Challenging the direct recruitment made with the settled principles of law: Cuttack High Court

Committed error in failing the appreciate the principle that the process of recruitment prescribed in the Odisha Human Rights Commission rules,2012 cannot have the retrospective application by Hon’ble Justice B.P. Routray in the matters of Nihar Ranjan Tripathy v. State of Odisha and others. [ Writ Appeal No. 523 of 2020].

The background of the case starts with the newly created establishment of Odisha Human Rights Commission (OHRC) no prescribed guidelines or rule was there for direct recruitment to the post. So in the absence of any such provisions governing conditions of recruitment, the Petitioner was appointed by the OHRA directly without due process of selection. Neither was any advertisement made nor any competitive examination held for recruitment to the post. The petitioner was straightaway appointed 29th August 2003 by the OHRC through the formal interview for an initial period of one year which was extended from time to time. The Odisha Human Rights Commission (Method of recruitment and conditions of service of officers and other staff) Rules, 2012 came into force. Rule 4 of the said rules prescribes that the appointment to different categories of a post in the commission shall be made either by direct recruitment holding competitive examination or by promotion or by deputation. Rule 8 further prescribes that “Notwithstanding anything contained in the provision of these rules, the persons holding posts in the State Commission on the date of commencement of these rules either on direct recruitment or transfer on deputation basis and who fulfil the qualification and experience laid down in these rules and who are considered suitable by the committee, shall be eligible for absorption in the respective grades”.

After the OHRC Rules, 2012 came into force, the service of the petitioner was regularized on absorption in the regular scale of pay in terms of Rule 8 and periodical increment was granted to the petitioner. In the letter directing the Petitioner is not entitled to further increment because of the audit objection that his appointment/ absorption was irregular and he is liable to refund of excess amount of remuneration received. The Appellant was directed to repay an amount of Rs. 4,624/- Petitioner challenged the audit objection in para 20(A) and writ petition with a prayer to quash the same and further to regularize petitioner service. 

The Hon’ble Court adjudication of the writ petition did not find any infirmity on the order impugned but repayment of Rs. 4,264/- is concerned, it is directed to effect the same only after compliance of the Principles of Natural justice. “The method of direct recruitment has been prescribed in Rule 6 read with the schedule, the initial appointment to the post has been made without following the method of competitive examination which is against the fundamental principles of recruitment, the subsequent regularization based in the same also becomes irregular and there cannot be any second opinion on this”. 

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Judgment Reviewed by Kaviya S.

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