The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.17508 of 2024 Chandra Sekhar Mishra …. Petitioner Mr. M. Banerjee, Advocate State of Odisha and Others -versus- …. Opposite Parties Mr. S. Jena, AGA CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY Order No. ORDER 16.08.2024 02. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode. 2. Instruction provided by the O.P. No.4 vide letter dated 08.08.2024 be kept in record.
Facts
3. Heard learned counsel for the parties. 4. Petitioner has filed the present Writ Petition inter alia with the following prayer:- that “In the above facts and circumstances, the aforementioned petitioner humbly prays this Hon’ble Court, may be graciously pleased to admit the writ petition, issue notice to the Opp. Parties to show- cause as to why the decision of the Commissioner-cum- Secretary to School and Mass Education Department of Government of Odisha (Opp. Party No.1) passed vide order No.14140/SME Dt.26.06.2024 vide Annexure-14 in rejecting the case of the petitioner for regularization against a single existing sanctioned vacancy post of Librarian at Radha Nath Institute of Advance Studies in Education, Cuttack shall not be declared as illegal and quashed. And as to why the petitioner’s service to the existing sanctioned single vacancy post of Librarian in // 2 // the RNIASE, Cuttack on the aforementioned facts and circumstances, shall not be regularized w.e.f. dtd.01.12.1993 along with all consequential benefits in the said institute in the interest of justice. And if the Opp. Parties fail to show-cause or show insufficient/irrelevant cause, this Hon’ble Court after hearing the parties may direct the appropriate authority to regularize the petitioner’s service to the existing sanctioned single vacancy post of Librarian in the said institute with effect from dtd.1.12.1993 along with all consequential benefits.” 5.
Legal Reasoning
there is no dispute that there is a vacant sanctioned post of Librarian available in the establishment of Opp. Party No.4, but claim of petitioner was rejected by O.P. No.1 on the ground that petitioner was appointed as against the post of Junior Clerk and while working as such he was promoted to the post of Senior Clerk. Claim of the petitioner was also rejected on the ground that petitioner since never was Page 3 of 6 // 4 // appointed as against the post of Librarian, he is not eligible and entitled to get the benefit of absorption as against the said post and also petitioner does not have requisites qualification. 5.5. Learned counsel for the petitioner contended that since petitioner w.e.f. 01.12.1993 is discharging the duty of Librarian and in the meantime on being allowed, he has obtained the qualification of Bachelor in Library and Information Science in the examination held in the month of March, 1995 vide Annexure-3 series, petitioner is eligible and entitled to get the benefit of absorption as against the post of Librarian, which is not only a sanctioned post, but the post is lying vacant w.e.f. 1.12.1993. It is accordingly contended that the impugned order is not sustainable in the eye of law and requires interference of this Court. 6. Even though notice of the Writ Petition has not been issued, but taking into account the fact that petitioner is at the fag end of his career, this Court when directed learned Addl. Govt. Advocate to obtain instruction on the issue, instruction provided by the O.P. No.4 was produced before this Court. Basing on the instruction, learned Addl. Govt. Advocate contended that petitioner is continuing as against the post of Librarian w.e.f. 01.12.1993 and the said post is a sanctioned one and lying vacant w.e.f. 01.12.1993. 6.1. However, it is contended that since petitioner is continuing as against the post of Senior Clerk after being promoted in the year 2004 from the post of Jr. Clerk, he is not eligible and entitled to get the benefit of absorption as against the post of Librarian, as the post of Librarian is not Page 4 of 6 // 5 // a promotional post to that of the post of Senior Clerk. It is also contended that petitioner since never was appointed as against the post of Librarian, his claim has been rightly rejected vide order under Annexure-14. 6.2. It is also contended in obedience to the order passed by the Tribunal in O.A. No.798(C) of 2007 under Annexure- 9, Director, TE and SCERT vide his letter dated 30.09.2009, directed Opp. Party No.4 that as and when post of Librarian will be filled up on regular basis, petitioner will be given a chance to face the interview. It is contended that in terms of the said direction issued by the Director, TE and SCERT, no regular selection as against the post of Librarian has been undertaken by O.P. No.4 till date. However, it is not disputed that the post of Librarian is a sanctioned one and lying vacant w.e.f. 01.12.1993. 7. Having heard learned counsel for the parties and considering the submissions made, this Court finds that petitioner was appointed as against the post of Junior Clerk on compassionate ground vide order of appointment issued on 28.05.1990 under Annexure-1 series. As found from the record, petitioner while so continuing, was allowed to discharge the duty of Librarian w.e.f. 01.12.1993 vide office order dated 30.11.1993 under Annexure-2. It is not disputed by either of the parties that w.e.f. 01.12.1993, petitioner is discharging the duty of Librarian as against a vacant sanctioned post. 7.1. It is also found from the record that while so continuing, petitioner was allowed to prosecute Bachelor in Library and Information Science vide office order dated Page 5 of 6 // 6 // 06.08.1994 under Annexure-3 series and petitioner also acquired the said qualification, result of which published on 20.09.1995 under Annexure-3 series. It is also found from the record that in terms of the order passed by the Tribunal in O.A. No.798(C) of 2021 though Director, TE and SCERT vide his letter dated 30.03.2009 directed Opp. Party No.4 to allow the petitioner to take part in the interview, as and when steps will be taken to fill up the post of Librarian on regular basis, but no such step has been taken as yet and petitioner is continuing as against the post of Librarian w.e.f. 1.12.1993 against a vacant sanctioned post along with the post of Sr. Clerk. 7.2. In view of the aforesaid analysis, this Court is of the view that since petitioner has acquired the required qualification to hold the post of Librarian and he is continuing as against the said post w.e.f. 1.12.1993 without any break and without being protected by any interim order passed by any Court of law, this Court while quashing the order dated 26.06.2024 under Annexure-14 directs O.P. No.1 to take steps to absorb the petitioner as against the post of Librarian and pass appropriate order in that regard, within a period of 2(two) months from the date of receipt of this order. However, such an order of absorption will be a prospective one. 8.
Arguments
Learned counsel for the petitioner contended that vide office order dated 28.05.1990 so issued by the O.P. No.4, petitioner was appointed as against the post of Junior Clerk-cum-Typist on rehabilitation ground. In terms of the said order, petitioner also joined as against the post of Junior Clerk-cum-Typist. While so continuing, vide office order dated 30.11.1993 under Annexure-2, petitioner was allowed to take over the detail charges of the Library until further orders w.e.f. 01.12.1993. 5.1. It is contended that since petitioner was allowed to take charge of the Library w.e.f. 1.12.1993 until further orders, petitioner vide office order dated 06.08.1994 under Annexure-3 series, was allowed to prosecute Bachelor in Library and Information Science. Petitioner also completed the said course successfully, certificate of which was issued on 20.09.1995 under Annexure-3 series. 5.2. Learned counsel for the petitioner contended that not only petitioner acquired the required qualification to hold the post of Librarian, but also w.e.f. 01.12.1993 he was allowed to continue in that capacity along with his original work of Junior Clerk. In the meantime, petitioner though was promoted to the rank of Senior Clerk vide office order Page 2 of 6 // 3 // dated 30.09.2004, but petitioner along with his original work since discharged the duty of Librarian w.e.f. 01.12.1993 and he also acquired the required qualification to hold the said post, he approached the Tribunal seeking his regularization as against the post of Librarian in O.A. No.798(C) of 2007 and with a further request to direct the Director, TE and SCERT, Odisha to approve the appointment of the petitioner as a Librarian. The original application was disposed of vide order dated 29.03.2007 under Annexure-9 with a direction to consider the claim of the petitioner. 5.3. However, on the face of his continuance as against the post of Librarian w.e.f. 01.12.1993 when no decision was taken, petitioner again approached this Court by filing W.P.(C) No.8344 of 2021 with a prayer to direct the Opp. Parties to regularize his services as against the post of Librarian w.e.f. 01.12.1993. 5.4. It is contended that the Writ Petition in W.P.(C) No.8344 of 2021 was disposed of by this Court vide order dated 24.03.2023 under Annexure-12 inter alia with a direction on the Opp. Party No.1 to take a decision on the claim of the petitioner. It is contended that even though
Decision
The Writ Petition is accordingly disposed of. Signature Not Verified Digitally Signed Signed by: BASUDEV SWAIN Designation: SR. STENO Reason: Authentication Location: High Court of Orissa, Cuttack Basudev Date: 22-Aug-2024 16:11:49 (Biraja Prasanna Satapathy) Judge Page 6 of 6