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Judgment
Dr. B.R.Sarangi, J
The petitioner, who was working as an Yardman (NMR) under the Nimapara Regulated Market Committee, Nimapara, has filed this application
seeking direction to the opposite parties to regularize his service with all consequential benefits as due and admissible to the post in accordance with
law.
The factual matrix of the case, in hand, is that petitioner was appointed as Yardman (NMR) on daily wage basis @ Rs.900/- per month vide order
dated 27.12.1999. Taking into consideration all relevant files, records and circulars, it was found that three sanctioned posts of Yardman were lying
vacant. Therefore, opposite party no.2 in a meeting held on 20.07.2008 decided to fill up the sanctioned posts by giving weightage and preference to
the existing NMR employees working under it, meaning thereby preferential treatment would be given to the existing NMR employees. Therefore, the
CCRs along with performance reports of all the existing employees were taken into consideration and according to their eligibility and suitability
opposite party no.2 selected candidates for various posts. So far as three posts of Yardman are concerned, the petitioner, having qualification B.Com
(Hons’), was found more suitable and topped in the list prepared by opposite party no.2. Therefore, opposite party no.2, on being authorized, sent
the details of the proceeding to the OSAM Board for obtaining necessary approval, on receipt of which appointment orders were to be issued to the
candidates including the petitioner. On 11.08.2008, opposite party no.1 communicated to opposite party no.2 that the decision of the appointment sub-
committee dated 20.07.2008 was approved subject to conditions mentioned therein. Accordingly, the Sub-Collector, Puri-cum-Chairman, RMC,
Nimapara requested the General Manager, OSAM Board on 07.09.2011 to communicate the letter no.3213 dated 11.08.2008 as well as the
proceeding of the appointment sub-committee for taking further action at its end. In compliance of the same, communication was made by the
Chairman, RMC, Nimapara on 21.05.2012 to the General Manager, OSAM Board with administrative approval for appointment of NMR Yardman to
Yardman, but no action has been taken thereon as yet, hence this writ application.
Ms. Pami Rath, learned counsel for the petitioner contended that once the appointment sub-committee in its meeting held on 20.07.2008 decided to
regularize the three Yardmen (NMR) against the sanctioned vacancies, where the petitioner’s name found place at serial no.1, and the same
having been approved by the Chairman, OSAM Board in its meeting held on 11.08.2008, there was no further requirement to have any approval of the
same, rather the services of the petitioner should have been regularized and he should have been granted all consequential benefits as due and
admissible to the post in accordance with law.
Ms. Sradha Das appearing on behalf of Mr. Sisir Das, learned counsel for opposite party no.1 contended that once the Chairman, OSAM Board
has approved the recommendation made by the appointment sub-committee, pursuant to the meeting held on 20.07.2008, no further order is required,
save and except approval of the OSAM Board has to be implemented in letter and spirit.
Mr. L.N. Rayatsingh, learned counsel for opposite parties no.2 and 3 has admitted the facts as narrated above and contended that for three
sanctioned posts of Yardman, opposite party no.2, from among the existing NMRs, selected three candidates as one of the Yardman was promoted to
the post of ‘Market Sirkar’ and the said Yardman post under regular category was likely to fall vacant. Further, vide letter no.2750 two posts of
Yardman were sanctioned by the OSAM Board on contractual basis. Therefore, in anticipation of such sanction, the committee decided to fill up the
same from amongst the existing NMRs as per their eligibility and suitability by adhering to the provisions under the ORV Act and subject to approval
of the proposal pending before the higher authorities for sanction. It is contended that unless the approval is received from opposite party no.1, no
regular appointment can be issued in favour of the petitioner even though the same has been duly recommended by the appointment sub-committee
and approved by the OSAM Board. Therefore, no illegality or irregularity has been committed by opposite party nos.2 and 3 in not regularizing the
services of the petitioner.
This Court heard Ms. Pami Rath, learned counsel for the petitioner, Ms. S. Das, learned counsel for opposite party no.1, and Mr. L.N. Rayatsingh,
learned counsel for opposite party nos. 2 and 3. Pleadings having been exchanged, with the consent of learned counsel for the parties, this writ petition
is being disposed of finally at the stage of admission.
The facts as delineated above are undisputed. In order to provide better regulation of buying and selling of agricultural produce and the
establishment of markets for agricultural produce in the State of Orissa, the State Legislature enacted the law called “The Orissa Agricultural
Produce Market Act, 1956â€. Section 2 (ii-a) thereof defines “Boardâ€, which means the Orissa State Agricultural Marketing Board established
under Section 18-A of the Act. Section 2(viii) provides “Market Committeeâ€, which means a committee established under Section 5. Chapter-II
deals with constitution of markets and market committee. Section 5 provides establishment of market committee whereas Section 6 envisages about
constitution of market committee. Chapter-III deals with incorporation of market committee, its power and duties. Section 8 deals with appointment of
sub-committee or joint committee and Section 9 deals with employment of staff. Chapter-IV-A deals with constitution and powers of the Board.
Section 18-A deals with establishment of the Board and Section 18-B deals with powers and functions of the Board. Section 27 deals with power to
make rule. In exercise of power conferred under Section 27 of the Orissa Agricultural Produce Market Act, 1956 (for short “the Act, 1956â€), the
State Government framed Rules called “The Orissa Agricultural Produce Markets Rules, 1958†which shall apply to any market area or areas
notified as such under Section 4 of the Act, 1956. Part-III of Rules, 1958 deals with market committee, its Chairman, Officers and servants and
Disputes Sub-Committee. Rule-33 deals with servants of the market committee. Rule-33, which has been substituted by O.G.E. No.794 dated
03.08.1996, reads thus:-
“33. Servants of the Market Committee :- (1) The Market Committee may appoint such officers and servants as may be necessary for the proper management of
the market :
Provided that the superior Officers of the Committee shall be appointed only with the previous approval of the Board.
(2)Superior Officers shall be the Secretary, Clerks and such officers and servants of the Market Committee as the Board may determine from time to time.
(3)The terms and conditions of service of superior officers shall be such as may be approved by the Board and those of others shall be such as the Market
Committee may decide from time to time.
(4)The Market Committee shall be the Disciplinary Authority in respect of all officers and servants of the Committee :
Provided that the removal or dismissal of superior officers as a measure of punishment shall be subject to the approval of the Board.â€
In view of the aforementioned provisions contained in the Rule-33, power has been vested with the market committee which may appoint such
officers and servants, as may be necessary for proper management of the market, provided that the superior officers of the committee shall be
appointed only with the previous approval of the Board. As per sub-rule (2) of Rule-33, superior officers shall be the Secretary, Clerks and such
officers and servants of the market committee, as the Board may determine from time to time. As per sub-rule (3) of Rule-33, the terms and
conditions of service of superior officers shall be such as may be approved by the Board and those of others shall be such as the market committee
may decide from time to time. So it clarifies the position that the terms and conditions of service of superior officers are required to be approved by
the Board and so far as other employees are concerned, it is the market committee which has to take a decision and fix the terms and conditions of
service. The Yardman, being not a superior officer post, the market committee is competent to determine the terms and conditions of service of such
employee.
The above being the position of law, applying the same to the present context, admittedly there were three vacancies in the post of Yardman
available to be filled up on regular basis, pursuant to which the appointment sub-committee was constituted and on consideration of the requirement
recommended the name of the petitioner, having qualification B.Com (Hons.), to be regularized against one of the existing vacancies. Once the
appointment sub-committee in its meeting dated 20.07.2008 fixed the terms and conditions, the service of the petitioner has to be regularized as per the
provisions of law discussed above. But the fact remains that the Board also approved the same, vide letter dated 11.08.2008, and therefore the same
had to be implemented with letter and spirit and meaning thereby, the services of the petitioner should have been regularized against the clear vacancy
available in the post of Yardman. But, however, for some reason or other, adopting dilly dally tactics, the legitimate claim of the petitioner has not been
implemented, which amounts to arbitrary and unreasonable exercise of power and hit by constitutional mandate which violates Articles 14 and 16 of
the Constitution of India.
In Praveen Singh v. State of Punjab, (2001) 8 SCC 633: AIR 2001 SC 152, the apex Court held the arbitrariness, being opposed to reasonableness,
is an antithesis to law. There cannot, however, be any exact definition of arbitrariness neither can there be any strait-jacket formula evolved therefor,
since the same is dependent on the varying facts and circumstances of each case.
In Om Kumar v. Union of India, (2001) 2 SCC 386 : AIR 2000 SC 3689 the apex Court held that arbitrary action is described as one that is
irrational and not based on sound reason or as one that is unreasonable.
In Union of India v. Dinesh Engineering Corporation, (2001) 8 SCC 491 : AIR 2001 SC 3887 the apex Court held that any decision, be it a simple
administrative decision or a policy decision, if taken without considering the relevant facts, can only be termed as an arbitrary decision and violative of
the mandate of Article 14 of the Constitution.
In the case of Praveen Singh (supra), the apex Court further held as follows:-
“The administrative or quasi-judicial authority clothed with the power of selection and appointment ought to be left unfettered in adaptation of procedural
aspect but that does not however mean and imply that the same would be made available to an employer at the cost of fair play, good conscience and equity.â€
In view of the law laid down by the apex Court as discussed above, there is no iota of doubt that when the recommendation has been made by the
appointment sub-committee with regard to regularization of services of the petitioner and the same was approved by the Board, the same should have
given effect to by opposite parties no.2 and 3. Instead of doing so, for some reason or other, the opposite parties no.2 and 3 have tried not to
implement the same resulting in depriving the petitioner of his valuable right to continue against a regular post for which he has been selected by
following due procedure by the appointment sub-committee and approved by the Board.
Needless to mention, impugning the inaction of the authorities in not regularizing him, the petitioner has approached this Court by filing this
application and this Court, vide order dated 20.12.2012, issued notice to the opposite parties. The petitioner then filed Misc. Case No.2344 of 2014
seeking direction not to fill up one post of Yardman till disposal of the writ petition and this Court, considering the grievance made by the petitioner,
directed that the post of Yardman may not be filled up till disposal of the writ petition without leave of the Court. Since the order is still in force and
the post of Yardman is still lying vacant, in compliance of the order passed by this Court, the services of the petitioner should have been regularized
against the vacant post of Yardman as per the recommendation made by the appointment sub-committee on 20.07.2008 and duly approved by the
Board on 11.08.2008.
In the aforesaid facts and circumstances, this Court directs opposite parties no.2 and 3 to regularize the services of the petitioner with effect from
11.08.2008, when the Board approved the recommendation of the appointment sub-committee made on 20.07.2008, and grant all consequential service
and financial benefits as due and admissible to the post, by making due calculation thereof, within a period of four months from the date of passing of
the judgment.
The writ petition is thus allowed. However, there shall be no order as to costs.