Amarendra Kumar Mohapatra & Ors vs State Of Orissa & Ors

3. The note submitted to the Cabinet suggested that degree-holder Engineers could be recruited against all the 741 (127 + 614) posts mentioned above to be designated as Junior Engineers or Stipendiary Engineers in the first phase on a consolidated stipend of Rs.2,000/- per month. The proposal further envisaged absorption of Engineers so appointed on regular basis after two years, after assessing their performance.

7) The panels from the Scrutiny Committee will be maintained in the Department of Planning and Coordination who will sponsor candidates to various Government Departments and Undertakings according to the requirement as indicated by them. The undertakings will send indents through the concerned Administrative Departments.

10) The normal requirement for new appointment under Government viz. production of original certificates, Medical Certificate, Schedule Caste/Scheduled Tribe Certificate etc. shall be applicable to these appointments and the verification of these documents shall be the responsibility of the Employing Departments/Undertakings.

6. Applications received from unemployed graduate Engineers for appointment as Stipendiary Engineers were in terms of the above resolution and considered by the Committee constituted for the purpose and appointment of eligible candidates found suitable for such appointments made between 1991 to 1994. Appointment orders issued to the candidates made it clear that degree holder Engineers were being engaged as Stipendiary Engineers in the concerned Department and shall be paid a consolidated stipend of Rs.2000/- only. It further stated that the engagement was purely temporary and terminable at any time and without any notice.

11. The resolution notwithstanding, the Government does not appear to have appointed any Stipendiary Engineers as Assistant Engineers on ad hoc basis. Aggrieved, the Stipendiary Engineers filed O.J.C. Case No.8373 of 1995 Jayanta Kumar Dey and Ors. v. State of Orissa and Ors. for a writ of mandamus directing the Government to comply with the resolution and the order issued by it. This petition was allowed by the Division Bench of the High Court of Orissa at Cuttack by an order dated 18th December 1996. The High Court directed the Government to take expeditious steps to implement resolution dated 12th March 1996, preferably within a period of four months. It further directed the State Government to appoint Stipendiary Engineers as Assistant Engineers in the scale of Rs.2000-3500 on ad hoc basis. In compliance with the directions aforementioned, the Stipendiary Engineers were appointed as Assistant Engineers on ad hoc basis between the years 1997 and 2001. What is important is that pursuant to its initial proposal of allocating 5% vacancies for those working as degree holder Junior Engineers in different departments, the Government had between 1996 and 1997 promoted 86 degree holder Junior Engineers on an ad hoc basis as Assistant Engineers.

12. Five Stipendiary Engineers working in the Water Resources Department whose names had been recommended along with others for appointment as Assistant Engineers on ad hoc basis by the Screening Committee set up for the purpose in the meantime filed O.J.C. No.1563 of 1998 before the Orissa High Court making a grievance that despite the recommendations made in their favour, the Government had not appointed them as Assistant Engineers. That petition was allowed and disposed of by an order dated 6th May, 1998 directing the State Government to consider the case of the writ-petitioners in the light of its earlier order passed in Jayant Kumar’s case (supra). Since the said directions were not carried out by the Government, two of the Stipendiary Engineers filed O.J.C. Nos.6354 and 6355 of 1999 in which they complained about the non-implementation of the directions issued by the High Court earlier and prayed for their regularisation. This petition was disposed of by the High Court by a common order dated 2nd July, 2002 in which the High Court noted that the petitioners had been appointed as Assistant Engineers on ad hoc basis in the pay scale of Rs.2000-3500/- by the Water Resources Department Notification dated 11th December, 1998. The High Court further held that since the Government was on principle committed to regularising the appointments of Stipendiary Engineers there was no reason why the Government should not treat them as direct recruits since the year 1991, in which they were appointed, and compute their service from that year for the purpose of in-service promotion, pension and other service benefits except financial benefits and to absorb them on regular basis according to law.

15. A batch of writ petitions being Writ Petitions No.9514 of 2003, 12495 of 2005, 12495 of 2005, 12627 of 2005, 12706 of 2006 and 8630 of 2006, were then filed by the Degree holder Junior Engineers appointed as Assistant Engineers on ad hoc basis between 1996 and 1997 challenging the validity of the above legislation, inter alia, on the ground that the same suffered from the vice of discrimination inasmuch as while ad hoc Assistant Engineers, who were earlier appointed on stipendiary basis, had been regularised under the Validation Act, those appointed against 5% quota reserved for Junior Engineers holding a degree qualification were left out.

44. We need to advert to one other aspect which bears relevance to the issue whether regularisation under the impugned Enactment is legally valid. The appointment process of unemployed degree holders, as noticed earlier, started with the resolution passed by the State Government which envisaged appointments of such unemployed Graduate Engineers as Stipendiaries on a consolidated stipend of Rs.2,000/- p.m. The resolution further envisaged their absorption in service after a period of two years. Not only that, appointments as Stipendiary Engineers were made on the basis of a selection process and on the basis of merit no matter determined de hors the relevant rules which provided for appointments to the cadre to be made only through the Public Service Commission. A reference to the Public Service Commission was no doubt considered unnecessary but the fact remains that appointment of unemployed degree holders as Stipendiary Engineers were made pursuant to a notification by which everyone who was unemployed and held an Engineering degree in any discipline was free to make an application. A large number of unemployed engineers responded to the notification inviting applications out of whom nearly 932 were selected by a Selection Committee constituted for the purpose. What is significant is that the empanelment of the unemployed degree holders for appointment as Stipendiaries did not invite any criticism from any quarter either as to the method of appointment or the fairness of the selection process. The process of appointment was at no stage questioned before the Court, a feature which is notable keeping in view the number of people appointed/empanelled and a larger number who were left out and who could have possibly made a grievance if there was any. It is not, therefore, wholly correct to suggest that the entry of the degree holder Junior Engineers as Stipendiary Engineers and later as Assistant Engineers was through “the backdoor”, an expression very often used in service matters where appointments are made de hors the rules. The process of selection and appointments may not have been as per the relevant rules as the same ought to have been, but it is far from saying that there was complete arbitrariness in the manner of such appointments so as to violate Articles 14 and 16 of the Constitution of India.

56. We have in the light of the above no hesitation in holding that the legislation under challenge does not suffer from any constitutional infirmity and that the High Court was in error in having struck it down.

60. Question No.2 is answered accordingly.

Re. Question No.3

The corollary of the above rule is that where the initial appointment is only ad hoc and not according to rules and made as a stop-gap arrangement, the officiation in such post cannot be taken into account for considering the seniority. (B) If the initial appointment is not made by following the procedure laid down by the rules but the appointee continues in the post uninterruptedly till the regularisation of his service in accordance with the rules, the period of officiating service will be counted.”

72. Question No.3 is answered accordingly.

74. We have heard counsel for the interveners also at some length. We, however, do not consider it necessary to enlarge the scope of these proceedings by examining issues that are not directly related to the controversy at hand. Three questions that have primarily engaged our attention in these petitions relate to (a) the validity of the impugned Validation Act. (b) regularization of in-service degree holder Junior Engineers who have been working for considerable length of time as Assistant Engineers on ad hoc basis and (c) the seniority position of those being regularized either under the Validation Act or in terms of the directions being issued by us in these appeals. Other issues which the interveners seek to raise especially issues regarding grant or denial of the benefit of reservation to SC and ST candidates, have not been touched by us in these proceedings for want of proper pleadings on the subject and also for want of any pronouncement by the High Court on the said questions. In the circumstances, this order shall be taken to have settled only what we have specifically dealt with or what would logically follow therefrom. Any question whether the same relates to inter se seniority of those regularized under the legislation or by reason of the directions which we propose to issue or issues relating to the benefit of seniority on the basis of roster points if any prescribed for that purpose are left open and may be agitated by the aggrieved party before an appropriate forum in appropriate proceedings. To the extent any such questions or aspects have not been dealt with by us in this order, may be dealt with in any such proceedings. Beyond that we do not consider it proper or necessary to say anything at this stage.

75. In the result we pass the following order:

service Junior Engineers degree holder shall stand regularized w.e.f. the date Orissa Service of Engineers (Validation of Appointment) Act, 2002 came into force. We further direct that such in-service degree holder Junior Engineers promoted as Assistant Engineers on ad hoc basis shall be placed below the promotees and above the Stipendiary Engineers regularized in terms of the impugned legislation. The inter se seniority of the Stipendiary Engineers regularized as Assistant Engineers under the impugned Legislation and Junior Engineer degree holders regularized in terms of this order shall be determined on the basis of their date of first appointment as Assistant Engineers on ad hoc basis.

(3) Civil Appeal No.1768 of 2006 is resultantly allowed, the judgment and order impugned therein set aside and Writ Petitions OJC Nos.6354-55 of 1999 disposed of in terms of the above direction.

(4) Intervention applications filed in these appeals are also disposed of in the light of observations made in Para 74 of this judgment.

(5) Parties are left to bear their own costs.