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IN THE HIGH COURT OF ORISSA
L. Mohapatra, B.N. Mahapatra, JJ.
STATE OF ORISSA AND OTHERS - APPELLANT
Versus
SIBA PRASAD SWAIN - RESPONDENT
Decided On : 29-07-2009
Termination - Appointment Process - Article 14 of the Constitution - [Termination, Appointment Process, Article 14 of the Constitution] - The court discussed the validity of the appointment process, the termination of a temporary employee, and the application of Article 14 of the Constitution. The court held that the appointments were made on a temporary basis without following a valid recruitment process, and the termination of a temporary employee without notice and reason was valid. The court also emphasized that a temporary employee does not have a substantive right to the post and that Article 14 does not envisage negative equality.
Fact of the Case:
The Opposite Party was appointed as a Junior Clerk on an ad hoc basis and later as an Assistant Embankment Inspector. His service was terminated without assigning any reason and without affording him an opportunity of being heard. The Opposite Party challenged the termination in the Tribunal, which allowed the challenge. The Petitioners then filed a Writ Petition to challenge the Tribunal's order.
Finding of the Court:
The court found that the appointments of the Opposite Party were made on a temporary basis without following a valid recruitment process. It also found that the termination of a temporary employee without notice and reason was valid. Additionally, the court held that a temporary employee does not have a substantive right to the post and that Article 14 does not envisage negative equality.
Issues: The issues included the validity of the appointment process, the termination of a temporary employee, and the application of Article 14 of the Constitution.
Ratio Decidendi: The court's decision was based on the fact that the appointments were made on a temporary basis without following a valid recruitment process, and the termination of a temporary employee without notice and reason was valid. The court also emphasized that a temporary employee does not have a substantive right to the post and that Article 14 does not envisage negative equality.
Final Decision: The Writ Petition was allowed, and no order as to costs was made.
JUDGMENT :
B.N. Mahapatra, J. - Challenge, in this Writ Petition, is made to the Order Dated 03.01.2006 passed in O.A. No. 1135 of 1996 under Annexure-1 by Orissa Administrative Tribunal, Bhubaneswar Bench, Bhubaneswar (hereinafter referred to as 'the Tribunal') by which the termination of service of the Opposite Party has been struck down being not in accordance with the rules.
2. The factual background in a nut shell is that the Opposite Party Sri Siba Prasad Swain was appointed as Junior Clerk on ad hoc basis for 89 days under Office Order Dated 10.09.1991 (Annexure-2) issued by the Chief Engineer, Designs, Irrigation, Orissa, Bhubaneswar (Petitioner No. 2). Sri Swain joined the said post on 25.09.1991. While working as such on ad hoc basis, the Opposite Party made a representation to Petitioner No. 2 for his appointment as Assistant Embankment Inspector. As there was vacancy in the said post, the Opposite Party was given appointment as Assistant Embankment Inspector under Order Dated 25.10.1991 (Annexure-3). The Opposite Party joined the said post on 28.10.1991. Subsequently, the Government in Water Resources Department issued Order No. 29508 dated 04.11.1991 (Annexure-4) for termination of service of the Opposite Party. Pursuant to the said order, the service of the Opposite Party was terminated vide Memo No. 7577 dated 07.11.1991 (Annexure-5). Challenging the said order of termination, the Opposite Party approached the Tribunal in O.A. No. 1135 of 1996. The Tribunal vide its Order Dated 03.01.2006 allowed the O.A. on the ground that the service of the Opposite Party was terminated without assigning any reason and affording opportunity of personal hearing. While doing so, the Tribunal relied on its earlier order passed in O.A.No.1944 of 1993. It is the said order which has been challenged in this Writ Petition.
3. Mr.Trilochan Rath, Learned Addl. Standing Counsel appearing on behalf of the Petitioners, submitted that the appointment of the Opposite Party was not made following the regular process of selection. Hence, his initial appointment as Junior Clerk as well as the appointment against the post of Assistant Embankment Inspector being not regular are ab initio void. The appointment orders issued to the Opposite Party clearly indicate that the said two appointments were made purely on temporary basis. The Tribunal without applying its mind has illegally quashed the order of termination. While doing so, the Tribunal relied on its earlier order passed in O.A. No. 1944 of 1993 even though the facts of that case are completely different from the case of the Opposite Party. Even if for the sake of argument it is admitted that the applicants in O.A. No. 1944 of 1993 were similarly situated with that of the Opposite Party and they were taken back to service by virtue of the order of the Tribunal, the Opposite Party cannot claim the said benefit as Article 14 of the Constitution does not envisage for negative equality.
Mr. Rath, in support of his arguments, has placed reliance on the following Judgments of the Hon'ble Supreme Court rendered in Oriental Insurance Co. Ltd. Vs. T. Mohammed Raisuli Hassan, and Madhya Pradesh Hasta Shilpa Vikas Nigam Ltd. Vs. Devendra Kumar Jain and Others, and Kastha Niwarak G.S.S. Maryadit, Indore v. President, Indore Development Authority (2006) 2 SCC 604.
4. Mr. S.D. Das, Learned Senior Advocate appearing for the Opposite Party contended that the Opposite Party was appointed in the post of Assistant Embankment Inspector in Quality Control and Research Division, Bhawanipatna under Petitioner No. 2 through regular process of recruitment. Before such appointment was given, the Opposite Party was called for an interview and was required to submit necessary documents. Therefore, there is no violation of any statutory rule and the Opposite Party was duly selected for the said post. The service of the Opposite Party was terminated without assigning any reason and affording him opportunity of being heard. N
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