The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.37941 of 2023 Himansu Kachharia …. Petitioner Mr.Bishal Baivab,Advocate -versus- State of Odisha and others …. Opposite Parties Mr.Nikhil Pratap, A.S.C. CORAM: JUSTICE A.K. MOHAPATRA Order No. 01. 1. This matter is taken up through Hybrid Arrangement (Virtual
Decision
ORDER 21.11.2023 /Physical Mode). 2. Heard learned counsel for the Petitioner as well as learned Additional Standing Counsel for 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: “ Under the aforesaid facts and circumstances of the case, it is therefore, prayed that your Lordship may be graciously pleased to issue a Rule Nisi, calling upon the Opp.Parties to show cause as to why the impugned advertisement no.6506/OSSC dated 02.11.2022 issued by Opp.Party No.4 under Annexure-1 shall not be quashed and it is further prayed that a direction to the Opp.Parties be issued to fill up 1008 nos. of posts of Junior Engineers (Civil) as stipulated in the impugned advertisement no.6506/OSSC dated 02.11.2022 from the panel of Diploma Holders in Civil Engineering and consequently appoint the present Petitioner against one // 2 // of the aforesaid vacant posts within a short and stipulated period of time. In the event, the Opp.Parties fail to show cause or sow insufficient cause to make the said Rule Nisi absolute. And to grant any other relief as deemed fit and proper in the circumstances of the case.” 4. Learned counsel for the Petitioner, at the outset, submitted that the Petitioner, who is a Diploma Holder Civil Engineer, is interested in getting a Government job. Accordingly, the Petitioner came across the advertisement that was published on 21.11.2022 by the OPSC under Annexure-1 to the Writ Petition. On perusal of the advertisement under Annexure-1, it appears that no special reservation of posts have been made so far Diploma Holder empanelled Civil Engineers are concerned. At this juncture, learned counsel for the Petitioner referring to the judgment of this Court in Santosh Kumar Mandal and other-v.-State of Odisha and others in WPC(OAC) No.2645 of 2014 along with a batch of other similar Writ Petitions which were disposed of by a common judgment delivered on 17.08.2022, submitted before this Court that a coordinate Bench of this Court while considering the Writ Petition filed by the similarly situated persons having Diploma in Engineering and who were empanelled as Diploma Holder Engineers by the State Government, had disposed of the Writ Petition with the following observation in Para-22 of the aforesaid judgment;. “22. However, before parting with the case, this Court feels it proper to make an observation that since learned Tribunal while disposing the mater vide its order dated 26.04.2017 observed that Government a an employee may take a decision as one time measure and to consider the relevant provision under the Rule for appointment of the Petitioners and for that purpose, if necessary, may fix certain quota in future recruitment, this Court observes that if Government so likes, it can consider the case of the present Petitioners in future // 3 // recruitments by providing hem some reservation as against the vacancies to be advertised. However, this Court has expressed no opinion on such course of action if will be undertaken by the State.” 5. Referring to the aforesaid direction of this Court in paragraph- 22 of the judgment in Santosh Kumar Mandal’ case (supra), learned counsel for the Petitioner submitted that though the advertisement was published four months after delivery of judgment by the coordinate Bench, no provision has been made so far providing for reservation for empanelled Diploma Holder Engineers. He further contended that the State Government is going to fill up the post pursuant to the advertisement under Annexure-1. In such view of the matter, learned counsel for the Petitioner submitted that the Opposite Parties be directed to carry out the exercise as directed by the coordinate Bench in the judgment in Santosh Kumar Mandal’ case before finalizing the recruitment process pursuant to advertisement under Annexure-1. 6. Learned Additional Standing Counsel on the other hand contended that the impugned advertisement under Annexure-1 was published way back on 02.11.2022. He further contended that although several posts of Civil Engineers are required to be filled up pursuant to the advertisement under Annexue-1, however, ,the direction of the coordinate Bench had not been given effect to as the advertisement under Annexure-1 had been finalized before a final decision could be taken pursuant to the direction of the coordinate bench. It is also contended by the learned Additional Standing Counsel that the direction of the coordinate Bench in paragraph-22 of the judgment is more specific and the same relates to any future recruitment. Therefore, it was specifically contended before this Court that the order passed by the coordinate Bench would not be // 4 // applicable to the advertisement under Annexure-1. Accordingly the same has not been taken into consideration while publishing the advertisement under Annexure-1. In addition to the above contentions, learned counsel for the Petitioner submitted that while assailing the advertisement under Annexure-1 the Petitioner has not challenged the relevant Rules under Annexure-5 to the Writ Petition. In view of the aforesaid submissions, learned counsel for the Petitioner submitted that the present Writ Petition is devoid of merit and the Writ Petition should not be entertained by this Court. 7. Having heard learned counsel appearing for the respective parties, on a careful examination of the materials on record, it appears that the relevant Rules i.e.The Odisha Diploma Engineers’ Service (Methods of Recruitment and Conditions of Service) Rules, 2012 came into force with effect from 29.12.2012. Power of relaxation under Rule 19 of the aforesaid Rule was amended vide Government Notification dated 05.10.2013 to the effect that in exercise of power conferred under Rule 19 of the said Rules, 2012 and in exigencies of public interest, Government after careful consideration has been pleased to relax the provision of the aforesaid Rules till 31st March, 2014 and as such all appointments to the existing vacancies of Junior Engineer shall be made as were being made prior to commencement of Rule i.e. from out of the panel maintained by the Committee of Chief Engineers and Engineer-in- Chief (Civil), Odisha. On scrutiny of the record, it appears that there was no such provision for appointment of empanelled Diploma Engineers till the judgment in Santosh Kumar Mandal case was delivered by the coordinate Bench. It appears further that there are several Diploma Engineers who are yet to get appointment against any Government post. 8. In the aforesaid context, this Court also examined the direction // 5 // of the coordinate Bench in paragraph-22 of the judgment in Santosh Kumar Mandal case. After such scrutiny, this Court observed that referring to the order passed by the Tribunal dated 26.04.2017, the coordinate Bench has observed that Government as an employer may take a decision as one time measure and to consider the relevant provisions under the Rules for appointment of the Petitioners and for that purpose, if necessary, may fix certain quota in future recruitment. However the Petitioners have been deprived of an opportunity being appointed against any Junior Engineer post. Finally the coordinate Bench disposed of the matter with the observation that if the Government so likes it can consider the case of the present petitioner in future recruitment by providing them some reservation as against the vacancies to be advertised. On a careful examination of the materials on record, this Court found that no such exercise has been carried out by the State Government before publishing the advertisement dated 02.11.2022 under Annexure-1 to the Writ Petition. 9. In view of the aforesaid analysis, this Court is of the considered view that the matter needs to be re-examined by the competent authority, particularly keeping in view the order passed by the coordinate bench in Santosh Kumar Mandal case, this Court deems it proper to dispose of the Writ Petition by directing the Opposite Party No.1 to take a final decision pursuant to the direction made in paragraph-22 of the judgment in Santosh Kumar Mandal case and a batch of similar writ petitions before any final decision is taken pursuant to the advertisement under Annexure-1 to the Writ Petition. 10. Let the Petitioner approach Opposite Party No.2 along with the certified copy of this order and the copy of the judgment in Santosh Kumar Mandal case within two weeks from today. In such // 6 // eventuality the case of the Petitioner be considered keeping in view the direction in paragraph-22 of the judgment in Santosh Kumar Mandal case and the Opp.Parties shall do well to take a final decision within six weeks from today. It is needless to mention that the final decision be communicated to the Petitioner within a week from the date of taking such decision. 11. With the aforesaid observation, the writ application stands disposed of. 12. 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 Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa Date: 24-Nov-2023 18:48:22