09 August 2019
Supreme Court


Case number: C.A. No.-006227-006228 / 2019
Diary number: 28827 / 2018





CIVIL APPEAL NOS.  6227-6228   OF 2019 (ARISING OUT OF SLP (CIVIL) NOS. 1363-1364 OF 2019






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


“17.   In  view  of  our  analysis  in  the  foregoing

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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

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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

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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:

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“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,


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

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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


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-

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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

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


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

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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

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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)


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

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