SAROJ KUMAR PADHI Vs. STATE OF ORISSA

JUDGEMENT

(1.) THE relief claimed by the petitioner(s) in all the writ petitions being more or less the same, they were heard together and are being disposed of by this judgment.

(2.) THE petitioners in W.P.(C) No.12706 of 2006 were initially appointed as Junior Engineers and while in service they acquired degree qualification and were allowed to remain in -charge of Sub -divisions/Upgraded Sectional Posts pending finalization of amendment to Orissa Service of Engineers Rules. They were promoted to the post of Assistant Engineers on ad hoc basis. When the stipendiary engineers were regularized by virtue of the Validation Act, 2003 and no decision was taken with regard to the Degree -holder Junior Engineers, they filed O.A. No.1575 of 2002 before the Orissa Administrative Tribunal to regularize their promotion as Assistant Engineers on ad hoc basis by amending the Rules or by bringing their case within the scope of the Validation Act by implementing the decision of the High Level Committee dated 5.8.1992, the Cabinet decision dated 3.12.1994. The Tribunal disposed of the O.A. directing that the petitioners be allowed to continue as Assistant Engineers on ad hoc basis and face O.P.S.C. along with their immediate promotee junior engineers. They have prayed for quashing of the order of the Tribunal and for regularization of their services in the cadre of Assistant Engineers with all consequential service benefits. The petitioners in W.P.(C) No.16742 of 2006 after passing the Diploma Course in Engineering were appointed as Junior Engineers in the State Government service. They were promoted as Assistant Engineers in 1994. They were regularized as Assistant Engineers on the recommendation of P.S.C. in 2006 under the 33% quota. They filed O.A. No.2802 of 2006 praying to quash the Validation Act, 2003 and to place them in the gradation list below the Assistant Engineers whose promotion has been regularized on the recommendation of the P.S.C. on 16.6.1998 and not to place the names of the Stipendiary Engineers and Graduate Engineers above them. The Tribunal dismissed the O.A. holding that it has no jurisdiction to adjudicate upon policy decision of the Government.

(3.) DIFFERENT sets of learned counsel appeared for the parties in the respective cases. The gist of the contention raised on behalf of the petitioners is that the law has been well settled that the object of regulating the recruitment and conditions of service by statutory provisions is to rule out arbitrariness, provide consistency and crystallize the rights of the employees concerned. Where the recruitment rules are unworkable, inoperative and cannot achieve the objectives, the Government can exercise its executive power so as to make recruitment and promotions in removing stagnations and to afford an opportunity to the eligible persons to enter into the service. In this case on the basis of the decision of the High Power Committee dated 5.8.1992, Cabinet decision dated 3.12.1994 and resolution dated 12.3.1996, the Degree holder Junior Engineers and the Stipendiary Engineers were appointed as Assistant Engineers on ad hoc basis against the quota decided by the Government. Though the Public Service Commission while considering concurrence did not agree with the quota fixed and made certain advice, the same was not binding on the State Government and the State Government being the ultimate authority to make recruitment and promotion as per its policy, the petitioners are entitled for regularization of their service as Assistant Engineers as was done in the case of Stipendiary Engineers appointed as ad hoc Assistant Engineers. The plea of the State Government that due to disagreement of O.P.S.C. the draft amendment rule was not finalized is totally baseless, motivated and an afterthought. When the State Government as a matter of policy has decided to frame separate quota for the Degree holder Junior Engineers and Stipendiary Engineers, it is discriminatory to follow the same in respect of one class while ignoring the quota fixed for the other class on the plea that the Public Service Commission has not agreed with the same. As a matter of fact in the framing of recruitment and promotion rules which is a subordinate legislation in view of the provision under Article 309 and proviso thereof which provides that it shall be competent for the Governor of a State or such person as he may direct in the case of services and posts in connection with the affairs of the State to make rules regulating the recruitment and the conditions of service of persons appointed, consultation with the Public Service Commission is not necessary. As per the rules of business of the State Government, the Public Service Commission has no role. Therefore, the action of the Nodal Department in sending the draft recruitment rules being approved by the Cabinet to the OPSC instead of sending the same to the Governor so as to notify the same in the official gazette to make it enforceable is purely an ulterior motive and mala fide actions of the authorities. In any case since the Government has not accepted the advise of O.P.S.C. and proceeded ahead in accordance with its policy to validate the ad hoc appointment of the services of the Assistant Engineers from the Stipendiary Engineers, it cannot deny the benefit of the same policy decision so far as the Degree holder Junior Engineers are concerned.