HIGH COURT OF ORISSA: CUTTACK W.P.(C) No.11274 of 2011 In the matter of an application under Article 226 of the Constitution of India. -------- Paresh Kumar Sahoo, Son of Ramesh Chandra Sahoo, AT/PO : Talabarkot, Via : Gobindpur, Dist : Dhenkanal … Petitioner -Versus- District & Sessions Judge, Dhenkanal and another … Opp. Parties For Petitioner : M/s. K.P.Mishra, S.Mohapatra, T.P.Tripathy, L.P. Dwivedy For Opp. Parties : Addl. Government Advocate ---------- P R E S E N T: THE HONOURABLE THE CHIEF JUSTICE SHRI.V.GOPALA GOWDA AND THE HONOURABLE SHRI JUSTICE B.N.MAHAPATRA Date of Judgement: 14.09.2011 B.N. Mahapatra, J. This writ petition has been filed with a prayer to quash the order dated 30.03.2011 (Annexure-6) passed by the Registrar, Civil Courts, Dhenkanal (opposite party No.2) by which the petitioner was directed to be relieved of his duty with effect from the afternoon of 31st March, 2011 on expiry of the tenure of appointment on the ground that the same is bad and unsustainable in the eye of law. 2. Bereft of unnecessary details, the facts and circumstances giving rise to the present writ petition are that the District and Sessions Judge, Dhenkanal-Angul, Dhenkanal (opposite party No.1) floated an advertisement on 01.05.2009 inviting applications from intending candidates in order to fill up two posts of Junior Stenographers on a consolidated salary of Rs.3,000/- per month purely on annual contract basis in accordance with the Government of Orissa, Home Department Letter No.13769 dated 16.03.2002. Pursuant to the said open advertisement, the petitioner submitted his candidature for the post in question. Interview, shorthand, typing tests and computer test were conducted on 05.06.2009 and 06.06.2009 by opposite party No.1. As per the final merit list published, two candidates were selected for the post in question and the name of the petitioner was placed at Sl.No.2. In terms of the select list, on 24.07.2009 opposite party No.1 issued the appointment order on a consolidated salary of Rs.3,000/- per month up to the period 31.03.2010. Pursuant to such appointment order, the petitioner joined in the aforesaid post on 03.08.2009. From the date of his appointment the petitioner was working under S.D.J.M., Talcher. While he was continuing as such, the service of the petitioner was not extended after 30.03.2011. Vide Annexure-6, the petitioner was directed to be relieved of his duty from 31.03.2011 afternoon. Hence, the present writ petition. 3. Mr. K.P. Mishra, learned counsel appearing on behalf of the petitioner submitted that though the advertisement under Annexure-1 stipulates for annual contract, but the service of the petitioner was extended from time to time by the authority. No adverse remark was 2 communicated to the petitioner regarding his work. As it appears from the impugned order dated 30.03.2011, the tenure of appointment of the petitioner being completed, his service was terminated; whereas the other candidate, who was selected along with the petitioner, is still continuing under J.M.F.C., Angul. No reason whatsoever has been assigned for termination of service of the petitioner. Mr. Mishra vehemently argued that the petitioner has been duly selected by facing selection process. The petitioner was appointed against sanctioned vacancy which is a base level post. Non-extension of service of the petitioner is violative of Article 14 and Article 16 of the Constitution specifically when another candidate is still continuing. Referring to Rule- 4 of the Orissa District & Subordinate Courts Ministerial Service (Method of Recruitment and Conditions of Service) Rules, 1969, Mr.Mishra argued that petitioner’s recruitment as Junior Stenographer was made as per the provisions of the law. Without giving a reasonable opportunity of hearing to the petitioner, his service has been terminated. All base level posts are filled up through contractual appointment in the State of Orissa and thereafter, the same shall be regularised considering the period of service. 4. Learned Government Advocate submitted that the appointment of the petitioner is on contract and temporary basis. In the appointment letter he was intimated that his service could be terminated at any time without assigning any reason thereof. The petitioner having 3 accepted such terms and conditions now he is estopped from challenging his termination. 5. The undisputed facts are that pursuant to an open advertisement, the petitioner has applied for one of the posts of Junior Stenographers. After facing due process of selection, he was selected and was given appointment in the said post. His service was extended from time to time. Though along with him another candidate was also selected and given appointment and he is continuing in service, but petitioner’s service has been terminated. There is also no adverse remark against the petitioner. 6. At this juncture, it is necessary to know the method of recruitment provided in the Orissa District & Subordinate Courts Ministerial Service (Method of Recruitment and Conditions of Service) Rules, 1969. Rules 4 and 6 of the said Rules are extracted below:- Rule-4 “Method of recruitment— subject to other provisions made in these rules, Recruitment to the posts in the Ministerial service of the District Courts and Subordinate Courts shall be made by the following methods, namely: (a) in respect of Lower Division Clerks, Typists, Copyists and Grade III Stenographers by competitive examination in accordance with Rule-6; and (b) xx xx xx” Rule-6. “Competitive Examination— (1) Recruitment to the posts of Lower Division Clerks, Typists and Copyists in the District Courts and the Subordinate Courts of each district shall be made by a competitive examination to be held once a year. Recruitment to the posts of Grade III Stenographers shall be made by a competitive examination, whenever necessary. (2) The competitive examination shall be conducted by each District Judge or such other officer as he may appoint in this behalf. The date on which and the 4 places at which the examinations are to be held, shall be fixed by the District Judge. (3) A candidate shall – (a) have passed at least the Matriculation or an equivalent examination of the recognised Board or University; (b) be over 18 years and below 28 years of age on the date fixed by the District Judge: Provided that the upper age-limit shall be relaxed up to a maximum of five years if a candidate belongs to Scheduled Caste or a Scheduled Tribe; (c) be able to speak, read and write Oriya and has passed a test in Oriya equivalent to the M.E. Standard; (d) be of good character; (e) be of sound health, good physique and free from organic defects or bodily infirmity; (f) have not more than one spouse living, if married; and (g) have paid the fees prescribed for the examination; (4) The standard, syllabus, subjects of examination, determination of vacancies, advertisement of vacancies and communication of results shall be as set forth in Appendix ‘A’. (5) In case a vacancy occurs after the list of successful Candidates is exhausted and 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) and failing that by any candidate who possesses the requisite qualification and is within the prescribed age-limit laid down in Sub-rule (3). In the latter event, the appointment of a candidate shall be made temporarily and shall not continue beyond the date when result of the next year’s examination is declared, unless he passes the said examination.” 7. It is not the case of opposite parties that the petitioner, on the date of recruitment, did not possess the requisite criteria to be appointed in the post of Junior Stenographer. On the other hand, he was given appointment in the post of Junior Stenographer after facing due process of selection. It is also not the case of the opposite parties 5 that there is no need of services of a Stenographer in the Office of S.D.J.M., Talcher and no such vacancy in the said post exists. 8. In view of the above, we quash the order of termination of service of the petitioner passed on 30.3.2011 under Annexure-6 and direct opposite party No.1 to consider the case of the petitioner for appointment in the post of Junior Stenographer afresh if any vacancy exists in the said post and there is need of service of a Junior Stenographer. We make it clear that the petitioner shall not be entitled to any financial benefit for the period he has not worked in the said post. 9. In the result, the writ petition is disposed of with the above observation and direction. No order as to costs. ………………………………. B.N.Mahapatra, J. V. Gopala Gowda,C. J. I agree. ……………………………….. Chief Justice Orissa High Court, Cuttack The 14th September, 2011/ssd/ss/skj 6