Research › Search › Judgment

Orissa High Court · body

2017 DIGILAW 426 (ORI)

Banaja Kumari Behera v. State of Odisha

2017-04-19

SANJU PANDA, SUJIT NARAYAN PRASAD

body2017
JUDGMENT : S. N. Prasad, J. 1. This writ petition is under Articles 226 and 227 of the Constitution of India assailing the order dtd.01.03.2017 passed by the State Administrative Tribunal, Cuttack Bench, Cuttack in O.A. No.4460(C) of 2014 whereby and where under the grievance raised by the petitioner regarding her selection as TGT (Arts) has been rejected. 2. The brief fact of the case is that the petitioner who belongs to Scheduled Caste category, having requisite qualification for consideration for selection against Trained Graduate Teacher (Arts), applied for being considered as T.G.T. (Arts) in pursuance to the advertisement published in the daily newspaper dtd.6.6.2013, the case of the petitioner was considered under Scheduled Caste Category and she has been placed under the Scheduled Caste category at sl. No.2 and above her one Purnima Nayak has also been selected having her name appears at sl. no.5 of the merit list who subsequently has tendered her resignation. The further case of the petitioner is that the one vacancy for the Scheduled Caste category to be filled up from the same category and the petitioner has raised a specific grievance before the tribunal on the basis of the criteria laid down in the advertisement as under clause 5(vii) which reflects as; “future vacancies up to 50% of the vacancies now advertise arising within one year or till next advertisement which ever is earlier will also be filled up out of the merit list so prepared” The case of the petitioner is that she although at sl. no.2 and due to resignation of the candidate who was at sl. no.1 in the provisional merit list since has tendered her resignation, the petitioner ought to have been appointed and her further case is that since she is at sl. no.1 in the waiting list hence the consideration ought to be made for her engagement in view of the provision of the condition mentioned in the advertisement under Clause 5(vii), although this specific ground has been raised by her before the tribunal but no finding to that effect has been given, rather the tribunal has travelled on the basis of the notion that due to resignation if there is any vacancy, the same is to be filled up through a fresh advertisement. 3. 3. While on the other hand learned counsel representing the opposite party-State of Odisha has vehemently argued that case of the petitioner has been considered, she having been found at sl. no.2 in the merit list and after selection of the candidate who stands at sl. no.1 she remained at sl. no.1 in the waiting list but due to vacancy having been filled up pursuance to the advertisement she has not been appointed. Further the petitioner has got no case on account of the vacancy having been arisen due to resignation of the candidate who stands at sl. no.1 due to the settled proposition that in case of resignation, if any vacancy arose, the same has to be filled up through fresh advertisement. So far as the contention of the petitioner regarding non-consideration of advertisement under Clause 5(vii), the learned counsel representing the State of Odisha has fairly submitted that the tribunal has given no finding to that effect. 4. We have heard the learned counsels for the parties and perused the documents available on record as also the pleading made by the petitioner in the writ petition. From the pleadings made in the writ petition it is evident that the petitioner has taken the point by referring the provision of terms and conditions mentioned under clause 5(vii) which relates to consideration for appointment from the same merit list to the extent of 50% of the future vacancy advertised within one year or till next advertisement which ever is earlier. It has been submitted in course of argument that the fresh advertisement has come on the date which is after preparation of the merit list, hence this aspect of the matter ought to have been considered by the Tribunal, but we, after going through the order passed by the tribunal, have found that no finding has been given to that effect. It is settled that any court of law is supposed to give a specific finding regarding the averment made if the same goes to the roots of the issue and if it is a specifically raised by the parties. It is settled that any court of law is supposed to give a specific finding regarding the averment made if the same goes to the roots of the issue and if it is a specifically raised by the parties. We have already reflected herein above that the petitioner has raised an issue regarding fulfilling the 50% vacancies from the same merit list as per the provision of clause 5(vii), which has been taken note by the Tribunal by referring the stand of the parties, but no finding to that effect has been given by it. We, after taking into consideration the above aspect of the matter, are of the considered view that if any issue is before a court of law, it has to be answered either ways, otherwise the order will be said to be non-speaking. In view thereof, we are of the considered view that the matter needs fresh consideration by the Tribunal. Accordingly the order passed by the tribunal is set side and the matter is remitted before the tribunal to pass fresh order after taking into consideration the factual aspect as discussed above. Since the matter pertains to appointment which is subject matter of the advertisement issued in the year 2013, hence the same be disposed of by the end of August. With these observations and directions the writ petition stands disposed of.