Case Law Details
Ajit Kumar Panda Vs State of Odisha (Orissa High Court)
Seniority of officer to be reckoned from date of initial appointment and not according to date of confirmation
Orissa High Court held that once an incumbent is appointed to a post according to the rules, his seniority has to be reckoned from the date of the initial appointment and not according to the date of confirmation, unless the rules provide otherwise.
Facts- Vide the present petition, the petitioner challenges the Office Order issued by the Additional Commissioner of CT&GST, CT&GST Territorial Range, Bhubaneswar-opposite party No.3, wherein and whereby the service of the petitioner, joined in service on 08.01.2016 (afternoon) as Junior Assistant (CT & GST), was regularised with effect from 09.01.2022 on satisfactory completion of six years of contractual service in terms of Rule 10 of the Odisha Group-C and Group-D Posts (Contractual Appointment) Rules, 2013. The present writ application has been filed invoking extraordinary jurisdiction under Articles 226 & 227 of the Constitution of India.
Conclusion- Hon’ble Supreme Court of India in the case of V. Vincent Velankanni Vrs. Union of India held that it is a well-settled proposition that once an incumbent is appointed to a post according to the rules, his seniority has to be reckoned from the date of the initial appointment and not according to the date of confirmation, unless the rules provide otherwise.
Held that apart from noticing the provisions of Special Provisions Rules, 2022, and for the reasons ascribed supported by the decisions referred to supra, it would suffice to issue writ of mandamus by directing the op-posite parties to consider taking a decision with regard to modification of the Office Order dated 15.01.2022 of the Additional Commissioner of CT & GST, CT & GST Territorial Range, Bhubaneswar (Annexure-9) suitably within a period of three months from today. In the wake of above, on such modification, if any, being made to the said Office Order dated 15.01.2022, the opposite parties may also consider extending all such benefit to the petitioner as is available in law invoking powers under the provisions of Rule 16 of the RA Rules and/or Rule 11 read with Rule 12 of the CA Rules.
FULL TEXT OF THE JUDGMENT/ORDER OF ORISSA HIGH COURT
Challenging the Office Order communicated vide Memo No.110/CT&GST, dated 15.01.2022 under Annexure-9 issued by the Additional Commissioner of CT&GST, CT&GST Territorial Range, Bhubaneswar-opposite party No.3, wherein and whereby the service of the petitioner, joined in service on 08.01.2016 (afternoon) as Junior Assistant (CT & GST), was regularised with effect from 09.01.2022 on satisfactory completion of six years of contractual service in terms of Rule 10 of the Odisha Group-C and Group-D Posts (Contractual Appointment) Rules, 2013, the present writ application has been filed invoking extraordinary jurisdiction under Articles 226 & 227 of the Constitution of India with the following prayer(s):
“On the facts and in the circumstances stated above, your petitioners, therefore, pray that this Hon‘ble court be pleased to;
i) hold and declare the rehabilitation appointment of the petitioner as Jr. Clerk being an appointment under the Statutory Rule under OCS (Rehabilitation Assistance) Rules, 1990 as deemed to be regular appointment since 08.01.2016 i.e., the date of appointment with all consequential service benefits and direct the opp. Parties to treat the contractual period of service of the petitioner as regular service for all purposes;
ii) pass such other order (s) as deemed fit and proper in the bona fide interest of justice and fair play;
And for which act of your kindness, the petitioner shall as in duty bound, ever pray.‖
Facts as stated in the writ petition:
2. Shorn off detailed narration of facts, suffice it to refer relevant factual matrix as outlined in the pleadings.
2.1. On the death of Sukanta Kumar Panda, peon under the Finance Department, died in harness on 10.06.2013, considering the eligibility criteria, the opposite party No.1 in response to application filed under the Odisha Civil Services (Rehabilitation Assistant) Rules, 1990 (“RA Rules”, for brevity) and upon causing enquiry through the Collector, Puri, requested the Commissioner of Commercial Taxes, Odisha-opposite party No.2 by issue of Letter No.24325— FIN-OE-I-ESTT-0010/2013/ F., dated 08.09.2015 (Annexure-4) to take steps to appoint the petitioner against available vacancy. Text of said letter dated 08.09.2015 is reproduced herein below:
―Government of Odisha
Finance Department
***
No. FIN-OE-I-ESTT-0010/2013—24325/F.,
Dated 08.09.2015
From
Smt. S. Sethi,
Deputy Secretary to Govern-ment.
To
The Commissioner of Commercial Taxes, Odisha, Cuttack.
Sub.: Absorption of Sri Ajit Kumar Panda,
Son of Late Sukanta Kumar Panda,
Ex-Peon, Finance Department.
Sir,
I am directed to say that Sri Ajit Kumar Panda, son of Late Sukanta Kumar Panda, Ex-Peon of this Department has submitted an application to this Department for appointment as Junior Assistant under Rehabilitation Assistance Scheme. After careful consideration, Government have been pleased to appoint him Group-‘C‘ base level post on contractual basis in terms of G.A. Department Circular No.34925/Gen., Dated 31.12.2014 and No.3057/Gen., Dated 06.02.2015 against the available vacancy in the office of the Commissioner of Commercial Taxes, Odisha, Cut-tack.
You are, therefore, requested to take necessary steps to appoint Sri Ajit Kumar Panda in Group-‘C‘ base level post against the available vacancy in your office under Rehabilitation Assistance Scheme following due procedure.
Action taken on the matter may please be intimated to this Department early.
Yours faithfully,
Sd/- 08.09.2015
Deputy Secretary to Government
2.2. Subsequently, the Finance Department in continuation of aforesaid letter clarified as follows:
“R.A. CASE/URGENT
“Government of Odisha
Finance Department
***
No.FIN-OE-I-ESTT-0010/2013/28728/F.
Dated 04.11.2015
From
Sri N.K. Rautray,
Joint Secretary to Government.
To
The Commissioner of Commercial Taxes, Odisha, Cuttack.
Sub.: Absorption of Sri Ajit Kumar Panda,
Son of Late Sukanta Kumar Panda, Ex-Peon,
Finance Department.
Sir,
In continuation of this Department Letter No.24325/F., dated 08.09.2015 and Letter No. 14920/CT dated 14.10.2015 of C.C.T (O) Cuttack, I am directed to request you to take necessary steps to appoint Sri Ajit Kumar Panda, S/o Late Sukanta Kumar Panda, Ex-Peon of this Department in Group-‗C‘ base level post (Junior Assistant/Junior Clerk) against the available vacancy in Head office/Range level offices under Re-habilitation Assistance Scheme on contractual basis in terms of G.A. Department Circular No.34925/Gen., Dated 31.12.2014 and No.3057/Gen., Dated 06.02.2015.
Action taken on the matter may please be intimated to this Department early.
Yours faithfully,
Sd/- 04.11.2015
Joint Secretary to Government.‖
2.3. In consequence of Letter of the Finance Department bearing No.28728/F., dated 04.11.2015 addressed to the Commissioner of Commercial Taxes and Letter of Com-missioner of Commercial Taxes bearing No.17673/CT, dated 10.12.2015, the Joint Commissioner of Commercial Taxes, Bhubaneswar Range, Bhubaneswar issued Office Order vide Memo No.21, dated 05.01.2016 indicating that the petitioner is “appointed temporarily as Junior Clerk on contractual basis in terms of Government Administration Department Notification No.GAD-SC-RULES-0009-2013/32010/Gen. dated 12.11.2013 and Government Administration Department Circular No.GAD-SC-RAS-0075-2014-3057/ Gen. dated 06.02.2015, Government of Odisha, Bhubaneswar in the scale pay of Rs.5,200/-to Rs.20,000/- with Grade pay of Rs.1,990/- on contractual basis under Rehabilitation Assistance Scheme against an existing vacant post with the provisions of Odisha Civil Services (Rehabilitation Assistance) Rules, 1990.”
2.4. Upon acceptance of joining report of the petitioner in service on 08.01.2016 (afternoon), the Deputy Commissioner of Commercial Taxes, Bhubaneswar-II Circle, Bhubaneswar intimated the fact to the Joint Commissioner of Commercial Taxes, Bhubaneswar Range, Bhubanewsar by Letter No.350 dated 14.01.2016.
2.5. Being satisfied with contractual service rendered by the petitioner for more than six years, the Additional Commissioner of CT&GST, CT&GST Territorial Range, Bhubaneswar vide Memo No.110/CT&GST, dated 15.01.2022 regularised his service by issue of following Office Order:
“CT & GST Territorial Range, Bhubaneswar (under Commissionerate of CT & GST Finance Department, Government of Odisha)
No.________ /CT&GST
Dated _______
Office Order
In terms of Rule 10 of the Odisha Group-C and Group-D posts (contractual appointment) Rules, 2013, the service of Sri Ajit Kumar Panda, Junior Assis-tant (CT & GST) joined on 08.01.2016 (A.N.) is hereby regularised with effect from 09.01.2022 on satisfactory completion of six years of contractual service.
On such regular appointment, he is entitled to draw the Pay, DA & other allowances as admissible in the corresponding level.
Sd/-
Additional Commissioner of CT & GST
CT & GST Territorial Range
Bhubaneswar
Memo No.110/CT&GST.
Dated 15.01.2022.
Copy to Sri Ajit Kumar Panda, Jr. Assistant (CT & GST), CT & GST Circle, Bhubaneswar-II, Bhubaneswar for information.
Sd/- 15.01.2022
Additional Commissioner of CT & GST
CT & GST Territorial Range
Bhubaneswar‖
2.6. Being dissatisfied by the said Office Order fixing date of regularisation with effect from “09.01.2022” instead of “08.01.2016”, the petitioner has approached this Court by way of filing this writ petition.
Rival contentions and submissions:
3. Sri Bhabani Sankar Tripathy assisted by Sri Amit Kumar Sahoo, learned Advocates submitted that it is undisputed fact that the petitioner was appointed under the provisions of the RA Rules, 1990 and joined in the service on 08.01.2016.
3.1. It is the submission of the learned counsel that the appointment under the RA Rules, 1990 is regular in nature and the Authority had no occasion to treat him as a contractual appointee since 08.01.2016. Referring to Rule 15 of the RA Rules, 1990, he urged that the provisions ibid. has overriding effect.
3.2. Questioning the propriety of the Office Order in Annexure-9 regularizing the services of the petitioner with effect from 09.01.2022 instead of 08.01.2016, learned counsel for the petitioner objected that the opposite parties ought not to have treated his appointment as if it were made in terms of the General Administration Department Notification dated 12.11.2013 and 06.02.2015. It is argued that since there is no provision under the RA Rules, 1990 for providing appointment on contractual basis, the appointment against a vacant post in Group-C on finding the petitioner eligible to be appointed as Junior Clerk (now Junior Assistant), the contractual period from 08.01.2016 to 09.01.2022 is required to be directed for appropriate modification of the Office Order dated 15.01.2022 vide Annexure-9.
4. Placing heavy reliance on the General Administration Department Notification No. GAD-SC-Rules-0009-2013/32010/Gen. dated 12.11.2013 read with clarification of General Administration Department Circular bearing No.GAD-SC-RAS-0075-2014- 34925/Gen. dated 31.12.2014 and Circular No. GAD-SC-RAS-0075/2014/3057/Gen. dated 06.02.2015 in (Annexure-D), Sri Arnav Behera, Additional Standing Counsel submitted that the Odisha Group “C” and Group “D” Posts (Contractual Appointment) Rules, 2013 (“CA Rules”, for convenience) has been made applicable for the purpose of appointment made under the RA Rules, 1990. By virtue of Circular dated 31.12.2014 and Circular dated 06.02.2015, it has clearly been stipulated that the appointment under the RA Rules, 1990 “shall be a contract basis as per the aforesaid Rules, 2013”. It is also stipulated that after satisfactory completion of six years of contractual services the appointment under the RA Rules shall be treated to have been regularly appoint-ed. It is submitted that at the time when the opposite party No.3-Appointing Authority issued appointment order in favour of the petitioner vide Office Order dated 05.01.2016, the Circular dated 31.12.2014 and the Circular dated 06.02.2015 issued by the General Ad-ministration Department were in vogue. Hence, the appointment of the petitioner as Junior Clerk was on contractual basis. Such action of the opposite parties cannot be said to have suffered illegality or infirmity. Therefore, interference with the Office Order dated 15.01.2022 is not warranted.
4.1. Sri Arnav Behera, learned Additional Standing Counsel laid emphasis on the following explanation proffered by the opposite parties in the counter affidavit which is to the following effect:
“***
In this context, it is relevant to mention here that Government in General Administrative Department had issued clarification vide Circular No.34925/Gen, Dt.31.12.2014 on the subject “Applicability of the Odisha Group-C and Group-D posts(contractual appointment) Rules, 2013 in case of appointment under the Odisha Civil Services (Rehabilitation Assistance) Rules, 1990”. The salient points of this circular are stated hereunder:
i. The Odisha Group-C and Group-D Posts (Contractual Appointment) Rules, 2013 came into force on 18th November, 2013. These Rules apply to all Group-C and Group-D posts which are to be filled up by way of direct recruitment. These rules provide for the following:
(a) Notwithstanding anything contained in the relevant recruitment rules or executive instructions, as the case may be in force, from the date of commencement of these rules all appointments made pursuant to these rules shall be on contract basis. (Rule 5)
(b) All vacancies existing on the date of commencement of these rules as well as the future vacancies shall be deemed to have been converted to contractual posts. Consequent upon regular appointment the contractual posts shall get re-converted to regular sanctioned posts. (Rule 6)
(c) On the date of satisfactory completion of six year of contractual service they shall be deemed to have been regularly appointed. (Rule 10)
ii. The Odisha Civil Services (Rehabilitation Assistance) Rules, 1990 is also a rule regulating recruitment and appointment under these rules can be made against Group-C and Group-D Posts only in the Scale of Pay attached to the post.
iii. Both the Odisha Civil Services (Rehabilitation Assistance) Rules, 1990 and the Odisha Group-C and Group-D Posts (contractual appointment) Rules, 2013 are made under the proviso to Article 309 of the Constitution of India. All vacancies existing on the date of commencement of the Odisha Group-C and Group-D Posts (contractual appointment) Rules, 2013 as well as the future vacancies shall be deemed to have been converted to contractual posts.
iv. In view of the above, so long the Odisha Group-C and Group-D posts (contractual appointment) Rules, 2013 shall be in force, all appointments made pursuant to Odisha Civil Services (Rehabilitation Assistance) Rules, 1990 shall be on contract basis as per the provisions of Odisha Group-C and Group-D posts (contractual appointment) Rules, 2013 and on the date of satisfactory completion of six year of contractual service they shall be deemed to have been regularly appointed.
It was further clarified vide General Administration Department No.3057/Gen., Dt.06.02.2015 Circular that the No.34925/Gen, 31.12.2014 shall not have retrospective application and it shall apply to all appointment made prospectively w.e.f. 31.12.2014.
Since the petitioner has been appointed under Rehabilitation Assistance Scheme on contractual basis as per, General Administration Department Circular No.34925/Gen, Dt.31.12.2014 and Circular No.3057/Gen, Dt.06.02.2015, there is no violation of any statutory Rules/Circulars of Government.
It is further humbly submitted that on satisfactory completion of six years of contractual service, the petitioner’s appointment has been made regular w.e.f. 09.01.2022 in terms of Rule 10 of Odisha Group-C & Group-D Posts (contractual appointment) Rules, 2013 vide office order No 109/CT & GST, Dt.15.01.2022 of the O.P. No.3.***‖
4.2. Refuting the contention of the learned counsel for the petitioner that “regularization of his service from the date of appointment has been ignored by the opposite party Nos.2 and 3 at the time of issuance of Office Order No.109/CT&GST, dated 15.01.2022 regularizing his service with effect from 09.01.2022 instead of 08.01.2016”, the learned Additional Standing Counsel submitted that in terms of Rule 5(2) of the Odisha Group “C” and Group “D” Posts (Contractual Appointment) Rules, 2013 all appointments made under Rule 5(1) thereof are treated “on contract basis”. It is also stipulated in Rule 10 of the said Rules that on the date of satisfactory completion of six years of contractual service, the appointee shall be deemed to have been regularly appointed and he shall be issued with formal order of regular appointment by the Appointing Authority.
4.3. It is amplified by the learned Additional Standing Counsel based on contents of the counter affidavit sworn to by the Joint Commissioner of CT & GST in the Commis-sionerate of CT & GST, Odisha, Cuttack, that,
“*** It is further most humbly submitted that the contrac-tual appointment of the Petitioner has been regularised w.e.f. 08.01.2016 (i.e. the date of his joining into Government Service) in the meantime in pursuance of Odisha Group-B, C & Group-D Posts (Repeal and Special Provisions) Rules, 2022 with financial benefit from 17.10.2022 vide Office order No.19750/CT & GST, Dt.28.11.2022 of the Joint Commis-sioner of CT & GST, CT & GST Circle, Bhubaneswar-II. Accordingly, the pay of the pe-titioner has been fixed at Rs. 19,900/- P.M. (Level-4, Cell-1) w.e.f. 08.01.2016 notionally as per ORSP Rules, 2017 and his subsequent annual increments upto the year 2022 have been sanc-tioned. Also on promotion and joining in the post of Sr. Assistant on 02.01.2023, the pay of the Petitioner has been fixed at Rs.25,500/- P.M. (Level-7, Cell-1) vide office order No.495/CT & GST, dt.27.01.2023 of the Joint Commissioner of CT & GST, Bhubaneswar-II Cir-cle.***‖.
Hearing:
5. Pleadings being completed, on consent of counsel for both the sides this matter is taken up for final hearing at the stage of admission. Heard Sri Bhabani Sankar Tripathy, learned Advo-cate for the petitioner and Sri Arnav Behera, learned Additional Standing Counsel for the oppo-site parties.
Relevant provisions of the CA Rules and the RA Rules:
6. The provisions of Rule 2, Rule 3, Rule 4, Rule 5, Rule 6,
Rule 9 and Rule 10 of CA Rules so far as is relevant for the present purpose stand thus:
“2. Definition.—
In these rules unless the context otherwise re-quires:
(b) Recruitment Rules means the rules framed under the proviso to Article 309 of the Constitution of India regulating recruitment to different State Civil Services and Posts;
(2) All other words and expressions used in these rules but not specifically defined shall, unless otherwise requires, have the same meaning as re-spectively assigned to them in the Odisha Service Code.
3. Applicability.—
(1) These rules shall apply to the Group ‘C‘ and Group ‘D‘ posts, which are filled up by way of direct recruitment:
Provided that the State Government may by notification exclude any post from the purview of these rules.
(2) They shall also apply to the categories of contractual appointments made under Rule 4 from the date of contractual appointment, if any, made un-der Rule 5.
(3) These rules shall not apply to the Group ‘C‘ and Group ‘D‘ posts for services and func-tions like Watch & Ward, Sweeping and Cleaning, Gardening etc. Manpower required for such services/functions shall be managed by outsourcing basis.
(4) These rules shall also not apply to contractual ap-pointments made under—
(a) Temporary Plan Schemes (including those under Cen-trally Sponsored Plan Scheme, Externally Aided Projects);
(b) Temporary Establishments; and
(c) Tenure Based Posts:
Provided that persons appointed on contractual basis under these schemes prior to the commencement of these rules, who are below 45 years shall be allowed to participate in the recruitment process under rule 5 for any Group C or Group D posts, if they satisfy all other eligibility criteria for the such post as laid down in the relevant recruitment rules and shall be allowed relaxation of upper age limit for entry into Government service.
NOTE: Persons appointed under of sub-rule (2) and provi-so to sub-rule (4) shall get the benefit of these rules only after they were recruited and ap-pointed to any post under Rule 5.
4. Categorisation of existing Contractual Employees.—
For the purpose of these rules all contractual appoint-ments made prior to the commencement of these rules shall be classified into two catego-ries; namely:
(a) Category I:
Contractual appointments/engagements made against contractual posts created with the concurrence of Finance Department without following the recruitment procedure including the Odisha Reservation of Vacancies in Posts and Services (for Scheduled Castes and Scheduled Tribes) Act, 1975 and the rules made thereunder and rules regulating recruitment for the regular posts.
(b) Category II:
Contractual Engagements made through manpower ser-vice provider agencies with concurrence of Finance Department.
5. Recruitment Procedures.—
(1) Recruitment to the posts shall be made on the basis of the provisions of the relevant recruitment rules or executive instructions, as the case may be in force.
(2) Notwithstanding anything contained in the relevant recruitment rules or executive instructions, as the case may be in force all appointments made pursuant to sub-rule (1) shall, from the date of commencement of these rules, be on contract basis.
6. Status of vacant posts.—
For the purpose of contractual appointments made under sub-rule (2) of Rule 5, all vacancies existing on the date of commencement of these rules as well as the future vacancies shall be deemed to have been converted to contractual posts from the date of commencement of these rules:
Provided that, consequent upon regular appointment un-der sub-rule (1) of Rule 10 the contractual posts shall get re-converted to regular sanctioned posts.
9. Conditions of Service of Contractual Employees ap-pointed under sub-rule (2) of Rule 5.—
(1) Tenure of Contractual appointment:
Persons appointed under sub- rule (2) of Rule 5 against the contractual posts shall continue on contractual basis for a period of six years. The period of six years shall be counted from the date of their contractual appointment under Rule 5.
(2) Remuneration:
During the period of contractual appointment they shall draw consolidated monthly remuneration equal to the initial of the corresponding pay plus grade pay.
(3) Annual Increase of Remuneration:
Subject to satisfactory performance, the consolidated remuneration shall be enhanced by ten per cent on completion of each year of ser-vice.
(4) Allowances:
They shall not be entitled to D.A., HRA, RCM and other allowances during the period of contractual appointment.
(5) Leave:
They shall be entitled to leave under the provisions of Od-isha Leave Rules, 1966 at par with regular employees of Government of Odisha.
(6) Conduct and discipline:
They shall abide by the Odisha Civil Services Conduct Rules, 1959 and subject to the Odisha Civil Services (Classification, Control and Appeal) Rules, 1962.
(7) Pension:
They shall be enrolled under the new pension scheme contained in the Odisha Civil Services (Pension) Rules, 1992 from the date of contractual ap-pointment under sub-rule (1) of Rule 9.
10. Conditions of Service on Regular appointment.—
(1) Regular Appointments:
On the date of satisfactory completion of six years of contractual service under sub-rule (1) of Rule 9, they shall be deemed to have been regularly appointed. A formal order of regular appointment shall be issued by the appointing authori-ty.
(2) Pay and other benefits:
On regular appointment they shall be entitled to draw the time scale of pay plus Grade Pay with DA and other allowances as admissible in the corresponding Pay Band.
(3) Other Conditions of service:
(a) The other conditions of service shall be such as has been provided in the relevant recruitment rules.
(b) The conditions of service in regard to matters not cov-ered by sub-rule (2) and clause (a) of this sub-rule shall be the same as are or as may from time to time be prescribed by the State Government.“
6.1. Aforesaid CA Rules has been repealed with effect from 17.10.2022 by THE ODISHA GROUP “B”, “C” AND GROUP “D” POSTS (REPEAL AND SPECIAL PROVISIONS) RULES, 2022 vide General Administration & Public Grievance Department Notifica-tion No.29076-PT1-GAD-SC-GCS-0090/2022/ Gen., dated 16.10.2022 issued in exercise of the powers conferred by proviso to Article 309 of the Constitution of India, being published in the Odisha Gazette, Extraordinary No.2946, dated 17.10.2022. Relevant provisions thereunder is extracted hereunder:
“2. Definitions.—
In these rules, unless the context otherwise requires,—
(a) “Government” means the Government of Odisha;
(b) “Contractual Rules” means the Odisha Group-B Posts (Contractual Appointment)Rules, 2013 and the Odisha Group “C” and Group “D” posts (Contractual Appointment) Rules, 2013; and
(c) “employee” means persons appointed under the contractual Rules;
(d) “Initial appointee” means the persons appointed under the Odisha Group-B posts (Contractual Ap-pointment) Rules, 2013 and the Odisha Group “C” and Group “D posts (Contractual Appointment) Rules, 2013;
(e) “Rules” means the rules framed under the proviso to Article 309 of the Constitution of India including Execu-tive Instructions regulating recruitment and condition of service to different State Civil Ser-vices and Posts.
3. Repeal._
Save as otherwise provided in Rule 4, the Odisha Group-B Posts (Contractual Appointment) Rules, 2013 and the Odisha Group “C” and Group “D” Posts (Contractual Appointment) Rules, 2013 are hereby repealed.
4. Special Provisions.—
(1) The initial appointee appointed under the contractual Rules now in positions shall be deemed to have been appointed against the post on regular basis as on the date of commencement of these rules.
(2) On such regular appointment under sub-rule (1), the pay of such employee shall be fixed by way of granting notional increments con-sidering the date of his contractual appointment.
(3) The employee who has been regularly appointed in the service after completion of 6 years of service under the respective Contractual Rules shall be allowed for fixation of their pay as on the date of commencement of these rules by way of granting notional increments considering the date of his contractual appointment.
(4) The employee whose services have been so regular-ised shall be allowed service benefits like promotion etc. in the cadre on notional basis to which they would have been entitled as per Rules, had they been recruited on regular ba-sis.
(5) On commencement of these Rules, the employee shall be assigned seniority in the cadre to which they would have been entitled as per rules, had they been recruited on regular basis.‖
6.2. Rule 5, Rule 6 and Rule 15 of the RA Rules, 1990 existed as follows:
“5. Appointment to be made in deserving cases.—
In deserving cases, a member of the family of the Gov-ernment servant who dies while in service. may be appointed to any Group C or Group D posts only by the appointing authority of that Deceased Government servant provided he/she pos-sesses requisite qualification prescribed for the post in the relevant recruitment rules or in-structions of the Government without following the procedure prescribed for re-cruitment to the post either by statutory rules or otherwise irrespective of the fact that re-cruitment is made by notification of vacancies to the Employment Exchange or through re-cruitment examination under relevant recruitment rules. At the time of notifying such vacan-cies to the Employment Exchange or the examining authority, the employer shall clearly men-tion that the vacancy is proposed to be filled up under rehabilitation assistance scheme and so, sponsoring of candidates by Employment Exchange or the examining authority is not nec-essary.
6. Authority competent to make compassionate ap-pointment.—
The authority competent to make substantive appoint-ment to the post shall be the competent authority to make appointment under these Rules.
15. Overriding effect.—
The provision of these rules shall have effect notwith-standing anything to the contrary in any other recruitment Rules made under the proviso to Article 309 of the Constitution including the Orissa ex-Servicemen (Recruitment to the State Civil Services and Posts) Rules, 1985.‖
6.3. Applicability of the CA Rules in case of appointment under the RA Rules has been clarified in the following Circulars:
“GAD-SC-RAS-0075-2014-34925/Gen., Government of Odisha
General Administration Depart-ment
***
Bhubaneswar, dated the 31st December, 2014
To
All Departments of Government/
All Heads of Departments/
All Collectors.
Sub.:Applicability of the Odisha Group-C and Group-D Posts (Contractual Appointment) Rules, 2013 in case of appointment under the Odisha Civil Services (Rehabilitation Assistance) Rules, 1990.
The Odisha Group C and Group-D Posts (Contractual Ap-pointment) Rules, 2013 came into force on 18th November 2013. These Rules apply to all Group-C and Group-D posts which are to be filled up by way of direct recruitment.
These Rules provide for the following:
(i) Notwithstanding anything contained in the relevant recruitment Rules or executive instructions, as the case may be in force, from the date of commencement of these Rules all appointments made pursuant to these Rules shall be on contract basis (Rule 5)
(ii) All vacancies existing on the date of commencement of these rules as well as the future vacancies shall be deemed to have been converted to con-tractual posts. Consequent upon regular appointment the contractual posts shall get re-converted to regular sanctioned posts. (Rule 6)
(iii) On the date of satisfactory completion of six years of contractual service they shall be deemed to have been regularly appointed. (Rule 10)
Doubts have now arisen at different quarters, if the provi-sions of the aforesaid Rules shall apply in the case of appointment under the Odisha Civil Ser-vices (Rehabilitation Assistance) Rules, 1990.
In this connection, it is hereby clarified that Odisha Civil Services (Rehabilitation Assistance) Rules, 1990 is also a Rule regulating recruitment and ap-pointment under these Rules can be made against Group-C & Group D posts only in the scale of pay attached to the post.
Both the Odisha Civil Services (Rehabilitation Assis-tance) Rules, 1990 and the Odisha Group-C and Group-D Posts (Contractual Appointment) Rules, 2013 are made under the proviso to Article 309 of the Constitution of India. All vacan-cies existing on the date of commencement of the Odisha Group-C and Group-D Posts (Con-tractual Appointment) Rules, 2013 as well as the future vacancies shall be deemed to have been converted to contractual posts. It is therefore clarified that—
(i) so long the Odisha Group-C and Group-D Posts (Con-tractual Appointment) Rules, 2013 shall be in force, all appointments made pursuant to the Odisha Civil Services (Rehabilitation Assistance) Rules, 1990 shall be on contract basis as per the provisions of Odisha Group-C and Group-D Posts (Contractual Appointment) Rules, 2013
(ii) on the date of satisfactory completion of six years of contractual service they shall be deemed to have been regularly appointed.
This may be brought to the notice of all subordinate offic-es under your control.
Sd/- N. Chandra
Special Secretary
to Government.
***
GAD-SC-RAS-0075-2014-3057/Gen.,
Government of Odisha
General Administration Department
***
Bhubaneswar, dated the 6th February, 2015
To
All Departments of Government/
All Heads of Departments/
All Collectors.
Sub.: Applicability of the Odisha Group-C and Group-D Posts (Contractual Appointment) Rules, 2013 in case of appointment under the Odisha Civil Services (Rehabilitation Assistance) Rules, 1990.
In this Department Circular No. 32945/Gen, Dated 31.12.2014 it is clarified that,
(i) so long the Odisha Group-C and Group-D Posts (Con-tractual Appointment) Rules, 2013 shall be in force, all appointments made pursuant to the Odisha Civil Services (Rehabilitation Assistance) Rules, 1990 shall be on contract basis as per the provisions of Odisha Group-C and Group-D Posts (Contractual Appointment) Rules, 2013; and
(ii) on the date of satisfactory completion of six years of contractual service they shall be deemed to have been regularly appointed.
It is hereby further clarified that the aforesaid circular shall not have retrospective application. It shall apply to all appointments made prospectively with effect from 31.12.2014.
This may be brought to the notice of all subordinate offic-es under your control.
Sd/-
Joint Secretary
to Government‖
Analysis and discussions:
7. The Office Order in Memo dated 15.01.2022 clearly admits of the fact that the petitioner has been regularised “on satisfactory completion of six years of contractual service”. The peti-tioner joined as Junior Clerk on 08.01.2016 on contractual basis pursuant to Office Order dat-ed 05.01.2016 issued by the Joint Commissioner of Commercial Taxes, Bhubaneswar Range as per Letter dated 04.11.2015 of Finance Department. The Office Order dated 05.01.2016 clearly specified that the petitioner is appointed under the RA Rules, 1990 and the contractual appointment is guided by General Administration Department Notification dated 12.11.2013 read with Circular 06.02.2015 against an existing vacant post.
7.1. As per Rule 5 of RA Rules, it is the appointing authority of the deceased Gov-ernment servant who is competent to appoint the candidates like the petitioner. Rule 15 of the RA Rules further makes provision that “notwithstanding anything to the contrary in any other recruitment rules made under the proviso to Article 309 of the Constitution” the provisions of the RA Rules shall have the overriding effect.
7.2. The effect of non-obstante clause deserves discussion at this juncture.
7.3. In Aswini Kumar Ghose Vrs. Arabinda Bose, AIR 1952 SC 369, it has been laid down,
“The enacting part of a statute must, where it is clear, be taken to control the non-obstante clause where both cannot be read harmoniously. ***“
7.4. In State of West Bengal Vrs. Union of India, AIR 1963 SC 1241 = (1964) 1 SCR 371, it is observed as under:
” The Court must ascertain the intention of the legislature by directing its attention not merely to the clauses to be construed, but to the entire statute; it must compare the clause with the other parts of the law and the setting in which the clause to be interpreted occurs.“
7.5. In Madhav Rao Jivaji Rao Scindia Vrs. Union of India, (1971) 1 SCC 85, it has been observed that the non-obstante clause is no doubt a very potent clause intended to exclude every consideration arising from other provisions of the same statute or other statute but „for that reason alone we must determine the scope‟ of that provision strictly. When the section containing the said clause does not refer to any particular provisions which it intends to override but refers to the provisions of the statute generally, it is not permissible to hold that it excludes the whole Act and stands all alone by itself. A search has, therefore, to be made with a view to determining which provision answers the description and which does not.
7.6. In Union of India Vrs. Maj. I.C. Lala, AIR 1973 SC 2204 = (1973) 3 SCR 818, the Supreme Court of India held,
“The words ‗notwithstanding anything contained in the Code of Criminal Procedure‘ found at the beginning of Section 5A(1) merely carve out a lim-ited exemption from the provisions of the Code of Criminal Procedure in so far as they limit the class of persons who are competent to investigate into offences mentioned in the section and to arrest without a warrant. It does not mean that the whole of the Code of Criminal Pro-cedure, including Schedule thereof, is made inapplicable. Under Section 5 of the Code of Criminal Procedure all offences under the Indian Penal Code shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions therein con-tained.“
7.7. In Union of India Vrs. G.M. Kokil, AIR 1984 SC 1022, it has been laid down as follows:
“It is well-known that a non-obstante clause is a legislative device which is usually employed to give overriding effect to certain provision over some contrary provision that may be found either in the same enactment or some other enactment, that is to say, to avoid the operation and effect of all contrary provi-sions.“
7.8. In Chandavarkar Sita Ratna Rao Vrs. Ashalata S. Guram, (1986) 4 SCC 447 the Supreme Court of India held as follows:
“A clause beginning with the expression ‗notwithstanding anything contained in this Act or in some particular provision in the Act or in some particular Act or in any law for the time being in force, or in any contract‘ is more often than not appended to a section in the beginning with a view to give the enacting part of the section in case of conflict an overriding effect over the provision of the Act or the contract mentioned in the non-obstante clause. It is equivalent to saying that in spite of the provision of the Act or any other Act mentioned in the non-obstante clause or any contract or document mentioned the enactment following it will have its full operation or that the provisions em-braced in the non-obstante clause would not be an impediment for an operation of the enact-ment. See in this connection the observations of this Court in The South India Corporation (P.) Ltd. Vrs. The Secretary, Board of Revenue, Trivandrum & Anr., AIR 1964 SC 207 at 215 = (1964) 4 SCR 280.“
7.9. In R.S. Raghunath Vrs. State of Karnataka and another, (1992) 1 SCC 335, a three-Judge Bench of Hon‟ble Supreme Court of India referring to Aswini Kumar Ghose Vrs. Arabinda Bose, AIR 1952 SC 369, Dominion of India Vrs. Shrinbai A. Irani, AIR 1954 SC 596 = 1955 SCR 206, Union of India Vrs. G.M. Kokil, 1984 (Supp.) SCC 196, Chandravarkar Sita Ratna Rao Vrs. Ashalata S. Guram, (1986) 4 SCC 447, observed:
“The non-obstante clause is appended to a provision with a view to give the enacting part of the provision an overriding effect in case of a conflict. But the non-obstante clause need not necessarily and always be co- extensive with the operative part so as to have the effect of cutting down the clear terms of an enactment and if the words of the enactment are clear and are capable of a clear interpretation on a plain and grammati-cal construction of the words the non-obstante clause cannot cut down the construction and restrict the scope of its operation. In such cases the non-obstante clause has to be read as clarifying the whole position and must be understood to have been incorporated in the enact-ment by the legislature by way of abundant caution and not by way of limiting the ambit and scope of the Special Rules.“
7.10. In A.G. Varadarajulu Vrs. State of Tamil Nadu, (1998) 4 SCC 231, it has been held:
” It is well settled that while dealing with a non obstante clause under which the legislature wants to give overriding effect to a section, the court must try to find out the extent to which the legislature had intended to give one provision overriding effect over another provision. Such intention of the legislature in this behalf is to be gathered from the enacting part of the section.“
7.11. In Vishin N. Kanchandani Vrs. Vidya Lachmandas Khanchandani, AIR 2000 SC 2747, the Supreme Court held that,
“There is no doubt that by non-obstante clause the Legis-lature devices means which are usually applied to give overriding effect to certain provisions over some contrary provisions that may be found either in the same enactment or some other statute. In other words such a clause is used to avoid the operation and effect of all contrary provisions. The phrase is equivalent to showing that the Act shall be no impediment to meas-ure intended. To attract the applicability of the phrase, the whole of the section, the scheme of the Act and the objects and reasons for which such an enactment is made has to be kept in mind.“
7.12. In ICICI Bank Ltd. Vs. SIDCO Leathers Ltd., (2006) Supp.1 SCR 528, it has been held as follows:
“Section 529-A of the Companies Act no doubt contains a non-obstante clause but in construing the provisions thereof, it is necessary to determine the purport and object for which the same was enacted. *** The non-obstante nature of a pro-vision although may be of wide amplitude, the interpretative process thereof must be kept confined to the legislative policy. *** A non-obstante clause must be given effect to, to the extent the Parliament intended and not beyond the same.‖
7.13. The Supreme Court of India in the case of Central Bank of India Vs. State of Kerala, (2009) 4 SCC 94, observed that,
” A non-obstante clause is generally incorporated in a statute to give overriding effect to a particular section or the statute as a whole. While interpreting non obstante clause, the Court is required to find out the extent to which the legislature intended to do so and the context in which the non obstante clause is used. This rule of interpretation has been applied in several decisions.
7.14. A non-obstante clause is generally appended to a section with a view to give the enacting part of the section, in case of conflict, an overriding effect over the provision in the same or other Act mentioned in the non-obstante clause. It is equivalent to saying that in spite of the provisions or Act mentioned in the non-obstante clause, the provision following it will have its full operation or the provisions embraced in the non-obstante clause will not be an impediment for the operation of the enactment or the pro-vision in which the non-obstante clause occurs. [See ‗Principles of Statutory Interpretation‘, 9th Edition by Justice G.P. Singh Chapter V, Synopsis IV at pages 318 & 319].
7.15. When two or more laws or provisions operate in the same field and each contains a non-obstante clause stating that its provision will override those of any other provisions or law, stimulating and intricate problems of interpretation arise. In resolving such problems of interpretation, no settled principles can be applied except to refer to the object and purpose of each of the two provisions, containing a non-obstante clause. Two provisions in the same Act each containing a non-obstante clause, requires a harmonious interpretation of the two seemingly conflicting provisions in the same Act. In this difficult exercise, there are involved proper consideration of giving effect to the object and purpose of two provisions and the language employed in each. [See, Shri Swaran Singh Vs. Shri Kasturi Lal, (1977) 1 SCC 750].
7.16. Normally the use of the phrase by the Legislature in a statutory provision like ‗notwithstanding anything to the contrary contained in this Act‘ is equivalent to saying that the Act shall be no impediment to the measure [See Law Lexicon words „notwithstanding anything in this Act to the contrary‟]. Use of such expression is another way of saying that the provision in which the non-obstante clause occurs usually would prevail over the other provisions in the Act. Thus, the non-obstante clauses are not always to be regarded as repealing clauses nor as clauses which expressly or completely supersede any other provision of the law, but merely as clauses which remove all obstructions which might arise out of the provisions of any other law in the way of the operation of the principle enacting provision to which the non-obstante clause is attached. [See Bipathumma Vs. Mariam Bibi; 1966 (1) Mysore Law Journal page 162, at page 165].
7.17. With the above conspectus of legal position, Rule 15 of the RA Rules, 1990, promulgated in exercise of powers conferred by proviso to Article 309 of the Constitution of India is required to be construed juxtaposed with the objective of said Rules as enshrined in Rule 4, which in unequivocal terms speaks that, the rehabilitation assistance is conceived as a compassionate measure of saving the family of a Govern-ment servant from immediate distress when the Government servant suddenly dies while in service. The concept is based on the premises that in case of sudden death his family would not face starvation. The scheme has a direct relationship with the economic condition of the family of the Government servant. Appointment of the family member of the Government servant under these rules shall be subject to the provisions contained in Rule 9 [whereunder the appointment can be made only against the posts required to be filled up by direct recruit-ment and not against promotional post] and cannot be claimed as a matter of right. With this backdrop, it is to hold that the nature of appointment is permanent. Therefore, it appears the rule making authority has made it clear in Rule 5 of the RA Rules that “At the time of notifying such vacancies to the Employment Exchange or the examining authority, the employer shall clearly mention that the vacancy is proposed to be filled up under rehabilitation assistance scheme and so, sponsoring of candidates by Employment Exchange or the examining authori-ty is not necessary”. Furthermore, by way of Rule 6 the competent authority (appointing au-thority) is empowered to make substantive appointment to a post.
7.18. Thus, the provision of the RA rules shall have overriding effect on the “Recruitment Rules”, which term is defined under Rule 2(b) of CA Rules made under the proviso to Article 309 of the Constitution of India.
8. As is manifest from record and not disputed by the opposite parties [see, Annexure-9, i.e., Office Order dated 15.01.2022], the petitioner was allowed to join the post under the RA Rules on 08.01.2016, the clarification dated 06.02.2015 vide Annexure-D to the counter affidavit makes it unambiguous that so long as the CA Rules, 2013 remain in force, the appointment of petitioner under the RA Rules, 1990 would be on con-tract basis and on satisfactory completion of six years of contractual service he was required to be treated as “deemed to have been regularly appointed”.
8.1. Whereas Rule 4 of the RA Rules made the appointment of a member of family of the deceased Government servant who died in harness is subject to Rule 9 thereof, the appointment of the petitioner is to be considered as against a vacant post required to be filled up by direct recruitment. By virtue of Rule 5 of the CA Rules, the recruitment of the petitioner to the post of Junior Clerk is to be treated as if made by following “recruitment rules”, which term has been defined in Rule 2(b) of CA Rules to mean rules framed under the proviso to Article 309 of the Constitution of India regulating recruitment to different State Civil Services and Posts. The caption of the RA Rules depicts that said rules are framed “in exercise of powers conferred by the proviso to Article 309 of the Constitution of India” Therefore, it cannot be disputed, rather accepted by the opposite parties in the Letter dated 08.09.2015 of the Finance Department [Annexure-4] that “After careful consideration, the Government have been pleased to appoint him in Group- C base level post on contractual basis in terms of General Administration Department Circular No.34925/Gen., dated 31.12.2014 and No.3057/Gen., dated 06.02.2015”. Such position cannot also be disputed and denied by the petitioner, as he has accepted such appointment by joining on the post by sub-mitting Letter/Report dated 08.01.2016 [Annexure-8]. Thus, in view of provision in sub-rule (2) of Rule 5 said appointment of the petitioner is treated to “be on contract basis” from the date of joining, i.e., 08.01.2016.
8.2. Observing thus, it is seen that the “Conditions of Service” are guided as given in Chapter-III of CA Rules. Rule 9 of said Rules specifies the tenure of contractual appointments. Sub-rule (1) ibid. stipulates that the ap-pointment [of the petitioner] would continue on contract basis for a period of six years. It fur-ther stipulates that the period of six years shall be counted from the date of contractual appointment under Rule 5 of the CA Rules. Rule 10 of CA Rules employs deeming fiction to say that “on the date of satisfactory completion of six years of contractual service under sub-rule (1) of Rule 9, they (contractual appointees) shall be deemed to have been regularly ap-pointed.” And it is obligatory for the appointing authority to issue “a formal order of regu-lar appointment”.
8.3. Significant it is to notice the purport of legal fiction envisioned in Rule 10 of the CA Rules. Presence of the term ‘deemed’ in sub-rule (1) of Rule 10 of said Rules has much relevance. It is made clear in said sub-rule that on satisfactory completion of six years of contractual service, the contractual employee like the petitioner would be deemed to have been regularly appointed and a formal order of appointment would have to be issued by the appointing authority.
8.4. In Bhuwalka Steel Industries Ltd. Vrs. Union of India, (2017) 5 SCC 598 reference of St. Aubyn Vrs. Attorney General, 1952 AC 15 = (1951 2 All ER 473 (HL) was made and the relevant portion is quoted here-under from said Judgment:
“The word ‘deemed‘ is used a great deal in modern legislation. Sometimes it is used to impose for the purposes of a statute an artificial construction of a word or phrase that would not otherwise prevail. Sometimes it is used to put beyond doubt a particular construction that might otherwise be uncertain. Some-times it is used to give a comprehensive description that includes what is obvious, what is un-certain and what is, in the ordinary sense, impossible.‖
8.5. The word ‘Deemed’ as per Worcester Dictionary, is:
“The word ‘deemed‘ is used in various senses. Sometimes it means ‘generally regarded‘. At other time it signifies ‘taken conclusively to be‘. Its various meanings are to been to be hold in belief, estimation, or opinion; to judge; adjudge; decide; con-sider to be; to have or to be of an opinion; to esteem; to suppose; to think, decide or believe on consideration; to account; to regard; to adjudge or decide; to conclude upon consideration.“
8.6. In Words & Phrases, Permanent Edition, Vol. 11A, page 181, the word „deemed‟ has been described to mean „regarded as being‟; it is equivalent to „shall be taken to be‟.
8.7. In Rishabh Agro Industries Ltd Vrs. P.N.B. Capital Services Ltd, (2000) 5 SCC 515, in the context of Section 441 of the Companies Act, 1956, the following meaning has been culled out:
“The word ‘deemed‘ as used in Section 441 of the Act means ‘supposed‘, ‘considered‘, ‘construed‘, ‘thought‘, ‘taken to be‘ or ‘presumed‘.“
8.8. In Ram Prakash Khanna Vrs. S.A.F. Ab-bas, AIR 1972 SC 2350 = (1972) 1 SCC 784, the Supreme Court of India, while dealing with Rule 3(3)(b) of the Indian Administrative Service (Regulation of Seniority) Rules, 1954, held as follows:
“The use of word ‘deemed‘ in the rule indicates that the Government has the power to make a retrospective declaration because, it is only after promotion that there is any occasion to consider whether the period of officiation prior to promotion will be counted for purpose of seniority.“
8.9. In State of Karnataka Vrs. Shri Ranganatha Reddy, AIR 1978 SC 215, it has been observed as follows:
“The use of word ‗deemed‘ does not invariably and necessarily imply an introduction of a legal fixation but it has to be read and under-stood in the context of the whole statute.“
8.10. In Consolidated Coffee Ltd Vrs. Coffee Board, AIR 1980 SC 1468, the observation of the Supreme Court runs as follows:
“A deemed provision might be made to in-clude what is obvious or what is uncertain or to impose for the purpose of a statute an artificial construction of a word or phrase that would not otherwise prevail.“
8.11. When a deeming provision is in operation, the Court is to keep in mind the principle of interpretation of a deeming clause. Whenever a deem-ing clause occurs in a statute and the Court is called upon to interpret the same, the Court has to first ascertain the purpose for which such deeming clause has been incorporated. Normally a deeming clause is created by way of a legal fiction. Therefore, the Court is to first ascertain the purpose behind the legal fiction. After ascertaining the purpose, the Court must assume those consequences, which are incidental and inevitable corollaries for giving effect to such legal fiction. See, Penguin Trading & Agencies Ltd. Vrs. State of Orissa, 2007 (Supp.-I) OLR 738.
8.12. In Ashok Leyland Ltd. Vrs. State of TN, (2004) 134 STC 473 (SC) it is propounded that when a legal fiction is created it must be given its full effect. Reference may also be had to East End Dwelling Co. Ltd. Vrs. Finsbury Borough Council, (1951) 2 All ER 587; State of Bombay Vrs. Pandurang Vinayak, AIR 1953 SC 244; Commissioner of Income Tax Vrs. S. Teja Singh, AIR 1959 SC 352; M. Venu-gopal Vrs. Divisional Manager, Life Insurance Corporation of India, Machilipatnam, A.P., (1994) 2 SCC 323; Indian Oil Corporation Limited Vrs. Chief Inspector of Factories, (1998) 5 SCC 738, Voltas Limited, Bombay Vrs. Union of India, (1995) Supp. 2 SCC 498, Harish Tandon Vrs. Addi-tional District Magistrate, Allahabad, U.P., (1995) 1 SCC 537; G. Viswanathan Vrs. Hon‘ble Speaker, Tamil Nadu Legislative Assembly, Madras, (1996) 2 SCC 353; Bhavnagar University Vrs. Palitana Sugar Mill (P) Ltd., (2003) 2 SCC 111 = (2002) 4 Suppl. SCR 517.
8.13. Conspectus of decisions referred to would suggest that if one is bidden to treat an imaginary state of affairs as real, one must surely, un-less prohibited from doing so, also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompa-nied it. The statute says that one must imagine a certain state of affairs; it does not say that, having done so, one must cause or permit one’s imagination to boggle when it comes to the inevitable corollaries of that state of affairs.
8.14. When the language used in the sec-tion/provision is plain and unambiguous, no words shall be added, altered or modified unless it is plainly necessary to do so to prevent a provision from being unintelligible, absurd, unrea-sonable, unworkable or totally irreconcilable with the rest of the statute.
8.15. Thus understood the purport and perceptible meaning of „deemed’, the provisions contained in Rule 10 of the CA Rules without admitting any ambiguity leads to perceive that that contractual service under Rule 9 of the CA Rules read with Rule 4 of the RA Rules “shall be deemed to have been regularly appointed”. In other words, cumulative reading of provisions of Rule 4, Rule 6 and Rule 9 of the RA Rules read with Rule 5, Rule 6, Rule 9(1) and Rule 10(1) of the CA Rules, unequivocally leads to construe that the appointment of the petitioner against available vacancy in the post of Junior Assis-tant/Junior Clerk under the RA Rules in terms of Finance Department Letter No.28728— FIN-OE-I-ESTT-0010/2013/F., dated 04.11.2015 (Annexure-5), on satisfactory completion of six years of contractual service, is to be counted from the date of his contractual appointment under Rule 5 read with Rule 2(b) of the CA Rules as the RA Rules are framed in exercise of powers conferred on the Government by proviso to Article 309 of the Constitution of In-dia.
8.16. Such view can be couched in the language of Office Order dated 15.01.2022 (Annexure-9) wherein it has been accepted that the petitioner joined the contractual service in terms of Rule 10 of the CA Rules and completed six years of contractual service satisfactorily. Therefore, the deeming fiction in Rule 10 of the CA Rules very much attracted in the present case. Thus, the decision of the opposite party No.3 to regu-larise the services of the petitioner with effect from “09.01.2022” instead of “08.01.2016” is fallacious.
9. Harmonious construction of relevant provisions of the RA Rules vis-à-vis the CA Rules juxtaposed with the related Circulars of the Government can be made with the following as prelude (stated in State of Maharashtra Vrs. Jagannath Achyut Karandikar, (1989) 1 SCR 947 = AIR 1989 SC 1133:
” This is a question of construction of the rules which form part of the scheme prescribing a condition for promotion. We do not have to reflect upon the rules of interpretation since they .are well settled. They are now like the habits of driving which have become ingrained. They come to our assistance by instinct. We are to use the different rules meticulously to give effect to the scheme as we use the clutch, brake and accelerator for smooth driving. These rules are to be harmonionsly construed. We should not concentrate too much on one rule and pay too little attention on the other. That would lead us astray and result in hardship. We must avoid such construction.‖
9.1. Pertinent it is to notice the tenor of Circular bearing No.GAD-SC-RAS-0075-2014-34925/Gen., dated 31.12.2014 as further clarified in Cir-cular No. GAD-SC-RAS-0075/2014/3057/Gen., dated 06.02.2015. While re-affirming the statements in the Circular dated 31.12.2014 that so long as the CA Rules are in force, all ap-pointments made pursuant to the RA Rules shall be on contract basis in tune with the CA Rules and on “satisfactory completion of six years of contractual service” the appointees of such contractual appointment “shall be deemed to have been regularly appointed”, it has fur-ther been clarified in the Circular dated 06.02.2015 that said Circular dated 31.12.2014 “shall apply to all appointments made prospectively with effect from 31.12.2014”.
9.2. If that be so, it is fact on record that the peti-tioner has joined “contractual service” on 08.01.2016 in terms of Rule 10 of the CA Rules; which fact would suffice to say that the Circular dated 31.12.2014 shall be applicable to the fact-situation of this case.
9.3. It is on record vide Annexure-G to the counter affidavit that CA Rules, 2013 has been repealed by virtue of THE ODISHA GROUP-“B”, “C” AND GROUP-“D” POSTS (REPEAL AND SPECIAL PROVISIONS) RULES, 2022 (for con-venience, “Special Provisions Rules”).
9.4. Conjoint reading of Rule 2(d), Rule 2(e) and Rule 4 of the Special Provisions Rules, 2022 read with Circular dated 06.02.2015 makes it abundantly clear that on satisfactory completion of six years of contractual service such ap-pointee “shall be deemed to have been appointed against the post on regular basis as on the date of commencement of these rules”, i.e., 17.10.2022 [being published in Od-isha Gazette, Extraordinary No. 2946, dated 17.10.2022]. In view of Rule 4 of the Special Pro-visions Rules, 2022, it is manifest that the Government have declared the contractual appoin-tees to have been posted on regular basis and their pay shall be fixed by way of granting no-tional increments considering the date of the contractual appointment. Specific provision has been put in place by virtue of sub-rule (3) of Rule 4 of said Special Provisions Rules, that the employees, who have been regularly appointed in the service after completion of six years of contractual shall be allowed for fixation of his pay as on the date of commencement of said Rules, 2022 by way of granting notional increments “considering the date of their contractual appointment”.
9.5. It transpires from subsequent event, i.e., the Office Order dated 28.11.2022 issued by the Joint Commissioner of CT & GST, CT & GST Circle, Bhubaneswar-II, Bhubaneswar, (Annexure-H of the counter affidavit) that there has been clear indication of ante-dating regularisation of service of the petitioner, relevant portion of which is extracted herein below for better appreciation:
“CT & GST Circle, Bhubaneswar-II
Bhubaneswar
(Under CT & GST Territorial Range
Bhubaneswar, Finance Department
Government of Odisha)
Bhoi Nagar, Bhubaneswar – 751 022
Phone: 0674 – 2540932
e-mail [email protected]
No.19750/CT & GST
DATED.28.11.2022
Office Order
In partial modification of Office Order No. 17816/CT & GST, dated 26.10.2022 of this office as per GA & PG Department, Government of Odisha Letter No. 31968/Gen, dated 14.11.2022 regarding pay fixation of initial appointment employees vide GA&PG Department, Government of Odisha Notification No.29076/Gen., dated 16.10.2022, Odisha Gazette Notification No. 2946, dated 17.10.2022 communicated vide Memo No. 3602/CT & GST, dated 21.10.2022 of Addi-tional Commissioner of CT & GST, CT & GST Territorial Range, Bhubaneswar the service of Sri Ajit Kumar Panda, Junior Assistant of this office is hereby regular-ized with effect from 08.01.2016, i.e., the date of his joining. Accordingly, his pay has been fixed as per the table given below in the Level-04 of the Pay Matrix under Odisha Revised Scale of Pay Rules 2017, from the date of his contractual appointment, with financial benefit from 17.10.2022.
| 1 | Name of the employee | Sri Ajit Kumar Panda |
| 2 | Name of the Head of Office (Designation only) |
Joint Commissioner of CT & GST, CT & GST Circle, Bhuba-neswar-II, Bhubaneswar |
| 3 | Post held by the employee (substantive/ officiat-ing) | Officiating |
| 4 | Existing Pay Band and Grade Pay of the post | Rs.5200 – 20200 & GP Rs.1900 |
| 5 | Pay to be fixed in the Level of Pay Matrix as per provisions of the ORSP Rules, 2017 | Rs.19,900/- (Level-4, Cell-I) His initial appointment, i.e., 08.01.2016 |
| 6 | Date of next increment | 01.01.2017 |
| 7 | Any other relevant information | — |
Pay in the Cell in the Level after increment in case of Sri Ajit Kumar Panda, Junior Assistant of this Office
| Date of increment | Cell No. & Pay | Level | |
| 08.01.2016 (initial appointment) | Cell-01 & Pay Rs.19,900 | Level-4 | |
| 01.01.2017 (1st increment) |
Cell-02 & Pay Rs.20,500 | Level-4 | |
| 01.01.2018 (2nd increment) | Cell-03 & Pay Rs.21,100 | Level-4 | |
| 01.01.2019 (3rd increment) |
Cell-04 & Pay Rs.21,700 | Level-4 | |
| 01.01.2020 (4th increment) |
Cell-05 & Pay Rs.22,400 | Level-4 | |
| 01.01.2021 (5th increment) |
Cell-06 & Pay Rs.23,100 | Level-4 | |
| 01.01.2022 (6th increment) |
Cell-07 & Pay Rs.23,800 | Level-4 | |
| Final benefit with effect from 17.10.2022 | Cell-07 & Pay Rs.23,80 | Level-4 | |
| Date of next increment with effect from 01.01.2023 | |||
| Date:28.11.2022 Office: CT & GST Circle, Bhubaneswar-II, Bhubaneswar |
Sd/- 28.11.2022 Joint Commissioner of CT & GST, CT & GST, Bhubaneswar-II, Bhubaneswar |
||
9.6. It is apparent from the record that aforesaid Office Order dated 28.11.2022 (copy of which is enclosed to counter affidavit) has come to be issued after filing of the writ petition on 20.06.2022. In the rejoinder affidavit the petitioner has not disputed veracity of such document wherein it was admitted by the opposite parties that petitioner has been regularised with effect from his initially appointment, i.e., 08.01.2016. Furthermore, as it transpires from the said Office Order dated 28.11.2022, the opposite parties have already made appropriate fixation of pay and granted increments right since his initial date of contractual appointment, i.e., 08.01.2016.
9.7. It has also been affirmed by way of counter affidavit (paragraph 7) that, having regularised the contractual appointment of the petitioner with effect from 08.01.2016, his pay has been fixed as reflected in Office Order dated 28.11.2022 in terms of the Odisha Revised Scale of Pay Rules, 2017 and he has also been accorded promotion to the post of Senior Assistant on 02.01.2023, which he accepted and joined.
Conclusion:
10. Having discussed the legal perspective of treatment of contractual service of employees appointed in terms of the CA Rules vis-à-vis the RA Rules, in the present set of facts that the petitioner has been regularised with effect from 08.01.2016 (date of initial appointment vide Office Order dated 05.01.2016 in Annexure-6) by the opposite par-ties, and accordingly, his pay has been fixed by Office Order dated 28.11.2022, which has not be challenged but accepted by the petitioner, it deserves to be indicated to the opposite par-ties that the impugned Office Order dated 15.01.2022 (Annexure-9) requires modification suitably.
10.1. Sri Bhabani Sankar Tripathy, learned Advo-cate referred to the following observations made in an order dated 22.03.2023 by a co-ordinate Bench of this Court in the case of Biplab Kumar Sahoo Vrs. State of Odisha, WPC (OAC) Nos.2062, 2059, 2060 & 2061 of 20171:
“***
3. The present writ petitions have been filed inter alia with the following prayer:
‘(i) To direct the respondents to modify the appointment order dated 19.06.2015 at Annexure-4 in respect of the applicant to the extent that such ap-pointment is on regular basis with regular scale of pay and other emoluments at-tached to the said post w.e.f. the date of issue of the appointment order and to give all conse-quential service benefits within the time stipulated by the Hon‘ble Tribunal, and to quash An-nexure-8.
(ii) To grant any relief/ reliefs as deemed fit and prop-er.
***
4.1. It is contended that as provided under the OCS (Re-habilitation Assistance) Rules, 1990, there is no provision for providing appointment on con-tractual basis. Therefore, the Petitioners should have been appointed on regular basis instead of being appointed on contractual basis. Accordingly, seeking their appointment on regular basis, when the petitioners moved the application before the authority, the same was rejected in the case filed by Mr. Biplab Kumar Sahoo in WPC (OA) No.2062 of 2017 and in other cases same has not yet been rejected.
***
4.4. It is also contended that though the petitioners were appointed on contractual basis, but persons whose name also finds place in the list published under Annexure-1 were appointed on regular basis as per the information provided under RTI Act vide Annexure-9. In the said communication provided under Annexure-9, persons placed at Sl. Nos.9, 37 and 21 in the list published under Annexure-1 were given regular appoint-ment.
4.5. It is accordingly contended that when from the selfsame list similarly situated applicants were provided with appointment on regular basis, that was no occasion to appoint the petitioners on contractual basis. Accordingly, all the peti-tioners are eligible and entitled to get the benefit of regular appointment from the date of their initial appointment.
4.6. ***
Similarly, this Court in its order dated 26.08.2022 in the case of Anil Kumar Pradhan [Anil Kumar Pradhan Vrs. State of Odisha, W.P.C (OAC) No.410 of 20172] in paragraph 6 has held as follows:
“6. This Court after going through the materials available on record finds that similarly situated persons whose names were recommended in the self-same proceeding dated 22.05.2014 were appointed on regular basis vide order dated 26.07.2014 under Annexure-7 series. Therefore, there was no occasion on the part of the opp. party No.3 to appoint the petitioner on contractual basis. Hence, this Court while interfering with the matter directs opp. party No.3 to issue a fresh order of ap-pointment appointing the petitioner on regular basis from the date the petitioner was original-ly appointed vide order dated 10.02.2016. Such exercise shall be completed by the opp. party no.3 within a period of one month from the date of receipt of this order.‘
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6. Having heard learned counsel for the Parties and after going through the materials available on record, it is found that on considera-tion of the claim of the Petitioners and similarly situated persons, the list of eligible candi-dates were published on 09.06.2014 under Annexure-1 for their appointment under the Reha-bilitation Assistance Scheme. It is also found that from the list under Annexure-1, persons placed at Sl. Nos.9, 37 and 21 as reflected from Annexure-9, were appointed on regular basis. Not only that in view of the decision of the Hon‘ble Apex Court in AIR 1989 SC 1133, the clari-fication issued by the Government in the G.A. Department on 06.02.2015 under Annexure-6 cannot take away the benefit available to the Petitioners under the provisions of OCS Rehabili-tation Assistance Rules, 1990, which is a rule framed under Article 309 of the Constitution of India.
6.1. Placing reliance on the decision of the Hon‘ble Apex Court as cited (supra) it is the view of this Court that any clarification issued contrary to the provisions contained in the rule cannot override the statutory rules. Therefore, the action tak-en by the opposite parties in providing appointment to the petitioners on contrac-tual post relying on the clarification issued on 06.02.2015 under Annexure 6 is not legal and justified. Therefore, placing reliance on the decision of the Hon‘ble Apex Court as well as of this Court as cited (supra) and the benefits extended in favour of similarly situated persons as reflected in Annexure-9, this Court is inclined to quash the order of rejection so passed in the case of Biplap Kumar Sahoo in WPC (OAC) No.2062 of 2017 [sic. WPC (OA) No.2062 of 2017]. While quashing the said order, this Court directs the opposite parties to extend the benefit of regular appointment in favour of the petitioners from their initial date of appointment. On such extension of the benefit of regular appointment, all service and financial benefit as due and admissible shall also be extended in favour of the petitioners. This Court directs the oppo-site party No.3 to complete the entire exercise within a period of three months from the date of receipt of this order. ***‖
10.2. Sri Bhabani Sankar Tripathy, learned counsel has also made reference to an order dated 28.11.2017 passed by the Odisha Administrative Tribunal, Cuttack Bench, Cuttack while disposing of OA No.711(C) of 2011 [Basanti Pan-da Vrs. State of Odisha], wherein under similar set of facts with respect to regularization of appointment of employee of the CT & GST under the RA Rules, 1990 with effect from the date of initial appointment the following was the observation:
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The applicant, who is working as a Junior Clerk, has chal-lenged the order treating his appointment as regular with effect from 21.06.2007 instead of 24.05.2006.
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Considering the submission, it may be noted that the let-ter of the Government dated 21.06.2007 vide Annexure-2 is only clarification which shows that appointment under the Rehabilitation Assistance Scheme shall be made against the Group-C & D post carrying regular scale of pay. Since it is a clarification, it should be made applicable to the applicant from the date of his initial appointment and not from the date the circular was issued. Government in Finance Department have also clarified that ap-pointment of the applicant is to be treated as regular as per the G.A. Department circular dat-ed 21.06.2007. In view of such clarification and direction, the applicant‘s appointment is to be treated as regular with effect from the date of initial date of her appointment that is from 24.05.2006.
Accordingly, the O.A. is allowed and the respondent au-thorities are directed to modify the order vide Annexure-7 treating the appointment of the ap-plicant as regular with effect from 24.05.2006 instead of 21.06.2007 and consequential bene-fits as due and admissible be accordingly extended to her.
With these orders, the O.A. is disposed of.‖
10.3. Sri Bhabani Sankar Tripathy, learned Advo-cate has referred to decisions to support his arguments which serve to illustrate the estab-lished legal principles and provide a framework for understanding the current case in the light of consistent approach in the matter of contractual appointment under the RA Rules vis-à-vis regularisation of such appointees under the CA Rules. It is urged by the learned counsel that the opposite parties of CT & GST Organisation with the concurrence of the Finance Department cannot now turn around to take a different stand than what has been im-plemented in the matters of Basanti Panda. It is impressed upon this Court that the direction contained in order dated 22.03.2023 passed in Biplab Kumar Sahoo & State of Odisha, and batch (supra) has also been complied with by the Government of Odisha.
10.4. Considering such submission of counsel for respective parties drawing parity, this Court is of the considered opinion that in view of con-ceded position vide Office Order dated 28.11.2022 whereby the contractual ser-vices of the petitioner has been acknowledged to have been regularised with effect from 08.01.2016 and that accepting such position, the petitioner has also joined in the promotional position in the post of Senior Assistant on 02.01.2023 without any demur, this Court, therefore, feels it expedient to direct the opposite parties to take a decision to modify the Office Order dated 15.01.2022 of the Additional Commissioner of CT & GST, CT & GST Territorial Range, Bhubaneswar (Annexure-9) appropriately. A caveat, though the Special Provisions Rules, 2022 has been made effective from the date of publication in the Odisha Gazette, i.e., 17.10.2022, by dint of Rule 4 it has been specifically spelt out that initial ap-pointees under the CA Rules are deemed to have been appointed against the post on regular basis as on 17.10.2022 and fixation of pay shall be allowed by granting notional increments considering the contractual appointment of such employees who have been regularly ap-pointed in the service after completion of six years of service under the CA Rules. It has also been provided in the said Rule 4 of the Special Provisions Rules that the employees whose services have been so regularised shall be allowed service benefits like promotion, etc. in the cadre on notional basis to which they have been entitled to as per rules, had they been recruited on regular basis.
10.5. It is noteworthy that this Court while deciding the matter in Biplab Kumar Sahoo (supra) was not apprised about Rule 4 of the Special Provisions Rules, 2022. Therefore, the opposite parties are required to have a fresh look into the matter qua Office Order dated 15.01.2022.
10.6. At this juncture, it may be pertinent to notice relevant rules contained in the RA Rules as well as the CA Rules.
Rule 16 of the RA Rules stands as follows:
“(1) The State Government where satisfied that the oper-ation of all or any provisions of these rules causes undue hardship in any particular case, it may dispense with or relax the provisions to such extent as it may consider necessary for dealing with the case in a just and equitable manner.
(2) Such cases shall be examined in General Administra-tion Department and orders of Chief Minister shall be obtained.“
Rule 11 of the CA Rules stands as follows: ―Relaxation.—
When it is considered by the Government that it is nec-essary or expedient so to do in the public interest, it may, by order, for reasons to be recorded in writing, relax any provision of these rules in respect of any class or category of the employ-ees.“
10.7. Rule 12 of the CA Rules lays down that “if any question arises relating to the interpretation of these Rules, it shall be referred to the State Government whose decision thereon shall be final”.
10.8. As has already noticed in the foregoing para-graphs under discussions, in terms of Rule 9(1) of the CA Rules, the period of six years is to be counted from the date of contractual appointment and on satisfactory completion of six years of contractual service under said sub-rule, the employee shall be deemed to have been regu-larly appointed and for this purpose the appointing authority is obligated to issue “a formal or-der of regular appointment”. The expression “a formal order of regular appointment” contained in Rule 10 of the CA Rules signifies that an official document is issued by the appointing au-thority confirming that employee like the petitioner herein has been permanently appointed to a position after following all necessary and legal requirements. From the impugned Office Or-der dated 15.01.2022 at Annexure-9 it is manifestation of the fact that “on satisfactory com-pletion of six years of contractual service”, the petitioner is treated to be “regularly appoint-ed”. In the considered view of this Court this takes back to the initial appointment made as contractual appointee as the petitioner has been appointed under the provisions of the RA Rules read with Rule 10 of the CA Rules against a vacant post since 08.01.2016, i.e., the date of initial appointment in the post of Junior Clerk. The above phrase encapsu-lates both the legitimacy of the appointment process and the rights afforded to the appointee under the CA Rules read with the RA Rules.
10.9. This view may be fortified by applying the ra-tio of judgment rendered by the Hon‟ble Supreme Court of India in the case of V. Vincent Velankanni Vrs. Union of India, 2024 INSC 748 = 2024 SCC OnLine SC 2642, though the said matter relates to a case of probationer. The observation in said case runs as follows:
“30. It is a well-settled proposition that once an incumbent is appointed to a post according to the rules, his seniority has to be reckoned from the date of the initial appointment and not according to the date of confirmation, unless the rules provide otherwise.
32. In the case of L. Chandrakishore Singh Vrs. State of Manipur, (1999) 8 SCC 287 this Court held that in cases of probationary or officiating appointments which are followed by a confirmation, unless a contrary rule is shown, the ser-vices rendered as the officiating appointment or on probation cannot be ignored while reckon-ing the length of service for determining the position in the seniority list. This view has been reiterated in the case of Ajit Kumar Rath Vrs. State of Orissa, (1999) 9 SCC 596.
33. The Constitution Bench of this Court in Direct Recruit Class II Engg Officers‘ Assn. Vrs. State of Maharashtra, (1990) 2 SCC 715 stated the legal posi-tion with regard to inter se seniority of direct recruits and promotees and while doing so, inter alia, it was held that once an incumbent is appointed to a post according to rules, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation.
33. This Court summarised the legal principles with re-gard to the determination of seniority in Pawan Pratap Singh Vrs. Reevan Singh, (2011) 3 SCC 267 in the following terms:
“45. From the above, the legal position with regard to de-termination of seniority in service can be summarised as follows:
(i) The effective date of selection has to be understood in the context of the service rules under which the appointment is made. It may mean the date on which the process of selection starts with the issuance of advertisement or the factum of preparation of the select list, as the case may be.
(ii) Inter se seniority in a particular service has to be de-termined as per the service rules3. The date of entry in a particular service or the date of substantive appointment is the safest criterion for fixing seniority inter se between one officer or the other or between one group of officers and the other recruited from different sources. Any departure therefrom in the statutory rules, executive instructions or otherwise must be consistent with the requirements of Articles 14 and 16 of the Constitution.
(iii) Ordinarily, notional seniority may not be granted from the backdate and if it is done, it must be based on objective considerations and on a valid classification and must be traceable to the statutory rules.
(iv) The seniority cannot be reckoned from the date of oc-currence of the vacancy and cannot be given retrospectively unless it is so expressly provided by the relevant service rules. It is so because seniority cannot be given on retrospective basis when an employee has not even been borne in the cadre and by doing so it may adversely affect the employees who have been appointed validly in the meantime.‘
34. Thus, it is trite that when an employee com-pletes the probation period and is confirmed in service albeit with some delay, the confirma-tion in service shall relate back to the date of the initial appointment. Any departure from this principle in the form of statutory rules, executive instructions or otherwise must be consistent with the requirements of Articles 14 and 16 of the Constitution of India.‖
10.10. With the above perspective of legal position that on completion of probation period and consequent confirmation in service (contractual service against vacant post in the case of instant petitioner) relate back to the date of the ini-tial appointment. Hence, wielding power to relax provisions, as conferred under Rule 16 of the RA Rules and/or Rule 11 read with Rule 12 of the CA Rules, the Government may ensure parity in order to extend benefits in favour of the petitioner herein.
10.11. Reference to the following observation of the Hon‟ble Supreme Court of India in the case of State of Maharashtra Vrs. Jagannath Achyut Karandikar, (1989) 1 SCR 947 may be apposite in the present context:
“Under the 1955 Rules, the Government preserved power to dispense with, or relax the requirements of any rule regulating ‗the conditions of service of Government servants; or of any class thereof‘. In the exercise of this power, the Gov-ernment could dispense or relax the operation of any rule, if it causes undue hardships in any particular case. It is needless to state that this power includes the power to relax the condi-tions prescribed for promotion since promotion is a condition of service. There is no restriction as to the exercise of the power or discretion. The High Court, however, has ob-served that the scope of this power has been constrained by the circular dated 15th January, 1962. The circular states that the 1955 Rules permitting relaxation cannot be utilised to relax the rules which regulate conditions of service. It further states that the scope of the Rules should be limited only to matters relating to travelling allowance, leave, etc. But this appears to be an exercise in vain. The circular is an executive instruction whereas the 1955 Rules are statutory since framed under the proviso to Article 309 of the Constitution. The Government could not have restricted the operation of the statutory rules by issuing the exec-utive instruction. The executive instruction may supplement but not supplant the statutory rules. The High Court was in error in ignoring this well accepted principle.
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This takes us to the question whether the Government was justified in individual cases to relax the period for passing the examination. It is said that the number of persons falling into this category are not more than five. In the rejoinder filed on behalf of the Government, it is stated that the Government made some orders extending the period for individuals to pass the examination on administrative grounds or on some genuine hardships. It is also stated that such orders were made upon recommendations by the respec-tive departments and those persons passed the examination within the period extended. There is no reason to doubt the correctness of these statements made in the rejoinder. The power to relax the conditions of the rules to avoid undue hardship in any case or class of cases cannot now be gainsaid. It would be, therefore, futile for the respondents to make any grievance.‖
10.12. In V. Vincent Velankanni Vrs. Union of India, 2024 INSC 748 = 2024 SCC OnLine SC 2642, the Hon‟ble Supreme Court of India has been pleased to succinctly observe as follows:
“If a Government Order is treated to be in the nature of a clarification of an earlier Government Order, it may be made applicable retrospectively. Conversely, if a subsequent Government Order is held to be a modification/amendment of the earlier Government Order, its application would be prospective as retrospective application thereof would result in withdrawal of vested rights which is impermissible in law and the same may also entail recoveries to be made. The prin-ciples in this regard were culled out by this Court in a recent judgment of Sree Sankaracharya University of Sanskrit Vrs. Dr. Manu, 2023 SCC OnLine SC 640, in the following terms:
“52. From the aforesaid authorities, the following princi-ples could be culled out:
i) If a statute is curative or merely clarificatory of
the previous law, retrospective operation thereof may be permitted.
ii) In order for a subsequent order/provision/amendment to be considered as clarificatory of the previous law, the pre-amended law ought to have been vague or ambiguous. It is only when it would be impossible to reasonably interpret a provision unless an amendment is read into it, that the amendment is considered to be a clarification or a declaration of the previous law and therefore applied retrospectively.
iii) An explanation/clarification may not expand or alter the scope of the original provision.
iv) Merely because a provision is described as a clarifica-tion/explanation, the Court is not bound by the said statement in the statute itself, but must proceed to analyse the nature of the amendment and then conclude whetherit is in reality a clarificatory or declaratory provision or whether it is a substantive amendment which is intended to change the law and which would apply prospectively.‘
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10.13. This Court also takes note of the serviceju-risp rudence as noticed by the Hon‟ble Supreme Court of India in the case of Rudra Ku-mar Sain Vrs. Union of India, (2000) 8 SCC 25 wherein it has been observed that:
“In the service jurisprudence, a person who possesses the requisite qualification for being appointed to a particular post and then he is appointed with the approval and consultation of the appropriate authority and continues in the post for a fairly long period, then such an appointment cannot be held to be ‗stopgap or fortuitous or purely ad hoc‘.‖
11. In view of the above discussions, apart from noticing the provisions of Special Provisions Rules, 2022, and for the reasons ascribed supported by the decisions referred to supra, it would suffice to issue writ of mandamus by directing the op-posite parties to consider taking a decision with regard to modification of the Office Order dated 15.01.2022 of the Additional Commissioner of CT & GST, CT & GST Territorial Range, Bhubaneswar (Annexure-9) suitably within a period of three months from today.
11.1. In the wake of above, on such modification, if any, being made to the said Office Order dated 15.01.2022, the opposite parties may also con-sider extending all such benefit to the petitioner as is available in law invoking powers under the provisions of Rule 16 of the RA Rules and/or Rule 11 read with Rule 12 of the CA Rules.
12. In the result, the writ petition is disposed with the above observations and directions, but there shall be no order as to costs.
Notes:-
1 Visiting the web portal of this Court, it could be ascertained that though in the copy of the order dated 22.03.2023 as uploaded depicts the case numbers as “WPC (OAC) Nos.2062, 2059, 2060 & 2061 of 2017”, the cover page showing the “case details” indicates the case numbers as “WPC (OA) Nos.2062, 2059, 2060 & 2061 of 2017”. Paragraph 4 of said order also makes the position clear.
2 Paragraph 3 of Order dated 26.08.2022 passed in Anil Kumar Pradhan Vrs. State of Odisha, WPC (OAC) No.410 of 2017 is as follows:
“3. It is submitted that in the proceeding dated 22.5.2014 under Annexure-4, the claim of the petitioner along with others were recommended for their appointment under the provi-sions of Rehabilitation Assistance Scheme. It is submitted that persons placed at Sl. No.1 & 2 in the said proceeding were appointed on regular basis vide order dated 26.7.2014 under Annexure-7 series, but the petitioner was not only appointed subsequent to such ap-pointment of similarly situated persons vide order dated 10.2.2016, but that too on contractu-al basis. Mr. Sethi, learned counsel for the petitioner submitted that since the decision was taken to appoint the candidates on regular basis and two of them were appointed on regular basis vide order dated 26.7.2014 under Anenxure-7 series, the petitioner should have been appointed on regular basis.‖
3 Rule 13 of the Odisha Civil Services (Rehabilitation Assis-tance) Rules, 1990 stood as follows:
“Seniority of persons, appointed under these rules, in the grade or cadre of the service or posts in which the appointment is made shall be fixed below the persons recruited and ap-pointed in that grade or cadre in that year as per the provisions of the relevant recruitment rules framed under Article 309 of the Constitution and in other cases according to their date of joining in the post.‖
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