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2014 DIGILAW 8 (ORI)

Sikha Biswal v. State of Orissa

2014-01-07

M.P.MISRA

body2014
JUDGMENT M.P. MISRA, MEMBER (JUDICIAL) 1. The applicant has come up with this original application praying for fixation of her seniority in accordance with her position in the merit list prepared by the Orissa Public Service Commission. 2. The case of the applicant, as revealed in her original application is as follows:- Pursuant to an advertisement in the year 1997, the applicant appeared in the recruitment examination for Orissa Financial Service Class-II (OFS) conducted by respondent No.3. On completion of the recruitment process, respondent No.3 published the select list of 377 eligible candidates on 22.1.1998 at Annexure-2. The name of the applicant appeared in the select list at Sl. No. 112. The recruitment of the applicant to OFS Class II was made according to the Orissa Finance Service Class-II (OFS) Rules, 1979 (in short the Rules). Rule 18 of the Rules lays down the principle for fixation of seniority of the members of OFS. Rule 18(1)(c) of the Rules clearly lays down that the persons appointed to the service by direct recruitment on the basis of the combined competitive examination are ranked in the order in which their names are arranged by the Commission. In spite of the fact that the name of the applicant appeared in the select list, the State-respondents aid not issue appointment order in her favour alongwith other selected candidates and finally issued order dated 19.3.2002 at Annexure-1, stating therein that her pay would be fixed taking into account the date of her joining and not the position she has been assigned in the merit list. It was further mentioned in Annexure-1 that the applicant would be shown as a direct recruitee in OFS II of the year 1997, below the recruits of the year 1996 and above the direct recruits of the year 1998. Prior to issuance of notification at Annexure-1 the applicant had been appointed by order dated 7.3.2001 at Annexure-7. However, such appointment was subject to final outcome of OJC No. 17576 of 1998 and batch of cases as well as OA No. 2757 (C) of 1998. As per the notification at Annexure-7 the applicant had joined Govt. Service in OFS Class II cadre and appointed as Additional CTO, Jharsuguda. Since the applicant's appointment was delayed inordinately for no fault of her and due to latches of the respondents, the applicant's seniority should not be affected. As per the notification at Annexure-7 the applicant had joined Govt. Service in OFS Class II cadre and appointed as Additional CTO, Jharsuguda. Since the applicant's appointment was delayed inordinately for no fault of her and due to latches of the respondents, the applicant's seniority should not be affected. The applicant, after joining service, made several representations for assignment of seniority as per her position in the merit list prepared by the OPSC. But the prayer of the applicant was rejected and the earlier notification at Annexure-7 was modified, by subsequent notification on 19.3.2002 at Annexure-1, placing the applicant below the direct recruitees of the year 1996 and above the direct recruitees of the year 1998 which on the very face of it is illegal. 3. The respondent No.1, in their counter, while challenging the maintainability of the O.A. pleaded as follows:- The combined competition examination for OPSC was held in the year 1997 for the vacancies of the year 1994, 1995 and 1996. The total posts advertised were 399. The applicant had applied for the said examination as an SEBC candidate, but had not submitted her SEBC certificate along with her application. She obtained such certificate during April, 1997 and submitted the same before the OPSC on 9.5.1997 after expiry of the last date for submission of application. The applicant came out successful in the recruitment examination and was assigned Sl. No. 112 in the merit list. Her candidature as SEBC candidate was challenged in OA No. 2174 (C) of 1998 on the ground that she belonged to creamy layer and was not entitled to the benefits of reservation as an SEBC candidate. As per the order of the Tribunal the matter was verified by the District Magistrate-cum-Collector, Kendrapara and it was found that the applicant in fact belonged to creamy layer and was not entitled to benefit of reservation as an SEBC candidate. Se that as it may, though the OPSC should .have rejected the applicant's application due to non-furnishing of SEBC certificate, still the applicant was allowed to take part in the selection process and came out successful. Se that as it may, though the OPSC should .have rejected the applicant's application due to non-furnishing of SEBC certificate, still the applicant was allowed to take part in the selection process and came out successful. The State Government could have legitimately refused to appoint the applicant for non-submission of SEBC certificate but took a lenient view treating the applicant as a unreserved candidate against a vacancy of the year 1997 .On the request of the State Government the OPSC in their letter dated 22.12.2000 at Annexure5 concurred with the proposal of the Govt. to adjust the applicant against the vacancy of the year 1997. After receipt of concurrence from the OPSC, the appointment order was issued in favour of the applicant in the year 2000. The delay in issuing the applicant's appointment order was thus due to the fault of the applicant herself and not for the fault of the respondents. The applicant had actually forfeited her right to be appointed for suppressing the fact that she belonged to creamy layer by not furnishing SEBC certificate alongwith her application form. The applicant therefore, now cannot claim seniority on the basis of the merit list prepared in the year 1997 at Annexure-2. 4. After filing of the counter by respondent No.1, the applicant filed a rejoinder pleading as follows:- As per the merit list prepared by the commission at Annexure-2, the applicant's position was 112 under the general category and accordingly, her seniority should have been determined or; the basis of such merit list. As per the advertisement issued for recruitment of OFS examination 1997, there was 399 vacancies out of which 129 were unreserved. Since the applicant's name finds place at Sl. No. 112 she could be legitimately appointed as an un-reserved category of candidate without waiting for verification of her eligibility as SEBC candidate. Therefore, failure of the applicant in submitting SEBC certificate alongwith her application form cannot deprive her of her seniority assigned to her in the merit list. 5. I have heard the learned counsel for the applicant, learned Govt. Advocate and learned counsel appearing on behalf of the OPSC. I have also perused the pleadings of the parties and the documents annexed thereto. 6. It is true that applicant, though claimed to be an SEBC candidate, did not attach her SEBC certificate in her application form. 5. I have heard the learned counsel for the applicant, learned Govt. Advocate and learned counsel appearing on behalf of the OPSC. I have also perused the pleadings of the parties and the documents annexed thereto. 6. It is true that applicant, though claimed to be an SEBC candidate, did not attach her SEBC certificate in her application form. Therefore, she was treated as un-reserved candidates and was selected as such, as appears from the information obtained by the applicant at Annexure-12. Since the applicant was appointed against an un-reserved vacancy there was no reason to delay her appointment, pending inquiry into her SEBC status. The question whether the applicant belonged to SEBC category or not, was entirely beside the point. It is true that respondent No.3 could have rejected the applicant's application form but chose not to do that and allowed the applicant to undergo selection process as an un-reserved candidate. Respondents, therefore, can not now came up with a plea that the applicant's application was liable to be rejected and she cannot claim appointment as a matter of right. The counter filed by respondent No.1 on this point therefore is not convincing at all. 7. Admittedly, the select list at Annexure-2 relates to vacancies that had arisen during the years 1994, 1995 and 1996. The applicant was asked to compete for these vacancies and came out successful being placed at Sl. No. 112. There is therefore no basis to adjust the applicant against the vacancy of the year 1997 for which she had not made any application nor had undergone any recruitment process. In this view of the matter, the action of the respondents to treat the applicant as a recruitee against a vacancy of the year 1997 appears to be without any legal basis. 8. There is no dispute that the recruitment of OFS officers is governed under the provisions of the Rules. The Rules are as much binding on the State-respondents as on the applicant. The respondents, therefore, cannot adjust the applicant against the vacancy of the year 1997 when she appeared in the recruitment test for filling up the vacancies of the year 1994, 1995, 1996. 9. Learned Govt. Advocate argued that by the time the Govt. decided to issue appointment order in favour of the applicant, the vacancies of the year 1994, 1995 and 1996 had been exhausted and therefore the Govt. 9. Learned Govt. Advocate argued that by the time the Govt. decided to issue appointment order in favour of the applicant, the vacancies of the year 1994, 1995 and 1996 had been exhausted and therefore the Govt. decided to adjust the applicant against the vacancy of the year 1997. Since the applicant had not undergone any process of selection for the vacancies of the year 1997, in my opinion she could not be adjusted against the vacancy of that year. The applicant was appointed on the basis of the select list published by the OPSC under Annexure-2. Since the applicant was appointed to the service by direct recruitment on the basis of the combined competitive examination held in the year 1997 her rank in the order in which her name appears in the select list at Annexure-2 is crucial to determine her seniority. The persons ranking below her in Annexure-2 cannot therefore be treated to be senior to her by any stretch of imagination. The plea taken by the respondents that by the time the Govt. decided to issue appointment order in favour of the applicant, the vacancies of the previous years (1994, 1995 and 1996) had been filled up is not valid to justify adjustment of the applicant against the vacancy of the year 1997, in contravention of the express provision under the Rule 18 of the Rules. Respondents should not have delayed the matter in entering into a futile exercise of inquiry of SEBC status of the applicant as the applicant had qualified as an un-reserved candidate. The State Respondents therefore cannot take a plea that all the existing vacancies had been filled up so as to justify the adjustment of the applicant against the vacancy of the year 1997. 10. The judicial pronouncement, on this point are also clear and unambiguous. In the case of Suresh Chandra Jha vs. State of Bihar and others, reported in (2007) 1 SCC 405 the Hon'ble Apex Court categorically held that even in absence of any rule in operation, merit list and not the date of joining should decide the seniority of a candidate. In the instant case there is clear provision in the Rules in favour of the applicant which places the applicant in a much better position. In the instant case there is clear provision in the Rules in favour of the applicant which places the applicant in a much better position. In the case of Chairman, Puri Gramya Bank vs. Ananda Chandra Das and others reported in (1994) 6 SCC 301 , the same principle was reiterated by the Hon'ble Apex Court and it was held that the seniority among the direct recruits has to be determined on the basis of the ranking secured in the selection and not on the basis of the date of joining. 11. In view of my above analysis, I am of the opinion that the seniority of the applicant cannot be adversely affected by artificially assigning her a position against the vacancies of the year 1997 and the order passed on 19.3.2002 by respondent No.1 is illegal. Hence, the Govt. order dated 19.3.2002 at Annexure-1 and the order dated 2.1.2003 at Annexure 10 are quashed. The applicant's seniority be determined as per her position in the merit list at Annexure-2 prepared by respondent No.3. Action in the matter be taken within a period of three months from the date of receipt of a copy of this order. Since the applicant's conduct is not wholly free from blame, she shall not be entitled to any remuneration for the period for which she has not rendered any service to the Government. The O.A. is accordingly disposed of. O.A. disposed of.