The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.2425 of 2024 Achyutananda Mishra State of Odisha and others -versus- …. Petitioner Mr.R.Rath, Advocate …. Opposite Parties Mr.N.K. Praharaj, A.G.A. CORAM: JUSTICE A.K. MOHAPATRA ORDER 06.02.2024 1. This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode). 2. Heard learned counsel for the Petitioner as well as learned Additional Government Advocate. Perused the writ application as well as the documents annexed thereto. 3. The Petitioner has filed the present writ application with the following prayer: Order No. 01. facilities “The petitioner therefore most respectfully prays that your lordships may be graciously pleased to admit this writ application and issue a Rule Nisi to the opposite parties to show cause as to why: the Opp. Parties shall not extend the benefit of i) O.C.S.( Pension) Rule, 1992 and the G.P.F. system contribution into consideration that their appointment to the post of Jr Clerk to the District Offices and its Subordinate offices under the Bolangir District was for the recruitment year pursuant to the advertisement as per Annexure 1. it shall not be held that the letter dtd 15.07.2011 ii) issued by Opp. Parties as per Annexure-8 is not applicable to the case of the petitioner and accordingly all the consequently service benefits be given to the petitioner. the petitioner taking to // 2 // iii) the opposite parties shall not implement the decision of the Govt. in Revenue and Disaster Management Deptt. dtd. 16.12.2008 as per Annexure 4 in letter and spirit with respect to the terms and conditions of advertisement and recruitment as has been done in case of the other selected candidates of the merit list as per Annexure 2 which includes pension and GPF considering his eligibility prior to the date 01.01. 2005. And On their failing to show cause or showing insufficient cause make the said Rule Nisi absolute. And
Legal Reasoning
Pass such other further order/orders as may be deemed fit and proper under the facts and circumstances of the case.” Learned counsel for the Petitioner at the outset submitted that 4. the Petitioner participated in the recruitment process for appointment to the post of Junior Clerk in the district Office of Balangir (Establishment Section) pursuant to an advertisement vide notification No.2370/Estt. Dated 01.06.1999, which was published in the news paper on 09.06.1999. The said advertisement sought for recruitment to the post of 65 Junior Clerk in the district Office. The Petitioner along with other eligible candidates participated in the recruitment process. Finally, a merit list of 22 candidates was drawn up on 06.12.1999. Along with the final merit list of 22 candidates, a list of 14 wait-listed candidates was also prepared simultaneously. In the list of wait-listed candidates, the name of the Petitioner finds place at serial No.2 that was published on 06.12.1999 by the Opposite Parties. 5. Learned counsel for the Petitioner at this juncture submitted that although 65 posts were advertised, only 22 persons were finally selected and a waiting list was prepared in respect of 14 candidates. The persons, whose names appeared in the final list of 22 selected // 3 // candidates were given appointment on 07.12.1999 under Annexure-3 to the writ application. So far the present Petitioner is concerned, his name was kept in wait list along with other similarly situated 13 candidates. Since vacancies were there and the Petitioner and similarly situated other persons were not given appointment, the Petitioner along with other similarly situated persons approached the learned Odisha Administrative Tribunal by filing O.A Nos.314, 315
Decision
& 316 of 2002, which were disposed of vide order dated 25.06.2007. Pursuant to the order passed by the learned Odisha Administrative Tribunal, the Petitioners were given appointment vide order dated 20.07.2009 under Annexure-5 to the writ application subject to the terms and conditions as were laid out in the initial advertisement of the year 1999. 6. While the matter stood thus, a dispute arose with regard to inclusion of the Petitioner under the OCS (Pension) Rules, 1992 and the G.P.F. Scheme of the Government. Since the Petitioner was appointed pursuant to the order under Annexure-5, he was not included in the old pension scheme of the Government by taking into consideration the amendment to the OCS (Pension) Rules in the year 2005. Being aggrieved by such conduct of the Opposite Parties, the Petitioner filed a representation to the Principal Secretary to Govt., Revenue & Disaster Management Dept. Odisha, BBSR on 02.11.2022 with copies to the Principal Secretary to Govt. Finance Dept., BBSR, Odisha and Collector and District Magistrate, Bolangir. Pursuant to the representation submitted by the Petitioner the under Secretary to Government, Revenue and Disaster Management Dept. vide his letter dated 21.03.2023 has sought for certain instructions from the Collector, Bolangir, however, no final // 4 // decision has been taken as of now. Learned counsel for the Petitioner also referred to letter dated 14.02.2023 under Annexure-12. On perusal of letter under Annexure-12 this Court found that the Additional District Magistrate, Balangir has written a letter to the Joint Secretary to Govt., R & D.M. Dept. forwarding the representation submitted by the petitioner and similarly situated other persons. 7. In course of his argument, learned counsel for the Petitioner further contended that one Dolaganjan Jal, whose name was there in the wait listed candidates along with the present Petitioner had approached the Tribunal in the year 2015 by filing O.A. No.884 of 2015. After abolition of the Tribunal, the matter was transferred to this Court and was re-registered as WPC(OA) No.884 of 2015. A coordinate Bench of this Court vide order dated 26.10.2022 disposed of the said writ application by granting liberty to the Petitioner to approach the Opposite Party No.1 by filing a fresh representation and the Opposite Party No.1 was further directed to consider the case of the above named Dolaganjan Jal by taking into consideration the judgment in Anand Dash vs. State of Odisha reported in 2014 ILR- CUT-459 and the order passed by the learned Odisha Administrative Tribunal in the case of Sabita Mohapatra (O.A. No.2501 of 2013, disposed of on 29.09.2014). In view of the aforesaid submission, learned counsel for the Petitioner submitted that the Opposite Parties be directed to consider the case of the Petitioner for inclusion of name of Petitioner under the old Pension Scheme and the G.P.F. 8. Learned Additional Government Advocate on the other hand contended that from the record it appears that the matter is pending before the Government for taking a final decision. He further referred // 5 // to letter dated 14.02.2023 under Annexure-12 and submitted that the Additional District Magistrate, Balangir has written a letter to the Revenue & Disaster Management Dept., Govt. of Odisha seeking instruction in the matter. He further submitted that awaiting instruction from the Govt., no final decision has been taken in the matter. In such view of the matter, learned Additional Government Advocate submitted that the Opposite Parties have not committed any illegality and that the writ application is premature. Accordingly, it was prayed that the writ application in the present form need not be entertained by this Court. 9. Having heard the learned counsels appearing for the respective parties and on a careful examination of the background facts as well as materials on record, this Court observed that there is no dispute with regard to the factual position of the case. It is only with regard to the inclusion of the Petitioner under the old Pension Schemes and the G.P.F. Scheme that a decision has to be taken by the competent authority. The case of the Petitioner in the present writ application is that they were appointed pursuant to the advertisement in the year 1999 although the order of appointment was issued in the year 2009 under Annexure-5 to the writ application, however, they are to be treated as appointed in the year 1999 as 65 vacancies were advertised to be filled up pursuant to said advertisement of the year 1999. 10. Learned counsel for the Petitioner further contended that it is not a case that there were no vacancies available when the advertisement was made for recruitment to the post of Junior Clerk. However, only 22 persons were appointed and the Petitioner and similarly situated other persons were kept in the waiting list. Learned counsel for the petitioner further contended that no fault can be found // 6 // with the Petitioner for not beeing appointed prior to 2005, i.e. in the year in which the amendment to the OCS (Pension) Rules took place. The Petitioners were appointed pursuant to the orders passed by the tribunal in series of O.As. filed by the persons, who were kept in the waiting list and were never given appointment till the Tribunal gave a direction to the Government. 11. In the aforesaid background, this Court deems it proper to dispose of the Writ Petition at the stage of admission by directing the Government to take a final decision on the representation of the petitioner under Annexure-9, which has been duly forwarded to the Revenue and Disaster Management, Dept. by the Additional District Magistrate, Balangir vide letter dated 14.02.2023 under Annexure- 12. The representation of the Petitioner shall be considered keeping in view the law laid down by this Court in Anand Dash’s case (supra) & Sabita Mohapatra’s case (supra) within a period of eight weeks from the date of communication of certified copy of this order. The Opposite Party No.1 shall do well to consider of the case of the petitioner in terms of the aforesaid judgments and shall dispose of the same by passing a speaking and reasoned order. The final decision taken by the Opposite Party No.1 be communicated to the Petitioner within ten days from the date of taking such decision. 12. With the aforesaid observation and direction, the writ application stands disposed of. 13. Issue urgent certified copy of this order as per Rules. ( A.K. Mohapatra ) Judge Anil Signature Not Verified Digitally Signed Signed by: ANIL KUMAR SAHOO Reason: Authentication Location: High Court of Orissa Date: 10-Feb-2024 11:59:58