SARBESWAR BARIK Vs. STATE OF ORISSA AND OTHERS

JUDGEMENT

(1.) In this writ petition, the petitioner has prayed, inter alia, to quash the order dated 17.5.2004 issued by the Principal Secretary to Government, Housing and Urban Development Department, vide Annexure -18, rejecting the prayer for regularization of his services in the post of Jr. Assistant and reverting him back to the post of Tax Collector.

(2.) Case of the petitioner is that the Executive Officer, Notified Area Council, Konrak -opposite party no.3, on 5.9.1985 requested the Employment Officer, Puri to sponsor the names of candidates for appointment to the post of Jr. Assistant, vide Annexure -1. On 19.9.1985, the Employment Officer, Puri sponsored the names of candidates including the petitioner. Thereafter, on 25.10.1988 a letter was issued to the petitioner, vide Annexure -3, by opposite party no.3 to appear at the interview for the post of Tax Collector. Pursuant to the said interview, he was appointed as Tax Collector and, accordingly a letter was issued on 11.11.1988, vide Annexure -4, to the petitioner appointing him as Tax Collector. While the matter stood thus, the selection committee of opposite party no.3 in its meeting dated 21.12.1991, vide Annexure -5, took a decision to fill up the vacant posts of Jr. Assistants and decided to promote the petitioner on ad hoc basis to the said post. Thereafter opposite party no.3 issued a letter to the petitioner promoting him to the post of Jr. Assistant -cum -Typist on 23.12.1991, vide Annexure -6. The petitioner joined the post on 24.12.1991, vide Annexure -7. While the matter stood thus, on 30.4.1992, opposite party no.3 moved the Government in the Housing and Urban Development Department to regularize the appointments of Jr. Assistants, vide Annexure -8. The Government of Orissa in its Housing and Urban Development Department by letter dated 3.2.1995, vide Annexure -9, called upon opposite party no.3 to furnish the particulars of four posts and made a query as to whether the same had been filled up or not. On 8.2.1995 opposite party no.3 furnished the information stating therein that the posts of Jr. Assistants had been filled up, vide Annexure -10. The further case of the petitioner is that Government of Orissa issued a letter on 28.1.1982, vide Annexure -11, to all the Executive Officers of Municipalities/Notified Area Councils stating therein that the Government have decided that the posts, which have been created by the Urban Local Bodies for a period of six months under Sub -section (1) of Section 73 of Orissa Municipal Act, should be abolished immediately after expiry of the said period and to submit proposal to the Government immediately with adequate justification supported by Council resolution to sanction the posts wherever the councils have created posts for a period of six months and the posts have been continued subsequently by extension on six monthly basis. It was resolved that creation of any post for six months by the Council should be strictly on the consideration of emergency and the matter should be intimated to Government immediately. A direction was issued for taking prior approval of the Director, Municipal Administration for filling up any post in Local Fund Service either by recruitment or promotion. On 29.10.1996, vide Annexure -12, another letter was issued by the Director, Municipal Administration to the Executive Officers of all Urban Local Bodies stating therein that Municipal Bodies have irregularly engaged employees to work as Jr. Assistant on ad hoc/D.L.R./N.M.R. basis after the Orissa Local Fund Service Rules coming into force on 10.9.1982. In some cases formal approval of Government for such stop gap arrangement have been taken by the Urban Local Bodies pending regular recruitment as per provision of Orissa Local Fund Service Rules whereas in some other cases the same has not been done. To put a stop to the irregular practice, a circular was issued by the Government on 19.6.1992 imposing ban on further appointments and promotion to the post of Jr. Assistant by Municipal Councils beyond 30.6.1992. With a view to consider the suitability of such Jr. Assistants irregularly appointed by the councils in between 10.9.1982 to 30.6.1982, the Government have decided to hold a special selection under O.L.F.S. Rules, through a written test and viva - voce test to be conducted by the selection board. A request was made to sponsor the applications of such Jr. Assistant in the Municipality/N.A.C./Municipal Corporation in the proforma. The further case of the petitioner is that pursuant to the letter dated 29.10.1996, the services of 148 employees engaged between 15.9.1982 and 30.6.1992 were regularized in the post of Jr. Assistants, but no steps had been taken by the Government to regularize his services. He filed a writ petition, being W.P.(C) No.8702 of 2003, before this Court, which was disposed of on 1.12.2003 with a direction to opposite party no.1 to consider the recommendation of opposite party no.3 and take a decision in the matter within four months. Opposite party no.1 by order dated 17.5.2004 rejected the recommendation of opposite party no.3 and reverted him back to the post of Tax Collector, vide Annexure -18. With this factual scenario, the present writ petition has been filed.

(3.) Pursuant to issuance of notice, a counter has been filed by opposite parties 1 and 2. Case of the opposite parties 1 and 2 is that the petitioner was initially appointed as an Assistant Tax Collector on daily wages basis by office order bearing no.1397, dated 20.9.1986 of Konark NAC. Subsequently he was given appointment in the post of Tax Collector on regular basis in the NAC Office. On 11.11.1988 pursuant to the interview made by the selection committee of the Urban Local Body on 8.11.88, he was elevated to the post of Jr. Assistant by office order no.844 dated 23.12.1991. The committee had no power/authority to give promotion to the petitioner to the post of Jr. Assistant from Tax Collector i.e., to the LFS cadre post from the post other than LFS Cadre as per the statutory provision under Rule -7 of OLFS Rules, 1975. Thus the elevation of the petitioner to the post of Jr. Assistant under LFS cadre was made illegally by the selection committee of Konark NAC in exercising their power beyond their jurisdiction. While the matter was thus, the petitioner had earlier filed a writ petition, being W.P.(C) No.8702 of 2003, before this Court to regularize his services in the post of Jr. Assistant. The said case was disposed of by this Court on 1.12.2003 with a direction to opposite party no.1 to consider the recommendation dated 30.4.1992 of Konark NAC in accordance with law on its own merit and to take decision in the matter within four months from the date of receipt of the order. In obedience to the orders of this Court, the matter was disposed of by opposite party no.1 on 17.5.2004 vide Order No.9813. It is clearly mentioned in the said order that promotion of the petitioner to the post of Jr. Assistant from Tax Collector by the Council of Konrak NAC is illegal and unlawful as per the provision of OLFS Rules and is also in violation of the Government instructions issued in Housing and Urban Development Department Circulars bearing No.1355/UD dated 15.01.77, No.24975/HUD dated 26.06.1990, No.47308/HUD dated 17.11.90, No.27665/HUD dated 19.6.192 and No.40865/HUD dated 01.10.1992.