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2014 DIGILAW 774 (ORI)

Binaya Kumar Nayak v. State of Orissa

2014-11-18

B.R.SARANGI

body2014
JUDGMENT B.R. Sarangi, J. 1. The petitioner nos. 1 and 2, who were working as Tax Collectors and petitioner no.3, who was working as Orderly Peon in the Notified Area Council, Kamakhyanagar, have filed this petition challenging their disengagement order dated 29.9.1995 (Annexure-7) and the order dated 25.1.2008 (Annexure-8) appointing the opposite parties 3 to 5 against the vacant posts of Tax Collectors and opposite party no.6 against a post of Orderly Peon by the Executive Officer of the said Notified Area Council. 2. The short facts of the case in hand are that as against the created posts of Tax Collector and Orderly Peon in the Notified Area Council, Kamakhyanagar, by following due procedure of selection, petitioner no.1 (who belonged to Scheduled Caste category) and petitioner no.2 were appointed as Tax Collectors and they joined the posts on 5.9.1992 whereas petitioner no.3 was appointed as an Orderly Peon, who joined as such in October, 1993. The said appointments were made on daily wage basis. Prior to the appointment of the petitioners, a resolution had been made by the Notified Area Council to create posts vide Resolution no.5 dated 16.4.1993. The said resolution was communicated to the Executive Officer of the Notified Area Council, opposite party no.2, on 30.9.1993. Against some of the said created posts, the petitioners, who were initially appointed on ad hoc basis with stipulation of 30 days’ duration, were allowed to continue in their appointments without any break because their continuance was felt necessary for collection of octorai tax. 3. The petitioners while discharging their duties against their respective posts, all on a sudden pursuant to a letter dated 29.9.1995, vide Annexure-7, their services were discontinued with effect from 1.10.1995. The petitioners challenged the order of their discontinuance from service before this Court in O.J.C. No. 9643 of 1995. During pendency of the said writ application, opposite party no.2 initiated a process for appointment of fresh candidates against the posts held by the petitioners. Therefore, the petitioners filed Misc. Case No. 478 of 1999 in the said O.J.C. No. 9643 of 1995, wherein this Court passed interim order directing that if any appointment was made in respect of the posts held by the petitioners, the same would be subject to result of the writ application. Against the other vacant posts of Tax Collectors, opposite party nos. Case No. 478 of 1999 in the said O.J.C. No. 9643 of 1995, wherein this Court passed interim order directing that if any appointment was made in respect of the posts held by the petitioners, the same would be subject to result of the writ application. Against the other vacant posts of Tax Collectors, opposite party nos. 3 to 5, who were continuing as Peons, were given promotion on 14.3.1996 and 9.7.1999 and they were allowed to discharge their duties. The said O.J.C. No. 9643 of 1995 was disposed of by this Court, vide order dated 5.9.2005, with the following observation: “It is not clear from the counter affidavit filed by the opposite parties regarding continuance of other similarly situated persons who were given engagement after the petitioners were disengaged. However, we observe that if in future any further vacancy occurs, the case of the petitioners shall be considered on preferential basis for their engagement either on daily wage basis or on regular basis. Accordingly, the writ application is disposed of.” 4. After the aforesaid order was passed, opposite party no.6 was appointed as a Peon in the Notified Area Council, Kamakhyanagar, vide office order dated 24.12.2007 (Annexure-10). 5. Mr. N.C. Mohanty, learned counsel for the petitioners strenuously urged that the disengagement of the petitioners vide Annexure-7, was per se illegal apart from being in clear violation of the order passed by this Court in O.J.C. No. 9643 of 1995. Mr. Mohanty further urged that opposite party no.2 appointed outsiders ignoring the claim of the petitioners in utter non-compliance with the order passed by this Court in the aforesaid O.J.C. The petitioners having obtained information under the Right to Information Act could learn that on 9.9.1996, opposite party no.2 had appointed Salim Khan, opposite party no.7, vide office order No. 1010 dated 9.9.1996, and Anita Dehury, opposite party no.8, vide order no.109 dated 12.1.1996, as Tax Collectors and Baidhar Khatua, opposite party no.9 as Peon, vide order dated 1.6.1997, ignoring the claims of the petitioners. Therefore, the petitioners have sought direction of this Court in the present writ petition for their re-engagement as against the posts held by them and now held by opposite parties 6 to 8. 6. Therefore, the petitioners have sought direction of this Court in the present writ petition for their re-engagement as against the posts held by them and now held by opposite parties 6 to 8. 6. Pursuant to notice, though opposite parties 2 to 9 entered appearance through their counsel, at the time of hearing neither anybody appeared nor has any counter affidavit been filed on their behalf controverting the allegations made by the petitioners. Therefore, on the basis of the materials available on record and after hearing the learned counsel for the petitioners, Mr. S. Das, learned Additional Standing Counsel for the State and applying the principle of non traverse, this Court proceeds to dispose of the writ petition. 7. Admittedly, the petitioners were appointed by the Notified Area Council, Kamakhyanagar against the sanctioned posts on daily wage basis. While they were discharging their duties in their respective posts, they were disengaged. Subsequently, the opposite party nos. 3 to 5 who were earlier continuing as Peons, were promoted to the vacant posts of Tax Collector on 14.3.1996 and 9.7.1999 vide Annexure-8. Pursuant to the information supplied by the authorities vide Annexure-11, it revealed that opposite party nos. 7, 8 and 9 were appointed as Peon/ Tax Collectors on 9.9.1996, 12.1.1996 and 1.6.1997 respectively. After disengagement of petitioner nos. 1 and 2 from the posts of Tax Collector, which were sanctioned posts, the said posts were lying vacant. The opposite parties 3 and 5, who belonged to general category and were continuing as Peons were given promotion to the posts of Tax Collector including the posts held by petitioner nos. 1 and 2. But no person was appointed in the post of Peon in the consequential vacancy. Such promotions were given without following the provisions of O.R.V. Act. Out of three posts, two posts were available for Tax Collectors, one for Peon and from out of two Tax Collectors, one was reserved for Scheduled Caste candidates against which petitioner no.1 was continuing. Again opposite party no.8 was appointed as Tax Collector on 29.12.1998 without any interview being conducted, more so when he had crossed the upper age limit. Therefore, it is submitted that her appointment was thoroughly illegal. Again opposite party no.8 was appointed as Tax Collector on 29.12.1998 without any interview being conducted, more so when he had crossed the upper age limit. Therefore, it is submitted that her appointment was thoroughly illegal. Without following due procedure of selection after advertisement or calling for the names of candidates from the Employment Exchange, appointments were given to Baidhar Khatua, Salim Khan and Chaitanya Jena in the posts of Peon, which were sanctioned posts. One Satya Narayan Sahu was appointed as Work Sarkar on 30.12.1998 by opposite party no.2 without calling for names from the Employment Exchange or without issuing any advertisement, more so without conducting any interview. Dibakar Nayak, who belonged to scheduled caste category and was working as a Tax Collector died in the year 1996 and one Nilamani Dehury, who belonged to S.T. category had resigned from the post of Tax Collector to serve elsewhere. Therefore, two posts were lying vacant, but no person was given appointment against the said posts. One post of Mali is also vacant. 8. As the posts having not been abolished were still lying vacant, the Notified Area Council, Kamakhyanagar recommended to opposite party no.1 for approval of the post as funds had been allotted by the Council for payment of salary of the employees including that of the petitioners. Opposite party no.1, vide order dated 20.2.1996, having approved the posts of the petitioners, without assigning any reason, passed the impugned disengagement order, which was unwarranted. Therefore, this Court while disposing of O.J.C. No. 9543 of 1995 on 5.9.2005 as per Annexure-9 observed that if in future any further vacancy would occur, the case of the petitioners would be considered on preferential basis for their engagement either on daily wage basis or on regular basis. 9. As it appears from the pleadings, there is availability of vacancy. If such vacancies are available, there is no impediment on the part of the authorities to consider the case of the petitioners for their engagement either on daily wage basis or on regular basis in compliance with the order passed by this Court as per Annexure-9. 10. 9. As it appears from the pleadings, there is availability of vacancy. If such vacancies are available, there is no impediment on the part of the authorities to consider the case of the petitioners for their engagement either on daily wage basis or on regular basis in compliance with the order passed by this Court as per Annexure-9. 10. In the aforesaid facts and circumstances of the case, this Court feels that as per the information received under the Right to Information Act, if vacancies are available, there would be no impediment on the part of opposite party no.2 to give engagement to the petitioners either on daily wage basis or on regular basis in compliance with the order passed by this Court on 5.9.2005 in O.J.C. No. 9643 of 1995, vide Annexure-9 and therefore, commands the opposite party no.2 to adjust the petitioners against the existing vacancies by extending all service benefits to which they are entitled within a period of four months from the date of receipt of a copy of this judgment. 11. With the aforesaid observation and direction, the writ petition stands disposed of. No cost.