IMPORTANT POINTS
Appointment dehors recruitment rules cannot be sustained.
There cannot be any parity in illegality.

JUDGMENT :

HEMANT GUPTA, J.

1. Leave granted.

2. The challenge in the present appeals is to a judgment passed by Orissa High Court on December 22, 2017 maintaining the order dated June 27, 2014 passed by Odisha Administrative Tribunal in Original Application (OA) No. 1510 of 2012 and other petitions. The Tribunal decided nine OAs by a common order whereby the orders passed by the Government not to fill up the posts of Gardener and to create the equal number of posts of Horticulture Extension Workers were set aside. The State was directed to consider the applicants for appointment against the existing vacant posts of Gardener. The operative part of the order reads as under:

“17. In view of our analysis in the foregoing paragraphs, the order dated 15.9.2012, 06.10.2012 and 17.11.2012 passed by the Government in their Agriculture Department not to fill up the posts of Gardener and create equal number of posts of Horticulture Extension Workers stand quashed. Respondents are directed to consider the case of the applicants for their appointment against the existing vacant posts of Gardener, as has been done in the case of similarly placed trained candidates pursuant to the order of the Hon’ble High Court, within a period of three months from the date of receipt of copy of this order. Since the applicants have been fighting for their right for the last more than 15 years, respondents are directed to stick to the dead line fixed by this Tribunal.”

3. Aggrieved against the said order, the State and the Director of Horticulture, Odisha filed writ petitions before the High Court. The High Court dismissed the writ petitions holding that the applicants had undergone training after being selected and sponsored by the Government. It is also held that since the posts of Gardener are lying vacant, there is no reason why the State should not consider the applicants against such vacancies.

4. The facts leading to the present appeals are that Agriculture and Cooperation Department of Odisha approved ten months course for pre-service training of Gardeners. The Gardeners were to be recruited through an open advertisement and to undergo ten months training in the School of Horticulture, Odisha. All the candidates who were trained up to the year 1990 were absorbed. It was on April 16, 1998, the Director of Horticulture decided to impart pre-service Gardener’s Training in the 10 Departmental farms during the year 1998-1999. The candidates were to be selected as per the guidelines in terms of the selection procedure circulated. The procedure for selecting candidates in all the 30 districts was to be made by a committee chaired by Deputy Director of Horticulture in each range. One of the conditions in the procedure circulated was as under:

“VIII. The candidates are required to furnish a bond in the prescribed form to the effect that after successful completion of training they shall serve under the Department for at least 3 years, if required, failing which the stipend paid during the training period shall become refundable. No guarantee can be given in the matter of employment after successful completion of the training by the trainees.”

5. The High Court ordered an inquiry on May 11, 1999 in Miscellaneous Case No. 5135 of 1999 arising out of OJC No. 4665 of 1999, when it was found as under:

“(i) Out of sixty four candidates selected as gardeners trainee, six candidates have been selected by the Director of Horticulture without following proper procedure.

(ii) 356 (Three hundred and fifty six) candidates have been selected as gardeners trainee irregularly and imparted training in some identified farms under Director of Horticulture outside the School of Horticulture at Kurds, meant for such training without approval of Government.

(iii) Besides, 997 (Nine hundred ninety seven) applications received directly for selection as gardeners trainee are also lying pending with the Director of Horticulture Orissa without proper notification.”

6. It was decided to dispense