Orissa High Court
Harapriya Nanda vs State Of Odisha & Others .... Opposite ... on 12 October, 2023
Author: Biraja Prasanna Satapathy
Bench: Biraja Prasanna Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) (OA) No.2966 of 2016
An application under Section 19 of the State Administrative
Tribunal's Act, 1985.
..................
Harapriya Nanda .... Petitioner
-versus-
State of Odisha & Others .... Opposite Parties
For Petitioner : M/s. R. Roy, S.K. Singh, S.
Sourva, S.S. Mohanty & S.
Sahoo.
For Opp. Parties : M/s.M.K.Balabantaray,
Addl. Government Advocate
PRESENT:
THE HONBLE JUSTICE BIRAJA PRASANNA SATAPATHY
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Date of Hearing: 20.01.2023 and Date of Order: 15.02.2023
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Biraja Prasanna Satapathy, J.
1. The present Writ Petition has been filed by the Petitioner with a prayer to quash the order dated 06.12.2016 under Annexure-13 and with a further prayer to direct the Opposite Party No.3 to consider the case of the Petitioner for her appointment as Stipendiary Engineer (Civil) against the vacancy arose in the year 1993-94 i.e. before the cut-off date with all service and financial benefits.
// 2 //
2. The factual matrix giving rise to filing of the present case is that the Petitioner acquired degree in Civil Engineering in the year 1991. Pursuant to the scheme introduced by the Government in the Planning and Coordination Department on 22.09.1990, which provides for empanelment of Graduate Engineers, the Petitioner made the application for empanelment of her name on 17.08.1992 under Annexure-3. On receipt of such application, the name of the Petitioner was also included in the panel in the Branch Civil Engineering with SL. No.288 and Rank No.22 for the year 1991. In the said letter under Annexure-3, it was also indicated that in due course of time, the Petitioner will be intimated about her employment and placement.
2.1. It is contended that even though similarly situated candidates empanelled for the year 1991 were engaged as Stipendiary Engineers vide order dated 30.03.1994, on being sponsored, but the Petitioner was never sponsored in spite of her empanelment as reflected in Annexure-3. Thereafter, though vide letter dated 20.09.1994 under Annexure-6, the name of the Petitioner was sponsored by the Planning and Coordination Department to the Water Page 2 of 19 // 3 // Resources Department for her appointment as a Stipendiary Engineer, but the same was never considered by the Opposite Party No.3. Instead after more than six years and vide letter dated 29.03.2001 under Annexure-7, the Petitioner was intimated that since in the High Level Meeting taken up by the Minister, Water Resources Department on 18.01.1994. It was decided to stop the engagement of Stipendiary Engineer w.e.f. 30.09.1994 and the Petitioner's name sponsored by the Department on 20.09.1994 was received late, it is not possible to take any action regarding her engagement. In the said letter, it was indicated that since in the meantime challenging the inaction of the Water Resources Department, the Petitioner has approached the Tribunal in O.A No.328/1998, her case will be considered after finalization of the said case. 2.2. O.A No.328 of 1998 was disposed of by the Tribunal vide order dated 10.05.2006 under Annexure-8 by holding that the Petitioner's request for being considered for her appointment as a Stipendiary Engineer cannot be entertained. However, the Petitioner is at liberty to pursue her case with the Government for an appropriate posting. In terms of the order passed by the Tribunal on 10.05.2006, the Petitioner moved Opposite Party No.3 on Page 3 of 19 // 4 // 11.10.2006 under Annexure-9 with a prayer to provide her appointment as an Asst. Engineer under women reserve category quota as against one of the existing vacancy. 2.3. The Petitioner in the meantime being aggrieved by the order passed by the Tribunal on 10.05.2006 under Annexure-8 approached this Court in W.P.(C) No.6177 of 2007. But this Court taking into account the judgment passed in W.P.(C) No.12627 of 2005, held that no further order is required to be passed and accordingly disposed of the matter. As the claim of the Petitioner was not considered by the Opposite Party No.3, the Petitioner again moved the said Opposite Party No.3 on 23.06.2012 under Annexure-11 with a prayer to consider her case and appoint her as an Asst. Engineer (Civil) on ad hoc basis against the vacant post.
2.4. In spite of repeated approaches, when the Opposite Party No.3 did not take any action on the claim of the Petitioner, the Petitioner approached the Tribunal in O.A No.1228 of 2014. The Tribunal vide order dated 09.09.2016 disposed of the matter with a direction on the Opposite Party No.3 to consider and dispose of the representation of the Petitioner within a period of two Page 4 of 19 // 5 // months from the date of receipt of this order. The Opposite Party No.3 in terms of the order passed by the Tribunal under Annexure-12, when rejected the Petitioner's claim vide order dated 06.12.2016 under Annexure-13, the present Writ Petition was filed challenging the said order and with the other prayers as indicated hereinabove.
3. Mr. Rajeet Roy, learned counsel for the Petitioner vehemently contended that pursuant to the decision taken and communicated by the Planning and Coordination Department on 22.09.1990 under Annexure-2, the Petitioner when made her application for empanelment, the Petitioner was duly empanelled with SL. No.288 and Rank No.22 for the year 1991. Even though persons empanelled for the year 1991 were appointed as Stipendiary Engineer vide order dated 30.03.1994 under Annexure-10/1, on being sponsored from out of the panel, but the Petitioner was kept waiting as her name was not sponsored. 3.1. The name of the Petitioner though was sponsored by the Planning and Coordination Department on 20.09.1994 vide Annexure-6 with a request to the Opposite Party No.3 to provide appointment to the Petitioner as a Stipendiary Engineer, but the same was kept pending at his level and Page 5 of 19 // 6 // no step was taken by providing appointment to the Petitioner. The Department of Water Resources after remaining silent for more than six years intimated the Petitioner on 29.03.2001 vide Annexure-7 indicating therein that pursuant to the decision taken in the High Level Meeting chaired by the Hon'ble Minister, appointment of Stipendiary Engineer w.e.f. 30.09.1994 has been stopped and the letter sponsoring the name of the Petitioner on 20.09.1994 since was received late, it is not possible to provide appointment to the Petitioner. In the said letter, it was indicated that since the Petitioner in the meantime challenging the inaction of the Opposite Party No.3 in providing appointment has approached the Tribunal in O.A No.328 of 1998, the case of the Petitioner will be considered after finalization of the matter by the Tribunal. 3.2. Learned counsel for the Petitioner contended that vide order dated 10.05.2006 under Annexure-8 though the Tribunal disposed of the matter but held that the Petitioner's request for being considered for her appointment as Stipendiary Engineer cannot be entertained. But however the Tribunal granted liberty to the Petitioner to pursue her case with the Government for an appropriate posting.
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// 7 // 3.3. Pursuant to the liberty granted by the Tribunal in its order under Annexure-8, the Petitioner moved the Opposite Party No.3 under Annexure-9 and Annexure-11 and 11/1 with a request to provide her appointment as an Asst. Engineer on Ad hoc basis taking into account the vacancies available at that point of time. As no action was taken on such claim of the Petitioner, the Petitioner once again approached the Tribunal in O.A No.1228/2014. The Tribunal vide order dated 09.09.2016 under Annexure-12 disposed of the matter with a direction on the Opposite Party No.3 to take a decision on the Petitioner's claim. However, Opposite Party No.3 without proper appreciation of the Petitioner's claim for appointment, rejected the prayer vide the impugned order dated 06.02.2016 under Annexure-13. Hence, the present Writ Petition. 3.4. Learned counsel for the Petitioner contended that the Petitioner was discriminated when her name was not sponsored, while sponsoring the name of the other empanelled candidates for the year 1991, who were subsequently engaged vide order dated 30.03.1994 under Annexure-10/1. Even though the Petitioner's name was sponsored vide letter dated 20.09.1994 under Annexure-6, but the Opposite Party No.3 kept the matter pending till Page 7 of 19 // 8 // 29.03.2001, when she was intimated that because of the decision taken by the High Power Committee, the Petitioner cannot be provided with the appointment. Even though the Tribunal in O.A No.328 of 1998 refused to consider the case of the Petitioner, but granted her liberty to pursue her case before the Government for an appropriate posting. 3.5. In terms of the said liberty, the Petitioner though approached the Opposite Party No.3 under Annexure-9 as well as under Annexure-11 and 11/1, but Opposite Party No.3 never considered the case of Petitioner. Challenging such inaction of the Opposite Party No.3, the Petitioner approached the Tribunal in O.A No.1228 of 2014 and the Tribunal vide order dated 09.09.2016 when directed the Opposite Party No.3 to consider her case, the said Opposite Party without proper appreciation of the Petitioner's claim vis-à-vis the admitted illegalities committed by the Opposite Parties in not providing her appointment, rejected the claim vide the impugned order dated 06.12.2016 under Annexure-13.
3.6. It is accordingly contended that the impugned order under Annexure-13 is not sustainable in the eye of law and the same is liable to be quashed with a direction on the Page 8 of 19 // 9 // Opposite Party No.3 to consider the case of the Petitioner for her appointment as a Stipendiary Engineer.
4. Mr. M.K. Balabantaray, learned Addl. Government Advocate on the other hand made his submission basing on the stand taken in the counter affidavit. It is contended that the appointment of the Stipendiary Engineer was neither covered under State Civil Services nor under Class- II, III and IV. The appointment of the Stipendiary Engineer was a special one made at that point of time to provide employment to the unemployed Graduate Engineers of the State. Even though, the Water Resources Department provided appointment to such Stipendiary Engineers, who were sponsored by the Planning and Coordination Department, but w.e.f. 01.10.1994 the engagement of the Stipendiary Engineer was stopped in the Department of Water Resources. Stipendiary Engineers engaged up to 30.09.1994 were appointed as Ad hoc Asst. Engineer and thereafter their services were regularized through Odisha Service of Engineers (Validation of Appointment) Act, 2002. 4.1. It is also contended that even though the name of the Petitioner was sponsored by the Planning and Coordination Department on 20.09.1994 under Annexure-6, but that Page 9 of 19 // 10 // was sponsored without any requisition made by the Water Resources Department and the said recommendation was also received at a belated stage when the process of appointment of Stipendiary Engineer was completely stopped by the Department of Opposite Party No.3. 4.2. It is also contended that challenging the inaction of the Opposite Party No.3, the Petitioner though approached the Tribunal in O.A No.328/1998, but the Tribunal in its order under Annexure-8 refused to consider the prayer of the Petitioner and only gave her liberty to pursue the matter with the Government. Pursuant to the order passed by the Tribunal under Annexure-8, the Petitioner moved the Opposite Party No.3 on different occasion with a prayer to provide her appointment as a Stipendiary Engineer and /or Ad hoc Assistant Engineer. The said claim of the Petitioner when was not considered, she again approached the Tribunal in O.A No.1228 of 2014. Pursuant to the order passed by the Tribunal on 09.09.2016 under Annexure-12, the Opposite Party No.3 considered the Petitioner's claim and rejected the prayer by a reasoned order passed on 06.12.2016 under Annexure-13.
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// 11 // 4.3. It is also contended that since the engagement of the Stipendiary Engineers in the Department of Water Resources was completely stopped w.e.f. 01.10.1994, the prayer made by the Petitioner is not entertainable at present.
4.4. Learned Addl. Government Advocate also contended that the Petitioner in the meantime has already attained the age of 50 years and she cannot be provided with any appointment taking into account her age and the present day selection procedure. It is also contended that the claim of the Petitioner for her appointment was not considered by the Tribunal while disposing the O.A No.328 of 1998 under Annexure-8. The said order though was challenged by the Petitioner before this Court in W.P.(C) No.6177 of 2007, but this Court disposed of the matter vide order dated 18.11.2009 in the light of the judgment passed in W.P.(C) No.12627 of 2005.
4.5. It is accordingly contended that no illegality or irregularity has been committed by the Opposite Party No.3 in rejecting the claim of the Petitioner vide the impugned order passed under Annexure-13.
Page 11 of 19
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5. Taking into account the submissions made by the learned Addl. Government Advocate, Mr. Roy, learned counsel appearing for the Petitioner contended that since due to the admitted latches of the Opposite Parties, the Petitioner was deprived from being appointed as a Stipendiary Engineers in the year 1994 and her claim was never considered in spite of several approaches, the Petitioner in view of such illegalities meted out to her, entitled to get suitable compensation as deem fits and proper by this Court for such admitted negligence on the part of the Opposite Parties in keeping her out of employment.
Learned counsel for the Petitioner relies on a decision of this Court reported in 1998(I) OLR-108 and another decision of the Hon'ble Apex Court in the case of Rabindranath Ghosal vrs Calcutta University & Others reported in (2002) 7 SCC-478.
5.1. Hon'ble Apex Court in Para-9 of the case in Rabindranath Ghosal has held as follows:-
"9. The Courts having the obligation to satisfy the social aspiration of the citizens have to apply the tool and grant compensation as damages in a public law proceedings. Consequently when the Court moulds the relief in proceedings under Articles 32 and 226 of the Constitution seeking enforcement or protection of Page 12 of 19 // 13 // fundamental rights and grants compensation, it does so under the public law by way of penalising the wrongdoer and fixing the liability for the public wrong on the State which has failed in its public duty to protect the fundamental rights of the citizens. But it would not be correct to assume that every minor infraction of public duty by every public officer would commend the Court to grant compensation in a petition under Articles 226 and 32 by applying the principle of public law proceeding. The Court in exercise of extraordinary power under Articles 226 and 32 of the Constitution, therefore, would not award damages against public authorities merely because they have made some order which turns out to be ultra vires, or there has been some inaction in the performance of the duties unless there is malice or conscious abuse. Before exemplary damages can be awarded it must be shown that some fundamental right under Article 21 has been infringed by arbitrary or capricious action on the part of the public functionaries and that the sufferer was a helpless victim of that act".
5.2. Mr. Ray, also relies on another decision of the High Court of Gujarat passed in the case of Nilubahen Gordhanbhai Machhi vrs. State of Gujarat. In Para-16 and 19.6 has held as follows:-
"16. Furthermore, insofar as the submissions on behalf of the State that a candidate does not get an indefeasible right merely on account of name of the said candidate figuring in the select/waiting list, in the considered opinion of this Court, the State cannot be heard to submit the said contention more particularly when the State itself had recommended for operating the waiting list, which had been turned down by the GPSC. In any case, in the considered opinion of this Court, the proposition that a candidate whose name appearing in the select list does not get an indefeasible right for appointment is not a completely unqualified proposition, rather such proposition has been clarified by the Hon'ble Apex Court by holding that the State cannot act in an arbitrary manner and the decision not to fill up vacancies has to be taken bona fide for appropriate reasons. This Court at this stage proposes to refer to the decision of the Constitutional Bench of the Hon'ble Apex Court in case of Shankarsan Dash Vs. Union of India, reported in (1991) 3 SCC 47. Paragraphs 7 and 8 of the Page 13 of 19 // 14 // said decision being relevant for the purpose are reproduced herein below for benefit:-
"7. It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted. This correct position has been consistently followed by this Court, and we do not find any discordant note in the decisions in State of Haryana v. Subhash Chander Marwaha and Others, [1974] 1 SCR 165; Miss Neelima Shangla v. State of Haryana and Others, [1986] 4 SCC 268 and Jitendra Kumar and Others v. State of Punjab and Others, [1985] 1 SCR 899.
8. In State of Haryana v. Subhash Chander Marwaha and Others, (supra) 15 vacancies of Subordinate Judges were advertised, and out of the selection list only 7, who had secured more than 55% marks, were appointed, although under the relevant rules the eligibility condition required only 45% marks. Since the High Court had recommended earlier, to the Punjab Government that only the candidates securing 55% marks or more should be appointed as Subordinate Judges, the other candidates included in the select list were not appointed. They filed a writ petition before the High Court claiming a right of being appointed on the ground that vacancies existed and they were qualified and were found suitable. The writ application was allowed. While reversing the decision of the High Court, it was observed by this Court that it was open to the Government to decide how MANY appointments should be made and although the High Court had appreciated the position correctly, it had ``somehow persuaded itself to spell out a right in the candidates because in fact there were 15 vacancies''. It was expressly ruled that the existence of vacancies does not give a legal right to a selected candidate. Similarly, Page 14 of 19 // 15 // the claim of some of the candidates selected for appointment, who were petitioners in Jitendra Kumar and Others v. State of Punjab and Others, was turned down holding that it was open to the Government to decide how many appointments would be made. The plea of arbitrariness was rejected in view of the facts of the case and it was had that the candidates did not acquire any right merely by applying for selection or even after selection. It is true that the claim of the petitioner in the case of Miss Neelima Shangla v. State of Haryana was allowed by this Court but, not on the ground that she had acquired any right by her selection and existence of vacancies. The fact was that the matter had been referred to the Public Service Commission which sent to the Government only the names of 17 candidates belonging to the general category on the assumption that only 17 posts were to be filled up. The Government accordingly made only 17 appointments and stated before the Court that they were unable to select and appoint more candidates as the Commission had not recommended any other candidate. In this background it was observed that it is, of course, open to the Government not to fill up all the vacancies for a valid reason, but the selection cannot be arbitrarily restricted to a few candidates notwithstanding the number of vacancies and the availability of qualified candidates; and there must be a conscious application of mind by the Government and the High Court before the number of persons selected for appointment is restricted. The fact that it was not for the Public Service Commission to take a decision in this regard was emphasised in this judgment. None of these decisions, therefore, supports the appellant".
xxx xxx xxx 19.6. Since this Court has come to a conclusion that the petitioners were forced to approach this Court on account of GPSC relying upon a Circular of the Government or on such portion of the Circular which has been declared to be arbitrary and violative of Article 14 and 16 of the Constitution, therefore, the respondent No.2 GPSC is required to be saddled with costs, which would be payable to the petitioners. Costs quantified at Rs.25,000/- in each of the petitions is imposed upon GPSC, which shall be paid by GPSC through the Registry of this Court to the respective petitioners".
6. I have heard Mr. R. Roy, learned counsel for the Petitioner and Mr. M.K. Balabantaray, learned Addl. Page 15 of 19
// 16 // Government Advocate for the State. On the consent of the learned counsel appearing for both the Parties, the matter was taken up for final disposal at the stage of admission and disposed of by the present order.
7. Having heard learned counsel for the Parties and after going through the materials available on record, it is found that the Petitioner was duly empanelled for her appointment as a Stipendiary Engineer in the Civil Engineering Branch vide SL. No.288 and Rank No.22 for the year 1991. It is also found that similarly situated empanelled candidate for the year 1991 on being sponsored by the Planning and Coordination Department-Opposite Party No.2 were appointed as Stipendiary Engineers vide order dated 30.03.1994 under Annexure-10/1. Subsequently, though the Petitioner's name was sponsored by the Opposite Party No.2 to the Department of Opposite Party No.3 vide letter dated 20.09.1994 under Annexure-6, but the Petitioner was never appointed by the Opposite Party No.3. Opposite Party No.3 after remaining silent for more than six years intimated vide letter dated 29.03.2001 under Annexure-7 that the Petitioner's case cannot be considered because of the decision taken by the Department not to appoint any Stipendiary Engineer on and after 01.10.1994. Page 16 of 19
// 17 // 7.1. The Petitioner challenging the inaction of the Opposite Party No.3 in providing her appointment though approached the Tribunal in O.A No.328 of 1998, but the Tribunal vide its order dated 10.05.2006 under Annexure-8 declined to consider the case of the petitioner. The Order passed by the Tribunal though was challenged by the Petitioner before this Court in W.P.(C) No.6177 of 2015, but this Court disposed of the matter vide order dated 18.11.2009 in the light of the judgment passed in W.P.(C) No.12627 of 2005.
7.2. This Court after going through the order passed in W.P.(C) No.12627 of 2005 found that the decision rendered in the said case is no way applicable to the case of the Petitioner. But pursuant to the liberty granted by the Tribunal, the Petitioner though moved the Opposite Party No.3 under Annexures-9 and 11 with a request to appoint her as Ad-hoc Assistant Engineer taking into account the vacancies available at that point of time, but the Opposite Party No.3 never considered her claim. Only when the Tribunal in O.A No.1228 of 2014 vide order under Annexure-12 directed the Opposite Party No.3 to take a decision, Opposite Party No.3 rejected the prayer vide order dated 06.12.2016 under Annexure-13.
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// 18 // 7.3. From the material placed before this Court, it is found that even though the Petitioner was empanelled for her appointment as a Stipendiary Engineer with assignment of Serial Number and Rank for the year 1991, but similarly situated candidates empanelled in the year 1991 were appointed as Stipendiary Engineers on being sponsored vide order dated 30.03.1994 under Annexure-10/1. The said appointees were subsequently appointed as regular Asst. Engineer by virtue of the Validation Act issued by the Government. Vide letter dated 20.09.1994 under Annexure-6. The Opposite Party No.2 though sponsored the name of the Petitioner to Opposite Party No.3 for her appointment as Stipendiary Engineers on 20.09.1994 but the same was kept pending till 29.03.2001. Vide letter dated 29.03.2001 under Annexure-7, the Petitioner was only intimated that the Department is unable to provide appointment to the Petitioner as there is a bar for such appointment of Stipendiary Engineers on and after 1.10.1994 as per the decision taken by the High Power Committee.
7.4. In view of the order passed by the Tribunal under Annexure-8, which was not interfered with when challenged before this Court in W.P.(C) No.6177 of 2007, it is the view Page 18 of 19 // 19 // of this Court that the prayer as made in the Writ Petition cannot be entertained at present. However, taking into account the sufferings meted out to the Petitioner and the alleged discrimination meted out to her, this Court basing on the decisions as cited (supra) is inclined to held the Petitioner entitled to get compensation as the Petitioner because of the inaction of the Opp. Parties was deprived of her livelihood, which amounts to violation of Article-21 of the Constitution of India.
7.5. This Court taking into account the entireties of the facts while holding the Petitioner entitled to get compensation of Rs.5,00,000/- (Rupees Five Lakhs) directs the Opposite Party No.3 to release the amount within a period of two months from the date of receipt of this order.
8. With the aforesaid observations and directions, the WPC(OA) stands disposed of.
(Biraja Prasanna Satapathy) Judge Orissa High Court, Cuttack Dated the 15th of February, 2023/ (Subrat) Signature Not Verified Digitally Signed Signed by: SUBRAT KUMAR BARIK Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 12-Oct-2023 18:00:34 Page 19 of 19