Madhusmita Barik Vs State of Odisha

Heard learned counsel for the Petitioner as well as learned Additional Standing Counsel appearing counsel for the State-Opposite Parties. Perused the writ petition as well as the documents annexed thereto.

¶15

By filing the present writ petition, the Petitioner calls in question the conduct of the Opposite Parties, particularly the Opposite Party No.2-the Collector, Cuttack, in not absorbing the service of the Petitioner in the post of Accountant-cum-Data Entry Operator in terms of the Notification dated 27.02.2024 of the Panchayati Raj & D.W. Department while absorbing similarly situated Gram Rojgar Sevak

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(GRS) in the post of Accountant-cum-Data Entry Operator by resorting to the one time measure prescribed in Rule-10 of the Odisha Accountant-cum-Data Entry Operator (Method of Recruitment and Conditions of Service) Rules, 2024 notified vide Notification dated 27.02.2024.

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Learned counsel for the Petitioner, at the outset, contended that the Petitioner, who is initially recruited as Gram Rojgar Sevak (GRS), has completed more than 5 years of continuous service as GRS. He further contended that on 15.12.2020, a gradation list of GRS was prepared by the Opposite Parties under Annexure-4 to the writ petition. Such draft gradation list includes the name of the Petitioner which finds place against at Serial No.259 of the list. Further, the draft gradation list reveals the date of initial joining of the Petitioner as 25.08.2011 and her present posting is at Niali Block. He further submitted that while the Petitioner was continuing as GRS, the State Government, on 07.01.2022, created 7142 posts of Accountant-cum-DEO vide their decision under Annexure-1 to the writ petition. While this was the position, the State Government came up with a set of guidelines dated 12.03.2024, under Annexure-3 to the writ petition, for appointment of Accountant-cum-Data Entry Operator.

¶19

Learned counsel for the Petitioner, in course of his argument, referred to the Odisha Accountant-cum-Data Entry Operator (Method of Recruitment and Conditions of Service) Rules, 2024 (Hereinafter referred to as “the Rules, 2024”). Such rules were notified on 27.02.2024 by the Panchayati Raj & D.W. Department and the same has been filed as Annexure-2 to the writ petition. He further referred to Rule-10 of the Rules, 2024. While laying specific emphasis on the proviso to Rule-10(1) of the Rules, 2024, learned counsel for the

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Petitioner further contended that the State Government, as an one time measure, has provided that the GRSs who have completed 5 (five) years of continuous service on the date of commencement of the Rules, 2024, shall be absorbed on regular basis against vacant posts of Accountant-cum-Data Entry Operators subject to fulfilment of other conditions of service and relaxation of upper age limit, if required. Thereafter, the subsequent vacant posts created in the cadre of Accountant-cum-Data Entry Operator shall be filled up as per the provisions prescribed in the Rules, 2024. In other words, the existing GRSs, who have completed 5 years of continuous service and fulfilled other conditions of service, are to be absorbed as Accountant-Data Entry Operator before going for fresh recruitment from the open market by following the Rules, 2024.

¶22

In course of his argument, learned counsel for the Petitioner referred to the judgment of the coordinate Bench in Ashis Kumar Debta v. State of Odisha and others (W.P.(C) No.5838 of 2024 decided vide judgment dated 09.07.2024). He further submitted that an identical issue was before the coordinate Bench of this Court, i.e. with regard to absorption of the GRS who have completed 5 years of continuous service. The learned coordinate Bench while interpreting the proviso to Rule-10(1) of the Rules, 2024 has categorically held that after the Rules, 2024 came into force the existing GRSs, who have completed 5 years of continuous service and subject to fulfilment of other conditions, are to be absorbed first and the residual vacancy in the post of Accountant-cum-Date Entry Operator is to be filled up in terms of the Rules, 2024. Learned counsel for the Petitioner further laid specific emphasis on paragraphs-12, 13 and 14 of the judgment in Ashis Kumar Debta’s case (supra). For better understanding, the same

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are quoted herein below:-

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“ 12. It would now be proper to examine the statutory provision keeping the settled position of law as referred to above in the perspective. As is evident, Rule 10 lays down the procedure for filing of vacancies by way of selection. Rule 4 provides that not less than 70% of the cadre strength shall be filled up by way of direct recruitment and not more than 30% of the cadre strength shall be filled up means of selection of the eligible GRS engaged under MGNREGS Scheme. Coming back to Rule 10, Rules (1)(2)(3)(4) and (5) relate to the procedure to be followed for selection of eligible GRS for the post of Accountant-cum-Data Entry Operator. The proviso to Sub-rule (1) however carves out an exception for those GRS who have completed 5 years of continuous service on the date of commencement of this Rule. The proviso speaks of ‘absorption’ and not ‘selection’. This is the most significant distinction. Such absorption has been made subject to fulfillment of ‘other conditions ofservice’ and ‘relaxation of upper age limit if required.’The proviso thereafter goes on to state in clear and unambiguous terms that ‘subsequent vacant posts’ created in the cadre shall be filled up as per the provisions prescribed in the rules. Plainly understood, this means that while filing up of the post of Accountant-cum-Data Entry Operator is ordinarily to be done by way of selection of eligible GRS, the State also deemed it proper to provide for another avenue for filling up the post from amongst the existing GRS, who have completed 5 years of continuous service by way of ‘absorption’. Obviously, absorption cannot be equated with selection. That apart, the proviso itself makes it clear that the procedure laid down in the rules shall be applied only for those vacancies that arise after the one time measure of absorption is over. The use of the words ‘subsequent vacant posts’ can have no other meaning. Thus, in order to be eligible for absorption the GRS must have completed five years of continuous service as such. Though it is stated that such absorption shall be subject to fulfillment of other conditions of service but the same has not been

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clarified adequately. It would however suffice for the present purpose to note that in so far as the absorption on regular basis of an existing GRS is concerned, the rules would have no application.

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13. Coming to the facts of the present case, the Petitioner having completed 5 years of continuous service can be considered for absorption on regular basis subject to fulfillment of other service conditions and relaxation of age. Obviously, the procedure prescribed for selection to the post cannot be applied to his case. As such, reference to Clause (b) of Subrule(5) of Rule 10 by the State appears to be misconceived. To reiterate, had it been a case of selection the afore quoted provision would have had direct application, but not so in case of absorption in view of the reasons spelt out hereinbefore.

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14. Thus, from what has been narrated hereinbefore, this Court finds that if the Petitioner is found to have completed five years of continuous service as on the date of coming into force of the Rules, i.e. 27.2.2024, then he is entitled to be considered for absorption on regular basis to the post of Accountant-cum-Data Entry Operator subject to fulfillment of other service conditions and relaxation of age, if required.”

¶30

Reverting back to the facts of the present case, learned counsel for the Petitioner contended that although the Petitioner has rendered more than 5 years of continuous service and she fulfils other service conditions and the name of the Petitioner having been recommended by the Block Development Officer, Niali, which fact was brought on record by way of additional affidavit filed in Court today after serving a copy thereof on the learned counsel for the State, the case of the Petitioner has not been considered by the Opposite Parties for absorption. He further alleged that such conduct of the Opposite Parties in not considering the case of the Petitioner for absorption amounts to gross discrimination against the Petitioner as similarly

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situated persons have already been absorbed in the meantime.

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Learned counsel for the State, on the other hand, contended that although he has not obtained any instruction in the meantime, however on perusal of the writ petition and the averments made therein, it appears that the case of the Petitioner has not been rejected as of now. He further submitted that in the event the Petitioner is covered by the proviso to Rule-10(1) of the Rules, 2024, the Petitioner should have first approached the competent authority, i.e. Opposite Party No.2-the Collector, Cuttack. He further contended that instead of approaching the Opposite Party No.2-Collector, Cuttack, the Petitioner has approached this Court directly by filing the present writ petition. On such ground, learned counsel for the State further contended that in the event this Court directs the Opposite Party No.2-Collector, Cuttack to consider the case of the Petitioner in accordance with the Rules and the judgment of the coordinate Bench of this Court in Ashis Kumar Debta’s case (supra), he will have no objection to the same.

¶34

Having heard the learned counsels appearing for the respective parties and on a careful examination of the background facts as well as the documents annexed to the writ petition and further keeping in view the provisions contained in the proviso to Rule-10(1) of the Rules, 2024 and the interpretation thereof by the learned coordinate Bench of this Court in Ashis Kumar Debta’s case (supra), this Court disposes of the writ petition at this stage by directing the Petitioner to approach the Opposite Party No.2-Collector, Cuttack along with a copy of this order within a period of two weeks from today. In such eventuality, the Opposite Party No.2 shall consider the case of the Petitioner by keeping in view the provision contained in the proviso to Rule-10(1) of the Rules, 2024 as well as the judgment of a learned coordinate Bench

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of this Court in Ashis Kumar Debta’s case (supra). A copy of the judgment in Ashis Kumar Debta’s case (supra) shall also be produced along with a certified copy of this order by the Petitioner before the Opposite Party No.2-Collector, Cuttack. It is further directed that the Opposite Party No.2 shall consider the case of the Petitioner in terms of the aforesaid rules and the judgment of the learned coordinate Bench of this Court and redress the grievance of the Petitioner by passing a speaking and reasoned order within a period of eight weeks from the date the Petitioner approaches before the Opposite Party No.2Collector, Cuttack. The final decision so taken be communicated to the Petitioner, as expeditiously as possible, preferably within a period of ten days from the date of taking such decision.

¶37

It is needless to mention here that in the event the Petitioner has completed 5 years of continuous service and fulfils other service conditions, then necessary steps be taken for absorbing the Petitioner in the post of Accountant-cum-Data Entry Operator by relaxing the upper age limit, if required, as has been provided in the proviso to Rule-10(1) of the Rules, 2024.

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With the aforesaid observation and direction, the writ petition is disposed of.

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( A.K. Mohapatra ) Judge

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Debasis

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Signature Not Verified

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Digitally Signed Signed by: DEBASIS AECH Reason: Authentication Location: ORISSA HIGH COURT Date: 23-Apr-2025 17:29:25

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Madhusmita Barik v. State of Odisha

Case brief

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Madhusmita Barik v. State of Odisha

Case brief

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