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2004 DIGILAW 108 (ORI)

RAJANIKANTA PATTANAYAK v. R. S. BED

2004-02-23

M.PAPANNA, P.K.MOHANTY

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P. K. MOHANTY, J, J. ( 1 ) THIS contempt application has been filed by the writ petitioners in O. J. C. No. 1495 of 1999 and Misc. Case No. 11947 of 2001. ( 2 ) THE factual backdrop of the case is that the petitioners initially filed O. A. No. 30 of 1992 before the Central Administrative tribunal, Cuttack Bench praying for regularisation in Class-Ill and IV posts under the Aviation Research Centre (in short 'a. R. C'), Charbatia. The Tribunal by order dated 15/11/1993 directed the opposite parties to prepare a seniority list of the petitioners and other casual labourers working under the A. R. C. and consider their case whenever the vacancies occur and to appoint persons from the said list found suitable. The petitioners having not been absorbed by the a. R. C. , filed O. A. No. 349 of 1995 praying for a mandamus to implement the order dated 15/11/1999 passed in O. A. No. 30 of 1992. The opposite parties pleaded that the petitioners had been called for interview for the post of Air Craft Assistants and two of them have been selected out of the five petitioners who had requisite qualification for the said post. The Original Application was, therefore, dismissed. The petitioners had challenged the said order of the Tribunal in O. J. C. No. 1495 of 1999. This Court, by order dated 21/11/2000, a copy of which is Annexure-1 on consideration of the rival contentions of the parties and materials on record, allowed the writ petition, directing the opposite parties 3 and 4 to consider the application of the petitioners, if they are otherwise found suitable giving due weightage to their experience while making selection against the post and absorb them and other casual labourers in the organisation. In Misc Case No. 11947 of 2001, by order dated 8/10/2001, on the allegation of the petitioners that the opposite parties are not considering their cases in terms of order dated 21/11/2000 on the ground that no time limit has been indicated, this Court called upon the opposite party Nos. 3 and 4 to comply with the direction by the end of November, 2001. 3 and 4 to comply with the direction by the end of November, 2001. In spite of the order, the opposite parties having allegedly not considered the case of the petitioners, they have moved this Court for dealing with the opposite parties, more particularly, opposite parties 3 and 4 for non-compliance of the order/direction of this Court under the Contempt of Courts Act. ( 3 ) THE opposite parties 1 and 2 have filed their affidavits denying the allegations made. It is submitted that the opposite parties have strictly complied with the order. The applications of the petitioners for the posts they have applied for were sincerely considered for assessing their suitability and due weightage for the experience they gained while working as ex-casual labourers was duly given by adding one grace mark for each six months experience they had gained as casual labourers in Car project. But the petitioners could not qualify the test. According to the opposite parties, the pre-condition for the post of Aircraft Assistant was that one has to qualify the physical efficiency test prior to interview. Only one out of the petitioners qualified for the same and the others failed in the physical efficiency test and, therefore, could not be selected. The main ground on which the petitioners are said to be disqualified is in physical efficiency test. In paragraph-6 of the affidavit filed by opposite party No. 2, the Dy. Director (A), Aviation research Centre, Head Quarter, New Delhi, it is stated that it is open for the petitioners to apply for different posts as and when the department issues an advertisement against the available vacancy. But unfortunately, they are making attempts to obstruct the administrative process of appointment of already selected candidates by way of filing contempt application. However, it is stated that the petitioners are free to submit their applications for selection process in different trades in the department, if they meet necessary pre-requisites as per the Recruitment Rules. An additional affidavit has been filed on October 20, 2003 by the Dy. Director (A), ARC, HQ, new Delhi in compliance with the order dated august 6, 2003. In the said affidavit, it has been stated that the petitioners could be given weightage given respect of merit secured in the interview, there can be no compromise on the minimum physical standards required for the post. Director (A), ARC, HQ, new Delhi in compliance with the order dated august 6, 2003. In the said affidavit, it has been stated that the petitioners could be given weightage given respect of merit secured in the interview, there can be no compromise on the minimum physical standards required for the post. Thus, out of 20 ex-casual labourers who attended to the physical efficiency test for the post, only two candidates had qualified in the said test and had accordingly been interviewed by the Selection Board, one of them has been selected. In paragraph-5 of the affidavit, it has been submitted that during the intervening period, since the posts advertised by the department had remained vacant for a period of more than one year, all these posts had fallen under the category of deemed abolition by virtue of orders passed by Government of India, ministry of Finance. In spite of concerted efforts by the Department, the posts could not be revived so far. However, revival of these posts as well as a number of other posts in the department are still pending with the government and the matter is still under correspondence with the Ministry of Finance and thus, no appointment order could be issued to any of the candidates selected in the aforesaid selections. According to the deponent, this matter was not properly projected before the Court while passing the order dated 21/11/2001. In paragraph-9 of the affidavit, it has been stated that during the year 2001, one post of Waiter was notified on 1/11/2001 and another single post of Anti Malaria Mazdoor was also notified on March 8, 2002. Butut none of the casual labourers/petitioners, submitted any application in response to this notification and, therefore, none of these petitioners/casual labourers could be considered for appointment against these posts. ( 4 ) IN paragraph-10, however, it has been stated that appreciating the spirit behind the direction of the Court, the opposite parties have now decided that in respect of all vacant posts which are now becoming available in the organisation, apart from issuing notification regarding the vacancies as per normal procedure, such vacancies may also be communicated individually to each one of these petitioners/casual labourers so that they could submit applications in respect of these notifications. The ARC, Charbatia has already advised petitioners/casual labourers in respect of two posts of Observatory Attendants, one at arc, Charbatia and the other at ARC, Doom dooma in the advertisement dated September 18, 2003, copy of which is Annexure-RA-V. It has also been stated that necessary action to secure age relaxation orders from Government wherever necessary in respect of Ex-contingent labourers, if otherwise found suitable for any of the posts in the organisation on direct recruitment will also be taken. A rejoinder affidavit has been filed disputing the averments made in the affidavit. '. ( 5 ) IN the further affidavit filed by the petitioners, it is alleged that during and between january 31, 2003 to October 31, 2003, as many as 20 numbers of posts are lying vacant due to superannuation, where the present petitioners could have been engaged but in spite of order that has not been done. A list of 12 persons who have been appointed after pronouncement of the order dated November 21, 2003 in O. J. C. No. 1495 of 1999 has been given in a schedule. ( 6 ) THE Dy. Director (A) ARC, HQ, New delhi has filed an additional affidavit. The allegation of the petitioners is that 12 persons have been appointed after the order of this court has been disputed, but however, it is stated that Sl. Nos. 9 and 11 are specialized posts. These posts were filled up to meet the most pressing requirement even though clearance could not be obtained from the ministry of Finance, but their salaries have not been released by the Finance Department. ( 7 ) LEARNED senior Standing counsel (Central) has filed a copy of the instructions received from the Assistant Director (Admn.)of the A. R. C. in which further vacancy position of Group-D posts have been indicated. It appears that 19 posts in Group-D are available under the A. R. C. likedaftary, Cook, dresser, Washer UP, Waiter, AM and Dhobi. The petitioners have rendered quite a number of years of service against Group-C and D posts and according to the learned counsel for the petitioners, they are in a pathetic financial distress and at a starvation stage. In the meantime, it is stated that three of such casual labourers have died. The petitioners have rendered quite a number of years of service against Group-C and D posts and according to the learned counsel for the petitioners, they are in a pathetic financial distress and at a starvation stage. In the meantime, it is stated that three of such casual labourers have died. The technicality in qualifying in the physical efficiency test as contended and strict compliance thereof cannot be appreciated since the petitioners have become aged in the process of serving the a. R. C. for several years and as such, they are not expected to compete equally with the fresher so far as physical efficiency is concerned, but their past experience in the post could not have been ignored specially for group-D posts like Daftary, Cook, Dresser, washer UP, Waiter, AMM and Dhobi. Be that as it may, we are not inclined to enter into the minute controversy raised. But, however, it goes without saying that if the vacancies are available and the petitioners who have rendered services for years to the organisation are available and are in a financial distress condition, their cases should have been considered with sympathy and compassion in their proper perspective. The posts now available as indicated in letter dated February 16, 2004 issued to the learned Senior Standing counsel like Daftary, Cook, Waiter, Dresser, washer UP, AMM and Dhobi does not require such physical fitness and are not of technical nature. The learned counsel for the petitioners fairly and candidly submitted that since the petitioners are in starving condition, the petitioners are prepared to take up any post in group-D even if some of them were earlier working in Group-C post and that the petitioners are not interested in either adverse remarks against the opposite parties or any punishment. The learned counsel for the petitioners fairly and candidly submitted that since the petitioners are in starving condition, the petitioners are prepared to take up any post in group-D even if some of them were earlier working in Group-C post and that the petitioners are not interested in either adverse remarks against the opposite parties or any punishment. ( 8 ) IN such view of the matter, without entering into the question as to whether the opposite parties have committed any contempt in not complying with the orders passed by this court, in the peculiar facts and circumstances of the case, we dispose of this application by directing the opposite parties, to consider the cases of the petitioners for appointment and appoint the petitioners to any Group-D posts as available now and for future vacancies, keeping in view the observation of this Court and the fact that these petitioners have rendered service to them for quite a considerable period, have become overage and now in a precarious financial distress with their family in accordance with their suitability to the respective posts within a period of three months from the date of communication of this order. ( 9 ) REQUISITES for communication of this order to opposite parties be filed within a week. ( 10 ) M. PAPANNA, J. I agree.