Pramod Kumar Sahoo vs State Of Odisha And Ors
2022 Latest Caselaw 4711 Ori

    IN THE HIGH COURT OF ORISSA AT CUTTACK
          WPC (OA) Nos.1191 and 1190 of 2001


In WPC (OA) No.1191 of 2001

Pramod Kumar Sahoo                      ....           Petitioner

                           -versus-

State of Odisha and Ors.                ....        Opp. Parties



Advocates appeared in the case:
For Petitioner            :       Mr. Sachidananda Sahoo, Adv.

                           -versus-



For Opp. Parties           :          Mr. G.R. Mohapatra, AGA



In WPC (OA) No.1190 of 2001

Narendra Kathar                         ....           Petitioner
                           -versus-
State of Odisha and Ors.                ....        Opp. Parties

Advocates appeared in the case:
                          :       Mr. Sachidananda Sahoo, Adv.

                           -versus-

For Opp. Parties           :          Mr. G.R. Mohapatra, AGA




                                                       1 of 15
               CORAM:
              DR. JUSTICE S.K. PANIGRAHI

                 DATE OF HEARING:-22.08.2022
                DATE OF JUDGMENT:-14.09.2022

     Dr. S.K. Panigrahi, J.

I. Facts of the cases:

In WPC(OA) No.1191 of 2001

1. The Petitioner entered into Government service as a Peon in

the Office of the Opposite Party No.3/ Soil Conservation

Officer, Bolangir vide order No.3790 dated 14.09.1995 and

continued as such till the date of termination of his service.

While continuing in service as indicated above, like a bolt

from the blue, the Petitioner received Memo No.1779 (2)

dated 21.07.2001 issued by the Opposite Party No.3/ Soil

Conservation Officer, Bolangir whereby his services have

been terminated with effect from 21.7.2001 (AN).

2. Challenging the said order of termination, the Petitioner has

filed this Writ Petition with a prayer to quash the same and

direct the Opposite Parties that the Petitioner shall be

deemed to be continuing in service and they may be

directed to allow the Petitioners' all consequential service

and financial benefits.

2 of 15 In WPC(OA) No.1190 of 2001

3. The Petitioner entered into Government service as a Peon in

the Office of the Opposite Party No.3/ Soil Conservation

Officer, Bolangir vide order No.5026 dated 09.10.1995 and

continued as such till the date of termination of his service.

While continuing in service as indicated above, the

Petitioner's received Memo No.1779 (2) dated 21.07.2001

issued by the Opposite Party No.3/ Soil Conservation

Officer, Bolangir whereby his services have been terminated

with effect from 21.7.2001 (AN).

4. Challenging the said order of termination, the Petitioner has

filed this Writ Petition with a prayer to quash the same and

direct the Opposite Parties that the Petitioner shall be

deemed to be continuing in service and they may be

directed to allow the Petitioner all consequential service and

financial benefits.

II. Submissions advanced on behalf of the petitioner:

5. Learned counsel for the Petitioners submits that the

Petitioner in both the cases (hereinafter referred to as "the

Petitioners" for brevity) challenged the order dated

21.07.2001 issued by the Opposite Party No.3/ Soil

Conservation Officer, Bolangir whereby their services were

terminated without serving notice on them.

6. He further submitted that the Petitioners were initially

appointed as Peons on ad-hoc basis for a period of 44 days

and continued as such till their regular appointment. On

successful completion of one year service, the Petitioners

were allowed to draw annual increment of Rs.12/- in the

Scale of Pay of Rs. 750-12-870-EB-14-940 per month. On

introduction of Orissa Revised Scale of Pay Rules, 1998, the

pay of the Petitioners was fixed in revised scale with effect

from 01.01.1996. While continuing as regular Peons in the

office of Opposite Party No.3/ Soil Conservation Officer,

Bolangir, the Petitioners were transferred to the office of

Asst. Soil Conservation Officer, Patnagarh vide orders dated

30.10.1998. The Opposite Party No.3/ Soil Conservation

Officer, Bolangir has also opened the Service Books and GIS

Pass Books in the names of the Petitioners. However, while

continuing as such the services of the Petitioners were

terminated vide orders dated 21.07.2001 issued by the

Opposite Party No.3/ Soil Conservation Officer, Bolangir on

the ground that they were appointed illegally and

irregularly.

7. He further submitted that the orders of termination were

challenged on the following grounds:

(i) No notice was given prior to issuance of order of

termination.

4 of 15

(ii) Since no fraud has been practiced by the

Petitioners to get the appointment, termination of

service without asking for explanation that too at the

fag end of approaching upper age limit is highly

illegal.

(iii) As the Petitioner are regular employees, their

services cannot be terminated without following due

process of law under OCS (C.C & A) Rules, 1962.

(iv) As the Petitioners possess required educational

qualification and appointed by an order of competent

authority, their appointment cannot be termed as

illegal.

III. Submissions of the Opposite Parties

8. A reply affidavit has been filed by the Opposite Party

No.2/ Director of Soil Conservation, Odisha, Bhubaneswar

in WPC (OA) No.1190 of 2001 stating therein that the

Petitioner Narendra Kathar, an outsider was appointed vide

order dated 03.06.1995 as a Peon against leave vacancy for a

period of 28 days from 03.06.1995 to 30.06.1995 or joining of

Sri Giridhari Mahanta whichever is earlier with the

conditions that the said temporary appointment is

terminable at any time without assigning any reason

thereof. The appointment will be treated as automatically

terminated on expiry of 28 days of service. In fact, the

services of the Petitioner was also terminated on expiry of

the period vide order dated 21.07.1995 of the Opposite Party

No.3/ Soil Conservation Officer, Bolangir. The Petitioner

was further given adhoc appointment vide Order dated

03.07.1995 of the Opposite Party No.3/ Soil Conservation

Officer, Bolangir for a period of 44 days or till the post is

filled up by regular manner whichever is earlier with the

further condition that the appointment will stand

automatically terminated on expiry of 44 days. The said

appointment was terminated vide Order dated 18.08.1995 of

Opposite Party No.3/ Soil Conservation Officer, Bolangir.

The Petitioner was again given appointment by Opposite

Party No.3/ Soil Conservation Officer, Bolangir for 44 days

on adhoc basis of the same terms and conditions vide Order

dated 22.08.1995 and his services were terminated vide

order dated 04.10.1995 of Opposite Party No.3/ Soil

Conservation Officer, Bolangir. The Petitioner was further

given adhoc appointment as a Peon vide Order dated

09.10.1995 of Opposite Party No.3/ Soil Conservation

Officer, Bolangir for 44 days or till the post is filed up on

regular manner whichever is earlier. The appointment was

made with the condition that it can be terminated at any

time without assigning any reason and without issuance of

6 of 15 any notice thereof and will stand automatically terminated

on expiry of 44 days. Before completion of the said period of

44 days, the Petitioner was given appointment to work as

such until further orders vide order dated 10.11.1995 of

Opposite Party No.3/ Soil Conservation Officer, Bolangir.

9. It has further been mentioned that the vacancy in which the

Petitioner was appointed was neither notified in the local

Employment Exchange nor published in the local

Newspaper through open advertisement in compliance to

the Employment Exchanges (Compulsory Notification of

Vacancies) Act, 1959 and Employment Exchanges

(Compulsory Notification of Vacancies) Rules, 1960 and

executive orders of the Government in the matter of

employment against public posts. The appointment was

made only through pick and choose process without

conducting any interview by any Selection Committee.

Petitioners' appointment was made without following the

process. Hence, it is illegal.

10. It is further stated that the Order No.5026/SC, dated

09.10.1995 of the Opposite Party No.3/ Soil Conservation

Officer, Bolangir was an Order of Adhoc appointment of the

Petitioners' for 44 days. He was also allowed to continue as

such until further orders illegally vide order dated

10.11.1995 without following the regular recruitment

process and, therefore, the Petitioners' had no right to

continue in service. Opening of Service Book and G.I.S.

Passbook etc. are the records and outcome of service and are

never the documentary proof of regular appointment.

11. It has also been stated that in view of the pronouncement of

the Orissa Administrative Tribunal vide order dated

08.03.1999 passed in Original Application No.24 of 1999, the

order of termination dated 21.07.2001 passed by the

Opposite Party No.3/ Soil Conservation Officer, Bolangir is

not illegal and wrongful. The Petitioners' service being

illegal and wrongful as submitted above, no notice was

required as the Petitioners' had no right to continue. Show

cause notice for termination/removal from service is

required only under Rule-15 of O.C.S. (CCA) Rules, 1962 in

the matter of disciplinary action for misconduct of

Government servant.

12. It has further been stated that the directions of the

Government vide order dated 08.06.2001 of Opposite Party

No.1/ Government of Orissa, Agriculture Department and

communication letter dated 03.07.2001 of Opposite Party

No.2/ Director of Soil Conservation, Odisha, Bhubaneswar

have been issued to all Head Offices under Soil

Conservation Directorate and there is no illegality in doing

so. It is well settled in law that recruitment to public service

8 of 15 shall be governed by appropriate statutory rules and any

appointment made indiscriminately in contravention of

statutory provisions neither confers any right on the

petitioner nor can such appointee claim any equitable relief.

The order of termination passed by the Opposite Party

No.3/ Soil Conservation Officer, Bolangir is, therefore, not at

all arbitrary.

13. At this stage, learned counsel for the Petitioners brought to

the notice of the Court to the judgment of the Division

Bench of this Court and submitted that these cases are

covered by the common judgment dated 05.08.2022 passed

in the cases of W.P.(C) Nos.9335 and 23062 of 2016. The

contents of the said common judgment is quoted hereunder.

"1. The common judgment dated 7th September 2021 passed earlier dismissing these writ petitions has been recalled by a separate common order passed by this Court today in RVWPET Nos.201 and 202 of 2021 and both these writ petitions have been restored to file. They are being disposed of afresh, after hearing counsel for the parties, by this common judgment.

2. The respective Petitioners in both these writ petitions question an order dated 10th September 2015 passed by the Odisha Administrative Tribunal, Cuttack Bench (OAT) in dismissing O.A. Nos.648(C) and 696(c) of 2013 filed by them.

3. The background facts are that the Petitioners were appointed as a Field Man Demonstrator in the Office of the Soil Conservation Officer (SCO), Koraput Division by an order dated 2nd April, 1992. The said order, which

was common to the Petitioners and four others, reads as under:

"The following outsiders are appointed as Field Man Demonstrator on ad hoc basis for a period of 89 days (eighty-nine) with effect from the date they report themselves for duties in the respective offices noted against them in the time scale of pay Rs.800-15-1010-EB-20-1150/- P.M. with usual D.A. as admissible under rules. The candidate should join the post within 7 days from the date of issue of this order failing which the appointment will be treated as automatically cancelled.

The appointment is purely temporary and terminable at any time without assigning any reason thereof. This appointment will have no statutory value to claim for regular appointment either in the same post or in any other post in the Department in future."

4. Subsequently, by an order dated 20th November 1993, Ramesh Chandra Mohapatra was appointed as Junior Soil Conservation Assistant "purely on ad hoc basis for a period of 89 (eighty-nine) days in the scale of pay of Rs.950/- to 1500/- per month and all other allowances as admissible under the Rules from time to time." The usual clause that he would not have any legal claim to get a regular job in the Department by virtue of such ad hoc appointment was inserted. He was then deputed to work under the IFAD assisted Orissa Tribal Development Project, Kashipur by an order dated 23rd August 1995 in the newly created post of Junior Soil Conservation Assistant.

5. On 15th September 2000, the Agriculture Department of Government of Odisha issued an order dispensing with the services of the Petitioners and six others due to

10 of 15 the shrinkage of funds in various schemes. Consequentially, the Director of Soil Conservation, Orissa issued an order dated 20th September 2000 dispensing with the services of the Petitioners. Aggrieved by the said order of termination, the Petitioners approached the OAT in O.A. Nos.3246(C) and 3123(C) of 2000 respectively which were disposed of on 20th November 2003 with the observation that the principle of "last come first go" had not been followed. A direction was issued to the Opposite Parties to examine and reconsider the issue and take appropriate action.

6. On 5th October 2007, the Director, Soil Conservation, Orissa was directed to accommodate the Petitioners and similarly situated persons and take appropriate action as per the decision dated 15th December 2006 of the Government.

7. Meanwhile, some of the similarly placed persons approached the OAT in different O.As., which were allowed. The orders of the OAT were challenged by the State in this Court in W.P.(C) No.14678 of 2008 [against Hrudananda Panda] and W.P. (C) 12972 of 2009 [against Narayan Pattanaik] which were dismissed confirming the order of the OAT. SLP (C) [ cc Nos.11249 and 11322 of 2011] filed by the State were also dismissed by the Supreme Court on 18th July, 2011.

8. On 28th January 2013, the OAT allowed another O.A. No.918 of 2001 filed by a similarly situated person viz., Manoj Kumar Parida setting aside his termination order and directing his reinstatement on par with Hrudananda Panda. The OAT noted that Hrudananda Panda was admittedly junior to Manoj Kumar Parida. Following the decision of the OAT in O.A. No.439 of 2007 filed by Hrudananda Panda, who had already been reinstated, the OAT allowed the application of Manoj Kumar Parida. In the above orders the OAT followed the decision of the Supreme Court in State of Karnataka v. Uma Devi AIR (2006) SC 1806 and State of Karnataka v. M.L. Keshari AIR (2010) SC 1806 and of this Court in Smt.

Mira Piri v. State 2007 (II) OLR 533 on the ground that they were "irregular and not illegal recruitees".

9. In the reply filed to O.A. No.648(C) of 2013 filed by the Petitioner-Ramesh Chandra Mohapatra in the OAT seeking similar relief, the stand of the Opposite Parties was that the order of this Court dismissing the State's W.P.(C) No.14678 of 2008 [against Hrudananda Panda] by this Court and of the Supreme Court in SLP (C) [ cc Nos.11249 and 11322 of 2011] "is a specific one and it will not applicable to the cases of all retrenched/terminated employees. If they need for their reinstatement/reappointment they should have obtain the orders of the Hon'ble Court as done in case of three applicants and State respondents have no scope to interfere against such order." The Petitioner-Ramesh Chandra Mohapatra filed a rejoinder before the OAT in the said O.A. and claimed the same benefits as was given to Hrudananda Panda, Narayan Pattanaik and Suresh Kumar Sahoo, who are at Sl. Nos.26 to 28 in the gradation list. The Petitioner-Ramesh Chandra Mohapatra was at Sl. No.41.

10. The OAT in the impugned order declined the relief to the present Petitioners on the ground that the aforementioned persons were senior to the Petitioners; further that the Petitioners had not worked for ten years and it had not been shown that their appointments were against any sanctioned posts. Therefore, it was held by the OAT that the Supreme Court's judgment in State of Karnataka v. Uma Devi (supra) would not apply.

11. Correspondingly in W.P.(C) No.9335 of 2016 filed by Ramesh Chandra Mohapatra, the State has filed a reply taking the same stand viz., that the Petitioner cannot claim parity with the aforementioned employees who had been reinstated pursuant to the orders of the Supreme Court.

12. Importantly, in the rejoinder filed in W.P.(C) No.9335 of 2016, Ramesh Chandra Mohapatra has pointed out that persons junior to him have been

12 of 15 reinstated pursuant to the orders of the High Court. The order of the High Court dismissing the State's W.P. (C) 5548 of 2014 against Prahallad Sahoo has in fact been affirmed by the Supreme Court on 12th September, 2018 by the dismissal of the State's SLP (C) 32178 of 2014. The information set out in a tabular form in the rejoinder reads as under:

Sl Names        of Date        of   Date of      Date of the Apex
No. similarly      appointment      High Court's Court's order
    situated                        order
    persons
01 Prahallad Sahu 13.11.1998        16.04.2014   12.09.2018
02. Harihar Prusty 26.06.1997       30.01.2018
03. Manoj    Kumar12.09.1995        03.12.2019
    Parida

13. The orders appointing each of the above persons, the corresponding order of the OAT and that of the High Court and the Supreme Court of India have all been enclosed with the rejoinder affidavit. Specifically, in SLP (C) No.32178 of 2014 (State of Orissa v. Prahallad Sahoo), the observation of the Supreme Court in its order dated reads as under:

"xxx xxx xxx Though the appointments of the respondents were irregular as they were not sponsored by the Employment Exchange, we do not intend to interfere with the judgment of the High Court in view of the long period of service rendered by the respondents. The question of law raised in these petitions is left open. The special leave petitions are dismissed accordingly."

14. In the case of Harihar Prusty, this Court while dismissing the State's W.P. (C) 9475 of 2016 by the order dated 30th January, 2018 declined to interfere with the order dated 15th September 2015 passed by the OAT in O.A. No.2137(C) of 2001 whereby the OAT had directed his regularization. Likewise, in the case of Manoj Kumar Parida, the order of the OAT was

affirmed by this Court by an order dated 3rd December 2019 in W.P.(C) No.1366 of 2014.

15. This Court has heard the submissions of Mr. Manoranjan Mishra, learned counsel appearing for the Petitioners and Mr. P.K. Muduli, learned Additional Government Advocate for the State in both the matters.

16. Mr. Muduli is unable to dispute the fact that the aforementioned three persons viz., Prahallad Sahoo, Harihar Prusty and Manoj Kumar Parida were juniors to both the Petitioners. However, he seeks to contend that the method of recruitment of the Petitioners was different from the aforementioned three persons. Further, he submits that Prahallad Sahoo and Harihar Prusty were in the "Soil Conservation Technical Cadre" whereas Manoj Kumar Parida belonged to a different Ministerial cadre.

17. The Court has compared the appointment orders issued to Prahallad Sahoo, Harihar Prusty and the present Petitioners and it finds that they are no different. The appointment orders of Prahallad Sahoo and Harihar Prusty also refer to them as 'outsiders' and they were appointed as Field Man Demonstrator in a scale of pay. The wording of their appointment letters is no different from that of the present Petitioners. As far as the cadres are concerned, the Petitioners belong to the Soil Conservation Technical Cadre to which Prahallad Sahoo and Harihar Prusty belong. Therefore, there can be no justification for treating the present Petitioners differently. Meanwhile, as already pointed out even by the Government, another employee Subasish Sarangi who was also earlier Field Man Demonstrator has been reinstated in service pursuant to the order passed by this Court in W.P.(C) No.31174 of 2020.

18. With all these cases being identical and that the aforementioned three persons who have been reinstated being junior to the present Petitioners, there can be no justification for treating the present Petitioners differently.

14 of 15

19. Consequently, both these writ petitions are allowed. The orders dated 20th September, 2000 dispensing with the services of the present two Petitioners are hereby set aside. The impugned order of the OAT is also set aside. The Petitioners are directed to be reinstated in service. Necessary orders be issued by the concerned authorities within a period of eight weeks."

14. From the aforesaid judgment it is apparent that the issues

involved in the present cases are similar to the above quoted

judgment. Learned counsel for the State also conceded that

the present cases are similar to the above-mentioned

common judgment passed by the Division Bench of this

Court.

15. Therefore, in the light of the above quoted common

judgment passed by the Division Bench of this Court, both

the present Writ Petitions are disposed of.

( Dr. S.K. Panigrahi ) Judge

Orissa High Court, Cuttack, Dated the 14th of September , 2022/B. Jhankar