RABINDRA NATH DAS Vs. STATE OF ORISSA

JUDGEMENT

(1.) THE Petitioner in the present Writ Petition has prayed to quash the letter dated 31.01.1996 (Annexure -4) & Order Dated 5.6.1997 (Annexure -5), passed by the Opp. Parties -authorities holding the appointments of the Petitioner as Octroi Moharir in the year 1987 & as Junior Tax Assistant in the year 1991 to be illegal & to regularize his service with all other service benefits.

(2.) THE facts, of the case a nutshell are that the Petitioner was a graduate & he was appointed as L.D. Clerk -cum -Typist in the office of the Chairman, Notified Area Council, Jaleswar on temporary basis vide Order No. 2230 dated 27.6.1981. Due to abolition of the Octroi he was retrenched from service with effect from 21.8.1981. Subsequently, on reimposition of Octroi the Petitioner along with others filed O.J.C. No. 2856 of 1986 before this Court seeking direction to the authorities to reappoint them in the post in consonance, with Rule 424 of the Orissa Municipal Rules, 1953 (for short 'the Rules. 1953'). After disposal of the writ Petition, by Order No. 574 dated 3.4.1987 (Annexure -1), the Petitioner was reappointed as Octroi Moharir. The Petitioner, while working in the said post, was appointed in the post of Junior Assistant in Octroi establishment on temporary basis vide Order Dated 28.11.1991 (Annexure -2) of the Chairman, Notified Area. Council, Jaleswar. Thereafter, the Petitioner was transferred from Jaleswar N.A.C. to Balasore Municipality vide order No. 25084 dated 02.08.1994 (Annexure -3) as Junior Assistant. While the matter stood thus, by Order Dated 31.1.1996 (Annexure -4), the Under Secretary to the Government intimated the Executive Officer, Jaleswar N.A.C., Jaleswar that the Petitioner was appointed as junior Assistant in the year 1981 against non -sanctioned post & he continued to work only -for a period of one month & fifteen days. The Petitioner was again appointed as Tax Collector in the year 1987 in contravention of the provisions of the OLFS Rules. The subsequent promotion of the Petitioner to the post of Junior Assistant in the year 1991 was also not in consonance with the statutory provisions & therefore the appointment was illegal & inoperative. The Petitioner's appointment on promotion from the post of Tax Collector to the post of Junior Assistant in the year 1991 by the Municipal Authorities was not in accordance with the rules & the same is regarded as ad hoc promotion to the said post. The period from 1981 to 1987 cannot be treated as continuous service. Thereafter, by Order Dated 5.6.1997 (Annexure -5) the Petitioner was brought back to Jaleswar Notified Area Council on the ground that he was irregularly promoted by Jaleswear Notified Area Council from the post of Tax collector to the post of Junior Assistant & was irregularly transferred to Balasore Municipality. Hence this Writ Petition.

(3.) PER contra, Learned Advocate appearing for the Opp. Parties contended that the Petitioner was appointed as L.D.C. -cum - Typist on 07.07.1981 on temporary basis by the Jaleswar NAC against a non -sanctioned post. The service of the Petitioner was terminated on 21.08.1981 due to abolition of the Octroi establishment. Pursuant to the order of this Court, the Petitioner was reappointed by Jaleswar NAC as Octroi Moharir. One post of Junior Assistant was sanctioned by the Government vide Government Order No. 45365 dated 25.10.1991. The NAC gave appointment to the Petitioner against the non sanctioned post of Junior Assistant on 28.11.1991. The OLFS Amendment Rules came into force with effect from 15. 09.1982. As per the provisions of OLFS Amendment Rules, any appointment to the post belonging to the LFS Cadre must be provided by the Government in Housing & Urban Development Department. The OLFS. Amendment Rules was in force at the time of appointment of the Petitioner in the post of Junior Assistant. The post of Junior Assistant/LDC -cum -Typist is a LFS Cadre post. Prior to 15.09.1982, the NAC was competent to fill up any post in both the cadres under Sections 73 & 75 of the Act & under Rule 7 of the OLFS Rules. The amended provision of OLFS Rules stipulates the constitution of a Selection Board to select the candidate in the LFS Cadre. Despite such stipulation, the NAC reappointed the Petitioner on 28.11.1991 in the post of Junior Assistant without following the provisions of LFS Rules. The NAC had also no power to promote the Petitioner from the post of Octroi Moharir to Junior Assistant. The promotion has to be made in accordance with law keeping in view the seniority of incumbents maintained through out the State. Therefore, in any view of the matter, the Petitioner's promotion/reappointment was void in law & inoperative. As the Petitioner was engaged on temporary basis for a period of 45 days in the year 1991 against non -sanctioned post & thereafter was retrenched from service, nothing can clothe him with the right to claim higher post bypassing the statutory provisions Nowhere, the Government has accepted the reappointment of the Petitioner as Junior Assistant. The Petitioner has been transferred from Jaleswar NAC to Balaaore Municipality under exigency of Government service pending regularization of his service in accordance with law. In any event, since the Petitioner has been promoted contrary to the Rules, he cannot get the benefit of regularization in service.