The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.41164 of 2023 Sujit Kumar Mohapatra …. Petitioner Mr.P.K. Mohapatra, Advocate -versus- State of Odisha & others …. Opposite Parties Mr.Saswat Das, A.G.A. CORAM: JUSTICE A.K. MOHAPATRA ORDER 29.01.2024 Order No. 01. 1. This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode). 2. Heard learned counsel for the petitioner as well as learned
Decision
counsel for the State in all the writ petitions. Perused the record. 3. The present Writ Petition has been filed with the following prayer : ii) “Under the aforesaid facts and circumstances of the case, it is therefore, prayed that thuis Hon’ble Court may graciously be pleased to : i) Quash the impugned order No.40199 dated 14.11.2023 vide Annexure-7 by concurrently holding the same as bad, illegal, arbitrary and not sustainable in the eye of law; Direct/order the opp. Parties to give promotion to the petitioner to the cadre of ORS (Group-B) for the Recruitment year 2018 in the available vacancies due to non joining and forgo of persons in the light of the benefits, given to other similarly situated persons taking into consideration the principles decided in Akshaya Kumar Mohanty (supra) and Dr.Rajalaxmi Behera Vs. V.C., OUAT, reported in 2017(II) ILR-CUT-923 and // 2 // till a decision is taken, one post may be kept reserved out of vacant post(s) of the year 2022; pass such other order(s)/direction(s) as may be deemed fit and proper in the bona fide interest of justice.” iii) 4. The factual background of the case, in short, is that the petitioner was appointed as Section Officer under Registrar, Co-operative Societies, Odisha and while he was working as such, a new cadre was created under a new set of Rules i.e. Odisha Revenue Service (Recruitment Rules, 2011) in exercise of power conferred under the proviso to Article 309 of the Constitution of India and such rule came into force w.e.f. 03.08.2011. In view of the aforesaid rules, Odisha Revenue Service Cadre was to be filled up by way of direct recruitment, promotion, and selection. The said rule also provides under Rule 4(a) that not more than 20% of posts shall be filled up by way of promotion under Rule-7. Further Rule-7 of the 2011 Rules prescribes the eligibility criteria for selection of candidates for recruitment under 2011 Rules. Accordingly, the Opposite Party No.2, for promotion to the post of ORS Group B recommendation from the respective department of the Government of Odisha, recommended names of the petitioner which were duly forwarded by the concerned department for promotion to the post of ORS Group B cadre. 5. A selection committee was constituted for the purpose of consideration of the case of the petitioners along with many other similarly placed officer, who were found eligible to be considered for promotion to the post of ORS Group-B posts. Finally, the selection committee prepared a list of 54 candidates, who were found suitable against 71 vacancies which were notified to be filled up. So far the present petitioners are concerned, it is submitted by learned counsel for the petitioners that names of the petitioners was kept at Sl.No.3 i.e. within 10 numbers of candidates in the waiting list prepared in the year // 3 // 2018 and the Govt. accepted the forego proposal vide order dated 12.06.2020 and thereafter the vacancies could have been filled up immediately from the waiting list candidate. At that time there are no approved list for 2019 ORS Selection, which was accorded concurrence by OPSC vide letter dated 07.07.2020 and appointment was made on 13.07.2020. It clearly reveals that there was enough time of one month to give appointment to the Petitioner against the forego vacancies. 6. It is submitted by learned counsel appearing for the petitioner that although the petitioner was eligible and his name was included in the wait-listed candidates, however, despite availability of vacancies, his case was not considered for promotion to the post of ORS Group B cadre officer. Learned counsel for the petitioner further contended that the petitioner was considered, selected, and kept in the waiting list for the recruitment year 2018, however, the Opposite Parties have committed a gross illegality in giving appointment against non-joining vacancies from out of such wait-listed of candidates. Out of 54 candidates selected for the vacant posts, 9 persons did not join against such vacancy. The said 54 candidates, who were selected and recommended for promotion to ORS Group B posts. 7. While this was the position in respect of the vacancy of the year 2019 the opposite parties invited fresh applications and prepared a fresh list of candidates for appointment to the post of ORS Group B against the available vacancies, however, while preparing the list for the year 2019, the persons who were in the waiting list for the year 2018 were not considered by the Opposite Parties. It is further contended that the list which was prepared in the year 2019, was approved by the Government on 13.07.2020. Since the name of the petitioner was not considered by the Opposite Parties for promotion in respect of the vacancies of the year 2019, the petitioner approached the authorities by filing representations. // 4 // 8. It is further submitted by learned counsel for the petitioner that since no action was taken on the representation of the Petitioner filed a writ application bearing W.P.(C) No.39606 of 2021. This Court vide order dated 04.09.2023 disposed of the said writ application with a direction to the Opposite Party No.1 to consider such representation of the petitioner in accordance with law and to dispose of the same within two months from the date of communication of the order dated 04.09.2023. After disposal of the previous writ application, the above named petitioner approached the Opposite Party No.1 along with certified copy of the order. The Opposite Party No.1 considered the representation of the petitioner and disposed of the same vide order dated 14.11.2023 under Annexure-7 to the writ application. 9. On perusal of the impugned order dated 14.11.2023, it appears that the case of the petitioner was not considered on the ground that the select list in which the name of the petitioners appeared as waitlisted candidates had expired by then. 10. Being aggrieved by such order, the petitioner has approached this Court by filing the present writ application. 11. Learned Additional Government Advocate for the State submitted that the Opposite Party No.1 has not committed any illegality while rejecting the representation of the petitioner vide order dated 14.11.2023 under Annexure-7 to the writ application. He further contended that in view of the provisions contained under Rule 14(2) of the ORS (Recruitment Rules 2011), the select list prepared in the year 2018 shall remain in force for a period of one year from the date of its approval by the Government or till another select list is prepared, whichever is earlier. Therefore, in view of the aforesaid rules, learned Additional Government Advocate contended that since the list of the year 2019 was approved by the Government on 13.07.2020, the list prepared in the 2018 wherein admittedly, the name of the petitioner was // 5 // kept under the heading of wait-listed candidates had expired by operation of Rule 14(2) of the Rules 2011. In such view of the matter, learned Additional Government Advocate submitted that since the list on the basis of which the petitioner is claiming appointment is no more in force and in view of the provisions contained in the aforesaid rules, it would be illegal to give appointment to the petitioner by reactivating such expired list. Accordingly, learned Additional Government Advocate submitted that the present writ application is devoid of merit and hence the same should be dismissed. He further contended that no one from the provisional list under the category of waiting list candidates have been given appointment. 12. Having heard learned counsels appearing for the respective parties, on a careful consideration of the background facts as well as materials on record, this Court at the outset examined the validity of the list basing upon which the petitioners have approached this Court for appointment against the posts which remained vacant due to nonjoining or forgoing to join against the said post by the selected candidates. Indisputably the selection had taken place in the year 2018 under Rule 11 of the Rules for the ORS Group B officers. In the said selection process, the names of the petitioners were considered by the Selection Committee. After due consideration the names of the petitioner was kept in the waiting list of candidates for the year 2018. Further it appears that although 71 posts were notified to be filed up, only 54 names were selected against the vacant posts notified to be filled up. It appears that before approval of select list for the recruitment year 2018, another recruitment was started in the year 2019 for different vacancies, so the select list was valid. It also appears that out of 54 names which were recommended for appointment in respect of UR category candidates, around 9 candidates did not join or some of them opted to forgo such promotions. Accordingly 9 posts of ORS Group B Officers // 6 // for the year 2018 remained vacant till 12.07.2020 and by that time the waiting list candidates could have been considered for appointment. 13. It also appears that in the select list of the year 2018, 10 persons were kept in the wait-listed candidates. However, their cases were not considered immediately after coming to know about the vacancy position even after selection by Opposite Parties. The information with regard to 9 candidates who did not join or have forgone their promotion was available with the opposite parties. Therefore, the argument of learned counsel for the petitioner is justified to the extent that the names of the petitioner should have been sent immediately after getting information about above noted 9 candidates who have not joined or have forgone their promotions and in such background, inaction on the part of the Opposite Parties to consider the case of the wait-listed candidates appears to be illegal. On a careful examination of the records, this court further observes that the petitioner approached the authorities for the first time on 15.07.2020 i.e. after expiry of the select list, therefore, this Court is of the view that the select list of the year 2018 had expired by operation of the Rule 2011. In such view of the matter, this Court is also of the view that no mandamus on the basis of a list which has expired by operation of law could be issued by this court. 14. However, fact remains that vacancies are still there and the cases of the employees are to be considered on the basis of their seniority as well as merit. Since the petitioner was found eligible and his name was kept in the waiting list of the year 2018 after due consideration by the selection committee and further keeping in view the fact that lot of vacancies are there in the ORS Group B officers post, this Court while disposing of the writ petition directs the Opposite Party No.1 to reconsider the case of the petitioner on production of certified copy of this order by the petitioner for promotion to the post of ORS Group B cadre taking into consideration the principles decided by the Rajastan // 7 // High Court in Vinod Kumar Gupta & others, SB(C) W.P.No.5694 of 2019, decided on 21.052019.. 15. It is further directed that while considering the case of the petitioner for promotion to the ORS Group B cadre, the Opposite Party No.1 shall keep in view the fact that the petitioner was found eligible in the year 2018 and accordingly his name was included in the waiting list of candidates and there was one month gap between the acceptance of forego list and appointment of 2019 ORS selection and further while considering the case of the petitioners for promotion to the ORS Group B cadre officer, Opposite Party No.1 shall keep in mind the vacancies position as well as seniority of the officers in the common gradation list and their suitability and accordingly, if required a review DPC be convened as expeditiously as possible preferably within a period of eight weeks from the date of receipt of a certified copy of this order, if the petitioner is otherwise found eligible, the name of the petitioner be recommended for promotion to the ORS Group B cadre. 16. With the aforesaid observation, the writ application stands disposed of. 17. 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: 03-Feb-2024 16:47:12