Gethal Dharua@Rajendra Bhoi Vs State of Orissa

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ABLAPL No.13974 of 2015
12.05.2016
Misc. Case No.389 of 2016

¶2

 Heard learned counsel for the petitioner and learned Addl. Government Advocate
.

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 The petitioner pray to extend the time stipulated in the order dated 18.03.201
6 in ABLAPL No.13974/2015 to surrender before the learned SDJM, Birmaharajpur.

¶4

 The application is allowed. The petitioner is given liberty to surrender befor
e the learned SDJM, Birmaharajpur as per the aforesaid order within fifteen working days hence
. Further, in the cause title, the name of the district of the petitioner be corrected as Suba
rnapur.

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 The Misc. Case is accordingly disposed of.

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 Urgent certified copy of this order be granted as per rules.

¶7

 S.K. Mishra,J.

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10 Misc. Case No.62 of 20113.05.2012Heard.

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 If the petitioner files an application for adjournment of Execution Case No.15
 of 2007, arising out Civil Suit (money) No.108 of 2003, the case shall be adjournment for a p
eriod of three weeks. In the meantime, no coercive action shall be taken against the petitione
r.

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 Urgent certified copy of this order be granted as per rules

¶11

 S.K.Mishra,J.

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Heard learned counsel for the petitioner and learned Addl. Government Advocate.

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 The petitioner and the deceased opposite party no.5 were applicants for being
engaged as the Multi Purpose Assistant (GRS) in Kendupati Grama Panchayat under the Junagarh b
lock in the district of Kalahandi. The case of the petitioner is that initially a merit list w
as prepared where the names of Rajani Kanta Mahananda, i.e. petitioner himself and Sumanta Kum
ar Padhi were mentioned wherein he was placed at 1st position because he had secured the highe
st percentage of marks among the candidates in the +2 Arts Examination. Thereafter, the petiti
oner pleads that a fresh list was prepared wherein the names of the petitioner himself, Benudh
ara Bihari, the deceased opposite party no.5 and Sumanta Kumar Padhi have been prepared. It is
 contended that the names of Benudhar Bihari and Sumanta Kumar Padhi were not in the original
merit list and that have been added later on in order to deprive the petitioner from being sel
ected to the aforesaid job. Therefore, the petitioner prayed that the selection and appointmen
t of opposite party no.1 be set aside and in his place the petitioner be ordered to be appoint
ed as the GRS

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of the aforesaid Grama Panchayat. It is brought notice of the Court in course of hearing that,
 in the meantime, the opposite party no.5 has died, and it is contended by learned counsel for
 the petitioner that he being the 2nd position holder in the merit list, this Court be passed
 necessary orders to appoint him as the GRS of the Kendupati Grama Panchayat.

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 The opposite party nos. 2 and 3 have filed counter affidavit, inter alia, plea
ding that, pursuant to the advertisement dated 16.12.2009 to fill up vacancy of the post of GR
S of Kendupati Grama Panchayat, one Bhabagrahi Naik, Fishery Demonstrator-cum-Incharge of Issu
e and Dispatch section of the office of the BDO Junagada was ordered to receive the applicatio
n along with other relevant requisite documents from the applicants. He received 18 nos. of ap
plications including the application of Sri Benudhar Bihari, opposite party no.5. It is furthe
r pleaded that Sri Naik did not appraise the matter personally to his higher authority and sub
mitted the application and other relevant documents only to the dak-pad (letter pad). Accordin
gly, the BDO, Junagarh prepared a list and submitted it to the District Office maintaining th
at document of some of the applicants including opposite party no.5 were not attached to their
 applications form. It is, further, pleaded that on receipt of the same, the merit list was pr
epared as per the records available in the District Office, wherein the name of the petitioner
 was at Sl No.1 but due to lack of relevant documents, the name of the opposite party no.5 was
 not in the said list.

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 Thus, the opposite parties further pleaded that after publication of the merit
 list, the opposite party no.5 filed a grievance petition before the opposite party no.2 stati

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ng that he has submitted all the requisite documents at the time of submission of application
along with a slip of acknowledgment of document granted by the receiving officer, Mr. Naik. On
 receipt of the aforesaid grievance petition,

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pursuant to the order of the opposite party no.2, the same was enquired into by the A.D.M., Ka
lahandi. The ADM found that the receipt of all the required documents of opposite party no.5 h
ave been duly acknowledged by the receiving officer, Sri Naik in Junagarh Block Office. As som
e documents of opposite party no.5 were not traced out, it is pleaded that the same might have
 been manipulated or tampered in order to disqualify him. The opposite party no.2 being satisf
ied with the enquiry report came to the conclusion that the opposite party no.5 was quite elig
ible for the GRS, Kendupati as he secured highest marks among all the candidates and accordin
gly, on 15.04.2010, he cancelled the earlier selection of the petitioner and directed to the
BDO to include the name of opposite party no.5 and submit a fresh selection list to the Distri
ct Panchayat Officer, Kalahandi after due scrutiny at his level and further directed the B.D.O
. to find out the person responsible for such manipulation of document of opposite party no.5
.

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 The learned Addl. Government Advocate has produced the records of the enquiry
conducted by the ADM, Kalahandi wherein he has come to a definite conclusion that the petition
er submitted all the documents to the receiving officer who has granted a receipt in support o
f the documents though the same have been manipulated by some body later on in the dak-stage i
n the Block Office. This is a factual finding arrived at the officers on the field and there i
s no material on record to come to the conclusion that such finding is not acceptable.

¶20

 I have also perused the counter affidavit filed by the opposite party no.5 whe
rein he had annexed copy of the receipt granted by Bhabagrahi Naik on 29.12.2009, which indic
ates that in total 11 documents were received alongwith the applications. Thus, the conclusion
 arrived at by the ADM, Kalahandi, which is concurred by the Collector, Kalahandi, appears to
be unblemished. There is no

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reason to differ with such finding of the fact. Moreover, in a writ application, the Court exe
rcising jurisdiction under Articles 226 and 227 of the Constitution of India does not sit on a
ppeal over the orders passed by the authorities and re-appreciate the materials/evidence as ca
n be done by an appellate court. This being the settled principle, this Court finds no reason
to differ with the findings recorded by the Collector, Kalahandi.

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 The learned counsel for the petitioner submits that, because of demise of oppo
site party no.5, the old list survives and he being the candidates securing 2nd position shoul
d be engaged as GRS of the Kendupati Grama Panchayat. In this score, law is also well settled
that once the select list is prepared and the person joined in the post in pursuance thereto,
then the select list cannot be resorted to again in the event the eligible candidates resignin
g from the post or on account of his death, etc. So, on the death of the opposite party no.5,
no right has accrued to the petitioner to be appointed as the GRS of the aforesaid Grama Panch
ayat by virtue of the merit list prepared in the year, 2010.

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 Having considered the submissions made by learned counsel for the petitioner,
this Court comes to the conclusion that there is no reason to differ with the findings recorde
d by the learned Collector, Kalahandi, but in view of the fact that the opposite party no.5 ha
s expired in the meantime, the opposite parties should issue fresh notification for appointmen
t of the GRS in Kendupati Grama Panchayat. Keeping in view the fact that the petitioner had ap
plied in the earlier occasion, it is directed that if the petitioner so chooses he may apply f
or the said post and he may be granted relaxation of the age.

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 The writ petition is accordingly disposed of.

¶25

 S.K.Mishra,J.

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0 Wr63.01.2012Listthit Pesmatition No.31185 of 2011ter after two weeks for disposal. Interim order passed earlier
 shall continue till next date.

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 S.K. Mishra,J.
 S.K. Mishra,J.

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S.K. Mishra, J. 0 37 . 02.2011 The appointmentMisc. Caseof No.11516Market Guardof 2011in Annexure-3 shall be subject to the result o f this writ petition. Misc. Case is accordingly disposed of. L.Mohapatra,J. S.K. Mishra, J.

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Gethal Dharua@Rajendra Bhoi v. State of Orissa

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Gethal Dharua@Rajendra Bhoi v. State of Orissa

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