Amarendra Kumar Mohapatra & Ors. V. State Of Orissa & Ors.

Amarendra Kumar Mohapatra & Ors. V. State Of Orissa & Ors. in India

Amarendra Kumar Mohapatra & Ors. V. State Of Orissa & Ors. [2014] Insc 105 (19 February 2014)

Court Judgment Information

  • Year: 2014
  • Date: 19 February 2014
  • Court: Supreme Court of India
  • INSC: [2014] INSC 105

Text of the Court Opinion

(Refortable) IN THE SUPREME COURT OF INDIA

Civil Appelate Jurisdiction

CIVIL APPEAL No.8322 OF 2009 Amarendra Kumar Mohapatra & Ors. (Appelant)s Versus State of Orissa & Ors. .Respondents WITH

Civil Appeals No.8323-8331 of 2009, 1768 of 2006 and 1940 of 2010.

T.S. THAKUR, J.

1. Common questions of law arise for consideration in these appeals which were heard together and shall stand disposed of by this common order.

The primary issue that falls for determination touches the Constitutional validity of what is described as the Orissa Service of Engineers (Validation of Appointment) Act, 2002 by which appointment of 881 ad hoc Assistant Engineers belonging to Civil, Mechanical and Electrical Engineering Wings of the State Engineering Service have been validated, no matter all such appointments were in breach of the Orissa Service of Engineers’ Rules, 1941. The High Court of Orissa has in a batch of writ petitions filed before it struck down the impugned Legislation on the ground that the same violates the fundamental rights guaranteed to the writ petitioners under Articles 14 and 16 of the Constitution. We shall presently formulate the questions that arise for determination more specifically but before we do so, we consider it necessary to set out the factual matrix in which the entire controversy arises.

2. In a note submitted to the State Cabinet on 15th May 1990 the problem of over 2000 unemployed degree-holders in various branches of Engineering who had passed out from several Engineering colleges since the year 1984 was highlighted and a proposal for utilizing the manpower so available for the benefit of the State economy mooted. The proposal envisaged a twofold action plan for absorbing the unemployed graduate Engineers. The first part of the action plan provided for withdrawal of 127 posts of Assistant Engineers that had been referred to the Public Service Commission and advertised by it to be filled up by appointing unemployed degree holder Engineers in a non-class II rank. The second part of the proposal envisaged creation of 614 posts of Junior Engineers in different Departments to accommodate the unemployed degree holders. These 614 posts comprised 314 new posts proposed to be created, one for each block in the State.

Similarly, 100 posts were to be created in the Irrigation Department for survey and investigation to accelerate the pace of investigation. Yet another 200 posts were to be created for initial infrastructure work in connection with Paradip Steel Plant.

3. The note submitted to the Cabinet suggested that degree-holder Engineers could be recruited against all the 741 (127 + 614) posts mentioned above to be designated as Junior Engineers or Stipendiary Engineers in the first phase on a consolidated stipend of Rs.2,000/- per month. The proposal further envisaged absorption of Engineers so appointed on regular basis after two years, after assessing their performance.

4. The Council of Ministers considered the proposal mooted before it and approved the same. Decision taken in the 2nd Meeting of the Council of Ministers held on 15th May, 1990 with regard to ‘Problems of Un-employed Degree Engineers’ was forwarded to the Secretaries to the Government in terms of a memo dated 21st May 1990, the relevant portion whereof reads as under:

| “Item No.5: |Problems of Un-employed Degree |Engineers. |The problems were discussed at length |and the following decisions were |taken. |All posts of Assistant Engineers |referred to the Orissa Public Service |Commission and advertised by them may |be withdrawn. |314 posts of Stipendiary Engineers may|be created one in each Block. |100 posts of Stipendiary Engineers may|be created in the Irrigation |Department for survey and |investigation. |200 posts of Stipendiary Engineers may|be created for the initial |infrastructure work of Paradip |Port-based Steel Plant. |In all, 741 posts of Stipendiary |Engineers will be available, for |recruiting from the unemployed Degree |Engineers. A Stipendiary Engineer may|be paid a consolidated stipend of |Rs.2,000/- per month. Absorption into|regular posts may be considered after |two years on the basis of their |performance. |The criteria for selection are to be |worked out separately, so that |Stipendiary Engineers are recruited on|merit basis batch by batch. |The rest of the unemployed Degree |Engineers are proposed to be engaged |in various construction works by |formation of Groups Companies and |Cooperatives, which will get |preference in award of work by the |Department/Corporations.” | |

5. As a sequel to the above decision, the Government invited applications from unemployed graduate Engineers of all disciplines for empanelment as Stipendiary Engineers for placement in different Government departments, projects, public sector undertakings, co-operative societies and industries etc. By another resolution dated 22nd September 1990, the Government stipulated the procedure to be adopted for discipline-wise empanelment of the unemployed graduate Engineers for appointment as Stipendiary Engineers against the vacancies in different departments and undertakings. The procedure evolved was to the following effect :

“2. Government have since decided that the following procedure should be adopted for discipline wise empanelment of the unemployed Graduate Engineers for appointment as Stipendiary Engineers against the vacancies in different government Department and undertakings:

1) 25 percent of the posts shall be filled up on merit basis and for this purpose equal number will be taken from each batch starting from the batch of 1984 up to the batch of 1989. 2) A point system will be adopted for empanelment on merit basis, for which out of a total 100 marks the performance in HSC will be given 15 marks, the performance in I. Sc.

and Diploma will be given 25 marks and the performance at the final Engineering Degree Examination will be given 60 marks.

3) After the empanelment on merit basis is done for 25% of the vacancies, empanelment will be done batch-wise starting from 1984 for the remaining vacancies. The Inter se position of candidates in the batch wise panel will again be on the basis of merit computed as in (2) above.

4) There shall also be separate empanelment on merit basis for SC/ST, Physically handicapped and ex-servicemen covering all the batches to facilitate filling up of reserved vacancies. The rules regarding reservation of vacancies will apply to these appointments.

5) Applications received on or before 10.7.1990 will alone be considered for empanelment. Similarly graduate Engineers who have passed out before 1984 or those who have obtained degree after 1989 will not be eligible for empanelment.

6) The following committee will undertake the work of scrutiny and empanelment of the unemployed graduate Engineers.

|Secretary Steel & Mines |Chairman of the | |Committee |Engineer-in-Chief and Secretary, |Member |Works |Engineer-in-Chief (Irrigation) |Member |Chief Engineer Electricity and |Member |electrical Projects |Chief Engineer, PHD |Member |Chief Engineer, RLEGP |Member |Managing Director, IPICOL |Convenor | 7) The panels from the Scrutiny Committee will be maintained in the Department of Planning and Coordination who will sponsor candidates to various Government Departments and Undertakings according to the requirement as indicated by them. The undertakings will send indents through the concerned Administrative Departments.

8) As regards Civil & Mechanical Engineers, the Government Departments will intimate the requirement to Irrigation Department who will the panel names from P & C Department to fill up the vacancies. In case of these Engineers, the appointment orders will be issued by the Department of Irrigation and when required they will be sent on deputation to the other Departments.

9) If there is no candidate to be recommended against reserve vacancies for the reason that the panels of such candidates are exhausted, the Department of P & C will give a non availability certificate to the indenting organizations so that they can take steps to de-reserve the vacancies and give appointment to general candidates in their place.

10) The normal requirement for new appointment under Government viz. production of original certificates, Medical Certificate, Schedule Caste/Scheduled Tribe Certificate etc. shall be applicable to these appointments and the verification of these documents shall be the responsibility of the Employing Departments/Undertakings.

11) In some cases relaxation of age limit for entry into Government service may have to be done and this will be attended to by the Employing Departments/Undertakings as a matter of course.

ORDER Ordered that the Resolution be published in the Orissa Gazette for general information.

Ordered also that copies of the Resolution be forwarded to all Departments of Government, Member, Board of Revenue, All Heads of Departments, All District Collectors, Secretary to Governor, Registrar, Orissa High Court Secretary, OPSC, Principal Secretary to the Chief Minister and Director of Printing, Stationary and Publication, Orissa Cuttack and 50 copies of Planning & Coordination Department.

BY ORDER OF THE GOVERNOR S.SUNDARARANJAN ADDITIONAL DEVELOPMENT COMMISSIONER AND SECRETARY TO GOVERNMENT”

6. Applications received from unemployed graduate Engineers for appointment as Stipendiary Engineers were in terms of the above resolution and considered by the Committee constituted for the purpose and appointment of eligible candidates found suitable for such appointments made between 1991 to 1994. Appointment orders issued to the candidates made it clear that degree holder Engineers were being engaged as Stipendiary Engineers in the concerned Department and shall be paid a consolidated stipend of Rs.2000/- only. It further stated that the engagement was purely temporary and terminable at any time and without any notice.

7. In August 1992, Minister for Irrigation, Government of Orissa mooted a further proposal to the following effect:

a) The promotion quota may continue at 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 an Engineering Degree or equivalent qualification and 25% which will be earmarked exclusively for Stipendiary Engineers.

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) Departments may not fill up vacancies in the post of Stipendiary Engineers caused by appointment of the incumbents as Assistant Engineers, if they want to do so, they may obtain candidates from the panel of the P & C Department.

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.”

8. It is evident from the above that while the Government did not propose to reduce the 33% quota reserved for promotees, out of the remaining 67% meant for direct recruitment, it proposed to carve out what was described as selection quota of 30% for absorption of the Stipendiary Engineers to the extent of 25% of the vacancies and degree holder Junior Engineers against the remaining 5% of the vacancies. The balance of 37% of the vacancies was, however, left to be filled up by direct recruitment from the open market.

9. Based on the above, the Government appears to have made a reference to the Orissa Public Service Commission on 5th June 1996 for approval of the draft Orissa Engineering Service (Recruitment & Condition of Service) Rules, 1994 which were already approved by the State Council of Ministers on 3rd December 1994. The Orissa Public Service Commission, however, struck a discordant note. In its opinion, since the Stipendiary Engineers did not constitute a cadre in the formal sense it was not desirable to treat it as a feeder grade for Assistant Engineers. So also the proposal to reserve 5% of the vacancies in the grade of Assistant Engineers to be filled by degree holder Junior Engineers from the Subordinate Service was also considered to be inadvisable. The Commission opined that since persons with higher qualifications serve practically in all fields of administration including technical services such as Medical and Engineering, it was neither necessary nor desirable to provide for them a route for promotion to the higher level except the one available to all those serving in the feeder grade. In the opinion of the Commission, the correct way of rewarding those with higher qualification was to give them advance increments at the time of entry. The Commission also suggested that if in the opinion of the Government the quota for promotion of Junior Engineers to the level of Assistant Engineers required to be higher than 33% in consideration of the larger body of Junior Engineers some of whom were degree holders, it could increase the same to 40%, but the fragmentation of the Junior Engineers into degree holders and non-degree holders was not advisable. The Commission suggested that the remainder of the 60% vacancies for direct recruitment could be utilized by recruiting degree holder Engineers from the open market including Stipendiary Engineers and that candidates could be given suitable weightage while judging their inter se relevant merit.

10. The Government had, in the meantime, passed a resolution on 12th March, 1996 stating that the Stipendiary Engineers could be appointed as Assistant Engineers on ad hoc basis in the pay scale of Rs.2000-3500/- or any similar post on ad hoc basis against regular vacancies. It also resolved to regularize the service of such ad hoc Assistant Engineers through a Validation Act. Some Stipendiary Engineers who were working in different State Governments and statutory bodies were also proposed to be appointed to the post of Assistant Engineer or equivalent posts carrying the same scale, subject to their suitability and satisfactory performance.

The relevant portion reads as under:

“In consideration of the above decision of the Government, the appointing authority of Departments of Government will appoint the Stipendiary Engineers of different disciplines as Assistant Engineers against existing vacancies of Assistant Engineers on ad hoc basis for a period of one year, except Civil &

Mechanical, to be appointed on ad hoc basis by the Department of Water Resources.

XXX XXX XXX Stipendiary Engineers who are already working in different State Government Undertakings, Corporations,, Semi-Government Organizations & Statutory Boards may also be appointed as Assistant Engineers or in equivalent posts carrying the same scale, subject to their suitability and satisfactory performance.”

11. The resolution notwithstanding, the Government does not appear to have appointed any Stipendiary Engineers as Assistant Engineers on ad hoc basis. Aggrieved, the Stipendiary Engineers filed O.J.C. Case No.8373 of 1995 Jayanta Kumar Dey and Ors. v. State of Orissa and Ors. for a writ of mandamus directing the Government to comply with the resolution and the order issued by it. This petition was allowed by the Division Bench of the High Court of Orissa at Cuttack by an order dated 18th December 1996. The High Court directed the Government to take expeditious steps to implement resolution dated 12th March 1996, preferably within a period of four months. It further directed the State Government to appoint Stipendiary Engineers as Assistant Engineers in the scale of Rs.2000-3500 on ad hoc basis. In compliance with the directions aforementioned, the Stipendiary Engineers were appointed as Assistant Engineers on ad hoc basis between the years 1997 and 2001. What is important is that pursuant to its initial proposal of allocating 5% vacancies for those working as degree holder Junior Engineers in different departments, the Government had between 1996 and 1997 promoted 86 degree holder Junior Engineers on an ad hoc basis as Assistant Engineers.

12. Five Stipendiary Engineers working in the Water Resources Department whose names had been recommended along with others for appointment as Assistant Engineers on ad hoc basis by the Screening Committee set up for the purpose in the meantime filed O.J.C. No.1563 of 1998 before the Orissa High Court making a grievance that despite the recommendations made in their favour, the Government had not appointed them as Assistant Engineers.

That petition was allowed and disposed of by an order dated 6th May, 1998 directing the State Government to consider the case of the writ-petitioners in the light of its earlier order passed in Jayant Kumar’s case (supra).

Since the said directions were not carried out by the Government, two of the Stipendiary Engineers filed O.J.C. Nos.6354 and 6355 of 1999 in which they complained about the non-implementation of the directions issued by the High Court earlier and prayed for their regularisation. This petition was disposed of by the High Court by a common order dated 2nd July, 2002 in which the High Court noted that the petitioners had been appointed as Assistant Engineers on ad hoc basis in the pay scale of Rs.2000-3500/- by the Water Resources Department Notification dated 11th December, 1998. The High Court further held that since the Government was on principle committed to regularising the appointments of Stipendiary Engineers there was no reason why the Government should not treat them as direct recruits since the year 1991, in which they were appointed, and compute their service from that year for the purpose of in-service promotion, pension and other service benefits except financial benefits and to absorb them on regular basis according to law.

13. It was in the above backdrop that the Government finally came up with a proposal for validation of the appointment of Stipendiary Engineers as Assistant Engineers. Memorandum dated 28th November, 2002 referred to appointment of 846 Stipendiary Engineers in Civil, 61 Stipendiary Engineers in Mechanical and 25 Engineers in Electrical wings making a total of 932 Stipendiary Engineers in different Departments. We are informed at the Bar that the present number of such Stipendiary Engineers is limited to 881 only as the rest have either resigned, retired or died. The proposal made in the Memorandum also took note of the information given by the Orissa Public Service Commission and the repeated demands of ad hoc Assistant Engineers engaged from Stipendiary Engineers for regularization. The proposal stated that no regular appointments were made by the Orissa Public Service Commission and that the validation of appointments of Stipendiary Engineers as Assistant Engineers will immensely benefit the State in execution of several ongoing development works. The proposal further stated that having rendered more than 10 years of service, these Stipendiary Engineers currently working as Assistant Engineers on ad hoc basis will have no avenues for employment as they had already gone beyond the upper age limit prescribed for direct recruitment.

14. It is in the above backdrop that the State Legislature eventually enacted Orissa Service of Engineers (Validation of Appointment) Act, 2002 which comprises no more than three sections. Section 3 of the legislation reads as under:

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