The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK WP(C) Nos. 18699 of 2015 Application under Articles 226 & 227 of Constitution of India. Bipra Charan Sahoo …. Petitioner --------------- -versus- State of Odisha and others …. Opp. Parties Advocate(s) appeared in these cases:- For Petitioner
Legal Reasoning
: Mr. R.K. Prusty, D. Das & M.L. Jena, Advocates. For Opp. Parties Vs. : Mr. B.P. Tripathy, (Additional Government Advocate) Mr. S. Mohanty, R.C. Panigrahi P.K. Samantray (For O.P. Nos. 3 & 4) D. Nanda, B.B. Mohapatra & B.K. Sahoo, Advocates (For opposite party No.5) __________________________________________________________ CORAM: JUSTICE SASHIKANTA MISHRA JUDGMENT 4th May, 2023 SASHIKANTA MISHRA, J. The petitioner, in the present writ application seeks the following relief:- Page 1 of 7 “It is therefore prayed that your lordship kindly be pleased to admit the present writ application, notice be issued, record be call for and after hearing, issue appropriate writ/writs directing the opposite party Nos. 1,2 and 5 to appoint or to promote the petitioner in the post of Junior assistant/Clerk. And/or any other appropriate order/orders direction/directions be passed or given which will be deem facts and fit according circumstances of the case. to And for this act kindness, the petitioner shall as in duty bound every pray.” 2. Bereft of unnecessary details, the case of the petitioner is that he was appointed as an Attendant in Botany in the Maharshi College of Natural Law, Bhubaneswar by order dated 27.08.1993 of the Principal (Opposite party No.5). Since he claims to have had the requisite qualification, he filed several applications/representations before the college authorities to promote/appoint him as Junior Clerk in the college. But, instead of considering his case, one Dibakar Nayak (Opposite Party No.3), who was working as Library Attendant were appointed as Junior Assistant. The said opposite party No.3 had also joined as a Laboratory Attendant in the department of Physics. One Sai Sankar Mohapatra was also appointed as a Clerk. On 08.05.2000, Page 2 of 7 a Departmental Promotion Committee (DPC) was held wherein the case of petitioner was not considered as there was no vacancy in the College for appointment of Junior Clerk/Sr. Clerk. However, on 15.02.2001 one Lala Sunil Kumar Ray (Opposite party No. 4) was appointed as Junior Assistant/Junior Clerk without holding DPC. The petitioner had approached this Court earlier in OJC No. 4072 of 2001, which was disposed of by order dated 19.06.2015 with direction to the Principal to consider the representations of the petitioner. The Opposite Party No.5 rejected the representation of the petitioner by order dated 22.09.2015 (enclosed as Annexure-10). It is further claimed that two clerical posts are lying vacant against which the petitioner can be appointed. 3. Of the opposite parties, only the Principal of college (Opposite party No.5) filed counter, refuting the averments made in the writ petition. Referring to the resolution of the DPC held on 08.05.2000, it is stated that the decision was taken to consider the case of the petitioner, if any recruitment process is initiated in future. Further, the petitioner’s services having been approved as Page 3 of 7 Attendant of Botany, he is receiving block grant and therefore, he has no right to claim further appointment to the post of Junior Clerk. Having accepted, the post of Attendant and being in receipt of block grant, he cannot claim appointment to any higher post. It is also stated that in case decision is taken to fill up clerical posts in future by way of promotion, the petitioner may make fresh application for consideration along with others. But as of now, he has no right for such post. 4. Heard Mr. R.K. Prusty, learned counsel for the petitioner, Mr. B.P. Tripathy, learned Additional Government Advocate for the State and Ms. D. Nanda, learned counsel for the opposite party No.5. 5. Mr. R.K. Prusty has argued that the petitioner was qualified for the post of Clerk from the very beginning and yet was appointed in a Class-IV post. He was further discriminated by the Management by giving appointment to the opposite party Nos. 3 and 4, both of whom are less qualified than him. Page 4 of 7 6. Ms. Nanda submits that the petitioner’s services as an Attendant in Botany have been approved and he is in receipt of block grant. While applying for block grant he is deemed to have waived his claim for appointment to any post other than the Attendant. 7. The facts of the case are not disputed. As it appears, the Management of College appointed/promoted Opposite Party Nos.3 and 4 as Junior Clerk/Junior Assistant. Nothing is forthcoming from the record to justify such appointments/promotion as in the DPC held on 08.05.2000 it was held that there is no vacancy in the post of Junior Clerk/Senior Clerk. If so, how could they be appointed/promoted? Notwithstanding the above, this Court is of the view that the petitioner has to stand on his own legs and cannot base his claim entirely on negative equality. Even assuming for the sake of argument that the appointment/promotion of Opposite Party Nos. 3 and 4 was not legally valid then the same cannot enure any benefit to the petitioner by claiming discrimination. It is stated at the cost of the repetition that the petitioner has to stand on the strength of his own case. Page 5 of 7 8. Viewed in the above background, it is seen that the petitioner having been appointed in the year 1993 has represented time and again for being appointed as a Junior Clerk. But as evident from a perusal of the impugned order under Annexre-10, he had claimed block grant from Government in 2009. His services were thus approved and block grant was released in the year 2009. Having accepted the same it is no longer open to the petitioner to re-agitate his claim for promotion to the higher post. This Court thus finds that the petitioner has no legal right to claim promotion/appointment to the post of Junior Clerk. Nevertheless, this Court observes that in the impugned order, it has been stated that he can be considered afresh for recruitment to Clerical post, if he so qualifies in the recruitment process, if initiated by the Management in future. 9. For the foregoing reason therefore, while not being inclined to grant the relief claimed by the petitioner,
Decision
the writ petition is disposed of directing the opposite party No. 5 to consider the case of the petitioner, if and when the Page 6 of 7 process of recruitment is undertaken for filling up any vacant Clerical posts. ..……..………………….. Sashikanta Mishra, Judge BHIGAL CHANDR A TUDU Digitally signed by BHIGAL CHANDRA TUDU Date: 2023.05.05 18:45:38 +05'30' Orissa High Court, Cuttack, The 4th May, 2023/ B.C. Tudu, Sr.Steno Page 7 of 7