The High Court
Case Details
Order No. 02. IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.29743 of 2023 Sasmita Sahu @ Sahu Petitioner Ms.Saswati Mohapatra, Advocate …. -versus- State of Odisha and others …. Opposite Parties Mr. Saswat Das, A.G.A. CORAM: JUSTICE A.K. MOHAPATRA
Decision
ORDER 16.10.2023 1. This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode). 2. Heard learned counsel for the Petitioner as well as learned Additional Government Advocate. Perused the Writ Petition as well as the documents annexed thereto. 3. The present Writ Petition has been filed with the following prayer: “Under the aforesaid facts and circumstances, it is therefore prayed that this Hon’ble Court may graciously be pleased to: i) ii) quash the Order, dated 16.09.2022 under Annexure-7 and thereby direct the Opp.Party no.3 to engage the Petitioner against any contractual vacancies of Group ‘C’ and ‘D’ in terms of the order, passed by this Hon’ble Court in W.P.(C) No.8053 of 2012 for the interest of justice; pass such other order(s) or issue direction(s) as may be deemed fit and proper in the bona fide interest of justice;” 4. It is submitted by the learned counsel for the Petitioner that initially the Petitioner was appointed as a Constable in Nuapada district. Accordingly, she joined on 03.12.2002. While she was // 2 // continued in such post as Lady constable, she was discharged from service vide order dated 24.05.2003 on the ground that she has produced a fake HSC Certificate showing her age to be 18 years. Thereafter, a criminal case was instituted against her on the self same allegation for production of fake H.S.C. certificate under Sections 468,471, 420 of the Indian Penal Code, which was registered as G.R.Case No.131 of 2003 (Trial No.118 of 2004). Learned counsel for the Petitioner further contended that in the Criminal case vide judgment dated 24.05.2005 the Petitioner was acquitted from all the charges. Thereafter, the Petitioner again approached the authority to reinstate her in service. Since she was not reinstated, the Petitioner approached the State Administrative Tribunal, Cuttack bench, Cuttack in O.A.No.1815(C) of 2016. The said Original Application was dismissed by order dated 08.01.2012. Thereafter, the Petitioner preferred a Writ Petition bearing W.P.(C) No.8053 of 2012. A Division Bench of this Court vide order dated 27.06.2022 disposed of the Writ Petition by confirming the order passed in the Original Application by the State Administrative Tribunal. However, while disposing of the Writ Petition, the Division Bench observed that it is open for the Petitioner to approach the authority if she is so advised in accordance with law and in the event the Petitioner approaches the Opposite Parties by filing a representation, the same shall be considered and pass a speaking and reasoned order within three months. 5. After disposal of the aforesaid Writ Petition, the Petitioner approached the D.I.G., SWR, Koraput by filing a representation under Annexure-5 to the Writ Petition. Such representation was forwarded to the Superintendent of Police, Nuapada vide letter dated 01.08.2022 under Annexure-6. The Superintendent of Police, Nuapada vide impugned order dated 16.09.2022 under annexure-7 disposed of the // 3 // representation of the Petitioner by rejecting the prayer of the Petitioner for appointment against any Group C and D post, however, it has also been observed that the Petitioner was advised to appear in any recruitment test for any Group C contractual post as per her eligibility. 6. Learned counsel for the Petitioner at this juncture referring to the aforesaid three orders passed by the State Administrative Tribunal, thereafter, by the Division Bench and Superintendent of Police, Nuapada submitted that none of the authorities have considered the case of the Petitioner sympathetically. She further contended that so far fake certificate is concerned, the Petitioner has already been acquitted from the criminal case. Accordingly, she submitted that necessary direction be issued to the Opposite parties to give the Petitioner appointment against Group ‘C’ post. 7. Learned Additional Government Advocate on the other hand contended that after passing of the order in the Writ Petition by the Division Bench of this Court, it is no more open to pass any further order on the merits of the matter. He further contended that the issue of reinstatement in service of the Petitioner has attained finality with the dismissal of the Writ Petition by this Court. Therefore, there is no more open to consider the case of the Petitioner at this juncture. He further submitted that the representation filed by the Petitioner pursuant to the order passed by this Court has also been considered and rejected by the authorities. In such view of the matter, the Writ Petition is devoid of merit and the same is dismissed. 8. Having considered the submissions of the learned counsel for the respective parties and on a careful examination of the orders passed by the learned Tribunal as well as the Hon’ble Division bench of this Court and also order passed by the Superintendent of Police, Nuapada // 4 // on the representation of the Petitioner, this Court is of the considered view that with regard to payer for reinstatement of the Petitioner in service, the same has attained its finality. Therefore, this Court cannot interfere in the same and such a relief cannot be granted in the present Writ Petition. However, considering the observation made by the Hon’ble Division Bench vide their order dated 27.06.2022 granting liberty to the Petitioner to approach the authority by filing a representation. The Hon’ble Division Bench intended to give an opportunity to the Petitioner to apply for Group C post which shall be considered as per law by the authority by passing a speaking and reasoned order. Such an observation also indicates that the representation was to be considered with independent finding by the Tribunal so far the reinstatement of the Petitioner in service is concerned and in otherwise the Petitioner is to be considered along with similarly situated candidates in case any fresh recruitment is being made to any other post. Thereafter, the Petitioner approached the Opposite parties by filing a representation pursuant to the order passed by the Division bench. However, Superintendent of Police Nuapada while considering the application has rejected the same vide order dated 16.09.2022 under Annexure-7 with an observation that the undersigned is fairly inclined to consider the prayer for appointment against any Group ‘C’ post on a contractual basis as a matter of humanitarian point of view. However, in view of the provisions contained in G.A. department Notification dated 17.09.2013 such appointment cannot be made. It has also been observed that the Superintendent of Police, Nuapada has not vested with any discretionary power to give appointment against any Group C or Group D post on the basis of humanitarian grounds under his administrative control. Finally, the Superintendent of Police had advised the Petitioner to appear in recruitment tests for any Group C contractual post as per // 5 // her eligibility criteria. It appears that vide order dated 16.09.2022 under Annexure-7 Superintendent of Police, Nuapada although was inclined to consider the case of the petitioner on humanitarian ground but however, due to some legal constraint his application has not been considered. Learned counsel for the Petitioner further contended that the Petitioner has become overage in the meantime, therefore, she cannot apply for any such Group C post although she was selected and appointed in Group C post. This Court taking into consideration the fact that the Petitioner is a lady Constable and she has been punished enough and further keeping in view the observation made by the Division bench of this Court permits the Petitioner to approach the competent authority i.e. Government to consider her case for grant of relaxation for the upper age limit keeping in view the fact and circumstances of the present case. In such view of the matter, the Petitioner is directed to approach the Opposite Party no.1 by filing a detailed representation along with all supporting documents within a period of three weeks from today. In the event such a representation is filed, the Opposite Party No.1 shall consider the case of the Petitioner and pass necessary orders in accordance with law. In the event Opposite Party no.1 is of the view that the case of the Petitioner is a deserving one where the age relaxation should be granted then such relaxation be granted to the Petitioner and she may be permitted to participate in the recruitment test to any of the Group-C post. 9. With the aforesaid observation the Writ Petition stands disposed of. 10. Issue urgent certified copy of this order as per Rules. RKS ( A.K. Mohapatra ) Judge // 6 // Signature Not Verified Digitally Signed Signed by: RAMESH KUMAR SINGH Reason: Authentication Location: High Court of Orissa Date: 30-Oct-2023 10:46:45