The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.6871 of 2018 Petitioner Dayanidhi Bag …. Mr. B.B. Mohanty, Advocate State of Odisha & Others -versus- …. Opposite Parties Mr. S. Rath, ASC Mr. S. Jena, Advocate for O.P.5 CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY ORDER 27.07.2023 Order No. 02. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode.
Legal Reasoning
2. Heard Mr.B.B. Mohanty, learned counsel for the Petitioner, Mr. S. Rath, learned Addl. Standing Counsel for the State along with Ms. S. Jena, learned counsel appearing for Opposite Party No.5. 3. The present Writ Petition has been filed challenging the order dated 04.10.2017 so passed by Opposite Party No.3 under Annexure-6. 4. Learned counsel for the Petitioner contended that pursuant to the advertisement issued by the Director, Technical Education and Training, Odisha, Cuttack on 17.04.2006, the Petitioner and private Opposite Party No.5 duly participated in the selection process and the // 2 // Petitioner on being found suitable, he was issued with the order of appointment vide order dated 09.08.2006 so issued by Opposite Party No.2 i.e. the appointing authority. 4.1. It is contended that pursuant to the said order, the Petitioner joined as an Electrician in the establishment of Opposite Party No.4. 4.2. It is contended that Opposite Party No.5 who was also an aspirant for the said post, without challenging the selection and appointment of the Petitioner vide order dated 09.08.2006, approached this Court for the first time in W.P.(C) No.18648 of 2009 inter alia with the following prayer:- “i) To declares the Respondent No.5 as illegal and arbitrary. ii) To direct the respondents to appoint the Applicant as ATO (Electrician) in ITI Bhawanipatna. To direct the Respondent to grant all financial iii) and consequential benefits from 7.9.06 i.e. from the date when the respondent no.5 was appointed. And pass such other order/orders as may be iv) deemed fit and proper for the interest of justice”. The said writ petition was disposed of without accepting the prayer and with an observation that the representation filed by Opposite Party No.5 shall be
Decision
disposed of as expeditiously as possible by Opposite Party No.3- Collector, Bhawanipatna. Page 2 of 6 // 3 // 4.3. It is contended by the learned counsel for the Petitioner that since the post in question was a civil post, at the relevant point of time, this Court had no jurisdiction to entertain such application. It is the State Administrative Tribunal who was competent to take up the issue in terms of Section-19 of the Administrative Tribunal Act, 1985. However, on the face of the order passed on 11.12.2009 in W.P.(C) No.18648 of 2009, when no action was taken, the private Opposite Party No.5 without taking steps for compliance of the order, once again approached this Court in W.P.(C) No.3970 of 2017. This Court once again vide order dated 16.03.2017 disposed of the writ petition by directing the self-same Collector, Kalahandi, Opposite Party No.3 to take a decision on the claim of Opposite Party No.5. 4.4. Learned counsel for the Petitioner contended that basing on the order passed by this Court on 16.03.2017 in W.P.(C) No.3970 of 2017, Opposite Party No.3 took up the issue though was not competent to decide the claim of the Petitioner vis-à-vis Opposite Party No.5. But Opposite Party No.3 when passed an order by holding that Opposite Party No.5 had an edge over the present petitioner with regard to the selection made in the year 2006 vide order dated 04.10.2017, the same has been challenged by the petitioner in the present writ petition. 4.5. Learned counsel for the Petitioner contended that pursuant to the advertisement issued by Opposite Party Page 3 of 6 // 4 // No.2 on 17.04.2006, the Petitioner was duly and selected as an Electrician vide order dated 09.08.2006. The said order of appointment was never challenged by the private Opposite Party No.5 before any Court and only in the year 2009, he approached this Court and this Court without acceding to the prayer only directed the Opposite Party No.3 to consider the representation of the petitioner. When that order was not complied, the Petitioner without taking any further step as provided under law, once again approached this Court in W.P.(C) No.3970 of 2017. This Court when directed Opposite Party No.3 to take a decision on the claim of Opposite Party No.5, the impugned order was passed by holding that Opposite Party No.5 has an edge over the petitioner with regard to the selection so made in the year 2006. 4.6. Learned counsel for the Petitioner contended that Opposite Party No.3 has no authority to go into the issue as the advertisement-in-question was issued by Opposite Party No.2 and order of appointment was also issued by Opposite Party No.2 on 09.08.2006 under Annexure-1. Accordingly, it is contended that the impugned order is not sustainable in the eye of law. It is also contended that during pendency of the matter the Petitioner has already been regularized vide order dated 25.06.2016 and the Petitioner is continuing as a regular employee. Page 4 of 6 // 5 // 5. Mr. S. Rath, learned Addl. Standing Counsel though made his submission basing on the stand taken in the counter affidavit so filed by Opposite Party Nos.1, 2 and 4, but fairly submitted that since the advertisement was issued by the Opposite Party No.2 and the order of appointment was issued by the self-same Opposite Party No.2, Opposite Party No.3 has no role to play with regard to the selection and appointment of the Petitioner vis-à- vis Opposite Party No.5. It is also contended that the selection and appointment of the Petitioner as made vide order dated 09.08.2006 was never challenged by Opposite Party No.5. 6. Ms. S. Jena, learned counsel appearing for Opposite Party No.5 also contended that the order of appointment so issued in favour of the Petitioner on 09.08.2006 was never challenged by Opposite Party No.5 and this Court in W.P.(C) No.18648 of 2009 as well as W.P.(C) No.3970 of 2017 only directed Opposite Party No.3 to take a decision on the claim of Opposite Party No.5. 7. Having heard learned counsel for the Parties and taking into account the fact that the Petitioner was duly selected and appointed in terms of an advertisement issued by Opposite Party No.2 and the said order of appointment since was never challenged by Opposite Party No.5 at any point of time, it is the view of this Court that Opposite Party No.3 should not have passed the impugned order dated 04.10.2017 by holding that private Page 5 of 6 // 6 // Opposite Party No.5 has an edge over the Petitioner with regard to the selection. Therefore, this Court is inclined to quash the order dated 04.10.2017 so issued by Opposite Party No.3 under Annexure-6 and quash the same. 8. The Writ Petition is accordingly disposed of. (Biraja Prasanna Satapathy) Judge Subrat Signature Not Verified Digitally Signed Signed by: SUBRAT KUMAR BARIK Reason: .. Location: HIGH COURT OF ORISSA, CUTTACK Date: 31-Jul-2023 19:47:00 Page 6 of 6