The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.202 of 2024 Nityananda Panigrahi …. Petitioner Mr. S. Palit,Sr.Advocate -versus- State of Odisha & others …. Opposite Parties Mr. A.P.Das, A.S.C. CORAM: JUSTICE A.K. MOHAPATRA ORDER 08.01.2024 Order No. 01. 1. This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode). 2.
Legal Reasoning
Heard Sri S. Palit, learned senior counsel appearing for the Petitioner as well as learned Additional Standing Counsel for the State Opposite Parties. Perused the Writ Petition as well as the documents annexed thereto. 3. The Petitioner has filed the present writ application with the following prayer: “It is therefore, humbly prayed that this Hon’ble Court may graciously be pleased to i. Admit the Writ Application. ii. Call for the Records. iii. Issue Rule NISI calling upon the Opp. Parties to Show-Cause impugned to why Advertisement / VHF Message bearing No. 1539/RO dt.04.10.2023 issued by the Opp. Party No. 3 shall not be quashed and If the Opp. Parties did not show-cause or shows insufficient cause, issue a Writ in the nature of Certiorari or any other appropriate Writ / Writs, iv. the as // 2 // Order / Orders, Direction / Directions thereby quashing the Advertisement / VHF Message bearing No. 1539/RO dt.04.10.2023 issued by the Opp. Party No. 3 under Annexure-10. Issue a Writ in the nature of mandamus or any other appropriate Writ / Writs, Order / Orders, Direction / Directions directing the Opp. Parties to consider and give promotion to the petitioner to the post of Havildar w.e.f. the date the said posts were kept vacant i.e. 21.08.2021 along with all service benefits before proceeding with any recruitment to fill up such post within a reasonable time to be stipulated by this Hon'ble Court.” Learned Senior counsel appearing for the petitioner at the v. 4. outset contended that the present petitioner had initially participated in the selection for appointment to the rank of Lance Naik wherein vacancy had arisen after promotion of a few Lance Naik to the post of Havildar. Referring to D.O. dated 01.07.2018 under Annexure-4, the senior counsel appearing for the petitioner submitted that the petitioner along with two others were promoted to the Lance Naik in the existing vacancy and they were allowed to officiate as Lance Naik on the date of assuming the higher charge having been promoted. Thereafter, the petitioners were reverted to the post of constable as some of the Lance Naik were given promotion to the post of Havildar were reverted back to the Lance Naik. He further contended that such reversion order was challenged in this Court after which the petitioners were again promoted to the post of Lance Naik. While the matter stood thus the Govt. of Odisha, Home Department, took a decision to abolish 335 posts of Lance Naik in level 5 in the entire state and alternatively equal number of posts were created in Havildar category in the level 7 pay matrix of the RSP Rules, 2017 with the concurrence of Finance Department as has been reflected under Annexure-6 to the writ application. 5. Challenging the order reversion the petitioner along with // 3 // similar other candidates had earlier approached the Tribunal by filing O.A. No.2658 of 2018. After abolition of the Tribunal the said O.A. was transferred to this Court and re-registered as WPC(OAC) No.2658 of 2018. During pendency of the aforesaid writ petition certain development has taken place which were brought on record by filing an additional affidavit. A coordinate bench of this Court after hearing learned counsel appearing for the respective parties
Decision
disposed of the writ application of the petitioner as well as similarly situated other persons by a common order dated 29.09.2023, with a direction to the opposite party No.2 to consider the case of the petitioner as well as similarly situated other candidates within a period of three months. After disposal of the aforesaid writ application the petitioner approached the I.G of police Southern Range Berhampur by filing a detailed representation on 13.10.2023 to the S.P. Berhampur under Annexure-9 to the writ application. Before any final decision was taken on the representation of the petitioner under Annexure-9, in the manner as has been directed by this Court in the writ application vide order dated 29.09.2023, the S.P. Berhampur invited application from eligible candidates for promotion to the post of 32 number of posts of Havildar which was created by the Government vide order dated 23.07.2021 under Annexure-6. The V.H.F message dated 04.10.2023 under Annexure- 10 to the writ application reveals that applications were invited to fill up the vacancies in 32 number of posts of Havildar. The same further reveals the eligibility criteria required to be followed while selecting candidates for appointment to the post of Havildar. Learned Senior counsel appearing for the petitioner submitted that the opposite parties are aggressively pursuing the selection process and they are likely to fill up the vacancies very soon. In the aforesaid background learned senior counsel appearing for the petitioner further contended // 4 // that in the event the vacancies are filled up then the petitioner would be seriously prejudiced and they may not get promotion despite the petitioner having eligibility for being appointed as Havildar. In course of his argument learned counsel for the petitioner further referred to the practice followed in respect of other districts in the State of Odisha, specifically referring to Puri, Kandhamal, Malkanagiri, Sundargarh, submitted that similarly situated persons have already been considered for promotion to the post of Havildar and have also been promoted as such pursuant to order under Annexure-11 series to the writ application. Being aggrieved by the conduct of the S.P. Berhampur-Opposite party No.3 in not considering the case of the petitioner pursuant to the direction of this Court and not taking into consideration the practice adopted in respect of other districts, the petitioner has filed a detailed representation before the Opposite Party No.3 on 29.12.2023, under Annexure-12 to the writ application. He further contended that, instead of taking a final decision on the representation of the petitioner, the opposite party No.3 is aggressively pursuing the selection of persons to be appointed to the rank of Havildar in Berhampur District. 6. Learned Additional Standing counsel on the other hand contended that, from the materials annexed to the writ application it appears that the petitioner has already approached the Superintendent of Police, Berhampur, Opposite Party No.3 which is the competent authority, to take a decision in the matter. He further contended that he has no instruction as to whether order dated 29.09.2023 passed by this Court in the earlier writ application has been complied with in the meantime. However, learned Additional Standing Counsel fairly contended that in the event this Court directs S.P. of Berhampur to take a decision on the representation of the petitioner in accordance // 5 // with law, keeping in view the order passed by this Court in the earlier writ application on 29.09.2023, within a stipulated period of time, then he will have no objection with the same. 7. Having heard the learned counsels appearing for the respective parties, and on a careful consideration of the background facts as well as materials on record, this Court observes that the petitioner had earlier approached this Court by filing writ application which was disposed of with a direction to the opposite party No.3 to consider the case of the petitioner. However, there is nothing on record to indicate as to whether any decision has been taken on such representation. On perusal of Annexure-10, it appears that the Opposite party No.3 has taken steps to fill up the vacancies in the posts of the rank of Havildar expeditiously. This Court is of the considered view that in the event the vacancies are filed up pursuant to the notice under Annexure-10 then the petitioner would become remediless and seriously prejudiced. In the aforesaid factual background this Court deems it proper to dispose of writ application by directing the Opposite party No.3 to first dispose of representation of the petitioner under Annexure-12 to the writ application as expeditiously as possible, preferably before the selection process pursuant to under Annexure- 8 is finalized. It is further directed that till such time the representation of the petitioner under Annexure-12 is finally decided by the Opposite Party No.3 the result of the selection process pursuant to Annexur-10 shall not be declared. The Opposite Party No.3 is further directed make every endeavor to dispose of the representation under Annexure-12 within a period of four weeks from the date of communication of a copy of this order. The petitioner is directed to approach Opposite Party No.3 along with copy of today’s order within a week from today. Any decision taken by the opposite party No.3 shall be communicated to the petitioner // 6 // within a week from the date of taking such decision. 8. With the aforesaid observation, the writ application stands disposed of. 9. Issue urgent certified copy of this order as per Rules. Rubi ( A.K. Mohapatra ) Judge Signature Not Verified Digitally Signed Signed by: RUBI BEHERA Reason: Authentication Location: High Court of Orissa Date: 09-Jan-2024 18:33:00