Orissa High Court
Santosh Kumar Mandal & vs State Of Odisha & Others on 17 August, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.C (OAC )No. 2645 of 2014
AFR In the matter of an application under Section 19
of the Administrative Tribunals' Act, 1985.
..................
Santosh Kumar Mandal & .... Petitioners
Others
-versus-
State of Odisha & Others .... Opposite Parties
For Petitioner : M/s. Buddhadev Routray,
Sr. Advocate
M/s. Jayanta Rath, Sr. Advocate
For Opp. Parties : M/s. Ashok Ku. Parija,
Advocate General
R.N. Mishra, Addl. Govt. Advocate
M.K. Balabantaray, Standing Counsel
S.N. Pattnaik, Advocate(for O.P. No.6)
W.P.C(OAC) Nos.140,215,216,217,218 of 2013 & 2390 of 2014
Santosh Kumar Das .... Petitioner
-versus-
State of Odisha & Others .... Opposite Parties
For Petitioner : M/s. Gyanaloka Mohanty &
D. Rath, Advocate
For Opp. Parties : M/s. Ashok Ku. Parija,
Advocate General
R.N. Mishra, Addl. Govt. Advocate
M.K. Balabantaray, Standing Counsel
S.N. Pattnaik, Advocate(for O.P. No.6)
// 2 //
W.P.C(OAC) Nos.404,517,586,1194 of 2013 & 2513,2514, 2515,
2750 of 2014 & 2070 & 2072 of 2015 &
4142,4144,4643,4752,4754,4762,4768,4769 of 2016 &
102,1324,3187,3188,3189,3190,3191,3192,3193 & 3345 of 2017
Amiya Kumar Bahinipati .... Petitioner
-versus-
State of Odisha & Others .... Opposite Parties
For Petitioner : M/s. Shashi Bhusan Jena,
S. Behera & C.K. Sahu, Advocate
For Opp. Parties : M/s. Ashok Ku. Parija,
Advocate General
R.N. Mishra, Addl. Govt. Advocate
M.K. Balabantaray, Standing Counsel
S.N. Pattnaik, Advocate(for O.P. No.6)
W.P.C(OAC) Nos.2617,2618,2619,2620 & 2621 of 2014
Niranjan Behera .... Petitioner
-versus-
State of Odisha & Others .... Opposite Parties
For Petitioner : M/s. Srikanta Kumar Sahoo,
A.K. Sahoo, B.B. Biswal,
S. Mishra, Advocate
For Opp. Parties : M/s. Ashok Ku. Parija,
Advocate General
R.N. Mishra, Addl. Govt. Advocate
M.K. Balabantaray, Standing Counsel
S.N. Pattnaik, Advocate(for O.P. No.6)
// 3 //
W.P.C(OAC) Nos.2975,3341,3343,3344,3406,3407,3408,3448,
3449, 3486,3487,3521,3522,3738,3739,4833,4834 of 2016
& 84,212 of 2017 & 1072 of 2019
Jyotiranjan Nayak Petitioner
-versus-
State of Odisha & Others .... Opposite Parties
For Petitioner : M/s. Sumanta Kumar Nayak,
S.K. Sahoo, A.B. Parida,
S. Dash, Advocate
For Opp. Parties : M/s. Ashok Ku. Parija,
Advocate General
R.N. Mishra, Addl. Govt. Advocate
M.K. Balabantaray, Standing Counsel
S.N. Pattnaik, Advocate(for O.P. No. 6 )
W.P.C(OAC) Nos. 2751,2752 of 2014 & 1047 & 1048 of 2017
Smruti Samal Petitioner
....
-versus-
State of Odisha & Others .... Opposite Parties
For Petitioner : M/s. Kali Prasanna Mishra,
S. Mohapatra, T.P. Tripathy,
L.P. Dwibedy, Advocate
For Opp. Parties : M/s. Ashok Ku. Parija,
Advocate General
R.N. Mishra, Addl. Govt. Advocate
M.K. Balabantaray, Standing Counsel
S.N. Pattnaik, Advocate(for O.P.No.6)
// 4 //
W.P.C(OAC) Nos. 1971 & 1972 of 2018
Mithun Kumar Kar ... Petitioner
-versus-
State of Odisha & Others .... Opposite Parties
For Petitioner : M/s. Dhuliram Pattnayak,
P.K. Das, N. Biswal,
L. Pattanayak, Advocate
For Opp. Parties : M/s. Ashok Ku. Parija,
Advocate General
R.N. Mishra, Addl. Govt. Advocate
M.K. Balabantaray, Standing Counsel
S.N. Pattnaik, Advocate(for O.P. No.6)
W.P.C(OAPC) No. 83 of 2017 & W.P.(C ) No.17568 of 2019
Madhusmita Sahoo ... Petitioner
-versus-
State of Odisha & Others .... Opposite Parties
For Petitioner : M/s. Ajit Kumar Sahoo, A. Sahoo,
A.K. Biswal, R.K. Jena,R.K.Sahoo,
P. Sahu, Advocate
For Opp. Parties : M/s. Ashok Ku. Parija,
Advocate General
R.N. Mishra Mishra, Addl. Govt.Adv.
M.K. Balabantaray, Standing Counsel
S.N. Pattnaik, Advocate(for O.P. No.6)
// 5 //
WPC (OAC) Nos.1917 of 2017 & 18300 of 2019
Bharat Muduli Petitioner
...
-versus-
State of Odisha & Others .... Opposite Parties
For Petitioner : M/s. Pramod Kumar Nayak, A.K.
Dalai, S. Aun, A.K. Mahakud, Adv.
For Opp. Parties : M/s. Ashok Ku. Parija,
Advocate General
R.N. Mishra, Addl. Govt. Advocate
M.K. Balabantaray, Standing Counsel
S.N. Pattnaik, Advocate(for O.P. No.6)
WPC (OAC) No.578 of 2014
Nandini Ray Petitioner
...
-versus-
State of Odisha & Others .... Opposite Parties
For Petitioner : M/s. Manoj Kumar Khuntia, G.R.
Sethi, J.K. Digal, B.K. Pattnaik,
Advocate
For Opp. Parties : M/s. Ashok Ku. Parija,
Advocate General
R.N. Mishra, Addl. Govt. Advocate
M.K. Balabantaray, Standing Counsel
S.N. Pattnaik, Advocate(for O.P. No.6)
// 6 //
W.P.C(OA) Nos.1891of 2014 & W.P.C(OAC) No.4642 of 2016 &
W.P.(C) Nos.16840,17470,18359 of 2019 & 17075 of 2022
Alok Mali Petitioner
...
-versus-
State of Odisha & Others .... Opposite Parties
For Petitioner : M/s. R. Mohanty, M. Mohanty,
P. Mohanty, Adv.
(for WPC(OA) No.1891 of 2014)
M/s. R.C. Roy, Adv.
(for WPC(OAC) No.4642 of 2016),
M/s. Budhadev Routray,Sr.Adv.
R.P. Dalai,K. Mohanty, S.K. Samal,
S.P. Nath, S.D. Routray, B.R. Pattnayak,
J. Biswal.Advocate
(for W.P.(C) No.16840 of 2019)
M/s. Debendra Ku. Sahoo 1,
S.N. Nayak, Adv.
(for W.P(C ) No.17470 of 2019)
M/s. Manoj Kumar Pati, R.
Mohapatra, S. Das, Adv.
(for W.P.(C ) No.18359 of 2019)
M/s. Digambar Sethi & S.K. Dash,Adv.
(for W.P.(C) No.17075 of 2022)
For Opp. Parties : M/s. Ashok Ku. Parija,
Advocate General
R.N. Mishra, Addl. Govt. Advocate
M.K. Balabantaray, Standing Counsel
S.N. Pattnaik, Advocate(for O.P. No.6)
PRESENT:
THE HONBLE JUSTICE BIRAJA PRASANNA SATAPATHY
---------------------------------------------------------------------------
Date of Hearing: 21.7.2022 and Date of Judgment: 17.8.2022
----------------------------------------------------------- --------------
Biraja Prasanna Satapathy
1. This matter is taken up by video conferencing mode.
// 7 //
2. Since the issue involved in all the aforesaid Writ
Petitions are identical, all the matters were heard
analogously and disposed of by this common order.
3. WPC(OAC) No.2645 of 2014 and batch of Writ
Petitions were filed challenging the advertisement issued
by the Orissa Staff Selection Commission on 4.8.2014
vide Annexure-6 inviting applications to fill up the post of
Junior Engineer (Civil), under the Government of Odisha,
Works Department & H & UD(PH) Department by way of
direct recruitment. Similarly W.P.(C ) No.16840 of 2019
has been filed challenging the advertisement issued by
the self-same Orissa Staff Selection Commission on
29.8.2019 inviting applications to fill up 257 posts of Jr.
Engineer (Civil) under the aegis of Engineer in chief
(Water Resources),Govt. of Odisha.
4. Heard Mr. Buddhadev Routray and Mr. Jayanta
Kumar Rath, learned Senor Counsels appearing on behalf of
the petitioners in W.P.C (OAC) No.2645 of 2014 and W.P.(C)
No.16840 of 2019 and other counsel appearing for the
Petitioners in all the aforesaid Writ Petitions and Mr. Ashok
// 8 //
Kumar Parija, learned Advocate General along with Mr. R.N.
Mishra, learned Addl. Government and Mr. M.K.
Balabantaray, learned Standing Counsel on behalf of the
Opp. Parties and Mr. S.N. Pattnaik, learned counsel
appearing for the Orissa Staff Selection Commission and
learned counsels appearing for the intervenor-petitioners.
5. All the aforesaid Writ Potions were filed by the
petitioners, who are admittedly Diploma Holders in
Engineering in different disciplines. It is submitted that
pursuant to the decision taken by the Government in the
then Department of Planning and Coordination, Government
of Odisha on 18.1.1972 it was decided to continue with the
appointment/engagement of unemployed Engineering
Personnel(Civil) both Graduates and Diploma Holders from
the panel to be maintained by the said Department of
Planning and Coordination. In the said communication
dated 18.1.1972 under Annexure-2, Government decided to
follow the procedure for absorbing engineering personnel in
various posts in different Departments. The said procedure
is enumerated below:
1. Employment of engineering personnel i.e.
Graduate Engineer and Diploma Holders should be
made year wise in order merit. All candidates of
// 9 //
particular year have to be observed first before
candidates of the following years are considered.
2. The Planning and Coordination
Department will continue to maintain a register of
these candidates.
3. On receipt of requisitions for filling of
posts under various Department, the Planning and
Coordination Department should recommended
candidates as many as four times the under of
vacancies.
4. Recruitment to all post i.e. J.E, S.A.E,
Surveyor, Tracer, Drafts man embankment
inspector, and works sarkar is to be made though
his department as being being done now.
6. It is submitted that subsequently the appointment of
Diploma Engineers continued and sponsoring of candidates
from the panel was vested with the Committee of Chief
Engineers and Engineer in Chief(Civil) was declared as the
sponsoring authority. It is submitted that the Diploma
Engineers in different disciplines were being provided with
appointment after due sponsoring of their names by the
Committee of Chief Engineers and Engineer-in-Chief(Civil)
Odisha in different Departments coming under the State
Government as well as public sector undertakings. It is
submitted that while the appointment of Diploma Holders
was so continuing, Government in the Department of Water
Resources for the first time came up with a notification on
29.12.2012 by framing the Rules namely The Odisha
Diploma Engineers Services (Method of Recruitment and
// 10 //
Conditions of Service) Rules, 2012 under Annexure-3. It is
submitted that the said Rules were framed in order to
provide appointment in the grade of Junior Engineer and
Asst. Engineer by way of direct recruitment to be conducted
by the Orissa Staff Selection Commission, in respect of
Junior Engineer and by the self-same Commission with
consultation of Orissa Public Service Commission in case of
Assistant Engineer. It is further submitted that pursuant to
the said notification and framing of the Rules issued vide
Notification dated 29.12.2012 when it was felt that
recruitment through Orissa Staff Selection Commission will
take some time and various Departments coming under the
State Government are in urgent need to fill up the vacancies
in the cadre of Jr. Engineer, Government in the Department
of Water Resources vide its order dated 5.10.2013 under
Annexure-4 passed the following order.
" NOW, THEREFORE, in exercise of the
powers conferred by rule-19 of the said "Odisha
Diploma Engineers' Service (Methods of Recruitment
and Conditions of Service) Rules, 2012 and in
exigencies of public interest, Government after careful
consideration, do hereby relax the provisions of the
aforesaid rules 31st March, 2014 and as such all
appointments to the existing vacancies of Junior
Engineer shall be made as were being made prior to
commencement of those rules i.e. from out of the panel
maintained by the Committee of Chief Engineers and
Engineer-in-Chief(Civil) Odisha.
// 11 //
7. It is submitted that as per the said order, the State
Government took the decision in exercise of the power
conferred under Rule 19 of the aforesaid 2012 Rules and
decided that till 31st March, 2014 all appointments to the
existing vacancies of Jr. Engineer shall be made as were
being made prior to the commencement of these Rules i.e.
from out of the panel maintained by the Committee of Chief
Engineers and Engineer in Chief(Civil), Odisha.
8. Learned counsel for the Petitioners submitted that in
view of the said order issued on 5.10.2013 under Annexure-
4, all the vacancies as on 31st March, were to be filled up
from amongst the empanelled Diploma holders maintained
by the Committee of Chief Engineers and Engineer in
Chief(Civil), Orissa. It is submitted that without following
that order and without filling up of the existing vacancies as
on 31st March, 2014, when the first advertisement was
issued by the Commission on 4.8.2014, O.A. No.2645(C) of
2014 along with batch of Original Applications were filed
before the learned Tribunal challenging the action of the
Government in filling up the post of Jr. Engineer by way of
direct recruitment instead of filling up those posts from out
of the panel in terms of the order issued on 5.10.2013 under
// 12 //
Annexure-4. It is submitted that learned Tribunal vide its
order dated 26.4.2017 disposed of in O.A. No.2645 (C ) of
2014 and batch. Learned Tribunal in the said order while
was not inclined to interfere with the advertisement and held
that the Original Applications are not maintainable, but
observed as herein below:
21. Accordingly, the grievance of the
applicants to quash the impugned
advertisement and the statutory rule is not
allowed and the O.As are not entertain able and
maintainable.
However, keeping in view the fact
that the applicants are waiting for long years for
appointment, it is desirable that Government as
a model employer may take a decision as one
time measure and consider to relax the relevant
provision under the rule for appointment of the
applicants and for that purpose, if necessary,
may fix certain quota in future recruitment.
9. Mr. B. Routray, learned Senior Counsel submitted that
since learned Tribunal did not interfere with the matters and
only observed as indicated hereinabove, the said order was
challenged before this Court in W.P.(C ) NO.8877 of 2017
and batch of Writ Petitions. This Court vide its judgment
dated 28.2.2019 disposed of all those Writ Petitions by
remitting the matter to the learned Tribunal for fresh
disposal. Para 8 & 9 of the aforesaid judgment is quoted
herein below:
8. Keeping in view the fact that the petitioners are
eagerly waiting for their absorption since long, learned
// 13 //
Tribunal held that it is desirbable that Government being
an ideal and model employer, may take a decision as one
time measure and consider to relax the relevant provision
under the Rules, 2012 for appointment of the applicants
and for that purpose, if necessary, may fix certain quota
in future recruitment. In our considered opinion, the
Tribunal while making such direction, has committed
error in not ascertaining the vacancy position as on 31st
March, 2014. Further, the materials now produced
before us in view of the exercise made by this Court,
learned Tribunal should give a relook into the matter.
9. In that view of the matter, we are of the
considered opinion that the matter is required to be
remitted back to the Tribunal and we direct the same.
Learned Tribunal is directed to dispose of the matter on a
consolidated application being moved by a single
petitioner on behalf of all these petitioners, represented
by Sri Budhadev Routay, learned Senior Advocate(on
consent of the panel of advocates appearing in these writ
petitions), who will present matter in seriatim and in
detail and will give a consolidated statement. The matter
is to be disposed of within a period of twelve months from
the date of filing o such consolidated application before
learned Tribunal.
10. It is submitted that this Court while remitting the
matter for fresh disposal observed that without ascertaining
the vacancy position as available on 31.3.2014, since the
matter has been disposed of, it needs a fresh relook by the
learned Tribunal. While directing so, the petitioners in
WP(C) No.8877 of 2017 were also permitted through Mr. B.
Routray, learned Sr. Counsel to place all the matters so
produced before this Court. After such remand of the matter
and due to the abolition of the learned Tribunal in the State
of Odisha, the matter was transferred to this Court and
accordingly all the matters were taken up for hearing and
// 14 //
disposal. Basing on the permission granted by this Court,
necessary documents were also brought on record by way of
amendment in W.P.(C ) No.8877 of 2007.
11. Mr. Routray along with Mr. Rath, learned Senior
Counsel strenuously urged before this Court that since as
per order dated 4.10.2013 under Annexure-4, all the
existing vacancies as on 31.3.2014 were to be filled up from
out of the panel, the action of the Government in allowing
the Commission to go for direct recruitment without filling
up the vacancies from out of the panel is illegal. It is also
submitted that since without following the stipulation
contained in the said order, subsequent advertisement were
issued on 29.8.2019, the same was challenged in
W.P.(C)16840 of 2019. This Court vide order dated
18.9.2019 passed an interim order to the effect that the
process of selection pursuant to the said advertisement may
continue but the same shall not be finalized without the
leave of this Court.
12. It is submitted that in view of the stipulation
contained in order dated 5.10.2013, the State Government
is duty bound to fill up all the existing vacancies as available
on 31.3.2014 from out of the panel and since that was not
// 15 //
followed prior to issuance of the advertisement on 4.8.2014
and subsequent advertisement on 29.8.2019, the
recruitment process pursuant to those two advertisements is
liable to be interfered with by this Court and with a direction
on the Opp. Parties to fill up those posts from out of the
panel as against the vacancies available up to 31.3.2014.
13. Mr. Routray further submitted that even if some of
the petitioners have made their application pursuant to the
advertisement issued on 4.8.2014 and 29.8.2019 and taken
part in the recruitment process, they are not stopped from
challenging the impugned advertisements. In support of
such stand, learned Senior Counsel relied on the decision of
the Hon'ble Apex Court rendered in the case of Dr.(Major)
Meeta Sahai Vs. State of Bihar & Others (Civil Appeal
No.9482 of 2019 disposed of on 17.1.2.2019 & Krishna Rai &
Others Vs. Benaras Hindu University through Registrar &
Others (Civil Appeal No.4578-4580 of 2022, disposed of on
16.6.2022).
14. Mr. Ashok Kumar Parija, learned Advocate General
along with Mr. R.N. Mishra, learned AGA and Mr. M.K.
Balabantaray, learned Standing Counsel made their
submission basing on the counter filed by the State-Opp.
// 16 //
Parties and the documents filed pursuant to the order
passed by this Court.
15. It is submitted by the learned Advocate General that
pursuant to the order dated 4.10.2013 and by following the
panel system prevalent in the State, the State Government
considering the requisition made by different Department
functioning under the State Government decided to fill up
1612 number of posts from out of the panel out of the total
1869 requisitions received till 31.3.2014. It is further
submitted that even though by 31.3.2014, 1869 requisitions
were received by the Committee of Chief Engineers and
Engineer in Chief(Civil), Orissa from different Departments
and Public Sector undertakings but the State Government
decided to fill up 1612 posts from the panel and the rest 257
Diploma Holders belonging to ST (Men) and S.C (Women)
could not be filled up as there were no candidate in the said
category as per the requisition. But, this Court while dealing
with the matter and after going through the order passed by
the Division Bench of this Court when found that both the
sides have not produced any document showing the vacancy
as on 31.3.2014, it directed the learned State Counsel to
produce the total number of vacancies available as on
// 17 //
31.3.2014. Pursuant to the said direction of this Court, an
additional affidavit was filed on 18.7.2022 indicting therein
that as on 31.3.2014, the total number of vacancies in
different Departments of the Government was 2723. But it
is submitted that since requisitions were received to the
extent of 1869 posts, the Government had no occasion to fill
up the total vacancies in absence of such requisitions. Mr.
Parija, learned Advocate General also brought to the notice of
this Court the stipulation contained in the guideline issued
on 18.1.1972 under Annexure-2. It is submitted that unless
and until requisitions are received for filling up the posts
from various Departments, no name from out of the panel
can be sponsored by the Committee of Chief Engineers for
appointment of such Diploma Holders.
16. Therefore, it is submitted that since by 31.3.2014,
requisitions to the extent of 1869 posts were received by the
Committee, Government decided to fill up 1612 number of
posts and the rest 257 posts could not be filled up as
sufficient number of candidates in the reserved category
were not available for such sponsoring from the panel. It is
also submitted that since as per order dated 5.10.2013,
existing vacancies as on 31.3.2014 were required to be filled
// 18 //
up from out of the panel, but in view of the requisition
received to the extent of 1869 posts, no illegality can be
found at the level of the Government for not filling up the
entire 2773 vacancies available as on 31.3.2014. It is also
submitted that the order dated 5.10.2013 is very clear as it
indicates that all appointments to the existing vacancies as
on 31.3.2014 shall be made from out of the panel. But in
absence of requisition from different Departments, the
Committee had no occasion to sponsor the names of
candidate beyond 1869 Diploma Holders from out of the
panel. It is also submitted that filling up the post by the
Government as against available vacancies is the prerogative
of the Government and no direction can be issued compelling
the State Government to fill up all the vacancies as available.
Mr. Ashok Parija, learned Advocate General in support of the
aforesaid submission relied on the decision of the Hon'ble
Apex Court passed in the case of Anurag Sharma and
others Vs. State of Himachal Pradesh and others (2022
S.C.C, OnLine S.C 860). Relying on the said decision, it is
submitted that even though the vacancies as on 31.3.2014
was to the extent of 2773, but the State Government cannot
// 19 //
be compelled to fill up all those posts. Hon'ble Apex Court in
Para 7,11,15 to 25,73 and 75 held as follows:-
7. The solitary argument advanced on behalf of Respondents
No. 1 to 3, which was accepted by the Division Bench was that
the vacancies which arose prior to the promulgation of New
Rules were to be filled only as per the 1966 Rules and not as
per the New Rules. The High Court formulated the issue and
proceeded to allow the Writ Petition on the ground that it is
covered by the decision of this Court in Y.V. Rangaiah v. J.
Sreenivasa Rao (supra). The operative portion of the judgment
is extracted herein for ready reference: "The question whether
the vacancies occurring before the amendment to the
Recruitment and Promotion Rules are to be filled up as per the
old Recruitment and Promotion Rules or by way of new
Recruitment and Promotion Rules is no more res integra in view
of the law laid down by their Lordships of this Court in Y.V.
Rangaiah v. J. Sreenivasa Rao, (1983) 3 SCC 284."
11. The real question is whether the vacancies which arose
prior to the promulgation of the new rules are to be filled only as
per the old rules and not as per the amended rules? It is argued
that this principle is no more resintegra as the Supreme Court
recognised such a right in Rangaiah's case and it has been
followed in a large number of subsequent decisions. A list of
such judgments was forwarded to the Court by the
Respondents. On the other hand, while submitting that there is
no such right, an even larger list of decisions of this Court that
distinguished Rangaiah was forwarded to us on behalf of the
State.
15. The question that arose in Rangaiah's case related to the
mandatory obligation under the old rules to prepare an approved
list of candidates and also the number of persons to be placed in
the list as per the vacancies available. It is in this context that the
Court observed that the vacancies would be governed by the old
rules. This decision is not to be taken to be laying down an
invariable principle that vacancies occurring prior to the
amendment of the rules are to be governed by old rules. It is
important to note that the Court has not identified any vested right
of an employee, as has been read into this judgment in certain
subsequent cases.
16. However, as the observation in Rangaiah's case has been
construed as a general principle that vacancies arising prior to the
amendment of rules are to be filled only as per the old rules, it is
necessary for us to examine the correct position of law. For this
purpose, we will examine the constitutional position and the
status that governs the relationship between an employee and the
State. Status of persons serving the Union and the States:
17. The relationship between the State and its employees is
provisioned in Part XIV of the Constitution. The provisions of this
Part empower the Union and the States to make Laws and
// 20 //
executive Rules, to regulate the recruitment, conditions of service
,tenure and termination of persons serving the Union or the States.
18. Article 310 provides that, except as expressly provided in the
Constitution, every person serving the Union or the States holds
office during the pleasure of the President or the Governor.
19. The legislative power conferred on the Parliament or a State
Legislature, to make Laws, or the executive power conferred on
the President or the Governor to make Rules under Article 309 is
controlled by the doctrine of pleasure embodied in Article 310. This
is clear from the fact that Article 309 opens with the restrictive
clause, 'subject to the provision of the Constitution. It is for this
reason that the power of the legislature to make laws and the
executive to make Rules, for laying down conditions of services of
a public servant is always subject to the tenure at the pleasure of
the President or the Governor under Article 310.
20. The Constitutional provision to provide public employment on
the basis of tenure at pleasure of the President or the Governor is
based on 'public policy', 'public interest' and 'public good'. The
concept of holding public employment at pleasure is explained in
Constitution Bench decision of this Court in Union of India v.
Tulsiram Patel . The relationship between the Government and its
employees, as explained in this judgment can be formulated as
under :--
I. Unlike in the United Kingdom, in India it is not subject to any
law made by Parliament but is subject only to what is expressly
provided by the Constitution.
II. The pleasure doctrine relates to the tenure of a Government
servant..., ... means the period for which an incumbent of office
holds it.
III. The position that the pleasure doctrine is not based upon any
special prerogative of the Crown but upon public policy has been
accepted by this Court in State of U.P. v. Babu Ram Upadhya and
Moti Ram Deka v. General Manager, N.E.F., Railways, Maligaon,
Pandu .
IV. The only fetter which is placed on the exercise of such
pleasure is when it is expressly so provided in the Constitution
itself, that is when there is an express provision in that behalf in
the Constitution. Express provisions in that behalf are to be found
in the case of certain Constitutional functionaries in respect of
whose tenure special provision is made in the Constitution as, for
instance, in clauses (4) and (5) of Article 124 with respect to
Judges of the Supreme Court, Article 218 with respect to Judges of
the High Court. Article 148(1) with respect to the Comptroller and
Auditor-General of India, Article 324(1) with respect to the Chief
Election Commissioner, and Article 324(5) with respect to the
Election Commissioners and Regional Commissioners.
V. Clauses (1) and (2) of Article 311 impose restrictions upon the
exercise by the President or the Governor of a State of his pleasure
under Article 310(1). These are express provisions with respect to
termination of service by dismissal or removal as also with respect
to reduction in rank of a civil servant and thus come within the
ambit of the expression Except as otherwise provided by this
'Constitution' qualifying Article 310(1). Article 311 is thus an
exception to Article 310 and was described in Parshotam Lal
Dhingra v. Union of India, as operating as a proviso to Article
// 21 //
310(1) though set out in a separate Article. VI. Article 309, is
however, not such an exception. It does not lay down any express
provision which would derogate from the amplitude of the exercise
of pleasure under Article 310(1). It merely confers upon the
appropriate legislature or executive the power to make laws and
frame rules but this power is made subject to the provisions of the
Constitution. Thus, Article 309 is subject to Article 310(1) and any
provision restricting exercise of the pleasure of the President or
Governor in an Act or rule made or framed under Article 309 not
being an express provision of the Constitution, cannot fall within
the expression 'Except as expressly provided by this Constitution'
occurring in Article 310(1) and would be in conflict with Article
310(1) and must be held to be unconstitutional.
VII. Clauses (1) and (2) of Article 311 expressly restrict the manner
in which a Government servant can be dismissed, removed or
reduced in rank and unless an Act made or rule framed under
Article 309 also conforms to these restrictions, it would be void.
The restrictions placed by clauses (1) and (2) of Article 311 are
two- (i) with respect to the authority empowered to dismiss or
remove a Government servant provided for in clause (1) of Article
311, and (ii) with respect to the procedure for dismissal, removal
or reduction in rank of a Government servant provided for in
clause (2). (emphasis supplied)
21. Regardless of its origin, the doctrine of pleasure incorporated
under our constitutional scheme is to subserve an important public
purpose. In Para 44 and 45 of Tulsiram Patel (supra), this Court
has explained the purpose and object of incorporating this
principle: "44. Ministers frame policies and Legislatures enact
laws and lay down the mode in which such policies are to be
carried out and the object of the legislation achieved. In many
cases, in a Welfare State such as ours, such policies and statutes
are intended to bring about socio-economic reforms and the uplift
of the poor and disadvantaged classes. From the nature of things
the task of efficiently and effectively implementing these policies
and enactments, however, rests with the civil services. The public
is, therefore, vitally interested in the efficiency and integrity of
such services. Government servants are after all paid from the
public exchequer to which everyone contributes either by way of
direct or indirect taxes. Those who are paid by the public and are
charged with public administration for public good must, therefore,
in their turn bring to the discharge of their duties a sense of
responsibility. The efficiency of public administration does not
depend only upon the top echelons of these services. It depends as
much upon all the other members of such services, even on those
in the most subordinate posts. For instance, railways do not run
because of the members of the Railway Board or the General
Managers of different railways or the heads of different
departments of the railway administration. They run also because
of engine-drivers, firemen, signalmen, booking clerks and those
holding hundred other similar posts. Similarly, it is not the
administrative heads who alone can see to the proper functioning
of the post and telegraph service. For a service to run efficiently
there must, therefore, be a collective sense of responsibility. But
for a Government servant to discharge his duties faithfully and
conscientiously, he must have a feeling of security of tenure.
// 22 //
Under our Constitution, this is provided for by the Acts and rules
made under Article 309 as also by the safeguards in respect of the
punishments of dismissal, removal or reduction in rank provided
in clauses (1) and (2) of Article 311. It is, however, as much in
public interest and for public good that Government servants who
are inefficient, dishonest or corrupt or have become a security risk
should not continue in service and that the protection afforded to
them by the Acts and rules made under Article 309 and by Article
311 be not abused by them to the detriment of public interest and
public good. When a situation as envisaged in one of the three
clauses of the second proviso to clause (2) of Article 311 arises
and the relevant clause is properly applied and the disciplinary
inquiry dispensed with, the concerned Government servant cannot
be heard to complain that he is deprived of his livelihood. The
livelihood of an individual is a matter of great concern to him and
his family but his livelihood is a matter of his private interest and
where such livelihood is provided by the public exchequer and the
taking away of such livelihood is in the public interest and for
public good, the former must yield to the. These consequences
follow not because the pleasure doctrine is a special prerogative of
the British Crown which has been inherited by India and
transposed into our Constitution adapted to suit the constitutional
set-up of our Republic but because public policy requires, public
interest needs and public good demands that there should be such
a doctrine.
45. It is thus clear that the pleasure doctrine embodied in Article
310(1), the protection afforded to civil servants by clauses (1) and
(2) of Article 311 and the withdrawal of the protection under
clause (2) of Article 311 by the second proviso thereto are all
provided in the Constitution on the ground of public policy and in
the public interest and are for public good."
22. The principle of a public servant holding office at the pleasure
of the President or the Governor is incorporated in the Constitution
itself (under Article 310). This has a direct bearing on the powers
of the Parliament or the legislature to make Laws or the executive
to make Rules for specifying conditions of service provided under
Article 309. This position is clearly explained in the above-referred
passages. In B.P. Singhal v. Union of India this Court explained
the consequence of holding the office during the pleasure of the
President or the Governor: "33. The doctrine of pleasure as
originally envisaged in England was a prerogative power which
was unfettered. It meant that the holder of an office under
pleasure could be removed at any time, without notice, without
assigning cause, and without there being a need for any cause.
But where the rule of law prevails, there is nothing like unfettered
discretion or unaccountable action. The degree of need for reason
may vary. The degree of scrutiny during judicial review may vary.
But the need for reason exists. As a result, when the Constitution
of India provides that some offices will be held during the pleasure
of the President, without any express limitations or restrictions, it
should however necessarily be read as being subject to the
"fundamentals of constitutionalism".
23. It is in this background that the employment of a public
servant is to be understood. Though the relationship between the
employee and the State originates in contract, but by virtue of the
// 23 //
constitutional constraint, coupled with the legislative and
executive rules governing the service, the relation attains a unique
position. Identifying such a relationship as being a 'status', as
against a contract, this Court in Roshan Lal Tandon v. Union of
India , explained what such a 'status' constitutes. We have
extracted hereinbelow the exposition of the concept of 'status' as
explained by the Constitution Bench for ready reference. In this
case, the petitioner Roshan Lal Tandon was appointed as Train-
Examiner - Grade 'D'. At the time when he joined the service, the
promotion to the next post in Grade 'C' was governed by certain
rules which later came to be amended. Questioning the
amendment, he contended that he had a right to be promoted to
Grade 'C' when he joined the service and such a right could not
have been altered by way of a subsequent amendment. Rejecting
this argument, this Court explained the relationship of Government
employment as a 'status' as under:
"6. We pass on to consider the next contention of the petitioner
that there was a contractual right as regards the condition of
service applicable to the petitioner at the time he entered Grade 'D'
and the condition of service could not be altered to his
disadvantage afterwards by the notification issued by the
Railway Board. It was said that the order of the Railway Board
dated January 25, 1958, Annexure 'B', laid down that promotion
to Grade 'C' from Grade 'D' was to be based on seniority-
cum suitability and this condition of service was contractual and
could not be altered thereafter to the prejudice of the petitioner. In
our opinion, there is no warrant for this argument. It is true that
the origin of Government service is contractual. There is an offer
and acceptance in every case. But once appointed to his post or
office the Government servant acquires a status and his rights and
obligations are no longer determined by consent of both parties,
but by statute or statutory rules which may be framed and altered
unilaterally by the Government. In other words, the legal position
of a Government servant is more one of status than of contract.
The hall mark of status is the attachment to a legal
relationship of rights and duties imposed by the public law
and not by mere agreement of the parties. The emolument of
the Government servant and his terms of service are governed by
statute or statutory rules which may be unilaterally altered by
the Government without the consent of the employee. It is true that
Article 311 imposes constitutional restrictions upon the power of
removal granted to the President and the Governor under Article
310. But it is obvious that the relationship between the
Government and its servant is not like an ordinary contract of
service between a master and servant. The legal relationship is
something entirely different, something in the nature of status. It is
much more than a purely contractual relationship voluntarily
entered into between the parties. The duties of status are fixed by
the law and in the enforcement of these duties, society has an
interest...
7. We are therefore of the opinion that the petitioner has no
vested contractual right in regard to the terms of his
service and that Counsel for the petitioner has been unable to
make good his submission on this aspect of the case."
// 24 //
24. The principle laid down in Roshan Lal Tandon's case is
followed in a number of decisions of this Court. The following are
the propositions emanating from the principles laid down in these
precedents.
(i) Except as expressly provided in the Constitution, every person
employed in the civil service of the Union or the States holds office
during the pleasure of the President or the Governor (Article 310).
Tenure at pleasure is a constitutional policy for rendering services
under the state for public interest and for the public good, as
explained in Tulsiram Patel (supra).
(ii) The Union and the States are empowered to make laws and
rules under Articles 309, 310 and 311 to regulate the recruitment,
conditions of service, tenure and termination. The rights and
obligations are no longer determined by consent of the parties but
by the legal relationship of rights and duties imposed by statute or
the rules. The services, thus, attain a status.
(iii) The hallmark of status is in the legal rights and obligations
imposed by laws that may be framed and altered unilaterally by
the Government without the consent of the employee.
(iv) In view of the dominance of rules that govern the relationship
between the Government and its employee, all matters concerning
employment, conditions of service including termination are
governed by the rules. There are no rights outside the provision of
the rules.
(v) In a recruitment by State, there is no right to be appointed but
only a right to be considered fairly. The process of recruitment will
be governed by the rules framed for the said purpose.
(vi) Conditions of service of a public servant, including matters of
promotion and seniority are governed by the extant rules. There
are no vested rights independent of the rules governing the
service.
(vii) With the enactment of laws and issuance of rules governing
the services, Governments are equally bound by the mandate of
the rule. There is no power or discretion outside the provision of
the rules governing the services and the actions of the State are
subject to judicial review.
25. In view of the above principles, flowing from the
constitutional status of a person in employment with the State, we
have no hesitation in holding that the observations in Rangaiah
that posts which fell vacant prior to the amendment of Rules
would be governed by old Rules and not by new Rules do not
reflect the correct position of law. We have already explained that
the status of a Government employee involves a relationship
governed exclusively by rules and that there are no rights outside
these rules that govern the services. Further, the Court in
Rangaiah's case has not justified its observation by locating such
a right on any principle or on the basis of the new Rules. As there
are a large number of judgments which followed Rangaiah under
the assumption that an overarching principle has been laid down
in Rangaiah, we have to necessarily examine the cases that
followed Rangaiah. We will now examine how subsequent
decisions understood, applied or distinguished Rangaiah.
Decisions that followed Y.V. Rangaiah v. J. Sreenivasa Rao.
// 25 //
73. The consistent findings in these fifteen decisions that
Rangaiah's case must be seen in the context of its own facts,
coupled with the declarations therein that there is no rule of
universal application to the effect that vacancies must necessarily
be filled on the basis of rules which existed on the date which they
arose, compels us to conclude that the decision in Rangaiah is
impliedly overruled. However, as there is no declaration of law to
this effect, it continues to be cited as a precedent and this Court
has been distinguishing it on some ground or the other, as we
have indicated hereinabove. For clarity and certainty, it is,
therefore, necessary for us to hold;
(a) The statement in Y.V. Rangaiah v. J. Sreenivasa Rao that, "the
vacancies which occurred prior to the amended rules would be
governed by the old rules and not by the amended rules", does not
reflect the correct proposition of law governing services under the
Union and the States under part XIV of the Constitution. It is
hereby overruled.
(b) The rights and obligations of persons serving the Union and
the States are to be sourced from the rules governing the services.
75. We have already held that there is no right for an employee
outside the rules governing the services. We have also followed
and applied the Constitution Bench decisions in Union of India v.
Tulsiram Patel (supra) and more particularly the decision in
Roshan Lal Tandon v. Union of India (supra) that the services
under the State are in the nature of a status, a hallmark of which
is the need of the State to unilaterally alter the rules to subserve
the public interest. The 2006 rules, governing the services of the
Respondents came into force immediately after they were notified.
There is no provision in the said rules to enable the Respondents
to be considered as per the 1966 Rules. The matter must end here.
There is no other right that Respondents no. 1 to 3 can claim for
such consideration.
17. It is also submitted that in view of Annexure-2,
unless and until sufficient requisitions are received by the
Committee from various Department of the Government, the
Committee cannot and is not in a position to sponsor any
candidate from the panel. Even though by 31.3.2014,
requisitions to the extent of 1869 posts were received and
sponsored, but Government decided to fill up 1612 posts.
Accordingly, it is submitted that after filling up those posts
// 26 //
by 31.3.2014 in compliance to order dated 5.10.2014, no
illegality has been committed by the Commission in issuing
the advertisement on 4.8.2014 and subsequent
advertisement on 29.8.2019 inviting applications to fill up
posts of Jr. Engineer by way of direct recruitment. Mr.
Parija, learned Advocate General also submitted that as
provided in the relevant recruitment Rules, 2012, Diploma
holders, who are in the panel and due to abolition of the
appointment from out of the panel, all those candidates as
per the said Rules were allowed exemption for their
appearing in three successive recruitment tests with
relaxation of upper age limit and some of the petitioners by
availing that benefit have also appeared the recruitment test
pursuant to the aforesaid two advertisements. It is
submitted that since the Diploma Engineers who could not
avail the benefit of their appointment through the panel
system which was in force up to 31.3.2014 were allowed the
benefit of age relaxation in their appearance in three
successive recruitment test to be conducted by the
Orissa Staff Selection Commission, they should have
participated in the said selection process instead of
approaching this Court in the aforesaid Writ Petitions.
// 27 //
18. Making all these submissions, Mr. Parija, learned
Advocate General submitted that the prayer made in the Writ
Petition are not entertainable by this Court.
19. Mr. S.N. Pattnaik, learned Counsel appearing for the
Commission on the other hand submitted that both the
advertisements have been issued strictly in accordance with
the 2012 Rules and no illegality has either been raised or
committed by the Commission while issuing both the
advertisements.
20. Heard learned counsel for the parties. Perused the
materials available on record.
21. This Court after going through the same finds that
though as on 31.3.2014, the total vacancies available was
2773, but since in terms of Annexure-2, requisitions were
received in respect of 1869 posts, no direction can be issued
to the State Government to fill up the rest vacancies from out
of the panel maintained by the Committee of Chief Engineers
and Engineer in Chief(Civil), Orissa.. This Court also finds no
illegality on the part of the State Government in not filling up
all the available vacancies as State Government in view of
the decision relied on by the Advocate General in the case of
Anurag Sharma and Others(supra) cannot be compelled to
// 28 //
fill up all those posts. The decisions relied on by Mr. B.
Routray, learned Sr. Counsel appearing for the petitioners
are not germane to the issue involved in all these Writ
Petitions. Accordingly, this Court is not inclined to entertain
all these Writ Petitions and the same are accordingly
dismissed.
22. However, before parting with the case, this Court
feels it proper to make an observation that since learned
Tribunal while disposing the matter vide its order dated
26.4.2017 observed that Government as an employer may
take a decision as one time measure and to consider the
relevant provision under the Rule for appointment of the
petitioners and for that purpose, if necessary, may fix certain
quota in future recruitment, this Court observes that if
Government so likes, it can consider the case of the present
petitioners in future recruitments by providing them some
reservation as against the vacancies to be advertised.
However, this Court has expressed no opinion on such
course of action if will be undertaken by the State.
23. With the aforesaid observations and directions, all
the Writ Petitions are disposed of.
24. There is no order as to costs.
// 29 //
25. The photocopy of this order be placed on the
connected cases.
.............................................
Biraja Prasanna Satapathy, J.
Orissa High Court, Cuttack
Dated the 17th August, 2022.
