MANJUSHREE TRIPATHY Vs. SECRETARY ORISSA LEGISLATIVE

JUDGEMENT

(1.) IN response to an advertisement dated 17.5.1993 the petitioner applied for a post of Junior Assistant in the Secretariat of the Orissa Legislative Assembly, Bhubaneswar and she appeared in a selection test conducted on 13.11.1997. She was informed by the opposite party by a letter dated 12.2.1999 that she has been provisionally selected for appointment as Junior Assistant but her appointment was purely temporary and terminable at any time and subject to the decision of this Court in O.J.C. Nos. 4735, 5174 and 5175 of 1998. The petitioner joined as Junior Assistant in the Secretariat of the Orissa Legislative Assembly on 12.2.1999. On 20.2.1999, an office order was issued that the petitioner was temporarily appointed as a Junior Assistant in the Secretariat with effect from 12.2.1999 on probation for a period of one year. Thereafter, by an office order dated 8.2.2000 the petitioner was allowed to continue on probation for a further period of one year with effect from 12.2.2000 subject to decision of this Court in O.J.C. Nos, 4735,5174 and 5175 of 1998. The petitioner continued as such Junior Assistant on probation in the Secretariat of the Orissa Legislative Assembly until her services were terminated by order dated 30.8.2000 by the opposite party on the ground that her appointment was irregular and was made in violation of the Orissa Reservation of Vacancies in Posts and Services (for Scheduled Castes and Scheduled Tribes) Act, 1975 ignoring the. claims of candidates who had been selected earlier and who were senior in rank and without recommendation of the Employment Exchange. Aggrieved, the petitioner moved this Court under Article 226 of the Constitution in O.J.C. No. 8660 of 2000 and by order dated 5.4,2001 a learned Single Judge of this Court quashed the order dated 30.8.2000 on the ground that the petitioner had not been given an opportunity of being heard and the principles of natural justice had not been observed before she was terminated from service by the said order dated 30.8.2000. By the order dated 5.4.2001, however, the learned Single Judge observed that it will be open to the opposite party to take action in accordance with law after giving opportunity of hearing to the petitioner. Thereafter the opposite party issued an office order dated 24th of May, 2001 stating the grounds on which the services of the petitioner were sought to be terminated and giving opportunity to the petitioner to submit an explanation within fifteen days of the date of receipt of the said office order failing which the matter was to be decided ex parte. After receipt of the said office order dated 24th of May, 2001 the petitioner sent a letter dated 6.6.2001 to the opposite party requesting him to supply the documents listed in the said letter to enable the petitioner to give an effective explanation. In the said letter dated 6.6.2001, the petitioner also stated that after receipt of the said documents she may be granted one month's time for submission of her explanation. The opposite party, however, did not furnish the said documents and instead by order dated 26.6.2001 terminated the services of the petitioner on, inter alia, the ground that she was not selected for the four posts advertised on 17th May, 1993 on the basis of the test held on 30.11.1997 and she did not appear in the test held on 5.4.1998 and she was appointed ignoring the claims of others. Aggrieved, the petitioner has filed this writ petition under Article 226 of the Constitution for quashing the said order of termination dated 26.6.2001 and for directing the opposite party to pay the petitioner all service benefits including financial benefits retrospectively.

(2.) MR . Aswini Kumar Mishra, learned counsel for the petitioner, submitted that it is well settled in law that even a probationer is entitled under Article 311(2) of the Constitution to reasonable opportunity of being heard in an inquiry in respect of the charges on account of which he is sought to be removed from service. He submitted that Rule 9(2) of the Orissa Legislative Assembly Secretariat (Recruitment and Conditions of Service) Rules, 1983 expressly stated that the Orissa Civil Services (Classification, Control and Appeal) Rule, 1962 as modified from time to time shall mutatis mutandis apply to persons in service of the secretarial of the Orissa Legislative Assembly. He submitted that Rule 15 of the Orissa Civil Services (Classification Control and Appeal) Rules, 1962 laid down the procedure for inquiry into the charges against an employee for imposing a major penalty such as removal from service and in this case the said procedure laid down in Rule 1'5 has not been followed. He further argued that Sub -rule (3) of Rule 15 of the Orissa Civil Services (Classification, Control and Appeal) Rules, 1962 clearly provided that the delinquent employee shall be supplied with all documents on which the allegations are based for the purpose of his defence and in this case the petitioner was not supplied with the documents which were relevant and necessary to enable the petitioner to submit an effective explanation. He vehemently argued that since the documents asked for by the petitioner in her letter dated 6.6.2001 in Annexure -10 to the writ petition were not furnished to the petitioner to enable her to furnish her explanation, the provisions of Rule 9 of the Orissa Legislative Assembly Secretariat (Recruitment and Conditions of Service) Rules, 1983 read with Rule 15 of the Orissa Civil Services (Classification, Control and Appeal) Rules, 1962 stood violated and the impugned order of termination is liable to be quashed on this ground. In support of his aforesaid submission, Mr. Mishra cited the decisions of the Supreme Court in U.P. Co -operative Federation Ltd, v. Ham Singh Yadav and Ors., AIR 1998 SC 413, Basudeo Tiwary v. Sido Kanhu University and Ors., AIR 1998 SC 3261, Dipti Prakash Banerjee v. Satyendra Nath Bose National Centre for Basic Sciences, Calcutta and Ors., AIR 1999SC 983 and Chandra Prakash Shahi v. State of U.P. and Ors., AIR 2000 SC 1706. Mr. Aswini Kumar Mishra further submitted that admittedly the petitioner took the selection test on 30.11.1997 but no select list was prepared for the selection held on 30.11.1997, but subsequently another selection was held on 5.4.1998, and a combined select list was published on 17.8.1998 in which it was shown that the petitioner had been selected. He argued that on these facts the petitioner should be treated as having been selected on the basis of the test held on 30.11.1997 and the termination of services of the petitioner by the impugned order on the ground that her appointment was illegal and irregular is arbitrary and is liable to be quashed.

(3.) THE first question to be decided in this writ petition is as to whether the petitioner had been selected in accordance with law for the post of Junior Assistant in the Secretariat of the Orissa Legislative Assembly and her appointment on probation to the said post with effect from 12.2.1999 was legal and regular. By the advertisement dated 17.5. 1993, copy of which is annexed to the writ petition, applications were invited for filling up only four posts of Junior Assistant in the Secretariat of the Orissa Legislative Assembly. Hence, only these four posts could be filled up pursuant to the advertisement dated 17.5.1993. While the case of the petitioner is that she appeared in the test held on 30.11.1997 and was selected in the said test, the case of the opposite party is that though she appeared in the test on 30.11.1997 for selection for the aforesaid four posts of Junior Assistant, she was not selected for any of the aforesaid four pasts of Junior Assistant. The select lists dated 17.8.1998 signed by the Secretary, Joint Secretary (Establishment), Deputy Secretary and three Under Secretaries of the Orissa Legislative Assembly on which both the petitioner and the opposite party rely on are extracted herein below :