Orissa High Court
Rajendu Mishra vs State Of Odisha And Others ... Opposite ... on 7 December, 2023
Author: G. Satapathy
Bench: G. Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No. 6785 of 2011
(In the matter of application under Articles 226 and
227 of the Constitution of India).
Rajendu Mishra ... Petitioner
-versus-
State of Odisha and Others ... Opposite Parties
For Petitioner : Mr. J.K. Lenka,Advocate
For Opposite Parties : Mr. M.K. Khuntia, AGA
(for O.P. Nos.1 to 4)
Mr. S.K. Joshi, Advocate
(O.P.7)
CORAM:
JUSTICE G. SATAPATHY
DATE OF HEARING :22.11.2023
DATE OF JUDGMENT :07.12.2023
G. Satapathy, J.
1. Instant Writ at the instance of petitioner
seeks to quash the order passed on 18.06.2010 by
O.P. No.2 in appeal petition dated 30.01.2008 (at
Annexure-9) as well as the order of
disengagement/termination issued by the O.P.
No.6 on 31.03.2001 under Annexure-6.
2. The factual matrix as involved in this case
are that in the year 1997, there were four
vacancies consisting of two posts of Trained
Graduate Teacher TGT Arts, one post of TGT
Science and one post of Hindi Teacher in Saraswati
High School under N.A.C., Khariar Road in the
District of Nuapada and in order to fill up such
vacancies, application were invited from intending
candidates having requisite qualification.
Accordingly, the petitioner having qualification of
M.A.B.Ed. with valid University Employment
Exchange card applied for the post of TGT Arts
along with other candidates and thereafter,
pursuant to an interview, she came out successful
along with O.P. No.7. Accordingly, O.P. No.5
issued an appointment order to the petitioner on
17.09.1997 against the vacant post of TGT Arts on
a consolidated salary of Rs.1200/- per month on
ad-hoc basis for the period of 44 days and the
appointment of the petitioner was extended from
time to time by different appointment orders, but
while continuing as such, the petitioner came to
know that the services of Hindi Teacher and O.P.
No.7, were regularized by O.P. Nos. 5 and 6,
notwithstanding to the fact that the petitioner had
stood first in the selection process. Feeling
discriminated, petitioner submitted representation
to O.P. Nos. 5 and 6 through the Headmaster of
the School for regularization of her service and
enhancement of salary, but instead of taking any
positive action on her representation, O.P. No.5 all
of a sudden terminated her service by issuing
disengagement order on 31.03.2001 under
Annexure-6. Being aggrieved, the petitioner
challenged such order before this Court in O.J.C.
No. 4190 of 2001, which was disposed of on
18.01.2008 granting an opportunity to the
petitioner to prefer an appeal and thereafter, the
petitioner filed an appeal before O.P. No.2 for the
relief as claimed in the Writ, but after much
persuasion including an order from this Court in
W.P.(C) No. 18366 of 2009, O.P. No.2 disposed of
the appeal on 18.06.2010 vide Annexure-9
refusing to quash the order of termination of the
petitioner from service as well as directing to
regularize her service. It is stated that in the
appeal, the claim of the petitioner was rejected
mainly on the ground that the post in which the
petitioner was appointed on ad-hoc basis was
reserved for ST Candidate as well as her name
was not being sponsored by Employment
Exchange. The petitioner challenges such findings
of the O.P. No.2 in this Writ.
In response to the notice of the Writ, O.P.
No.2 filed his counter supported with an affidavit
denying all the allegations made in the Writ by
inter-alia averring that the appointment of the
petitioner was purely temporary and she was
engaged for a specific period and thereby, after
expiry of such specified period, her service was
terminated. It is further averred by OP No.2 in
such counter that since the post against which the
petitioner claimed her appointment was reserved
for ST Candidate, the service of the petitioner
cannot be regularized as she belongs to General
Category. Besides, O.P. No.2 while supporting the
impugned order passed by the O.P. No.2 has also
averred in the counter that the petitioner's name
was never sponsored by the Employment
Exchange; rather she had applied for the post on
her own. In its counter, O.P. No.2 has also relied
upon the counter affidavit filed by the O.P. Nos. 4
and 5 in O.J.C. No. 4190 of 2001 under Annexure-
A/2.
Although, O.P. No.4 has filed the counter
affidavit, but it is only claimed therein that since
no relief is claimed against O.P. Nos. 1 and 4, the
present Writ is not maintainable against them. In
response to the counter affidavit of O.P. No.2,
petitioner has also filed her rejoinder inter-alia
stating that TGT Science was in fact reserved for
ST Candidate, but not the post of TGT Arts and
since the petitioner stood first in the merit list, she
is entitled to the first post meant for General
Candidate, out of two posts of TGT Arts.
3. In the course of argument, Mr. J.K. Lenka,
learned counsel for the petitioner has submitted
that although the petitioner stood first in the
selection process, the authority instead of
regularizing her service has regularized the service
of the O.P. No.7, who was less meritorious than
the petitioner, but when the petitioner challenged
her illegal termination from service, O.P. No.2
rejected her claim on the ground that the post in
which the petitioner was appointed was in fact
reserved for ST Candidate and her name was not
sponsored by Employment Exchange, which is
contrary to the fact, since Annexure-3 by which
the petitioner was appointed w.e.f 04.11.1997
reveals that she stood first in the selection process
and thereby; even if, out of two posts of TGT Arts,
one post must be reserved for General Candidate
and the petitioner having stood first selection
process was to be preferred to the Unreserved
post, then O.P. No.7 who stood next to the
petitioner in the selection process and the claim of
the O.Ps. was that the post of TGT Arts was
reserved for ST Candidate was erroneous because
it revealed from Annexure-11 that the post of TGT
Science (CBZ) was meant for ST Candidate. On
the aforesaid submission, Mr. Lenka has prayed to
allow the Writ by quashing Annexure-6 and 9 and
directing for regularization of service of the
petitioner w.e.f. the date of her termination.
On the contrary, Mr. M.K. Khuntia, learned
AGA appearing for O.P. Nos. 1 to 4 has submitted
that since the petitioner's appointment was purely
on ad-hoc basis for a temporary period of 44
days, her claim for regularization of service merits
no consideration. Mr. Khuntia has further
submitted that since the post in which the
petitioner was appointed temporarily was meant
for ST Candidate, the petitioner by no stretch of
imagination can be regularized against a Reserved
Candidate post. Mr. Khuntia has, accordingly,
prayed to dismiss the Writ.
On the other hand, Mr. S.K. Joshi, learned
counsel appearing for O.P. No.7 has submitted
that there is no illegality in regularizing O.P. No.7,
since she was appointed against Unreserved
Candidate and Annexure-3 never discloses it to be
a merit list since it contains only the name of
appointee Teachers of different faculty. Mr. Joshi,
has, accordingly, prayed to dismiss the Writ.
4. Admittedly, the petitioner claims for
regularization of her service to the post of TGT
Arts, but it is never disputed by anybody that the
petitioner was disengaged w.e.f. 31.01.2001 in
terms of Annexure-6, which was challenged by the
petitioner in an appeal, but O.P. No.2 had passed
order in the appeal by Annexure-9 refusing to
quash the termination order of the petitioner. It is
no doubt true that a person in the service cannot
be terminated on the whims and caprice of the
appointing authority and the termination of a
person from service have to be on sound
reasoning. In this case, the petitioner was
undisputedly appointed on ad-hoc basis for a
temporary period of 44 days from the date of her
joining, but the petitioner claims her to be
continuing in the service till her disengagement as
her tenure of service was extended from time to
time by different orders issued by O.P. No.5.
Although O.P. No.2 in his counter has not denied
about extension of the appointment of the
petitioner from time to time, but it has been
claimed by O.P. No.2 that the post in which the
petitioner was engaged was meant for ST
Candiate. It is albeit claimed by the petitioner that
she stood first in the merit list, but Annexure-3
was not the merit list of the Candidates, rather it
was an order of appointment of four TGTs to
different faculties. Besides, the petitioner in her
rejoinder to counter affidavit of O.P. No.2 has also
annexed the appeal memo instituted before the
Director, Municipal Administration under
Annexure-12, wherein the petitioner had never
averred that she stood first in the selection list,
rather it was stated therein that along with the
petitioner, other three candidates named as Nanda
Kr. Mittal, Sumanta Kumar Sethi and Golap
Chandra Sahu were appointed to the post of Hindi
Teacher, TGT Science, TGT Arts respectively.
Further, O.P. No.2 has also relied upon the counter
affidavit filed by O.P. N.A.C. Khariar in O.J.C. No.
4190/2001, wherein the N.A.C. Khariar had
averred that in the year 1999, a selection
committee meeting was held and on the basis of
names sponsored by Employment Exchange, O.P.
Nos. 7 and 8 therein did appear before the
Selection Board and came out successful and
thereafter, the service of O.P. Nos. 7 and 8 therein
were regularized, but the petitioner herein did not
appear in the Selection Board held in the year
1999. The petitioner has neither brought this fact
in the writ nor had denied the same in her
rejoinder. It is, therefore, clear that in the year
1999, another selection process was held in which
the petitioner had not appeared before the
Selection Board.
5. It is claimed by the petitioner that the post
of TGT Science (CBZ) was in fact reserved for ST
Candidate, not for the post of TGT Arts, but such
claim of the petitioner appears to be without any
basis inasmuch as neither the petitioner had
produced the notice inviting application of desirous
candidates to the post of TGT Arts nor any
document to indicate that the post in which she
was appointed on ad-hoc basis was not reserved
for ST Candidate. It also defies any logic that
merely because another post i.e. TGT Science
(CBZ) was reserved for ST Candidate would
exclude the reservation in TGT Arts. Moreover, a
person in employment on ad-hoc basis for a
temporary period of 44 days cannot claim as a
matter of right to be regularized in service, unless
the same is permissible under applicable rules.
Neither any document has been brought to the
notice of the Court by the petitioner to indicate
that the post for which she claims for
regularization was not reserved for any category
nor could she produce any merit list of the
candidates in such Selection Process. Had the
petitioner stood first in the merit list, she could
have produced some document(s) indicating her
position in the merit list, but merely because she
was placed at SL No. 1 in the appointment order
would not go to say that she stood first in the
selection process and the person placed at SL.
No.4 in such appointment order was next to her in
the merit list. Furthermore, in absence of any fact
disclosing merit list of Candidates, Annexure-3
being an order disclosing appointment of
Candidates cannot be considered as a merit list of
the Candidates, even when it does not disclose the
fact of the seniority of the Candidates.
6. In view of the above discussions and on a
conspectus of the averments placed in writ and
documents annexed thereto, this Court does not
find any justifiable reason to consider that the
petitioner stood first in the merit list and she
thereby, entitled to the first post, rather the
petitioner having eventually found not to have
participated in the selection process in the year
1999, she cannot claim for regularization of
service. Further, no document being produced by
the petitioner contrary to the observation of O.P.
No.2 in the appeal that the post was reserved for
ST Candidate and thereby, the petitioner being a
General Candidate cannot claim for regularization
of service against a Reserved Post. Hence, the
claim of the petitioner merits no consideration.
7. In the result, the Writ stands dismissed on
contest being devoid of merit, but in the
circumstance, there is no order as to costs.
(G. Satapathy)
Judge
Orissa High Court, Cuttack,
Dated the 7 th of December, 2023/S.Sasmal
Location: High Court of Orissa
