The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C)(OAC) No.991 of 2014 Amarbar Dhal …. Petitioner -versus- State of Odisha & Ors. …. Opposite Parties CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY ORDER 17.02.2023 Order No 09. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode.
Legal Reasoning
2. Heard Mr. R.K. Rout, learned counsel for the Petitioner and Mr. D.K. Mohanty, learned Addl. Standing Counsel appearing for the Opp. Parties. 3. This writ petition has been filed challenging the communication issued by the Govt. in the Home Department vide letter dtd.06.07.2013 under Annexure-13, wherein the prayer of the Petitioner to extend the benefit of the scale of pay applicable to the post of Assistant Section Officer from 28.09.2008 was rejected. 4. It is contended that the Petitioner took part in the selection process conducted by the Public Service Commission and his position was 871 in the merit list prepared in the year 1988. In spite of qualifying the test when the Petitioner was not provided with the appointment, he approached the Tribunal in O.A. No. 2088(C) of 1995. The said Original Application was disposed of along with a batch vide order dtd.16.01.1997 under Annexure-3. On the face of the said order when the claim of the Petitioner for his appointment // 2 // as Junior Assistant in Odisha Secretariat Service was denied vide letter issued under Annexure-4 on 28.02.1997, the Petitioner challenging the same once again approached the Tribunal in O.A. No. 1993(C) of 1997. 4.1. The Tribunal disposes of the matter in O.A. No. 1993 (C) of 1997 vide order at Annexure-5. The relevant portion of the order passed by the Tribunal on 23.06.2006 is quoted hereunder:- “Accordingly, the O.A. is allowed in the circumstances without cost. Annexure-5 communication dtd.28.02.1997 is hereby quashed. The respondents are directed to reconsider the case of the applicant and give him appointment in the post of Junior Assistant if necessary by creating a post of that cadre within six months from the date of receipt of a copy of this order.” 4.2. It is contended that instead of complying the order, the matter was challenged before this Court in W.P.(C) No. 6579 of 2008 and thereafter before the Hon’ble Apex Court in SLP(C) No. 719 of 2010. After failing in their attempt before this Court as well as Hon’ble Apex Court, the Petitioner was ultimately appointed as a Junior Assistant vide order issued on 12.09.2012 and consequential order issued on 06.10.2012 under Annexure-11 series. 4.3. Learned counsel for the Petitioner contended that even though the Petitioner had qualified the selection as against the post of Junior Assistant conducted by the Public Service Commission basing on which he was appointed vide order under Annexure-11, but by the time he was so appointed as a Junior Assistant in the Odisha Secretariat, the post of Junior Assistant was not in existence. It is contended that as per the resolution issued by the Page 2 of 6 // 3 // Govt. in the Home Department on 30.09.2008 under Annxure-8, the existing cadre of Junior Assistant and Senior Assistant was merged in the cadre of Assistant Section Officer and it was also resolved in the said resolution that the entry level in the Ministerial Service Cadre in the Secretariat shall be designated as Assistant Section Officer. 4.4. It is accordingly contended that in view of such resolution passed on 30.09.2008 under Annexure-8 the Petitioner should not have been appointed as Junior Assistant as the post of Junior Assistant was not in existence in terms of the resolution issued under Annexure-8. It is contended that the Petitioner instead should have been appointed as against the post of Assistant Section Officer which is the entry level post in the Ministerial Service Cadre as reflected in Annexure-8. 4.5. Mr. Rout further contended that after joining in his post in terms of the order passed under Annexure-11, the Petitioner moved an application before the Govt.-O.P. No. 1 on 21.01.2013 with a prayer to extend the benefit as applicable to the post of ASO w.e.f.28.09.2008. But the said prayer was rejected vide the impugned communication at Annexure-13. It is accordingly contended that in view of the resolution issued under Annexure-8 since there was no post of Junior Assistant available in the Odisha Secretariat Service and the entry level in the Ministerial Service Cadre is the post of Assistant Section Officer, the Petitioner should have been appointed as an Assistant Section Officer instead of appointing him as a Junior Assistant with lesser scale of pay. 5. Mr. D.K. Mohanty, learned ASC made his submission basing on the stand taken in the counter affidavit. It is contended that after Page 3 of 6 // 4 // dismissal of the SLP by the Hon’ble Apex Court and while complying the order passed by the Tribunal on 23.06.2006 one post of Junior Assistant was created by abolishing one post of Assistant Section Officer vide Home Department letter No. 26500 dtd.06.07.2012 and accordingly as against the said post of Junior Assistant the Petitioner was appointed. The stand taken by the O.P. No. 1 in Para 17 of the counter is reproduced hereunder:- “Meanwhile a new cadre of Assistant Section Officer (hereinafter referred to as “ASO”) was introduced into which the existing cadre of Junior Assistant & Section Assistant were merged vide Home Department Resolution No. 44874 dated 30.0-9.2008 (Annexure-8 of the Application). However, Home Department created one Junior Assistant post in Home Department in lieu of abolition of one post of ASO vide Home Department Letter No. 26500 dated 06.07.2012 in obedience to orders of learned OAT dated 23.06.2006, order dated 15.09.2008 of High Court and order dated 22.10.2010 of Hon’ble Supreme Court as per views of General Administrative & Public Grievance (hereinafter referred as “G.A. & P.G.”) Department and Law Department.” 5.1. Accordingly it is contended that the since the Petitioner had qualified as against the Post of Junior Assistant and the Tribunal in its order dtd.23.03.2006 had directed to provide him appointment as a Junior Assistant, the Petitioner was rightly appointed as against the said post by creating one post of Junior Assistant. Accordingly, Mr. Mohanty contended that the claim of the Petitioner has been rightly rejected vide Annexure-13 and it requires no interference of this Court. Page 4 of 6 // 5 // 6. Having heard learned counsel for the Parties and after going through the materials available on record, it is found that the Petitioner though was selected as against the post of Junior Assistant way back in the year 1988, but the Petitioner was never provided with such appointment on the face of the order passed by the Tribunal lastly on 23.06.2006 under Annexure-5. It is also
Decision
found from the record that by the time the Tribunal disposed of the matter with a direction to provide appointment to the Petitioner as against the post of Junior Assistant, the said post was in existence in the Odisha Secretariat Service Cadre. But in view of the resolution issued under Annexure-8, the Petitioner should not have been engaged as against the post of Junior Assistant as no post of Junior Assistant was there and the posts of Junior Assistant and Senior Assistant merged with the cadre of Assistant Section Officer from the date of issuance of the said resolution i.e.30.09.2008. 6.1. In view of the same and taking into account the fact that by the time the Petitioner was ultimately appointed vide order dtd.12.09.2012 and consequential order dtd.16.12.2012 there was no post of Junior Assistant available in the entry level of Odisha Secretariat Service, it is the view of this Court that O.P. No. 1 instead of creating one post of Junior Assistant by abolishing one post of Assistant Section Officer, should have appointed the Petitioner as against the post of Assistant Section Officer which is the entry level post in the Ministerial Service Cadre of the Odisha Secretariat. In view of the same, this Court is inclined to interfere with the impugned communication available at Annexure-13. While interfering with the same it is directed that the appointment of the Petitioner and his joining in service on 24.09.2012 be treated as against the post of Assistant Section Officer. This Court further Page 5 of 6 // 6 // directs the O.P. No. 1 to allow the scale of pay as available to the post of ASO w.e.f.24.09.2012 in favour of the Petitioner. Necessary order be passed by the O.P. No. 1 within a period of one month from the date of receipt of this order. Consequentially, the financial benefit shall also be extended in favour of the Petitioner within a further period of three (3) months. 14. The writ petition is disposed of with the aforesaid observation and direction. (Biraja Prasanna Satapathy) Judge Sneha Page 6 of 6