Point of Law: Employment and Service matter - Post of Junior Stenographer Direct recruitment - Regularization - While regularizing through absorption on direct recruitment, it is duty of authority to see that direct recruitment concerned has been made in accordance with settled principles of law.

JUDGMENT :

B.P. ROUTRAY, J.

1. The judgment dated 6th August, 2020 of the learned Single Judge passed in Writ Petition (Civil) No. 14345 of 2017 has been assailed in the present writ appeal.

2. The Appellant was the unsuccessful Writ Petitioner.

3. In the newly created establishment of Odisha Human Rights Commission (OHRC), Bhubaneswar, the post of Junior Stenographer was created on 24th April, 2003 when no prescribed guideline or rule was there for direct recruitment to the post in question. So in absence of any such provisions governing conditions of recruitment, the Petitioner was appointed on 29th August, 2003 by the OHRC directly without due process of selection. Neither was any advertisement made nor any competitive examination held for recruitment to the post. The Petitioner was straightaway appointed through formal interview for an initial period of one year which was extended from time to time.

4. The Odisha Human Rights Commission (Method of Recruitment and Conditions of Service of Officers and other staff) Rules, 2012 (hereinafter referred as “OHRC Rules, 2012”) came into force w.e.f. 4th January, 2013. Rule 4 of the said rules prescribes that, appointment to different categories of posts in the commission shall be made either by direct recruitment holding competitive examination, or by promotion, or by deputation. Rule 8 further prescribes that “Notwithstanding anything contained in the provisions of these rules, the persons holding posts in the State Commission on the date of commencement of these rules either on direct recruitment or transfer on deputation basis and who fulfill the qualifications and experience laid down in these rules and who are considered suitable by the Committee, shall be eligible for absorption in the respective grades.....”

5. After the OHRC Rules, 2012 came into force, the service of the Petitioner was regularized on absorption w.e.f. 16th November, 2013 in the regular scale of pay in terms of Rule 8 and periodical increment was also granted to him.

6. Subsequently in course of audit verification for the year 2014-15, the Office of the Accountant General, Odisha raised objection towards irregular regularisation of the appellant through absorption. The said objection noted at Para 20(A) of the audit report reads as under:

“Although OHRC is an autonomous body all the relevant Act/Rules Regulations as well as instructions issued by the Government are applicable to this organization also. In the instant case i.e. the absorption of Sri Nihar Ranjan Tripathy is irregular as he was not appointed according to the relevant rules or in adherence to Articles 14 and 16 of the Constitution of India and subsequently absorbed. Hence, the Para is retained.”

Thereafter OHRC in their letter dated 13th July, 2017 directed that the Petitioner is not entitled to further increment in view of the audit objection that his appointment/absorption was irregular and he is liable for refund of excess amount of remuneration received. The Appellant was further directed to repay an amount of Rs. 4264/-. He challenged the audit objection in Para 20(A) and subsequent order of the OHRC (Annexure 10 and 11 respectively) in the writ petition with a prayer to quash the same and further to regularize his service.

7. Learned Single Judge upon adjudication of the writ petition did not find any infirmity in the orders impugned before him, but so far repayment of Rs. 4264/- is concerned, it was directed to effect the same only after compliance of the principles of natural justice.

8. It is submitted on behalf of the Appellant that learned Single Judge has committed error in failing to appreciate the principle that the process of recruitment prescribed in the OHRC Rules, 2012 cannot have the retrospective application and no prescribed provision for recruitment to the post was there at the time of appointment of the Appellant. Therefore it is wholly unsustainable to hold the regularization as irregular being violative of the rules. It is also