HIGH COURT OF ORISSA: CUTTACK. ORIGINAL JURISDICTION CASE NO.8913 OF 1997 In the matter of an application under Articles 226 and 227 of the Constitution of India. ----- Rabindra Nath Das … Petitioner. -Versus- State of Orissa & others. … Opp. Parties. For Petitioner : M/s.A.S.Nandy & T.Sinha For Opp. Parties : Mr.T.Rath,Addl.Govt.Advocate (For O.Ps.1,2,3 & 5) M/s.Asoke Mukherjee, G.Mukherjee,P.Mukherjee, B.Misra & Miss.Jhunu Rath (For O.P.No.4) M/s. D.P.Dhal & A.K.Parida (For O.P.No.6) ---------- P R E S E N T: THE HONOURABLE SHRI JUSTICE A.S.NAIDU AND THE HONOURABLE SHRI JUSTICE B.N.MAHAPATRA Date of hearing: 16.11.2009 : Date of judgment: 10.12.2009 ______________________________________________________________________________ B.N.Mahapatra, J. The petitioner in the present writ petition has prayed to quash the letter dated 31.01.1996 (Annexure-4) and 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 and as Junior Tax Assistant in the year 1991 to be illegal and to regularize his service with all other service benefits. 2. The facts of the case in a nutshell are that the petitioner was a graduate and 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 re-appoint 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 and he continued to work only for a period of one month and fifteen days. The petitioner was again appointed as Tax Collector 2 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 and therefore the appointment was illegal and 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 and 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 and was irregularly transferred to Balasore Municipality. Hence this writ petition. 3. Mr.Nandy, learned counsel appearing on behalf of the petitioner vehemently argued that the appointment of the petitioner in the year 1981 was made through a Selection Committee constituted under Section 73 read with Section 75 of the Orissa Municipal Act, 1950 (for short, ‘the Act’) and Rule 7 of the Orissa Local Funds Service Rules, 1975 (for short, ‘the OLFS Rules’). Under the said provisions, the Chairman was the competent authority for such appointment and, accordingly, on 27.06.1981 the petitioner was appointed by order of the Chairman of Jaleswar NAC under Annexure-1. However, due to abolition of imposition of Octroi, the petitioner was retrenched from service with effect from 3 21.08.1981 with the assurance by Addl. District Magistrate, Balasore, who was in-charge of Jaleswar NAC that his case would be duly considered for reappointment on reimposition of Octroi tax. After reimposition of Octroi tax by Jaleswar NAC, as the petitioner along with the other retrenched employees were called upon to get their names sponsored through Employment Exchange for consideration of their appointment, they filed a writ petition bearing OJC No.2856/86 before this Court apprehending non-consideration of their cases for reappointment. This Court after hearing the State Government and the NAC Jaleswar, by judgment dated 11.12.1986 directed the NAC Jaleswar to consider the case of the petitioner for reemployment in accordance with Rule 424 of the Rules, 1953. Pursuant to the order of this Court, petitioner’s case was considered and he was reappointed as Octroi Moharir by order dated 08.09.2007 as no post of Junior Assistant was lying vacant. Subsequently, the petitioner was reappointed to the post of Junior Assistant on 28.11.1991. The appointment of the petitioner in the post of Junior Assistant on 28.11.1991 cannot be treated as ad hoc appointment as the petitioner was holding that post on the date he was retrenched, i.e., 21.08.1981. Moreover, since the petitioner has been reappointed in service pursuant to the direction of this Court order passed in OJC 2856/86 wherein Rule 424 of the Rules 1953 was relied upon, the provisions of amended OLFS Rules have no application. Consequently, the order passed under Annexures-4 and 5 are not 4 sustainable in law. 4. 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 said 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 and 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 and 75 of the Act and 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 5 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 and inoperative. As the petitioner was engaged on temporary basis for a period of 45 days in the year 1991 against non-sanctioned post and 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 Balasore 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. 5. On the rival contentions raised at the Bar, the question that needs determination by this Court is as to whether after amendment of the OLFS Rules which came into force with effect from 15.09.1982, the Chairman, Jaleswar NAC was competent to fill up the post in the cadre of Junior Assistant under the amended OLFS Rules. 6. Undisputedly, the petitioner was appointed in the post of L.D.Clerk-cum-Typist in the office of the Chairman, NAC, Jaleswar, vide order no.2232 dated 27.6.1981. The said appointment was made against 6 a non-sanctioned post. The said appointment order reveals that the appointment was purely temporary and liable to be terminated at any time without notice and without assigning any reason therefor. On abolition of Octroi, he was retrenched from the said post after working for 44 days. By order dated 03.04.1987 (Annexure-1), the Chairman, Jaleswar NAC, appointed the petitioner as Octroi Moharir in the office of the Chairman, NAC, Jaleswar. Thereafter, the petitioner was given appointment in the post of Junior Assistant Cadre in the Octroi establishment, Jaleswar vide order dated 28.11.1991 (Annexure-2). The said order reveals that the petitioner’s selection to the post of Junior Assistant was made as per the order dated 11.12.1986 of this Court passed in O.J.C.No.2856 of 1986. This Court in the order dated 11.12.1986 held that the petitioners appointment should be considered in terms of Rule 424 of the Orissa Municipal Rules. For better appreciation, Rule 424 is reproduced herein below:- “424. When candidates are required for employment in any post in a unit preference shall be given to persons discharged or reverted from such posts in the unit under Rule 420 so long as such persons desirous of such appointments as available, appointments being made in the inverse of the order in which they were discharged or reverted from such unit: Provided that in the case of person who did not on the date of his discharge or reversion hold the post substantively he possesses the qualifications, if any, prescribed for the post or has, before discharge or reversion been exempted by competent authority from the possession of such qualifications: 7 Provided further that also if the appointing authority considers it undesirable that any specified persons should be appointed under this rule such authority may, for reasons to be recorded in writing and communicated to the person concerned, refuse to appoint him and an appeal lie from such refusal as if it were an order of dismissal.” As per the said Rule, when candidates are required for employment in any post in a unit, preference shall be given to the persons discharged or reverted from such posts in the unit under Rule 420 of the Rules 1953 so long as such persons desirous of such appointments are available. Under this Rule, power is also vested with the appointing authority to refuse to appoint any such person after recording the reasons for doing so. In that event, appeal shall lie from such refusal. However, under Rule-6 of the amended OLFS Rules, which came into force with effect from 15.09.1982, the post in the cadre of Junior Assistant shall be filled up by direct recruitment or promotion in equal proportion. As per Rule-7 of the amended OLFS Rules, selection for appointment to the posts in the service whether by direct recruitment or by promotion, shall be made by Selection Board consisting of Chairman and Director, Municipal Administration, Deputy Secretary or Under Secretary to Government, Housing and Urban Development Department in charge of Local Fund Service, the Chairman of any Urban Local Body nominated by the Government, Senior-most Executive Officer of the Urban Local Bodies (in the Orissa Administrative Service Class-I, Senior Branch). Admittedly, in 8 the present case the petitioner has not been selected for appointment to the post of Junior Assistant in L.F.S. cadre by the Selection Board as provided under Rule 7 of OLFS Rules. The selection of the petitioner is also made in violation of Rule 6 of the OLFS Rules. This Court in O.J.C.No.2856 of 1986 dated 11.12.1986 directed opposite party no.2, Notified Area Council, Jaleswar, represented through its Executive Officer to consider the case of the petitioners in accordance with the provisions of Rule 424 of the Orissa Municipal Rules. This Court has not issued any direction to make appointment of the petitioner without adhering to the statutory provisions contained in Rules 6 and 7 of the OLFS Rules, which were in force at the time of appointment. The only diretion given by this Court in O.J.C. No.2856 of 1986 is that while any appointment is made to a post similar to the post from which the petitioner was retrenched, preference should be given to the petitioner in terms of Rule 424 of the Rules 1953. In the case at hand, the petitioner was retrenched from a non-sanctioned post of Junior Assistant and was given posting/promotion to a sanctioned post of Junior Assistant by the Chairman, Jaleswar NAC who was not competent to give such an appointment during the relevant time. The appointment made by the Chairman, Jaleswar NAC is contrary to the provisions of Rules 6 and 7 of the OLFS Rules. 9 7. A Constitution Bench of the Hon’ble Supreme Court in Sukhdev Singh & Ors. Vs. Bhagatram Sardar Singh Raghuvanshi & Anr., AIR 1975 SC 1331; held that the statutory authorities cannot deviate from the statutory provisions and any deviation, if so made, is required to be enforced by legal sanction or declaration by the Courts invalidating such actions in violation of the statutory Rules and Regulations. The apex Court in Hukam Chand Shyam Lal Vs. Union of India & Ors., AIR 1976 SC 789, held as follows:- “It is well settled that where a power is required to be exercised by a certain authority in a certain way, it should be exercised in that manner or not at all, and all other modes of performance are necessarily forbidden. It is all the more necessary to observe this rule where power is of a drastic nature and its exercise in a mode other than the one provided, will be violative of the fundamental principles of natural justice.” The Hon’ble Supreme Court in Sangeeta Singh Vs. Union of India & Ors., AIR 2005 SC 4459, held that a statute is an edict of the Legislature. The language employed in a statue is the determinative factor of legislative intent. In Hira Cement Workers Union Vs. State of Orissa & Ors., 92 (2001) CLT 184, this Court held that where a power has been given to do a certain thing in a certain way, the thing must be done in that way or not at all, and other methods of performance are necessarily forbidden. 10 In Krushna Chandra Sahoo Vs. Bank of India & Ors., AIR 2009 Orissa 35, this Court held as follows:- “When the statute provides for a particular procedure, the authority has to follow the same and cannot be permitted to act in contravention of the same. It has been hither to uncontroverted legal position that where a statue requires to do a certain thing in a certain way, the thing must be done in that way or not at all. Other methods or mode of performance are impliedly and necessarily forbidden. The aforesaid settled legal proposition is based on a legal maxim “Expressio unius est exclusion alterius”, meaning thereby that if a statute provides for a thing to be done in a particular, then it has to be done in that manner and in no other manner and following other course is not permissible.” Thus, when the statute provides for a particular procedure to be followed to do a certain thing, the same should be done in that manner or not at all and other modes of performance are necessarily forbidden. 8. Mr. Nandy vehemently argued that the petitioner was retrenched from his earlier service with the assurance given by the Addl. District Magistrate, who was in-charge of Jaleswar NAC that the petitioner’s case would be duly considered for reappointment on reimposition of Octroi tax. In view of such promise, Annexures- 4 and 5 holding reappointment of petitioner to be illegal are not tenable. We are unable to accept such contention of Mr. Nandy. The promise/assurance given by the Addl. District Magistrate cannot act as estoppel against the statute. Law is well settled that there can be no estoppel against statute. 11 The apex Court in Shabi Construction Co. Ltd. Vs. City and Industrial Development Corporation & Anr., AIR 1998 SC 966 held that the rule of promissory estoppel cannot be invoked for the enforcement of a ‘promise’ or a declaration, which is contrary to law or outside the authority or power of the government or the person making that promise. The apex Court in Bangalore Development Authority Vs. R.Hanumaiah, (2005) 12 SCC 508 held as follows:- “The rule of promissory estoppel cannot be availed to permit or condone a breach of law. It cannot be invoked to compel the Government to do an act prohibited by law. It would be going against the statute.” The Allahabad High Court in Bhaskar Tiwari Vs. Vice- Chancellor, U.P. Technical University, 2005 AIHC 1043, held as follows: “It is also a settled proposition of law that estoppel cannot be raised to defeat the provisions of a statute and nor do the Courts issue any direction contrary to law. Thus if the ordinances/Government Order prohibited the petitioner from securing admission in the B.Tech. course if he had obtained less than 50% marks in aggregate in Physics, Chemistry and Mathematics, the plea of estoppel cannot be raised by the petitioner/appellant and nor can this Court issue a direction to treat his admission as a valid admission.” 12 9. In the above fact-situation and the settled position of law, we do not find any infirmity or illegality in the impugned letter/order under Annexures - 4 and 5 warranting interference by this Court. 10. In the result, the writ petition is dismissed. ……………………. B.N.Mahapatra, J. A.S.Naidu,J. I agree. …....…………….. A.S.Naidu, J. 13 Orissa High Court, Cuttack Dated 10th December, 2009/sss/tkb/pcp