The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) (OAC) No.4122 of 2010 Sanjeeb Kumar Patnaik …. Petitioner Mr. A.K. Hota, Advocate State of Odisha & Others -versus- …. Opposite Parties Mr. S.K. Samal, AGA CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY ORDER 02.11.2023 Order No. 11. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode.
Legal Reasoning
2. Heard Mr. A.K. Hota, learned counsel for the Petitioner and Mr. S.K. Samal, learned Addl. Government Advocate for the State-Opposite Parties. 3. The present Writ Petition has been filed by the Petitioner inter alia with the following prayer:- “i) The Hon’ble Tribunal be graciously pleased to direct the competent respondents to grant all the service and financial benefits to the Fifth selected candidate (Applicant) at par with sixth selected candidate Sri Niranjan Guru who joined the Govt. service in October, 1997, as per Annexure-4; and ii) The Hon’ble Tribunal may be pleased to observe and declare that the New Pension Scheme effect from 2005 is not applicable to the applicant as the applicant is entitled to get all the service and financial benefits from October, 1997 at par with Sri Niranjan Guru, the sixth candidate; And iii) The Hon’ble Tribunal be pleased to direct the authorities to grant and release the arrear salary and allowances deducting the wages applicant received during 206.1997 to 7.11.2007; And // 2 // iv) The Hon’ble Tribunal be pleased to pass such other order as deem fit and proper in the fact and circumstances of the case; And for this act of kindness, the applicant as in duty bound shall ever pray”. 4. It is contended that pursuant to the selection process initiated by the Collector, Boudh, the present Petitioner along with seven others were found eligible to get the benefit of appointment as against the post of Driver vide Office Order dtd.15.10.1995 under Annexure-1. 4.1. It is contended that Petitioner though was placed at Sl. No.5 of the said select list, but instead of providing him appointment as against the regular post of Driver, person placed at Sl. No.6 namely Niranjan Guru, the present Opposite Party No.9 was provided with regular appointment vide order dtd.06.10.1997 under Annexure-4. 4.2. Learned counsel for the Petitioner contended that prior to providing such appointment to Opposite Party No.9, Petitioner vide letter dtd.08.07.1996 and subsequent letter dtd.20.07.1996 issued under Annexures-2 & 3 was directed to appear before the Divisional Forest Officer, Boudh Territorial Division- Opposite Party No.8 for his engagement as a Driver on daily wages basis. 4.3. It is contended that pursuant to the said direction issued under Annexures-2 & 3, Petitioner though was engaged as a driver on daily wages basis but since person Page 2 of 6 // 3 // placed at Sl. No.6 of the select list was provided with regular appointment vide order dtd.06.10.1997, Petitioner is eligible and entitled to get similar benefit of regular appointment from the date, private Opposite Party No.9 was so extended with the benefit. 4.4. Learned counsel for the Petitioner further contended that when the Petitioner was not appointed on regular basis, he approached the Tribunal in O.A No.3865(C)/1997 & subsequently in O.A. No.186(C) of 2004. The Tribunal vide a common order passed on 11.07.2007 under Annexure-5, while disposing both the matters directed Opposite Party Nos.7 & 8 (Respondent Nos.4 & 6 in O.A) to fill up the vacant post of driver in the office of Opposite Party No.8 and appoint the Petitioner against the said vacancy. Petitioner in compliance to that order was appointed on regular basis vide office order dtd.07.11.2007 under Annexure-6. 4.5. It is contended that Petitioner though was placed above private Opposite Party No.9 in the select list but he was appointed on regular basis only vide order dtd.07.11.2007 under Annexure-6, whereas the private Opposite Party No.9 though was placed at Sl. No.6, he was provided with regular appointment vide order dtd.06.10.1997 under Annexure-4. Petitioner is therefore eligible and entitled to get the benefit of regular appointment from the date, Opposite Party No.9 got such benefit vide order dtd.06.10.1997. Page 3 of 6 // 4 // 5. Mr. S.K. Samal, learned Addl. Government Advocate for the State on the other hand made his submission basing on the stand taken in the counter affidavit so filed by the Opposite Party Nos.5 and 6 and additional counter affidavit filed by Opposite Party No.6. 5.1. Placing reliance on the stand taken in the counter affidavit and additional counter affidavit, learned Addl. Government Advocate contended that pursuant to the selection process initiated by the Collector and District Magistrate, Boudh, Opposite Party No.6 Petitioner though was placed above Opposite Party No.9 in the select list so issued under Annexure-1, but the Petitioner was sponsored for his engagement as a daily wages driver to DFO, Boudh, Opposite Party No.8 as there was no vacancy available as against the regular post of driver. Petitioner vide letter issued under Annexures-2 & 3 was directed to appear before Opposite Party No.8 for his engagement as a driver on daily wages basis. Pursuant to such direction issue under Annexures-2 & 3, Petitioner not only appeared before Opposite Party No.8, but also got himself engaged as a driver on daily wages basis. 5.2. It is contended that the Petitioner though approached the Tribunal in O.A No.3865(C)/1997 & O.A. No.186(C) of 2004, but in neither of the Original Applications, Petitioner raised any claim to get the benefit of regular appointment from the date Opposite Party No.9 get similar benefit vide order under Annexure-4. Page 4 of 6 // 5 // 5.3. It is contended that since it is never the prayer of the Petitioner in both the Original Applications so filed before the Tribunal to get the benefit as has been made in the present writ petition, the prayer as made is not entertainable. 5.4. It is also contended that pursuant to the common order passed by the Tribunal under Annexure-5, Petitioner was appointed on regular basis vide order dtd.07.11.2007 under Annexure-6. 5.5. It is accordingly contended that since it is the never the case of the Petitioner to get the benefit of regular appointment from the date private Opposite Party No.9 get similar benefits, the prayer as made in the writ petition is misconceived. 6. Having heard learned counsel appearing for the Parties and after going through the materials available on record, this Court finds that even though in the select list published under Annexure-1, Petitioner was placed at Sl. No.5 and private Opposite Party No.9 was placed at Sl. No.6, but Opposite Party No.9 was appointed on regular basis vide order dtd.06.10.1997 under Annexure-4. Petitioner instead was sponsored the office of Opposite Party No.8 for his engagement on daily wages basis as a driver. Petitioner at no point of time disputed such direction and instead got himself engaged as a driver on daily wages basis. Not only that even after being engaged as a driver on daily wages basis with full knowledge that Page 5 of 6 // 6 // Opposite Party No.9 got the benefit of regular appointment vide order dtd.06.10.1997, Petitioner in both the Original Applications so filed by him before the Tribunal never raised a claim that he should get the benefit of regular appointment from the date private Opposite Party No.9 was so appointed. 6.1. In view of such stand taken by the Petitioner in both the Original Applications before the Tribunal, it is the view of this Court that the Petitioner cannot raise the claim to the get the benefit of regular appointment from the date Opposite Party No.9 got similar benefit in the present writ petition. It is also found that the order passed by the Tribunal under Annexure-5 was never assailed by the Petitioner. Instead pursuant to the order passed by the Tribunal the Petitioner was appointed on regular basis vide order dtd.07.11.2007 under Annexure-6. 7. In view of such position, this Court is not inclined to entertain the prayer as made in the Writ Petition and
Decision
dismiss the writ petition. (Biraja Prasanna Satapathy) Judge Subrat Signature Not Verified Digitally Signed Signed by: SUBRAT KUMAR BARIK Designation: Personal Assistant Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 03-Nov-2023 11:53:54 Page 6 of 6