Orissa High Court
Bilash Kumar Behera vs State Of Odisha And Others on 17 January, 2017
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
HIGH COURT OF ORISSA: CUTTACK.
W.P.(C) Nos.17571 and 1697 of 2016
In the matter of application under Articles 226 and 227 of the
Constitution of India.
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Bilash Kumar Behera ...... Petitioner in both the cases.
- Versus-
State of Odisha and Others ...... Opp. Parties in both the cases.
Counsel for Petitioner : M/s. Umesh Chandra Mohanty, T.
Sahoo, B. K. Swain and B. Behera.
Counsel for Opp.Parties : M/s. Prafulla Kumar Rath, R. N. Parija,
A. K. Rout, S.K. Pattnaik, A. Behera, P. K.
Sahoo, S. K. Behera, A. K. Behera and B.
K. Dash.
PRESENT:
THE HONOURABLE KUMARI JUSTICE SANJU PANDA
&
THE HONOURABLE SHRI JUSTICE SUJIT NARAYAN PRASAD
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Date of hearing and judgment : 17.01.2017
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S. N. Prasad, J.In both these writ petitions common issues are involved and as such both the writ petitions are disposed of by this common order.
These writ petitions are against the order dtd.05.08.2016 passed in O.A. Nos.861 and 1493 of 2014 and passed by the Odisha Administrative Tribunal, Bhubaneswar whereby and where under the grievance of the petitioner to fix his seniority above the opposite party no.4 w.e.f.27.05.1997, has been rejected.
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2. The brief fact of the cases in narrow compass is that the petitioner belongs to Scheduled Caste category, he is a qualified candidate in Diploma in Civil Engineering, got in the year 1988, Degree in Civil Engineering (AMIE) in the year 1994 and also acquired M. Tech. in Environment Engineering in the year 2000, had initially joined as Junior Engineer (PH) in the Housing and Urban Development Department on 2.10.1991 and treated as an in service Degree Holder Junior Engineer in the context of the provision of recruitment rule governing the Orissa Engineering Services (in short the OES Rules, 1941). As per the provision of Orissa Engineering Services Rules, 1941, the Orissa Engineering Services are consisting of two categories of posts, i.e. Class-II and Class-I posts, framed under Article 309 of the Constitution of India, as per the provision of Rule 5 of the said Rule, the entre cadre is the post of Asst. Engineer. The recruitment to the post of Asst. Engineer shall be made partly by direct recruitment against 67% of quota in accordance with the Rules 8 to 15 and the other 33% quota in accordance with Rules 16 to 18 from amongst the in-service Diploma Holder Junior Engineers, who have completed minimum 10 years of continuous service as on 1st day of August of the recruitment year and who have passed the departmental examination as has been prescribed by the Government from time to time. Besides the in-service Junior Engineers, who have acquired the qualification of Degree in Engineering have a right to apply for appointment as Asst. Engineers against the direct recruitment quota of 67% along with fresh Graduate Engineers through Public Service Commission as per the eligibility criteria as provided under Rule 9(d) of the Rules, 1941. As per Rule 19 and 20, a promotee is likely to be confirmed in the post of Asst. Engineer after completion of one year of continuous service of 3 period of probation, similarly a direct recruittee is likely to be confirmed in the said post after completion of 2 years of period of probation. As per Rule 2 the promotee officer shall be considered senior to the officers directly recruited in a recruitment year irrespective of their date of joining. As per Rule 23, the power of relaxation of recruitment rules has been vested with the State Government and the Government can invoke the same in respect of any person or employee if he feels necessary and expedient so to do in the interest of public service.
No direct recruitment against 67% quota in the cadre of Asst. Engineer has been held from the year 1987-88 till the year 2003 and as such the Graduate Engineers of the State and the in-service Degree Holder Junior Engineers shall be deprived of the opportunity to compete for the 67% quota of the posts. The Government has engaged the other stipendiary engineers, who were appointed in different State Engineering Departments, public sector undertakings, Blocks and continued under stipend of Rs.2000/- per month, hence the grievance of the petitioner is that on the one hand the government is making recruitment of the stipendiary engineers while making payment of stipend, while on the other hand even in spite of availability of qualified persons who are to consider for appointment in the post of Asst. Engineers against 67% quota, no steps is being taken.
The Government has constituted a high power committee by its decision dtd.5.8.1992 by which it was decided to give appointment to the unemployed Graduate Engineers (stipendiary) against 25% quota and so also to give appointment to in-service Degree Holder Junior Engineers against 5% quota so as to achieve the dual objective of adjusting the stipendiary Engineers 4 and the in-service Degree Holder Junior Engineers against the direct recruitment quota of 67% as follows:-
(a) The promotion quota may continue as 33% of annual vacancy.
(b) In addition there should be a selection quota of 30%. This quota will have two components - 5% for Junior Engineers, who have acquired as Engineering Degree or equivalent qualification and 25% which will be earmarked exclusively for stipendiary Engineering.
(c) Direct recruitment quota will be 37%. Stipendiary Engineers can also compete against this quota. They may be allowed age relaxation up to five years. This will ensure that Stipendiary Engineers have the facility of recruitment, both against the selection quota and direct recruitment quota.
(d) ............
(e) This will be a transitional provision because appointment of Stipendiary Engineers may not be a permanent feature. After such time as, Government may decide the present quotas of recruitment will be restored.
(f) Public Sector Undertakings should frame their own recruitment rules which should broadly correspond to Government's policy of promotion of Junior Engineers and appointment of Stipendiary Engineers through selection. If there are no Stipendiary Engineers or Junior Engineers with Degree or equivalent qualification quotas for these categories will be added to direct recruitment quota.
The decision of the High Power Committee was subsequently been approved by the then Nodal Department, i.e. the Irrigation Department, now Water Resource Department in the form of memorandum dtd.16.2.1994. The State Government by virtue of a policy decision has prepared a draft rule approved by the General Administration and Law Department has brought a 5 memorandum dtd.16.2.1994 having got its approval by the State Cabinet in its 27th Council of Ministers' meeting held on 3.12.1994 has approved the said Rule and to amend the Orissa Services of Engineers Rule, 1941 by creating a separate quota of 5% within direct recruitment quota of 67%, the object being to bring the Degree Holder Junior Engineers as well as the Stipendiary Engineers to the proper fold of recruitment and the said decision was approved by the Cabinet and form a rule known as Orissa Engineering Services (Recruitment & Conditions of Services) Rules, 1996.
Pending finalization and approval by His Excellency the Hon'ble Governor to the Draft Amendment Rules, 1996, promotions on appointment in respect of the in-service Degree Holder Junior Engineers were given as Asst. Engineer (in-charge) in the Works Department w.e.f.7.10.1998 and 18.1.1996 in Water Resources Department. The Nodal Department had issued one another resolution on 12.3.1996 to accommodate the stipendiary engineers on one hand ad the in-service Degree Holder Engineers on the other hand and to give them appointment as ad hoc Assistant Engineers in the scale of pay of Rs.2000/-, Rs.3,500/- pending finalization of amendment of Orissa Engineering Service Rules, 1941.
As the direct recruitment quota of 67% to the post of Asst. Engineers have been stopped and even the proposal has been withdrawn for fulfilling the post of the unemployed Graduate Junior Engineers as Stipendiary Engineers being beneficiaries against 62% and 5% respectively which is within the direct recruitment quota of 67%, basing on the decision of the departmental promotion committee held on 12.06.1996 in the Water Resources 6 Department, on 16.11.1996 in the Works Department, appointments on promotion were extended in favour of the Degree Holder Junior Engineers to Ad hoc Asst. Engineers.
So far as Housing and Urban Development Department, D.P.C. was held and vide notification dtd.27.5.1997 under notification No.15736 appointment and promotion were given to 13 numbers of in-service Degree Holder Junior Engineers including the petitioner. While the petitioner was working as ad hoc Assistant Engineer, an advertisement was issued by the Odisha Public Service Commission for selection to the post of Assistant Engineers in the year 2003 in respect of SC and ST candidates as per the provision of Rules, 1941. The petitioner had participated in the said recruitment test with the knowledge of the departmental authorities, was selected and placed at sl. no.43 in the selection list. He was allotted post in the Housing and Urban Development Department and he continued in the said post which he was holding earlier w.e.f.27.5.1997 in the same scale of pay as per his earlier date of increment i.e.1.6.2004 along with all service benefits. He submitted his formal joining report as Asst. Engineer Medical P.H. Sub- Division on 6.5.2004 in the same post which he was holding earlier.
The validation Act of 2002 was notified on 15.2.2003 and the regularization of ad hoc Asst. Engineers which have been appointed against 62% and 5% quota respectively within the direct recruitment quota of 67% was subject matter of challenge before this Court in a writ petition being W.P.(C) No.12627 of 2005 and other analogous cases, this Court vide its judgment dtd.15.10.20010, quashed the Validation Act and gave opportunity to the State 7 of Orissa to frame regularization Rules and regularize the services of ad hoc Asst. Engineers and until such regularization, no gradation list in the cadre of Asst. Engineer, shall be finalized.
The order of this Court was challenged by the stipendiary engineers / ad hoc Asst. Engineers and so also by the State Government in SLP before the Hon'ble Apex Court which was subsequently been converted as Civil Appeal Nos.8311 to 8322 of 2009. The petitioner and similarly placed like him were not party in the Apex Court proceeding. The Hon'ble Apex Court delivered its judgment on 19.2.2014 by considering 3 issues, i.e. (i) the validity of Validation Act notified on 15.2.2003, (ii) regularization of in-service Degree Holder Junior Engineers who have been working for a considerable length of time as Asst. Engineers on ad hoc basis and (iii) the seniority position of those who were regularized under Validation Act and the other issues were left open.
The Hon'ble Apex Court in the aforesaid judgment directed for regularization of services of the stipendiary engineers as per the Validation Act, 2002 w.e.f. 15.2.2003 and also directed at para 75 regarding fixation of inter- se seniority among themselves and directed that 5% ad hoc Asst. Engineers are to be enblocked senior to 62% of the ad hoc assistant engineers (stipendiary 62%) and their seniority shall also be maintained on the basis of their date of first appointment as Asst. Engineers on ad hoc basis.
3. The grievance of the petitioner is that he was initially appointed as ad hoc Asst. Engineer w.e.f 27.05.1997 subsequently and while continuing as such, his suitability has been adjudged by the Odisha Public Service 8 Commission as per the provision of Rules 1941 in the year 2003 and he was selected and appointed in the same department in the same post and placed where he was continuing earlier.
The Hon'ble Apex court in its judgment, have held that if the initial appointment was not made by following the procedure laid down by the Rules, but the appointee continued in the post uninterruptedly till the regularization of his service is made in accordance with the Rules, the period of officiating service will be counted towards seniority considering the date of his initial appointment.
The stand of the petitioner is that this proposition has been approved by the Hon'ble Supreme Court and as such in view of this proposition of law, seniority of the petitioner in the cadre of Asst. Engineer under Housing and Urban Development Department which is now upgraded to the post of Asst. Engineer (PH) after restructuring of the Odisha Engineering Service should be counted w.e.f.27.5.1997, i.e the date of his initial appointment and his position should be reflected and he may be placed at sl. no.1 of the gradation list of the Asst. Engineer (PH), but the respondents have placed his position in the seniority list at sl. no.139 published on 26.2.2014 vide notification no.1714/HUD and similarly the provisional gradation list of Asst. Executive Engineers published on 18.3.2014. The applicant had made representation to the department for placing him in proper place in the gradation list but however to no effect, hence he has approached the Odisha Administrative Tribunal with the relief for rectification of his position in the seniority list.
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The contention raised by the petitioner is that since he was continuing in the said post w.e.f.27.05.1997 in the same post under the same department and as such taking into consideration the settled proposition that even after the regular appointment having been made, the period of ad hoc appointment rendered by the employee will be counted for the purpose of counting the seniority.
The further contention raised by the petitioner that his case is coming under the parameter of judgment rendered in the case of Amarendra Kumar Mohapatra Vrs. State of Orissa (Civil Appeal No.8322 of 2009) wherein at paragraph 75(2) the Hon'ble Apex Court has been pleased to hold that the services of Degree Holder Junior Engineers working as Asst. Engineers on ad hoc basis against the proposed 5% quota reserved for in-service Jr. Engineers (Degree Holders) shall stand regularized with effect from the date when the Orissa Service of Engineers (Validation Of Appointment) Act, 2002 came into force, i.e. w.e.f.15.2.2003, reason being that on 15.2.2003 he was continuing in ad hoc capacity and as such his appointment will be deemed to be regularized w.e.f. 15.2.2003 and in consequence his position in the seniority list is also to be revised by placing him at proper place.
4. The State as well as the private opposite parties have appeared and taken common ground by submitting that there is no dispute about the fact that the petitioner was continuing in ad hoc basis as stipendiary engineer having been appointed on the said post on 27.5.1997, but while he was continuing in service he had participated in the fresh recruitment process by virtue of an advertisement published by the Orissa Public Service Commission 10 and accordingly he was appointed vide order dtd.6.5.2004 as Asst. Engineer (PH) temporarily in Class-II (group-B) of the Orissa Services of Engineers Cadre in the scale of pay 6,500-200-10,500/- with the specific stipulation therein that the inter-se seniority of the above Asst. Engineers shall be determined in order of merit in order as assigned to them in Orissa Public Service Commission merit list.
They further submits that the moment the petitioner has participated in the fresh selection process, he was no more an ad hoc stipendiary engineer and as such the judgment rendered by Hon'ble Supreme Court will not be applicable in his case and taking into consideration this aspect of the matter his claim has rightly been rejected.
They further submit that the petitioner is at sl. no.42 and the appointment letter contains the condition that the inter-se seniority of the Asst. Engineers having been appointed through the Orissa Public Service Commission will be determined in order of merit as assigned to them in OPSC merit list and as such if the petitioner will be given the benefit of seniority w.e.f.27.5.1997, the interest of the candidates who are above in the seniority list having been selected by way of the open advertisement will be prejudiced.
They further submit that the seniority list once published, it cannot be unsettled after long time.
They further contained by refuting the argument advanced on behalf of the petitioner that he is entitled to be given protection of the Validation Act, 2002 in the light of the judgment passed by the Hon'ble Apex 11 Court, but this direction is not applicable to the petitioner for the reason that when the judgment has been pronounced by the Hon'ble Apex Court setting aside the order passed by this court upholding the validity of the Validation Act, 2002 giving its effect w.e.f.15.7.2003 but the date when the judgment has been pronounced by the Hon'ble Apex Court on that date the status of the petitioner was no more of an ad hoc Asst. Engineer and hence this benefit cannot be given to him.
5. We have heard the learned counsels for the parties, perused the pleadings, documents annexed thereto as well as the judgment pronounced by the Hon'ble Apex Court in the case of Amarendra Kumar Mohapatra Vrs. State of Orissa (Civil Appeal No.8322 of 2009), reported in 2014 4 SCC 583 the basis upon which the petitioner is claiming his seniority position.
We though it proper that before appreciating the argument advanced on behalf of the parties, it would be better to have a discussion regarding the proposition laid down by the Hon'ble Apex Court in the case of Amarendra Kumar Mohapatra (supra).
The fact fell for consideration before the Hon'ble Apex Court itself is the constitutional validity of the Orissa Service of Engineers (Validation of Appointment) Act, 2002 by which appointment of 881 ad hoc Asst. Engineers belonging to Civil, Mechanical and Technical Engineering Wings of the State Engineering Service have been validated. The main thrust of argument in assailing the Act, 2002 was that the same had been promulgated in breach of the Orissa Service of Engineers Rules, 1941. This court has in a batch of writ 12 petitions struck down the legislation on the ground that the same violates the fundamental rights guarantee to the writ petitioners under Articles 14 and 16 of the Constitution.
The Hon'ble Apex Court after taking into consideration the rival submissions of the parties and the other aspects of the matter have held as follows:-
(i) The Legislation under challenge does not suffer from any constitutional infirmity and the High Court was in error in having struck it down. The challenge to the constitutional validity of the impugned enactment fails, the degree holder Junior Engineers currently working as ad hoc Asst.
Engineers are entitled to the relief of regularization in service, having regard to the fact that they have rendered long years of service as Asst. Engineers on ad hoc basis for 17 to 18 years in some cases. While it is true that those in-service degree holders working as Jr. Engineers were not the beneficiaries of legislation under challenge, the fact remains, that they were eligible for appointment as Asst. Engineers on account of their being degree holders. It is also not in dispute that they were appointed against substantive vacancies in the cadre of Asst. Engineers no matter by utilizing the direct recruit quota. Even in the case of stipendiary engineers their vacancies were utilized out of the 67% quota meant for direct recruitment.
Taking into consideration these aspects of the matter it has been held that the degree holder Junior Engineers currently working as Asst. 13 Engineers on ad hoc basis, the petitioners in the high court, entitled to the relief of regularization with effect from the same date as the Validation Act granted such regularization to the stipendiary engineers.
(ii) So far as determination of inter-se seniority between the two categories, it has been held that those appointed against the 5% quota may also have had no such right but since they have worked in the higher cadre for a long period and discharged duties attached to the post of Asst. Engineers with the benefits attached thereto, their regularization comes on totally different juristic basis than one sought to be urged on behalf of those who were left out. Appointments as Asst. Engineers were from out of Junior Engineers made strictly according to seniority. The fortuitous circumstance under which the appointment did not extend to the full quota of 5% would make no material difference when it came to finding whether a Junior Engineer can enforceable legal right.
(iii) The Hon'ble Apex Court has further laid down while answering question no.3 which pertains to the inter-se seniority of Asst. Engineers whose appointments are validated / regularized by the staid enactment and stipulates that such inter-se seniority shall be determined according to the dates of appointment of the officers concerned on ad hoc basis as mentioned in the scheduled. It further stipulates that all those regularized under the gradation list shall be inblock junior to the Asst. Engineers of that year appointed in the service in their cadre in accordance with the provision of the recruitment rules. 14 Sub-section 3 of Sec.3 makes the ad hoc service rendered by such Asst. Engineers count for the purpose of extension of pension, leave and increments and for no other purpose, while answering this, it has been held that the stipendiary engineers all of whom were appointed after the appointment of Junior Engineers would be in block rank junior to such ad hoc Asst. Engineers from degree holder Junior Engineers. But all such regularized Asst. Engineers from the stipendiary stream and from Junior Engineers category would together rank below the promote Asst. Engineers.
This judgment was pronounced on 19th February 2014 and it is only thereafter the petitioner of the present writ petition has approached the Hon'ble Apex Court by filing intervention application for non-compliance of the order passed by the Hon'ble Apex Court in the case of Amarendra Kumar Mohapatra, but the Hon'ble Apex Court has been pleased to dismiss the contempt application however, with the liberty that if the contempt petitioner have any grievance regarding the gradation list, they shall be free to agitate the same in appropriate proceeding before the appropriate forum in accordance with law.
The petitioner in pursuance to the order passed by Hon'ble Apex Court dtd.29.7.2015 has filed one writ petition before this court being W.P.(C)1697 of 2016 praying inter alia therein to regularize the services of the petitioner rendered as Asst. Engineer w.e.f.15.2.2003, i.e. the date on which the Orissa Service of Engineers (validation of Appointment) Act, 2002 came into force in holding that the petitioner is one amongst 86 nos. of ad hoc Assit. 15 Engineers who were promoted against the proposed 5% quota reserved for in- service Junior Engineers degree holders. The petitioner for the same grievance has also approached the Tribunal being O.A. No.8613 of 2004 and the Tribunal while answering the issue has passed an order on 5.8.2016 rejecting the claim of the petitioner, being aggrieved this writ petition has been filed.
The sole contention raised by the petitioner that he was initially appointed as Jr. Engineer in Public Health having degree qualification in civil engineering, while working in different posts / organization, had been promoted to the rank of Asst. Engineers, Public Health ad hoc basis in the scale of pay of Rs. 2000-60-2300-EB-725-3200-100-3500 with usual DA and other allowances pending finalization of amendment of Orissa Services of Engineers Rule, 1941. While the petitioner was continuing as such, he had participated in an open advertisement published by the Orissa Public Service Commission for appointment as Asst. Engineer (Public Health) in which he has been declared successful and in pursuance of the recommendation of the Orissa Public Service Commission the 6 SC/ST candidates were appointed as Asst. Engineers (Public Health) temporarily in Class-II (Group-B) of Orissa Service of engineers cadre in the scale of Rs.6,500-200-10,500 with the condition that the inter-se seniority of the above Asst. engineers (6 in nos.) shall be determined in order of merit as assigned to them in the Orissa Public Service Commission merit list. The petitioner has accepted the terms and conditions of the appointment letter dtd.6.5.2004 and resumed his charge on 6.5.2004 itself. While the petitioner was continuing with the post, the 16 Validation Act, 2002 has fell for consideration regarding its validity and this Court after taking into consideration the relevant factors has struck down the Act, 2002 holding it contrary to the provision of Articles 14 and 16 of the Constitution of India and the matter ultimately went before the Hon'ble Supreme Court and the Hon'ble Supreme Court has been pleased to set aside the order passed by this court answering the entire issue as stipulated herein above.
After the order having been passed by the Hon'ble Apex Court, the petitioner has made representation for counting his service right from the date when he has been directed to discharge his duty as Asst. Engineer (PH) on ad hoc basis i.e. w.e.f.27.5.1997 reason being that when the Validation Act came to effect, i.e. on 15.7.2003, on that date he was working on ad hoc basis and since the Hon'ble Apex Court has held that the Validation Act will be effective from the date of its promulgation, i.e. 15.7.203, hence the petitioner will be deemed to be regularized in pursuance to the order passed by the Hon'ble Apex Court.
We, after appreciating the argument advanced on behalf of the parties and after going through the order passed by the Tribunal, have found that the Tribunal has not erred in passing the order for the following reasons:
(i) Admittedly, the petitioner had been appointed on ad hoc basis as Asst.
Engineer while working as Junior Engineer having degree qualification in civil engineering vide order dtd.27.5.1997;
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(ii) The petitioner had participated in the selection process duly been notified by the Orissa Public Service Commission for being appointed as fresh appointee under the SC/ ST category in which the petitioner has been recommended to be appointed as Asst. Engineer vide order dtd.6.5.2004, he has been appointed by virtue of notification issued by the Housing and Urban Development Department, Government of Orissa.
(iii) The terms and conditions of the offer of appointment contains a condition that the seniority of the above Asst. Engineers shall be determined in order of merit as assigned to them in the OPSC merit list.
(iv) The petitioner after accepting the offer of appointment has given his joining on 6.5.2004 itself.
(v) The petitioner while continuing as regular Asst. Engineer in pursuance to the fresh selection, the judgment has been pronounced by Hon'ble Apex court holding the Validation Act, 2002 a good law laying down the condition for determination of inter-se seniority and absorption of the Engineers working as ad hoc Asst. Engineers. The Hon'ble Apex Court has specifically directed at paragraph 82.2 as follows:-
"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 regularized 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 Asst. Engineers on ad hoc basis shall be placed below the 18 promotes and above the Stipendiary Engineers regularized in terms of the impugned legislation. The inter se seniority of the Stipendiary Engineers regularized as Asst. Engineers under the impugned legislation and Junior Engineer degree-holders regularized in terms of this order shall be determined on the basis of their date of first appointment as Assistant Engineers on ad hoc basis."
It is evident that the Hon'ble Apex Court has been pleased to pass specific order that the services of the writ petitioners and all those who are similarly situated and promoted as ad hoc assistant Engineer against the proposed 5% quota reserved for in-service Jr. Engineers Degree Holders shall stand regularized with effect from the date of Orissa Service of Engineers(Validation of AppointmentAct 2002 came into force.
It is further evident that the Hon'ble Apex Court has directed that such in-service degree holder Junior Engineers promoted as Asst. Engineers on ad hoc basis shall be placed below the promotees and above the stipendiary Engineers regularized in terms of the impugned legislation. The in-terse seniority of the Stipendiary Engineers regularized as Asst. Engineers under the impugned legislation and Junior Engineer degree-holders regularized in terms of this order shall be determined on the basis of their date of first appointment as Asst. Engineers on ad hoc basis.
It is evident that the benefit of this judgment is only applicable to the writ petitioners and those who are similarly situated and promoted as ad hoc Assistant Engineers against the propose 5% quota reserved for in-service Junior Engineers degree-holders.
Admittedly, the petitioner was working as ad hoc Asst. Engineer but subsequently he has been appointed as regular Asst. Engineer by virtue of 19 a fresh advertisement having been advertised by the Orissa Public Service Commission with the specific stipulation in the offer of appointment that their in-terse seniority shall be governed on the basis of the position in the merit list prepared by the Orissa Public Service Commission at the time of recommendation of the cases of the petitioners and others, meaning thereby the petitioner cannot be said to be Asst. Engineer on ad hoc basis and also not similarly situated and promoted as ad hoc Asst. Engineers against the proposed 5% quota reserved for in-service degree holder Junior Engineers.
The contention raised by the petitioner that since the Hon'ble Apex Court has been pleased to hold that the services of the Asst. Engineers on ad hoc basis against the 5% quota reserved for in-service Junior Engineers degree holders shall stand regularized w.e.f. the date when the Validation Act came into force and since the Validation Act has been notified on 15.7.2003 and on that date the petitioner was working as Asst. Engineer on ad hoc basis, hence he will also be given the benefit of that judgment, but we cannot accept this argument reason being that the Hon'ble Apex Court has been pleased to issue direction in specific term by passing a direction of regularization to the effect that "shall stand regularized" with effect from the date of Orissa Service of Engineers (Validation of Appointment) Act, 2002 came into force, meaning thereby the Hon'ble Apex Court has not directed the State authority to consider for regularization of their service, rather Hon'ble Apex Court has regularized their services with the specific direction for regularization since on the date when Hon'ble Apex Court passed that order, on that day the petitioner was already in regular establishment hence he cannot be directed to be 20 regularized once again by this court, that too, when he has accepted the terms and conditions of appointment order dtd.6.5.2004 made in pursuance to the fresh advertisement issued by the Orissa Public Service Commission.
Now question is as to whether the petitioner can be given benefit of the judgment or not, according to us the petitioner cannot be given the benefit of the said judgment reason being that on the date when the judgment has been pronounced by the Hon'ble Apex Court his status as ad hoc Asst. Engineer is no more in existence, rather he was the direct recruitee as Asst. Engineer by virtue of fresh advertisement and further if he will be given the benefit of this judgment, since he has accepted the terms and conditions of the offer of appointment regarding his in-terse seniority as contained in notification dtd.6.5.2004, the candidates who have been appointed along with the petitioner will be prejudiced for the reason that the petitioner will automatically being senior taking advantage of the Validation Act, 2002.
The other reason being that the petitioner cannot be said to be similarly situated as on the date of the passing of the judgment passed by the Hon'ble Apex Court.
We after recording the reasons for not accepting the argument advanced on behalf of the petitioner uphold the order passed by the Tribunal since the Tribunal has taken into consideration the entire aspect of the matter in its right aspect.
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In the result we find no merit in these writ petitions, hence dismissed.
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S.N.Prasad, J. Sanju Panda, J. Orissa High Court, Cuttack, Dated the 17th January, 2017/mkp