Orissa High Court
The National Law University Of ... vs Sabyasachi Mohanty & Others on 7 August, 2023
THE HIGH COURT OF ORISSA AT CUTTACK
WA No.723 of 2022
The National Law University of Odisha,
Cuttack and another ....... Appellants
-Versus-
Sabyasachi Mohanty & others ....... Respondents
______________________________________________________________
For the Appellants : Mr. P.K. Rath, Senior Advocate
Mr. Abhishek Mohanty, Advocate
For the Respondents : Mr. Sukanta Kumar Dalei, Advocate
______________________________________________________________
CORAM:
THE HONOURABLE SHRI JUSTICE S. TALAPATRA
THE HONOURABLE MISS JUSTICE SAVITRI RATHO
JUDGMENT
07th August, 2023
S. Talapatra, J. By means of this intra-court appeal, the judgment
dated 10.05.2022 delivered in W.P.(C) No.33209 of 2020 has been
challenged by the appellant, National Law University of Odisha (in
short "NLUO") its Registrar. The respondent No.1 filed the writ petition
urging this Court to quash the decision of the appellants as contained in
the letter dated 17.10.2020 [Annexure-6 to the writ petition] whereby
the appellants communicated the writ petitioner that on expiry of his
tenure of service he will not be given further extension as the Assistant
Finance Officer (contractual). That apart, it is urged in the writ petition
that the respondent No.1 be reinstated in the post of Assistant Finance
Officer at NLUO within a stipulated time with all consequential service
benefits. In addition, it is urged by the writ petitioner that the opposite
party No.4, the proforma-respondent No.5 in the appeal be directed to
conduct an impartial and fair inquiry taking into consideration the audit
report [Annexure-7 series to the writ petition] as submitted by the
respondent No.3, Accountant General, Odisha, the proforma-respondent
No.4 in the appeal. As the further relief, the petitioner has urged this
Court to regularize his service as the Assistant Finance Officer at
NLUO with effect from 14.10.2014 along with all consequential
benefits. There is no dispute that the respondent No.1 was selected and
engaged as the Assistant Finance Officer pursuant to the advertisement
No.NOUO/T-NT/ 001002/2014 [part of Annexure-2].
2. It may be noted that in the said advertisement at Sl. No.7, the post
of Assistant Finance Officer has been clearly shown as Consolidated/
Contractual. Thus, the respondent No.1 knew from the very beginning
that his engagement, if he is selected, would be contractual. There is no
dispute that the petitioner was engaged by the appellants by the letter of
WA No.723 of 2022
engagement No.NLUO/CAD/9950/2014 dated 14.10.2016. In the said
letter of engagement, it has been clearly spelt out that the said
engagement as the Assistant Finance Officer is on contractual basis with
following terms & 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 favourable 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 regulations of the
University as may be in force at any time."
WA No.723 of 2022
3. We consider that as the communication dated 17.10.2020 under
Annexure-6 to the writ petition is in the centre of the controversy, the
entire text of the said communication should be reproduced.
Accordingly, it reproduced hereunder:
National Law University Odisha
(established by Odisha Act IV of 2008)
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
relieved from your duties on 19th October 2020 at 9 A.M. 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 with you all the best.
With warm regards,
Yours sincerely,
Illegible
Prof.(Dr.) Yogesh Pratap Singh"
4. The respondent No.1 challenged the said decision contained in
the letter dated 17.10.2020 on the following grounds:
(i) The NLUO has terminated services of the respondent No.1
without giving any notice or one month's salary in lieu thereof.
(ii) The said decision has been taken malafide inasmuch as the
University has retained other employees engaged on
WA No.723 of 2022
contractual basis in terms of the same advertisement [part of
Annexure-2]
Further, having referred to the decision of the Executive
Council dated 11.02.2012, the respondent No.1 contended that the
NLUO has regularized services of some of its non-teaching staff on
completion of two years term. As such, the respondent No.1 is
entitled to similar relief of regularization with effect from
14.10.2018.
5. It is to be noted here that after the NLUO-appellants filed their
counter affidavit traversing the averments in the writ petition.
Thereafter, the respondent No.1 amended the writ petition with leave of
the Court and incorporated the additional relief of regularization with
effect from 14.10.2016.
6. NLUO and its Officers by filing the counter affidavit had clearly
contended that (a) so far the question of prior notice is concerned no
notice was required as the terms of contractual engagement came to its
end. It is not a case of termination and hence, the conditions as laid
down under Clause-6 of the terms & conditions of the engagement, as
reproduced above, are not to be satisfied, (b) It has been clearly stated
by NLUO that the engagement of the respondent No.1 is purely
WA No.723 of 2022
contractual one and the parties are bound by the terms & conditions of
the contract and (c) As the engagement was accepted by the respondent
No.1 consciously, he cannot now turn around and challenge the non-
extension.
7. The learned Single Judge, by the impugned order, has allowed the
writ petition by observing as follows:
(a) The order of discontinuance of the contract is an order of
termination within the meaning of Clause-6 of the
contract.
(b) The said impugned order [Annexure-6 to the writ petition]
has been passed without adhering to the principles of
natural justice and
(c) The NLUO while appointing the Finance Officer to cater
has substituted the respondent No.1.
8. Having observed as above the order dated 17.10.2020 has been
declared bad in law. The appellants have been directed to deem the
respondent No.1 continue in the post of Assistant Finance Officer
without any interruption.
9. It has been further directed that the respondent No.1 will be
entitled to 50% of his pay over the last pay he had drawn and such
payment shall be made within a period of one month. Further the
respondent No.1 shall be entitled to interest on the back wages at-least
@ 5% per annum. In default, it has been declared that the respondent
WA No.723 of 2022
No.1 shall be entitled to interest @ 8% per annum from the date of
expiry of one month of the judgment till it is paid to the respondent
No.1. For the purpose of reference, a passage from the said judgment
dated 10.05.2022 is extracted hereunder:
"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 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
WA No.723 of 2022
appointed initially for one year with scope of extension and continuing
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."
10. Mr. P.K. Rath, learned Senior Counsel appearing for the
appellants has emphatically stated that Clause-6 of the terms &
conditions does not have any relevance for adjudication of the reliefs, as
urged by the respondent No.1 in his writ petition.
11. Having referred to the communication dated 04.11.2019
[Annexure-5 to the writ petition] Mr. Rath, learned Senior Counsel
stated that it has been laid therein very clearly that the contractual
appointment of the respondent No.3 will be extended by one year with
effect from 18.10.2019. It has been also made clear that the terms &
conditions of the letter of engagement dated 14.12.2016 [Annexure-4 to
the writ petition] shall govern the extended period of the engagement.
The impugned decision as contained in the communication dated
17.10.2020 does not put any stigma on the respondent No.1 and it has
been simply stated that the competent authority has decided not to grant
any further extension to the respondent No.1 as Assistant Finance
Officer. Accordingly, the respondent No.1 was directed to handover the
charge along with all files/documents/audit report etc. to one Assistant
Registrar of NLUO.
WA No.723 of 2022
12. Mr. Rath, learned Senior Counsel has submitted that two
positions as taken by the respondent No.1 simultaneously are mutually
destructive. In the one hand, the respondent No.1 has stated that the
impugned decision dated 17.10.2020 is an order of termination and as
such, he was entitled to the process as laid down in Clause-6 of the
terms & conditions and on the other hand, the respondent No.1 has
urged this Court to regularize his service from an anterior date which is
the initial date of his engagement in terms of the advertisement under
Annexure-2 to the writ petition. There is no basis of claiming
regularisation in terms of the above conditions of service.
13. Mr. Rath, learned Senior Counsel has contended that without any
relevance to the core challenge, one audit report has been brought in the
picture with unclean hands knowing fully well that if any objection is
raised on an audit report there is a definitive process to follow. NLUO
shall clarify the objection/s as raised in the audit report and thereafter,
the final report will be published. According to Mr. Rath, learned Senior
Counsel there is no malafide in the action of the appellants. They have
their right to consider the necessity of continuance. The respondent
No.2 does not have any vested right to continue in the post which is
clearly declared as the contractual post.
WA No.723 of 2022
14. The petitioner had fully accepted the terms & conditions without
any demur and as such, the terms & conditions are binding on the
respondent No.1.
15. The law is well settled that for being engaged in a contractual
post for a few years, no person can derive any right to be regularized.
16. Mr. Rath, learned Senior Counsel has placed his reliance on
Union of India & others vs. N. Murugessan & others: 2022 SCC 25.
In N. Murugessan (supra), it has been clearly held that suitability and
adequacy are within discretion of the employer. If there is no
arbitrariness in not considering the extension of tenure of a contractual
employee, that cannot be held either unfair or against the law.
17. Mr. Rath, learned Senior Counsel has contended that in N.
Murugessan (supra), it has been further held that acquiescence will
mean a tacit or passive acceptance. It includes reluctant consent to an
act as well. It has been contended that the doctrine of approbate and
reprobate is only a species of estoppel. In this regard, a decision of the
apex court in State of Punjab vs. Dhanjit Singh Sandhu: 2014 (15)
SCC 114 has been pressed in the service to contend that it is the settled
proposition of law that once an order has been passed and it is complied
with, accepted by the other parties and the benefit is derived out of no
WA No.723 of 2022
challenge should be allowed to be raised it on any ground. It has been
held in Dhanjit Singh Sandhu (supra) as follows:
"10. Law does not permit a person to both approbate and
reprobate. This principle is based on the doctrine of election
which postulates that no party can accept and reject the same
instrument and that a person cannot say at one time that a
transaction is valid and thereby obtain some advantage, to
which he could only be entitled on the footing that it is valid,
and then turn round and say it is void for the purpose of
securing some other advantage."
18. Following that principle of law in N. Murugessan (supra) it has
been held that the doctrine of election is based on the rule of estoppel.
The principle that one cannot approbate and reprobate is inherent in it.
The doctrine of estoppel by election is one among the species of
estoppel in pais (equitable estoppel), which is the rule of equity. By this
law a person may be precluded by way of his actions, or conduct, or
silence when he has to speak, from asserting a right which he would
otherwise be entitled.
19. Mr. Rath, learned Senior Counsel, having referred to the grounds
as raised in the writ petition, has contended that the non-extension
cannot be challenged by the respondent No.1. Mr. Rath has submitted
that the judgment of the learned Single Judge is grossly wrong for
another reason. The settled principle of law is that if an order of
termination is set-aside on the ground of violation of principles of
WA No.723 of 2022
natural justice, the Court cannot reinstate straight away but can only
remit the matter to that stage in which the natural justice was violated
[Chairman, LICI of India & others vs. A. Masilamani: 2013 (6)
SCC 530].
20. Having referred the decision of the apex court in Management of
Barara Cooperative Marketing-cum-Processing Society Limited vs.
Walkman Pratap Singh: (2019) 2 SCC 743 and State of Rajasthan &
others vs. Dayalal: (2011) 2 SCC 427, it has been contended for the
appellants that a person who is not in service cannot seek regularization.
Since the respondent No.1 is no more in the contractual service, the
question of his regularization is far-fetched. There is no illegality in
engaging one Finance Officer, which is admittedly a superior and
statutory post, inasmuch as the respondent No.1 cannot claim any right
of appointment on deputation. The respondent No.1 has desperately
bundled a set of imagined factors for purpose of showing that a serious
prejudice has been caused to the respondent No.1.
21. Mr. Rath, learned Senior Counsel has stated that there is no
question of applying the principle of natural justice in the context of the
case, inasmuch as at the time of extending the tenure of engagement, it
had been quite unambiguously adverted that the extension is only for
WA No.723 of 2022
one year to avoid any sort of confusion. Even in the order of renewal,
the specific date has been mentioned when the contractual engagement
will come to an end. Finally, Mr. Rath, learned Senior Counsel has
emphatically stated that the person who is challenging any
consequential order is always under legal obligation to challenge the
basic order and only if, the same is found to be wrong, consequential
orders may be examined. To buttress that objection, a decision of the
apex court in Amarjeet Singh & others vs. Devi Ratan & others:
(1010) 1 SCC 417 has been referred by Mr. Rath, learned Senior
Counsel.
22. In this case, the respondent No.1 did not challenge the basic order
of engagement and the subsequent orders of extension. Mr. Rath,
learned Senior Counsel has therefore submitted that the challenge is not
maintainable. He has further submitted that the observation of the
learned Single Judge that the order of discontinuation speaks on
efficiency of the respondent No.1 and hence, it casts the blame of
unsuitability on the respondent No.1. Mr. Rath, learned Senior Counsel
has contended very firmly that in the entire writ petition, such allegation
has not been made by the respondent No.1 and thus, the observation of
the learned Single Judge is totally unfounded. While concluding his
WA No.723 of 2022
submission, Mr. Rath, learned Senior Counsel has emphatically stated
that the impugned judgment cannot survive the scrutiny of law.
23. Per contra, Mr. S.K. Dalei, learned counsel appearing for the
respondent No.1 has contended that the engagement order contains
Clause-7 which provides that the appointment that was made is subject
to the regulations of the University as may be in force at any time. In
this regard, Mr. Dalei, learned counsel has in the beginning of his
submission taken us to the National Law University Odisha Act, 2008
and refers to Sections-15 & 20. Both the sections lay down the
hierarchy of posts. But in that hierarchy there is no permanent post of
Assistant Finance Officer. However, the post of the Finance Officer is
shown in the hierarchy. We have failed to persuade ourselves why Mr.
Dalei, learned counsel has referred this provision.
24. It appears very clearly that under the National Law University
Odisha Act, 2008, there is no post of Assistant Finance Officer. No
other reference has been made to show that Assistant Finance Officer is
the permanent post in NLUO. Mr. Dalei, learned counsel has stated that
the Executive Council of the said University in their meeting dated
11.02.2012 resolved, against the Agenda Item No.7, to consider the
feasibility of regularization of non-teaching staff in the following terms.
WA No.723 of 2022
"The Executive Council after detailed deliberations,
taking into account the financial feasibility of
regularization of non-teaching staff approved the
regularization for the employees who have put in
consistently good performance for a minimum of two
years and satisfy the eligibility rules of the State
Government or NLUO whichever are higher."
25. Inviting a reference to the above resolution, Mr. Dalei, learned
counsel has submitted that the appellants have discriminated against the
respondent No.1 in the process of regularization. When the other
contractual non-teaching employees were regularized, the respondent
No.1 was not regularized. Thus, the legitimate expectation of the
respondent No.1 has been belied. Mr. Dalei, learned counsel has stated
that the appellants have filled up the post of Finance Officer on
deputation from the Government of Odisha for three years, but in that
place, since the petitioner has all the qualifications, he could have
considered against that post for regularization. The petitioner's
competence for the post of the Finance Officer was never tested by any
transparent method. In our view, since the post of the Finance Officer
was never occupied by the petitioner, the question of regularization is
not at all relevant. Hence, we will not further discuss on this ground.
Mr. Dalei, learned counsel has referred a series of decisions viz. Kartik
Chandra Panda vs. State of Orissa & others : 2017 (II) OLR 545,
WA No.723 of 2022
Dillip Kumar Baral vs. BPUT: 2013 (II) OLR 2010, State of
Haryana & others vs. Piara Singh & others: AIR 1992 SC 2130,
State of Punjab & others vs. Inder Singh & others: AIR 1998 SC 7,
Dr. Utam Kumar Samant vs. KIITS & others: 2014 (Suppl.II) OLR
852, J. Jeyapaul vs. S.R.M. University & others: Civil Appeal
No.14553 of 2015 decided on 15.12.2012, State of Jharkhand &
others vs. Brahmaputra Metallics Ltd. Ranchi & another: 2020
SCC Online 968, Jarnail Singh & others vs. State of Punjab &
others: 1986 (3) SCC 277, National Building Construction
Corporation vs. S. Raghunathan & others: (1998) 7 SCC 66,
Secretary, State of Karnataka & others vs. Umadevi (3) & others:
(2006) 4 SCC 1, Union of India & others vs. N. Murugessan &
others: 2022 (2) SCC 25, State of Rajasthan & others vs. Dayalal &
others: (2011) 2 SCC 429, Management of Barabara Cooperative
Marketing-cum-Processing Society Ltd. Vs. Workman Pratap
Singh: (2019) 2 SCC 743, Manish Gupta & another vs. President
Jan Bhagidari Samiti & others etc. (Civil Appeal No.3084-3088 of
2022), Satwati Deswal vs. State of Haryana: (2020) 1 SCC 126, State
of Haryana & others vs. Piara Singh & others: (1992) 4 SCC 118,
Hargurpratap Singh vs. State of Punjab & others: (2007) 13 SCC
WA No.723 of 2022
292, Management of the Barara Cooperative Marketing cum-
processing Society Ltd. Vs. Workman Pratap Singh : 2019(2) SCC
743, The State of Rajasthan & others vs. Dayalal & others: (2011) 2
SCC 429 and Secretary, the State of Karnataka & others vs.
Umadevi & others: (2006) 4 SCC 44. These decisions are relevant for
regularization. In some cases, there is observation for considering
regularization and in some other cases, the mode of regularization has
been discussed.
26. In the context of the present case, the series of decisions as
referred above, cannot aid this Court to decide the objections as raised
by the appellants against the impugned judgment.
27. Mr. Dalei, learned counsel has also referred to State of Orissa &
another vs. Mamata Mohanty : (2011) 3 SCC 436 where the apex
court in a completely different context has observed that the rule of law
inhibits arbitrary action. Arbitrary action is liable to be invalidated.
Every action of the State or its instrumentalities should not only be fair,
legitimate and above board, but should also be without any affection or
aversion. It should neither be suggestive of discrimination. If the
procedure adopted by an authority offends the fairness in the process or
WA No.723 of 2022
established ethos or shocks the conscience, the order would vitiate. The
decision-making process has to be, in those cases, interfered with.
28. According to Mr. Dalei, learned counsel, the learned Single Judge
having taken note of the mode of appointment and renewal of
engagement along with hike in remuneration and above all, the
decision-making process while taking the decision of not extending the
contractual period of the respondent No.1, has correctly declared the
action of the appellants as arbitrary and contrary to the resolution of the
Executive Council as extracted above. Learned Single Judge has
discarded the plea that non-renewal is non-stigmatic. This is the reason
why the learned Single Judge has observed that the decision contained
in the communication dated 17.10.2022 is in gross violation of natural
justice. Mr. Dalei has contended strenuously that the appointment in the
post of the Finance Officer is the substitution against the termination of
the respondent No.1. He has also stated that the said non-renewal is
nothing but termination. Therefore, Clause-6 will apply stricto sensu.
29. It is apparent on the face of record that for termination of the
respondent No.1 the appellants have not complied the mode as
described in Clause-6 of the terms & conditions as referred before.
According to Mr. Delei, for the above reasons, the entire action of the
WA No.723 of 2022
appellants offends the provisions of Article-14 of the Constitution of
India. Hence, he has urged this Court not to interfere with the impugned
judgment. At the fag end of his submission, Mr. Dalei has submitted
before this Court to emphatically look at the pitiable situation in which
the respondent No.1 has been thrown. The decision of the learned
Single Judge does not warrant any interference for the above reasons.
30. We have meticulously examined the records and the decisions as
relied by the counsel for the parties and also appreciated the submission
of the counsel. In our considered view, the only question which is
paramount in this appeal is as follows:
Whether Clause-2 or Clause-6 of the terms & conditions of
the basic engagement order dated 14.10.2016, Annexure-4
to the writ petition would apply in respect of non-extension
of the services of the respondent No.1 as the Assistant
Finance Officer ?
31. Having perused the order dated 14.10.2016 and the order dated
04.11.2019, Annexure-5 to the writ petition read with the employment
advertisement No.NLUO/T-NT/001002/2015, part of Annexure-2, we
are of the view the nature of engagement which the respondent No.1
had accepted without demur is purely contractual and as such, the said
engagement shall be guided by the terms & conditions of the contract.
WA No.723 of 2022
32. It is apparent that the tenure of the respondent No.1 had expired
on 18.10.2020 and he had been relieved from the duty on 19.10.2020 at
9 a.m., as gathered from the communication dated 17.10.2020. This is
not a case of termination during the tenure of the engagement and as
such, Clause-6 of the said terms & conditions cannot have any
relevance. The inference as drawn pre-supposing the present case as a
case of termination by the learned Single Judge is fraught with serious
error. Several observations and directions including the direction to
reinstate the respondent No.1 with back wages and also with interest
and penal interest as consequence of inference on termination are
unsustainable.
33. Mr. Dalei, learned counsel has strenuously argued that the records
relating to the decision-making process has not been placed before the
Court nor has it been disclosed to the respondent No.1. In this regard,
we must place our observation that unless there is prima facie material
to demonstrate that the action as taken is malafide or under the veil,
there is ill-faith, then only the Court would like to examine the decision-
making process. In the matter of relieving someone after the tenure of
engagement comes to an end, even the Constitutional Court does not
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have any jurisdiction to intervene nor does it have any duty either to lift
the veil or to examine the decision-making process.
34. According to us, the order dated 17.08.2020, Annexure-6 to the
writ petition, is an order simplicitor only recording that the tenure of
engagement has come to an end and therefore the respondent No.1 is to
be relieved from the duty. Such action of the appellants cannot be held
to be arbitrary or discriminatory in any manner. So far as the question of
regularization is concerned vis-à-vis the agenda item No.7, we are of the
view that this Court cannot be the arbiter of performance of the
respondent No.1. It is the employer alone who can carry out such test, if
the employer has any plan to regularize any contractual employees on
the basis of performance, as has been done while taking the resolution
against the agenda item No.7.
35. As we have already noted, the law is well settled that the
assessment of performance falls within the exclusive domain of the
employer and the Court has no business to interfere with or to intrude
into the said domain. We do not find any infirmity in the process as
elaborately noted at the time of recording the submission of the counsel
and the observations of the learned Single Judge. The cumulative effect
of such observations is that the impugned judgment cannot be sustained.
WA No.723 of 2022
36. In the result, we set-aside the judgment dated 10.05.2022
delivered in W.P.(C) No.33209 of 2020.
37. The appeal is allowed.
38. Before parting with the records, we may like to observe that if in
future vacancy arises against the post of Assistant Finance Officer, the
petitioner be allowed to participate for appointment in the said post.
39. No order as to cost.
(S. Talapatra)
Judge
Savitri Ratho, J. I agree
(Savitri Ratho)
Judge
Orissa High Court, Cuttack.
The 7th August, 2023/Subhasis Mohanty, P.A.
Signature Not Verified
Digitally Signed
Signed by: SUBHASIS MOHANTY
Designation: P.A. I/C Secretary
Location: High Court of Orissa, WA No.723 of 2022
Cuttack.
Date: 11-Sep-2023 19:57:31
