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2005 DIGILAW 572 (ORI)

Gagan Behari Pradhan v. State of Orissa

2005-09-29

I.M.QUDDUSI, PRADIP MOHANTY

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JUDGMENT I. M. QUDDUSI, J. — This writ petition has been filed against the judgment and order dated 24.5.2005 passed by the Orissa Administrative Tribunal, Cuttack Bench, Cuttack in O.A. No.1156(C) of 1998 which was dismissed by the Tribunal. 2. The brief facts of the case are that the petitioner participated in the recruitment test for the post of Driver held by the opposite party No.2 on 17.5.1997 and a merit list was published on 21.5.1997 in which his name found place at Sl. No.6. Appointment orders were issued to the persons mentioned at Sl. Nos. 1, 2, 3 and 5 of the select list but the petitioner was not given appointment even though two more vacancies are still exist¬ing. Aggrieved, the petitioner filed O.A. No.1156 (C) of 1998 before the Tribunal which was dismissed. 3. Counter affidavit as well as further affidavit was filed by the opposite parties. In the counter affidavit, it has been mentioned that on 1.3.1998, on account of retirement of Asit Narayan Dutta, driver of the District Welfare Office, Balasore, one post of driver fell vacant but since the case of Rabinarayan Das was pending for consideration under the Rehabilitation As¬sistance Scheme, the case of both Rabinarayan Das as well as the petitioner was taken into consideration and Rabinarayan Das was appointed as Driver in view of issuance of Distress Certificate on 30.12.1997 for appointment under the Rehabilitation Assistance Scheme. The case of the petitioner, therefore, could not be considered. Further, it has been mentioned that the merit list dated 21.5.1997 was to remain valid for one year only, meaning thereby that the life of the select list would have come to an end on 21.5.1998. But the Finance Department vide their letter No.11172, dated 20.3.1998 imposed ban on appointment and filling up the base level posts by way of new recruitment. Therefore, the case of the petitioner could not be considered. In the additional affidavit it has been mentioned that at present from the 11 vacancies in the post of driver under the Collectorate, Balasore and the posts are still lying vacant due to the ban order. But the learned Addl. Government Advocate apprised this Court that the ban order has been lifted by the Government. 4. In the additional affidavit it has been mentioned that at present from the 11 vacancies in the post of driver under the Collectorate, Balasore and the posts are still lying vacant due to the ban order. But the learned Addl. Government Advocate apprised this Court that the ban order has been lifted by the Government. 4. It is also to be noted that when the life of a select list was for one year but before the expiry of one year, the ban order has been imposed for making appointment, the life of the select list could not have been treated to have come to an end. The period for which the ban order was imposed was liable to be excluded from the life of the select list as it was not possible to act upon the select list, though selected candidates were available, due to ban order. Therefore, we are of the view that the life of the select list would be counted excluding the period for which the ban order was imposed. The case of the petitioner for appointment was to be considered immediately after the lift¬ing of the ban order, against the available vacancies. 5. In view of the above mentioned facts and circumstances of the case, the writ petition is allowed in part. The impugned judgment and order passed by the Tribunal is quashed. A writ of mandamus be issued to the opposite parties to consider the case of the petitioner for appointment in the vacancies which were existing in the year 1998, i.e., during the existence of the select list. If appointments have already been made against those vacancies, the petitioner will be considered against the existing vacancies as his right to be considered for appointment on the vacancies which were existing at the time when the select list was in force, has been curtailed. 6. It goes without saying that since the petitioner is a selected candidate and his right to be considered for appointment in the post of driver has been curtailed, it cannot be said that he was not within the age limit at the time of publication of select list. 7. The above order be complied with within a period of 90 (ninety) days from the date of production of certified copy of this order. Requisites for communication of this order shall be filed within one week. 7. The above order be complied with within a period of 90 (ninety) days from the date of production of certified copy of this order. Requisites for communication of this order shall be filed within one week. PRADIP MOHANTY, J. I agree. Petition allowed in part.