Orissa High Court
Kishore Kumar Sahu And Others vs State Of Orissa & Others .... Opp. ... on 4 November, 2024
Author: A.K. Mohapatra
Bench: A.K. Mohapatra
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.33857 of 2020
An application under Articles 226 and 227 of the
Constitution of India.
Kishore Kumar Sahu and others .... Petitioners
Mr. Aditya N. Das, Advocate
-versus-
State of Orissa & others .... Opp. Parties
Mr. D. Nayak, A.G.A.
W.P.(C) No.30828 of 2020
Manoranjan Mallick .... Petitioner
Mr. B.B. Mohanty, Advocate
-versus-
State of Odisha & others .... Opp. Parties
Mr. D. Nayak, A.G.A.
W.P.(C) No.33060 of 2020
Bikram Charan Sethy .... Petitioner
Mr. B.B. Mohanty, Advocate
-versus-
State of Odisha & others .... Opp. Parties
Mr. D. Nayak, A.G.A.
Page 1 of 55
W.P.(C) No.33062 of 2020
Ratnakar Behera .... Petitioner
Mr. B.B. Mohanty, Advocate
-versus-
State of Odisha & others .... Opp. Parties
Mr. D. Nayak, A.G.A.
W.P.(C) No.33208 of 2020
Nirmal Chandra Sahoo & Ors. .... Petitioners
Mr. A.K. Mohapatra, Advocate
-versus-
State of Odisha & others .... Opp. Parties
Mr. D. Nayak, A.G.A.
W.P.(C) No.33789 of 2020
Jyoti Ranjan Padhi .... Petitioner
Mr. B. Routray, Sr. Advocate
-versus-
State of Odisha & others .... Opp. Parties
Mr. D. Nayak, A.G.A.
W.P.(C) No.36046 of 2020
Dilip Kumar Sabar & Ors. .... Petitioners
Mr. A.N. Das, Advocate
-versus-
State of Odisha & others .... Opp. Parties
Mr. D. Nayak, A.G.A.
Page 2 of 55
W.P.(C) No.36720 of 2020
Badal Bihari Swain & Ors. .... Petitioners
Mr. B. Routray, Sr. Advocate
-versus-
State of Odisha & others .... Opp. Parties
Mr. D. Nayak, A.G.A.
W.P.(C) No.36725 of 2020
Satya Narayan Behera & Ors. .... Petitioners
Mr. B. Routray, Sr. Advocate
-versus-
State of Odisha & others .... Opp. Parties
Mr. D. Nayak, A.G.A.
W.P.(C) No.36970 of 2020
Prasant Kumar Rout .... Petitioner
Mr. K.P. Mishra, Advocate
-versus-
State of Odisha & others .... Opp. Parties
Mr. D. Nayak, A.G.A.
W.P.(C) No.36974 of 2020
Sanjib Kumar Singh .... Petitioner
Mr. K.P. Mishra, Advocate
-versus-
State of Odisha & others .... Opp. Parties
Mr. D. Nayak, A.G.A.
Page 3 of 55
W.P.(C) No.36975 of 2020
Prakash Kumar Malik & Ors. .... Petitioners
Mr. A.N. Das, Advocate
-versus-
State of Odisha & others .... Opp. Parties
Mr. D. Nayak, A.G.A.
W.P.(C) No.36991 of 2020
Dusmanta Kumar Mahanta & Ors. .... Petitioners
Mr. A.N. Das, Advocate
-versus-
State of Odisha & others .... Opp. Parties
Mr. D. Nayak, A.G.A.
W.P.(C) No.37093 of 2020
Muralidhar Nayak & Ors. .... Petitioners
Mr. S.D. Routray, Advocate
-versus-
State of Odisha & others .... Opp. Parties
Mr. D. Nayak, A.G.A.
W.P.(C) No.37095 of 2020
Antaryami Nayak & Ors. .... Petitioners
Mr. S.D. Routray, Advocate
-versus-
State of Odisha & others .... Opp. Parties
Mr. D. Nayak, A.G.A.
Page 4 of 55
W.P.(C) No.37126 of 2020
Chitta Ranjan Mishra & Ors. .... Petitioners
Mr. S. Mishra, Advocate
-versus-
State of Odisha & others .... Opp. Parties
Mr. D. Nayak, A.G.A.
W.P.(C) No.37127 of 2020
Sudhansu Sekhar Pati & Ors. .... Petitioners
Mr. S. Mishra, Advocate
-versus-
State of Odisha & others .... Opp. Parties
Mr. D. Nayak, A.G.A.
W.P.(C) No.37128 of 2020
Subasis Das & Ors. .... Petitioners
Mr. S. Mishra, Advocate
-versus-
State of Odisha & others .... Opp. Parties
Mr. D. Nayak, A.G.A.
W.P.(C) No.37129 of 2020
Jagannath Gouda & Anr. .... Petitioners
Mr. S. Mishra, Advocate
-versus-
State of Odisha & others .... Opp. Parties
Mr. D. Nayak, A.G.A.
Page 5 of 55
W.P.(C) No.37131 of 2020
Geetanjali Sagaria .... Petitioner
Mr. S. Mishra, Advocate
-versus-
State of Odisha & others .... Opp. Parties
Mr. D. Nayak, A.G.A.
W.P.(C) No.37143 of 2020
Nihar Ranjan Pradhan & Anr. .... Petitioners
Mr. S.P. Nath, Advocate
-versus-
State of Odisha & others .... Opp. Parties
Mr. D. Nayak, A.G.A.
W.P.(C) No.37324 of 2020
Saroj Kumar Nayak & Ors. .... Petitioners
Mr. S. Mishra, Advocate
-versus-
State of Orissa & others .... Opp. Parties
Mr. D. Nayak, A.G.A.
W.P.(C) No.37325 of 2020
Manas Ranjan Rout .... Petitioner
Mr. S. Mishra, Advocate
-versus-
State of Orissa & others .... Opp. Parties
Mr. D. Nayak, A.G.A.
Page 6 of 55
W.P.(C) No.37329 of 2020
Tapaswini Satapathy .... Petitioner
Mr. S. Mishra, Advocate
-versus-
State of Orissa & others .... Opp. Parties
Mr. D. Nayak, A.G.A.
W.P.(C) No.37332 of 2020
Gopal Krushna Panda & Ors. .... Petitioners
Mr. S. Mishra, Advocate
-versus-
State of Orissa & others .... Opp. Parties
Mr. D. Nayak, A.G.A.
W.P.(C) No.38098 of 2020
Sanjay Kumar Pradhan & Ors. .... Petitioners
Mr. S.K. Samal, Advocate
-versus-
State of Odisha & others .... Opp. Parties
Mr. D. Nayak, A.G.A.
W.P.(C) No.3158 of 2021
Manoranjan Mallick .... Petitioner
Mr. B.B. Mohanty, Advocate
-versus-
State of Odisha & others .... Opp. Parties
Mr. D. Nayak, A.G.A.
Page 7 of 55
W.P.(C) No.3633 of 2023
Sangram Kumar Palo .... Petitioner
Ms. K.R. Choudhury, Advocate
-versus-
State of Odisha & others .... Opp. Parties
Mr. D. Nayak, A.G.A.
W.P.(C) No.5054 of 2023
Ajay Kumar Samal & Ors. .... Petitioners
Ms. K.R. Choudhury, Advocate
-versus-
State of Odisha & others .... Opp. Parties
Mr. D. Nayak, A.G.A.
W.P.(C) No.24893 of 2023
Ashok Kumar Pramanik & Ors. .... Petitioners
Mr. S. Rath, Advocate
-versus-
State of Odisha & others .... Opp. Parties
Mr. D. Nayak, A.G.A.
W.P.(C) No.35048 of 2023
Ranjita Rout .... Petitioner
Mr. A.N. Das, Advocate
-versus-
State of Odisha & others .... Opp. Parties
Mr. D. Nayak, A.G.A.
Page 8 of 55
W.P.(C) No.37890 of 2023
Kishor Pradhan .... Petitioner
Ms. B.K. Pattanaik, Advocate
-versus-
State of Odisha & others .... Opp. Parties
Mr. D. Nayak, A.G.A.
W.P.(C) No.37891 of 2023
Babulal Senapati .... Petitioner
Ms. B.K. Pattanaik, Advocate
-versus-
State of Odisha & others .... Opp. Parties
Mr. D. Nayak, A.G.A.
W.P.(C) No.37893 of 2023
Manoranjan Karmi .... Petitioner
Ms. B.K. Pattanaik, Advocate
-versus-
State of Odisha & others .... Opp. Parties
Mr. D. Nayak, A.G.A.
W.P.(C) No.40190 of 2023
Jyoti Prakash Das & Ors. .... Petitioners
Ms. K.R. Choudhury, Advocate
-versus-
State of Odisha & others .... Opp. Parties
Mr. D. Nayak, A.G.A.
Page 9 of 55
W.P.(C) No.41351 of 2023
Jasani Dehuria .... Petitioner
Mr. G.R. Sethi, Advocate
-versus-
State of Odisha & others .... Opp. Parties
Mr. D. Nayak, A.G.A.
CORAM:
JUSTICE A.K. MOHAPATRA
_____________________________________________________
Date of hearing : 26.07.2024 | Date of Judgment: 04.11.2024
______________________________________________________
A.K. Mohapatra, J. :
1. The Petitioners named in the above noted writ applications
are discharging their duties as Constables in different districts of the
State of Orissa, and have approached this Court by filing the
present writ application under Article 226 of the Constitution of
India with a prayer to quash the impugned order dated 04.11.2020
passed by the O.P. No.5, order dated 10.11.2020 passed by the O.P.
No.2 and order dated 20.11.2020 passed by the O.P. No.5. A further
prayer has also been made for a concurrent direction to the
Opposite Parties to regularize the services of the Petitioners from
the date of their initial joining/appointment as Constables along
with all consequential service benefits. Lastly, the Petitioners have
also prayed for a direction to the Opposite Parties to permit the
Petitioners to participate in the ASI qualifying examination to be
held on 06.12.2020 or in the alternative to stay operation of the ASI
qualifying examination scheduled to be held on 06.12.2020.
2. On perusal of the record it appears that the present writ
application, at the first instance, was placed before a Coordinate
Bench of this Court vide order dated 04.12.2020, the learned
Coordinate Bench was pleased to issue notice to the Opposite
Parties. In the meantime, although the matter was placed before
different benches of this Court, however, this Bench vide order
dated 15.12.2023 was pleased to pass an interim order directing that
in the event the Opposite Parties were contemplating sending any of
the Constables for training for the post of A.S.I., the case of the
Petitioners be also considered for such training by the Opposite
Parties without prejudice to the rights and contentions of the
Petitioners raised in the present writ application. It was also
directed that in the event the Petitioners are sent for training for the
post of A.S.I., such decision shall be subject to the result of the
present Writ Application and that the Petitioners shall not claim any
equity solely on the basis of the fact that they were allowed to go on
training pursuant to the order of this Court. Thereafter, the matter
was listed for the final hearing, and after conclusion of the hearing,
the matter was kept for delivery of the judgment. It is further made
clear that the present writ application was heard along with W.P.(C)
Nos.30828, 33060, 33062, 33208, 33789, 36046, 36720, 36725,
36970, 36974, 36975, 36991, 37093, 37095, 37126, 37127, 37128,
37129, 37131, 37143, 37324, 37325, 37329, 37332, 38098 of 2020,
W.P.(C) No.3158 of 2021 & W.P.(C) Nos.3633, 5054, 24893,
35048, 37890, 37891, 37893, 40190, 41351 of 2023. Although the
above batch of writ applications were heard initially on 20.02.2024,
however, at the time of dictating the judgment it was observed that
certain clarifications are required with regard to the factual position
involved in the matter. Accordingly, the matters were again listed
on 26.07.2024 and the hearing was finally concluded. Further, this
Court observed that due to work pressure and a heavy assignment,
the judgment could not be delivered immediately. This Court
expresses its regret for the delay in pronouncement of the final
judgment.
3. The factual backdrop of the present writ applications, on a
narrow compass, is that the State of Odisha published an
advertisement for recruitment of Constables in respective districts
and Sepoys in respective Battalions during the year 2006. Pursuant
to the aforesaid advertisement dated 04.10.2006, the Petitioners in
the present batch of writ applications along with many others
submitted their candidature to participate in the recruitment process
for appointment as Constables/Sepoys in the district cadre. The
advertisement dated 04.10.2006 reveals that there were a total
number of 1749 posts of Constables, and 2750 posts of Sepoys
were sought to be filled up through the recruitment process. The
said advertisement further provides that the reservation percentage
for the SC category was 16.25%, 22.5% for the ST category and
11.25% for the SEBC category. The entire process of recruitment
was carried out in accordance with the provisions contained in the
relevant rules. The present Petitioners were selected through a
regular and rigorous selection process and accordingly they were
given appointment to the post of Constables/ Sepoys in their
respective districts.
4. The writ petition further reveals that the Petitioners are the
regular recruits/ employees, and they have been selected and
appointed to sanctioned vacant posts pursuant to the advertisement
of the year 2006. It further appears that the Petitioners are presently
in regular employment from the date of their initial appointment
and that they have been receiving all consequential service benefits
at par with the regular employees. They have also been undergoing
regular training including specialized trainings like SOG and NSG
including advanced commando training, anti-naxal combat training,
VIP security training, bomb dispersal training etc. While
discharging their duties, the Petitioners' services have also been
recognized by the authorities and they have received various
commendations, awards, rewards, etc. in their service career
spanning over 14 years.
5. So far the Petitioners Nos.32 to 38 in W.P. (C) No.33857 of
2020 are concerned, such Petitioners approached this Court earlier
by filing W.P. (C) No.5050 of 2012 and a batch of other writ
applications and a Review Petition bearing No.221 of 2012. The
judgments delivered in the earlier writ applications were challenged
before the Hon'ble Apex Court in SLP (C) No.19979-81 of 2013
and Review Petition thereon were all dismissed by the Hon'ble
Apex court. It has also been stated that pursuant to the aforesaid
order, the services of the Petitioners were regularized, and the
Petitioners are receiving all service benefits, promotion etc. as
regular police personnel.
6. While the matter stood thus, the Petitioners were informed
about the eligibility criteria and the qualifying examination for the
post of Assistant Sub Inspector. The most important criteria being 7
years of service experience as Constables/ Sepoys. Although the
Petitioners were eligible to participate and to compete for the post
of A.S.I., the Petitioners were illegally prevented from participating
in such recruitment process for the post of A.S.I. and the
applications submitted by them, for recruitment to the post of
A.S.I., were not forwarded to the police headquarters by the
respective districts. Moreover, while the Petitioners, in anticipation
of the fact that the selection process for the post of A.S.I. was about
to commence shortly, were preparing for the recruitment process,
the Opposite Party No.5, on 04.11.2020, issued a letter to the
district police heads thereunder asking them not to send the names
of the Petitioners for the A.S.I. examination on the ground that they
have been treated as ad hoc and, as such, they are ineligible for
appearing in such examination. As a result of the letter, the vested
and accrued right of the Petitioners were infringed and they were
seriously prejudiced. Consequently, having no other respite, the
Petitioners approached this Court by challenging the letter dated
04.11.2020 issued by the Opposite Party No.5 under Annexure-3 to
the writ application bearing W.P.(C) No.33857 of 2020.
7. It has also been stated in the writ application that the while
the Petitioners were serving in the regular establishment, no
intimation whatsoever was given to them with regard to alteration
in their status and finally, letter dated 04.11.2020 was issued,
thereby debarring the Petitioners from participating in the selection
process for the post of A.S.I. It has also been stated in the Writ
Petition that the Opposite Parties are well aware of the status of the
Petitioners and that the Petitioners are regularly recruited by
following a valid selection process. Not only that, but the
Petitioners have also received all service benefits as is due and
admissible to the regular employees. Thus, the decision of the State
Government to treat the Petitioners as ad hoc has been seriously
disputed by the Petitioners in the present writ application. Such
treatment, as it appears, is unilateral and without intimation
whatsoever to the Petitioners. Moreover, the decision vide letter
dated 04.11.2020 was also communicated by the Opposite Party
No.2 vide his letter dated 10.11.2020 under Annexure-4 to the writ
application bearing W.P.(C) No.33857 of 2020.
8. Additionally, the Petitioners have also seriously disputed
the decision of the Opposite Party No.5, vide the communication in
the letter dated 20.11.2020 under Annexure-5 to the writ application
bearing W.P.(C) No.33857 of 2020, inter alia regularizing the
Petitioners who are either already regularly recruited or have been
regularized pursuant to the orders of this Court in W.P.(C) No.5050
of 2012 and a batch of other similar writ applications. The pleading
in the writ application further expresses the petitioners'
astonishment with regard to the fact that the Petitioners who were
regularly recruited in the year 2006 are being regularized in the year
2020, although they were not parties to any kind of litigation, and
they were never treated as ad hoc until 04.11.2020.
9. It would also be profitable to note the facts pertaining to the
Petitioner Nos.32 to 38 in W.P.(C) No.33857 of 2020. Pursuant to
an order passed by the State Administrative Tribunal, although the
Petitioner Nos.32 to 38 were recruited through a regular recruitment
process against sanctioned vacant posts, they were nevertheless
made ad hoc employees. Such a decision of the tribunal was
assailed by the Petitioner Nos.32 to 38 by filing W.P.(C) No.5050
of 2012 and Review Petition No.221 of 2012. The order dated
14.08.2012 passed in W.P.(C) No.5050 of 2012, which has been
filed as Annexure-6 to the writ application bearing W.P.(C)
No.33857 of 2020, reveals that both the writ petition as well as the
review petition were taken up for hearing together.
The aforementioned Order dated 14.08.2012, further
reveals that altogether 773 persons, including the present
Petitioners, were appointed beyond the 50% reservation quota
ceiling. A Division Bench of this Court in the order dated
14.08.2012 has recorded the statement of the learned Additional
Government Advocate to the effect that, at that point in time there
existed a vacancy of 10,000 posts of Constables and Sepoys.
Accordingly, the Division Bench of this Court has further observed
that for giving effect to order dated 15.12.2011 passed in W.P.(C)
No.20249 of 2009 and the batch of connected writ petitions, it
would be proper for the State Government not to dispense with the
services of the Petitioners who have admittedly worked for 5-6
years from the date of their appointment for no fault of theirs and,
that the termination of their services at this stage would result in
great hardship to them and their families. The Division Bench has
further directed that it would be appropriate for the State
Government to create a separate cadre for them for their
continuance on ad hoc basis, as a one-time measure and to adjust
them against future vacancies of their respective categories.
Moreover, it was observed by the Division Bench that recruitment
to the future vacancies by way of new/fresh advertisement should
take care of the adjustment of the Petitioners and similarly situated
persons and the vacancies so advertised shall be reduced to the
extent of such adjustments/ regularization of the Petitioners,
category-wise. Finally, the Division Bench observed that in
compliance with the order dated 15.12.2011 that a fresh select list
be redrawn for filling up of 773 posts, as per merit, from the select
list and that the same shall be done without any further delay.
10. Thereafter, the Review Petition No.221 of 2012 was filed
by some of the Petitioners seeking review of the common judgment
dated 15.12.2011 passed in W.P.(C) No.20249 of 2009 and a batch
of connected writ petitions. While disposing of the review petition,
the Hon'ble Division Bench had referred to the order dated
14.08.2012 passed in W.P.(C) No.5050 of 2012 and have laid
emphasis on their views and observations made in said order dated
14.08.2012 to the extent that it would be appropriate for the State
Government to not to dispense with the services of the Petitioners,
who have admittedly worked for 5-6 years from their appointment,
for no fault of theirs since such termination would cause undue
hardship to the Petitioners and their families, and that it would be
appropriate for the State Government to create a separate cadre for
them for their continuance on ad hoc basis, as a onetime measure
and to adjust them against future vacancies of their respective
categories. Further, it has been observed that the new/fresh
advertisement should take care of the adjustment of the Petitioners
and similarly situated other persons and, the vacancies so advertised
shall be reduced to the extent of such adjustments/ regularization of
the Petitioners category-wise. The Hon'ble Division Bench has also
laid emphasis on the order dated 14.08.2012 to the extent that while
drawing the fresh select list for unreserved candidates, 773 posts are
to be filled up from the redrawn select list without any further
delay. Thus, the review application was disposed of by reiterating
the order dated 14.08.2012 passed in W.P.(C) No.5050 of 2012
with suitable modification to order dated 15.12.2011 passed in
W.P.(C) No.20294 of 2009.
11. A counter affidavit has been filed on behalf of Opposite
Party Nos.2 to 5, sworn by one Sri Madhu Sudan Behera working
as Additional Superintendent of Police in the office of D.G. & I.G.
of Police, Odisha, Cuttack. In the said counter affidavit, the
Opposite Party Nos.2 to 5 have stated that the Petitioners in the
present batch of writ applications, appeared in the recruitment test
in their respective districts during the year-2006 for the post of
Constable. Accordingly, on being duly selected they were
appointed in the year 2006 in their respective districts to the post of
Constables/Sepoys. The select list so prepared, pursuant to the
advertisement in the year 2006, was redrawn pursuant to the order
of the Odisha Administrative Tribunal in O.A. No.2915(C)/2006
and a batch of other cases. Pursuant to the said order, the Petitioners
were placed afresh in the 1st Redrawn Select List and were
appointed as Constable in the year-2008. Moreover, those who did
not find place in the 1st Redrawn Select List were treated as ad hoc.
12. The counter affidavit further reveals that pursuant to the
final order by the learned Odisha Administrative Tribunal in O.A.
No.1854(C)/2008 and O.A. No.2194(C)/2008 & a batch of similar
other matters, the select list was redrawn for the 2nd time thereby
fixing a upper limit of 50% to the reserved category posts. Since the
number of posts which were initially advertised in SEBC category
were subsequently reduced by virtue of the order of the learned
Odisha Administrative Tribunal, the Petitioners belonging to the
SEBC category were removed from the select list drawn pursuant to
the advertisement of the year 2006 and were placed in the 2nd
Redrawn Select List and, as such, they were treated as ad hoc.
Though the order passed by the learned O.A.T. was upheld by the
Hon'ble Division Bench of this Court in W.P.(C) No.20249 of
2009, vide order dated 15.12.2011, additionally the Hon'ble
Division Bench had directed to prepare the list afresh by
eliminating the names of ad hoc constables. It is pursuant to this
direction of the Division Bench that the 3rd Redrawn Select List
came into existence by eliminating names of ad hoc declared
employees.
13. While this was the position, the Hon'ble Division Bench of
this Court, once again on 14.08.2012 in W.P.(C) No.5050 of 2012,
directed not to dispense with the service of the ad hoc employees
and to regularize their services in future vacancies. The order dated
14.08.2012 has been discussed in detail in the preceding paragraph,
as such, the same need not be reiterated here. The order dated
14.08.2012 was challenged before the Hon'ble Supreme Court by
the State Government, in SLP(C) No.19979-19981/2013. After
disposal of the aforesaid SLP, a 4th Redrawn Select List was
prepared for UR categories. Thereafter, the matter was referred to
the State Government in the Home Department for regularization of
the ad hoc employees. After consultation with the General
Administration Department, Finance Depart and Law Department,
the Government of Odisha issued order dated 10.11.2020, through
the Home Department, to regularize the services of all ad hoc
employees appointed beyond the advertised capacity in respect of
each District and Battalion pursuant to the advertisement of the year
2006. In the said counter affidavit, it has been stated that since the
present Petitioners' name did not find place in the Redrawn Select
List, therefore, they were allowed to continue on ad hoc basis
pursuant to the order passed by the Hon'ble Division Bench of this
Court. Furthermore, the continuance of the present Petitioners on
regular basis, as has been asserted by the present Petitioners, has
been seriously disputed by the Opposite Parties. Further, the
Opposite Parties have stated that the service of the Petitioners was
regularized only pursuant to the Government order dated
10.11.2020 and the treatment of the Petitioners as ad hoc
employees is pursuant to the order of learned O.A.T. as well as of
the Hon'ble Division Bench of this Court.
14. With regard to the eligibility of the Petitioners, for
participating in the written test for the post of A.S.I, the counter
affidavit states that the Petitioners were continuing as ad hoc
employees pursuant to the order passed by the Hon'ble Division
Bench of this Court and they were never brought over to the regular
establishment till 10.11.2020. As such, the Petitioners had not
acquired the requisite eligibility, i.e. the 7 years of experience. It
has also been stated that steps were taken up for regularization of
the services of the Petitioners pursuant to a direction of the Hon'ble
Division Bench which was eventually confirmed by the Hon'ble
Apex Court. Accordingly, the Govt. of Odisha in the Home
Department issued order dated 10.11.2020, thereby regularizing the
services of the Petitioners from the date of issuance of that order i.e.
10.11.2020. Accordingly, the Appointing Authorities were directed
to take further action keeping in view the facts stated in order dated
10.11.2020. Furthermore, the contention of the Petitioners that their
services were regularized w.e.f. 01.11.2010, has been seriously
disputed by the Opposite Parties and it has been stated that the same
is contrary to the order dated 15.12.2011 passed by the Hon'ble
Division Bench in W.P.(C) No.20249 of 2009. Finally, the counter
affidavit filed by the Opposite Party Nos.2 to 5 reveals that the
Petitioners, being ad hoc employees, are not eligible to get
promotion to higher rank before their services are regularized. It has
also been stated that some of the ad hoc employees were
inadvertently promoted as Lance Naik and Havildar by their
respective District Superintendents of Police during the ad hoc
Period. Finally, it has been contended that the ad hoc employees
were not eligible for promotion to A.S.I. of Police before their
regularization and their eligibility for promotion shall be reckoned
from the date of their regularization i.e. 10.11.2020.
15. A counter affidavit has also been filed on behalf of the
Opposite Party No.16 i.e. the Superintendent of Police, Malkangiri
District. In the counter affidavit it has been stated that the letter
dated 04.11.2020 was received from the Opposite Party No.2
calling for willingness of the eligible candidates to appear in the
examination for promotion to the rank of A.S.I. of Police. He has
further referred to the letter dated 10.11.2020 issued by the Home
Department, Govt. of Odisha as well as the letter dated 20.11.2020
issued by the I.G. of Police (Personnel), Odisha. The Opposite
Party No.16 has stoutly denied the assertion of the Petitioners that
their service status was altered to that of ad hoc from regular. It has
also been stated that the impugned order has been issued pursuant
to the order passed by the learned O.A.T. as well as this Hon'ble
Court. It has also been stated that the Select List was redrawn on a
number of occasions pursuant to the direction of the Tribunal as
well as this Court at different points in time. However, finally the
dispute was set to rest vide order dated 14.08.2012 passed by the
Hon'ble Division Bench of this Court wherein it has been directed
not to dispense with the services of the Petitioners and to allow
them by creating a separate cadre and to let the Petitioners continue
on ad hoc basis.
16. Heard Sri A.N.Das, learned counsel appearing for the
Petitioners in W.P.(C) No.33857 of 2020, Sri Budhadev Routray,
learned Senior Counsel appearing for the Petitioners in W.P.(C)
No.33789 of 2020 and learned counsels representing the Petitioners
in the batch of writ applications which were taken up for hearing
analogously, as well as learned Additional Government Advocates
appearing for State-Opposite Parties in the respective writ
applications. Perused the pleadings of the parties as well as their
written note of submissions and the documents placed on record for
consideration by this Court.
17. Mr.A.N.Das, learned counsel appearing for the Petitioners
in the lead matter i.e. W.P.(C) No.33857 of 2020, at the outset
contended that, pursuant to the advertisement in the year 2006, the
Petitioners appeared in the recruitment test and on being duly
selected they were recruited in the post of Constables/ Sepoys. On
such appointment, the Petitioners continued to discharge their
duties sincerely and diligently and were receiving all consequential
service benefits. He further contended that in the year 2012, the
status of some of the Petitioners were declared as ad hoc due to a
flaw in implementing the reservation policy by the State
Government. Such reservation policy was assailed before the
learned O.A.T. at the instance of some of the candidates. The
learned O.A.T., in its final judgment, has categorically held that the
total reservation cannot exceed 50% ceiling. Thus, the
appointments made beyond the 50% ceiling, i.e. a total of 773
posts, were declared illegal.
18. The aforesaid judgment was challenged before this Court
and a Division Bench of this Court upheld the judgment of the
Tribunal. Thereafter, some of the Petitioners again approached this
Court by filing W.P.(C) No.5050 of 2012 which was taken up for
hearing along with the Review Petition No.221 of 2012. While
disposing of the writ petition as well as review petition, the
Division Bench had modified the order passed in the earlier writ
petition to the extent that, the services of the Petitioners shall not be
terminated, and they shall be allowed to continue on ad hoc basis
by creating a separate cadre. Further, it was also directed to
regularize the service of 773 candidates who were given
appointments in excess of the 50% reservation quota in the
subsequent recruitment years.
19. In the course of his argument, learned counsel appearing for
the Petitioners laid emphasis on the statement made by the learned
Additional Govt. Advocates during of W.P.(C) No.5050 of 2012, to
the extent that 10,000 posts of Constables/ Sepoys were lying
vacant at the relevant point of time. Keeping the aforesaid facts in
view, the Hon'ble Division Bench of this Court directed the State
Government to regularize the above named 773 persons who were
recruited in excess of the 50% reservation quota on the ground that
no fault could be attributed to the Petitioners and that the
termination of services of the Petitioners would cause serious
prejudice, not only to the Petitioners but also to the families of such
Petitioners. The order passed by the Division Bench of this Court in
W.P.(C) No.5050 of 2012 has been upheld by the Hon'ble Apex
Court.
20. Learned counsel appearing for the Petitioners also
contended that the Petitioners were validly selected, pursuant to the
advertisement published in the year 2006, therefore, they were
regularly selected against sanctioned vacant posts and were duly
appointed. On such ground, learned counsel appearing for the
Petitioners submitted that the Petitioners were appointed against
regular vacancies in posts since the year 2006. Therefore, the
subsequent alteration in their status from Regular to ad hoc is
highly illegal and arbitrary. Alternatively, it was also argued that
the order passed by a Hon'ble Division Bench of this Court, on
14.08.2012 in W.P.(C) No.5050 of 2012, confers a substantial right
on the Petitioners to be regularized against the vacant posts of
Constables/ Sepoys in their respective districts.
21. Furthermore, referring to the order passed by the Division
Bench of this Court, learned counsel appearing for the Petitioners
submitted that the Hon'ble Division Bench of this Court had
categorically directed that the Petitioners shall be regularized
against the future vacancies by way of a new/fresh advertisement
and, that such fresh advertisement should take into account the
adjustments of the Petitioners and similarly situated persons and
that the vacancies so advertised shall be reduced to the extent of
such adjustments/regularization of the Petitioners, category-wise.
The Division Bench had also directed that 773 posts should be
filled up, as per merit, from the select list and that the same should
be done without any further delay. He further contended that the
order dated 14.08.2012 passed in the W.P.(C) No.5050 of 2012,
filed as Annexure-6 to the present writ application bearing W.P.(C)
No.33857 of 2020, was also reiterated in the order dated 05.11.2012
passed in Review Petition No.221 of 2012. The said review petition
was filed against the common judgment dated 15.12.2011 in
W.P.(C) No.20249 of 2009 and a batch of similar other writ
petitions. He further submitted that order dated 14.08.2012 has
attained finality as the same has been confirmed by the Hon'ble
Supreme Court. It was also argued that while implementing the
judgment of this Court by the Division Bench, the Appointing
Authority i.e. the Superintendent of Police of the respective districts
have already regularized the services of many of the candidates in
the year 2010, 2012, 2016, and that each of them are receiving all
financial and service benefits from the date of their respective
joining. Furthermore, emphasis was also laid on the fact that in the
meantime many such constables have been given promotion to the
post of Lance Naiks and Havildars and that they have undergone
further training in the meantime.
22. Learned counsel appearing for the Petitioners in course of
his argument, questioned the authenticity of the impugned order
dated 10.11.2020 and 20.11.2020. In the said context, he further
argued that the order has been issued under the signature of the
Officer on Special Duty, Home Department, Govt. of Odisha and
by no stretch of the imagination can it be presumed that the
aforesaid order has been passed by the State Government. He
further contended that the aforesaid order should have been passed
by the Principal Secretary of the Home Department to make it a
valid one and that the OSD of the department is not a competent
office to pass any such order under the Rules of Business of Govt.
of Odisha. Moreover, it was also contended that the impugned
orders passed by the OSD runs contrary to the order passed by the
Division Bench of this Court on 14.08.2012 which was eventually
confirmed by the Hon'ble Supreme Court. In the context of the
validity of the impugned order, learned counsel appearing for the
Petitioners, further referring to the rules of business of the
Government, submitted that the OSD is not competent to pass any
order on behalf of the State Government and such orders cannot be
referred to and called as policy decisions of the State having any
binding effect. The impugned orders were also assailed by the
learned counsel for the Petitioners on the ground of violation of
principles of natural justice and on the ground that the same takes
away a vested right of the Petitioners.
23. With regard to the rights flowing from the order passed by
the Division Bench of this Court, which was ultimately confirmed
by the Hon'ble Supreme Court, learned counsel appearing for the
Petitioners contended that such a right is a vested and crystalized
right conferred upon the Petitioners, and as such, the same cannot
be abridged and/or curtailed at the whims and fancies of the State.
Moreover, the State authorities have no right to either override
and/or supplant their views, when the right of the present
Petitioners to be regularized flows from the judicial orders
pronounced by a Division Bench of this Court and such order
conferring a right has been ultimately confirmed by the Hon'ble
Supreme Court. On the contrary, it was argued that the State is
under a legal obligation to implement the judicial pronouncements
of the constitutional courts with certainty, exactness and with all
promptitude. Learned counsel appearing for the Petitioners at this
juncture would argue as to whether the employees who were
initially appointed as regular employees should, after alteration of
their service status, be treated as ad hoc and be re-regularized 14
years after their joining in regular service pursuant to a valid
advertisement and a recruitment process, against sanctioned vacant
posts? Learned Counsel for the Petitioner further argued that
pursuant to the order passed by the Division Bench in W.P.(C)
No.5050 of 2012 on 14.08.2012 and the Review Petition, which
was eventually confirmed by the Supreme Court by dismissing the
SLP, whether it is open to the Opposite Parties to regularize the
services of the Petitioners in the year 2020 in compliance to a
direction which was issued in the year 2012, although several
advertisements were issued in the meantime to fill up the vacant
posts?
24. In the aforesaid context, learned counsel for the Petitioners
further stated that the conduct of the Opposite Parties in the present
case is in complete violation of the order dated 14.08.2012 and, as
such, the same is contemptuous in nature. Learned Counsel for
petitioner, at this point also advanced the argument that, even
though a statement was made on behalf of the Government before
this Court, at the time of hearing of the earlier writ application, to
the effect that 10,000 posts of Constables/ Sepoys are lying vacant,
then, instead of regularizing the 773 numbers of ad hoc employees
immediately with promptness, in terms of the order dated
14.08.2012 as well as in the review petition, the Opposite Parties
opted to wait for almost 8 years and only in the year 2020 the order
of regularization of the services of the Petitioners were issued by
the State Government. It was further contended that such a delay on
the part of the State-Opposite Parties in complying with the
direction given by the Division Bench of this Court is wholly
unjust, unfair, arbitrary and discriminatory in nature. On such
grounds, it was submitted that the impugned orders challenged in
the present writ applications are wholly unsustainable in law.
25. In course of his argument, learned counsel for the
Petitioners further laid emphasis on the fact that while passing the
order dated 14.08.2012 in W.P.(C) No.5050 of 2012 and while
reiterating the said order in the Review Petition No.221 of 2012, the
Hon'ble Division Bench had categorically issued a direction to
prepare a select list in respect of 773 posts, carving out the same
from the general pool of 10,000 posts, "without any further delay".
He further contended that while considering the case of the
Petitioners, this Court was aware of the ground realities and the fact
that no fault can be attributed to the Petitioners. He also submitted
that although the Petitioners were duly selected by following a
regular recruitment process, however, they have been made to
suffer due to the discrepancies found in the advertisement while
providing reservation which, the learned O.A.T., eventually found
to be illegal and arbitrary. It was also argued that the direction of
the Division Bench vide order dated 14.08.2012 inter alia directing
that the select list shall be made without any further delay is not
only an integral part of that order, but, in a way, the said direction is
the essence of order dated 14.08.2012. Therefore, in light of the
order dated 14.08.2012, which has attained finality in the meantime,
it was not open to the Opposite Parties to simply sit over the matter
for 8 years and pass orders of regularization in the year 2020 as per
their sweet will and in gross disregard to the letter and spirit of the
order passed by a Division Bench of this Court.
26. He further contended that the Opposite Parties, through
their pleading as well as submissions, have been trying to mislead
this Court. In the aforesaid context, it was submitted that although
the Opposite Party Nos.2 to 5 filed an affidavit to the effect that
there is no vacancy for the year 2010, however, contrary to such
stand, pursuant to the order dated 26.11.2016 in O.A. No.2194
(DC)/2008, the S.P. Headquarters, Cuttack and S.P. Khurda have
regularized the services of four constables indicating that there are
30 vacancies in the rank of constables from October 2010 to
October 2011. In support of his contention, he also referred to the
order of regularization at Annexure-8 to the writ application bearing
W.P.(C) No.33857 of 2020. He further contended that
regularization of the service of the Petitioners would not have
imposed any additional financial burden on the State Government
as all the Petitioners have been extended with all service and
financial benefits notionally from their respective date of joining in
the years 2006, 2008, as the case may be. Learned counsels for the
Petitioners have further questioned the rationale in fixing the cutoff
date, 10.11.2020, as the date of regularization. In the aforesaid
context, he further submitted that in respect of some of the districts
the constables/ sepoys have been regularized much prior to that
date.
27. In course of his argument, learned counsel for the
Petitioners, referring to the judgment of the Hon'ble Supreme Court
in Maneka Gandhi vs. Union of India reported in 1978 AIR 597,
submitted that the Hon'ble Supreme Court has opined that the
principles of natural justice are an integral part of guarantee of
equality assured by Article 14 of the Constitution. Therefore, an
order passed by an authority depriving a person of his civil right
without affording him an opportunity is a nullity in the eye of law.
Furthermore, referring to the judgment of the Hon'ble Supreme
Court in Karnaik Singh vs. State of Punjab and Anr. reported in
1994 Supp (3) SCC 72, learned counsel for the Petitioners
submitted that the Hon'ble Supreme Court has deprecated the
practice of reversion of the Petitioners as head constables as illegal
inasmuch as such reversion was based on the ground of bad
records, and no enquiry whatsoever was initiated in respect of the
adverse remark made against the Petitioners in that case.
28. Learned Counsel for the Petitioner also referred to the
judgment of the Hon'ble Supreme Court in Principal, Mehar
Chand Polytechnic and Anr. vs. Anu Lamba and ors. reported in
(2006) 7 SCC 161. In the aforesaid judgment, Hon'ble Supreme
Court has observed that public employment is a facet of the right to
equality envisaged under Article 16 of Constitution of India and
that the right of the state to create posts and recruit people emanates
from the statutes or statutory rules framed under the proviso
appended to Article 309 of the Constitution of India and that the
recruitment rules have been framed with a view to give equal
opportunity to all citizens in the matter of public employment. In
addition to the above-mentioned judgments, learned counsel for the
Petitioner also referred to a catena of similar other judgments to
impress upon this Court that while changing the status of the
Petitioners from regular to the ad hoc no opportunity whatsoever
was provided. Thus, such conduct is a nullity in the eyes of law.
29. Finally, learned counsel for the Petitioners also referred to
the latest judgment of the Hon'ble Supreme Court in Vivek Kaisth
and Anr. vs. State of Himachal Pradesh & Ors. decided in Civil
Appeal Nos.6233-6234 of 2023 vide judgment dated 20.11.2023.
Referring to the aforesaid judgment, learned counsel for the
Petitioners submitted that the Petitioners before the Hon'ble
Supreme Court were judicial officers in the rank of Senior Judge,
Civil Division and they were discharging duties for nearly 10 years,
therefore, unseating the appellants from their posts would not be in
public interest. It has also been observed in the aforesaid judgment
that unseating the Petitioners would not have mattered much had
the court come to a conclusion that the very appointment of such
petitioners was wrong. In the said case it was found that the
appellants were appointed from the list of candidates who had
successfully passed the written examination and viva-voce, and
they were placed in the merit list. As such, the equity leans in
favour of the appellants. While deciding the aforesaid case, the
Hon'ble Supreme Court has also referred to the Constitution Bench
Judgment Sivanandan C.T. and Ors. vs. High Court of Kerala and
Ors. reported in (2023) SCC OnLine SC 994 and in the said
judgment, the Hon'ble Apex Court has declined to interfere or
unsettle the appellants on the ground that they were working for
more than 6 years.
30. Learned counsel for the Petitioners in W.P.(C) No.33208 of
2020, while adopting the argument advanced by Mr.A.N.Das,
learned counsel appearing for the Petitioners in W.P.(C) No.33857
of 2020, further contended that the Petitioners were selected by
following a due selection procedure pursuant to the advertisement
of the year 2006. He further contended that the State-Opposite
Parties have committed a mistake in providing for reservation in
excess of the 50% cap as has been fixed by the Hon'ble Supreme
Court in Indra Sawhney's case reported in 1992 Supp (3) SCC
217. He further submitted that the Petitioners who were appointed
in the year 2006 have undergone regular training and they have
been discharging their duties to the satisfaction of their higher
authorities. He also submitted that the Petitioners are getting all
service benefits along with their batch-mates, including RACP and
MACP benefits and that in the service book it has been mentioned
that the Petitioners are regular employees. Since the other
submissions and grounds taken in the note of submission are almost
identical to the one taken in the lead matter, this Court does not
want to reiterate the same here as the same would only amount to
repetition of the submissions which have already been taken note of
in this judgment.
31. Learned counsel for the Petitioners in W.P.(C) No.3633 of
2023 and two other similar matters submitted that the said writ
application pertains to the regularization of Sepoys of OSAP. While
adopting the argument advanced by Mr.A.N.Das, learned counsel
for the Petitioners in W.P.(C) No.33857 of 2020 submitted that the
Petitioners were selected by following a regular procedure pursuant
to the advertisement in the year 2006. Since the date of their initial
appointment, they have been discharging their duties and they have
been paid all service and financial benefits at par with all regular
employees. On a consideration of his submission as well as upon a
close scrutiny of the written note of submission, this Court is of the
view that not only the facts are identical, but also the issues
involved are very much similar to the one involved in the lead
matter i.e. W.P.(C) No.33857 of 2020.
32. Shri Budhadev Routray, learned Senior Counsel appearing
for the Petitioner in W.P.(C) No.33789 of 2020 also raised the
identical grounds as has been raised by Mr.A.N.Das, learned
counsel for the Petitioner in W.P.(C) No.33857 of 2020. It is also
not disputed by the parties that the facts are almost similar and the
same are not disputed by either side. Learned Senior Counsel in
course of his argument also laid emphasis on the order of the
Division Bench dated 14.08.2012. Learned Senior Counsel
emphatically pointed to the submission of the learned Additional
Govt. Advocates, recorded by the Hon'ble Division Bench in its
order dated 14.08.2012 to the extent that 10,000 posts of constables
and sepoys were lying vacant at the relevant point of time. He also
referred to the direction by the Division Bench vide order dated
14.08.2012. Since the order dated 14.08.2012 has been discussed
elaborately in the preceding paragraph, any further discussion
would only amount to repetition of the facts. Mr. Routray, learned
Senior Counsel for the Petitioner also emphasized the inaction/
delayed action of the Opposite Parties in carrying out the direction
contained in order dated 14.08.2012 in W.P.(C) No.5050 of 2012.
In course of his argument, learned Senior Counsel for the Petitioner
also raised a very pertinent point that a contempt proceeding
bearing CONTC No.169 of 2013 was filed before this Court. This
Court, vide order dated 28.06.2017, has accepted the submission of
the Petitioner and it was clearly observed by the Division Bench of
this Court that the appointment of the Petitioner No.6 shall relate
back to 2006 and his appointment shall not be contractual, rather it
shall be on regular basis and a further direction was given to issue a
revised order. He further submitted that pursuant to the order dated
28.06.2017, the Opposite Parties passed order dated 06.09.2017,
whereby the service of the Petitioner No.6 in W.P.(C) No.33789 of
2020 was converted to a regular one and notional benefits were also
allowed in favour of the said Petitioner from the date of his initial
appointment i.e. on 20.12.2006.
33. Mr.Routray, learned Senior Counsel for the Petitioners, in
course of his argument, further alleged that although the service of
the aforementioned Petitioner was regularized, however, the
Petitioner has not been extended with RACP and MACP benefits
which has been allowed in favour of his juniors. Such inaction on
the part of the Opposite Parties compelled the Petitioner to file
another contempt bearing CONTC No.715 of 2018. In the said
contempt proceeding, the D.G. & I.G. of Police, Odisha filed a
compliance affidavit wherein it has been stated that after obtaining
views of the Law Department and Home Department of the Govt.
of Odisha, the D.G.P., Odisha has directed for compliance of the
order passed by this Court. Accordingly, the S.P., Railway Police,
Cuttack was requested to allow notional benefits to the concerned
Petitioner from the date his juniors were extended with such
benefits. Accordingly, the Appointing Authority has allowed
notional benefits to the Petitioner in the aforesaid (contempt
proceeding) from the date of his juniors by giving such benefits i.e.
22.12.2006 with subsequent revision thereto.
34. In the aforesaid factual backdrop, learned Senior Counsel
for the Petitioner in W.P.(C) No.33789 of 2020 contended that
since the Opposite Parties have regularized the service of the
Petitioner from 2006, and extended him with all benefits at par with
the appointees under the very same advertisement, and the
Petitioner has also received the RACP and MACP benefits taking
into consideration the date of his appointment from 2006, there
remains no doubt that the Petitioner is a regular employee from
such date. Therefore, the subsequent order regularizing the
Petitioners w.e.f. 10.11.2020, 20.11.2020 is highly illegal, arbitrary
and contrary to the order dated 14.08.2012 passed in W.P.(C)
No.5050 of 2012, which has ultimately been upheld by the Hon'ble
Supreme Court by dismissing the State's SLP. He further contended
that the Review Petition filed by the State has also been dismissed
by the Hon'ble Supreme Court. Thus, there remains no doubt that
the order dated 14.08.2012 has attained finality in the meantime
thereby leaving no scope to revisit the order dated 14.08.2012 in
any manner whatsoever. Finally, learned Senior Counsel for the
Petitioner in W.P.(C) No.33789 of 2020 argued that it is the settled
principle of law that once a direction is issued by a competent court
of law, the same has to be obeyed and implemented without any
reservation. He also contended that unless the orders passed by the
Constitutional Courts are obeyed in its letter and spirit by the
concerned authorities, such conduct on the part of the authorities
would bring an end to the rule of law. In the aforesaid context,
learned Senior Counsel for the Petitioner referred to the judgment
of the Hon'ble Apex Court in the case of Commissioner,
Karnataka Housing Board vs. C. Muddaiah reported in (2007) 7
SCC 689.
35. Per contra, learned Additional Govt. Advocates appearing
in different writ applications of the present batch of writ
applications, at the outset submitted that the Opposite Parties have
not committed any illegality in passing the impugned orders dated
04.11.2020, 10.11.2020 and 20.11.2020. They further contended
that the impugned orders were passed pursuant to the order dated
14.08.2012 passed by the Division Bench in W.P.(C) No.5050 of
2012 as well as in the connected Review Petition. They further
contended that pursuant to the advertisement in the year 2006, the
recruitment process was carried out strictly in terms of the
applicable rules as well as the terms and conditions reflected in the
advertisement itself. Pursuant to the advertisement of the year 2006,
the applicants who were successful and, whose names appeared in
the final merit list, were given appointment. Subsequently, some of
the candidates belonging to the Unreserved Category challenged the
advertisement on the ground that the reservation provided in the
advertisement for the reserved category exceeded the 50% ceiling
for the reserved category quota in violation of the law laid down by
the Hon'ble Supreme Court in Indra Sawhney's case (supra). The
learned Odisha Administrative Tribunal, vide a detailed judgment,
quashed the selection and appointment of candidates who were
selected in the reserved category in excess of the 50% quota. Such
judgment of the Tribunal was assailed before the Division Bench of
this Court by filing W.P.(C) No.20249 of 2009. The judgment of
the Tribunal was upheld by this Court vide order dated 15.12.2011.
36. The selected candidates belonging to the SEBC category,
whose names were removed from the select list, owing to the fact
that their selection was found to be in excess of 50% total
reservation quota, again approached this Court by filing W.P.(C)
No.5050 of 2012. The said writ petition was disposed of vide order
dated 14.08.2012 with a suitable modification to order dated
15.12.2011. Similarly, the Review Petition No.221 of 2012 filed by
some of the Petitioners was also disposed of vide order dated
05.11.2012 by reiterating the order dated 14.08.2012 with
consequential modification to judgment dated 15.11.2012 passed in
W.P.(C) No.20294 of 2009. Learned Additional Govt. Advocates
further contended that the matter went up to the Supreme Court at
the instance of the State-Opposite Parties by filing an SLP. After
dismissal of the SLP, the State preferred a Review Petition. They
further contended that the review petition also got dismissed. Since
the Hon'ble Supreme Court declined to interfere with the aforesaid
two orders dated 14.08.2012 and 05.11.2012, the State-Opposite
Parties, after due deliberation and consultation with respective
departments, finally passed the impugned orders regularizing the
service of the 773 persons who were brought from the select list
after it was found that they have been selected over and above the
50% reservation quota. With regard to the other cases that have
been cited by the learned counsel appearing for the Petitioners, that
their services have been regularized in the meantime w.e.f. 2006
although they come within the aforesaid 773 employees, learned
Additional Govt. Advocates submitted that those orders for
regularization were passed pursuant to the judicial orders either by
the learned O.A.T. or by this Court in the writ petition. On such
grounds, learned Additional Govt. Advocates representing the
State-Opposite Parties, contended that the State-Opposite Parties
have not committed any illegality in passing the impugned orders
and the present writ petitions are being devoid of merit,
accordingly, the same should be dismissed.
37. Having heard the learned counsel appearing for the
Petitioners in the present batch of writ applications, as well as
learned Additional Govt. Advocates, further on a careful
examination of the respective pleadings of the parties and upon a
careful consideration of the written note of submissions as well as
other documents on record, this Court, at the outset of the observes
that the factual aspects of the present batch of writ applications, are
not disputed by the State-Opposite Parties. The pleadings of the
parties further reveals that pursuant to the advertisement of the year
2006, the Petitioners in the batch of the present writ applications,
along with other candidates, submitted their candidature for
appointment to the post of Constables/ Sepoys in their respective
districts/ battalions. The selection process was duly carried out in
accordance with the applicable rules and in terms of the
advertisement. Once the Petitioners were selected, they were given
appointment in their respective districts/ battalions as constables/
sepoys.
38. While the matter stood thus, the process of selection,
particularly by providing more than 50% reservation in the
advertisement, was questioned by some of the Unreserved category
candidates before the learned O.A.T. The learned O.A.T. by a
detailed judgment and by taking note of the law laid by the
constitution bench of the Hon'ble Supreme Court in Indra
Sawhney's case (supra) allowed the O.A. application to the extent
that persons who were appointed in SEBC category over and above
the maximum 50% quota for the reserved category, shall have their
names removed from the selection list and a direction was given to
redraw the select list in terms of the judgment of the learned
Tribunal. As has been discussed elsewhere in this judgment, the
order passed by the Tribunal was upheld by a Division Bench of
this Court which was eventually confirmed by the Hon'ble Supreme
Court, thereafter, the order dated 14.08.2012 came into picture. The
circumstances under which order dated 14.08.2012 of the Division
Bench of this Court was passed has also been discussed in the
preceding paragraphs of this judgment. The order dated 14.08.2012
was also reiterated by a Division Bench in the review petition
preferred against the order confirming the judgment of the learned
O.A.T.
39. Taking into consideration the submissions advanced by the
learned counsels appearing for the Petitioners, this court further
observes that the Petitioners were initially appointed on regular
basis, therefore, their status of service could not have been altered
subsequently without providing them an opportunity of hearing.
The question, therefore, arises for consideration before this Court,
is, whether the impugned orders passed by the Opposite Parties
altering the status of the Petitioners from regular to ad-hoc without
following the principles of natural justice is sustainable in law or
not? Particularly in the background that, the Petitioners were not
parties to such proceeding and the judgment which was the basis for
taking such a decision. The next question for consideration before
this court is, in the event this Court comes to a conclusion that the
principles of natural justice have not been followed prior to the
passing of the impugned orders, whether it would be proper and
desirable to set aside the impugned orders keeping in view the
judgment of the Tribunal that has already attained finality in the
meantime?
40. In reply to the aforesaid questions, this Court found force in
the submission of learned counsels appearing for the Petitioners that
before altering the status of service of the Petitioners, the Opposite
Parties were under a legal obligation to provide an opportunity of
being heard to the petitioners, since the impugned orders have civil
consequences. Moreover, the Petitioners were initially appointed on
regular basis, as would be evident from their service book,
subsequent to the judgment of the learned O.A.T. Later, although
773 employees were found to have been appointed over and above
the 50% reserved category quota, however no specific order was
passed altering their status from regular to ad hoc. The Division
Bench of this Court, on 14.08.2012 and 05.11.2012, had given a
specific direction, with regard to the Petitioners and others coming
under 773 employees category, by directing not to terminate the
service of the said Petitioners. Therefore, the state authorities were
under an obligation to provide an opportunity of hearing to the
Petitioners before passing the impugned orders. However, in view
of the judgment of the Tribunal and the subsequent orders passed
by the Division Bench in W.P.(C) No.5050 of 2012 on 14.08.2012,
as well as the order passed in the Review Petition No.221 of 2012
disposed of on 05.11.2012, this Court is of the view that the
observance of the principles of natural justice would have been a
futile exercise on the part of the Opposite Parties. It is more so,
keeping in view the fact that the judgment passed by the Tribunal as
well as the order of this Court have been upheld by the Hon'ble
Apex Court. Therefore, such judgment and order have attained
finality. In the aforesaid factual backdrop, this Court is of the view
that the non-observance of the principles of natural justice does not
change the ground scenario and ultimately the same would not have
changed the result as well as the fate of the Petitioners.
41. The next question that falls for consideration by this court
in the present batch of writ applications, is, as to whether the
Opposite Parties have implemented the order dated 14.08.2012
passed in W.P.(C) No.5050 of 2012 and in Review Petition No.221
of 2012 dated 05.11.2012? The order dated 14.08.2012 as well as
05.11.2012 have been discussed in detail in the preceding
paragraphs. Both the aforesaid orders, having been assailed by the
State-Opposite Parties before the Hon'ble Supreme Court by filing
SLP and such SLP having been dismissed, the aforesaid orders
have attained finality. Therefore, the State-Opposite Parties were
left with no option other than to implement both the orders in their
letter and spirit. It is needless to mention here that any deviation in
compliance with the aforesaid two orders would amount to a gross
violation of this Court's order which would attract punishment
under the Contempt of Courts Act, 1971. Moreover, this Court
observes that the core issue involved in the present writ applications
having attained finality in the previous adjudication and the
outcome of such adjudication in respect of the present Petitioners
having been crystallized in orders dated 14.08.2012 and
05.11.2012, it is no more open to this Court to enter into the merits
of the matter as the issue has already attained finality.
42. Therefore, this Court now confines its adjudication to the
limited question as to whether the orders dated 14.08.2012 and
05.11.2012 passed by the Division Bench of this Court, which have
been confirmed by the Hon'ble Supreme Court by dismissing the
State's SLP, have been implemented by the State-Opposite Parties
in their letter and spirit. The order dated 14.08.2012 reveals that this
Court, while passing the said order, has taken note of the fact that
altogether 773 number of persons including the Petitioners who
were appointed beyond 50% quota of reservation. Further, the said
order also takes note of the statement of the learned Additional
Govt. Advocates that there are 10,000 posts of Constables/ Sepoys
lying vacant at the relevant point in time. In the aforesaid two
factual backgrounds, the Hon'ble Division Bench directed the State
Government not to dispense with the services of the Petitioners.
Moreover, it has also been observed that the Petitioners be absorbed
against the future vacancies of their respective categories and
recruitment to the future vacancies by way of fresh advertisement
should take care of the adjustment of the Petitioners and similarly
situated persons, and that the vacancies so advertised shall be
reduced to the extent of such adjustments/ regularization of the
Petitioners category-wise. Finally, it has been directed to fill up 773
posts, as per the merits, from the select list without any further
delay.
43. On a careful analysis of the impugned orders, this Court is
of the view that, in order to implement the order dated 14.08.2012
the State Government waited for almost 8 years and the order of
regularization were issued in the year 2020. Therefore, this Court
has no hesitation in holding that the conduct of the Opposite Parties
in issuing regularization orders in the year 2020 is contrary to the
letter and spirit of the direction contained in the order dated
14.08.2012. Moreover, the Division Bench of this Court has
categorically observed that the direction in the aforesaid order is to
be carried out without any further delay. The said direction
however, has not been adhered to promptly by the State-Opposite
Parties. Such conduct of the Opposite Parties definitely constitutes
violation of this Court's order. Moreover, the authenticity of the
impugned orders is questionable as such orders were passed by the
O.S.D., Home Dept., Govt. of Odisha. The assertion of the
Petitioners that the O.S.D. is incompetent under the Govt. Rules of
Business to take any such decision remains on rebutted by the
State-Opp. Parties.
44. Additionally, this Court observes that some recruitment
process took place subsequent to order dated 14.08.2012 without
first complying with the order dated 14.08.2012. Such conduct of
the Opposite Parties is also in violation of order dated 14.08.2012
as well as 05.11.2012. Thus, this Court is of the considered view
that the impugned orders dated 04.11.2020, 10.11.2020 and
20.11.2020 are highly illegal, arbitrary and contrary to the
directions given by the Hon'ble Division Bench in both the orders
dated 14.08.2012 and 05.11.2012 (which were ultimately confirmed
by the Hon'ble Supreme Court). Accordingly, the order dated
04.11.2020, 10.11.2020 and 20.11.2020 under Annexures-3, 4 and
5 respectively, to the Writ Petition bearing W.P.(C) No.33857 of
2020, are hereby quashed.
45. On a careful analysis of the factual background of the
present case, further keeping in view the letter and spirit of the
orders dated 14.08.2012 and 05.11.2012, this Court is of the
considered view that the State-Opposite Parties have acted in a
manner which is in gross violation of Article 14 of the Constitution
of India. Various District Heads of the Police have passed orders at
different points of time, thereby regularizing the services of the
persons who were amongst the aforesaid 773 persons. Furthermore,
considering the fact that they appeared in the selection process
pursuant to a common advertisement of the year 2006, a uniform
procedure should have been followed by all the District Heads of
the Police with due regard to the seniority of the persons and
keeping in view the original select list of the year 2006. In such
view of the matter, this Court further directs that the Opposite
Parties shall do well to regularize the services of the Petitioners
strictly in terms of the orders of the Hon'ble Division Bench dated
14.08.2012 and 05.11.2012. Accordingly, the Opposite Party No.3
is directed to review each and every case of the 773 employees who
were found beyond the 50% reserved category quota. While
reviewing their cases, the Opposite Party No.3 and the respective
District Heads of the Police shall do well to ascertain the vacancy
positions post the 2006 advertisement. Since it is a matter of record
that no further recruitment took place from the year 2006 to 2012
and a statement was made before this Court which has been
specifically recorded in the order dated 14.08.2012 to the effect that
there were 10,000 vacancies at the relevant point in time, an attempt
shall be made to regularize the services of the Petitioners against
such vacancies. Such regularization shall be made strictly by giving
due regard to the seniority of the Petitioners, as per their position in
the merit list of the recruitment test of the year 2006. It is further
made clear that the present Petitioners shall be kept above in the
seniority list to the persons who have been appointed pursuant to a
selection process carried out post the year 2012. Since the
Petitioners are getting the regular scale of pay with all service and
financial benefits, no further direction is required in the aforesaid
regard. However, it is made clear that no recovery shall be made
from the Petitioners consequent upon their regularization in service.
Furthermore, it is also directed that on the basis of their re-fixed
date of regularization, the experience of the Petitioners shall be
counted from such date, and subject to their fulfilling the eligibility
requirement, they shall be allowed to participate in the selection
process for promotion to the next higher rank.
46. Keeping in view the peculiar facts and circumstances of the
present case, as well as the direction of the Hon'ble Division Bench
as discussed hereinabove, the writ applications stand allowed.
However, there shall no order as to cost.
(A.K. Mohapatra)
Judge
Orissa High Court, Cuttack
The 04th November, 2024/ Anil.
Location: High Court of Orissa
