Geetanjali Pattnaik vs District Judge and Another

I.M. Quddusi, A.C.J.

Since these three Writ Petitions have been filed on self-same facts claiming identical relief, they were heard analogously & are disposed of by this common order.

Facts leading to filing of these Writ Petitions are that pursuant to an advertisement dated 28.6.2002, the District Judge, Balasore-Bhadrak, Balasore invited applications in plain papers from eligible candidates, Inter alia, to fill up five posts of Junior Stenographers In the judgeship of Balasore - Bhadrak out of which one was reserved for S.T., one was for S.T. (Woman) & three for General candidates. Pursuant to the advertisement, the Petitioners applied for the said post. After holding the interview & test, a merit list vide Annexure-2 was prepared in which the name of the Petitioners found Petitioners found place at serial No. 8, 7 & 15 respectively. After recruitment, appointment orders were issued to three general candidates & one S.T. candidate who joined the posts & within one year of selection & joining two general candidates left the job as a result of which next two selectees were appointed. As some vacancies arose because of the opening of the Fast Tract Courts, Satya Kumar Das & Geetanjali Patnaik, the Petitioners in W.P.(C) No. 9690 of 2009 & W.P.(C) No. 9692 of 2009 Sl. Nos. 7 & 8 of the Merit List (Annexure-2) by Order Dated 22.3.2003 (Annexure-5 to W.P.(C) No. 9690/2009) were appointed as Junior Stenographer for a period of one year on ad hoc & temporary basis & posted to work in the Court of S.D.J.M., Bhadrak & J.M.F.C., Bhadrak respectively. Similarly by Order Dated 1st of September, 2005 (Annexure-5) the Petitioner in W.P.(C) No. 9691 of 2009 was appointed as Junior Stenographer on temporary & ad hoc basis for a period of one year & was pasted in the establishment of the S.D.J.M., Balasore. The period of their appointment stood extended from time to time & they are continuing as Junior Stenographer till date without any interruption. They made representation to the District Judge to regularize their ad hoc services which was rejected by Order Dated 17.6.2009 on the ground that since they were recruited under Special Scheme of the Government of Orissa envisaged under Home Department Notification No. 65681 dated 12.12.2001 purely on ad hoc & temporary basis, their services cannot be regularized. Hence, these Writ Petitions praying to quash the order of rejection & for a direction to the Opp. Parties to regularize their services.

A counter affidavit has been filed on behalf of the Opp. Parties more or less admitting the-factual aspects. Their specific stand is that since the Petitioners were appointed temporarily on ad hoc basis under Rule 5(3) of the Orissa District & Subordinate Courts Ministerial Services (Special Scheme) (Method of Recruitment & Conditions of Services) Rules, 2001, (hereinafter referred to as the 2001 Rules) their services cannot be regularized. It is further stated in the counter affidavit that as per Rule, 1969, the advertisement was made for 5 posts i.e. S.T.1, S.T.(W) 1 & General-03. On regular basis four selectees, i.e. three general & one S.T were appointed & the post reserved for S.T.(W) was lying vacant as no candidate from that category was available. Within one year of selection & joining two general candidates left the job as a result, next two selectees were appointed & consequently up to Sl. No. 6 of the merit list vide Annexure-2 was exhausted & there was no chance for the Petitioner & others to be appointed & that was stopped there. By that time, the Rules 2001 had come into force. On the basis of the Rules, 2001, when some other vacancies occurred, the posting of the Petitioners were considered to be made by the District Judge. Accordingly, District Judge thought the Petitioners fit to be appointed as such but not from the merit list since the Petitioners have qualified in an examination without any further advertisement & previous advertisement was for limited posts, it was not possible to regularly absorb the Petitioners beyond the advertisement made under the Rules, 1969. It has been further stated therein in the counter that at present 8 posts of Junior Stenographers are lying vacant & the service of the Petitioners are not being counted & C.C.R is not maintained. Rule 2001 is synonymous (in pari materia) to the appointment Rules governing appointment of Fast Track Judges who cannot be regularly absorbed & the appointment Rules under both the Schemes are guided & governed by the recommendation of 11th Finance Commission. It is further stated in the counter affidavit that for some new vacancies, fresh advertisement has been published in the year 2009.

Mr. S.S. Das, Learned Counsel for the Petitioners submits that the Petitioners were appointed against the vacancies caused in the base level posts due to promotion of the existing incumbents as Senior Stenographers meant for the Fast Track Courts. The advertisement issued under Annexure-1 does not speak of appointment against the vacancies in the Fast Track Courts & further the advertisement does not speak of the Scheme. He has further submitted that Petitioners are three out of the sixteen candidates who came out successful in the recruitment held in 2002 & included in the merit list in accordance with the 1969 Rules. His further submission is that the Petitioners have been continuing as Junior Stenographers in the judgeship without any interruption till date from the respective date of their appointment, their service books have been opened & maintained, they have been allowed increments & their pay has been fixed in accordance with the 6th Pay Commission. They have by now become over-aged. He further submits that the candidate at Sl. No. 14 of the merit list of the year 2002 was appointed on a consolidated pay of Rs. 3,000 per month in the Judgeship of Puri & was subsequently regularized vide Order No. 46/2005 dated 6.4.2006. Lastly he has submitted that similarly situated persons in other judgeships have been regularized. He contended that the Petitioners having faced regular recruitment for appointment to State Government service pursuant to the advertisement published in the dally the Samaj dated 28.6.2002 & included In the merit list & having been appointed & posted to work in the Courts other than Fast Track Courts, It cannot be said that they were recruited under the Special Scheme & therefore their services cannot be regularized.

Learned Counsel for the State sought to justify the action of the Opp. Parties contending that the Petitioners having been recruited under the Special Scheme which does not provide for regularization, their services cannot be regularized.

On our direction the relevant file was produced by the Learned Government Advocate. We have perused the file from which it appears that the last recruitment for the post of Junior Stenographer in the judgeship of Bhadrak & Balasore was made in the year 2002 & the merit list was published on 14.8.2002. Sixteen candidates secured the standard pass mark & accordingly merit list of sixteen candidates was prepared & no recruitment having been made in the meanwhile, the vacancies arising in the meanwhile due to retirement/resignation/promotion have been filled up by appointing the successful candidates of the previous merit list in order of merit. The Petitioner in W.P.(C) Nos. 9690 & 9692 of 2009 whose names appeared at Sl. No. 8 & 7 of the merit list respectively were appointed within one year of publication of the merit list of the year 2002. Although Petitioner Rabindra Kumar Mishra who was at Sl. No. 15 of the merit list was appointed in 2005, all of them have been allowed to continue till date.

In the case of the Secretary, State of Karnataka and Others Vs. Umadevi and Others, , the Hon''ble Apex Court has held that question of regularization in any service including any Government service arises in two contingencies. Firstly, if on any available clear vacancies which are of a long duration, appointments are made on ad hoc basis or dally wage basis by a competent authority & are continued from time to time & if it is found that the incumbent concerned have continued to be employed for a long period of time with or without any artificial break & their services are otherwise required by the institution which employs them, a time may come in service career of such employees who are continued on ad hoc basis for a given substantial length of time to regularize them so that the employee concerned can give their best by being assured security of tenure. But this would require one pre-condition that the initial entry of such employee must be made against an available sanctioned vacancy by following the rules & regulations governing such entry. The second type of situation in which the question of regularization may arise would be when the initial entry of the employee against an available vacancy is found to have suffered from some flaws In the procedural exercise though the person appointing is competent to effect such Initial recruitment & has otherwise followed due procedure for such recruitment.

Following the case of Umadevi (supra), this Court, in the case of Smt. Meera Piri Vs. State of Orissa and Others, , has held as under:

Law is well settled that main concern of the Court in the above situation is to see that .the Executive acts fairly & gives a fair deal to its employees consistent with the requirements of Article 14 & 16 of the Constitution of India. It also means that the State should not exploit its employees nor should it seek to take advantage of the helplessness & misery of either the unemployed persons or the employees, as the case may be. Since the State is a model employer it is for this reason equal pay must be given for equal work which is indeed one of the directive principle of the Constitution. The person should not be kept in temporary or ad hoc status for long time. Where a temporary or ad hoc appointment is continued for long the Court presumes that there is need & warrant for regular post & accordingly directs regularization. If an ad hoc or temporary employee is continued for a fairly long spell, the authorities must consider his case for regularization provided he is eligible & qualified according to the rules & his service record is satisfactory & his appointment does not run counter to reservation policy of the State. The normal rule of course is regular recruitment through the prescribed agency but exigencies of administration may some times call for an ad hoc & temporary appointment to be made.

It is necessary to mention here that the Eleventh Finance Commission allocated Rs. 502.90 crores under Article 275 of the Constitution of India for the purpose of setting up 1734 Courts in various States in India to deal with long pending cases particularly Sessions cases. As allocation of funds was made by the Finance Commission stipulating time-bound utilization, i.e., within a period of five years, various State Governments were required to take necessary steps to establish the aforesaid Courts in their respective States. It appears that the Finance. Commission suggested that the States may consider re-employment of the retired Judges for a limited period for disposal of pending cases. Government of Orissa vide Notification No. 65681 dated 12.12.2001 framed the Orissa District & Subordinate Courts Ministerial Service (Special Scheme) (Method of Recruitment & Conditions of Service) Rules, 2001 for regulating appointments of the staff of District & Subordinate Courts on ad hoc & clearly temporary basis exclusively for implementation of the recommendation of the 11th Finance Commission relating to up gradation of judicial administration under up-gradation grant for elimination of old cases. Clause 5(3) of the said scheme deals with the terms & conditions of appointment for the post of Senior Stenographers, Peons & Drivers & says that the appointment for the posts of Senior Stenographers, Peons & Drivers shall be made by the District Judge by way of re-employment from the surplus staff working in various Government Departments. In case of non-availability of surplus Senior Stenographers, the posts shall be filled up by way of promotion & the base level posts shall be filled up by way of fresh recruitment purely on ad hoc & temporary basis. Learned Counsel for the Petitioner has submitted that none of the Clauses of Rules, 2001 deals with appointment of Junior Stenographers for which the said Rules cannot be said to have any application for appointment of Junior Stenographers &, therefore, the same is purely regulated by 1969 Rules.

It is an undisputed fact that the Petitioners were the successful candidates of the interview held for the post of Grade III Stenographer (Junior Stenographer) under the Orissa District & Subordinate Ministerial Service (Method of Recruitment & Conditions of Service) Rules, 1969 (in short, ''the 1969 Rules'') by the District Judge, Bhadrak-Balasore, Balasore & they were Included in the merit list published in the year 2002. Rule 4 of the aforesaid Rules provides for method of recruitment which speaks as under:

Method of recruitment - Subject to other provisions made in these rules. Recruitment to the posts in the ministerial service of the District Court & Subordinate Courts shall be made by the following methods, namely:

(a) in respect of Lower Division Clerks, Typists, Copyists & Grade III Stenographers by competitive examination in accordance with Rule 6, &

(b) in respect of other posts by promotion in accordance with rule 10.

Rule 6(1) of the aforesaid rules, inter alia, says that Recruitment to the posts of Grade III Stenographers shall be made by a competitive examination, whenever necessary. Rule 6(5) provides that in case a vacancy occurs after the list of successful candidates is exhausted & before the announcement of the result of the next examination, such vacancy may be filled up by a successful candidate of the previous years; provided that his age does not exceed the maximum limit laid down in Sub-rule (3) & failing that by any candidate who possesses the requisite qualification & is within the prescribed age limit laid down in Sub-rule (3). Rule 7(1) prescribes that all appointments to the permanent post of Grade III Stenographers (Junior Stenographers) shall be made on probation for a period of two years from the date of appointment provided that if during the period of probation a candidate''s work or conduct is found unsatisfactory or shows that he is unlikely to become efficient, the District Judge may either discharge him from service or extend his period of probation for such further period as he may think fit. Under Rule 7(2), no person shall be confirmed in the permanent post of Grade-III Stenographers (Junior Stenographers) unless he has satisfactorily completed the probationary period, as aforesaid. After their appointment the Petitioners were posted in different Courts like S.D.J.M., J.M.F.C. etc but instead of giving them regular appointment they were given ad hoc appointment. At this stage, we cannot say that the ad hoc appointment was illegal because the appointing authority has ancillary power to make appointment either on regular basis or on ad hoc basis even under Rule 1969. Under the 2001 Rules appointments were made only for the Fast Track Courts for which the Eleventh Finance Commission had recommended Therefore, it cannot be said that the benefit of those rules were ever taken for appointment of the Petitioners. The Courts of J.M.F.C. or S.D.J.M. & Ors. Courts were not sanctioned by the Eleventh Finance Commission. So, when the Petitioners were selected In the recruitment held under the 1969 Rules & were appointed & posted, as aforesaid, continued to be employed since 2003 in case of the Petitioners in W.P.(C) Nos. 9690 & 9692 of 2009 & 2005 in case of Petitioner in W.P.(C) No. 9691 of 2009 without any interruption & their services are otherwise required by the institutions & they would better serve the organization than fresh recruits by virtue of the experience gained in the meantime, we see no justification as to why the benefit of regularization should be denied to them on the pretext of the Special Scheme.

We, therefore, allow the Writ Petitions & quash the impugned order refusing to regularize the services of the Petitioner & direct that the services of the Petitioners be regularized treating them as recruits under the 1969 Rules. There would be no order as to costs.

Sanju Panda, J.

I agree.