Afr vs Registrar (Judicial)
2022 Latest Caselaw 5190 Ori

                     ORISSA HIGH COURT: CUTTACK


                           W.P. (C) NO. 7451 OF 2022

          In the matter of an application under Article 226 of the
          Constitution of India.
                                 ---------------

AFR Jyotiranjan Pradhan ..... Petitioner

-Versus-

          Registrar (Judicial),             .....                   Opp. Parties
          Orissa High Court
          and another


            For Petitioner      :    Mr. Mohit Agarwal,
                                     Advocate

            For Opp. Parties :       Mr. S.S. Kanungo,
                                     Addl. Govt. Advocate


          P R E S E N T:

THE HONOURABLE DR. JUSTICE B.R.SARANGI AND HONOURABLE MR. JUSTICE G. SATAPATHY

Date of hearing and judgment: 28.09.2022

DR. B.R. SARANGI, J. By means of this writ petition, the

petitioner seeks to quash the order dated 07.01.2020

passed by opposite party no.2 under Annexure-2 // 2 //

terminating his service, and to issue direction to the

opposite parties to reinstate him in service in terms of the

appointment order dated 20.12.2019 under Annexure-1,

within a stipulated time.

2. The factual matrix of the case, in a nutshell, is

that the petitioner was appointed on 01.12.2017 as a

Contractual Computer Engineer in the High Court of

Orissa through an Outsourcing Agency, namely, SISL

Infotech Pvt. Ltd. The petitioner was discharging his

duties with due diligence and providing service in

networking, software and hardware maintenance and all

other IT related works, as were being assigned to him by

the administration of the High Court of Orissa. On the

basis of his long standing experience and overall domain

knowledge of the High Court, on 19.12.2019, he applied

for the post of System Analyst in the High Court of Orissa,

which was lying vacant since long. On consideration of

the same, he was appointed in the post of System Analyst,

vide office order dated 20.12.2019 under Annexure-1, in // 3 //

which it was stipulated that the appointment was subject

to verification of all the certificates along with his

character and antecedents in the manner prescribed by

the Government and in case his certificates, character

and antecedents were not found correct/satisfactory, he

would be removed from Government service immediately

without any notice. In terms of such order of

appointment, the petitioner was to remain in probation for

a period of two years from the date of his joining the

service, and that the appointment was purely temporary

and terminable at any time for good and sufficient

reasons to be recorded in writing during the period of

probation, without prior notice, including extension of

such period. Pursuant to the said appointment order

dated 20.12.2019, the petitioner submitted his joining

report. While he was continuing in service, on

07.01.2020, opposite party no.2 communicated a letter of

termination to the petitioner under Annexure-2. Even

though the petitioner submitted representation, the same

was rejected vide order dated 10.02.2020. Thereafter, // 4 //

though the petitioner filed representations on 04.05.2020

and 03.07.2021 before the Hon'ble the Chief Justice, but

the same were not acceded to. Therefore, the petitioner

has approached this Court by filing the present writ

petition.

3. Mr. Mohit Agarwal, learned counsel for the

petitioner contended that the order of termination in

Annexure-2 dated 07.01.2020 having been passed without

assigning any reason, the same has to be quashed. It is

further contended that the reasons, which have been

assigned subsequently by way of filing counter affidavit,

cannot sustain in the eye of law. Consequentially, he

seeks for quashing of the order impugned.

4. Mr. S.S. Kanungo, learned Addl. Government

Advocate appearing for the opposite parties contended

that since appointment of the petitioner was made

irregularly, meaning thereby, no advertisement was issued

for filling up of the post of System Analyst in the Court's

establishment, question of applying for the post does not // 5 //

arise. It is further contended that upon consideration of

the representation dated 19.12.2019 filed by the

petitioner, the Hon'ble the Chief Justice was pleased to

appoint the petitioner provisionally against the permanent

post of System Analyst of the Court on relaxation of the

process of direct recruitment. Therefore, appointment

order dated 20.12.2019 was issued vide Annexure-1.

Consequentially, the petitioner joined in the Court's

Establishment on 23.12.2019. But as per the provisions

contained in Orissa High Court (Appointment of Staff and

Conditions of Service) Rules, 2019, eligibility criteria for

System Analyst are B.E./B.Tech. Degree in Computer

Science/I.T. or M.C.A. or M.Sc. Degree in Computer

Science with first class or equivalent position from a

recognized University/Institution having minimum three

years of experience in Programming/Software

Development. The said post was to be filled up by way of

direct recruitment. But the petitioner was never appointed

through the process of direct recruitment. As a

consequence thereof, the petitioner was terminated by the // 6 //

competent authority. Therefore, no illegality or irregularity

has been committed by the authority. More so, the

petitioner was engaged through NICSI's empanelled

vendor SISL Infotech Pvt. Ltd. and he could not show any

performance with relation to software development and/or

programming as System Analyst. Thereby, action was

taken by terminating his services, as the appointment of

the petitioner was totally illegal and irregular.

Consequentially, he seeks for dismissal of the writ

petition.

5. This Court heard Mr. Mohit Agarwal, learned

counsel appearing for the petitioner and Mr. S.S.

Kanungo, learned Addl. Government Advocate appearing

for the State-opposite parties by virtual mode and perused

the records. Pleadings having been exchanged between the

parties, with the consent of learned counsel for the parties

this writ petition is being disposed of finally at the stage of

admission.

// 7 //

6. Admittedly, the petitioner was appointed

through an Outsourcing Agency, viz., SISL Infotech Pvt.

Ltd., which is an empanelled agency of NICSI's. As such,

without following due procedure, pursuant to the

representation filed by him on 19.12.2019, he was

appointed on 20.12.2019. The appointment order is very

clear, which reads as thus:-

He shall remain in probation for a period of 2(two) years from the date of his joining the service. His service is subject to the following terms and conditions.

The appointment is purely temporary and terminable at any time for good and sufficient reasons to be recorded in writing during the period of probation without prior notice including extension of such period.

xxx xxx xxx

The appointment is subject to verification of all the certificates along with his character and antecedents in the manner prescribed by the Government. In case his certificates, character and antecedents are not found correct/satisfactory, he will be removed from Government service immediately without any notice.

7. In view of the aforesaid conditions stipulated in

the order of appointment, the petitioner was to remain in // 8 //

probation for a period of two years from the date of his

joining in the service and his appointment was purely

temporary and terminable at any time for good and

sufficient reasons to be recorded in writing during the

period of probation without prior notice including

extension of such period. Thereby, the terms and

conditions of the appointment are very clear that if the

opposite parties intend to terminate the service of the

petitioner, they can do so for good and sufficient reasons

to be recorded in writing during the period of probation.

Further, his appointment was subject to verification of all

the certificates along with his character and antecedents

in the manner prescribed by the Government and in case

his certificates, character and antecedents were not found

correct/satisfactory, he was to be removed from

government service immediately without any notice. The

above being the terms and conditions of appointment of

the petitioner set out in the order of appointment dated

20.12.2019, if any action is taken for termination of his

service, even during the period of his probation which was // 9 //

for two years, as per requirements of Clause-1 of the order

of appointment, good and sufficient reasons are to be

recorded in writing. But while issuing the impugned order

of termination dated 07.01.2020, ex facie no reasons have

been assigned and it is only stated that provisional

appointment of the petitioner temporarily officiating as

System Analyst is terminated with immediate effect.

Thereby, the impugned order of termination so passed by

the authority without assigning any reason, is not in

accordance with Clause-1 of the order of appointment

dated 20.12.2019.

8. It is of relevance to note that time and again

the apex Court as well as this Court in catena of decisions

have held that reasons being a necessary concomitant to

passing an order, the authority can thus discharge his

duty in a meaningful manner either by furnishing the

same expressly or by necessary reference.

// 10 //

9. It is at this juncture worthwhile to note, "Nihil

quod est contra rationem est licitum" means as

follows:

"nothing is permitted which is contrary to reason. It is the life of the law. Law is nothing but experience developed by reason and applied continually to further experience. What is inconsistent with and contrary to reason is not permitted in law and reason alone can make the laws obligatory and lasting."

Therefore, recording of reasons is also an assurance that

the authority concerned applied its mind to the facts on

record. It is pertinent to note that a decision is apt to be

better if the reasons for it are set out in writing because

the reasons are then more likely to have been properly

thought out. It is vital for the purpose of showing a

person that he is receiving justice.

In Re: Racal Communications Ltd. (1980)2

All ER 634 (HL), it has been held that the giving of

reasons facilitates the detection of errors of law by the

court.

// 11 //

In Padfield v. Minister of Agriculture,

Fisheries and Food (1968) 1 All E.R. 694, it has been

held that a failure to give reasons may permit the Court to

infer that the decision was reached by the reasons of an

error in law.

10. In Travancore Rayons Ltd. V. The Union of

India, AIR 1971 SC 862, the apex Court observed that

the necessity to give sufficient reasons, which disclose

proper appreciation of the problem to be solved, and the

mental process by which the conclusion is reached in

cases where a non-judicial authority exercises judicial

functions is obvious. When judicial power is exercised by

an authority normally performing executive or

administrative functions, the Court would require to be

satisfied that the decision has been reached after due

consideration of the merits of the dispute, uninfluenced

by extraneous considerations of policy or expediency. The

Court insists upon disclosure of reasons in support of the

order on two grounds; one that the party aggrieved in a // 12 //

proceeding before the Court has the opportunity to

demonstrate that the reasons which persuaded the

Authority to reject his case were erroneous; and the other,

that the obligation to record reasons operates as a

deterrent against possible arbitrary action by the

Executive Authority invested with the judicial power.

11. In S.N. Mukherjee v. Union of India (1990) 4

SCC 594, the apex Court held that keeping in view the

expanding horizon of principles of natural justice, the

requirement to record reasons can be regarded as one of

the principles of natural justice, which governs exercise of

power by administrative authorities. Except in cases

where the requirement has been dispensed with expressly

or by necessary implication, an administrative authority is

required to record reasons for its decision.

12. In Menaka Gandhi v. Union of India, AIR

1978 SC 597, the apex Court observed that the reasons, if

disclosed, being open to judicial scrutiny for ascertaining

their nexus with the order, the refusal to disclose the // 13 //

reasons would equally be open to the scrutiny of the

Court; or else, the wholesome power of a dispassionate

judicial examination of executive orders could with

impunity be set at naught by an obdurate determination

to suppress the reasons.

13. In Union of India v. Mohan Lal Capoor, AIR

1974 SC 87, it has been held that reasons are the links

between the materials on which certain conclusions are

based and the actual conclusions. They disclose how the

mind is applied to the subject-matter for a decision

whether it is purely administrative or quasi-judicial and

reveal a rational nexus between the facts considered and

conclusions reached. The reasons assure an inbuilt

support to the conclusion and decision reached.

Recording of reasons is also an assurance that the

authority concerned applied its mind to the facts on

record. It is vital for the purpose of showing a person that

he is receiving justice.

// 14 //

Similar view has also been taken by the apex Court

in Uma Charan v. State of Madhya Pradesh, AIR 1981

SC 1915.

This Court has also taken similar view in

Patitapaban Pala v. Orissa Forest Development

Corporation Ltd. & another, 2017 (I) OLR 5 and in

Banambar Parida v. Orissa Forest Development

Corporation Limited, 2017 (I) OLR 625.

14. May it be noted that to regulate the service

conditions of the employees of the Orissa High Court, the

High Court of Orissa (Appointment of Staff and

Conditions of Service) Rules, 2019 have been framed. As

such, eligibility criteria for System Analyst are

B.E./B.Tech. Degree in Computer Science/I.T. or M.C.A.

or M.Sc. Degree in Computer Science with first class or

equivalent position from a recognized

University/Institution having minimum three years of

experience in Programming/ Software Development. The

said post shall be filled up by way of direct recruitment // 15 //

and for that purpose advertisement has to be issued

inviting applications from the eligible candidates. In the

present case, no such advertisement was issued and, as

such, only on consideration of representation dated

19.12.2019, the petitioner was issued with order of

appointment dated 20.12.2019. Thereby, the order of

appointment so issued in favour of the petitioner was

contrary to the rules applicable for filling up of the post of

System Analyst and on that basis the petitioner cannot

claim that he has a right to continue in the post itself.

15. True it is, the impugned order of termination

does not contain any reason, much less the good and

sufficient reasons, as required under Clause-1 of the

order of the appointment under Annexure-1. But the

reasons for terminating the service of the petitioner have

been indicated in the counter affidavit filed on behalf of

the opposite parties at paragraphs-4 and 5, which are

extracted hereunder:-

"4. That, in reply to the averments made in Paragraphs-1 to 6 of the Writ petition, it is // 16 //

submitted that no advertisement was issued for filling up one post of System Analyst in the Court's Establishment. Since no advertisement was ever issued for filling up one Post of System Analyst, question of applying for the Post Pursuant to Advertisement does not arise.

The Petitioner had not applied for the same.

However, upon consideration of the representation dtd. 19.12.2019 filed by the petitioner (Annexure- A), Hon'ble the then Chief Justice was pleased to appoint the petitioner - Shri Jyoti Ranjan Pradhan provisionally in the permanent post of System Analyst of the Court on relaxation of the process of direct recruitment. Accordingly, the Appointment Order / Office Order dtd. 20.12.2019 was issued vide Annexure-1 to the Writ Petition. The Petitioner joined as System Analyst on 23.12.2019 in the Court's Establishment. It is reiterated that neither any advertisement was issued for filling up the Post of System Analyst nor the Petitioner applied pursuant to any advertisement nor any selection process was conducted for filling up the one Post of System Analyst.

5. That, in reply to the averments made in Paragraphs - 7 to 17 of the Writ Petition, it is submitted that as per the High Court of Orissa (Appointment of Staff and Conditions of Service) Rules, 2019, the eligibility criteria for System Analyst is B.E./B.TECH . Degree in Computer Science / I.T. or M.C.A. or M. Sc Degree in Computer Science with first class or equivalent position from a recognized University/Institution having minimum three (3) years of experience in Programming /Software Development . The said post shall be filled up by way of direct recruitment. But in the present case, the petitioner was never appointed through the process of direct recruitment. So his appointment from the very beginning was not in // 17 //

accordance with law, more particularly in tune with the requirements of Articles 14 & 16 of the Constitution of India."

16. The reasons assigned in the counter affidavit

filed by the opposite parties cannot be taken into

consideration, as the order of termination dated

07.01.2020 does not indicate any such reasons. Law is

well settled that while passing the order the statutory

authority should discharge its duty in a meaningful

manner by assigning reasons.

17. We may here draw attention to the observations

of Bose J. in Gordhandas Bhanji, AIR 1952 SC 16 (at

page. 18):

"Public orders publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the acting and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself."

18. The Constitution Bench of the apex Court in

Mohinder Singh Gill v. The Chief Election // 18 //

Commissioner, New Delhi, AIR 1978 SC 851, the apex

Court held :

" ...... when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out.

Orders are not like old wine becoming better as they grow old."

Since there is non-compliance of provisions as laid down

by the apex Court as well as this Court by not assigning

reasons, there is non-compliance of principles of natural

justice. Thereby, the order dated 07.01.2020 passed by

the authority under Annexure-2 cannot be sustained in

the eye of law.

19. By assigning reasons in the counter affidavit,

when the same are not embedded in the impugned order

of termination, no purpose has been served in the eye of

law. Therefore, this Court is of the considered view that

the order of termination dated 07.01.2020 passed by the // 19 //

authority in Annexure-2 cannot sustain in the eye of law

and the same is liable to be quashed and is hereby

quashed. The matter is remitted back to the opposite

party-authority to pass a reasoned and speaking order in

accordance with law by affording opportunity of hearing to

the petitioner, as expeditiously as possible, preferably

within a period of four months from the date of

production of certified copy of this judgment. In

connection with the above, the petitioner is directed to

cooperate with the opposite parties.

20. With the above observation and direction, the

writ petition stands disposed of. However, there shall be

no order as to costs.

..............................

                                           DR. B.R. SARANGI,
                                                JUDGE

G. SATAPATHY, J.    I agree.

                                           ..............................
                                             G. SATAPATHY,
                                               JUDGE

          Orissa High Court, Cuttack

The 28th September, 2022, Ashok/GDS