Orissa High Court
Chakradhar Sahoo vs Cesu And Others on 12 October, 2017
Author: S. N. Prasad
Bench: Sujit Narayan Prasad
HIGH COURT OF ORISSA: CUTTACK.
W.P. (C) No.8091 of 2009
In the matter of application under Articles 226 and 227 of the
Constitution of India.
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Chakradhar Sahoo ...... Petitioner
- Versus-
CESU and others ...... Opposite Parties
For Petitioner : In person.
For Opposite Parties :Mr. B.K. Nayak, J.N. Rath, S.K. Sethy,
P.S. Samantara, S.K. Mishra, M/s. P.
Patnaik, R.C. Patnaik, S. B. Satpathy,
Miss. S.L. Patnaik and S. Parida
PRESENT:
THE HONOURABLE SHRI JUSTICE SUJIT NARAYAN PRASAD
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Date of hearing and judgment : 12.10.2017
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S. N. Prasad, J.This writ petition is under Article 226 and 227 of the Constitution of India wherein the following prayers have been made; i. To hold and declare the impugned selection to the post of Divisional Accountant pursuant to third D.T. Examination conducted by CESU in April, 2008 as bad and illegal and thereby to quash the impugned illegal selection and appointment orders of the opposite parties 3 to 6 to the post 2 of Divisional Accountant with a further direction to hold a fresh selection or to consider the case of the petitioner in its right prospective by allowing a fresh valuation of English Paper-I of the petitioner through an expert in English.
ii. direct/order/command the opposite parties 1 and 2 to allow promotion to the petitioner to the post of Divisional Accountant with all consequential service and monetary benefits.
2. The grievance of the petitioner who appears in person is that he has joined his service and while continuing as Clerk-B in the Corporate Office of the opposite party no.1 and also putting more than 30 years of unblemished service, having eligibility criteria for appearing in the Departmental Test Examination in which he has appeared but has not been considered suitable for promotion to the higher post while the authorities have considered the candidature of the private opposite party nos.3 to 5, who according to him were not eligible to be promoted as per the rule of promotion. His further assertion is that one Ananta Ch. Debata, who was also not eligible as per the rules of promotion, has been granted promotion.
The petitioner has raised his grievance by way of submitting representations against his unsuitability to get promotion and against the decision of the authorities granting promotion to the private opposite parties as also Mr. Debata. He further submits that Mr. Debata has been 3 found to be ineligible in a writ petition being W.P. (C) No.2728 of 2010 but even thereafter he has been granted promotion to the higher post.
3. Per contra, Mr. B.K. Nayak appearing for CESU has vehemently opposed the submission and arguments of the petitioner by submitting that there is no illegality in the decision taken by the authorities in allowing the private opposite parties in appearing in the 3rd D.T. Examination. He submits that the petitioner has also participated in the 3rd D.T. Examination but he has found failed, hence not found suitable and as such not granted promotion to the higher post and when he has been declared unsuccessful in the 3rd D.T. Examination, he has approached this Court by way of the instant writ petition assailing the decision of the Selection Board in granting promotion to the opposite parties 3 to 5.
He further submits that so far as Mr. Debata is concerned, although he on earlier occasion was allowed to appear in the 3 rd D.T. Examination, but subsequently the competent body has found that he has wrongly been allowed to appear in the 3rd D.T. Examination, hence his candidature has been rejected, hence he has not allowed to grant promotion to the higher post.
He further submits that opposite parties 3 to 5 had been appointed on contract basis and by way of giving relaxation to count the 4 service rendered by them in the contractual period, they have been allowed to participate in the examination. He submits that the relaxation has been given to them in exercise of power conferred upon the authorities under Regulation 17 of the Orissa State Electricity Board Subordinate, Audit and Accounts Service Regulations, 1970. Copy of the Regulation has been brought on record by way of affidavit filed on 10.10.2017 by serving a copy of the same upon the learned counsel for the petitioner as per direction of this Court dated 17.08.2017. On the strength of this submission and argument, he submits that the writ petition is misconceived and as such the same is fit to be dismissed.
Heard learned counsel for the parties and perused the documents available on record.
4. This Court has heard the petitioner in person in detail by affording sufficient time to him to place each and every document and by putting reliance upon the documents, the petitioner has tried to make out a case of illegal selection and some of the employees working under the opposite party no.1 and also not granting promotion to him.
His main ground is that opposite parties 3 to 5 are not eligible as per the requirement of rule as contained in the office order dated 22.08.2007 under Annexure-1, which stipulates the decision taken by the Committee of the Management Board in its meeting held on 10.07.2007 5 vide Agenda Item No.9 thereof, the existing eligibility criteria for the employees of CESU for appearing at the D.T. Examination is revised as under:-
1. "The following categories of employees of CESU who have passed Matriculation/HSC or its equivalent examination and have not exhausted all the chances available to them are eligible to appear at the D.T. Examination.
(a) Members of Subordinate Audit and Accounts Cadre in the grade of Junior Accountant with a minimum one year service or on completion of 25 years total service 'Or' Divisional Head Clerk/Circle UDC and 1st Asst. after completion of 2 years continuous service or on completion of total 25 years of service 'Or' Clerk-B, Clerk-A on completion of 25 years of service and drawing pay scale identical to Head Clerk/Circle UDC on completion of 15 years or 25 years in a post/grade as the case may be.
(b) The above eligibility criteria shall be subject to the condition that the above mentioned categories of employees should be having not less than 3 years left-out service before retirement."
According to the petitioner, opposite parties 3 to 5 have not completed the required tenure of service as stipulated i.e. on completion of 25 years of service and the authorities have taken into consideration the service rendered by them while they were discharging their duties by way of contractual appointment and as such they are not even eligible to be allowed to participate in the 3rd D.T. Examination.
5. In response, learned counsel for the opposite party no.1 has submitted that there is no dispute about the fact that opposite parties 3 to 5 have initially been appointed on contract. The authorities in order to adopt fair and transparent recruitment/promotion has followed the 6 provision of regulation namely OSEB Subordinate, Audit, Accounts Service Regulation, 1970 ( in short OSEB Service Regulations, 1970), wherein there is a regulation conferring power upon the competent authority to relax the condition of eligibility and in exercise of the said power, the eligibility criteria has been relaxed by allowing to count their services while they have rendered their services by way of contractual appointment and by that they have been made eligible to be considered for participation in the 3rd D.T. Examination.
6. On appreciation of the rival submission of the parties and after going through the provision of the OSEB Service Regulations, 1970 which has been incorporated in exercise of the power conferred by Clause-C of Section 9 (a) of Electricity (Supply) Act, 1948, wherein there is a regulation as contained in Regulation 17, which speaks the power of relaxation of regulations as referred hereunder as:-
"Where the Board are satisfied that operation of any of the provisions of these regulations causes undue hardship in any particular case, the Board may dispense with or relax the requirements of the said provisions in order to deal with the case in a just and equitable manner."
When the Board is satisfied that operation of any of the provision of the regulation causes undue hardship in any particular case, the Board may dispense of with or relax the requirements of the said provision in order to deal with the case in a just and equitable manner. 7
It is evident from the provision of the Regulation 17 that the Board has got power to relax the requirement of the provision in order to deal with the case in a just and equitable manner.
7. The petitioner is putting reliance upon the office order dated 22.08.2007, which is the decision taken by the Managing Board in its meeting held on 10.07.2007 vide Agenda Item No.9, wherein certain eligibility conditions has been provided for appearing in the D.T. Examination, but this office order does not speak anything with respect to the regulation,1970. The regulation, 1970 will be said to be in continuation even on the date of issuance of the office order dated 22.08.2007 having its statutory and regulatory force and the office order dated 22.08.2007 will be treated a supplement to the regulation, 1970, meaning thereby, the power of relaxation which has been vested upon the Board under Regulation, 1970 is there even on the date of issuance of office order i..e. 22.08.2007 since nothing has been brought on record that the power of regulation, provided under the Regulation, 1970 has been superseded by any other statute or regulation.
8. The authorities while exercising the power conferred under Regulation 17 has granted relaxation in the meeting held on 16.11.2007 by taking a decision regarding 16 numbers of junior accountants who have been appointed on probation on successful completion of 2 years of contract period vide office order No.32926 dated 19.09.2007 and 8 continuing in different units to appear at the 3rd D.T. Examination in relaxation of the eligibility criteria on a special consideration.
9. Opposite parties 3 to 5 in the light of the said relaxation as has been granted vide order dated 18.12.2007 which was in exercise of power conferred upon the Board, in the light of the provision of Regulation 17 had participated in the 3rd D.T. Examination in which they have qualified and found suitable to grant promotion to the higher post and accordingly they have been granted promotion.
10. The petitioner has challenged their promotion by submitting that they are not eligible, this submission of the petitioner is based upon one line contained in the letter dated 18.12.2007 which is "such relaxation shall not put any obligation on CESU to provide other facilities to the above Junior Accountants".
By referring to this line, it has been submitted by the petitioner that the content of this line is debar them from appearing in the examinations, but this contention is totally misconceived for the reason that this line only suggest that in view of the relaxation having been granted these Junior Accountants will not claim any other facilities by virtue of the said relaxation and further this line cannot be read out segregating the other lines contained in the order dated 18.12.2007 which is very explicit and express, wherein the Management Board in its meeting 9 held on 16.11.2007 has taken decision to relax the conditions of such junior accountants who have been appointed on probation on successful completion of 2 years contract period and continuing in different units to appear in the 3rd D.T. Examination in relaxation of eligibility criteria on a special consideration, meaning thereby the eligibility conditions of rendering particular period of service, has been relaxed. Moreover, the order dated 18.12.2007 has never been questioned by the petitioner.
11. In view of such a discussion having been made herein above, this Court is of the considered view that the decision taken by the Selection Board by granting relaxation in the eligibility conditions is well within their jurisdiction in the light of the provision contained in the regulations 17 of the Regulation, 1970 and on their participation in the 3rd D.T. Examination has found to be suitable and thereby have been granted promotion, hence there is no illegality in the same.
12. So far as the contention of the petitioner that, Mr. Debata has also been granted permission who is not eligible to be considered for promotion being held suitable the order passed by this Court in W.P.(C) No.2728 of 2010, but by going through the counter affidavit and considering the arguments on behalf of the parties, this Court has found that Mr. Debata although has been allowed to participate in the 3 rd D.T. Examination but subsequently it was found that it was due to misconception and wrong decision, it was rectified and subsequently his 10 candidature has been rejected and in consequence thereof, he has not been considered for promotion to the higher post by not allowing him to appear in the 3rd D.T. Examination.
13. It is further evident from the pleading made by the parties that the petitioner has also been granted chance for consideration of his candidature in which he has been found to be failed in Paper-I English in which he has secured 52 marks, while the qualifying marks is 60 as per the details furnished by the opposite parties in the counter affidavit. For better appreciation, the same is being quoted herein below:-
"The 3rd D.T. Examination was scheduled to be conducted from 8.4.2008 to 10.04.2008. Call letters were issued to 108 candidates, which includes the petitioner and the opposite parties 3, 4, 5 and 6. The examination was conducted smoothly and successfully without any problem on the following papers.
Paper Subject Maximum Minimum Minimum
marks marks required marks required
for pass for exemption
I English 150 60 68
II Book Keeping 150 60 75
III PW Accounts and 150 60 75
Procedure
(Written)
IV General Financial 150 60 75
Rules
V PW Accounts and 150 60 75
Procedure (Viva
Voce)
Hence, the authorities after being found that the petitioner has not secured qualifying marks in English Paper-I, hence he has been declared fail, in consequence thereof, he has not been found to be suitable to be promoted in the 3rd D.T. Examination, which is after all the scrutiny of the candidate for promotion in the selection post.11
14. Taking into consideration, the entire aspect of the matter in detail and considering the fact that the petitioner's candidature has been considered but he has been declared unsuccessful and also taking into consideration the fact that the other private opposite parties have been found to be successful, thereby they have been granted promotion to the higher post, in view thereof this Court finds that the petitioner has failed to make out a case in his favour and on the basis of the reasons mentioned herein above, and as such the writ petition lacks merit.
In the result, the writ petition is dismissed.
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S. N. Prasad, J.
Orissa High Court, Cuttack, Dated the 12th October, 2017/RRJena