Orissa High Court
Sabyasachi Mohanty vs This Is A Writ Petition Filed By An ... on 10 May, 2022
ORISSA HIGH COURT : C U T T A C K
WP(C) NO.33209 OF 2020
In the matter of an application under Articles 226 & 227 of the Constitution of India.
Sabyasachi Mohanty : Petitioner
-Versus-
State of Odisha & Others : Opp.Parties
For Petitioner : M/s.Er.N.K.Mohanty,
A.Dash & Dr.J.K.Lenka
For O.Ps.1 to 3 : Mr.S.Ghosh, ASC
For O.P.4 : Mr.S.Das, SC
For O.Ps.5 to 7 : M/s.P.K.Rath, A.Behera,
S.K.Behera, P.Nayak, S.Das
& S.Rath
JUDGMENT
CORAM :
JUSTICE BISWANATH RATH
Date of hearing : 26.04.2022 & Date of Judgment :: 10.05.2022
1. This is a Writ Petition filed by an ousted employee by the
Employer, the National Law University of Odisha, Cuttack, herein after
called as, "NLUO" seeking a challenge to the letter dated 17.10.2020
issued by the NLUO informing the Petitioner of its decision for not
giving any further extension to the Petitioner in the Post of Assistant
Finance Officer and that he will be relieved from his duties on 19th
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October, 2020 at 9 a.m. In the said letter the Petitioner was also directed
to hand over charge along with all Files/Documents/Audit Reports in his
custody to one Mr.Bibhu Prasad Kar, Assistant Registrar of the NLUO,
particularly on 19th October, 2020 at 9 a.m. The Petitioner in assailing the
impugned order at Annexure-6 has involved the following prayer :-
"Under the facts and circumstances as narrated above, this
Hon'ble Court may graciously be pleased to issue notice to the
Opp.Parties and after hearing the parties be pleased to :
(a) quash the letter dated 17.10.2020 under Annexure-6
issued by the O.P.No.5;
And
(b) direct the O.P.No.5 to reinstate the petitioner to the post
of Assistant Finance Officer at National Law University, Odisha
within a stipulated time period along with all consequential service
benefits;
And
(c) O.P.No.4 may be directed to conduct an impartial an fair
investigation taking into consideration the reports submitted by the
O.P.No.3 and the Special Audit Report under Annexure-7 series.
And
(d) regularize the services of the petitioner with effect from
14.10.2018 along with all consequential service benefits;
And further be pleased to pass any other order/orders as deemed
fit and proper."
2. Factual aspect involving the case is that the Petitioner is a Holder
of Degree in Master in Business Administration (Finance) from Sikkim-
Manipal University and Master of Finance and control from the Utkal
University. While working in the Choudwar Municipality, finding
// 3 //
publication of an Advertisement on 17.10.2015 in the Odiya Premier
"The Samaj", vide Annexure-2 applied for the post of Assistant Finance
Officer. The Petitioner was called for the interview vide letter dated
15.9.2016. The Petitioner claimed, involving a competitive selection
process he was found successful in the interview, and therefore, was duly
selected for the post of Assistant Finance Officer in the NLUO.
Communication of his selection by the NLUO, vide their letter dated
14.10.2016 finds place at Annexure-4 of the Brief. Referring to
Annexure-4, the Petitioner claimed, vide Clause-2 of the terms and
conditions therein, he was offered with the Post initially for one year with
further disclosure that the University has the rights to decide upon his
continuation based on his satisfactory performance. In the same
communication through the terms and conditions, the Petitioner was
assured of long term employment and a favourable decision be taken on
his continuation by the Employer with further information that the Medi-
claim Insurance Policy purchased in his favour will cover both the
Petitioner and his family. While disclosing the gross salary package, vide
Clause-5 & Clause-6 of the terms and conditions, the Employer informed
the Petitioner that his service in the University may be terminated without
assigning any reason at one month's notice or salary in lieu thereof with
further rider in favour of the Petitioner that if he wants to quit the job that
// 4 //
also required either one month's notice or on payment of salary in lieu
thereof. Further under Clause-7 of the terms and conditions the Petitioner
was also informed that his appointment was subject to the Regulations of
the University as may be in force at any time. In issuing such offer of
appointment, the Petitioner was requested to communicate his acceptance
and joining duty at the earliest on or before 1st November, 2016, failure of
which offer of appointment shall stand cancelled. Further pleading
disclosed, vide a correspondence dated 4.11.2019, vide Annexure-5, the
University communicated the Petitioner its decision in the matter of
renewal of contractual service period in the NLUO. In a subsequent
development the Petitioner was communicated with another
correspondence dated 17th October, 2020, vide Annexure-6 where it was
communicated that it was decided that there was no need of grant of
further extension to the Petitioner and that he shall be relieved from his
duty on 19th October, along with other directions indicated herein.
Accordingly, the Writ Petition is filed with the prayer indicated herein
above.
3. Er.N.K.Mohanty, learned counsel for the Petitioner in the above
background of the case in reference to the conditions of service, reading
through Annexure-4, the Advertisement at Annexure-2 and looking to the
nature of such Advertisement contended that the Advertisement nowhere
// 5 //
disclosed that the engagement in the post of Assistant Finance Officer
will be temporary, on the other hand the Advertisement only disclosed
that filling up such Post will not only be contractual but Party selected
shall also be entitled to consolidated pay. Er.Mohanty thus contended that
once the Advertisement does not say the period of appointment, reading
through the terms and conditions in the offer of appointment, vide
Annexure-4, particularly through Clause-2 therein, there was no dispute
that the offer of appointment was initially for one year and the
continuation of the Petitioner was to depend on his satisfactory
performance. It is taking at this stage to the extension in favour of the
Petitioner, vide Annexure-5 and reading through the pleadings at the
instance of the Petitioner at Paragraph-5 of the Brief, Er.Mohanty
contended that though the Petitioner's terms under the offer of
appointment, vide Annexure-4 was to expire on 31st October, 2017, he
has been given extension in his post for another year to expire on 31st
October, 2018. The Petitioner was again granted another extension of his
service up to 17th October, 2019 for one year and through Annexure-5,
the Petitioner was given the last extension commencing 18th October,
2019 but was not given further extension from 19th October, 2020. Taking
here to the terms and conditions, Er.Mohanty reading through the
condition at Clause-4 contended that the Petitioner was given a scope of
// 6 //
continuation inasmuch as with likelihood of offer on long term
employment. Er. Mohanty, learned counsel contended that for the
condition at Clause-6 of the terms and conditions, in the event the
Employer desired to take out the service of the Petitioner in the Post of
Assistant Finance Officer, he ought to be given either one month's notice
or to take out the service of the Petitioner on ending of the contractual
period but however on payment of one month's salary in lieu of notice. In
the above background, Er.Mohanty contended that Annexure-4 is the
only offer of appointment with terms and conditions and the extensions
provided to the Petitioner all through disclosed that the terms and
conditions in his previous appointment letter hold good but with no affect
on salary. Er.Mohanty, therefore, on reiteration of the Clause-6 of the
terms and conditions in Annexure-4 contended that while granting
extension the Employer continued with the terms and conditions with
offer of appointment and as the condition of service at Clause-6 is
binding on both the Parties, in the event the Employer was not desirous of
continuing with the Petitioner, it ought to have proceeded in terms of
Clause-6 of the terms and conditions and there is no possibility of ouster
of the Petitioner otherwise. Er.Mohanty thus contended, for the Employer
in issuing the letter at Annexure-6 for terms at Clause-6 of the service
condition at Annexure-4, the communication taking out the services of
// 7 //
the Petitioner has no place to stand for being contrary to the terms and
conditions set by the Employer itself. Er.Mohanty further taking into
account the development taken place in the continuing of the Petitioner
contended that as the Petitioner's service was found satisfactory, he has
not only been provided several extensions but he was also granted an
increase in his consolidated pay raising it from Rs.40,000/- earlier to
Rs.50,000/- per month. Er.Mohanty further while alleging the action of
the NLUO hit by Article 14 of the Constitution of India, contended, the
impugned order suffers on account of violation of principle of natural
justice. Er.Mohanty in reference to his pleading in the written note of
submission contended that while the University continued with most of
the engagements under the Advertisement and regularized many of them,
it has singled out the Petitioner in not allowing him to further continue
while even allowing the post to continue. In reference to further
engagement, Er.Mohanty contended that in taking out the service of the
Petitioner, there is no filling of such post as yet. However, the claim of
the University that in the meantime, the post is already filled in but the
person claimed to have joined is in the post of Finance Officer, which has
nothing to do with the Petitioner's ouster in the post of Asst. Finance
Officer. Er.Mohanty contended that even assuming the person joined on
deputation making position of the Petitioner, Er.Mohanty taking aid of
// 8 //
the settled principle holding the field contended that there should not be
substitution of a contractual employee by engagement of another
contractual employee. Er.Mohanty further contended, for there is
continuing with the post by a Deputationist, this clearly indicates, the
University is in desirous of continuing with such post and in the process,
on illegal ouster of the Petitioner, the University has come to engage a
person on deputation. Er.Mohanty thus claimed support of the law settled
by the Hon'ble Supreme Court holding there cannot be replacement of a
contractual employee by another contractual employee.
4. Er.Mohanty here relying upon certain decisions of this Court in
Kartika Chandra Panda vrs. State of Orissa & ors.: 2017(II) OLR 545,
Dillip Kumar Baral vrs. BPUT : 2013(II) OLR 210, and decisions of the
Hon'ble Supreme Court in State of Haryana & ors. vrs. Piara Singh &
Ors : AIR 1992 SC 2130 and State of Punjab and & ors. vrs. Inder
Singh & ors. : AIR 1998 SC 7 contended the Hon'ble apex Court has
clearly come to hold that the engagement of a person on deputation
amounting to temporary absorption and such position continues until and
unless it is regularly absorbed in the cadre of the Establishment.
Er.Mohanty advancing his submission on the score that even in
availability of any stigma and/or allegation against an employee and
involving a decision of KIITS University for not extending the probation
// 9 //
period of an employee, for the opinion of this Court in the case of
Dr.Utam Kumar Samant vrs. KIITS & ors : 2014 Supp.II OLR 852 and
in disposal of Civil Appeal No.14553 of 2015 decided on 15.12.2012 in
the Case of J. Jeyapaul vrs. S.R.M. University & Ors. an unreported one,
contended that in the event the University involved in its mind any
complain against the Petitioner following the aforesaid decision, there
should have been compliance of natural justice before taking out the
service of such person. Er.Mohanty taking this Court to the appointment
through the Advertisement in reference to Page-25 of the Brief contended
that when the University continued with the rest of the positioning, there
was no reason to take out the services of the Petitioner. Er. Mohanty, here
taking this Court to Annexure-15, the Resolution of the extraordinary
meeting of the Executive Council of the University conducted on 11th
February, 2012, particularly the Agenda Item No.7 contended that in the
past the University in similar situation considering some persons
continuing over two years and prescribing the eligibility Rules has
decided to regularize the persons in different categories involving names
of persons find place at Pages-161 & 162 of the Brief thereby
regularizing at least the services of twenty-five persons in first phase and
seven persons in different posts again in the second phase. Er.Mohanty,
learned counsel for the Petitioner thus contended that for the nature of
// 10 //
recruitment and for the University since following a procedure for
regularization of persons on completion of two years of continuous
service and specifying eligibility criteria, Petitioner since continued with
the Post of Assistant Finance Officer for four years, nothing prevented the
University from undertaking such exercise. Er.Mohanty also took support
of some decisions of the Hon'ble Supreme Court in State of Jharkhand
& ors. Vrs. Brahmputra Metallics Ltd., Ranchi & anr : 2020 SCC
Online 968, Jarnail Singh & ors. Vrs. State of Punjab & ors. : 1986(3)
SCC 277 and National Building Construction Corporation vrs.
S.Raghunathan & ors. : (1998) 7 SCC 66.
5. In the process Er. Mohanty, learned counsel for the Petitioner
restricting his prayer to prayer No.b for the time being submitted that the
petition involving prayer no.b should succeed.
6. This Court makes it clear that even though there are so many
parties, but however, real contesting opposite parties are Opposite Party
Nos.5, 6 & 7. Filing counter affidavit the Opposite Party Nos.5, 6 & 7 in
their opposition to the entertainability of the writ petition, while denying
each allegations raised by the Petitioner contended that the writ petition in
the present form is not maintainable for the same involves serious
disputed questions of fact and such issues cannot be decided by the High
Court in exercise of power under Article 226 of the Constitution of India.
// 11 //
These Opposite Parties also alleged that the Petitioner has misrepresented
the facts and there has been misjoinder of cause of action. It is contended
that for the Petitioner accepting the communication of non-extension of
services and for the Petitioner's challenge to such order being passed
vindictively taking into account certain development in Audit side, the
problem and/or development in Audit side remains unconnected with the
non-extension of the Petitioner's service. It is further contended that once
the Petitioner accepts the non-extension communication without
objection, he has no further scope to challenge the same. It is also
contended that for the impugned order involves non-extension of
contractual service, the same cannot be equated with termination and/or
retrenchment of an employee. In the process it is also contended that there
does not apply principle of natural justice. Looking to the nature of
communication it is also contended that the terms and conditions of
service also do not come to play. These Opposite Parties submitted that
the averments made in paragraph no.2 do not require any response. It is
contended that since the averments made in paragraph nos.3 & 4 are all
matter of record, there is no response required except the Petitioner is to
put strict proof thereof on the averments made in paragraph no.4. These
Opposite Parties contended that since the appointment order at Annexure-
4 is an indicator of time bound period of one year, not only the Petitioner
// 12 //
misrepresented the fact but further extensions, if any, are also subject to
the University's discretion. Following the condition in clause 4 of the
offer of appointment and for the restrictions therein, it is contended that
an employee has no vested right in claiming anything further. Taking the
plea of the Petitioner on clause '6' of the offer of appointment, these
Opposite Parties also contested the writ petition on the ground that
Clause-6 of the offer of appointment has not been invoked in the case of
the Petitioner as the Annexure-6 simply involves a non-extension of
service period. Mr. Rath, learned counsel contended that the extension, if
any, given are an outcome of terms of appointment under Annexure-4 and
such a decision is in the complete wisdom of the University. While
claiming so, these Opposite Parties have also claimed that in the
meantime there is filling of such posts through an Officer deputed from
the Government of Odisha. Copy of further appointment finds place at
Annexure-A/6(series). These Opposite Parties however admitted that
further employment in the said post is on deputation basis but however
after they failed in getting a suitable candidate in a process of selection
and the posting involved is however in the post of Finance Officer. These
Opposite Parties contended that for the response already given up to
paragraph no.16, there is no need for response to paragraph nos.7 & 8 of
the writ petition. Answering the claims in paragraph no.9 these Opposite
// 13 //
Parties claimed that the Annexure-6 cannot be treated to be a stigmatic
one. While denying the claims in paragraph no.10 these Opposite Parties
submitted that since the appointment of the Petitioner was under a
contract vide Anexure-4 the Petitioner is bound by the same. These
Opposite Parties further claimed that there is already answer to the
averments made in paragraph no.11 and there is no requirement of
repetition. The Opposite Parties further claimed that since the Annexure-6
is a communication of non-extension of service, the same does not
amount an order of termination and thus submitted that, there is no
requirement of compliance of clause 6 of the Annexure-4. On the
averments in paragraph nos.13 & 14 of the writ petition, it is claimed that
in the guise of such pleading the Petitioner is attempting to make out a 3rd
case and also attempting to convert the writ petition into a PIL.
Averments and allegation made in paragraph no.15 are claimed to be; the
Petitioner is taking a dangerous step without following prescribed
procedures and since the claims therein involve disputed question of fact,
the same cannot be entertained in a writ petition. These Opposite Parties
denied to have any extraneous reason for non-extension of services of the
Petitioner and on the other hand, contended that non-extension is purely
intended to manage the accounts work of the University through a
Finance Officer of the Central Government / State University of the State
// 14 //
Government in terms of the resolution passed by the Executive Council
dated 31.08.2019 and 26.06.2020 as appearing at Annexure-B/6(series).
These Opposite Parties also flatly denied the allegations made by the
Petitioner in paragraph nos.17 & 18. These Opposite Parties opposed the
move of the Petitioner in raising unconnected issues. These Opposite
Parties also claimed that there is no ouster of services of the Petitioner.
Through paragraph no.30 of the counter affidavit the Opposite Parties
flatly denied the averments made in paragraph nos.21 & 22 of the writ
petition. These Opposite Parties refused to answer the averments made in
paragraph nos.24 & 25 on the premises that the allegation of appointment
of Registrar of the University was beyond the scope of writ petition.
7. In advancing his further submissions Mr. P.K. Rath, learned
counsel for the contesting Opposite Parties on reiteration of all the above,
summarizes his submission while admitting that the conditions of
services set forth through Annexure-4 binds all the parties, attempted to
submit that since the Petitioner's appointment was purely on temporary
and contractual basis, the Petitioner had no right to claim continuity.
Mr.P.K.Rath, learned counsel contended that Annexure-6 since involves
non-extension of contractual period of the Petitioner, the services of the
Petitioner cannot be treated as an ouster. Further looking to the nature of
communication at Annexure-6 Mr. Rath, learned counsel for the
// 15 //
contesting Opposite Parties also contended that for the expiry of the
period of services of the Petitioner and for the refusal of the University to
extend the services of the Petitioner, the services of the Petitioner comes
to an automatic end. Further on the premises that the post is already filled
up by way of deputation, Mr. Rath, learned counsel for the contesting
Opposite Parties contended that the writ petition has no substance to be
considered for a person is already appointed under deputation. Mr. Rath,
learned counsel for the contesting Opposite Parties of course outside the
counter averments contended that since the person under deputation has
not been made as a party to the present proceeding, entertainment of the
writ petition will surely affect such person already engaged under
deputation against the post the Petitioner was holding earlier. Mr. Rath,
learned counsel for the contesting Opposite Parties also contended that
since the Petitioner has accepted the terms and conditions with open eyes,
he is bound by the same. Mr. Rath, learned counsel for the contesting
Opposite Parties on his claim that continuation in service while holding a
contract post does not create a vested right, he at this stage also relied on
two decisions of the Hon'ble apex Court vide Secretary, State of
Karnataka and others Vrs. Umadevi (3) and others as reported in (2006)
4 SCC 1 and in the case of Union of India and others Vrs. N.
Murugesan and others as reported in 2022(2) SCC 25. Mr. Rath, learned
// 16 //
counsel for the contesting Opposite Parties in his further argument
particularly on the score that the claim of regularization by a person can
be maintained only while in service, also took reference of two decisions
of the Hon'ble apex Court vide in the case of State of Rajasthan and
Others Vrs. Dayalal and Others as reported in (2011) 2 SCC 429 and in
the case of Management of the BARARA Co-operative Marketing-cum-
Processing Society Ltd. Vrs. Workman Pratap Singh as reported in
(2019) 2 SCC 743. Taking this Court to the documents at pages 31 to 115
Mr. Rath, learned counsel for the contesting Opposite Parties contended
that for the Petitioner producing such large number of documents
obtaining illegally, his such unauthorized conduct deems to be in
violation of the provisions of the Official Secrets Act as there has been
attempt for personal gain through unauthorized possession of the Official
documents. Referring to the minutes of the meeting at page 155 of the
brief Mr. Rath, learned counsel for the contesting Opposite Parties
contended that since this did not include the Petitioner, the Petitioner
cannot take aid of such resolution and the resolution was confined only to
the persons whoever in service by then and continuing again named
therein. Mr. Rath, learned counsel for the contesting Opposite Parties
further adverting to the decision of the Council appearing at page 197 and
// 17 //
page 200 of the brief contended that by virtue of such resolution, there is
already engagement of a person in the very same post on deputation basis.
In the above circumstance, Mr. Rath, learned counsel for the
contesting Opposite Parties challenged the entertainability of the writ
petition and thus requested this Court for dismissing the writ petition for
having no substance.
8. Considering the rival contentions of the parties and after going
through the pleadings of the parties as well as material support taken
therein, this Court proceeds as follows:-
(i) Undisputedly there is creation of a post of Asst. Finance Officer in
the NLUO. There is also advertisement inviting applications from the
interested and qualified persons to apply against such post as clearly
appearing in Annexure-2. On receipt of large number of applications the
University sets up a selection process and Petitioner's engagement all
comes of a selection process. True initially the appointment of the
Petitioner was for one year, the offer of appointment vide Annexure-4
nowhere indicates the offer was a tenure of one year. Again by the
conduct of the University for extending the services of the Petitioner time
and again, further the University entering into the decisions through the
Committee to regularize the employees completing satisfactorily two
years of service previously, this Court does not find strength in the
// 18 //
submission of the University that the posting involved was periodic and
there is automatic end of the journey of the Petitioner. It is on the other
hand, looking to the nature of appointment through a selection process
and that too after meeting the qualification criteria set by the University
and having resolved regularizing person completed two years of
continuous service; may be on previous occasion, the Petitioner has
certainly a case of legitimate expectation, the University acting in the
guise of Committee resolution did not perform as a model employer.
Further when the Petitioner was holding the post of Asst. Finance Officer,
the Post filled in by way of deputation is Finance Officer. Both the posts
since are completely different, there is grave doubt in the submission of
the University that the post held by the Petitioner is already filled up by
bringing a person on deputation. This Court further finds, once the
appointment is based on selection and continuance of such person is
dependent on his satisfactory performance, the non-continuation after so
much extensions must be on a dissatisfactory note. Further, in case of no
extension, such action has to be taken an action on dissatisfactory note, in
such event there ought to be compliance of natural justice.
This Court here again finds, vide Annexure-4 the Petitioner is
appointed being selected through a selection process and further
appointed initially for one year with scope of extension and continuing
// 19 //
subject to the decision of the University, the University accordingly
accommodated the Petitioner beyond one year and vide Annexure-6
taking a decision not to give further extension. For clarity this Court here
takes into account the contents in Annexure-4 as well as Annexure-6,
which letters reads as follows :-
Annexure-4
"Dr. Dolly Jabbal
Registrar (I/c)
No.NLUO/ACAD/9950/16
Date :14.10.2016
Mr. Sabyasachi Mohanty
C/o-Trilochan Pradhan,
Po-Naya Bazar, At-Mahanadi Vihar,
Dist.-Cuttack, Pin - 753004,
Ph.: 09658875575
Sub: Offer of Appointment as Assistant Finance
Officer at NLU Odisha
Dear Mr. Sabyasachi Mohanty,
I am pleased to inform you that on the recommendation of
the Selection Committee of the interview held on 5th
October, 2016 and in exercise of powers vested in him by
virtue of National Law University Orissa Act, 2008, Vice-
Chancellor has approved your appointment as Assistant
Finance Officer on contractual basis with following terms
and conditions:
The offer is being made on the following terms and
conditions:
// 20 //
1. On acceptance of offer and upon joining duties,
you will be governed by the rules of the
University, as applicable, from time to time.
2. The post is offered initially for one year. The
University has the rights to decide upon your
continuation based on your satisfactory
performance.
3. This being a residential University, you will
normally be required to be on the campus
premises from 9.00 a.m. to 5.00 p.m., six days a
week or the time and days as may be decided by
the University, as per its need.
4. Should a favorable decision be taken on your
continuation, you are likely to be offered a long
term employment. You and your family will also
be covered under the medi-claim insurance
policy as per the existing policy of the
University.
5. The post of which you are being offered
appointment carries a consolidated gross salary
of Rs.40,000/- (Rupees forty thousand) only per
month, subject to statutory deduction of TDS,
Professional Tax, EPF etc.
6. Your employment with the University may be
terminated without assigning any reasons at one
month's notice or salary in lieu thereof and you
may also have a corresponding right to terminate
it at one month's notice or in payment of salary
in lieu thereof.
7. This appointment is subject to the
regularizations of the University as may be in
force at any time.
If you find the aforesaid offer on the above stated
terms and conditions acceptable, you are requested
to communicate your acceptance and join duty at
the earliest on or before 1st November, 2016,
failing which the offer of appointment is liable to be
treated as cancelled.
With best regards,
// 21 //
Yours sincerely."
Annexure-6
"Prof. (Dr.) Yogesh Pratap Singh
Vice-Chancellor (I/c)
Date : October 17, 2020
Mr. Sabyasachi Mohanty
Assistant Finance Officer
National Law University Odisha,
Cuttack
Dear Mr. Sabyasachi Mohanty
I am directed to inform you that the competent authority has
decided not to grant any further extension to you as
Assistant Finance Officer. You will be relived from your
duties on 19th October 2020 at 9 AM. You are also directed
to handover charge along with all files / documents / audit
reports etc. to Mr. Bibhu Prasad Kar, Assistant Registrar,
NLUO on Monday, 19 October 2020 at 9 A.M.
Thank you so much for rendering services to NLUO.
We wish you all the best.
With warm regards,
Yours sincerely,
Prof. (Dr.) Yoresh Pratap Singh
Annexure-6 is issued taking a decision not to extend the services of
the Petitioner. Even accepting the University's stand that it resolves to
continue with the post then in 1st instance you go for fresh advertisement,
this itself shows your intension of continuing with the post and once you
continue with post but taking decision not to continue with person already
there for so many years and even if you claim, the disengagement has no
// 22 //
stigma then your decision at this stage cannot be without attachment of
stigma even though your order doesn't reflect so. Such order without
natural justice cannot be entertainable.
(ii) For the undisputed fact that the person comes on deputation joined
the post of Finance Officer whereas the Petitioner was dropped from the
post of Asst. Finance Officer, this Court since finds, there is nobody
joined as Asst. Finance Officer a post filled in by interview process not
being filled in as of now, the joining of a person in the post of Finance
Officer remains innocuous, the stand of the University that there is
already a person as against the Petitioner has no substance. Advertisement
at Annexure-2 at Sl.No.7, the call letter at Annexure-3, the offer of
appointment at Annexure-4, Extension letter at Annexure-5 and letter not
extending the petitioner's services are all dealing with Asst. Finance
Officer post being held by the Petitioner. Submission of petitioner that
there is no filling up of the post of Asst. Finance Officer, is again fortified
vide Annexure-8 at running page 117 where the University attempted to
fill up the post of Finance Officer.
(iii) This Court hereinabove already recorded the statement of
Mr.P.K.Rath, learned counsel appearing for the University-NLUO
contrary to the stand of the University in the counter that the terms and
conditions in the offer of appointment under Annexure-4 were governing
// 23 //
the field so long as the Petitioner was continuing in such Establishment
and further looking to the confirmation of the same through Annexure-5,
this Court finds, in the offer of extension of contractual appointment in
favour of the Petitioner, vide Annexure-5, there is clear indication that the
terms and conditions of the appointment letter holds good. This Court
here likes to take note of the terms and conditions applied to both the
Parties, as indicated in the offer of appointment letter dated 14.10.2016,
vide Annexure-4, which reads as follows :-
"The offer is being made on the following terms and
conditions:
1. On acceptance of offer and upon joining duties,
you will be governed by the rules of the
University, as applicable, from time to time.
2. The post is offered initially for one year. The
University has the rights to decide upon your
continuation based on your satisfactory
performance.
3. This being a residential University, you will
normally be required to be on the campus
premises from 9.00 a.m. to 5.00 p.m., six days a
week or the time and days as may be decided by
the University, as per its need.
4. Should a favorable decision be taken on your
continuation, you are likely to be offered a long
term employment. You and your family will also
be covered under the medi-claim insurance
policy as per the existing policy of the
University.
5. The post of which you are being offered
appointment carries a consolidated gross salary
of Rs.40,000/- (Rupees forty thousand) only per
month, subject to statutory deduction of TDS,
Professional Tax, EPF etc.
// 24 //
6. Your employment with the University may be
terminated without assigning any reasons at one
month's notice or salary in lieu thereof and you
may also have a corresponding right to terminate
it at one month's notice or in payment of salary
in lieu thereof.
7. This appointment is subject to the
regularizations of the University as may be in
force at any time."
Reading through the terms and conditions governing the field also
binding on both sides, this Court finds, through Clause-6 of the terms and
conditions, there is clear condition of termination of the Petitioner not
only without assigning any reason but with one month's notice or salary
in lieu thereof. In the circumstance, this Court finds, in the event the
Employer was not interested to continue with the Petitioner, the so-called
letter of non-extension of service of the Petitioner ought to have been
issued strictly in terms of Clause-6 of the terms and conditions, failure of
which the impugned order under Annexure-6 has no leg to stand.
(iv) This Court here takes into account the submission of Mr.P.K.Rath,
learned counsel for the NLUO in his opposition on the claim of the
Petitioner that for the offer of appointment allowing the Petitioner to
continue in such Post giving extension after extension abruptly stopping
the continuation of the Petitioner, vide Annexure-6 would be amounting
to termination of the Petitioner and in violation of Clause-6 of the terms
and conditions, is not correct and each individual offer of extension is
// 25 //
amounting to a new contract, and therefore, non-extension of service of
the Petitioner is neither amounting to disengagement nor there was any
necessity of compliance of clause-6 of the offer of appointment, on the
other hand, amounting to closure of a contract, this Court on reiteration of
the observations in Paragraphs-iii again in reference to the condition at
Clause-6 in the offer of appointment at Annexure-4, extension of terms
and conditions of service disclosed in the appointment letter of the
Petitioner being permitted to continue in the last extension of service of
the Petitioner for one year with effect from 18th October, 2019, vide
Annexure-5, further finding the submission of Mr.Rath, learned counsel
for the NLUO insofar as Clause-6 of the service condition and continuing
with such terms and conditions even in issuing the last extension of
service in Annexure-5 finds, the NLUO had no other option than to
undertake the exercise of non-continuation of the Petitioner only in terms
of Clause-6 of the service condition, vide Annexure-4. In the above stand
of the University, this Court finds, the University is not clear in its stand
and there is contradicting stand. This Court finds, the order at Annexure-6
has no leg to stand in the eye of law, as it involved disengagement of an
employee in the Post of Assistant Finance Officer de hors the terms and
conditions, vide Annexures-4 & 5 respectively. This Court here also takes
into consideration the claim of the Petitioner through his Counsel that
// 26 //
looking to the term and condition nos.1, 2 & 4, the Petitioner undoubtedly
had an expectation of being regularized or continuance in the Post he was
holding or in the minimum to continue further by way of extension.
Further also based on the conduct of the University which had regularized
a large number of contractual recruitees after each of them completed two
years of satisfactory service and since the Petitioner had already
completed four years unblemished career till he was communicated with
the non-extension, Petitioner's expunction is here contrary to the decision
of the University decision vide Annexure-15 running page 167 of the
brief. Undisputedly being satisfied with the service of the Petitioner in his
first tenure after the offer of appointment being issued to the Petitioner,
there was scope for issuing an extension on the offer of appointment,
which even continued one more year taken place in a development in
2018 and last such extension was given by the University extending the
services of the Petitioner on contractual appointment with effect from 18th
October, 2019 to continue up to 17th October, 2020. For the own conduct
of the NLUO, it suffers for not governing it by terms and conditions set
by itself and as in the four years of continuation of service of the
Petitioner at no point of time, the Petitioner has never been issued with
either any displeasure note of the Employer or proceeded with any action
thereof.
// 27 //
(v) This Court again finds, once the University decides to recruit
through a regular process of selection and in the process you select a
person though you are selecting on contractual basis but after allowing
him to continue for multiple years, you cannot leave such employee to
your mercy and there should not only be following of process of Law or
Rules prevailing may be by way of terms and conditions in service but
there should also be lawful reason in taking out the services of such
selected person and failure of which there shall be no Job security of the
employee concerned. Here in the case though this Court finds through the
submission of Sri Rath, that the Job was provided to the Petitioner on
contractual basis and such person was not allowed to continue on the
basis of certain observation of the competent authority, argument is
advanced that the employer was not satisfied and/or continuity of such
person is undesirous for the Institution, this Court here finds, the
submission of Sri Rath, learned counsel that the communication of non-
continuance of the Petitioner for non-stigmatic fails on its own
submission. Sri Rath's submission that the communication of non-
extension of employment does not amount to stigmatic termination found
to be contrary to its own argument.
(vi) Petitioner as appears, left his previous job in the Choudwar
Municipality on his getting selected by the University in a regularly
// 28 //
selection process with all his future hopes and if the same is not extended,
he will surely be nowhere. On the own submission of the University the
Petitioner undisputedly was against in the post of Asst. Finance Officer,
on declining to extend the service of the Petitioner vide Annexure-6 it
attempted to fill up the post by way of advertisement. On failure of it in
such attempt the University resolved without the signature of five
available board members including even the Chair of the Meeting
resolved to bring a person in the post of Finance Officer and certainly not
in the post of Asst. Finance Officer presumably post of Asst. Finance
Officer is lying vacant as of now and thus there is no difficulty in taking
back the Petitioner even without disturbing the Finance Officer who again
has come on deputation and to serve maximum for three years.
(vii) This Court here declines to accept the contention of Mr.P.K.Rath,
learned counsel for the NLUO that the Petitioner becomes unfit to
continue in service in the NLUO for attempting to file some official
documents in his possession through the Writ Petition for his personal
gain and since the Petitioner misconducted under the provision of the
Official Secrets Act. For the nature of order already involved the
Petitioner, this Court finds, none of the documents till Annexure-6 exhibit
the above reason, in absence of which this Court is unable to appreciate
the stand taken by the NLUO, particularly in the matter of misconduct
// 29 //
under the provision of the Official Secrets Act. Further in the event the
Petitioner had misconducted in any manner, during his continuance
nothing prevented the NLUO to proceed against the Petitioner
accordingly, in absence of which the above stand of the University
remains unacceptable.
(viii) Taking into account the submission of both the learned counsel on
the aspect of claim of the Petitioner on one hand that since there is stigma
and there ought to be compliance of natural justice, accordingly non-
extension of services of the Petitioner in absence of compliance of natural
justice remains unjustified and the counter contentions of Mr.P.K.Rath,
learned counsel for the NLUO that once there is a contractual service for
specific period, the service of such employee comes to an end on expiry
of such period, this Court here finds, for the conditions at Clauses-1, 2, 4
& 6, further there is repeated extension of service of the Petitioner in the
event there was no requirement of continuation of the Petitioner, there
ought to have been compliance of Clause-6 of the terms and conditions at
Annexure-6. The post held by the Petitioner is still lying vacant. This
itself shows, there is no abandonment of such post even.
(ix) Considering the submission of Er.Mohanty, learned counsel for the
Petitioner in reference to Annexure-15, particularly the University in the
previous instance had regularized a number of temporary service holders
// 30 //
based on Agenda No.7 therein and the opposition of Mr.P.K.Rath,
learned counsel for the NLUO that the Agenda referred to in Annexure-
15 confined to the persons named therein has no place to be considered in
the case of the Petitioner, this Court finds, it may be true that as per
Agenda No.7 the University took decision to regularize about thirty
persons in two phases those who have completed their services
unblemished for two years, such a principle could have been applied in
the case of the Petitioner, since the Petitioner here has already completed
an unblemished service of more than three years and the Petitioner has a
reasonable expectation here. Further it also makes it clear that the
University in the guise of no permanent service conditions on its own
employee, is applying different standards in case of different employees
which cannot get approval of law. Once you set a principle that should be
followed till it is replaced only by a better principle, if any.
The attitude of the University in the circumstance makes it clear
that the University applies different principles in case of different
employees, which ought to be prohibited.
(x) It is surprise to note that such an important University does not
have a codified service condition, being an University of International
rapport it cannot apply different conditions at different point of time and
there should be immediate attempt to have rule and/or regulation to
// 31 //
regulate the field of engagements. For the University of this nature
building career of the Lawyers in an attempt to strengthen the Judicial
Institutions, Law Universities should set up exemplary principles and not
to indulge in diluting tactics and working on hand made rules as already
disclosed here that two offer of appointments involving non-teaching
staffs vide Annexure-4 and Annexure-C/6 involved here even does not
have similarity.
(xi) The Opposite Party Nos.5 to 7 in filing counter affidavit claimed
that the order at Annexure-6 is a non-stigmatic one, but however in
paragraph no.24 of their counter affidavit have assigned the reason of not
extending the services of the Petitioner with an intention to manage the
accounts work of the University through a Finance Officer from the
Central Government / State University or the State Government. This
Court here finds, the Opposite Parties have made it clear to find the
Petitioner unsuitable or else neither there was any question to pick up a
person on deputation basis from Central Government / State University or
the State Government nor there was any requirement in getting a
resolution through the Executive Council of the National Law University
(Odisha), further there was also no necessity for going for fresh
recruitment as clearly admitted by the University taking place before
requisitioning the State to provide a person on deputation. It is, at this
// 32 //
stage of the matter, this Court vetting through Annexure-B/6(series) find
place at serial at page 193 of the brief involving a minutes of the 29th
meeting of the Executive Council held on August 31, 2019, finds, the
agenda at item No.3(d) of the resolution reads as follows :-
Sl. No. Agenda Items Remarks
1. xx xx
2. xx xx
3. Items for consideration of Executive
Council
(a) xx xx
(b) xx xx
(c) xx xx
(d) Advertisement for Appointment of The Council
Registrar and Finance Officer Noted the
Advertisement
issued for the post
of Registrar and
Finance Officer
and requested the
Vice - Chancellor
to complete the
appointment
process at the
earliest.
// 33 //
Here it clearly appears, the agenda meant for filling of the post of
Finance Officer and certainly not Asst. Finance Officer. It is not known
what was the necessity of taking out the services of the Asst. Finance
Officer. The University's relying on such minutes since involve
appointment of the Finance Officer, has no relevancy to the case at hand.
Similarly the agenda at Sl.No.5 of the minutes of the meeting dated
26th June, 2020 reads as follows:-
Sl. No. Agenda Items Resolutions
1. xx xx
2. xx xx
3. xx xx
4. xx Xx
5. Any other Item with the The Vice-Chancellor informed the
permission of the Chair council that NLU Odisha is
ranked 9th among NLUs and 14th
Place in Law Schools of India
ranking in the National
Institutional Ranking
Framework (NIRF), MHRD,
Government of India.
The Council appreciated the
collective efforts of the VC,
Faculty, Students and Staff.
2. The Advocate General raised
// 34 //
the issue of appointment of a
Regular Registrar and Finance
Officer of the University as no
one found suitable in the last
selection process.
The Council resolved that as far as
office of the Registrar is
concerned, a person from
academic will be more suited.
Therefore, a faculty member from
the University may discharge the
function of the Registrar.
Regarding Finance Officer, the
Council resolved that University
will write letter to Government so
that a Finance Officer from a
Central / State University or State
Government may be appointed on
deputation basis.
Here this Court finds, requisition is again for the post of Finance
Officer and not Asst. Finance Officer and such agenda came under any
other item in course of meeting itself.
9. This Court here finds, even though this meeting was attended by 10
respective invitees and Hon'ble Chair as clearly borne from page 200 of
the brief, there was no signature of five attendees including the Hon'ble
// 35 //
Chair in the meeting. There arises a serious doubt in the validity of such
resolution, as a consequence also in the consequential appointment of the
Finance Officer on deputation basis. Above clearly establishes, there is no
agenda and resolution in the eye of law. This observation, however,
confines as against the claim of the University that there is valid
replacement on non-extension of service of the Petitioner. It is made clear
that the Petitioner was holding the post of Asst. Finance Officer whereas
the Post filled on deputation basis is Finance Officer. These Opposite
Parties even though filed the resolution supporting their claim and
correspondences requesting the competent authority for deputing a
person, but however, there is no document to establish that if name of any
such person has been recommended for being appointed under deputation
basis, even there is no pleading to this effect except these Opposite
Parties claimed that the person so engaged is on deputation basis. This
Court again finds through paragraph no.26 of the counter affidavit that
the decision of the competent authority was for a larger interest of the
University. It is difficult to appreciate, what is that larger interest in not
continuing with the Petitioner and in such event the ouster of the
Petitioner certainly a stigmatic. Such communication without compliance
of natural justice is not maintainable.
// 36 //
10. This Court considering the decisions available and going through
the same finds as follows:-
In the case between Manish Gupta & Anr. Etc. Versus President,
Jan Bhagidari Samiti and others Etc. Etc. involving Civil Appeal
Nos.3084-3088 of 2022 the Hon'ble apex Court taking into account the
nature of appoint and that too selection based on duly constituted
selection process and on the proposition one ad.hoc employee cannot be
replaced by another ad.hoc employee even though appointment was for a
specific period and through para 12 and 13 held as follows:-
"12. A perusal of the advertisement dated 24th June,
2016 issued by the Principal, Government Kamla Raja Girls
Post Graduate Autonomous College, Gwalior, which is at
Annexure P-2 of the Appeal Paper Book and the advertisement
dated 2nd July, 2016 issued by the Principal, SMS Government
Model Science College, Gwalior, M.P., which is at Annexure
P-3 of the Appeal Paper Book, would show that the
appointments were to be made after the candidates had gone
through due selection procedure. Though Shri Nataraj, learned
ASG has strenuously urged that the appointments of the
appellants were as guest lecturers and not as ad hoc
employees, from the nature of the advertisements, it could
clearly be seen that the appellants were appointed on ad hoc
basis. It is a settled principle of law that an ad hoc employee
cannot be replaced by another ad hoc employee and he can be
replaced only by another candidate who is regularly appointed
by following a regular procedure prescribed. Reliance in this
respect can be placed on the judgment of this Court in
the case of Rattan Lal and others vs. State of Haryana and
others and on the order of this Court in the case of
Hargurpratap Singh vs. State of Punjab and others.
13. In that view of the matter, we do not find that an error
was committed by the learned single judge of the High Court
by directing the writ petitioners to continue to work
// 37 //
on their respective posts till regular selections are made. We,
however, find that the direction issued by the learned single
judge of the High Court that the writ petitioners would be
entitled to get the salary in accordance with the UGC circular
is not sustainable. The advertisements themselves clearly
provided that the selected candidates would be paid
the honorarium to be determined by the said Committee."
This Court finds, above decisions squarely fits to the case of the
Petitioner who has been substituted by a deputationist as per the claim of
the contesting Opposite Parties.
11. In the case between Satwati Deswal Versus State of Hariyana
reported in (2010) 1 SCC 126 the Hon'ble apex Court dealing with both
the points as to maintainability of the writ petition for having the
provision of appeal and also if there can be termination of an employee
without following process of natural justice through paragraph nos.3 to 7
has come to hold as follows :-
"3. In our view, this appeal must succeed on a very short point.
Before we take up the ground on which this appeal should be
allowed, we may state the relevant facts leading to the filing of this
appeal, which are as follows: the appellant [MA, BEd, MSc
(Computer)] was appointed as a lecturer in 2003 in a recognised
school in the State of Haryana and was subsequently promoted to
the post of Principal on account of her seniority. Her appointment
and promotion were duly approved by the authorities concerned,
but by a non-speaking and unreasoned order dated 11-9-2006, her
services were terminated by the Manager of the School, namely,
Respondent 5 herein.
4. Admittedly, in this case no show-cause notice was issued to her
nor was the order of termination passed by initiating any
departmental proceeding after giving opportunity of hearing to the
appellant. This order of termination was challenged by the
appellant by way of a writ petition before the High Court, which
// 38 //
was dismissed by it on the ground that the appellant had an
alternative remedy to file an appeal under the rules before the
appellate authority against the order of termination.
5. In our view, the High Court had fallen in grave error in rejecting
the writ petition on the aforesaid ground. First, such an order of
termination was passed without issuing any show-cause notice to
the appellant and without initiating any disciplinary proceedings by
the authorities and without affording any opportunity of hearing. It
is well settled that a writ petition can be held to be maintainable
even if an alternative remedy is available to an aggrieved party
where the court or the tribunal lacks inherent jurisdiction or for
enforcement of a fundamental right; or if there had been a violation
of a principle of natural justice; or where vires of the Act were in
question.
6. The aforesaid exceptions recognised by this Court were taken
note of by this Court in Collector of Customs v. Ramchand Sobhraj
Wadhwani [AIR 1961 SC 1506] in which the Constitution Bench
laid down the principles of the above exceptions when writ
application could be entertained even if an alternative remedy was
available to an aggrieved party. The same view was expressed by
this Court in L.K. Verma v. HMT Ltd. [(2006) 2 SCC 269 : 2006
SCC (L&S) 278 : AIR 2006 SC 975] and M.P. State Agro
Industries Development Corpn. Ltd. v. Jahan Khan [(2007) 10 SCC
88 : (2008) 1 SCC (L&S) 9 : AIR 2007 SC 3153] .
7. Such being the position and in view of the admitted fact in this
case that before termination of the services of the appellant, no
disciplinary proceeding was initiated nor was any opportunity of
hearing given to the appellant. It is clear from the record that the
order of termination was passed without initiating any disciplinary
proceedings and without affording any opportunity of hearing to
the appellant. In that view of the matter, we are of the view that the
writ petition was maintainable in law and the High Court was in
error in holding that in view of availability of alternative remedy to
challenge the order of termination, the writ petition was not
maintainable in law."
12. In the oldest decision of the Hon'ble apex Court in the case of
State of Haryana and others Versus Piara Singh and others reported in
(1992) 4 SCC 118 the Hon'ble apex Court dealing with the proposition of
// 39 //
an ad.hoc or temporary employee should not be replaced by another
ad.hoc or temporary employee and such person must be replaced only by
a regularly selected employee in para 46 the apex Court came to observe
as follows:-
"46. Secondly, an ad hoc or temporary employee should not be
replaced by another ad hoc or temporary employee; he must be
replaced only by a regularly selected employee. This is necessary to
avoid arbitrary action on the part of the appointing authority."
Similarly on the issue of regularization of temporary employee
when continued for long period the Hon'ble apex Court through para 36
& 49 in the same judgment came to observe as follows:-
"36. The High Court has also directed that all those employees who
fall within the definition of 'workmen' contained in the Industrial
Disputes Act will also be entitled to regularisation on par with the
work-charged employees in whose case it is directed that they should be
regularised on completing five years of service in Punjab and four years
of service in Haryana. This direction is given in favour of those casual
labour and daily wagers who fall within the definition of workmen.
Insofar as work-charged employees, daily wage workers and casual
labourers who do not fall within the definition of workmen are
concerned, the High Court had directed their regularisation on
completion of one year's service. We find this direction as untenable as
the direction in the case of ad hoc/temporary employees. Insofar as the
persons belonging to the above categories and who fall within the
definition of workmen are concerned, the terms in which the direction
has been given by the High Court cannot be sustained. While we agree
that persons belonging to these categories continuing over a number of
years have a right to claim regularisation and the authorities are under
an obligation to consider their case for regularisation in a fair manner,
keeping in view the principles enunciated by this Court, the blanket
direction given cannot be sustained. We need not, however, pursue this
discussion in view of the orders of the Government of Haryana
contained in the letter dated April 6, 1990 which provide for
regularisation of these persons on completion of ten years. We shall
presently notice the contents of the said letter. In view of the same, no
further directions are called for at this stage. The Government of
Punjab, of course, does not appear to have issued any such orders
governing these categories. Accordingly, there shall be a direction to
the Government of Punjab to verify the vacancy position in the
// 40 //
categories of daily wagers and casual labour and frame a scheme of
absorption in a fair and just manner providing for regularisation of these
persons, having regard to their length of service and other relevant
conditions. As many persons as possible shall be absorbed. The scheme
shall be framed within six months from today.
49. If for any reason, an ad hoc or temporary employee is continued for
a fairly long spell, the authorities must consider his case for
regularisation provided he is eligible and qualified according to the
rules and his service record is satisfactory and his appointment does not
run counter to the reservation policy of the State."
13. Coming back to the case at hand this Court here finds, there is no
dispute that the Petitioner got his selection through a selection process
involving an advertisement and continued for nearly four years before he
was not granted with extension. On its own submission of the University
after order not granting extension of services of the Petitioner it went for
recruitment of Finance Officer and their failure in such attempt it has
decided to bring a person on deputation to hold post of Finance Officer
that too for three years again a temporary filing up post, this Court here
finds, there is in fact no filling of the post of Asst. Finance Officer and
even assuming that the University managed the said post through Finance
Officer not only both the posts are different but the reengagement again
by way of temporary filling up and in the circumstance above decision
squarely applies to the case of the Petitioner.
14. In the case of Hargurpratap Singh Versus State of Punjab and
others as reported in (2007) 13 SCC 292 dealing again with a case there
cannot be substitution of an ad.hoc employee by way of another ad.hoc
// 41 //
employee through paragraph 3 the Hon'ble apex Court came to observe
as follows:-
"3. We have carefully looked into the judgment of the High Court
and other pleadings that have been put forth before this Court. It is clear
that though the appellants may not be entitled to regular appointment as
such it cannot be said that they will not be entitled to the minimum of
the pay scale nor that they should not be continued till regular
incumbents are appointed. The course adopted by the High Court is to
displace one ad hoc arrangement by another ad hoc arrangement which
is not at all appropriate for these persons who have gained experience
which will be more beneficial and useful to the colleges concerned
rather than to appoint persons afresh on ad hoc basis. Therefore, we set
aside the orders made by the High Court to the extent the same deny the
claim of the appellants of minimum pay scale and continuation in
service till regular incumbents are appointed. We direct that they shall
be continued in service till regular appointments are made on minimum
of the pay scale. The appeals shall stand allowed in part accordingly."
15. This Court here takes into account the decisions cited by Sri Rath,
learned counsel appearing for the University and observe as follows:-
In the case of Management of the Barara Co-operative
Marketing-cum-processing Society Ltd. Versus Workman Pratap Singh
reported in 2019(2) SCC 743, this Court finds, it is a case of Workers
claiming to have been retrenchment illegally and benefit of Section 25 H
vis-à-vis regularization and has no application to the case at hand. Further
the Petitioner since is not pressing the issue of regularization for his
presently out of service and keeps such issue to be raised in future in the
event there is such necessity, this Court finds, this decision has no
application at all. The other decision cited by the University in the case
between The State of Rajasthan & Ors. Versus Dayalal and others
// 42 //
reported in (2011) 2 SCC 429 here is a case deals with claim of
regularization by a set of employees even not recruited in regular process
by the Govt. and requiring the Hon'ble apex Court setting further
compliance of condition in such contingency, the case at hand does not
involve such contingency as the claim is made by a person selected in a
duly recruited process based on advertisement and entering into a fair
competition. Thus decision does not fit to the case at hand. The third
decision is in a case between the Union of India & Ors. Versus N.
Murugesan and others reported in (2022) 2 SCC 25 this is a case
involving purely contractual employment for five years, a tenure
appointment and after end of tenure employee claim for extension and
also regularization which did not come out of the advertisement. But in
the case at hand there was appointment initially for one year but not only
there was extension, there was even scope for extension and / or
continuation as in the same advertisement several have been regularized
in the meantime.
16. The 4th case the Opposite Parties relied on is in the case of
Secretary, the State of Karnataka and others Versus Umadevi and other
as reported in (2006) 4 SCC 44, this is purely a case involving claim of
regularization of persons involving backdoor engagements and has no
// 43 //
application to the case at hand at all considering the case at hand does not
involve a case of backdoor employee.
17. In the above background of the case and legal position on the
subject narrated herein above, this Court has no hesitation to declare the
impugned order vide Annexure-6 remains bad in the eye of law. As a
consequence while setting aside the order at Annexure-6, this Court
directs the University to treat the Petitioner deemed to be continuing in
the post of Assistant Finance Officer in his service uninterrupted. For
there is no clarity even during course of hearing on the status of the
Petitioner after the order vide Annexure-6 is passed, this Court makes the
Petitioner entitled to 50% of his drawing taking into account his last pay
drawn towards back wages, which be counted and paid to the Petitioner at
least within a period of one month. For illegal taking out the services of
the Petitioner, the Petitioner shall also be entitled to interest on back
wages at least at the rate of 5% per annum all through. If back wages and
interest together are not paid to the Petitioner within a period of one
month of this judgment, he shall be entitled to interest at the rate of 8%
per annum from the date of expiry of one month of the judgment till it is
released in favour of the Petitioner.
// 44 //
18. The writ petition succeeds, but in the circumstances, there is no
order as to costs.
...............................
(Biswanath Rath, J.)
Orissa High Court, Cuttack.
The 10th May, 2022/ /MKR, A.R.-cum-Sr.Secy.
A. Jena, Sr. Stenographer
