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2017 DIGILAW 164 (ORI)

Swasti Binayak Das v. State of Odisha

2017-02-14

SANJU PANDA, SUJIT NARAYAN PRASAD

body2017
JUDGMENT : S.N. Prasad, J. This writ petition has been filed for issuance of a direction upon the opp. party no.2 to proceed with the recruitment for the post of Assistant Town Planner in Class-I Junior (Group-A) pursuant to the advertisement No.13 of 2012-13 as per the Odisha Town Planning Service Amendment Rules, 2015 and in terms of the order dated 30.4.2015 passed by the Odisha Administrative Tribunal, Cuttack Bench, Cuttack in O.A.No.1155(C) of 2014. 2. The fact of the instant writ petition is that the Housing and Urban Development Department of Government of Odisha decided to fill up 17 posts of Assistant Town Planner, Class-I (Junior) (Group-A) of Odisha Town Planning Service under the Directorate of Town Planning, Odisha, Bhubaneswar by direct recruitment through Odisha Public Service Commission. The Principal Secretary to the Government in Housing and Urban Development Department has sent a requisition to the Odisha Public Service Commission to initiate a recruitment process and in terms thereof, the Odisha Public Service Commission has come up with an advertisement bearing No.13 of 2012-13. In the advertisement, it has been notified that the posts are to be advertised under the Orissa Town Planning Service Rules, 1970, as amended from time to time. In the advertisement, it has been notified that the posts are to be advertised under the Orissa Town Planning Service Rules, 1970, as amended from time to time. The petitioner passed Post Graduation in Economics from Utkal University in the year 1992 and Masters in Planning with specialization in Urban and Regional Planning from the School of Planning, Center for Environmental Planning and Technology (CEPT), Ahmadabad in the year 2002 and also he has experience of more than 14 years as well as having membership in the Institute of Town Planners and thus, he having the required qualification as per the Orissa Town Planning Service Rules, 1970, made online application along with all requisite documents, certificates and required fees and thereafter, he was waiting for called upon for the interview, but no intimation has been received and when it was enquired about the development of the same, he came to know that the Odisha Public Service Commission has sent a letter on 27.6.2013 to the Principal Secretary, Housing and Urban Development Department, Bhubaneswar mentioning therein that there has been ambiguity about the required qualification and experience prescribed for the post and the Director, Town Planning, Orissa, Bhubaneswar, who was deputed by the Government to the Commission to advise the Commission on the eligibility of candidates for recruitment to the post of Assistant Town Planner and it was concluded that as per the qualification prescribed in the Rules, according to which advertisement was made by the Commission, not a single candidate possessed the eligibility criteria and further the Director, Town Planning, Odisha was advised to take steps to amend the Rules. The action of the Orissa Public Service Commission was questioned by one candidate, namely, Sri Sourava Kumar Sahoo, who according to the petitioner, was similarly placed and whose candidature was rejected as that of the petitioner on the same ground, had approached the Orissa Administrative Tribunal vide O.A.No. 1155(C) of 2014, and the Tribunal after hearing the parties disposed of the Original Application vide order dated 30.4.2015 quashing the notification so far as it relates to rejection of candidature of the applicant on the ground of not possessing the requisite qualification, i.e. Post Graduate Degree in Planning and further directed the Odisha Public Service Commission to reconsider the applications and proceed with the recruitment as per the advice/clarification of the Govt. The State of Odisha when did not take any action pursuant to the order passed by the Odisha Administrative Tribunal passed in O.A.No. 1155(C) of 2014, this writ petition has been filed by the petitioner for issuance of a direction upon the Odisha Public Service Commission to proceed with the recruitment to the post of Assistant Town Planner in Class-I Junior (Group-A) pursuant to the advertisement No.13 of 2012-13 as per the Odisha Town Planning Service Amendment Rules, 2015 and as also in terms of the order passed by the Odisha Administrative Tribunal in O.A.No. 1155(C) of2014. 3. The Odisha Public Service Commission has filed counter affidavit, inter alia, stating therein that the petitioner has no locus standi to file the instant writ petition directly before this Court since he has a separate cause of action which is fresh in nature and as such, he ought to have approached the Odisha Administrative Tribunal at the first instance. But instead of doing so, he has approached this Court seeking the jurisdiction conferred under Article 226 of the Constitution and hence, in view of the judgment rendered by the Hon’ble Apex Court in the case of L.Chandra Kumar v. Union of India, reported in AIR 1995 Supreme Court 1151, this writ petition is not maintainable. The maintainability of the writ petition has also been questioned on the ground that this Court cannot be said to be a executing court of the order passed by the Odisha Administrative Tribunal in view of the fact that under the Administrative Tribunal Act, 1985, the Odisha Administrative Tribunal has been conferred with the power to initiate a contempt proceeding for non-compliance of its order, and hence, the proper course available to the applicant of the Original Application being O.A.No. 1155(C) of 2014 is to file a contempt application before the Odisha Administrative Tribunal. Further, the petitioner being not an applicant before the Odisha Administrative Tribunal, he cannot agitate this issue for non-compliance of the order passed by the Odisha Administrative Tribunal by invoking the extraordinary jurisdiction of this Court conferred under Article 226 of the Constitution of India. On merit it has been stated that the Govt. Further, the petitioner being not an applicant before the Odisha Administrative Tribunal, he cannot agitate this issue for non-compliance of the order passed by the Odisha Administrative Tribunal by invoking the extraordinary jurisdiction of this Court conferred under Article 226 of the Constitution of India. On merit it has been stated that the Govt. of Odisha has furnished a copy of Odisha Town Planning Service Amendment Rules, 2015 vide their Department letter No. 32264/HUD dated 17.12.2015 and after its receipt, the matter was placed before the Commission for consideration whether the application of 228 candidates will not be again scrutinized as per the Amended Rules on the ground of qualification and a corrigendum may not be issued in this regard. It has been asserted that after discussion in the matter, the observation of the Commission was communicated to the Government in Housing and Urban Development Department vide OPSC office letter No. 1460/PSC dated 14.3.2016 for amendment of recruitment rules deleting the experience part of the essential qualification since “experience in planning or in Architectural office/Town Planning Organization etc.” is a vague proposition. In the light of this assertion, it has been submitted by the learned Sr. Counsel representing the Odisha Public Service Commission that this writ petition is not maintainable. 4. Learned Additional Govt. Advocate appearing for the State of Odisha has vehemently opposed the prayer of the writ petitioner while adopting the argument advanced on behalf of the learned Sr. counsel for the Odisha Public Service Commission and has submitted that the writ petition is not fit to be entertained. 5. We have heard the learned counsel for the parties and perused the documents available on record. We, after going through the prayer made by the writ petitioner in the writ petition, which is for issuance of a direction to the Odisha Public Service Commission to conclude the recruitment process initiated by virtue of the advertisement No.13 of 2012-13 and in pursuance of the order passed by the learned Tribunal in O.A.No.1155(C) of 2014. We are of the considered view that this writ petition is not fit to be entertained at this stage for the following reasons: (i) Admittedly, the petitioner has approached this Court directly without invoking the jurisdiction of the Orissa Administrative Tribunal, which is the court of first instance. We are of the considered view that this writ petition is not fit to be entertained at this stage for the following reasons: (i) Admittedly, the petitioner has approached this Court directly without invoking the jurisdiction of the Orissa Administrative Tribunal, which is the court of first instance. It is settled that the High Court sitting under Article 226 of the Constitution of India may not exercise its extraordinary jurisdiction when there is availability of alternative forum. The admitted position is that in the State of Odisha, the State Administrative Tribunal has been constituted as per the provisions of Section 15 of the Administrative Tribunal Act, 1985 and as such, the petitioner ought to have approached the Odisha Administrative Tribunal for redressal of his grievances. (ii) The nature of prayer made in the writ petition is for execution of the order passed by the Odisha Administrative Tribunal in O.A.No.1155(C) of 2014, but this Court cannot be said to be a executing court of the order passed by the Odisha Administrative Tribunal. Furthermore, under the Administrative Tribunal Act, 1985, the Odisha Administrative Tribunal has been conferred with the power to initiate contempt proceeding for non-compliance of Court’s order. (iii) Admittedly, the petitioner is seeking implementation of the order passed in O.A.No.1155(C) of 2014, but he was not a party to the proceeding before the Odisha Administrative Tribunal. Hence, his application cannot be entertained by this Court sitting under Article 226 of the Constitution of India. 6. In view of the reasons mentioned above, we are of the considered view that this writ petition is fit to be dismissed and accordingly, the same is dismissed.