The Director Of Horticulture vs Pravat Kumar Dash

THE DIRECTOR OF HORTICULTURE, ODISHA .....APPELLANT(S)

VERSUS

PRAVAT KUMAR DASH & ORS. .....RESPONDENT(S)

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

Page 1 of 10 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

Page 2 of 10 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 with the services of six persons who

have been selected by the Director of Horticulture. The Director of

Horticulture was directed not to give any employment or any

financial assistance to 356 candidates who have been selected

irregularly and imparted training at places other than School of

Page 3 of 10 Horticulture, Khurda. Director of Horticulture was also directed not

to entertain 997 pending applications for their selection as

Gardeners trainee. The said decision became the subject matter of

challenge before the Odisha Administrative Tribunal.

7) On April 24, 2001, services of six persons as mentioned in the

letter of Director of Horticulture were terminated. Such order of

termination was challenged before the Odisha Administrative

Tribunal in OA Nos. 1144 of 2001, 1181 of 2001, 1374 of 2001 and

1435 of 2001. These applications were allowed on September 13,

2006 whereby the appellant was directed to reinstate the services

of the applicants along with payment of consequential benefits

including 50% of their salary and allowances.

8) The writ petitions filed by the State against order dated September

13, 2006 were dismissed by the High Court on December 5, 2009.

It was held that all trainees who have taken training outside the

School of Horticulture, Khurda stand on the same footing and a pick

and choose method could not have been adopted by the

Department for the purpose of compliance of the order of the Court

passed in OJC No. 4665 of 1999 (PIL). The High Court held that all

such trainees were appointed against the substantive vacancies

and continued for almost two years, therefore, they are protected

under Article 311 of the Constitution of India and their services

could not be terminated without any notice. The relevant extract

from the order reads as under:

Page 4 of 10

“7. …As it appears, all the candidates selected, for such training had been trained in different farms instead of School of Horticulture at Khurda meant for such training without approval of the Government. Therefore, all such trainees, who had taken training outside the School stand on the same footing and a pick and choose method could not have been adopted by the Department for the purpose of compliance of the order of this Court passed, in the aforesaid Public Interest Litigation. We are, therefore, of the view that there was no illegality in the recommendation of the Director selecting these four opposite parties for the purpose of training, he being the higher authority than the authority competent to do so.

8. Apart from the above, as rightly observed by the Tribunal that all these opposite parties were regularly appointed by order dated 30th June, 1999 against the substantive vacancies and continued as such almost for two years. Therefore, they are protected under Article 311(2) of the Constitution of India as well as Rule 15 of the O.C.S. (C.C.A) Rules, 1962 and their services could not have been terminated without a notice to show cause. The Tribunal, while holding such, also relied upon a decision of the Hon’ble Supreme Court as well as a decision of this Court.”

9) Nine OAs were filed by 81 applicants before the Odisha

Administrative Tribunal including OA Nos. 337 of 2001 and 529 of

2001. Another OA No. 1534 of 2006 was also filed seeking

appointment as Gardener in terms of order dated September 13,

2006. Such applications were allowed by the Tribunal on May 11,

2011.

10) It may be noticed that certain OAs filed by Subhash Chandra Jena,

Ajay Kumar Das and Ranjit Sahoo were dismissed by the Tribunal

on December 21, 2009 but such order was set aside by the High

Page 5 of 10 Court on December 14, 2011 holding that the applicants were on

the same footing as parties in previous applications which were

decided on May 11, 2011.

11) On March 7, 2012, the State decided to abolish the post of

Gardener. On May 9, 2012, it was decided that no further

recruitment will be made in the cadre of Gardener and the post

would stand abolished when the incumbent retires or gets

promoted. There were certain directions to the State Government

to consider the appointments in other Original Applications. The

claim of the applicants for appointment as Gardener was rejected

on various dates. Such termination orders were challenged in nine

separate applications before the Odisha Administrative Tribunal

including OA No. 1510 of 2012 which was allowed on June 27, 2014

and the writ petitions filed by the State stand dismissed vide order

dated December 22, 2017. This order is impugned in the present

appeal.

12) In this factual background and the number of orders passed by Odisha Administrative Tribunal, the argument of Mr. Vikas Singh,

learned senior counsel for the appellant is that 362 persons were

selected in wholly irregular manner to undergo training in Depart-

mental farms other than training by the Director of Horticulture.

Out of 1359 applications, 362 were selected without any criteria.

The circular of the State Government was categorically to the effect

that undergoing training will not ensure an appointment. The train-

ing of Gardener was only an eligibility qualification and not a guar-

Page 6 of 10 antee for the appointment. It is, thus, argued that training was not

as per the decision of Director of Horticulture communicated on

April 16, 1998 but in the departmental farms without a transparent

selection process, 362 candidates out of 1359 candidates were se-

lected to undergo training. Still, further, six candidates were ap-

pointed surreptitiously, therefore, it was decided to terminate their

services. The appointment was dehors any selection procedure

known for making employment against the public post, therefore,

such appointments cannot be said to be protected by Article 311 or

by the Orissa Civil Services Rules.

13) It is alternatively contended that even if six candidates have been appointed illegally, such illegality cannot be claimed to be perpetu-

ated by the other candidates by seeking parity with six illegally ap-

pointed candidates. It is pointed out that the posts of Gardener

were never advertised even when six candidates were appointed,

therefore, the direction of the Tribunal as maintained by the High

Court to make appointments is contrary to the statutory rules and

the procedure for appointment against the public post, therefore,

such directions cannot be sustained in law.

14) It is also argued that the findings recorded by the Tribunal, as af-

firmed by the High Court, that similarly situated Gardeners have

been appointed are factually incorrect as some vacancies in the

cadre of Gardener were filled in the rehabilitation scheme from

amongst the attendants who have completed six years’ service for

Page 7 of 10 promotion to the post or rank of Gardener on the basis of seniority-

cum-merit.

15) On the other hand, the argument of Mr. Guru Krishnakumar as well as Mr. R. Basant, learned senior counsels appearing on behalf of

some of the respondents, is that the action of the State is wholly

arbitrary as similarly situated candidates have been appointed. It

is further argued that the stand that post of Gardener stands abol-

ished and the post of Horticulture Extension Worker has been cre-

ated is only a ruse as it is nomenclature of the same post. The

stand of the State that Horticulture Extension Worker is a promo-

tion post from the post of Gardener is not correct.

16) We have heard learned counsel for the parties and find that the or-

ders passed by the Tribunal, as affirmed by the High Court, are not

justified in law.

17) The respondents were subjected to training in pursuance of circular dated July 4, 1998. The training was proposed in the circular dated

April 16, 1998. It clearly contemplates that there is no guarantee

in the matter of employment after successful completion of training

by the trainees. At that time, training was contemplated only in

the School of Horticulture, Khurda during the year 1998-1999. Sub-

sequently, the training was proposed to be held in ten selected de-

partmental farms but there is no assurance in the said communica-

tion dated July 4, 1998 that candidates would be appointed. The

appointment to the post of Gardener is required to be made in

Page 8 of 10 terms of the Recruitment Rules if any, applicable thereto or in

terms of instructions issued under executive power of the State but

the appointments cannot be made merely for the reason that a

candidate has undergone training. Out of 1359 candidates who ap-

plied in pursuance of circular dated July 4, 1998, 362 candidates

were selected for training but the manner of their selection has not

come on record.

18) We find the selection of the candidates for training was not by way of transparent procedure nor there was any commitment to appoint

candidates who have completed training as Gardeners, therefore,

even if a candidate has completed training, he cannot seek right of

employment unless such posts are advertised and filled up by giv-

ing opportunity to all similarly situated candidates. The directions

of the Tribunal, as affirmed by the High Court, that the candidates

are intended to be employed are wholly unjustified as there cannot

be any direction for appointment only for the reason that the candi-

dates have undergone training. It is not necessary for this Court to

examine whether the post of Gardener has been upgraded to the

post of Horticulture Extension Worker or that it is the same post

having a different nomenclature. The fact remains that all public

posts are required to be filled up by giving an opportunity to all the

candidates to apply and to compete for the post.

19) The services of six persons who were appointed were ordered to be terminated on December 10, 1999 but even if their termination

was set aside on April 24, 2001, it will not confer any right on the

Page 9 of 10 basis of equity in favour of the other candidates. There cannot be

any parity in the illegality. Reference will be made to Chandigarh

Administration & Anr. v. Jagjit Singh & Anr.1 and Kulwinder

Pal Singh & Anr. v. State of Punjab & Ors.2

20) In view of the above, we find that the order of the Odisha Adminis-

trative Tribunal, as affirmed by the High Court, directing the State

to appoint the applicants as Gardeners is beyond their jurisdiction

vested in the High Court as there cannot be any direction for mak-

ing appointment to the public post in such a manner. Conse-

quently, the appeals are allowed. The orders passed by the High

Court and the Tribunal are set aside and the OAs filed by the re-

spondents are dismissed.

.............................................J. (L. NAGESWARA RAO)

.............................................J. (HEMANT GUPTA) NEW DELHI;

AUGUST 09, 2019.

1 (1995) 1 SCC 745 2 (2016) 6 SCC 532

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