Research › Search › Judgment

Orissa High Court · body

2015 DIGILAW 239 (ORI)

Sukanti Dei v. State of Orissa

2015-04-07

A.K.RATH

body2015
JUDGMENT A.K. Rath, J. 1. In this writ petition under Article 226 of the Constitution, the petitioner assails the action of the opposite parties 3 and 4 in not appointing her to the post of Junior Assistant in the Notified Area Council, Konark (hereinafter referred to as “the NAC, Konark”). 2. Bereft of unnecessary details, the short facts of the case of the petitioner are that she is a matriculate. She was initially appointed as an Assistant Tax Collector on daily wage basis by the Executive Officer, NAC, Konark, opposite party no.3 on 20.9.1986, vide Annexure-1. Opposite party no.5 was engaged as an Assistant Tax Collector on daily wage basis on 24.9.1986. Though she was appointed as Asst. Tax Collector, but she was doing other works, such as, typing. While the matter stood thus, opposite party no.3 appointed opposite party no.5 as a Tax Collector on 11.11.1988 without any interview. On 27.11.1989, opposite party no.3 requested the Director, Municipal Administration, opposite party no.2, to create a post of Junior Asst.-cum-Typist under L.F.S Cadre and also sought permission to appoint the petitioner against such sanctioned post, vide Annexure-4. Thereafter, the Government of Orissa in its Housing and Urban Development Department sanctioned two posts of Junior Assistant in NAC, Konark by order dated 5.12.1991, vide Annexure-5. Thereafter, opposite parties 3 and 4 appointed opposite party no.5 as Junior Assistant in contravention of Rule 7 of the Orissa Local Fund Service Rules, 1975 (hereinafter referred to as “the Rules, 1975”). While the matter stood thus, she was appointed as Tax Collector on regular basis on 23.12.1991, vide Annexure-6. 3. Further case of the petitioner is that opposite party no.5, who is junior to her, was appointed as a Junior Assistant though she is eligible to the post of Junior Assistant. Instead of considering her claim, opposite parties 3 and 4 appointed one Rabindra Nath Senapati as Junior Assistant. Challenging the same, she filed a writ petition being OJC No.5786 of 2000 before this Court. In course of hearing of the said writ petition, it is stated on behalf of the opposite parties 3 and 4 that there was no available vacancy in the post of Junior Assistant in order to accommodate the petitioner. By order dated 4.3.2002, the writ petition was disposed of with a direction to the opposite parties to consider the representation filed by the petitioner on 5.6.2000. By order dated 4.3.2002, the writ petition was disposed of with a direction to the opposite parties to consider the representation filed by the petitioner on 5.6.2000. It is further stated that though the stand taken by the opposite parties 3 and 4 that there was no vacancy in the post of Junior Assistant, but then the opposite party no.3 sent a letter on 17.4.2002 to the District Employment Officer, Puri showing one vacancy in the post of Junior Assistant. It is further stated that in the meantime her representation has been rejected by the opposite party no.1. 4. Pursuant to issuance of notice, a counter affidavit has been filed by the Executive Officer, NAC, Konark, opposite party no.3. The case of the opposite party no.3 is that the petitioner was appointed as Assistant Tax Collector for a period of 99 days on 20.9.1986 on daily wage basis. The same was extended from time to time. Thereafter, she was promoted to the post of Tax Collector on regular basis vide order dated 23.12.1991. Opposite party no.5 was also appointed as Assistant Tax Collector and joined in the post on 24.9.1986. Opposite party no.5 was regularly appointed against the post of Tax Collector on 11.11.1988. The petitioner was promoted to the post of Tax Collector on 23.12.1991. As the post of Junior Assistant was lying vacant, the Executive Officer, NAC, Konark wrote a letter to the Additional Secretary to Government-cum-Ex-Officio Director of Municipal Administration, Orissa, Bhubaneswar, for creation of post of Junior Assistant and to give appointment to the petitioner. Accordingly, two posts were created in the year 1991, such as, Junior Assistant and Junior Assistant-cum-Typist. The Government of Orissa, Housing & Urban Development Department vide order dated 5.12.1991 sanctioned two posts. The Council of NAC, Konark selected two candidates through Selection Committee for the posts of Junior Assistants and Tax Collector. Accordingly, opposite party no.5 and one J. Mohanty were appointed as Junior Assistants. The petitioner was appointed against the post of Tax Collector. All the three joined against their posts on 24.12.1991. After their appointment, the Government had been requested to approve their posts. It is further stated that the writ petition filed by her was disposed of on 4.3.2002 with a direction to dispose of the representation dated 5.6.2000 in accordance with law. The Government after due consideration disposed of the representation of the petitioner on 21.5.2002. After their appointment, the Government had been requested to approve their posts. It is further stated that the writ petition filed by her was disposed of on 4.3.2002 with a direction to dispose of the representation dated 5.6.2000 in accordance with law. The Government after due consideration disposed of the representation of the petitioner on 21.5.2002. In the said order, it was categorically stated that the post of Junior Assistant belongs to L.F.S cadre. The selection, condition of service etc. of the posts is made under the provision of Rules 1975. The appointment was made on the basis of merit-cum-seniority from among the employees of all urban local bodies. It is further stated that considering the seniority of opposite party no.5, he was appointed. But then, his appointment was not challenged during the relevant time. It is further stated that the Selection Committee presided by the Collector, Puri selected opposite party no.5 for the post of Junior Assistant. Further, there is no vacancy in the NAC, Konark. In case of vacancy arises, her case shall be considered in accordance with Rule 7 of Rules, 1975. 5. Heard Mr. B.P.Satpathy, learned counsel for the petitioner, Mr. B.P. Pradhan, learned Addl. Government Advocate for the opposite parties 1 and 2 and Mr. A.K. Choudhury, learned counsel for the opposite party no.5. 6. Mr. Satpathy, learned counsel for the petitioner, submits that the petitioner as well as opposite party no.5 were appointed as Assistant Tax Collector on daily wage basis. The petitioner joined in the post on 20.9.1986, whereas opposite party no.5 joined on 24.9.1986. Opposite party no.5 is junior to her. By order dated 11.11.1988, opposite party no.5 was appointed as Tax Collector on regular basis. Further, in contravention of Rule 7 of Rules, 1975 opposite party no.5 was appointed in the post of Junior Assistant. Though she was eligible for appointment to the post of Junior Assistant, but her claim was rejected. He further submits that in the meantime she completed near about 29 years of service and the post of Junior Assistant is lying vacant. In view of the same, opposite parties have committed illegality and impropriety in not appointing her in the post of Junior Assistant in NAC, Konark. 7. Per contra Mr. B.P.Pradhan, learned Addl. He further submits that in the meantime she completed near about 29 years of service and the post of Junior Assistant is lying vacant. In view of the same, opposite parties have committed illegality and impropriety in not appointing her in the post of Junior Assistant in NAC, Konark. 7. Per contra Mr. B.P.Pradhan, learned Addl. Government Advocate, submits that the appointment in the post of Junior Assistant in NAC, Konark is made in accordance with Rule 7 of Rules 1975. Mere eligibility is not a sine qua non for appointing the petitioner in the post of Junior Assistant. Whenever vacancy arises her case can be considered along with others under Rule 7 of Rules, 1975. 8. Mr. A.K.Choudhury, learned counsel for the opposite party no.5, submits that the petitioner is a fence sitter. Though opposite party no.5 was appointed as Tax Collector on 11.11.1988 and Junior Assistant on 24.12.1991, the petitioner has not challenged the appointment of opposite party no.5. Even no prayer has been made to quash the appointment of opposite party no.5. He further submits that opposite party no.5 was appointed in the post of Junior Assistant by the Selection Committee constituted by the Government for the purpose under Rule 7 of Rules, 1975. 9. Opposite party no.5 was appointed as a Tax Collector on 11.11.1988, vide Annexure-3. Subsequently, he was appointed as Junior Assistant on 5.12.1991 by the Selection Committee for the purpose. The petitioner has not challenged the appointment of opposite party no.5 in the post of Tax Collector or Junior Assistant. After lapse of 11 years of the appointment of opposite party no.5 in the post of Junior Assistant, she has filed the present writ petition without any prayer to quash the appointment of opposite party no.5. In view of the fact that opposite party no.5 was appointed in the post of Junior Assistant in accordance with Rule 7 of Rules 1975 by the Selection Committee constituted for the purpose, the submission of the learned counsel for the petitioner has no legs to stand. 10. The next question arises, what relief can be granted to the petitioner. Appointment in the post of Junior Assistant in the NAC, Konark is governed under Rules, 1975. 10. The next question arises, what relief can be granted to the petitioner. Appointment in the post of Junior Assistant in the NAC, Konark is governed under Rules, 1975. In accordance with Rule 7 of Rules, 1975 if any vacancy arises in the NAC, Konark, the same shall be filled up in accordance with the procedure laid down in the Rules, 1975. Mere eligibility of the petitioner does not entitle her to be appointed in the post of Junior Assistant automatically. She has a right to be considered along with others. 11. In view of the same, the writ petition is disposed of with an observation that in the event opposite party nos.1 and 2 decide to fill up the vacancies of the NAC, Konark, then the case of the petitioner may be considered along with others.