Orissa High Court
Tapan Kumar Mallick vs State Of Orissa 85 Others .... .. Opp. ... on 8 August, 2008
Author: L.Mohapatra
Bench: L.Mohapatra
HIGH COURT OF ORISSA : CUTTACK ORIGINAL JURISDICTION CASE N0.7770 OF 2001 In the matter of an application under Article 226 of the Constitution of India. Tapan Kumar Mallick .... .. Petitioner --Versus- State of Orissa 85 Others .... .. Opp. Parties For Petitioner V : M / s. K.C.Kanungo, S.K.Behera . 85 R.N.Singh . For Opp.Parties 1 to 4 : Addl. Government Advocate For Opp. Party No.5 : M/s.Manas Chand, D.R.Parida, B.B.Champatiray, S.Khan, M .K.Mohapatra,K.B.Mund 85 S.Rath PRESENT: THE HON'BLE MR.JUSTICE L.MOHAPATRA A N D THE HON'BLE MR.JUSTICE INDRAJIT MAHANTY Date of hearing : 04.08.2008 _ Date of Judgment: g .08. 2008 I.Mahanty,J. The petitioner--Tapan Kumar Mallick, in this writ application, has sought to challenge the order dated 12.4.2001 passed by the Orissa Administrative Tribunal, Bhubaneswar in O.A.No.365 of I 2001 whereby the Tribunal was pleased to dispose of the said original application with a direction to the Principal Chief Conservator of Forest (in short "PCCF"), Opp. Party No.3 to consider appointment of the petitioner in the event any vacancy arises in the said office. A 2. The petitioner, who is a member of Scheduled Caste, responded to an advertisement dated 13.4.1999 published by the Orissa Staff Selection Commission in the local daily inviting applications for the post of Junior Typists in Heads of Departments of the Government of Orissa. The petitioner, who is a graduate in Arts and having knowledge in Typing along with requisite qualifications, applied for the said post and appeared at the competitive examination conducted by the Selection Commission and was duly selected as a successful 'candidate and his Roll numbers finds mention at serial No.12 of the select list published by the Commission on 20.5.2000 under Annexure--3. The petitioner alleges that from the candidates whose names appeared in the select list wheras the candidates from serial No.1 to 11 were issued with appointment letters and joined in their respective offices, Opp.Party No.5 Whose name was at serial No.No.l3 of the select list, was issued with appointment letter in' the office of the D.G. and I.G. of Police-Opp. Party No.2 with effect from September, 2000 and since the petitioner was not issued with any appointment letter from the office of the PCCF-Opp. Party No.3, the petitioner alleging hostile discrimination and violation of the Orissa Subordinatestaff Selection Commission Rules, 1993 (in short "1993 Ru1es")filed O.A.No.365 of 2001 before the Orissa Administrative Tribunal, Bhubaneswar. Learned counsel for the petitioner asserted that no justification whatsoever exists for denying petitioner's appointment while giving appointment to a candidate whose position was below the serial inumber of the petitioner. He further submitted that 1993 Rules is statutory in nature and selection takes place when requisitions are issued from various Departments for conducting selection to a particular post. Therefore, once a requisition is made by the Heads of Department, the said Heads of Department has no other option, but to issue appointment letters to those candidates duly selected by the Selection Commission and no reason whatsoever exists for denying the petitioner his letter of appointment. 3. Learned Addl. Government Advocate, on the other hand, submitted that originally, the office of the PCCF had issued a requisition for five Junior Grade 'I'ypists to the Staff Selection Commission, but by the time the Selection Commission published the result, three posts had been filled up by the PCCF Office, on account of rehabilitation appointment. He further submitted that the direction of the Tribunal to the PCCF to consider appointment of the petitioner in any future vacancyiwas issued after the ban order imposed by the Government of 'Orissa as austerity measure from 14.3.2001 and therefore, no appointment letter could be issued to the petitioner. 4. Considering the submissions advanced in this case and upon perusing the documents annexed as well as the impugned order of the Tribunal, it appears that the selection process commenced by making the advertisement by the Selection Commission on 13.4.1999 and culminated by publication of result on 20.5.2000. Therefore, on the date of publication of result, the Government order dated 14.3.2001 obviously had not been issued. Hence, the ban order of the Government of Orissa under Annexure-B/ 3 cannot be pleaded as a reason for not appointing the petitioner or denying issue of letter of appointment to him. It may be a fact that the PCCF's Office at the time of" requisition to the Staff Selection Commission had written for five Junior Grade Typists, but once such requisition is issued and the Staff Selection Commission acts in terms of such requisition by inviting applications and conducting examination, the requisitioning Department is bound in terms of 1993 Rules to issue appointment letters in favour of the successful candidates. In other Words, merely because the office of the PCCF has, in the interregnum i.e. between the date of requisition to the Selection Commission and the date of publication of result by the Commission, filled in certain posts by way of rehabilitation, such posts filled in under rehabilitation Scheme must be treated as outside and in addition to the posts requisitioned. In other words, it would not be permissible to the Heads of the Departments to reduce the posts already requisitioned on the plea of having given rehabilitation appointments thereby effectively denying the meritorious candidates of their future appointments. 5. In View of the above, we are of the View that the contentions advanced by the learned Addl. Government Advocate does not justify the non--issue of appointment letter in favour of the petitioner. It would be important to note herein that after conducting different tests by the Staff Selection Commission on the requisition of Heads of Departments the requisitioning Departments are lawfully obliged to issue consequential letters of appointment. In the event no post is available in any particular Department, an alternative appointment ought to have been offered to the candidate. But while not doing so and at the same time issuing letter of appointment to less meritorious candidate like Opp. Party No.5 is absolutely discriminatory and violative of Article 14 of the Constitution of India. 6. Accordingly, the writ application is allowed and the impugned order dated '12.4.2001passed in O.A.365 of 2001 is quashed and the Principal Chief Conservator of Forest-- Opp- Party No.3 is directed to issue letter of appointment to the petitioner forthwith, preferably Within a period of four weeks from the date of communication of this order. It is further made clear that the petitioner's letter of appointment shall be issued urith Effect from the date on Whig] his J.uniOr_Opp_ Party No.5 joined in Service of the State. The pet1t1oner, however, shall be entitled to 50% of back Wages Since the petitioner has been denied appointment for no fault on his part and the entire period ' ' ' b ft . shall be computed for the purpose of Semonty an? other Servlce ens 1 S SW9 - Mwmtlgyfl-d L.Mohapatra, J.
I. agree. Q4 e Ir ' _/M D/;\Q'L/Fojbrcbj ' ORISSA HIGH COURT : CUTTACK August g/_{/£2008/KCP