THE DIRECTOR OF HORTICULTURE, ODISHA versus PRAVAT KUMAR DASH & ORS. on 9 August 2019

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SUPREME COURT REPORTS

[2019] 11 S.C.R.

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THE DIRECTOR OF HORTICULTURE, ODISHA

v.

PRAVAT KUMAR DASH & ORS.

(Civil Appeal Nos. 6227–28 of 2019)

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AUGUST 09, 2019

[L. NAGESWARA RAO AND HEMANT GUPTA, JJ.]

Service Law : Appointment – Post of gardeners – Issuance ofCirculars whereby selected applicants to be imparted pre-servicegardeners training in departmental farms by Director of HorticultureC– Selected applicants underwent training – However, few candidatesselected by Director of Horticulture without following the procedure– Appointment of few candidates and later on termination of theirservices – Subsequently, Government Order that not to fill up theposts of Gardener and to create the equal number of posts ofDHorticulture Workers – Said order set aside by the tribunal anddirection issued to the State to consider the applicants forappointment against the existing vacant posts of Gardener – Writpetition thereagainst, dismissed by the High Court – On appeal,held: Circular contemplates that there is no guarantee of employmentafter successful completion of training by the trainees – AppointmentEto the post of Gardener is required to be made in terms of theRecruitment Rules or in terms of the instructions issued – Selectionof the candidates for training was not by way of transparentprocedure nor there was any commitment to appoint candidates whohave completed training as Gardeners – Even if a candidate hasFcompleted training, he cannot seek right of employment unless suchpublic posts are advertised and filled up by giving opportunity toall similarly situated candidates – Directions of the tribunal, as upheldby the High Court, wholly unjustified as there cannot be anydirection for appointment only for the reason that the candidateshave undergone training – Furthermore, no right can be conferredGon the persons who were terminated on the basis of equity in favourof the other candidates – Thus, the order passed by the High Courtand the tribunal are set aside .

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Allowing the appeals, the Court

HELD: 1.1 The respondents were subjected to training inpursuance of circular dated July 4, 1998. The training wasproposed in the circular dated April 16, 1998. It clearlycontemplates that there is no guarantee in the matter ofemployment after successful completion of training by thetrainees. At that time, training was contemplated only in theSchool of Horticulture, Khurda during the year 1998–1999.Subsequently, the training was proposed to be held in ten selecteddepartmental farms but there is no assurance in the saidcommunication dated July 4, 1998 that candidates would beappointed. The appointment to the post of Gardener is requiredto be made in terms of the Recruitment Rules if any, applicablethereto or in terms of instructions issued under executive powerof the State but the appointments cannot be made merely for thereason that a candidate has undergone training. Out of 1359candidates who applied in pursuance of circular dated July 4, 1998,362 candidates were selected for training but the manner of theirselection has not come on record. [Para 17][716-A-C]

1.2 The selection of the candidates for training was not byway of transparent procedure nor there was any commitment toappoint candidates who have completed training as Gardeners,therefore, even if a candidate has completed training, he cannotseek right of employment unless such posts are advertised andfilled up by giving 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 whollyunjustified as there cannot be any direction for appointment onlyfor the reason that the candidates have undergone training. It isnot necessary for this Court to examine whether the post ofGardener has been upgraded to the post of Horticulture ExtensionWorker or that it is the same post having a different nomenclature.The fact remains that all public posts are required to be filled upby giving an opportunity to all the candidates to apply and tocompete for the post. [Para 18][716-D-F]

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A1.3 The services of six persons who were appointed wereordered to be terminated on December 10, 1999 but even if theirtermination was set aside on April 24, 2001, it would not conferany right on the basis of equity in favour of the other candidates.There cannot be any parity in the illegality. The order of theBtribunal, as affirmed by the High Court, directing the State toappoint the applicants as Gardeners is beyond their jurisdictionvested in the High Court as there cannot be any direction formaking appointment to the public post in such a manner. Theorders passed by the High Court and the tribunal are set asideand the OAs filed by the respondents are dismissed. [Para 19,C20][716-G; 717-A-B]

Chandigarh Administration & Anr. v. Jagjit Singh &Anr. (1995) 1 SCC 745 : [1995] 1 SCR 126; KulwinderPal Singh & Anr. v. State of Punjab & Ors. (2016) 6SCC 532 : [2016] 4 SCR 439 – referred to.D

CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 6227-E6228 of 2019

From the final Judgment and Order dated 22.12.2017 of the HighCourt of Orissa at Cuttack in W.P. (C) No.11307 of 2016 and 19570 of2015

FVikas Singh, Sr. Adv., Som Raj Choudhary, Ujjaval Kumar,Mrityunjay Singh, Advs. for the Appellant.

R. Basant, Gurukrishnakumar, Sr. Advs., Ramendra MohanPatnaik, Arnav Benera, Kedar Nath Tripathy, Advs. for the Respondents.

The Judgment of the Court was delivered byG

HEMANT GUPTA, J. 1. Leave granted.

2. The challenge in the present appeals is to a judgment passed byOrissa High Court on December 22, 2017 maintaining the order dated June 27, 2014 passed by Odisha Administrative Tribunal in OriginalApplication (OA) No. 1510 of 2012 and other petitions. The Tribunaldecided nine OAs by a common order whereby the orders passed bythe Government not to fill up the posts of Gardener and to create theequal number of posts of Horticulture Extension Workers were set aside.The State was directed to consider the applicants for appointment againstthe existing vacant posts of Gardener. The operative part of the orderreads as under:

“17. In view of our analysis in the foregoing paragraphs, the orderdated 15.9.2012, 06.10.2012 and 17.11.2012 passed by theGovernment in their Agriculture Department not to fill up the postsof Gardener and create equal number of posts of HorticultureExtension Workers stand quashed. Respondents are directed toconsider the case of the applicants for their appointment againstthe existing vacant posts of Gardener, as has been done in thecase of similarly placed trained candidates pursuant to the orderof the Hon’ble High Court, within a period of three months fromthe date of receipt of copy of this order. Since the applicantshave been fighting for their right for the last more than 15 years,respondents are directed to stick to the dead line fixed by thisTribunal.”

3. Aggrieved against the said order, the State and the Director ofHorticulture, Odisha filed writ petitions before the High Court. The HighCourt dismissed the writ petitions holding that the applicants hadundergone training after being selected and sponsored by the Government.It is also held that since the posts of Gardener are lying vacant, there isno reason why the State should not consider the applicants against suchvacancies.

4. The facts leading to the present appeals are that Agricultureand Cooperation Department of Odisha approved ten months course forpre-service training of Gardeners. The Gardeners were to be recruitedthrough an open advertisement and to undergo ten months training in theSchool of Horticulture, Odisha. All the candidates who were trained upto the year 1990 were absorbed. It was on April 16, 1998, the Directorof Horticulture decided to impart pre-service Gardener’s Training in the10 Departmental farms during the year 1998-1999. The candidates were AB

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Ato be selected as per the guidelines in terms of the selection procedurecirculated. The procedure for selecting candidates in all the 30 districtswas to be made by a committee chaired by Deputy Director ofHorticulture in each range. One of the conditions in the procedurecirculated was as under:

B“VIII. The candidates are required to furnish a bond in theprescribed form to the effect that after successful completion oftraining they shall serve under the Department for at least 3 years,if required, failing which the stipend paid during the training periodshall become refundable. No guarantee can be given in the matterof employment after successful completion of the training by theCtrainees.”

5. The High Court ordered an inquiry on May 11, 1999 inMiscellaneous Case No. 5135 of 1999 arising out of OJC No. 4665 of1999, when it was found as under:

D“(i)Out of sixty four candidates selected as gardeners trainee,six candidates have been selected by the Director ofHorticulture without following proper procedure.

(ii) 356 (Three hundred and fifty six) candidates have beenselected as gardeners trainee irregularly and impartedEtraining in some identified farms under Director ofHorticulture outside the School of Horticulture at Kurds,meant for such training without approval of Government.

(iii) Besides, 997 (Nine hundred ninety seven) applicationsreceived directly for selection as gardeners trainee are alsolying pending with the Director of Horticulture OrissaFwithout proper notification.”

6. It was decided to dispense with the services of six personswho have been selected by the Director of Horticulture. The Directorof Horticulture was directed not to give any employment or any financialassistance to 356 candidates who have been selected irregularly andGimparted training at places other than School of Horticulture, Khurda.Director of Horticulture was also directed not to entertain 997 pendingapplications for their selection as Gardeners trainee. The said decisionbecame the subject matter of challenge before the Odisha AdministrativeTribunal.

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7. On April 24, 2001, services of six persons as mentioned in theletter of Director of Horticulture were terminated. Such order oftermination was challenged before the Odisha Administrative Tribunalin OA Nos. 1144 of 2001, 1181 of 2001, 1374 of 2001 and 1435 of 2001.These applications were allowed on September 13, 2006 whereby theappellant was directed to reinstate the services of the applicants alongwith payment of consequential benefits including 50% of their salaryand allowances.

8. The writ petitions filed by the State against order datedSeptember 13, 2006 were dismissed by the High Court on December 5,2009. It was held that all trainees who have taken training outside theSchool of Horticulture, Khurda stand on the same footing and a pick andchoose method could not have been adopted by the Department for thepurpose of compliance of the order of the Court passed in OJC No.4665 of 1999 (PIL). The High Court held that all such trainees wereappointed against the substantive vacancies and continued for almosttwo years, therefore, they are protected under Article 311 of theConstitution of India and their services could not be terminated withoutany notice. The relevant extract from the order reads as under:

“7. …As it appears, all the candidates selected, for such traininghad been trained in different farms instead of School of Horticultureat Khurda meant for such training without approval of theGovernment. Therefore, all such trainees, who had taken trainingoutside the School stand on the same footing and a pick and choosemethod could not have been adopted by the Department for thepurpose of compliance of the order of this Court passed, in theaforesaid Public Interest Litigation. We are, therefore, of theview that there was no illegality in the recommendation of theDirector selecting these four opposite parties for the purpose oftraining, he being the higher authority than the authority competentto do so.

8. Apart from the above, as rightly observed by the Tribunal thatall these opposite parties were regularly appointed by order dated30[th] June, 1999 against the substantive vacancies and continuedas such almost for two years. Therefore, they are protected underArticle 311(2) of the Constitution of India as well as Rule 15 of A

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Athe O.C.S. (C.C.A) Rules, 1962 and their services could not havebeen terminated without a notice to show cause. The Tribunal,while holding such, also relied upon a decision of the Hon’bleSupreme Court as well as a decision of this Court.”

9. Nine OAs were filed by 81 applicants before the OdishaBAdministrative Tribunal including OA Nos. 337 of 2001 and 529 of 2001.Another OA No. 1534 of 2006 was also filed seeking appointment asGardener in terms of order dated September 13, 2006. Such applicationswere allowed by the Tribunal on May 11, 2011.

10. It may be noticed that certain OAs filed by Subhash ChandraCJena, Ajay Kumar Das and Ranjit Sahoo were dismissed by the Tribunalon December 21, 2009 but such order was set aside by the High Courton December 14, 2011 holding that the applicants were on the samefooting as parties in previous applications which were decided on May11, 2011.

D11. On March 7, 2012, the State decided to abolish the post ofGardener. On May 9, 2012, it was decided that no further recruitmentwill be made in the cadre of Gardener and the post would stand abolishedwhen the incumbent retires or gets promoted. There were certaindirections to the State Government to consider the appointments in otherOriginal Applications. The claim of the applicants for appointment asEGardener was rejected on various dates. Such termination orders werechallenged in nine separate applications before the Odisha AdministrativeTribunal including OA No. 1510 of 2012 which was allowed on June 27,2014 and the writ petitions filed by the State stand dismissed vide orderdated December 22, 2017. This order is impugned in the present appeal.

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12. In this factual background and the number of orders passedby Odisha Administrative Tribunal, the argument of Mr. Vikas Singh,learned senior counsel for the appellant is that 362 persons were selectedin wholly irregular manner to undergo training in Departmental farmsother than training by the Director of Horticulture. Out of 1359Gapplications, 362 were selected without any criteria. The circular of theState Government was categorically to the effect that undergoing trainingwill not ensure an appointment. The training of Gardener was only aneligibility qualification and not a guarantee 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 departmentalfarms without a transparent selection process, 362 candidates out of1359 candidates were selected to undergo training. Still, further, sixcandidates were appointed surreptitiously, therefore, it was decided toterminate their services. The appointment was dehors any selectionprocedure known for making employment against the public post,therefore, such appointments cannot be said to be protected by Article311 or by the Orissa Civil Services Rules.

13. It is alternatively contended that even if six candidates havebeen appointed illegally, such illegality cannot be claimed to be perpetuatedby the other candidates by seeking parity with six illegally appointedcandidates. It is pointed out that the posts of Gardener were neveradvertised even when six candidates were appointed, therefore, thedirection of the Tribunal as maintained by the High Court to makeappointments is contrary to the statutory rules and the procedure forappointment against the public post, therefore, such directions cannot besustained in law.

14. It is also argued that the findings recorded by the Tribunal, asaffirmed by the High Court, that similarly situated Gardeners have beenappointed are factually incorrect as some vacancies in the cadre ofGardener were filled in the rehabilitation scheme from amongst theattendants who have completed six years’ service for promotion to thepost or rank of Gardener on the basis of seniority-cum-merit.

15. On the other hand, the argument of Mr. Guru Krishnakumaras well as Mr. R. Basant, learned senior counsels appearing on behalf ofsome of the respondents, is that the action of the State is wholly arbitraryas similarly situated candidates have been appointed. It is further arguedthat the stand that post of Gardener stands abolished and the post ofHorticulture Extension Worker has been created is only a ruse as it isnomenclature of the same post. The stand of the State that HorticultureExtension Worker is a promotion post from the post of Gardener is notcorrect.

16. We have heard learned counsel for the parties and find thatthe orders passed by the Tribunal, as affirmed by the High Court, are notjustified in law.

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A17. The respondents were subjected to training in pursuance ofcircular dated July 4, 1998. The training was proposed in the circulardated April 16, 1998. It clearly contemplates that there is no guaranteein the matter of employment after successful completion of training bythe trainees. At that time, training was contemplated only in the Schoolof Horticulture, Khurda during the year 1998-1999. Subsequently, theBtraining was proposed to be held in ten selected departmental farms butthere is no assurance in the said communication dated July 4, 1998 thatcandidates would be appointed. The appointment to the post of Gardeneris required to be made in terms of the Recruitment Rules if any, applicablethereto or in terms of instructions issued under executive power of theCState but the appointments cannot be made merely for the reason that acandidate has undergone training. Out of 1359 candidates who appliedin pursuance of circular dated July 4, 1998, 362 candidates were selectedfor training but the manner of their selection has not come on record.

18. We find the selection of the candidates for training was not byDway of transparent procedure nor there was any commitment to appointcandidates who have completed training as Gardeners, therefore, evenif a candidate has completed training, he cannot seek right of employmentunless such posts are advertised and filled up by giving opportunity to allsimilarly situated candidates. The directions of the Tribunal, as affirmed by the High Court, that the candidates are intended to be employed areEwholly unjustified as there cannot be any direction for appointment onlyfor the reason that the candidates have undergone training. It is notnecessary for this Court to examine whether the post of Gardener hasbeen upgraded to the post of Horticulture Extension Worker or that it isthe same post having a different nomenclature. The fact remains that allFpublic posts are required to be filled up by giving an opportunity to all thecandidates to apply and to compete for the post.

19. The services of six persons who were appointed were orderedto be terminated on December 10, 1999 but even if their terminationwas set aside on April 24, 2001, it will not confer any right on the basis of equity in favour of the other candidates. There cannot be any parity inGthe 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]

1 (1995) 1 SCC 745H2 (2016) 6 SCC 532

THE DIRECTOR OF HORTICULTURE, ODISHA v.PRAVAT KUMAR DASH & ORS. [HEMANT GUPTA, J.]

20. In view of the above, we find that the order of the OdishaAdministrative Tribunal, as affirmed by the High Court, directing theState to appoint the applicants as Gardeners is beyond their jurisdictionvested in the High Court as there cannot be any direction for makingappointment to the public post in such a manner. Consequently, the appealsare allowed. The orders passed by the High Court and the Tribunal areset aside and the OAs filed by the respondents are dismissed.

Nidhi Jain

Appeals allowed.

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