Allowed

Abhishek Dey v. Dist.and Sessions Jud

Orissa HC4 Mar 2016WP(C)/14856/2014

Case brief

AI extract

What is this about?

A division bench quashed an addendum issued by the District Judge converting regular appointments of selected candidates into contractual terms. The court held that the Odisha Group C and Group D Posts (Contractual Appointment) Rules, 2013, which came into force after the advertisement for recruitment, cannot apply retroactively to appointments made pursuant to rules prevailing at the time of adve

What did the court decide?

The impugned addendum dated 05.6.2014 converting appointments from regular to contractual terms is quashed; petitioners entitled to consequential benefits.

This writ application has been filed challenging the Addendum to Order dated 17.5.2014, issued by the District Judge, Mayurbhanj, Baripada, vide his letter dated 05.6.2014, under An nexures 5, 6 and 7 to the writ application.

The brief facts of the case is that the District and Sessions Judge, Mayurbhanj, Baripa da-opposite party no.1, issued an advertisement for recruitment to the posts of Junior Clerk -cum- Copyist/ Junior Typist/ Grade-III Stenographer in the Judgeship of Mayurbhanj, which was published in the daily news paper The Samaj on 30.5.2013. It was specifically stated in the s aid advertisement that the post of Junior Clerk-cum-Copyist and Junior Typist will be in the s cale of pay of Rs.5,200-20,200/- with the Grade Pay of Rs.1,900/- and the post of Grade-III St enographer will carry the same scale of pay with the Grade Pay of Rs.2,400/-.

The petitioners along with the others applied for the posts in the prescribed form, as per the advertisement. After having qualified in the written test, the petitioners were calle d for skill test/viva voce. All the petitioners having found to have qualified in the selectio n process, they were duly selected. By order dated 17.5.2014, issued by the District Judge-opp osite party no.1, the petitioner nos.1 to 13 were appointed as Junior Clerk-cum-Copyist in the scale of pay of Rs.5,200/--20,200/- with the Grade Pay of Rs.1,900/- and petitioner no.14 was appointed as Grade-III Stenographer in the scale of pay of Rs.5,200-20,200/- with the Grade P ay of Rs.2,400/-. Similarly, petitioner nos.15 to 17 were appointed as Junior Typist in the sc ale of pay of Rs.5,200-20,200/- with the Grade Pay of Rs.1,900/- vide order dated 17.5.2014, i ssued by the said opposite party no.1.

As per the appointment orders, the petitioners were directed to join in their respectiv e posts at their respective places of postings in the forenoon of 17.6.2014 positively with th e required documents. While the mater stood thus, all the petitioners received an addendum to the order dated 17.5.2014, issued by the District and Sessions Judge, Mayurbhanj, Baripada, wh ich was communicated to them vide Memo dated 05.6.2014. In the said addendum, the opposite par ty no.1 informed all the petitioners that in view of the enactment of Odisha Group-C & Group-D Posts (Contractual Appointment) Rules, 2013, their appointment orders are converted to contra ctual one with a monthly consolidated remuneration for a period of six years. It was further s tipulated that on successful completion of six years of contractual service, their appointment will be regularized.

It is the case of the petitioners that the State Government has enacted the Odisha Grou p C and Group D Posts (Contractual Appointment) Rules, 2013 (hereinafter referred to as 2013 R ules), vide Notification dated 12.11.2013, which came into force from 18.11.2013. But the adve rtisement in question, pursuant to which the petitioners were selected and appointed, was issu ed on 30.5.2013, which was much prior to the coming into force of the 2013 Rules. Therefore, s uch rules have no application to the selection and appointment of the present petitioners. It is submitted that law is well settled that once a process of selection has started a s per the existing rules, even during the process of selection, if any new rule comes into for ce, such process of selection has to be completed as per the old rule and not as per the new r ule.

Learned counsel for the petitioners has relied upon a letter of the State Government in the General Administration Department, addressed to the Collector, Balasore, dated 21.1.2014, wherein it has been clarified that the rules in force at the time of advertisement for appoin tment to Group-C post will be applicable in case of the candidates, who have applied in respec t to the said advertisement. The said letter is extracted below:

I am directed to invite reference to your letter No.2949 dated 17.12.2013 on the subjec t mentioned above and say that the rules in force at the time of advertisement will be applica ble in case of the candidates who have applied in response to the said advertisement and for t he advertised vacancy.

Learned counsel for the petitioners has relied upon the decision of the apex Court in B .L.Gupta and another v. M.C.D., (1998) 9 SCC 223, wherein the Honble Court has held that the r ule which was prevalent at the time of recruitment to service shall be made applicable and not the rule which has subsequently come into force.

Similar is the view expressed by the apex Court in K.Manjusree v. State of Andhra Prade sh and another, (2008) 3 SCC 512, wherein the Honble Court has reiterated that the rules preva lent at the time of recruitment to a service shall be applicable to the candidates and not the rules which has subsequently come into force.

Learned Addl. Government Advocate for the opposite parties in response submits that as the 2013 Rules had come into force in the meantime, the impugned orders were issued by the Dis trict Judge, Mayurbhanj, Baripada, by way of addendum to the earlier order of appointment date d 17.5.2014. Accordingly, it is submitted that there is no impropriety or illegality in modify ing the conditions of appointment of the petitioners in terms of the new rules. He has relied upon the decisions of the apex Court in Union of India and others v. P.C.Misra, 1994 Supp (1) SCC 39 and Govt. of A.P. and others v. Syed Yousuddin Ahmed (1997) 7 SCC 24, in support of his contention that the impugned addendum issued in terms of the 2013 Rules is proper and justifi ed.

However, learned counsel for the State has no answer to the clarification given by the General Administration Department of the State Government, regarding application of the 2013 R ules to the case of the petitioners, as quoted above. Admittedly, the District Judge, Mayurbhanj, Baripada, issued advertisement, which was p ublished in the daily news paper The Samaj dated 30.5.2013, inviting applications for the post s of Copyists/Junior Typist/ Grade-III Stenographer in the Judgeship of Mayurbhanj, Baripada, with the scale of pay and Grade Pay detailed therein, with usual D.A. and other allowances, a s admissible by the Government from time to time. Pursuant to such advertisement, the petition ers submitted their applications and on completion of the recruitment process, the petitioners were duly selected and were issued with appointment orders dated 17.5.2014, wherein it was re iterated that their appointment was temporary in the aforesaid scale of pay and Grade Pay with usual D.A. as admissible, as had been detailed in the advertisement.

Subsequently, vide letter dated 5.6.2014, the District Judge, Mayurbhanj, Baripada, has issued addendum to the earlier order of appointment dated 17.5.2014, modifying the appointme nt of the petitioners from regular with prescribed pay scale and Grade Pay to contractual for six years with a consolidated monthly remuneration. The decisions relied upon by learned counsel for the State relates to amendment of the existing rules and its application to the existing Government employees, which has no applica tion to the facts of the present case. Further, the contention put forth by the State counsel runs contrary to the clarification given by the General Administration Department of the State Government, regarding application of the rules in force at the time of advertisement to be ap plicable to the candidates, who have applied in response to such advertisement.

For the reasons as aforestated and in view of the law laid down by the apex Court, the impugned addendum issued by the District Judge, Mayurbhanj, Baripada, dated 05.6.2014, modifyi ng the terms of appointment of the petitioners are hereby quashed. The petitioners shall be en titled to all consequential benefits.

Abhishek Dey v. Dist.and Sessions Jud

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Abhishek Dey v. Dist.and Sessions Jud

Case brief

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