Remanded

Antaryami Tripathy v. State of Odisha

Orissa HC4 Sept 2023WP(C)/9807/2021

Case brief

AI extract

What is this about?

High Court of Orissa issued directions to the Government of Odisha to consider promoting wait-listed candidates for ORS Group B posts despite the expiry of their 2018 selection list, directing a review within eight weeks.

What did the court decide?

Directed Opposite Party to consider petitioners for promotion to ORS Group B cadre within eight weeks via review DPC.

Antaryami Tripathy Vs State of Odisha — Pension and Retirement Benefits | Orissa HC (2023)

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IN THE HIGH COURT OF ORISSA AT CUTTACK

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W.P.(C) No.9807 of 2021

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Antaryami Tripathy …. Petitioner Mr. P.K. Mohapatra , Advocate -versus…. State of Odisha and another Opposite Parties Mr. N.K. Praharaj, A.G.A.

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W.P.(C) No.39532 of 2021

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Deepak Kuamr Sharma …. Petitioner
Mr. B. Mohanty , Advocate
-versus-
….
State of Odisha and another Opposite Parties
Mr. N.K. Praharaj, A.G.A.
W.P.(C) No.39547 of 2021
Girija Sankar Sahoo …. Petitioner
Mr. B. Mohanty , Advocate
-versus-
….
State of Odisha and another Opposite Parties

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Mr. N.K. Praharaj, A.G.A.

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W.P.(C) No.39606 of 2021

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Sujit Kumar Mohapatra …. Petitioner

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Mr. B. Mohanty , Advocate

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-versus-

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// 2 //

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State of Odisha and another ….

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Opposite Parties

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Mr. N.K. Praharaj, A.G.A.

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CORAM:

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JUSTICE A.K. MOHAPATRA

ORDER

Order No.

04.09.2023

1. These matters are taken up through Hybrid Arrangement (Virtual /Physical Mode).

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Heard learned counsel for the petitioner as well as learned counsel for the State in all the writ petitions. Perused the record.

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On consent of learned counsels appearing for the parties, these writ applications are taken up together for final disposal.

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Since the present batch of writ petitions are based on common facts and common question of laws, for the sake of brevity, the facts involved in the first writ petition (Antaryami Tripathy) is taken up for analysis of the factual background. The said writ petition has been filed by the Petitioner with the following prayers:-

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“The petitioner therefore humbly prays that this Hon’ble Court may graciously be pleased to:

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i) Quash the impugned order dated 18.1.2021 vide Annexure-11 as it is illegal arbitrary, unconstitutional and not sustainable in law;

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ii) 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;

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iii) pass such other order(s)/direction(s) as would deem fit:”

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// 3 //

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The factual background of the case, in short, is that the petitioners were appointed, initially, in different posts of ministerial staff and while they were 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.

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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 were kept within 10 numbers of candidates in the waiting list prepared in the year 2018.

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It is submitted by learned counsel appearing for the petitioner that although the petitioners were eligible and their names were

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// 4 //

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included in the wait-listed candidates, however, despite availability of vacancies, their cases were not considered for promotion to the post of ORS Group B cadre officer. Learned counsel for the petitioners further contended the petitioners were 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.

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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 names of the petitioners were not considered by the Opposite Parties for promotion in respect of the vacancies of the year 2019, the petitioners approached the authorities by filing representation dated 15.07.2020 under Annexure-9 to the 1^st writ application in the case of Antaryami Tripathy.

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It is further submitted by learned counsel for the petitioners that since no action was taken on the representation of the petitioner under Annexure-9 to the writ application, the petitioners, namely, Antaryami Tripathy in the 1^st writ application had earlier approached

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// 5 //

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this Court by filing a writ application bearing W.P.(C) No.23691 of 2020. A coordinate Bench of this Court vide order dated 15.10.2020 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 15.10.2020. After disposal of the previous writ application, the above named petitioner approached the Opposite Party No.1 along with certified copy of the order dated 15.10.2020. The Opposite Party No.1 considered the representation of the petitioner and disposed of the same vide order dated 18.01.2021 under Annexure-11 to the writ application.

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On perusal of the impugned order dated 18.01.2021, 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.

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Being aggrieved by such order, the petitioner has approached this Court by filing the present writ application.

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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 18.01.2021 under Annexure-11 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

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// 6 //

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on 13.07.2020, the list prepared in the 2018 wherein admittedly, the names of the petitioners were 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 petitioners are 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.

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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 20181 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 petitioners were 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 due to non-availability of adequate number of SC & ST category candidates, 17 such posts reserved for them could not be filled up. It also appears that out of 54

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// 7 //

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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 for the year 2018 remained vacant.

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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 petitioners is justified to the extent that the names of the petitioners 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 petitioners 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.

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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 petitioners were found eligible and their names were kept in the waiting list of the year 2018 after due consideration by the selection committee and further keeping in

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// 8 //

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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 consider the case of the petitioners on production of certified copy of this order by the petitioner for promotion to the post of ORS Group B cadre.

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It is further directed that while considering the case of the petitioners for promotion to the ORS Group B cadre, the Opposite Party No.1 shall keep in view the fact that the petitioners were found eligible in the year 2018 and accordingly their names were included in the waiting list of candidates 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 petitioners are otherwise found eligible, the names of the petitioners be recommended for promotion to the ORS Group B cadre.

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With the aforesaid observation/direction, the writ petitions are disposed of.

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Urgent certified copy of this order be granted on proper application.

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Signature Not Verified

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Digitally Signed Signed by: JAGABANDHU BEHERA Designation: Secretary-in-Charge Reason: AuthenticationJagabandhu Location: OHC, CUTTACK Date: 13-Sep-2023 17:45:15

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( A.K. Mohapatra ) Judge

Antaryami Tripathy v. State of Odisha

Case brief

What is this about?

What did the court decide?

Antaryami Tripathy v. State of Odisha

Case brief

What is this about?

What did the court decide?

What the court decided

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