The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK WPC(OAC) NO.525 of 2016 (In the matter of application under Section 19 of the Administrative Tribunal’s Act, 1985). Sarita Dei … Petitioner -versus- State of Odisha and Others … Opposite Parties For Petitioner : Mr. B.K.Pattnaik,Advocate For Opposite Parties : Mr. S.S. Pradhan, AGA CORAM: JUSTICE G. SATAPATHY DATE OF HEARING :26.04.2023 DATE OF JUDGMENT :19.05.2023 G. Satapathy, J. The applicant-Petitioner Sarita Dei in O.A.No. 525 (C) of 2016 which is re-numbered as WPC(OAC) No. 525 of 2016 after abolition of Odisha Administrative Tribunal has sought for to quash the order dated 10.10.2015 passed by the WPC(OAC) No.525 of 2016 Page 1 of 13 Superintendent Engineer, Cuttack(R & B) Circle at annexure-1 whereby the representation of the applicant-Petitioner for appointment to the post of Clerk-G was rejected and further consequential relief to direct the Respondents-Opposite Parties to consider her case for appointment to the post for which she is eligible according to her education and training qualification. 2.
Legal Reasoning
The background facts are that the Petitioner completed the course of Apprentice training in Clerk- G in the Office of Executive Engineer R & B Division, Jagatsinghpur (O.P. No.3) during the period of 30.02.1989 to 12.02.1990. According to the Petitioner, after completion of training, although she was eligible for an appointment as Clerk, but her application was not considered and she went on representing to the authority for consideration of her case to the said post, but invain and finally she approached the tribunal in O.A. No.2147(C) of 2015 WPC(OAC) No.525 of 2016 Page 2 of 13 which was disposed of on 17.08.2015 with direction to O.P. Nos. 2 and 3 to consider her grievance by treating the contents of O.A. and its annexure as her representation and dispose of the same within a period of 45 days from the date of receipt of the copy of the aforesaid order, but O.P. No.2 by way of his Office order No.180/2015/1799 dated 10.10.2015 at
Decision
annexure-1 disposed of her representation by rejecting it and the Petitioner, thereby, again approached the tribunal in the present OA which was transferred to the High Court after abolition of the tribunal in the present case. 3. In the course of hearing of the present case, Mr. B.K. Pattnaik, learned counsel for the Petitioner submits that although the Petitioner was eligible to be absorbed as Clerk-G on completion of her Apprentice training in the establishment of O.P. No.2, but without any rhyme and reason, the case of the Petitioner was not considered for a substantial long period despite the Petitioner having made numerous representation. Mr. WPC(OAC) No.525 of 2016 Page 3 of 13 B.K. Pattnaik, by referring to the representation made by the Petitioner at annexure-3 series and the letter of Director of Apprentice training/Central Apprentice Advertiser/Secretary Central Apprentice counsel at annexure-6 submits that O.P. No.2 ought to have considered the case of the Petitioner for her absorption to a post for which she was eligible, but the Opposite Parties arbitrarily had not considered the case of the Petitioner. It is further submitted that one similarly situated candidate namely Anjali Barik had been extended the benefit of appointment as a tracer by an order of Division Bench of this Court in WP(C) No.19849 of 2011, but the present Petitioner has been deprived of her right to be observed for any post commensurate to her eligibility. In summing up his argument, learned counsel for the Petitioner has also relied upon the judgment of Apex Court in U.P. State of Road Transport Corporation and another Vrs. U.P. Parivahan Nigam Shishukhs Berozgar Sangh WPC(OAC) No.525 of 2016 Page 4 of 13 and others; JT 1995 (2) S.C.26 to extend the benefit of appointment to the Petitioner. 4. On the other hand, Mr. S.S. Pradhan, learned AGA, however, has refuted the contention of the Petitioner by submitting inter-alia that the Petitioner has not been able to qualify as to under what provision she is entitled for an appointment to a post in the establishment of O.P. Nos.2 and 3. It is also submitted by the learned AGA that the facts of the case of Anjali Barik is not the same in the case of Petitioner because the Petitioner was never diligent in applying for the post or approaching the tribunal in time. It is also submitted by the learned AGA that the Petitioner has not been able to clarify as to the basis of her claim and it is also not found from the materials on record as to whether the Petitioner had applied to O.P.Nos.2 and 3 for a post in their establishment. Learned AGA also emphatically WPC(OAC) No.525 of 2016 Page 5 of 13 submits that the decision in UPSRTC(Supra)is not applicable to the case of the Petitioner. 5. From the admitted averments made by the Petitioner in Original Application, it would disclose that she had undergone a course of apprentice training in Clerk-G in the Office of O.P. No.3 w.e.f. 13.02.1989 to 12.02.1990 and she was eligible to be appointed as Clerk, but her application was not considered. Neither the date of application made by the Petitioner to any authority was pleaded in the O.A. nor was any copy of such application annexed in the Original Application. On the other hand, it is stated by the Petitioner that she had gone on representing vide annexure-3 series which are stated to be photo copies of some representations without any proof of delivery of such representations to any authority and it appears to the Court that these documents are perhaps created to explain the delay and laches of the Petitioner. Additionally, when the WPC(OAC) No.525 of 2016 Page 6 of 13 Petitioner could approach the tribunal in the year 2015 for non-consideration of her case, but what prevented her not to approach any authority or tribunal for non-consideration of her representation made by her during 20.04.1990 to 01.03.2003 till 2015 when she filed O.A. No.2147(C) of 2015 before the tribunal. Besides, O.P. No.2 by way of annexure-1 had rejected the representation of the Petitioner after taking into consideration her case. 6. According to the Petitioner, she had completed her apprentice training in the year 1990, but she approached the tribunal for the first time in the year 2015 after 25 years of accrual of cause of action to her, but she had utterly failed to explain satisfactorily the delay in approaching the tribunal/Court. Delay is genus to which laches and acquiescence are species, but laches invites principle of estoppels which precludes a party from asserting something contrary to what is implied by a previous WPC(OAC) No.525 of 2016 Page 7 of 13 action or statement of that person. In this case, the Petitioner having approached the Court/Tribunal after a gap of 25 years itself negates her case on the ground of delay and laches. Law has been well settled in this regard in UNION OF INDIA AND OTHERS VRS. N. MURUGESAN AND OTHERS; (2022) 2 SCC 25, wherein the Apex Court at Paragrap-22 has held under:- it would also “22. Two essential factors to be seen are the length of the delay and the nature of acts done during the interval. As stated, involve acquiescence on the part of the party approaching the Court apart from the change in position in the interregnum. Therefore, it would be unjustifiable for a Court of equity to confer a remedy on a party who knocks its doors when his acts would indicate a weaver of such right. By his conduct, he has put the other party in a particular position, and therefore, it would be unreasonable to facilitate a challenge before the Court. Thus, a main responsible for his conduct on equity is not expected to be allowed to avail a remedy.” WPC(OAC) No.525 of 2016 Page 8 of 13 Similarly, in GOVERNMENT OF WB VRS. TARUN K.ROY AND OTHERS; (2004) 1 SCC 347, a three Judge Bench of the Apex Court has held that:- “The Respondents furthermore are not even entitled to any relief on the ground of gross delay and laches on their part in filing the writ petition.” 7. Examining the case of the Petitioner on another angel, Sub Section-1 to Section-22 of the Apprentice Act, 1961(In short “Act”) which was incorporated by way of amendment on 22.12.2014, makes it clear that every employer shall formulate its own policy for recruiting any apprentice who has completed the period of apprentice training in his establishment, but the Petitioner could not brought to the notice of the Court that the O.Ps have in fact any policy to absorb the apprentice. It is, however, clear that before amendment, Section-22(1) of the Act stipulates that it shall not be obligatory on the part of WPC(OAC) No.525 of 2016 Page 9 of 13 the employer to offer any employment to any apprentice who has completed the period of his apprenticeship training in his establishment, nor shall it be obligatory on the part of the apprentice to accept any employment under the employer. It is not disputed that the Applicant-Petitioner had approached the tribunal for the first time at the age of 47 years and that too, in absence of any proof of applying to the concerned authority, but in any way, the Petitioner would be over-aged even after grant of age relaxation as admissible to her as per the observation of the decision relied on by the Petitioner in UPSRTC(Supra) wherein the Apex Court at paragraph-12(3) has been pleased to observe as under: “12(3). If age bar would come in the way of the trainee, the same would be relaxed in accordance with what is stated in this regard, if any, in the concerned service rule. If the service rule be silent on this aspect, WPC(OAC) No.525 of 2016 Page 10 of 13 relaxation to the extent of the period for which the apprentice had undergone training would be given.” Besides, right now the Petitioner would be aged about 55 years which in any way would be against the Petitioner for her absorption in any post in the establishment of O.P.Nos. 2 and 3. Although it is claimed on behalf of the Petitioner that in view of the absorption of one Anjali Barik in the establishment of Chief Engineer, National Highway, Orissa, she is entitled to the relief claimed, but the facts of that case having not pleaded/disclosed precisely by the Petitioner to show her to be similarly situated with Anjali Barik, this Court does not feel it appropriate to extend the benefit to the Petitioner. In the provisional counter filed by the Respondents (OPs), it is claimed that the decision of Apex Court in UPSRTC(Supra) is not applicable to the Petitioner in this case since the Office imparted only practical training to the Petitioner as trainee, but not for WPC(OAC) No.525 of 2016 Page 11 of 13 appointment in the Office which was never denied by the Petitioner by filing any rejoinder to above claim of the Respondents-OPs. Further, the Respondents-OPs have not been able to clarify as to how the principles laid down by Apex Court in UPSRTC(Supra) would be applicable to her case to be absorbed to the post of Clerk-G in the establishment of the Respondents- OPs, when she is not only negligent in applying for the post, but also clearly at fault for approaching the tribunal after a long delay of 25 years and more particularly, when she is aged about 55 years at present. 8. In view of the above admitted facts and taking into consideration the claim of the Petitioner after 25 years without any proper and valid explanation of delay in approaching the tribunal to assert her claim which is, of course, subject to further scrutiny and keeping in view the rejection of the representation of the Petitioner by the authority on WPC(OAC) No.525 of 2016 Page 12 of 13 10.10.2015 and above all the age of the Petitioner being much beyond the age bar even after relaxation and the Petitioner having not been able to establish to have applied to the authority for consideration of her case immediately after her completion of apprentice training or within a reasonable period thereafter, the claim of the Petitioner not only suffers from delay and laches, but also merits no consideration. 9. In the result, the WPC(OAC) sans any merit, stands dismissed on contest, but in the circumstance there is no order as to costs. (G. Satapathy) Judge Signature Not Verified Digitally Signed Signed by: PRIYAJIT SAHOO Designation: Jr. Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA Date: 20-May-2023 16:10:55 Orissa High Court, Cuttack, Dated the 19th of May, 2023/Priyajit WPC(OAC) No.525 of 2016 Page 13 of 13