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2017 DIGILAW 1044 (ORI)

Krishna Chandra Mishra v. State of Orissa

2017-09-13

SUJIT NARAYAN PRASAD

body2017
JUDGMENT S.N. PRASAD, J. - This writ petition is under Article 226 and 227 of the constitution of India wherein direction has been sought for upon the opposite parties 1 to 3 to consider the case of the petitioners for appointment as Junior Accountants with effect from the date of their initial appointment as N.M.R. basis w.e.f. the date the opposite parties 4 to 8 were appointed. 2. Facts of the case of the petitioners is that they were engaged on N.M.R. basis on 18.5.1987, 7.7.1987 and 9.7.1987 so far it relates to the petitioners 1 to 3 respectively. They have been taken under regular establishment by appointing them as Clerk-cum-Typist in the scale of pay of Rs. 780-1160 per month with usual D.P. and D.A. and other benefit as allowed by the Corporation from time to time vide order dated 20.09.1989. The Corporation have re-designated the post of Clerk-cum-Typist as Junior Assistants and as per the decision taken by the authority the petitioners will be said to be holder of post of Junior Assistants with effect from their date of joining. The Corporation has take another decision on 29.1.1994 by re-designating the post of Junior to that of Accounts Assistant with effect from their date of joining without any financial benefits. Grievance of the petitioners is that the Corporation has come out with an advertisement in the year 1988 inviting applications for different posts including five posts of Accountants to be filled by way of direct recruitment, selection process started in which minimum qualification prescribed to participate in the selection process to be appointed as Accountant has been fixed as Commerce Graduate with minimum seven years experience in Accounts Department of a large Public/Private Sector undertaking. Petitioner no. 1 has made his application for being appointed as Accountant but the petitioner nos. 2 and 3, being not eligible as per the minimum qualification prescribed in the advertisement, have not made their application. Selection process has been concluded by the Corporation by inducting names of 15 candidates and thereafter five candidates from the top of the panel have been selected as Accountants. The persons appointed as Accountants including S.K. Swain and P. Subudhi but they have wrongly been engaged as Accountants being not eligible as per the minimum educational qualification prescribed in the advertisement. The persons appointed as Accountants including S.K. Swain and P. Subudhi but they have wrongly been engaged as Accountants being not eligible as per the minimum educational qualification prescribed in the advertisement. Further case of the petitioners is that the opposite parties 4 to 8 who have been appointed as Junior Accountants vide order dated 19.1.1989, 28.4.1989, 1.2.1989, 25.4.1989 and 31.07.1989 so far it relates to the opposite parties 4 to 8 respectively as Junior Accountants. These opposite parties have subsequently been promoted to the rank of Accountants vide order dated 29.1.1994. Accordingly to the petitioners, they are entitled to be considered for promotion to the rank of Accountants after the period on which they have rendered their service as N.M.R. capacity which could have been taken into consideration or at least from the date when the opposite parties 4 to 8 have been taken in the establishment as Junior Accountants, the petitioners should also be taken as Junior Accountants from the date, but in arbitrary and illegal manner, the opposite parties 4 to 8 have been engaged as Junior Accountants without holding any selection process and as such their appointment is illegal and in consequence thereof, the petitioners are entitled to be promoted to the rank of Accountants. 3. Learned senior counsel representing the petitioners has submitted that the candidates who have been selected as Junior Accountants namely A.K. Mohanty, S.K. Swain, B.S. Sahu, M.K. Das, N.R.Acharya and P.Subudhi have illegally been inducted as Accountants as well as also the opposite parties 4 to 8 have also been inducted in the rank of Accountants without following due procedure even though they have not possession requisite qualification as prescribed in the advertisement. Per contra, learned counsel representing the Corporation and opposite parties 4 to 8 have jointly argued the case on the strength of the counter affidavit filed on their behalf by submitting that there is no illegality in the process of engaging the opposite parties 4 to 8 as Accountants. Per contra, learned counsel representing the Corporation and opposite parties 4 to 8 have jointly argued the case on the strength of the counter affidavit filed on their behalf by submitting that there is no illegality in the process of engaging the opposite parties 4 to 8 as Accountants. They submits that the prayer made in the writ petition is not for quashing of engagement of opposite parties 4 to 8 rather is to consider the case of the petitioners for appointment as Junior Accountants with effect from the date of their initial appointment as N.M.R. or with effect from the opposite parties 4 to 8 were appointed, therefore the prayer itself is misconceived since two reliefs have been sought for : (1) to consider the case of the petitioners for appointment as Junior Accountants w.e.f. the date of their initial appointment as N.M.R. basis, which according to the petitioner, are in the year 1987 and (2) it has also been prayed that they be appointed as Junior Accountants when the opposite parties 4 to 8 were appointment which is in the year 1989, hence the petitioners have not come with a specific prayer made in the writ petition and on this ground along the writ petition is fit to be dismissed. They further submits that it is not in dispute that the advertisement under Annexure-1 was notified inviting applications for filling up of five posts of Accountants, in pursuance thereof, the opposite parties 4 to 8 have also participated in the selection process including the petitioner no.1, petitioners 2 and 3, being not eligible as per the minimum qualification prescribed in the advertisement, have debarred from appearing in the selection process. Selection committee, on its conclusion, has found 15 candidates suitable. The authorities from that panel has engaged five candidates as accountants and accordingly five posts of Accountants have been filled up in pursuance to the advertisement under Annexure-1. 4. The Corporation was created and in order to run the Corporation, five Junior Accountants were appointed from the panel list of Accountants and the opposite parties 4 to 8 are amongst them. Opposite parties 4 to 8 have subsequently been granted regular promotion to the post of Accountants vide order dated 29.1.1994. 4. The Corporation was created and in order to run the Corporation, five Junior Accountants were appointed from the panel list of Accountants and the opposite parties 4 to 8 are amongst them. Opposite parties 4 to 8 have subsequently been granted regular promotion to the post of Accountants vide order dated 29.1.1994. it is for the reason that the petitioners cannot compete with the opposite parties 4 to 8 since they were coming under cadre of Junior Accountants on 20.09.1989 though at that time the post was known as Cleark-cum-Typist but subsequently it was first re-designated as Junior Assistant and then as Accounts Assistant and thereafter they have been granted promotion to the post of Junior Accountants meaning thereby the petitioners were working as Junior Accountants with effect from 29.1.1994 while the opposite parties 4 to 8 have been appointed as Junior Accountants on 19.1.1989, 28.4.1989, 1.2.1989, 25.4.1989 and 31.7.1989 respectively. Learned counsel for the Corporation has further submitted that the petitioners have accepted their position by accepting their regularization in the post of Clerk-cum-Typist vide order dated 20.09.1989 and when the opposite parties 4 to 8 have been granted promotion to the post of Accountants, they have filed the writ petition in the year 1999, hence the writ petition is misconceived on the ground of delay. He further submits that contention of the petitioners regarding S.K. Swain and A. Subudhi or the candidates who have been appointed as Accountants cannot be questioned since they have not been impleaded as party and this is not the prayer made in the writ petition. They also submits that even they cannot question the promotion of the opposite parties 4 to 8 since that is not under challenge. 5. This Court has heard the learned counsel for the parties and perused the documents available on record. 6. Undisputed fact in this case is that the petitioners have been engaged as N.M.R. vide orders dated 18.5.1987, 7.7.1987, and 9.7.1987 respectively. They have been appointed as Clerk-cum-Typist vide order dated 20.9.1989. Posts of Clerk-Cum- Typist have been re-designated as Junior Assistants and thereafter as Accounts Assistants. The Corporation has issued an advertisement for appointment of five Accountants by putting minimum educational qualification as Graduate in Commerce with minimum 7 years experience in Accounts Department of large Public/Pvt. Sector undertaking and in pursuance thereof, the petitioners have made application but the petitioner no. The Corporation has issued an advertisement for appointment of five Accountants by putting minimum educational qualification as Graduate in Commerce with minimum 7 years experience in Accounts Department of large Public/Pvt. Sector undertaking and in pursuance thereof, the petitioners have made application but the petitioner no. 1 was only considered to be eligible as per the minimum eligibility condition mentioned in the advertisement. The petitioners 2 and 3 have been denied their candidature in absence of basic requisite qualification as per the advertisement. Selection process was concluded by bringing list of 15 successful candidates, out of which topmost five candidates have been selected and engaged as Accountants amongst which Mr. S.K. Swain and Mr. A. Subudhi are there. It is not in dispute that the Corporation was constituted and for taking financial assistant from the Power Financing Corporation, since there was no Junior Accountants, at the relevant time. The Corporation, after considering the fact that the list prepared for appointment of Accountants who are eligible for the post Accountants, appointed the opposite parties 4 to 8 as Junior Accountants vide order dated 19.1.1989, 28.4.1989, 1.2.1989, 25.4.1989 and 31.7.1989 respectively. They have been granted promotion vide order dated 29.1.1994. The authorities have come out with office order dated 14.3.1996 giving liberty to the employees to make objection regarding their service dispute and in the light of the same, the petitioners have made representation dated 30.3.1996 when the authorities have taken no decision, this writ petition has been filed with the following prayer: “xxx direct the opposite parties 1 to 3 to consider the case of the petitioners for appointment as Junior Accountants w.e.f. the date of their initial appointment as N.M.R. basis, with effect from the date when the opposite party No. 4 to 8 were appointed.” 7. It is stated by the Corporation that the petitioners’ prayer is misconceived since on the one hand they pray to consider their case for the post of Junior Accountants from the date when they have been inducted as N.M.R. i.e. with effect from the dates 18.5.1987, 7.7.1987 and 9.7.1987 respectively and also praying therein that they be considered as Junior Accountants from the dates when the opposite parties 4 to 8 have been promoted as Junior Accountants i.e. 19.1.1989, 28.4.1989,1.2.1989, 25.4.1989 and 31.7.1989. Thus, they are not sure what is their claim whether taking a Junior Accountants from the date of their induction in service as N.M.R. or from the date when the opposite parties 4 to 8 have been taken in service, hence prayer made by the petitioners is misconceived. 8. So far as argument advanced on behalf of the opposite parties that the petitioners have questioned the selection of Mr. S.K. Swain and A. Subudhi who have been appointed as Accountants but that cannot be adjudicated in their absence since they have not been impleaded as parties. Petitioners have also not challenged the appointment of the opposite parties 4 to 8 as Junior Accountants nor promotion granted vide order dated 29.1.1994. However, argument has been advanced by submitting that the appointment of the opposite parties 4 to 8 as Junior Accountants or promotion made therein are without following due procedure and without making any specific prayer, no direction in this regard can be passed. Moreover, appointment of the opposite parties 4 to 8 made in the year 1989 cannot be opened after lapse of 28 years from the date of their engagement as Junior Accountants while the petitioners were given appointment being in-service candidates by the same Corporation. 9. Prayer of the petitioners to add the period they have already worked as N.M.R. is to be allowed in the facts and circumstances of the case since the petitioners have accepted the order of regularization in the post way back in the month of September, 1989 and after considerable delay about 10 years from the date of passing of the order of regularization with that of filing of the writ petition, it would not be appropriate for this Court to exercise extraordinary jurisdiction conferred under Articles 226 and 227 of the Constitution of India, for the reason that the petitioners were knowing about this fact but were not vigilant. It is settled that the Court is not meant for the persons who are sitting idle and having not vigilance to their right. 10. It is settled that the Court is not meant for the persons who are sitting idle and having not vigilance to their right. 10. So far as the issue of quashing the decision of promotion after considerable lapse of period it has been deprecated by the Hon’ble Apex Court in catena of decisions, one of which is the judgment rendered in the case of State of Uttaranchal and another –vs- Shiv Charan Singh Bhandari and others, (2013) 12 SCC 179 wherein the Hon’ble Apex Court has been pleased to hold at paragraph-24 that claim of promotion is based on concept of equality and equitability, but which has to be claimed within reasonable time. The said principle has been stated in the case of Ghulam Rasool Lone –vs-State of Jammu & Kashmir, (2009) 15 SCC 321 . In the case of NDMC-vs-Pan Singh, (2007) 9 SCC 278 the Hon’ble Apex Court held that there is no period of limitation provided for filing a writ petition under Article 226 of the Constitution of India, yet ordinarily a writ petition should be filed within a reasonable time. It has been stated by referring the judgment rendered in the case of P.S. Sadasivaswamy – vs- State of Tamil Nadu, (1975)1 SCC 152 that a person aggrieved by an order of promoting a junior over his head should approach the Court at least within six months or at the most a year of such promotion. It is not that there is any period of limitation for the Courts to exercise their powers under Article 226 nor is it that there can never be a case where the Courts cannot interfere in a matter after the passage of a certain length of time. But it would be a sound and wise exercise of discretion for the Courts to refuse to exercise their extraordinary powers under Article 226 in the case of persons who do not approach it expeditiously for relief and who stand by and allow things to happen and then approach the Court to put forward stale claims and try to unsettle settled matters. 11. 11. Learned senior counsel representing the petitioners has relied upon the judgment rendered by the Hon’ble Apex Court in the case of Renu and others-vs-District & Sessions Judge, Tis Hazari and another, (2014) 14 SCC 50 and Mukul Saikia & others –vs- State of Assam & others, AIR 2009 SC 747 , but the facts of these cases in that judgments is entirely different to that of the facts of the present case. In the facts and circumstances of the cases, there is no specific prayer for quashing of appointment/promotion of the opposite parties 4 to 8 and also the writ petition has been filed after delay of considerable period. In view thereof, the ratio of the judgments is not applicable to the instant case. 12. In the entirety of the facts and circumstances of the case, this Court finds no merit in the writ petition, accordingly the same is dismissed. Petition dismissed.