Orissa High Court
Nihar Ranjan Tripathy vs State Of Odisha And Others on 6 September, 2021
IN THE HIGH COURT OF ORISSA AT CUTTACK
WRIT APPEAL No.523 of 2020
(From the judgment dated 6th August, 2020 passed by learned Single
Judge in Writ Petition (Civil) No.14345 of 2017)
Nihar Ranjan Tripathy ...... Appellant
Versus
State of Odisha and others ....... Respondents
Advocate(s) appeared in this case:-
For Appellant : Mr. Susanta Kumar Dash, Advocate
For Respondents : Mr. Manoj Kumar Khuntia, A.G.A.
(For Respondent Nos.1 & 2)
Mr. V. Narasingh, Advocate
(For Respondent No.3)
CORAM :
THE CHIEF JUSTICE
JUSTICE B.P. ROUTRAY
JUDGMENT
06.09.2021
B.P. Routray, J.
1. The judgment dated 6th August, 2020 of the learned Single Judge
passed in Writ Petition (Civil) No.14345 of 2017 has been assailed in
the present writ appeal.
2. The Appellant was the unsuccessful Writ Petitioner.
3. In the newly created establishment of Odisha Human Rights
Commission (OHRC), Bhubaneswar, the post of Junior Stenographer
was created on 24th April, 2003 when no prescribed guideline or rule
was there for direct recruitment to the post in question. So in absence of
any such provisions governing conditions of recruitment, the Petitioner
was appointed on 29th August, 2003 by the OHRC directly without due
process of selection. Neither was any advertisement made nor any
competitive examination held for recruitment to the post. The Petitioner
was straightaway appointed through formal interview for an initial
period of one year which was extended from time to time.
4. The Odisha Human Rights Commission (Method of Recruitment and
Conditions of Service of Officers and other staff) Rules, 2012
(hereinafter referred as "OHRC Rules, 2012") came into force w.e.f. 4 th
January, 2013. Rule 4 of the said rules prescribes that, appointment to
different categories of posts in the commission shall be made either by
direct recruitment holding competitive examination, or by promotion, or
by deputation. Rule 8 further prescribes that "Notwithstanding anything
contained in the provisions of these rules, the persons holding posts in
the State Commission on the date of commencement of these rules either
on direct recruitment or transfer on deputation basis and who fulfill the
qualifications and experience laid down in these rules and who are
considered suitable by the Committee, shall be eligible for absorption in
the respective grades...."
5. After the OHRC Rules, 2012 came into force, the service of the
Petitioner was regularized on absorption w.e.f. 16th November, 2013 in
the regular scale of pay in terms of Rule 8 and periodical increment was
also granted to him.
6. Subsequently in course of audit verification for the year 2014-15, the
Office of the Accountant General, Odisha raised objection towards
irregular regularisation of the appellant through absorption. The said
objection noted at para 20(A) of the audit report reads as under:
"Although OHRC is an autonomous body all the
relevant Act/Rules Regulations as well as instructions
issued by the Government are applicable to this
organization also. In the instant case i.e. the absorption
of Sri Nihar Ranjan Tripathy is irregular as he was not
appointed according to the relevant rules or in
adherence to Articles 14 and 16 of the Constitution of
India and subsequently absorbed. Hence, the para is
retained."
Thereafter OHRC in their letter dated 13th July, 2017 directed that the
Petitioner is not entitled to further increment in view of the audit
objection that his appointment/absorption was irregular and he is liable
for refund of excess amount of remuneration received. The Appellant
was further directed to repay an amount of Rs.4264/-. He challenged the
audit objection in para 20(A) and subsequent order of the OHRC
(Annexure 10 & 11 respectively) in the writ petition with a prayer to
quash the same and further to regularize his service.
7. Learned Single Judge upon adjudication of the writ petition did not
find any infirmity in the orders impugned before him, but so far
repayment of Rs.4264/- is concerned, it was directed to effect the same
only after compliance of the principles of natural justice.
8. It is submitted on behalf of the Appellant that learned Single Judge
has committed error in failing to appreciate the principle that the process
of recruitment prescribed in the OHRC Rules, 2012 cannot have the
retrospective application and no prescribed provision for recruitment to
the post was there at the time of appointment of the Appellant.
Therefore it is wholly unsustainable to hold the regularization as
irregular being violative of the rules. It is also submitted that no
opportunity of hearing was granted to the Appellant against the audit
objection.
9. It remains undisputed that the initial appointment of the Appellant-
Petitioner in the Office of the Commission was without any process of
selection. The prayer for regularization of the Appellant-Petitioner has
been rejected by the learned Single Judge on the ground that his
appointment without following due recruitment process is violative of
Articles 14 and 16 of the Constitution of India.
10. Now coming to the submission that the OHRC Rules, 2012 cannot
be given retrospective effect to hold the initial appointment of the
Appellant-Petitioner as irregular, it appears to be wholly misconceived.
The reason being that at the time direct recruitment in the year 2003,
even in absence of any specific rules prescribing the procedure, the
authorities are expected to follow the fundamental principles enshrined
in Articles 14 and 16 of the Constitution. The question is not about
retrospective application of the rules, but regarding adherence of
common standards of competitive examination. Perusal of the OHRC
Rules, 2012 and the schedule appended thereto reveals the procedure for
selection through competitive examination. Rule 8 thereof permits
regularization by absorption either on direct recruitment or on
deputation. The method of direct recruitment has been prescribed in
Rule 6 read with the Schedule. When the initial appointment to the post
has been made without following the method of competitive
examination which is against the fundamental principles of recruitment,
the subsequent regularization based on the same also becomes irregular
and there cannot be any second opinion on this. So the learned single
judge has rightly come to the conclusion that it is violative of Articles
14 and 16 of the Constitution of India. While regularizing through
absorption on direct recruitment, it is the duty of the authority to see that
the direct recruitment concerned has been made in accordance with the
settled principles of law.
11. The learned Single Judge has discussed in detail the argument of the
Appellant about his opportunity of a right of hearing before acting upon
observation of the audit report, which is not required to be discussed
here essentially to avoid repetition. In this regard, the learned Single
Judge has also relied on the proposition of law propounded in the case
of Ravi S. Naik v. Union of India, AIR 1994 SC 1558 and Malloch v.
Aberdeen Corporation, 1971 (2) All ER 1278. We concur with the
approach and the conclusion of the learned Single Judge.
12. In the result, the writ appeal is dismissed.
(B.P. Routray)
Judge
(Dr. S. Muralidhar)
Chief Justice
B.K. Barik, P.A.
