Case: THE DIRECTOR OF HORTICULTURE Vs. PRAVAT KUMAR DASH

Administrative Tribunal including OA No. 1510 of 2012 which was allowed on June 27, 2014 and the writ petitions filed by the State stand dismissed vide order dated December 22, 2017. This order is impugned in the present appeal. 12) In this factual background and the number of orders passed by Odisha Administrative Tribunal, the argument of Mr. Vikas Singh, learned senior counsel for the appellant is that 362 persons were selected in wholly irregular manner to undergo training in Departmental farms other than training by the Director of Horticulture. Out of 1359 applications, 362 were selected without any criteria. The circular of the State Government was categorically to the effect that undergoing training will not ensure an appointment. The training of Gardener was only an eligibility qualification and not a guarantee for the appointment. It is, thus, argued that training was not as per the decision of Director of Horticulture communicated on April 16, 1998 but in the departmental farms without a transparent selection process, 362 candidates out of 1359 candidates were selected to undergo training. Still, further, six candidates were appointed surreptitiously, therefore, it was decided to terminate their services. The appointment was dehors any selection procedure known for making employment against the public post, therefore, such appointments cannot be said to be protected by Article 311 or by the Orissa Civil Services Rules. 13) It is alternatively contended that even if six candidates have been appointed illegally, such illegality cannot be claimed to be perpetuated by the other candidates by seeking parity with six illegally appointed candidates. It is pointed out that the posts of Gardener were never advertised even when six candidates were appointed, therefore, the direction of the Tribunal as maintained by the High Court to make appointments is contrary to the statutory rules and the procedure for appointment against the public post, therefore, such directions cannot be sustained in law. 14) It is also argued that the findings recorded by the Tribunal, as affirmed by the High Court, that similarly situated Gardeners have been appointed are factually incorrect as some vacancies in the cadre of Gardener were filled in the rehabilitation scheme from amongst the attendants who have completed six years? service for promotion to the post or rank of Gardener on the basis of seniority-cum-merit. 15) On the other hand, the argument of Mr. Guru Krishnakumar as well as Mr. R. Basant, learned senior counsels appearing on behalf of some of the respondents, is that the action of the State is wholly arbitrary as similarly situated candidates have been appointed. It is further argued that the stand that post of Gardener stands abolished and the post of Horticulture Extension Worker has been created is only a ruse as it is nomenclature of the same post. The stand of the State that Horticulture Extension Worker is a promo- tion post from the post of Gardener is not correct. 16) We have heard learned counsel for the parties and find that the orders passed by the Tribunal, as affirmed by the High Court, are not justified in law. 17) The respondents were subjected to training in pursuance of circular dated July 4, 1998. The training was proposed in the circular dated April 16, 1998. It clearly contemplates that there is no guarantee in the matter of employment after successful completion of training by the trainees. At that time, training was contemplated only in the School of Horticulture, Khurda during the year 1998-1999. Subsequently, the training was proposed to be held in ten selected departmental farms but there is no assurance in the said communication dated July 4, 1998 that candidates would be appointed. The appointment to the post of Gardener is required to be made in terms of the Recruitment Rules if any, applicable thereto or in terms of instructions issued under executive power of the State but the appointments cannot be made merely for the reason that a candidate has undergone training. Out of 1359 candidates who applied in pursuance of circular dated July 4, 1998, 362 candidates were selected for training but the manner of their selection has not come on record. 18) We find the selection of the candidates for training was not by way of transparent procedure nor there was any commitment to appoint candidates who have completed training as Gardeners, therefore, even if a candidate has completed training, he cannot seek right of employment unless such posts are advertised and filled up by giving opportunity to all similarly situated candidates. The directions of the Tribunal, as affirmed by the High Court, that the candidates are intended to be employed are wholly unjustified as there cannot be any direction for appointment only for the reason that the candidates have undergone training. It is not necessary for this Court to examine whether the post of Gardener has been upgraded to the post of Horticulture Extension Worker or that it is the same post having a different nomenclature. The fact remains that all public posts are required to be filled up by giving an opportunity to all the candidates to apply and to compete for the post. 19) The services of six persons who were appointed were ordered to be terminated on December 10, 1999 but even if their termination was set aside on April 24, 2001, it will not confer any right on the basis of equity in favour of the other candidates. There cannot be any parity in the illegality. Reference will be made to Chandigarh Administration & Anr. v. Jagjit Singh & Anr. (1995) 1 SCC 745 and Kulwinder Pal Singh & Anr. v. State of Punjab & Ors. (2016) 6 SCC 532. 20) In view of the above, we find that the order of the Odisha Administrative Tribunal, as affirmed by the High Court, directing the State to appoint the applicants as Gardeners is beyond their jurisdiction vested in the High Court as there cannot be any direction for making appointment to the public post in such a manner.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]16) We have heard learned counsel for the parties and find that the orders passed by the Tribunal, as affirmed by the High Court, are not justified inThe respondents were subjected to training in pursuance of circular dated July 4, 1998. The training was proposed in the circular dated April 16, 1998. It clearly contemplates that there is no guarantee in the matter of employment after successful completion of training by the trainees. At that time, training was contemplated only in the School of Horticulture, Khurda during the year 1998-1999. Subsequently, the training was proposed to be held in ten selected departmental farms but there is no assurance in the said communication dated July 4, 1998 that candidates would be appointed. The appointment to the post of Gardener is required to be made in terms of the Recruitment Rules if any, applicable thereto or in terms of instructions issued under executive power of the State but the appointments cannot be made merely for the reason that a candidate has undergone training. Out of 1359 candidates who applied in pursuance of circular dated July 4, 1998, 362 candidates were selected for training but the manner of their selection has not come onWe find the selection of the candidates for training was not by way of transparent procedure nor there was any commitment to appoint candidates who have completed training as Gardeners, therefore, even if a candidate has completed training, he cannot seek right of employment unless such posts are advertised and filled up by giving opportunity to all similarly situated candidates. The directions of the Tribunal, as affirmed by the High Court, that the candidates are intended to be employed are wholly unjustified as there cannot be any direction for appointment only for the reason that the candidates have undergone training. It is not necessary for this Court to examine whether the post of Gardener has been upgraded to the post of Horticulture Extension Worker or that it is the same post having a different nomenclature. The fact remains that all public posts are required to be filled up by giving an opportunity to all the candidates to apply and to compete for theThe services of six persons who were appointed were ordered to be terminated on December 10, 1999 but even if their termination was set aside on April 24, 2001, it will not confer any right on the basis of equity in favour of the other candidates. There cannot be any parity in the illegality. Reference will be made to Chandigarh Administration & Anr. v. Jagjit Singh & Anr. (1995) 1 SCC 745     and Kulwinder Pal Singh & Anr. v. State of Punjab & Ors. (2016) 6 SCCIn view of the above, we find that the order of the Odisha Administrative Tribunal, as affirmed by the High Court, directing the State to appoint the applicants as Gardeners is beyond their jurisdiction vested in the High Court as there cannot be any direction for making appointment to the public post in such aIn view of the above, we find that the order of the Odisha Administrative Tribunal, as affirmed by the High Court, directing the State to appoint the applicants as Gardeners is beyond their jurisdiction vested in the High Court as there cannot be any direction for making appointment to the public post in such a