Dismissed

Rabindra Nath Mahapatra@Rabindra Ku.Mahapatra v. State of Orissa

Orissa HC3 Nov 2016ABLAPL/15665/2016

Case brief

AI extract

What is this about?

In a writ petition regarding public employment, the court affirmed an authority's finding that manpower manipulation occurred, but ruled that as the primary claimant died, no automatic right accrued to the successor. The petition was dismissed with a direction for fresh recruitment notifications.

What did the court decide?

Petitioner directed to apply for the post with age relaxation if he chooses; opposite parties directed to issue fresh notification for appointment.

Misc. Case No.1142 of 2016 Heard learned counsel for the petitioners and learned Addl. Government Advocat e. This is an application for modification of the order dated 03.11.2016 in ABLAP L No.15665/2016. The prayer is allowed. It is directed that an offence under Section 511 of the IPC be added to the offence mentioned in the 3rd paragraph of the aforesaid order. Further, t he petitioner is directed to surrender before the learned Addl. District & Sessions Judge-cum- Special Judge, Khurda in the aforesaid case within fifteen days hence. This order shall be rea d as a part of the order dated 03.11.2016. Necessary correction be made in the said order by the office. The Misc. Case is disposed of.

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.

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

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.

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

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 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,

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 .

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.

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

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.

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.

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.

	`S.K. Mishra, J.`
`0``3``.` `7 02.2011`	`Misc. Case No.11516 of 2011` `The appointment of Market Guard in 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.`

S.K. Mishra, J.

03.
7 02.2011

Misc. Case No.11516 of 2011
The appointment of Market Guard in 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.

Rabindra Nath Mahapatra@Rabindra Ku.Mahapatra v. State of Orissa

Case brief

What is this about?

What did the court decide?

Rabindra Nath Mahapatra@Rabindra Ku.Mahapatra v. State of Orissa

Case brief

What is this about?

What did the court decide?

What the court decided

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