The High Court
Case Details
Order No. 03. IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.33636 of 2023 Sudhiranjan Sahoo …. Petitioner Mr. Mr. B. Routray, Sr. Advocate along with Mr. S. Sekhar, Advocate -versus- State of Odisha and others …. Opposite Parties Mr. N.K. Praharaj, AGA CORAM: JUSTICE A.K. MOHAPATRA ORDER 12.03.2024 1. This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode). 2. Heard, learned Senior Counsel for the Petitioner and learned Additional Government Advocate for the State-Opposite Parties. 3. Perused the writ application as well as document annexures. The present writ application has been filed in the following prayer; “It is therefore, most humbly prayed that this Hon'ble Court be graciously pleased to:- i) Admit the writ application. ii) Call for the record. iii) Issue Rule NISI calling upon the Opp. Parties more particularly Opp. Party No.2 to show cause as to why the impugned order // 2 // dated 30.09.2023 under Annexure-10, the Advertisement and dated Addendum dated 05.04.2023 in so far as the post of Jr. Assistant under Annexure-11 series 24.02.2023 is concerned shall not be quashed. iv) If the opp. Parties fails to show cause or show in sufficient cause issue writ in the nature of certiorari or any other writ/writs, direction/directions, order/orders by quashing the impugned order dated 30.09.2023 under dated Annexure-10, 24.02.2023 and Addendum dated 05.04.2023 under Annexure-11 series in so far as the post of Jr. Assistant is concerned. the Advertisement v) Issue a writ in the nature of mandamus or any other writ/writs direction/directions directing the opp. Parties to appoint the petitioner as Junior Assistant against the vacancies caused due to non-joining of the the selected advertisement under Annexure:1 within a reasonable time to be fixed by this Hon’ble Court. candidates pursuant to vi) And/or pass such other order/orders, direction/directions as this Hon’ble Court may deems fit and proper for the ends of justice.” 4.
Legal Reasoning
The factual background leading to the filing of the present writ application, in short, is that on 28.12.2018 an advertisement was issued by Odisha Sub-Ordinate Staff Selection Commission-Opposite Party No.2 for recruitment to the post of Junior Assistant in different district offices and establishments. Accordingly, the process of selection commenced. Finally on 28.04.2021, the master merit list was published. The candidates who were found eligible as against the // 3 // advertised vacancies were given appointment. However, some of the selected candidates did not join, as a result of which some posts were still lying vacant due to non-joining of the selected candidates. The grievance of the Petitioner in the present writ application as well as in similar other writ applications is that although there are vacancies due to non-joining of candidates, such vacancies are not being filled up by the authorities. It was further contended that although the Petitioners are eligible to be appointed against such non-joining vacancies, however, due to inaction on part of the Opposite Parties. The Petitioners have been deprived on of an opportunity to get the appointment pursuant to the advertisement dated 28.12.2018. 5. Learned Senior Counsel for the Petitioner in course of his argument, draws the attention of this Court to the judgment in Bhagabata Malla and others v. State of Odisha and others in W.P.(C) No.10034 of 2022 which was disposed of on 28.11.2022 with a direction to the Opposite Party No.2 to consider case of the Petitioner in the event it was found that they are eligible and their names found place in the master merit list. Accordingly, the names of such eligible candidates, in the merit list be recommended by the Opposite Party No.2 to the Opposite Party No.1 keeping in view the order of merit. Further it was directed that in the event the Opposite Party No.2 recommends the names strictly in order of merit, then the Opposite Party No.1 shall do well to appointment to such candidates against the vacant posts, the vacancies in respect of which had arisen due to non-joining of some of the selected candidates. 6. The order passed by this Court in Bhagabata Malla’s case (supra) was sought to be modified by filing I.A. No.17185 of 2022. // 4 // This Court vide order dated 09.01.2023 modified the order by deleting the words as has been reflected in Para-5 of order dated 09.01.2023. Thereafter, the Opposite Party No.2 filed a review petition bearing RVWPET No.120 of 2023. This Court after hearing, the parties, vide order dated 02.05.2023, dismissed the review petition. Thereafter, the Petitioner in the said case filed a contempt application bearing CONTC No.1216 of 2023, which was disposed
Legal Reasoning
of by this Court vide order dated 24.02.2023. Learned counsel for the Petitioner at this juncture submitted that the above named Bhagabata Malla (supra) has been given appointment in the meantime. 7. Learned Senior counsel for the Petitioner further contended that the present Petitioner stands an identical footing with the above named Bhagabata Malla (supra) in whose case, this Court had given a direction to consider his case for appointment against the non- joining vacancies. The order passed by this Court having attained finality, the Opposite Parties have already implemented the same. In such view of the matter, the LCAP contended that since the present Petitioner stands in a similar footing with the above named Bhagabata Malla (supra), the Petitioner be also considered for appointment against the non-joining vacant posts of Junior Assistant, the respective districts, subject to the order of merit. 8. Learned Additional Government Advocate on the other hand contended that pursuant to the advertisement dated 28.12.2018, recruitment process was conducted and finally a master merit list was prepared on 28.04.2021. On the basis of merit position in the master merit list, the qualified candidates have been recommended by the Opposite Party No.2, and they have been given appointment in the // 5 // meantime. He further contended that in the event there are vacancies due to non-joining of some selected candidates, then such vacancies are to be filled up by the candidates who come next in the merit list, in the order of their merit. In course of the argument, learned Additional Government Advocate referring to the rejection order passed by the OSSSC on 30.09.2023 under Annexure-10 submitted that the Opposite Party No.2 has not recommended any names as it was apprehended by the Opposite Party No.2 that in the event, any specific case is considered pursuant to the direction of this Court, then in such eventuality there is a possibility of ignoring the merit or there is a likelihood of tinkering with the order of merit in the master merit list prepared pursuant to the recruitment process which was commenced in the year 2018. 9. Learned Additional Government Advocate further contended that earlier the Petitioners approached this Court by filing W.P.(C) No.20795 of 2023 with a prayer to consider that case for appointment to the post of Junior Assistant against the non-joining vacancies in
Decision
respect of Ganjam District. This Court on 06.07.2023 disposed of the writ application with a direction to the Opposite Party No.2 to consider the representation of the Petitioner under Annexure-7. Keeping in view the order passed in the above named Bhagabata Malla’s case (supra) within a period of two months. After disposal of the earlier writ application the Opposite Party No.2 vide order dated 30.09.2023 under Annexure-10 have been pleased to reject the representation of the Petitioner by passing a reasoned and speaking order. He further contended that by the time the order was passed in the earlier writ application on 06.07.2023, the recruitment // 6 // examination for the post of Junior Assistant, 2023 were published on 24.02.2023, and the written test was conducted on 09.07.2023. The result of such written test was also published on 15.09.2023. 10. In such view of the matter, learned Additional Government Advocate submitted that any interference at this stage would cause serious disturbance to the subsequent recruitment examination of the year 2023. In such view of the matter, learned Additional Government Advocate submitted that the present writ application is devoid of merit and accordingly, the same should be dismissed. 11. Having heard, the learned counsel appearing for the parties, on a careful examination of the back ground of facts as well as the materials on record, this Court observes that pursuant to the advertisement of the year 2018, the Petitioner and similarly situated many other persons appeared in the recruitment process. Although, a master merit list was prepared and some persons were given appointment on such master merit list, however, due to non-joining of some of the selected candidates, some posts of Junior Assistant remained vacant, as a result of which some candidates whose name was appearing in the master merit list of the year 2021, pursuant to the advertisement of the year 2018 approached this Court. 12. This Court after considering the submission made by the counsels appearing for both sides, in those cases directed the Opposite Party No.2 to consider the case of the candidates for filling up of the non-joining vacancies strictly in order of merit. Thus the apprehension of the Opposite Party No.2 that any order to tinker with the master merit list would disturb the order of merit is baseless and // 7 // unfounded. In the case of Bhagabata Malla (supra), this Court has categorically directed to consider the case of the Petitioner against non-joining vacancies strictly in order of merit. Therefore, there was no occasion on the part of the Opposite Parties to ignore any of the candidates whose name appears higher in the order in the merit list while considering the case of the Petitioner. Moreover, since this Court has issued similar orders in case of other similarly situated candidates for filing of non-joining vacancies in the master merit list of the year 2021. It would be discriminatory if such a direction is not given in the case of Petitioner whose name appears in the said master merit list. Additionally non-consideration of the cases on merit basis merely because they have not approached this Court would amount to arbitrariness and discrimination. In the aforesaid factual background, this Court deems it proper to set aside the impugned order dated 30.09.2023 under Annexure-10. Further, the matter is remanded back to the Opposite Party No.2 to consider the case of the Petitioner in light of the order passed in Bhagabata Malla’s case (supra) which was confirmed in review and as stated by counsel for the Petitioner, the same has already been given effect to. The Opposite Party No.2 shall consider the case of the Petitioner strictly in order of merit, in the event it is found that the Petitioner is next in line against the non- joining vacancies. If the same has not been filled up in the meantime, the case of the Petitioner and similar other Petitioners, whose name is placed in the master merit list of the year 2021, be considered strictly in order of merit before finalizing the subsequent recruitment process which are taken place in pursuant to an advertisement in the year 2023. Let the entire process be concluded within a period of six // 8 // weeks from the date of communication of the copy of the order. In the event the Opposite Party No.2 comes a conclusion that the Petitioners are eligible in order of merit, then their cases be considered and in the absence of any other legal impediment, the cases of such eligible candidates be recommended to the Government to fill up the non-joining vacancies of the year 2021 within a period of six weeks from the date of taking a decision. 13. With the aforesaid observation/direction, the writ petition is disposed of. S.K. Rout ( A.K. Mohapatra ) Judge Signature Not Verified Digitally Signed Signed by: SANTANU KUMAR ROUT Reason: Authentication Location: High Court of Orissa, Cuttack Date: 17-Mar-2024 17:15:39