Orissa High Court
Pradeep Kumar Jena vs State Of Odisha And Others on 6 July, 2017
Author: B.R. Sarangi
Bench: B.R. Sarangi
HIGH COURT OF ORISSA : CUTTACK
W.P.(C) NO. 7722 OF 2016
In the matter of an application under Articles 226 and 227 of
the Constitution of India.
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AFR
Pradeep Kumar Jena ........ Petitioner
-Versus-
State of Odisha and others ......... Opp. Parties
For petitioner : M/s. A.R. Dash, S.K. Nanda-1,
B. Mohapatra, N. Swain, K.S. Sahoo,
A. Mahanta & G. Chaitanya,
Advocates.
For opp. parties : Mr. L. Samantray,
Addl. Govt. Advocate.
(opposite party nos. 1 to 3)
Ms. Deepali Mohapatra, Advocate.
(opposite party no.5)
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PRESENT
THE HON'BLE DR. JUSTICE B.R. SARANGI
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Date of argument: 06.07.2017 : Date of Judgment: 06.07.2017
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DR. B.R. SARANGI, J. The petitioner has filed this application
challenging the notification dated 21.01.2016 in Annexure-6 for
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engagement of 'Jogan Sahayak' in respect of Alipur Gram
Panchayat under Aska Panchayat Samiti in the district of
Ganjam and further seeks for a direction to the opposite parties
to allow him to continue as 'Jogan Sahayak' in place of his
present assignment as salesman.
2. The factual matrix of the case is that the petitioner is
a Graduate in Arts and permanent resident of Alipur Gram
Panchayat. He was given engagement on 04.03.2013 as a
salesman by Alipur Gram Panchayat with the previous approval
of District Panchayat Officer, Ganjam under Rule-219 of the
Gram Panchayats Rules, 1968. Pursuant to such engagement,
he was discharging his duty, i.e., sale of wheat, rice and sugar
at the fair price shop, which was opened at the concerned Gram
Panchayat to deal with the sale of less than 150 quintals of PDS
items in a month. Since there was increase of ration cards and
quantum of sale of the PDS commodities, Alipur Gram
Panchayat submitted resolution to the Panchayat Samiti, Aska
for engagement of 'Jogan Sahayak'. The said proposal was
submitted referring to the letter dated 27.04.2012 of opposite
party no.1 and letter dated 09.01.2016 of opposite party no.2.
In response to the same, notification was issued on 21.01.2016
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in Annexure-6 for engagement of 'Jogan Sahayak' in Alipur
Gram Panchayat vide. Apprehending loss of his job, the
petitioner has approached this Court by filing the present writ
petition.
3. Mr. A.R. Dash, learned counsel for the petitioner
states that since the petitioner was engaged as a salesman to
deal with the PDS commodities on 04.03.2013, he should have
been engaged as 'Jogan Sahayak'. He relies upon two
documents, which have been annexed as Annexures-8 and 9 to
the objection filed by the petitioner to Misc. Case No.11223 of
2016 filed for vacation of interim order. In Annexure-8 dated
10.05.2016direction has been given by the government to all the Collectors to extend the relaxation in educational qualification and preference in appointment of 'Jogan Sahayak' to the salesman in rest of the 17 districts in the State, in view of the fact that in respect of 13 districts such benefit has already been extended, with the stipulation that such modification shall not be applicable to those Gram Panchayats who have already completed the process of selection as per the instruction issued by the department vide letters dated 21.04.2012 and 27.04.2012. In Annexure-9 dated 22.06.2016 the Block 4 Development Officer has intimated the Panchayat Executive Officers of some of the panchayats with regard to engagement of 'Jogan Sahayak'. It is stated that in the said notification, the name of Alipur Gram Panchayat has not been indicated and, therefore, the process of selection has not been completed. In such view of the matter, the case of the petitioner should be considered for engagement of 'Jogan Sahayak' on preferential basis in view of the letter dated 10.05.2016.
4. Mr. L. Samantray, learned Addl. Govt. Advocate states that the process of selection for engagement of 'Jogan Sahayak' for Alipur Gram Panchayat has already been completed on 30.04.2016 and thereafter the petitioner has approached this Court on 03.05.2016 and this Court vide order dated 09.05.2016 passed interim order to the extent that the process of selection in respect of 'Jogan Sahayak' for Alipur Gram Panchayat under Aska Panchayat Samiti shall continue, but no selection shall be made without leave of the Court. By virtue of the interim order even though the selection has already been over on 30.04.2016, the name of the candidate has not been indicated in the letter dated 22.06.2016 by the BDO. But, as a matter of fact, pursuant to the selection made on 5 30.04.2016, opposite party no.5 has stood first in the select list and she is to be engaged as 'Jogan Sahayak' in place of the petitioner.
5. Ms. Deepali Mohapatra, learned counsel for opposite party no.5 contended that there is suppression of fact by the petitioner while approaching this Court by filing the present writ petition. Pursuant to the advertisement issued in Annexure-6, the petitioner along with opposite party no.5 had participated in the process of selection for the post of 'Jogan Sahayak' and having failed in the said selection process, the petitioner has approached this Court by filing the present writ petition only on 03.05.2016, by which time the selection process for 'Jogan Sahayak' in respect of Alipur Gram Panchayat had already been completed on 30.04.2016. Therefore, having participated in the process of selection and failed therein, he could not have turned around and said that this Court should interfere with the process of selection and grant relief to him. So far as applicability of the documents relied upon in Annexures-8 and 9 are concerned, it is contended that the selection having been over on 30.04.2016, in view of the rider given in the letter dated 10.05.2016, the same is not applicable. Thereby, the writ petition filed by the 6 petitioner has to be dismissed because of suppression of facts as stated above.
6. Having heard learned counsel for the parties and after going through the records, since pleadings between the parties have been exchanged and with the consent of learned counsel for the parties, this writ petition is disposed of finally at the stage of admission.
7. The admitted fact being that the petitioner was engaged as a salesman on 04.03.2013 in Alipur Gram Panchayat and he was discharging his duty. Since there was enhancement of ration cards and the monthly turn over exceeded, as per the government instruction, recommendation was made by Alipur Gram Panchayat for engagement of 'Jogan Sahayak'. On consideration of the same, instructions were given to the Gram Panchayats to fill up the posts of 'Jogan Sahayak' by issuing fresh advertisement. Consequentially, Annexure-6 was issued on 21.01.2016 inviting applications from the eligible candidates for engagement of 'Jogan Sahayak'. In response to the said advertisement, petitioner along with opposite party no.5 and others applied for the said post and the process of selection was continued. Thereafter, in the process of selection 7 opposite party no.5 stood first pursuant to the select list which has been annexed as Annexure-A/3 to the counter affidavit filed by opposite party no.3. When the petitioner came to know that he could not come out successful in the process of selection, he approached this Court by filing the present writ petition and this Court on 09.05.2016 passed interim order that the process of selection in respect of 'Jogan Sahayak' for Alipur Gram Panchayat under Aska Panchayat Samiti would continue, but no selection would be made without leave of the Court. The petitioner has approached this Court on 03.05.2016, and by that time the process of selection had already been over and merit list had already been prepared. It is therefore clear that the petitioner, knowing fully well that he would not come out successful in the process of selection, approached this Court by filing the present writ petition. This fact having been suppressed by the petitioner, it is construed that he has not come before this Court with clean hand. The petitioner, having participated in the process of selection and declared fail, no right is accrued in his favour.
8. It is well settled law laid down by the apex Court in Madan Lal and others v. State of Jammu and Kashmir and 8 others, AIR 1995 SC 1088, that if a candidate takes a calculated chance and appears at the interview then, only because the result of the interview is not palatable to him, he cannot turn round and subsequently contend that the process of interview was unfair or Selection Committee was not properly constituted. In the case of Om Prakash Shukla v. Akhilesh Kumar Shukla, AIR 1986 SC 1043, it has been clearly laid down by a Bench of three learned Judges of the apex Court that when the petitioner appeared at the examination without protest and when he found that he would not succeed in examination, he filed a petition challenging the said examination, the High Court should not have granted any relief to such a petitioner.
9. Reverting back to Annexure-8 dated 10.05.2016, on which reliance has been placed by the petitioner, it is seen that by the said letter the Joint Secretary to the Govt. in Food Supplies and Consumer Welfare Department has instructed the Collectors to give preference in appointment of 'Jogan Sahayak' to the salesman appointed by the Gram Panchayats of 17 districts because of the fact that in respect of 13 districts such benefit has already been granted. However, it has been clearly 9 stipulated therein that such modification will not be applicable to those Gram Panchayats who have already completed the process of selection as per the instruction of the department letters dated 21.04.2012 and 27.04.2012. It is pertinent to mention here that by the time the notification dated 10.05.2016 had seen the light of the day, the selection process for engagement of 'Jogan Sahayak' for Alipur Gram Panchayat was already over on 30.04.2016, in which opposite party no.5 stood first and the petitioner, who was working as salesman in the said Gram Panchayat, could not be able to compete with her and was not selected.
10. So far as the reliance placed on Annexure-9 dated 22.06.2016, it is of no help to the petitioner, the reason being though the selection process had already over on 30.04.2016, the BDO did not indicate the name of the selected candidate because of the interim order passed by this Court on 09.05.2016 that the selection process would continue, but no selection would be made without taking leave of the Court.
11. In view of the aforesaid facts and circumstances, this Court is of the considered view that the writ petition merits no consideration and accordingly the same is dismissed. In view of 10 the selection dated 30.04.2016, the State opposite parties are directed to implement the same as expeditiously as possible, preferably within a period of two months from the date of communication of this order.
Sd/-
(DR. B.R. SARANGI ) JUDGE The High Court of Orissa, Cuttack Dated the 6th July, 2017/Ashok True copy Sr. Secretary