J.P. Misra, J.
1.Subash Chandra Routrayand Ajay Kumar Nayak call in question Annexure-1 (WP (C) No. 9397/04) and Annexure-8 (WP (C) No. 10342/04) wherein they have been demoted to the post of Kantawala from the appointed/engaged post of Sales Assistant-cum-Godown Assistant (hereinafter referred to as 'S.A.- cum-G.A.') with the direction for recovery of financial benefit by their authority (opp. party No. 1). In addition, regularization of the post of Kantawala in respect of Ajaya Kumar Nayak also has been struck off.
2. Briefly stated, Subash Chandra Routray (WP (C) No. 9397/04) was temporarily appointed (Annexure-2) on ad hoc basis for 44 days as Helper-cum-Kantawala by opp. party No. 1 by order dated 23.5.1988 and he joined on 26.5.1988 before the opp. party No. 2 and is working till today. As per the relaxation of Orissa State Civil Supplies Corporation Employees Service Rules, 1993 (hereinafter referred to 'the Rules, 1993'), he became eligible for the post of S.A.-cum-G.A. and, accordingly, he was appointed in the same post by the order dated, 11.12.1995 (Annexure-5). The copy of the order of appointment, issued by opp. party No. 2 was communicated to the Sub-Collector, Panposh, Managing Director, O.S.C.S.C. (O.P. No. 1) and all other concerned. Thereafter several correspondences were made to O.P. No. 1 form the office of O.P. No. 2 for approval of the appointment of the petitioner while the petitioner was availing financial benefit of S.A.-cum-G.A. and his service book was opened as in Annexure-10. During the continuance of his service, the opp. party No. 1 demoted him to the post of Kantawala and directed recovery of the excess payment to him under Annexure-1 dated 28.8.2004.
3. Similarly, Ajay Kumar Nayak (WP (C) No. 10342) being a Commerce Graduate was appointed as Salesman for Model Fair Price Shop on daily wages basis for 44 days under Annexure-1 dated 24.10.1991 with effect from 25.10.1991. In view of the order of the Supreme Court in Civil Appeal No. 2281 of 1992 dated 13.10.1992 (Annexure-2) his service as Salesman-cum-Kantawala was regularized by opp. party No. 2 as per Annexure-3 dated 20.5.1997. He was also temporarily engaged as S.A.-cum-G.A. vide Annexure-6 dated 15.4.1999. Accordingly, his service book was opened vide Annexure-5. He was also transferred to various places in the post of S.A.-cum-G.A. by the office order under Annexure-7. Finally, the opp. party No. 1 did not approve the regularization of his appointment as Kantawala so also the appointment as S.A.-cum-G.A. directed recovery of the financial benefit availed by the promotional order reverting him to the post of Kantawala under Annexure-8 dated 14.9.2004.
4. The Managing Director, Orissa State Civil Supplies Corporation Ltd. (opp. party No. 1), has spoken on oath that the petitioners were employed temporarily whose services can be terminated without assigning any reason and the promotion/ appointment given by opp. party No. 2 is illegal due to contravention of Rule 21(5) of the Rules, 1993'. According to the averments, the post of S.A.-cum-G.A. is a class III post and the post of Kantawala is a class IV post. The Junior Grade III posts are filled up by recruitment but not by promotion. According to him, the order of the apex Court has been misinterpreted.
5. Learned Counsel for the petitioners has assailed the order of opp. party No. 1 in respect of both the petitioners on the ground of violation of natural justice. It is further contended that their promotion to the post of G.A.-cum-S.A. is quite regular as they were appointed in accordance with the Rules, 1993. According to the learned Counsel, the opp. party No. 1 is bound to regularize the post of Kantawala in view of the apex Court's decision in Civil Appeal No. 2288/92 dated 13th October, 1992 and also to approve their appointment as S.A.-cum-G.A. It is lastly contended that even if in the case of demotion, the scale of S.A.-cum-G.A. may be protected.
6. On the other hand, Shri S. Mishra, learned Counsel for the opp.parties while supporting the order of the opp. party No. 1 contended that principle of audi alteram partem is not applicable to the petitioners as their services were temporary and they can be removed without assigning any reason. According to him, promotion/appointment is quite irregular due to infraction of the rules for which the departmental proceeding has been initiated against the opp. party No. 2. He further submits that since class III posts are to be filled up by recruitment, the petitioners could not have been given promotion or appointment without any recruiting process and prays for dismissal of the writ petitions.
7. Both the writ petitions are taken up together for involvement of similar questions. It is not a dispute that both the petitioners were appointed as Kantawala and are continuing as S.A.-cum-G.A. for a period about seven to 8 years. In view of the above submissions, the following questions fall for determination:
i) whether the principle of natural justice has been violated;
ii) whether the appointment/promotion to the post of S.A.-cum-G.A. is in accordance with the rules; and
iii) whether the petitioners can be considered to be regularized Kantawala.
8. It is the settled law that no adverse order can be passed without hearing the person who is likely to be affected by the said order. Even principle of natural justice has to be followed before passing an administrative order involving civil consequences as held by the, apex Court in State of Orissa v. Dr. (Miss) Binapani Dei and Ors., : (1967)IILLJ266SC . The apex Court defined civil consequences in Mohinder Singh Gill and Anr. v. The Chief Election Commissioner, New Delhi and Ors., : [1978]2SCR272 . In that Constitution Bench judgment, the Court held as under:
But what is a civil consequences, let us ask ourselves, by passing verbal booby-traps 'Civil consequence' undoubtedly cover infraction of not merely property or personal rights but of civil liberties, material deprivations and non-pecuniary damages. In its comprehensive connotation, everything that affects a citizen in his civil life inflicts a civil consequence.
9. In the present case, the petitioners (Subash Chandra Routray and Ajay Kumar Nayak) were appointed against the temporary posts of Kantawala on 23,5.1988 and 25.10.1991 on daily wages basis. They were communicated regarding their promotion/appointment as S.A.-cum-G.A. on 11.12.1995 and 15.4.1999 respectively. The petitioner-Ajay Kumar Nayak was also regularized in the post of Kantawala on 20.5.1997. They rendered service in the higher posts for a pretty long period i.e. about nine years in case of petitioner-Subash Chandra Routray and about five years in case of Ajay Kumar Nayak. In view of the principle of law, the order of demotion certainly amounts to material deprivation along with the non-pecuniary damages, i.e., degradation to a lower post from higher grade. Therefore, the petitioners should have been heard before demotion.
10. We are not inclined to strike down the impugned annexures only on the ground of violation of the principle of natural justice as we have heard the parties at length and shall discuss the regularity of the appointment in the later part of our judgment.
11. The undisputed fact is that in item 5(2)(e) of Rule 11 of the Rules, 1993 stood amended which reads as follows:
'ITEM No. 5(2)(e) : AMENDMENT TO RULES-11 AND RULE-12:
Sub-Rule 5 is added to Rule 11 as below:
Corporation reserves the right to relax in suitable cases the minimum qualification for Sales Assistant-cum-Godown Assistant and Junior Accountant from the present qualification of B.A. and B. Com. with 50% to Intermediate/+2 and B. Com only respectively in order to allow temporarily engaged employees who have served for more than 5 years to compete for Appointment to the post on regular basis.
The upper age limit of 32 years may be suitably relaxed by the appointing authority in respect of employees temporarily engaged for more than five years in the Corporation.'
It is also not in controversy in regard to the existence of Rule 21 which reads as follows:
Rule 21. APPOINTING AUTHORITY:
(1) The Managing Director shall be appointed by the State Government from among the officers of the Indian Administrative Service of appropriate seniority.
(2) As regards the Grade-I employees other than the Managing Director, the powers of the appointing authority shall be exercised by the Managing Director, provided that the approval of the Chairman shall be obtained while deciding upon their recruitment and other important matters relating to their conditions of service.
(3) The Managing Director shall be the appointing authority in respect of the Grade-II and Senior Grade-Ill employees of the Corporation.
(4) The Managing Director shall be the appointing authority in respect of Junior Grade-Ill employees of the Corporation.
Provided that the powers of the appointing authority may, under the orders of the Board or the Chairman, be delegated, in respect of all or any of the categories of the Junior Grade-Ill employees, to such functionaries as may be specified in the order of delegation.
(5) In respect of the Grade-IV employees of the Corporation the following functionaries shall be deemed to be the appointing authority. Category of Grade-IV Appointing authorityemployees(i) Those functioning in the The Administrative OfficerHeadquarters office of theCorporation.(ii) Those functioning in the The District Manager of the DistrictDistrict field offices. within the said employees posted
The above rules speak that the employees like Subash Chandra Routray earned eligibility for appointment to the post of class III so also the other petitioner being a Commerce Graduate in respect of age and their service as Kantawala for a period of five years.
12. It is only the Managing Director who is the appointing authority in respect of junior grade class III employees of the Corporation. The power to appoint can also be delegated to the District Level Committee in respect of Junior Grade III employees. Only the District, Manager (opp. party No. 2) can appoint class IV employees in respect of the persons functioning in the field. So the appointment of the petitioners by the opp. party No. 2 in the post of Kantawala is in accordance with Rule 21 (5)(ii). Since the appointment of the petitioners by the opp. party No. 2 as Kantawala were made much prior to the delegation of the power of appointment of the employees to the committee as per their decision dated 21.5.1994, no fault can be found, with the said action of opp. party No. 2.
13. As per amended provision of Rule-9 of Rules 1993 (Annexure-9 of W.P.(C) No. 10342 of 2004), the Corporation may delegate the power of recruitment to the district level committee comprising of Addl. District Magistrate (Chairman), Asst. Controller of Legal Meteorology or any other officer to be nominated by the Collector, such other officer as external member having professional/technical expertise to be nominated under the orders of the Collector and the District Manager himself of the corporation functioning as Member Secretary.
14. As per the above rule pursuant to the decision of Board of Directors (O.S.C.S. Ltd.) in their meeting dated 21.5.1994 and in view of the amendment of Rule-9 (Annexure-9 of W.P.(C) No. 10342 of 2004) of the Rules, 1993, the power of recruitment in respect of class III posts lying vacant in the office of respective District Managers was delegated to the district level committee for the purpose in the said office order dated, 6.8.1996 (Annexure-B in W.P.(C) No. 9397/2004), it was also mentioned in the order that the District Level Committee shall recommend the selection list for approval of the Head Office and issue of appointment orders by the appointing authority. It was further indicated therein that a common gradation list shall be maintained at the Head Office on the basis of chronological order of the date of appointment.
15. So the rule and the power of delegation contemplate formation of committee who shall conduct the recruitment and recommend the selection list for approval of class III employees of the corporation, which were lying vacant then. The petitioners in the present case have neither laid the foundation mentioning recruitment process to have been done by a committee before whom they appeared and their names were recommended by the committee nor they have taken the stand that they were subjected to a competition. In view of the above appointment of the petitioners to the post of S.A.-cum-G.A. (Class III) cannot be said to be regular appointment but can be termed as irregular ad hoc engagement as the same was done by the District Manager (O.P. No. 2) only. Therefore, the claim of the petitioners for approval of their appointment as S.A.-cum-G.A. only on ground of rendering service for longer period is neither tenable nor acceptable. The apex Court has taken the view in Badri Prasad & Ors. v. Union of India and Ors. 2005(4) SCALE 725 that an employee cannot claim regularization in the higher post for the simple reason that they rendered service for a longer period as ad hoc employee in a higher post. In the aforesaid case, the petitioners before the apex Court were working in a higher cadre i.e. Group 'C' carrying higher scale of pay temporarily and had worked continuously for several years, but they were demoted to their original post of Khalasi i.e. Group 'D' in the open line. While deciding the controversy the apex Court did not approve their regularization in the higher post for continuous service but protected their pay even after demotion along with other reliefs.
16. At the cost of a repetition, we may mention here that both the petitioners were appointed on temporary basis on 23.5.1988 and 25.10.1991 respectively in the post of Kantawala and worked in the said post for a period of more than five years in the Corporation. The decision relied upon by the petitioners, i.e., in Civil Appeal Nos. 2281, 2283, 2286, 2287, 2282, 2283-84 & 2288/92, the apex Court while modifying the orders of this Court passed the following orders.
The direction given by the High Court regarding regularizing the services of the workmen are modified to the extent that the respondent workmen who have put in five years of service shall continue in the service of the management and their services shall not be dispensed with and further the management shall regularize them as & when regular vacancies are available. The workmen may be deputed to work in any of the projects under the control of the management where vacancies are available. Those respondents workmen who have served management for more than five years and whose services in the meanwhile have been terminated shall be taken back in service with continuity of service.
17. In view of the above discussion, our considered opinion is that the petitioners be allowed to continue as Kantawala in the management/Corporation and their services shall not be dispensed with and further the Corporation shall regularize them as and when regular vacancies are available. They may be deputed to any other project or assignment under the management/control of the Corporation. The petitioners shall be considered in their turn at the time of recruitment to the post of S.A.-cum-G.A./Junior Grade III and their service rendered as S.A.-cum-G.A. shall be given due weightage by relaxing their age. The opp.parties are directed not to recover financial benefits, if any, drawn by them while holding the post of S.A.-cum-G.A.
The writ petition is allowed to the above extent.
P.K. Mohanty, J.
I agree.