A three-judge bench comprising Justices L Nageswara Rao, Sanjiv Khanna and B R Gavai issued notices to the Ministry of Personnel, Public Grievances and Pension, Odisha government and others and sought their response within eight weeks.
The apex court was hearing an appeal filed by Orissa Administrative Tribunal Bar Association against a high court order that upheld the notification issued by the Department of Personnel and Training of the central government dated August 2, 2019 which abolished OAT.
The high court had noted in its order that there was sufficient material to support the view of the state government that OAT has not served the purpose of delivery of speedy justice to litigants.
The appeal contended that the Centre had issued a notification abolishing OAT by invoking Section 21 of the General Clauses Act, 1897 (GCA) when the parent Act i.e. the Administrative Tribunals Act, 1985 (AT Act) implicitly denied the exercise of such power.
"In the present case, the Centre could not invoke Section 21 of GCA to do indirectly that which was prohibited to be done directly under the AT Act, and by upholding the illegal and arbitrary decision of the government, the impugned judgment is liable to be set aside," OAT said in its plea.
As per reports, the Commercial Taxes department had initially engaged the data entry operators and junior programmers in 2005 on outsourcing basis and later they were appointed on an annual contract basis with effect from September 17, 2013.
The General Administration department had also issued an order for regular appointment of the existing contractual Group C and Group D employees in 2013.
However, as the jobs of the aforesaid employees were not regularised, they moved the OAT, which as per an order dated May 17, 2017, had directed the State government to issue a formal order of regular appointment in favour of the petitioners.
The government, however, challenged the order of the OAT in the Orissa High Court claiming,
Persons whose initial appointment was on outsourcing basis cannot come under the regular establishment because no open and transparent recruitment procedure has been adopted.
After hearing both the parties, the court upheld the order of the OAT stating,
Whatever may be the mode of engagement/appointment, there was concurrence of the Finance Department and the employees in question were engaged in different Department of the Government and rendered their services uninterruptedly....But, surprisingly, after utilizing their services for more than a decade, when question of bringing them under regular establishment arises, they (employees) have been pushed into a corner.
"The litigants had filed a case for regularisation of their jobs. As the government had not regularised their jobs, they had moved the Tribunal which gave a judgement in their favour. A year later, the government challenged the order of the Tribunal in the High Court which was dismissed on May 10, 2017," said advocate Atul Tripathy.
The tribunal, while disposing a case against an advertisement where rate of reservation was above 50 per cent, said the Act was unsustainable in the eye of law as it had not been included in the 9th schedule of the Constitution.
A division bench of OAT comprising chairman Justice Nityananda Prusty and administrative member S N Das directed the state government and Odisha Public Service Commission (OPSC) not to exceed 50 per cent ceiling in total in respect of ST, SC and SEBC in public employment as laid down by the Supreme Court.
The tribunal further deprecated the state government's hasty action in implementing the Odisha Reservation of Posts and Services (Socially and Educationally Backward Classes) Act, 2008 before its inclusion in the 9th Schedule.
An aspirant for the post of ASO (assistant section officer) in the State Secretariat and Raj Bhawan, Amar Chhatoi, had challenged the vires of the Act on the basis of an employment notice floated by the OPSC in which applications were invited one year ago for filling up 811 posts.
State respondents took the plea that for providing 27 per cent reservation, necessary enactment was made under Article 16(4) and the same was in force as it had not been declared ultra vires by any competent court of law.
It was further argued that the State was competent to bring such Act.
OPSC took the plea that on the basis of requisition from state government, clarifications were sought on the point of exceeding 50 per cent quota and after receipt of the clarification, necessary advertisement was floated.
As there is 38.75 per cent reservation for ST and SC, the 27 per cent reservation for SEBC takes the total reservation ratio to 65.75 per cent, which is contrary to the benchmark fixed by the apex court, the petitioner's counsel argued.
Orissa High Court and Supreme Court while upholding an earlier judgement of the OAT, directed that reservation in public employment can not exceed 50 per cent.
However, the state government in 2008 passed a Bill to nullify judicial directives. With quashing of the Act, this provision is given a judicial burial, the counsel said.
As per norms, the SAT needs to have quorum of eight members but it is now left with only one and there are around 74,000 pending cases. The sole member now is saddled with the responsibility of conducting hearings the at the tribunal's principal bench in Bhubaneswar, regular bench in Cuttack and circuit benches in Sambalpur and Berhampur.
The members of SAT Bar Association alleged that Odisha government is neglecting its duties even though it had decided to abolish the State Administrative Tribunal. Owing to such callous attitude, nearly 7 lakh government employees are being deprived of getting justice, alleged bar members.
“Odisha government has not given any valid reason to abolish SAT. Such a decision has been taken only to deprive 7 lakh employees of justice,” said SAT Bar Association president, Anant Acharya.
Already several employees are running from pillar to post in Odisha to get justice. One such employee is Kamal Lochan Prusty who was working at the Khurda Collectorate. He had moved SAT after higher authorities placed him under suspension allegedly for no reason.
“I am now worried even though the matter is sub judice. I don’t know when the case will be heard,” said Prusty.
Sushant Dakua worked as a hair dresser at Chhatrapur 8th Battalion. However, after 17-years of service, he was allegedly dismissed instead of permanent appointment.
“I have been running from pillar to post to get justice. There are thousands of others like me who are waiting for justice. Government should retain SAT so that grievances of employees can be heard,” said Dakua.