PADMANAVA PRADHAN Vs. STATE OF ODISHA
HIGH COURT OF ORISSA
STATE OF ODISHA
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P.Patnaik, J. -
(1.) In the writ application, the petitioners, who were selected and appointed in pursuance of the Advertisement issued by the University vide Annexure-2 dated 26.03.2011 in due process of selection as Executive Assistant on contractual basis have sought for direction to the opposite parties to treat the petitioners to have been appointed against sanctioned post of Junior Assistant and thereby to be treated as regular and further prayer has been made that the advertisement issued by the opposite party no.3 vide Annexure-17 is not to be given effect to until regularization of services of the petitioners against the post of Junior Assistant is made.
(2.) The brief facts of the case are that in order to fill up the post of Junior Assistant, a review meeting was held under the Chairmanship of Chief Secretary on 24.06.2008 pertaining to filling up the vacancy of teaching and non-teaching staff of Sambalpur University wherein it was unanimously decided that since 23 numbers of posts of Junior Assistant were lying vacant, such posts were to be filled up by Executive Assistant having computer proficiency through outsourcing on the basic pay of Rs.5000/- per month as evident from Annexure-1 to the writ petition. Accordingly, an advertisement was issued by the Registrar dated 26.03.2011 inviting applications for the post of 15 numbers of Executive Assistant to be filled up presently likely to be increased corresponding to availability of vacancies on contractual basis on a consolidated pay of Rs.5000/- per month. The requisite qualification mentioned in the advertisement was Graduate with 50% marks in aggregate having computer proficiency. In the process of selection one had to appear for written test and successful candidates were to appear in Viva Voce test as per Annexure-2 to the writ petition.
It has been averred that on 18.05.2012 the Syndicate of Sambalpur University passed a Resolution to fill up 20 numbers of Executive Assistants against 20 number of sanctioned Junior Assistant posts and the Resolution of the Syndicate No.185 dated 18.11.2010 have been annexed as Annexure-3 and 4 respectively. Pursuant to selection, the Registrar, Sambalpur University published the selection list of 20 candidates for appointment to the post of Executive Assistant as per Annexure-5. Accordingly, the petitioners were appointed as Executive Assistant pursuant to the said selection. Subsequently, six more persons were appointed by the University from out of the selection as Executive Assistant. While so continuing the opposite party no.3 requested the opposite party No.1 vide letter dated 22.12.2012 for adjustment of Executive Assistant against the sanctioned post of Junior Assistant. The Hon'ble Chancellor was also requested to move the State Government for appointment of Executive Assistant against the post of Junior Assistant as evident from Anexures-6 and 7 to the writ petition. The Vice Chancellor of Sambalpur University in its letter dated 11.02.2013 addressed a letter to the Principal Secretary to the Government, Higher Education Department highlighting the difficulties faced by the University thereby requesting to allow the University to fill up the vacant post as per Annexure-8 and the same was reiterated by the opposite party No.3 as evident from Annexue-9. Thereafter the matter was placed before the Syndicate Sub-Committee of the University on 31.10.2013 and the Syndicate Sub-Committee recommended that the University should move the Government to permit regularization of the services of the Executive Assistant as Junior Assistant vide Annexure-11. Further, it has been averred that the Syndicate meeting held on 21.11.2013 resolved to absorb the Executive Assistant in the vacant post of Junior Assistant as evident from Anenxure-12 to the writ petition and on the basis of the decision of the Syndicate and by order of the Vice Chancellor, the Registrar, opposite party no.3 vide order dated 21.05.2014 passed an order re-designating the Executive Assistant working in the University as Junior Assistant on temporary basis. The extract of the Resolution passed by the Syndicate meeting held on 13.02.2014, the Office order of the Registrar dated 28.03.2014 and the order indicating the names of the petitioners to have been taken as Junior Assistant on re-designation dated 21.05.2014 have been annexed as Annexures-13 to 15 to the writ petition. Prior to that a request was also made by the Registrar seeking permission to fill up the post of Junior Assistant from amongst the Executive Assistant as per Annexure-16 to the writ petition. It has been further averred in the writ petition that during their continuance an advertisement was issued by the opposite party no.3 for appointment to the post of Junior Assistant against 11 vacancies where the qualification for the post of Junior Assistant is degree with knowledge in computer. The mode of selection is written and computer test for appointment to the post of Executive Assistant having the same qualification and mode of selection was same. Copy of the advertisement has been annexed as Annexure-17 to the writ petition. In the backdrop of the aforesaid factual position the petitioners left with no other alternative and efficacious remedy have been constrained to invoke the extraordinary jurisdiction under Articles 226 and 227 of the Constitution of India for redressal of their grievances.
(3.) Per Contra, a counter affidavit has been filed by opposite party No.1 assailing the prayer of the petitioner as thoroughly misconceived. In the counter, it has been submitted that the petitioners were engaged as Executive Assistant in Sambalpur University by opposite party no.2 in contravention to Section 22(1) of Odisha Universities Act, 1989 and Rule-7 of Odisha University Recruitment and Promotion of Non-Teaching Employees Rules, 1992. Further, it has been submitted that the proceeding of the Review meeting held on 24.06.2008, wherein it was decided that the post of Junior Assistant lying vacant in Sambalpur University are to be filled up by Executive Assistant having computer proficiency through outsourcing. Violating the decision taken in the meeting the petitioners were appointed in the non-sanctioned posts of Executive Assistants on contractual basis directly by the University. These posts have never been created with due Government approval as required under Section 22 of Odisha University Act, 1989. Further, it has been submitted that as per the ratio decided by the Hon'ble Supreme Court in the case of Secretary, State of Karnataka-vrs-Uma Devi and others, 2006 4 SCC 1which inter alia stipulates that any appointment made against non-sanctioned is an illegal appointment and illegal appointment cannot be regularised in any manner whatsoever. The appointment of the petitioners made against non-sanctioned post shall be considered as illegal and these illegal appointments cannot be regularized against the sanctioned posts.
It has been further submitted that the Sambalpur University issued advertisement on 26.03.2011 for recruitment of 15 non-sanctioned posts of Executive Assistant on contractual basis for a period of one year and likely to be extended for further period. Whereas the recruitments to the posts of Junior Assistant in Universities are required to be made by open competitive Examination and the vacancies arising in the cadre of Junior Assistant are required to be notified to all the Employment Exchange within the jurisdiction of the University concerned. Such temporary appointments made for one year or more cannot be considered for regularization as it debarred many eligible candidates who could have applied for the post if open advertisements were adhered to. In view of the same, the very action of the University is a breach of the provisions of Articles 14 and 16 of the Constitution of India.
Further, it has been submitted that in due consideration of the proposal of opposite party no.3 permission was accorded in Higher Education Department letter dated 03.06.2013 to fill up 11 sanctioned vacant posts of Junior Assistant by following procedure as evident from Annexure-B/1. The cases of the petitioners cannot be considered under the provisions of General Administration Department Resolution No.1066 dated 16.01.2014 for Regular Appointment of existing contractual Group C and Group D employees as the appointments/engagements have not been made against sanctioned posts created with the concurrence of the Finance Department. The extracts of the Resolution of the General Administration Department dated 16.01.2014 has been annexed as Annexure-C/1. Further, the advertisement dated 04.09.2014 under Annexure-17 floated by the opposite party no.3 was in accordance with the provisions of Orissa University Recruitment and Promotion Rules, 1992.;
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