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2003 DIGILAW 59 (ORI)

STATE OF ORISSA v. SABITRI NAYAK

2003-01-21

PRADIP MOHANTY, R.K.PATRA

body2003
JUDGMENT : R.K. Patra, J. - O.J.C. No. 13388 of 2001 is a writ petition filed by the State of Orissa and its officials seeking quashing of the order dated 31.11.2000 passed by the Orissa Administrative Tribunal, Cuttack Bench, Cuttack in O.A. No. 373(C) of 2000. By the said order, the Tribunal has directed the State Governments to give Opp. Party appointment under the Rehabilitation Assistance Scheme. The Opp. Party in the above O.J.C. No. 13388 of 2001 has filed writ petition bearing O.J.C. No. 2572 of 2002 practically for a direction to the State Government and its officials to implement the above decision of the Tribunal. Since both the cases are analogous and they are inter-connected, they were heard together and are disposed of by this common order. 2. Validity of the decision of the Tribunal is under challenge on the ground that as appointment can be given under the Rehabilitation Assistance Scheme because of the ban order on appointments to posts at the base level. 3. Shri Acharya, learned Additional Government Advocate, contended that the Tribunal while deciding the matter did not take into account the ban order of the State Government issued against appointments following the financial constraints and, as such, the order should be set aside. 4. We have perused the impugned order of the Tribunal. Although it has not specifically referred to the relevant Finance Department ban order, it was aware of the State's financial constraints and relying on the decision of the Supreme Court in Ramesh Chandra Sinha Vs. State of Bihar and Others has granted relief to the Opposite party. 5. It is true that because of mounting revenue deficit, the State Government in the Finance Department has issued office memorandum for austerity measures which includes enforcement of progressive reduction of staff including abolition of base level vacancies. At the same time, the Government in the Finance Department office memorandum No. 18954 dated 14.3.2001 (Annexure-5) has indicated as follows: (v). If any order of a Tribunal or any Court of law stipulated filling up the base level vacant posts or regularising temporary appointments etc. Finance Department shall have to consulted and Finance Departments's concurrence has to be taken before implementing or contesting the said orders. From the above, it can be seen that in certain circumstances, the ban order can be waived and appointments can be made. 6. Finance Department shall have to consulted and Finance Departments's concurrence has to be taken before implementing or contesting the said orders. From the above, it can be seen that in certain circumstances, the ban order can be waived and appointments can be made. 6. At this stage, it is relevant to note the circumstances leading to filing of case before the Tribunal by the Opp. Party whose husband took retirement from Government service on invalidation from 31.10.1997 although he had more than five years of service left when he was made to retire. Immediately after retirement, the Opp. Party applied for appointment as a Junior Typist under Rehabilitation Assistance Scheme on 10.12.1997. Although the Collector, Kendrapara issued the distress certificate in her favour on 31.5.1998 and despite necessary compliance of facilities, the State Government did not appoint her on R.H.S. and delayed in giving her relief. Therefore, the Opposite party cannot be held responsible and the relief to which she was entitled to at the appropriate time cannot be denied. 7. For the reasons aforesaid, we dispose of both the writ petitions with a direction to the State Government in the Finance Department to consider the case of the Opp. Party in terms of Clause (v) of the Office Memorandum No. 18954 dated 14.3.2001 (Annexure-5) as expeditiously as him and communicate the decision within two months of receipt of this order. There would be no order as to costs. Pradip Mohanty, J. 8. I agree.