In a significant case challenging the appointment of Junior Assistant ( CT & GST ), the Orissa High Court directed to decide on extending benefits available under Rule 16 of Odisha Civil Services ( Rehabilitation Assistant ) Rules, 1990 ( RA Rules ) read with Rule 12 of Odisha Group-C and Group-D Posts ( Contractual Appointment ) Rules, 2013 ( CA Rules ).
Ajit Kumar Panda, the petitioner challenged the Office Order communicated vide Memo No.110/CT&GST, dated 15.01.2022 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.
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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 ) and upon causing enquiry through the Collector, Puri, requested the Commissioner of Commercial Taxes, Odisha-opposite party No.2 by issue of Letter to take steps to appoint the petitioner against available vacancy.
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. 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 the Court by way of filing this writ petition.
Sri Bhabani Sankar Tripathy assisted by Sri Amit Kumar Sahoo, 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.
It was submitted 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.
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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 regularly appointed and for this purpose the appointing authority is obligated to issue “a formal order 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 authority confirming that employee like the petitioner herein has been permanently appointed to a position after following all necessary and legal requirements.
In the considered view of the 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 encapsulates both the legitimacy of the appointment process and the rights afforded to the appointee under the CA Rules read with the RA Rules.
Supreme Court of India in the case of V. Vincent Velankanni Vrs. Union of India, 2024 observed 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.
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In view of the discussions, apart from noticing the provisions of Special Provisions Rules, 2022, and for the reasons ascribed supported by the decisions referred to supra, Justice Murahari Sri Raman
issued writ of mandamus by directing the opposite parties to consider taking a decision with regard to modification of the Office Order of the Additional Commissioner of CT & GST, CT & GST Territorial Range, Bhubaneswar 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.
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