Orissa High Court
Case Details
ORISSA HIGH COURT: CUTTACK W.P.(C) NO. 20167 OF 2014 AND W.P.(C) NO. 13149 OF 2014 In the matter of applications under Articles 226 and 227 of the Constitution of India. --------------- In W.P.(C) No. 20167 of 2014 Gouranga Charan Mahanta ..… Petitioner -Versus- State of Odisha and others ….. Opp. Parties For Petitioner : Mr. B.B. Mohanty, J.N. Panda, M. Harichandan, B. Tripathy & B. Samantaray. For Opp. Parties : Mr. A.K. Mishra, Addl. Government Advocate In W.P.(C) No. 13149 of 2014 Gyanaranjan Mishra & Others ..… Petitioners -Versus- State of Odisha and others ….. Opp. Parties For Petitioner : M/s. R. B. Mohapatra, S.K. Srichandan & S. Debata. For Opp. Parties : Mr. A.K. Mishra, Addl. Government Advocate Page 1 of 22 M/s. R.N.Acharya & P.N. Acharya (Caveator). P R E S E N T: THE HONOURABLE DR. JUSTICE B.R.SARANGI AND THE HONOURABLE MR. JUSTICE B.P. SATAPATHY DATE OF HEARING & DATE OF JUDGMENT ON:: 08.02.2023 B.P.SATAPATHY, J. Since the common order passed by the Odisha Administrative Tribunal, Cuttack Bench, Cuttack on 03.06.2014 in O.A No.1327(C) of 2009 and O.A No.1105(C) of 1999 is under challenge in both the Writ Petitions, the same were heard analogously and disposed of by the present common order. 2. Both the Writ Petitions have been filed challenging the common order dated 03.06.2014 by the Tribunal, wherein the Tribunal while declining to entertain the relief as has been prayed for by the Petitioners in both the Writ Petitions, disposed of the Original Applications in O.A No.1327(C) of 2009 and O.A No.1105(C) of 1999. 2.1. The factual matrix leading to filing of these cases, in a nutshell, is that the Opposite Party No.3 issued an Page 2 of 22 advertisement on 13.09.1989 under Annexure-1 inviting applications from eligible candidates for recruitment to the post of Junior Clerk in the scale of pay Rs.780/- to Rs.1160/- in the District Offices and Office Subordinate thereto in the district of Keonjhar. In the advertisement, the vacancies were reflected at 10, out of which 8 posts are reserved for SC&ST respectively. Pursuant to the said advertisement issued under Annexure-1 when the Petitioners made their applications, they were issued with the Admit Card on 22.08.1991 and the written examination was held on 15.09.1991. After coming out successful in the written examination, the Petitioners were allowed to take part in the Typing Test, which was held on 02.10.1991. 2.2. After completing the selection process, the merit list of the candidates was published on 08.10.1991 by selecting 110 candidates as against the advertised 10 vacancies. Since all the selected candidates could not be provided with the appointment within the validity period of the select list, Opposite Party No.3 vide letter dated 20.08.1992 under Annexure-5, moved the Government-Opposite Party No.1 Page 3 of 22 seeking extension of the period of validation of the select list. In consideration of the application submitted under Annexure-5 and subsequent application of similar in nature issued under Annexure-7, when the Government in the General Administration Department held that there is no justification to revalidate the merit list for a further period of one year vide letter dated 29.04.1993 under Annexure-8, the Petitioners being aggrieved by the said communication approached the Tribunal along with others in O.A No.1261(C) of 1993. 2.3. The Tribunal vide its order dated 02.03.1996
Decision
disposed of the matter with the following direction:- “In I direct the aforesaid circumstance, the Respondents to find out the validity of the requisitions at the time of holding of the examination and in case such vacancies have not been filled up, either to appoint or sponsor the name of the applicants for appointment within two months from the date of receipt of a copy of this order”. Another set of candidates, who are also affected by the communication dated 29.04.1993 approached the Tribunal in O.A No.1455(C) of 1996. The Tribunal vide order dated 25.04.1996 disposed of the said matter in the light of the order passed in O.A No.1261(C) of 1993. Page 4 of 22 2.4. In the meantime Government-Opposite Party No.1 challenging the order dated 02.03.1996 passed in O.A No.1261(C) of 1993 approached the Hon’ble Supreme Court in Special Leave to Appeal (Civil) No.14437 of 1996. Hon’ble Apex Court vide order dated 20.12.1996 dismissed the Special Leave Petition with certain clarifications. The order passed by the Hon’ble Apex Court on 20.12.1996 is quoted hereunder:- “By the impugned judgment the Orissa Administrative Tribunal has directed the petitioners to find out the validity of the requisitions at the time of the holding of the examinations and in case such vacancies have not been filled up, either to appoint or sponsor the name of the applicants for appointment within two months from the receipt of the copy of the order. In so far as the direction regarding filling up vacancies as on the date of the examinations, we do not find any infirmity in the regarding said direction. appointment the that appointment shall be made in the order as shown in the select list. With this clarification the Special Leave Petition is dismissed”. latter direction this extent is modified The to 2.5. Instead of carrying out the direction of the Tribunal passed in O.A No.1261(C) 1993 and the order passed by the Hon’ble Apex Court in Special Leave to Appeal (Civil) No.14437 of 1996, when the Opposite Party No.3 published an advertisement on 25.06.1997 under Annexure-17 to fill up 52 posts of Junior Clerk in the Page 5 of 22 district of Keonjhar and another advertisement on 20.01.1999 under Annexure-18 to fill-up 29 posts of Junior Clerk, the said advertisements issued by the Opposite Party No.3 were challenged by the present Petitioners before the Tribunal in O.A No.2029(C) of 1997 and O.A No.348(C)/1999. 2.6. The Tribunal vide a common order passed on 26.02.2009 disposed of both the O.A Nos.2029(C) of 1997 and O.A No.348(C) of 1999 inter alia with the following order:- “ We, therefore, dispose of these applications with a direction to the respondents to comply with the existing orders of the Hon’ble Supreme Court as detailed by us in this order and to re-examine the available vacancies as on 2.10.1991 and after so ascertaining if the applicants make the grade in order of seniority in the merit list, appointment orders shall be issued to them within one month from the date of receipt of a copy of this order and if no appointment orders are issued, they be informed of the position within the same period”. 2.7. Pursuant to the order passed by the Tribunal on 26.02.2009 when the Opposite Party No.3 passed a fresh order on 20.04.2009 under Annexure-20 rejecting the claim of the Petitioners, the same was challenged before the Tribunal in O.A No.1327(C) of 2009. The Tribunal vide a common order passed on 03.06.2014 when was not inclined Page 6 of 22 to entertain the prayer. While disposing the O.A No.1327(C) of 2009 and O.A No.1105 (C) of 1999, the same is under challenge by the Petitioners in the abovementioned two writ Petitions. 3. Mr. B.B. Mohanty, learned counsel appearing for the Petitioners in both the cases vehemently contended that pursuant to the advertisement issued by the Opposite Party No.3 on 30.09.1989 under Annexure-1 to fill up 10 posts of Junior Clerk in the district of Keonjhar, the Petitioners in both the cases made their applications for the said post. The Petitioners on being found eligible were issued with the Admit Cards to appear the written test on 22.08.1991 and the written examination was held on 15.09.1991. The Petitioners having coming out successful in the written test they were allowed to take part in the Typing Test, which was held on 02.10.1991. 3.1. After completing the selection process, the Opposite Party No.3 published the merit-cum-select-list of 110 candidates on 08.10.1991 under Annexure-4 taking into account the vacancies available in various offices coming under Opposite Party No.3. Since the selected Page 7 of 22 candidates could not be provided with the appointment within the validity of the select list, Opposite Party No.3 vide his letter dated 20.08.1992 under Annexure-5 moved the Government with a request to extend the validity of the select list i.e. up to 07.10.1993. Similar prayer was also made by the Revenue Divisional Commissioner, Northern Division, Sambalpur vide his letter dated 25.11.1992 under Annexure-6 and again by the Collector on 2.2.1993 under Annexure-7. However, the Government in the General Administration Department-Opposite Party No.2 vide its letter dated 29.04.1993 under Annexure-8 held that there is no justification to re-validate the merit list for a further period of one year. 3.2. The Petitioners along with others being aggrieved by the letter issued under Annexure-8 approached the Tribunal in O.A No.1261(C) of 1993. The Tribunal vide its order dated 02.03.1996 under Annexure-10 disposed of the Original Application with the order as indicated hereinabove. Similar prayer made in O.A No.1455(C)/1996 was also disposed of by the Tribunal vide its order under Page 8 of 22 Annexure-12, in the light of the order passed in O.A No.1261(C) of 1993. 3.3. However, instead of complying the direction so issued by the Tribunal, the State-Opposite Parties challenged the order passed on 02.03.1996 before the Hon’ble Apex Court in Special Leave to Appeal (Civil) No.14437 of 1996. The Hon’ble Apex Court though dismissed the Special Leave Petition but gave certain further clarifications. 3.4. Instead of complying the direction of the Tribunal so issued on 02.03.1996 in O.A No.1261(C)/1993 and the clarification issued by the Hon’ble Apex Court in its order dated 20.12.1996, when the Opposite Party No.3 issued two advertisements under Annexures-17 & 18 to fill up the post of Junior Clerks, the same was challenged by the Petitioners and other affected persons in O.A No.2029(C) of 1997 and O.A. No.348(C) of 1999. 3.5. The Tribunal vide a common order passed on 26.02.2009 under Annexure-19 disposed of both the Original Applications with the direction as indicated hereinabove. Instead of complying the direction issued by the Tribunal on 26.02.2009 under Annexure-19, when the Page 9 of 22 Opposite Party No.3 passed a fresh order on 20.04.2009 under Annexure-20 rejecting the prayer of the Petitioner for their appointment basing on the select list prepared on 08.10.1991 under Annexure-4, the same was again challenged by the present Petitioners in O.A No.1327(C) of 2009. But the Tribunal without proper appreciation of its earlier order passed in O.A No.1261(C) of 1993, clarified further by the Hon’ble Apex Court in its order dated 20.12.1996 as well as the subsequent order passed on 26.02.2009, disposed of the Original Application along with O.A No.1105(C)/1999 by holding that the prayer made by the Petitioners is not entertainable as the advertisement is of the year 1989 and the select list was prepared in the year 1991 vide the impugned order dated 03.06.2014. 3.6. Mr.B.B. Mohanty, learned counsel for the Petitioners forcefully argued that in view of the earlier order passed by the Tribunal in O.A No.1261(C)/1993, which was clarified by the Hon’ble Apex Court in its order dated 20.12.1996 and the subsequent order passed by the Tribunal on 26.02.2009, the Tribunal is not justified in not entertaining the prayer as made in O.A No.1327(C) of 2009. Page 10 of 22 3.7. It is further contended that in view of the pendency of the matter all through starting from the year 1993 and the communications made by the Collector under Annexures-5 & 7, the select list is treated to be a valid one and the ground on which the Tribunal refused to entertain the relief is not sustainable in the eye of law. 4. Mr. A.K. Mishra, learned Addl. Government Advocate on the other hand made his submission basing on the stand taken in the counter affidavit filed on behalf of the Opposite Party No.3. It is contended that in respect of the advertisement issued under Annexure-1, the written test was held on 15.09.1991 and typing test held on 02.10.1991. The final result was published on 08.10.1991. As per the provisions contained under the amended Rule-12 of the Orissa Ministerial Service Rules, 1985, the merit list was valid for a period of one year i.e. up to 07.10.1992. The request made by the Collector to extend the validity of the select list from 08.10.1992 to 07.10.1993 when was rejected by the Government in the General Administration Department-Opposite Party No.2 vide its letter dated Page 11 of 22 29.04.1993, the same was challenged by the present Petitioners in O.A No.1261(C) of 1993. 4.1. It is contended that the Orissa Ministerial Services (Method of Recruitment to the posts of Junior Clerks in District Offices) Rules, 1985 was amended vide G.A Department Notification SRO No.206/1991 dated 05.04.1991. As per the said amended provision under Rule-12, the validity of the select list published on 08.10.1991 was to remain valid up to 07.10.1992 i.e. for a period of one year. It is further contended that even though the advertisement under Annexure-1 was issued on 13.09.1989, but by the time the written test was held on 22.07.1991 and the typing test on 02.10.1991 with publication of the select list on 08.10.1991, the 1985 recruitment rules was already amended vide SRO dated 05.04.1991. As per the said amended provision contained under Rule-12, the period of validity of the select list was one year from the date of its publication. In the instant case, since the select list was published on 08.10.1991, it is to remain valid upto 07.10.1992. Page 12 of 22 4.2. It is further contended that when the Opposite Party No.2 vide his letter dated 29.04.1993 under Annexure-8 refused to extend the validity of the select list, the same was challenged by the Petitioners and other affected persons in O.A No.1261(C) of 1993. The Tribunal vide its order dated 02.03.1996 directed the Opposite Parties to find out the validity of the requisition at the time of holding of the examination and in case such vacancies have not been filled up, either to appoint or sponsor the name of the applicant for appointment within a period of two months from the date of receipt of this order. When the order passed by the Tribunal on 02.03.1996 was challenged before the Hon’ble Apex Court in Special Leave to Appeal (Civil) No.14437 of 1996, Hon’ble Apex Court though dismissed the SLP but clarified the order passed by the Tribunal to the extent that the later direction regarding the appointment is modified to the extent that the appointment shall be made in the order as shown in the select list. 4.3. The Petitioners after passing of the order by the Hon’ble Apex Court on 20.12.1996, though approached the Opposite Party No.3 on 30.01.1997 and 26.02.1997 to Page 13 of 22 implement the order passed by the Tribunal in O.A No.1261(C) of 1993, but no application was ever filed by the Petitioners seeking implementation of the order so passed by the Tribunal on 02.03.1996 and subsequently clarified by the Hon’ble Apex Court vide order dated 20.12.1996. However, when the Opposite Party No.3 issued two further advertisements under Annexures-17 & 18 to fill up the post of Junior Clerk in the District of Keonjhar, the same was challenged by the Petitioners herein in O.A No.2029(C) of 1997 and O.A No.348(C) of 1999. 4.4. The Tribunal vide its order dated 26.02.2009 under Annexure-19 disposed of the said O.A with a direction to comply with the orders of the Hon’ble Supreme Court and to re-examine the available vacancies as on 02.10.1991. It is further directed that after so ascertaining the vacancy, if the applicants make the grade in order of seniority in the merit list, the appointment order shall be issued to them within a period of one month from the date of receipt of this order. 4.5. It is contended that on receipt of the order passed by the Tribunal on 26.02.2009 under Annexure-19, the Page 14 of 22 Opposite Party No.3 made an exhaustive exercise and ultimately found that no further vacancy exist as on the date of holding the examination and accordingly held that it is not feasible to issue any appointment order in favour of the Petitioners herein. The said order was challenged by the Petitioners before the Tribunal in O.A No.1327(C)/2009. The Tribunal taking into account the fact that the advertisement is issued in the month of September, 1989 and the select list was published in the month of October, 1991 held the relief as claimed by the Petitioners as not entertainable and accordingly disposed of the Original Application along with pending in O.A No.1105(C) of 1999 vide order dated 03.06.2014 under Annexure-24. 4.6. Learned Addl. Government Advocate contended that since by the time, the written test as well as typing test was held on 15.09.1991 and 02.10.1991 with publication of the select list on 08.10.1991, the recruitment rule was already amended vide notification dated 05.04.1991 by prescribing the validity of the select list as one year, the Tribunal rightly did not entertain the relief as claimed by the Petitioners. Page 15 of 22 It is also contended that during pendency of the matter before the Tribunal as well as before this Hon’ble Court a number of recruitment has been undertaken by the Opposite Party No.3 with filling up the post of Junior Clerk. Therefore, it is not feasible to extend the benefit of the appointment in favour of the Petitioners basing on the select list prepared way back on 08.10.1991. 4.7. It is accordingly contended that the Tribunal has not committed any illegality or irregularity while disposing the matter vide order dated 03.06.2014 under Annexure-24 and it needs no interference of this Court in exercise of its power under Article-227 of the Constitution of India. 5. We have heard Mr. B.B. Mohanty, learned counsel for the Petitioners and Mr.A.K. Mishra, learned Addl. Government Advocate for the State. On the consent of the learned counsel appearing for both the Parties, the matter was heard finally and disposed of at the stage of admission. 6. Having heard learned counsel appearing for the Parties and after going through the materials available on record, it is found that for recruitment to the post of Junior Page 16 of 22 Clerk, an advertisement was issued by the Opposite Party No.3 on 13.09.1989. In the said advertisement the total number of vacancies was shown at 10. Pursuant to the advertisement issued under Annexure-1, the written examination was held on 15.09.1991 and the typing test was held on 02.10.1991 with publication of the select list on 08.10.1991. Even though in the advertisement issued under Annexure-1, only 10 vacancies were shown, but Opposite Party No.3 prepared a select list of 110 candidates vide Annexure-4. As the selected candidates could not be provided with the appointment during subsistence of the select list, the Opposite Party No.3 moved the Government under Annexures-5 and 7 with a request to revalidate the merit list from 07.10.1992 to 08.10.1993. But the same when was not accepted by the Opposite Party No.2 vide Annexure-8, the matter was challenged before the Tribunal in O.A No.1261(C)/1993. 6.1. It is found from the order that the Tribunal while disposing the matter only directed the Opposite Parties to find out the validity of the requisition at the time of holding of the examination and in case such vacancies has not been Page 17 of 22 filled up either to appoint or sponsor the name of the Petitioners for appointment. The order passed by the Tribunal on 02.03.1996 when was assailed before the Hon’ble Apex Court by the State-Opposite Parties in Special Leave to Appeal (Civil) No.14437 of 1996, the Hon’ble Apex Court though dismissed the Special Leave Petition but clarified the order passed by the Tribunal by holding that the direction regarding appointment is modified to the extent that the appointment shall be made in the order as shown in the select list. 6.2. It is found from the records that after disposal of the matter by the Hon’ble Apex Court vide order dated 20.12.1996, no further action was taken by the Petitioners for implementation of the said order, save and except moving two applications before the Opposite Party No.3 on 30.01.1997 and 26.02.1997 under Annexures-14 and 15. Only when the Opposite Party No.3 issued two advertisements on 25.06.1997 and 20.01.1999 under Annexures-17 and 18, they were challenged by the Petitioners in O.A No.2029(C) of 1997 and O.A No.348(C) of 1999. Both the Original Applications were disposed of by Page 18 of 22 the Tribunal vide a common order passed on 26.02.2009 with a direction to the Opposite Parties to comply with the direction of the Hon’ble Apex Court. The Tribunal further directed the Opposite Parties to re-examine the available vacancies as on 02.10.1991 and after ascertainment of the same if the Petitioners make the grade in order of seniority then to issue appointment order in their favour. 6.3. It is found that the pursuant to the order passed by the Tribunal on 26.02.2009 under Annexure-19, the Opposite Party No.3 make a detailed exercise and found that no further vacancies exist as on the date of holding of the examination and accordingly held that it is not feasible to issue any appointment order in favour of the Petitioners. The order passed by the Opposite Party No.3 under Annexure-20 on 20.04.2009 when was assailed by the Petitioners before the Tribunal in O.A No.1327(C) of 2009, the Tribunal vide the impugned order dated 03.06.2014 did not entertain the prayer on the ground that the advertisement is of the year 1989 and the select list is of the year 1991. Page 19 of 22 6.4. This Court after going through the pleadings made and the materials available on record is of the opinion that by the time the written examination pursuant to the advertisement issued under Annexure-1 was held on 15.09.1991 and the typing test was held on 02.10.1991 with publication of the select list on 08.10.1991, the relevant recruitment rules was already amended vide notification dated 05.04.1991. As per the said amended provision more particularly Rule-12 of the amended rules, the validity of the select list is for a period of one year. Since in the instant case the select list was published on 08.10.1991, in view of the said provision contained under Rule-12 of the amended rules, the validity expires on 07.10.1992. Not only that the request made by the Opposite Party No.3 to extend the validity was rejected by the Opposite Party No.2 vide letter issued under Annexure-8. This Court finds no illegality or irregularity in the action of the Opposite Party No.2 in refusing to extend the validity of the select list. 7. It is also view of this Court that the Tribunal vide its order dated 26.02.2009 under Annexure-19 though Page 20 of 22 directed the Opposite Parties to comply the order passed by the Hon’ble Apex Court but directed the Opposite Parties to re-examine the available vacancies as on 02.10.1991. It is the view of this Court that the Opposite Party No.3 has rightly ascertained the position by holding that no further vacancy exist as on the date of holding the examination vide his order dated 20.04.2009 under Annexure-20. In any view of the matter, since the advertisement in question is issued on 13.09.1989 with publication of the select list on 08.10.1991, with efflux of time and subsequent recruitments undertaken by the Opposite Party No.3, the prayer as made in the Original Application in O.A No.1327(C) of 2009 was rightly not entertained by the Tribunal in its order dated 03.06.2014. 8. Accordingly, this Court is inclined to hold that the Tribunal has rightly passed the order on 03.06.2014 under Annexure-24 and it requires no interference by this Court in exercise of its power under Article-227 of the Constitution of India. Page 21 of 22 9. Both the Writ Petitions are accordingly dismissed. However, there shall be no order as to costs. JUDGE DR. B.R.SARANGI, J. I agree. …………….………….. B. P. SATAPATHY, JUDGE …………….………….. DR. B.R. SARANGI, Orissa High Court, Cuttack The 8th of February, 2023, Subrat Page 22 of 22