The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.34247 of 2023 Saroj Barik …. Petitioner Mr.Laxmikanta Mohanty, Advocate -versus- State of Odisha & others …. Opposite Parties Mr.Iswar Mohanty, I.A.S. CORAM: JUSTICE A.K. MOHAPATRA ORDER 17.10.2023 1. This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode). 2. Heard learned counsel for the Petitioner as well as learned
Decision
Additional Standing Counsel for the State. Perused the Writ Petition as well as the documents annexed thereto. 3. The Petitioner has filed the present writ application with the following prayer: Order No. 01. “ It is therefore humbly prayed that this Hon’ble Court ay graciously be pleased to admit the case, call for the records and after hearing both the parties pass the following reliefs: i) ii) To quash the order dated 09.10.2023 under Annexure-5. To direct the Opposite Parties to grant all financial and consequential benefits flowing from quashing of order dated 09.10.2023 under Annexure-5. iii) And pass such other order/orders as may be deemed fit and proper for the interest of justice.” 4. On perusal of the record, it appears that the Opposite party No.4 earlier approached this Court by filing WPC(OAC) No.1415 of 2019. The said Writ Piton was disposed of by a coordinate Bench // 2 // vide order dated 10.03.2022 with a direction that the height of Opposite Party No.4 be remeasured and further the coordinate bench directed, which is quoted herein below. should consider “ In such view of the matter, this Court feels that the he opposite Party No1 representation of the Petitioner afresh after getting his height measured and certified by a duly constituted Medical Board and to pass orders accordingly. It is needless to mention that the if the Petitioner’s claim is found to be correct, then his prayer for appointment may be considered in accordance with law subject to availability of vacancy.” 5. Pursuant to the aforesaid direction, Opposite Party no4 appeared before Opposite Party no.1. The case of Opposite party no.4 was considered and upon measurement of his height, it is stated that he was found suitable. Accordingly, appointment order has been issued in favour of Opposite Party No.4. 6. So far, the present Petitioner is concerned, learned counsel for the Petitioner submitted that initially the Petitioner was duly selected and was appointed as a Constable in Boud district on 18.09.2018 under Annexure-2 to the Writ Petition. While he was continuing in service, the Petitioner was issued with D.O.No.850 dated 09.10.2023 under Annexure-5 to the Writ Petition. Referring to the said D.O., learned counsel for the Petitioner submitted that consequent upon appointment of Opposite Party No.4, pursuant to order passed by this Court, which is quoted herein above, the appointment of the Petitioner as Constable in Boud district is not admissible as per the Rule governing the method of recruitment of Constables. Finally, the said DO reveals that the Petitioner has been removed from Government service with effect from 09.10.2023. In the aforesaid context, learned counsel for the Petitioner submitted that although the // 3 // Petitioner was finally selected and appointed and he has been discharging his duties without any complaint whatsoever, he has been removed from service abruptly without even issuing a notice to show cause. Learned counsel for the Petitioner further contended that once the Petitioner was validly selected and appointed becomes a Government servant. Therefore, the service conditions are to be governed under the OCS (CCA) Rule 1962. In such view of the matter, the Petitioner could not have been removed from service without following the relevant provision under PMR Rules. In such view of the matter, learned counsel for the Petitioner submitted that the order removing the Petitioner without following the principle of natural justice is highly illegal, arbitrary and unsustainable in law. Learned counsel for the Petitioner further referring to the judgment in Bikash Mallick-v.-State of Odisha reported in 2022(1) OLR 150 submitted before this Court that on redrawal of the merit list, the Petitioner in the said case was removed from service and this Court after examining the whole issue had held that the Petitioner in the above noted case is protected and the principles of estoppels and a right has accrued in his favour to continue in the post. The aforesaid conclusion was drawn by this Court basing upon the well settled positon of law that if the selectee has no fault in the process of selection, he should not be removed from service in view of the redrawal of the list. 7. Learned Additional Standing Counsel on the other hand submitted that while implementing the order passed by this Court in the earlier round of litigation, the present Opposite party No.4 was found more suitable, therefore he was given appointment to the post vide appointment letter dated 15.10.2022. Since the Opposite Party no.4 is found suitable the State-Opposite Parties have passed the // 4 // order under Annexure-4 removing the Petitioner from service on the ground that his very appointment is not in conformity with law governing the method of recruitment. Accordingly, learned Additional Standing Counsel submitted that the Opposite Parties have not committed any illegality in passing the order under Annexure-5. 8. On perusal of the Rule 828 of Odisha Police Rules reveals that before passing any order of dismissal/removal/reduction, the Opposite Parties are under a legal obligation to inform the reasons in writing of the ground on which they proposed to take action against the Government employee and adequate opportunity also be afforded to such Government employee to defend himself. This means no order of removal to be passed without providing opportunity to the Petitioner to defend him. 9. Having heard learned counsel for the respective parties and on careful examination of the background facts of the present case as well as the materials on record, this Court observes that the present Petitioner was validly appointed vide appointment letter dated 18.09.2018 under Annexure-2 to the Writ Petition on being duly selected by following the valid recruitment process. Thereafter, when the Petitioner was continuing in service for almost five years the Opposite Parties all of a sudden have issued D.O.No.850 dated 09.10.2023 under Annexure-5 removing the Petitioner from Government service. On a careful examination of the record, this Court further observes that no proceeding whatsoever has been initiated or enquiry was conducted by the State Opp.Parties before passing the order under Annexue-5 thereby removing the Petitioner from Government service. The order passed by the coordinate bench dated 10.03.2022 also clearly reveals that in para-11 of the order, it // 5 // has been specifically directed that in the event the Petitioner in that case (Opposite Party No.4 in the present Writ Petition) if found suitable, his case for appointment shall be considered in accordance with law subject to availability of vacancy. 10. Therefore, this Court is of the opinion that the opposite Parties should have appointed the opposite Party No.4 against any available vacancy. Since the Opposite Party No.4 was appointed on 12.10.2022, it is presumed that there was a vacancy against which the Opposite Party no.4 has already been appointed. So far the present Petitioner is concerned, he was appointed much prior to Opposite Party No.4 and was continuing till the order under Annexure-5 was issued. In any case, this Court is of the considered view that no procedure as laid down by law under the PMR Rule is available to remove a Government employee from service. Moreover, the order under Annexure-5 has been passed in violation of the principle of natural justice and as such the same is unsustainable in law and accordingly this Court has no hesitation to set aside the order impugned. 11. Accordingly, the same is quashed. Further, the matter is remanded to Opposite Party no.3 to consider the matter afresh strictly in accordance with law and PMR Rules. Since the Petitioner has been validly appointed and there is no flaws/mistake which could be directly attributed to the Petitioner, the opposite Party No.3 shall do well to allow the Petitioner to continue in service. So far Opposite Party No.4 is concerned, this Court further observes that since he has already been appointed after considering his case pursuant to the order passed by this Court in WPC(OAC) No.1415 of 2019 dated 10.03.2022 Opposite Party no.3 shall do well to adjust Opposite Party No.4 in any available vacancy and to allow Opposite Party // 6 // No.4 to continue in service pursuant to the appointment letter dated 15.10.2022. 12. With the aforesaid observation, the writ application stands disposed of. 13. Issue urgent certified copy of this order as per Rules. RKS ( A.K. Mohapatra ) Judge Signature Not Verified Digitally Signed Signed by: RAMESH KUMAR SINGH Reason: Authentication Location: High Court of Orissa Date: 30-Oct-2023 11:00:40