Orissa High Court: In a writ petition filed under Article 226 and 227 of the Constitution of India, by the State of Odisha (‘petitioner') against the order of Odisha Administrative Tribunal, Bhubaneswar, (‘OAT, Bhubaneswar'), wherein the petitioner was directed to consider the case of the respondents for regularisation of their services, as they had completed 20 years of service. The division Bench of Dr. B.R Sarangi and Murahari Sri Raman*, JJ., upheld the order of the OAT, Bhubaneswar and directed the petitioner to implement the order of regularisation of services of respondents within the period of six weeks.
Factual Matrix
The respondents while working as Class-IV (Group-D) employees in different zones of the Legal Metrology Organization, were selected for the promotion pursuant to recommendation of the Departmental Promotion Committee (‘Committee') held on 25-09-1995 under the Chairmanship of the Controller, Legal Metrology.
Similarly, the other respondent was directly appointed by virtue of Office Order dated 12-02-1996 issued from the Directorate of Legal Metrology, Food Supplies & Consumer Welfare Department and posted as Junior Clerk-cum-Junior Grade Typist on ad hoc basis. Though the names of the respondents appeared in the Tentative Gradation List of Junior Clerks on 05-09-2001, their names were absent from the Final Gradation List (‘FGL') released on 16-11-2001.
Therefore, the respondents approached the OAT, Bhubaneswar invoking Section 19 of the Administrative Tribunals Act, 1985, to modify the FGL and to direct the petitioners in the present case to fix the seniority of the respondents.
Thus, the OAT, Bhubaneswar directed the present petitioners to reconsider the cases of the applicants/respondents for regularisation of their services by relaxation of the Odisha Ministerial Service (Method of Recruitment to Posts of Junior Clerks in the District Offices) Rules, 1985 (‘OMS Rules') and pass appropriate Orders within a period of three months. Aggrieved by such direction, the petitioners approached the Court by way of the present writ petition.
Court's Decision
The Court said that it was undisputed that the respondents were appointed since 1985-86 in the posts in the category of Class IV. The Court said that the Rule 12 as substituted by virtue of the Odisha Ministerial Service (Method of Recruitment to the Posts of Junior Clerks in the District Offices) Amendment Rules, 2001, spells out that there is scope for promotion to the post of Junior Clerk from suitable Group-D employees. However, such promotional avenue was absent prior to said amendment. Therefore, the only guiding principle for such promotion was laid in the Resolution dated 09-02-1994 of the General Administrative Department.
The Court noted that ever since their appointment, the respondents had continuously discharged their respective duties as peons and as Junior Clerk-cum-Junior Grade Typist on ad hoc basis. Thereafter, being found suitable, the Departmental Promotion Committee recommended their cases for promotion to the post of Junior Clerk/Junior-cum- Typist. The Court noted that the respondents had worked continuously for more than 20 years. The Court said that never ever they were found unsuitable for their post.
The Court considered the written note submitted by the respondents , which was uncontroverted by the Additional Government Advocate of the petitioners, wherein it was highlighted that the Committee after conducting necessary test selected the respondents for promotion by Order of Commissioner-cum-Secretary to Government in Food Supplies and Consumer Welfare Department and another respondent was directly appointed on ad hoc basis and has been continuing in the said post since 1996, without any break. The Court also considered the point that there was no dispute that the respondents possessed the requisite qualification as prescribed under the Resolution of the General Administrative Department dated 09-02-1994.
The Court also considered the Rule 14 of the OMS Rules, whereunder the Government of Odisha is competent to relax any of the provisions of the OMS Rules in respect of “any class or category of persons in public interest”.
Thus, the Court said that considering the legal position of the various courts on regularisation of services and since the employer-State of Odisha/ petitioner utilized the services of the respondents for a long period against substantive vacant post, the OAT, Bhubaneswar was correct in directing the Government to reconsider the cases of the respondents for regularisation of services.
Thus, the Court directed the petitioner to implement the order of the OAT, Bhubaneswar within the period of six weeks.
[State of Odisha v. Sri Rushava Rana, 2023 SCC OnLine Ori 2295, Decided on 08-05-2023]
*Judgement Authored by: Justice Murahari Sri Raman
