THE DIRECTOR OF HORTICULTURE Vs PRAVAT KUMAR DASH
Bench: HON'BLE MR. JUSTICE L. NAGESWARA RAO, HON'BLE MR. JUSTICE HEMANT GUPTA
Judgment by: HON'BLE MR. JUSTICE HEMANT GUPTA
Case number: C.A. No.-006227-006228 / 2019
Diary number: 28827 / 2018
Advocates: SOM RAJ CHOUDHURY Vs
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 6227-6228 OF 2019 (ARISING OUT OF SLP (CIVIL) NOS. 1363-1364 OF 2019
THE DIRECTOR OF HORTICULTURE, ODISHA .....APPELLANT(S)
VERSUS
PRAVAT KUMAR DASH & ORS. .....RESPONDENT(S)
J U D G M E N T
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
Page 10 of 10