The High Court
Case Details
Order No. 02. IN THE HIGH COURT OF ORISSA AT CUTTACK WP(C) No.36580 of 2023 Trilochan Behera ..... Petitioner -versus- ..... 1) State Of Odisha 2) Secretary, Odisha Sub- Ordinate Staff Selection Commission 3) Collector And Dist Magistrate CORAM: Represented By Adv. - Bibhuti Bhusan Behera Opposite Parties Represented By Adv. – Mr.N.K.Praharaj, AGA THE HON'BLE MR. JUSTICE ADITYA KUMAR MOHAPATRA ORDER 24.04.2024 1. This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode). 2. Heard, learned counsel for the Petitioner and learned Additional Government Advocate appearing 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;
Decision
“It is therefore, prayed that this Hon’ble Court be graciously pleased to admit the writ petition, call for the Records, issue Rule NISI, calling upon the Opposite Parties to show cause as to why; a) The impugned order dated 30.09.2023 under Annexure-5 shall not be quashed. b) The Advertisement dated 24.02.2023 and Page 1 of 8. Addendum dated 05.04.2023 in so far as the post of Junior Assistant under Annexure-7 series is concerned shall not be quashed; c) Direction shall not be given to the Opp.Parties to give appointment to the Petitioner pursuant to the advertisement under Annexure-1 in respect of Jr. Assistant in Sundargarh District. If the Opp.Parties fail to show cause or show insufficient cause, the said Rule may be made absolute. pass such order/orders, And/or direction/directions as this Hon’ble Court may deem fit and proper for the ends of justice.” other 4. 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 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- Page 2 of 8. 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 counsel for the Petitioner in course of his argument, draws the attention of this Court to the judgment in BhagabataMalla 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 BhagabataMalla’s case (supra) was sought to be modified by filing I.A. No.17185 of 2022. 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 Page 3 of 8. said case filed a contempt application bearing CONTC No.1216 of 2023, which was disposed of by this Court vide order dated 24.02.2023. Learned counsel for the Petitioner at this juncture submitted that the above named BhagabataMalla (supra) has been given appointment in the meantime. 7. Learned counsel for the Petitioner further contended that the present Petitioner stands in 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 BhagabataMalla (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 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, Page 4 of 8. learned Additional Government Advocate referring to the rejection order passed by the OSSSC on 30.09.2023 under Annexure-5 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.25528 of 2023 with a prayer to consider that case for appointment to the post of Junior Assistant against the non-joining vacancies in respect of Sundargarh District. This Court on 22.08.2023 disposed of the writ application with a direction to the Opposite Party No.2 to consider the representation of the Petitioner under Annexure-4 dated 18.07.2023. Keeping in view the order passed in the above named BhagabataMalla’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-5 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 22.08.2023, the recruitment 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 Page 5 of 8. 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 unfounded. In the case of BhagabataMalla (supra), this Court has categorically directed Page 6 of 8. 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-5. 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 BhagabataMalla’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 finds place in the master merit list of the year 2021, be considered strictly in order of merit before finalizing the subsequent recruitment process which is likely to take place in pursuant to an advertisement in the year 2023. Let the entire process be concluded within a period of Page 7 of 8. six 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. ( Aditya Kumar Mohapatra) Judge RKS Page 8 of 8. Signature Not Verified Digitally Signed Signed by: RAMESH KUMAR SINGH Reason: Authentication Location: High Court of Orissa Date: 26-Apr-2024 16:48:52