The High Court
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IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.5838 of 2024 (Application under Articles 226 and 227 of the Constitution of India) A.F.R. Ashis Kumar Debta … Petitioner -versus- State of Odisha & others … Opposite Parties Advocates appeared in the case through hybrid mode: For Petitioner : Mr.H.S.Mishra, Advocate. -versus- For Opposite Parties : Mr. S.N.Patanaik, A.G.A --------------------------------------------------------------------------- CORAM: JUSTICE SASHIKANTA MISHRA 09.7.2024. JUDGMENT Sashikanta Mishra,J. The Petitioner has filed this Writ Petition seeking a direction to the Opposite Parties to consider W.P.(C) No. 5838 of 2024 Page 1 of 13 his case for promotion if he is otherwise eligible to the post of Accountant-cum-Data Entry Operator. 2. The brief facts of the case are that the Petitioner being appointed as Gram Rojgar Sevak (GRS) on 02.4.2013 under Gudelpali Gram Panchayat in the district of Bargarh has been working as such since then. The Government of Odisha in Panchayati Raj Department has recently framed a Rules called the Odisha Accountant-cum-Data Entry Operator (Method of Recruitment and Conditions of Service) Rules, 2024, which came into force on 27.2.2024. As per Rule 4 of the said Rules, 70% of the cadre strength is to be filled up by way of direct recruitment and 30% by means of selection of the eligible GRS engaged under MGNREGS Scheme. Further, Rule 10 provides as a one time measure by way of relaxation of the provisions of the Rules, that the GRS who have completed 5 years of continuous service on the date of commencement of the Rules shall be absorbed on regular basis subject to W.P.(C) No. 5838 of 2024 Page 2 of 13 fulfillment of other conditions and relaxation of upper age limit. 3. It is the case of the Petitioner that having completed five years of continuous service, he is eligible to be absorbed on regular basis against the vacant post of Accountant-cum-Data Entry Operator. However, he apprehends that his case would not be considered as a false vigilance case has been foisted against him purportedly on the direction of the Lokayuta, Odisha. As such, his case may not be considered by taking recourse to Clause (b) of Sub-rule (5) of Rule 10 of the 2024 Rules which provides for vigilance and criminal clearance as an eligibility condition. He has, therefore approached this Court in the present Writ Petition with the following prayer; “The Petitioner, above named, therefore prayed that in the facts and circumstances of the case stated above, this Hon’ble Court may graciously be pleased to issue notice to the Opposite Parties, directing them to show cause as to why the Writ Petition shall not be allowed. And if the Opposite Parties fail to show cause and/or cause shown to be insufficient in law as well as in the facts and circumstances of the case, the Hon’ble Court may please to allow this Writ Petition directing the Opp. Parties to consider the case of the is otherwise Petitioner for promotion found if he W.P.(C) No. 5838 of 2024 Page 3 of 13 ignoring eligible with his experience the pendency of Sambalpur Vigilance P.S. Case No.45/2021 till the conclusion of trial of the said case as per law laid down in W.P.(C) No.20342 of 2021 decided on 8.9.2023 by issuance or writs of appropriate writ particularly a writ of Mandamus.” 4. Counter affidavit has been filed by the State- Opposite Party No.1. It is stated that 2024 Rules were framed being approved by the cabinet to facilitate better, effective and timely regulation of official transactions, proper management, documentation of record and financial management of various schemes at grassroot level/Gram Panchayat level. As per the said rules, 30% of the sanctioned posts of Accountant- cum-Data Entry Operator shall be filled up by absorbing the eligible GRS following the procedure prescribed in Rule 10. As per Rule 10(5)(b) Vigilance and Criminal Case Clearance Report is a mandatory provision to define the eligibility of a GRS for his further selection to the post. Hence, pendency of a vigilance case against the Petitioner after duly being charge sheeted by the vigilance authorities will result in loss of eligibility for his selection to the post. After finalization of vigilance case, the Petitioner will be W.P.(C) No. 5838 of 2024 Page 4 of 13 definitely eligible for selection only if he is not found guilty by the vigilance Court. 5.
Legal Reasoning
Heard Mr. H.S.Mishra, learned counsel for the Petitioner and Mr. S.N.Patanaik, learned Addl. Government Advocate for the State. 6. Mr. Mishra argues that the vigilance case was foisted against the Petitioner falsely. He has not been held guilty in the said case as yet. He would further argue that mere pendency of a criminal case cannot be a bar for consideration of the Petitioner for absorption on regular basis as he has not been held guilty as yet. It would therefore, be opposed to the fundamental principles of criminal jurisprudence. Mr. Mishra also argues that the language employed in Clause (b) of Sub-rule (5) of Rule 10 is too vague and non-specific to be acted upon. Therefore, according to him, the petitioner’s right of consideration cannot be taken away. W.P.(C) No. 5838 of 2024 Page 5 of 13 7. Mr. S.N.Patanaik, on the other hand, would argue that the procedure for filling up the post lays down certain eligibility conditions, one of which is Vigilance and Criminal clearance report. Since the Petitioner has admittedly a vigilance case pending against him, his case cannot be considered in view of the provision under Rule 10(5)(b). 8. After hearing learned counsel for the parties, this Court deems it proper to first refer to the relevant Rules i.e. Rule-10, which reads as under; “10. Procedure for filling up of vacancies by way of Selection:- (1) A panel list of all eligible GRS shall be maintained at the District level (Zilla Parishad) basing upon their date of engagement. Candidates equal to vacancies arising in a year against 30% of the sanctioned strength of the Cadre shall be allowed to appear for recruitment through the Commission. In case suitable candidates are not available, the post shall remain vacant to be treated as carry forward vacancy for the next year. Provided that as a one time measure, by way of relaxing the provisions of this Rule, those GRS who have completed 5 (five) Years of continuous service on the date of commencement of this Rule, shall be absorbed on regular basis against vacant posts of Accountant-cum-Data Entry Operators subject to fulfillment of other conditions of service and relaxation of upper age limit, if required. Subsequent vacant posts created in the cadre of Acct-cum-DEO shall be filled up as per the provisions prescribed in the Rules. W.P.(C) No. 5838 of 2024 Page 6 of 13 (2) The Schedule and Syllabus for the selection of the eligible GRS to Acct-cum-DEO shall be as decided by the PR & DW Department, however the recruitment shall be conducted by the Commission. (3) A maximum of three chances shall be allowed to the GRS to pass the recruitment test. (4) The Recruitment test may be held once each Year, preferably during the month of December. (5) In order to be eligible for selection, the Selection Board constituted under Rule 11 for the purpose shall consider: (a) Satisfactory performance report of preceding 5 Years to be issued by the CDO-cum- Executive Officer on the recommendation of the BDO concerned. (b) Vigilance and Criminal clearance report.” 9. A bare reading of the Rules would suggest that ordinarily 30% of the sanctioned strength in the cadre shall be filled up by way of selection from the eligible GRS. However, as per the proviso to Sub-rule (1), as a one time measure, provision for absorption on regular basis of those GRS who have completed five years of continuous service has been made by way of relaxing the provisions of the Rules. This carves out an exception to the normal procedure i.e., by way of selection. W.P.(C) No. 5838 of 2024 Page 7 of 13 10. What is the intent and effect of a proviso is fairly well-settled by different pronouncements of the Supreme Court. In the case of Shah Bhojraj Kuverji Oil Mills and Ginning Factory vs. Subhash Ch. Yograj Sinha1, it was held as follows; “As a general rule, a proviso is added to an enactment to qualify or create an exception to what is in the enactment, and ordinarily, a proviso is not interpreted as stating a general rule.” Thus, proviso is an exception to the main enactment. It has been held that normal function of a proviso is to except something out of the enactment or to qualify something enacted therein which but for the proviso would be within the purview of the enactment. Reference in this regard may be had to the Judgment of the Supreme Court in the case of Kedarnath Jute Manufacturing Co. Ltd. vs. Commercial Tax Officer2. However, normally a proviso does not travel beyond the provision to which it is a proviso as held in