W.P.(C) Nos. 17571 and 1697 of 2016. Case: Bilash Kumar Behera Vs State of Odisha and Ors.. High Court of Orissa (India)

Case NumberW.P.(C) Nos. 17571 and 1697 of 2016
CounselFor Appellant: Umesh Chandra Mohanty, T. Sahoo, B.K. Swain and B. Behera, Advs. and For Respondents: Prafulla Kumar Rath, R.N. Parija, A.K. Rout, S.K. Pattnaik, A. Behera, P.K. Sahoo, S.K. Behera, A.K. Behera and B.K. Dash, Advs.
JudgesSanju Panda and S.N. Prasad, JJ.
IssueConstitution of India - Articles 14, 16, 309; Orissa Service of Engineers (Validation of Appointment) Act, 2002 - Section 3
Judgement DateJanuary 17, 2017
CourtHigh Court of Orissa (India)

Judgment:

S.N. Prasad, J.

  1. In both these writ petitions common issues are involved and as such both the writ petitions are disposed of by this common order.

    These writ petitions are against the order dtd. 05.08.2016 passed in O.A. Nos. 861 and 1493 of 2014 and passed by the Odisha Administrative Tribunal, Bhubaneswar whereby and where under the grievance of the petitioner to fix his seniority above the opposite party No. 4 w.e.f. 27.05.1997, has been rejected.

  2. The brief fact of the cases in narrow compass is that the petitioner belongs to Scheduled Caste category, he is a qualified candidate in Diploma in Civil Engineering, got in the year 1988, Degree in Civil Engineering (AMIE) in the year 1994 and also acquired M. Tech. in Environment Engineering in the year 2000, had initially joined as Junior Engineer (PH) in the Housing and Urban Development Department on 2.10.1991 and treated as an in service Degree Holder Junior Engineer in the context of the provision of recruitment rule governing the Orissa Engineering Services (in short the OES Rules, 1941). As per the provision of Orissa Engineering Services Rules, 1941, the Orissa Engineering Services are consisting of two categories of posts, i.e. Class-II and Class-I posts, framed under Article 309 of the Constitution of India, as per the provision of Rule 5 of the said Rule, the entree cadre is the post of Asst. Engineer. The recruitment to the post of Asst. Engineer shall be made partly by direct recruitment against 67% of quota in accordance with the Rules 8 to 15 and the other 33% quota in accordance with Rules 16 to 18 from amongst the in-service Diploma Holder Junior Engineers, who have completed minimum 10 years of continuous service as on 1st day of August of the recruitment year and who have passed the departmental examination as has been prescribed by the Government from time to time. Besides the in-service Junior Engineers, who have acquired the qualification of Degree in Engineering have a right to apply for appointment as Asst. Engineers against the direct recruitment quota of 67% along with fresh Graduate Engineers through Public Service Commission as per the eligibility criteria as provided under Rule 9(d) of the Rules, 1941. As per Rule 19 and 20, a promotee is likely to be confirmed in the post of Asst. Engineer after completion of one year of continuous service of period of probation, similarly a direct recruitee is likely to be confirmed in the said post after completion of 2 years of period of probation. As per Rule 2 the promotee officer shall be considered senior to the officers directly recruited in a recruitment year irrespective of their date of joining. As per Rule 23, the power of relaxation of recruitment rules has been vested with the State Government and the Government can invoke the same in respect of any person or employee if he feels necessary and expedient so to do in the interest of public service.

    No direct recruitment against 67% quota in the cadre of Asst. Engineer has been held from the year 1987-88 till the year 2003 and as such the Graduate Engineers of the State and the in-service Degree Holder Junior Engineers shall be deprived of the opportunity to compete for the 67% quota of the posts. The Government has engaged the other stipendiary engineers, who were appointed in different State Engineering Departments, public sector undertakings, Blocks and continued under stipend of Rs. 2000/- per month, hence the grievance of the petitioner is that on the one hand the government is making recruitment of the stipendiary engineers while making payment of stipend, while on the other hand even in spite of availability of qualified persons who are to consider for appointment in the post of Asst. Engineers against 67% quota, no steps is being taken.

    The Government has constituted a high power committee by its decision dtd. 5.8.1992 by which it was decided to give appointment to the unemployed Graduate Engineers (stipendiary) against 25% quota and so also to give appointment to in-service Degree Holder Junior Engineers against 5% quota so as to achieve the dual objective of adjusting the stipendiary Engineers and the in-service Degree Holder Junior Engineers against the direct recruitment quota of 67% as follows:-

    (a) The promotion quota may continue as 33% of annual vacancy.

    (b) In addition there should be a selection quota of 30%. This quota will have two components - 5% for Junior Engineers, who have acquired as Engineering Degree or equivalent qualification and 25% which will be earmarked exclusively for stipendiary Engineering.

    (c) Direct recruitment quota will be 37%. Stipendiary Engineers can also compete against this quota. They may be allowed age relaxation up to five years. This will ensure that Stipendiary Engineers have the facility of recruitment, both against the selection quota and direct recruitment quota.

    (d)............

    (e) This will be a transitional provision because appointment of Stipendiary Engineers may not be a permanent feature. After such time as, Government may decide the present quotas of recruitment will be restored.

    (f) Public Sector Undertakings should frame their own recruitment rules which should broadly correspond to Government's policy of promotion of Junior Engineers and appointment of Stipendiary Engineers through selection. If there are no Stipendiary Engineers or Junior Engineers with Degree or equivalent qualification quotas for these categories will be added to direct recruitment quota.

    The decision of the High Power Committee was subsequently been approved by the then Nodal Department, i.e. the Irrigation Department, now Water Resource Department in the form of memorandum dtd. 16.2.1994. The State Government by virtue of a policy decision has prepared a draft rule approved by the General Administration and Law Department has brought a memorandum dtd. 16.2.1994 having got its approval by the State Cabinet in its 27th Council of Ministers' meeting held on 3.12.1994 has approved the said Rule and to amend the Orissa Services of Engineers Rule, 1941 by creating a separate quota of 5% within direct recruitment quota of 67%, the object being to bring the Degree Holder Junior Engineers as well as the Stipendiary Engineers to the proper fold of recruitment and the said decision was approved by the Cabinet and form a rule known as Orissa Engineering Services (Recruitment & Conditions of Services) Rules, 1996.

    Pending finalization and approval by His Excellency the Hon'ble Governor to the Draft Amendment Rules, 1996, promotions on appointment in respect of the in-service Degree Holder Junior Engineers were given as Asst. Engineer (in-charge) in the Works Department w.e.f. 7.10.1998 and 18.1.1996 in Water Resources...

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