court is of the view that, in order to implement the order dated 14.08.2012 the State Government waited for almost 8 years and the order of regularization were issued in the year 2020. Therefore, this Court has no hesitation in holding that the conduct of the Opposite Parties in issuing regularization orders in the year 2020 is contrary to the letter and spirit of the direction contained in the order dated 14.08.2012. Moreover, the Division Bench of this Court has categorically observed that the direction in the aforesaid order is to be carried out without any further delay. The said direction Page 51 of 55 however, has not been adhered to promptly by the State-Opposite Parties. Such conduct of the Opposite Parties definitely constitutes violation of this Court's order. Moreover, the authenticity of the impugned orders is questionable as such orders were passed by the O.S.D., Home Dept., Govt. of Odisha. The assertion of the Petitioners that the O.S.D. is incompetent under the Govt. Rules of Business to take any such decision remains on rebutted by the State-Opp. Parties.
44. Additionally, this Court observes that some recruitment process took place subsequent to order dated 14.08.2012 without first complying with the order dated 14.08.2012. Such conduct of the Opposite Parties is also in violation of order dated 14.08.2012 as well as 05.11.2012. Thus, this Court is of the considered view that the impugned orders dated 04.11.2020, 10.11.2020 and 20.11.2020 are highly illegal, arbitrary and contrary to the directions given by the Hon'ble Division Bench in both the orders dated 14.08.2012 and 05.11.2012 (which were ultimately confirmed by the Hon'ble Supreme Court). Accordingly, the order dated 04.11.2020, 10.11.2020 and 20.11.2020 under Annexures-3, 4 and 5 respectively, to the Writ Petition bearing W.P.(C) No.33857 of 2020, are hereby quashed.
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45. On a careful analysis of the factual background of the present case, further keeping in view the letter and spirit of the orders dated 14.08.2012 and 05.11.2012, this Court is of the considered view that the State-Opposite Parties have acted in a manner which is in gross violation of Article 14 of the Constitution of India. Various District Heads of the Police have passed orders at different points of time, thereby regularizing the services of the persons who were amongst the aforesaid 773 persons. Furthermore, considering the fact that they appeared in the selection process pursuant to a common advertisement of the year 2006, a uniform procedure should have been followed by all the District Heads of the Police with due regard to the seniority of the persons and keeping in view the original select list of the year 2006. In such view of the matter, this Court further directs that the Opposite Parties shall do well to regularize the services of the Petitioners strictly in terms of the orders of the Hon'ble Division Bench dated 14.08.2012 and 05.11.2012. Accordingly, the Opposite Party No.3 is directed to review each and every case of the 773 employees who were found beyond the 50% reserved category quota. While reviewing their cases, the Opposite Party No.3 and the respective District Heads of the Police shall do well to ascertain the vacancy positions post the 2006 advertisement. Since it is a matter of record Page 53 of 55 that no further recruitment took place from the year 2006 to 2012 and a statement was made before this Court which has been specifically recorded in the order dated 14.08.2012 to the effect that there were 10,000 vacancies at the relevant point in time, an attempt shall be made to regularize the services of the Petitioners against such vacancies. Such regularization shall be made strictly by giving due regard to the seniority of the Petitioners, as per their position in the merit list of the recruitment test of the year 2006. It is further made clear that the present Petitioners shall be kept above in the seniority list to the persons who have been appointed pursuant to a selection process carried out post the year 2012. Since the Petitioners are getting the regular scale of pay with all service and financial benefits, no further direction is required in the aforesaid regard. However, it is made clear that no recovery shall be made from the Petitioners consequent upon their regularization in service. Furthermore, it is also directed that on the basis of their re-fixed date of regularization, the experience of the Petitioners shall be counted from such date, and subject to their fulfilling the eligibility requirement, they shall be allowed to participate in the selection process for promotion to the next higher rank.
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46. Keeping in view the peculiar facts and circumstances of the present case, as well as the direction of the Hon'ble Division Bench as discussed hereinabove, the writ applications stand allowed. However, there shall no order as to cost.
(A.K. Mohapatra) Judge Orissa High Court, Cuttack The 04th November, 2024/ Anil.
Signature Not Verified Digitally Signed Signed by: ANIL KUMAR SAHOO Reason: Authentication Location: High Court of Orissa Date: 05-Nov-2024 17:44:38 Page 55 of 55