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2017 DIGILAW 52 (ORI)

Arun Kumar Nayak v. State of Orissa

2017-01-09

SANJU PANDA, SUJIT NARAYAN PRASAD

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JUDGMENT : S.N. Prasad, J. These writ petitions are against the order passed by the Orissa Administrative Tribunal, Cuttack Bench, Cuttack on 27.9.2012 in O.A.Nos.1061(C) of 2011 and 26 other original applications. 2. Brief facts of the case is that the petitioners entered into service as police constables in between 1985 to 1989. It is contended that from the date of joining, they have served sincerely, honestly and to the best of the satisfaction of the authorities. They became eligible to be promoted to the post of Assistant Sub-Inspector (ASI) as per the eligibility conditions specified in the Orissa Police Manual Rules (PMR). Rule 660(a) of the Rules deals with procedure for promotion to the post of A.S.I. from the post of constable, as per rule, there are two categories of constables, Matric and non-Matric. Both Matric and non-Matric constables having 7 years of service to their credit, after the training, are eligible for consideration for appointment to the post of A.S.I., subject to the condition that they are to appear in written test to be conducted by the authority concerned. The candidates who qualify in the written test are to be recommended by their respective Superintendent of Police with their service records and considering the seniority of such candidates, who are eligible, a list will be prepared. The successful candidates then will be deputed for training for A.S.I. course as per the service seniority. It further provides that the vacancy to the post of A.S.I. is to be notified twice every year i.e., in the month of January and the other in the month of July, for preparation of a list of eligible and suitable candidates, for deputation of A.S.I. course of training. The rule further provides that selection has to be made twice in every year. The competent authority, by virtue of the letter dated 24644 dated 26.5.2000 and 11.6.2000 had informed all the District Superintendent of Polices to conduct written examination of the Constables to undergo the A.S.I. course which was held on 18.6.2000 at 36 places as per the list and accordingly the concerned Superintendents of Police were requested to recommend the names of eligible candidates for the selection. The constables had appeared in the written test and lists were prepared and only 98 candidates passed. 3. The constables had appeared in the written test and lists were prepared and only 98 candidates passed. 3. The matter went before the Tribunal by filing series of original applications and the Tribunal has disposed of the original applications wherein while allowing the original applications, State authorities were directed to assign proper position to the applicants in the seniority list in accordance with the principle laid down in the order passed in O.A.No.3036(C) of 2003 and O.A.No.3037(C) of 2003. The authorities were further directed to consider the case of the applicants to nominate them for promotion to the post of Sub-Inspector of Police in accordance with their seniority and other relevant factors along with the 98 candidates, who had been declared to have passed the written examination held in the year 2000. Gradation list dated 27.10.2011 of the A.S.Is. selected for S.I. training course on being temporarily promoted as S.I. of Police be redrawn accordingly. The petitioners who were opposite parties to the original applications have challenged the order passed by the Tribunal in the original applications, who had appeared in the written test conducted in the year 2000 for selection for ASI training course and as per the practice till 2000, the pass mark for such post as has been fixed under Rule 660 of the Police Manual Rule was 30%, but however by fixing the pass mark to 50%, a list of successful candidates was published by the opposite party no.1 containing 98 persons to be eligible for deputation to ASI Training course and as such they are to prepare a list of successful candidates treating the pass mark as 30 out of 100 marks and publish list of such candidates who appeared in the written test held on 18.5.2000 and to depute such candidates for ASI training course taking into consideration their seniority as maintained in the grade of constables pursuant to the provisions of Rule 660 of the Orissa Police Manual. 4. The Tribunal, after taking into consideration the rival submissions of the parties, has passed order by disposing of the original applications, directed the authorities of the State to assign proper position of the applicants in the seniority list in accordance with the principle laid down in the order in O.A.No.3036(C) of 2003 and O.A.No.3037(C) of 2003. 4. The Tribunal, after taking into consideration the rival submissions of the parties, has passed order by disposing of the original applications, directed the authorities of the State to assign proper position of the applicants in the seniority list in accordance with the principle laid down in the order in O.A.No.3036(C) of 2003 and O.A.No.3037(C) of 2003. The case of the present petitioners that the Tribunal has passed order without providing opportunity of being heard and as such the order is nullity in the eye of law. 5. Learned counsel representing the opposite party-State as well as private opposite parties have vehemently opposed the submission of the petitioners and have submitted that it is incorrect to say that the present petitioners were not parties to the original applications rather they had filed written statement and after hearing them the original applications have been disposed of, not only that rather after disposal of the original applications copy of the order has also been forwarded to them as would be evident from Memo No.9264 dated 5.10.2012 and as such on this ground only these writ petitions are fit to be dismissed without going into the merits of the case. 6. We have heard learned counsel for the parties and perused the materials available on record. 7. It is not in dispute that the writ court is the court of equity and parties are expected to invoke court of equity with clean hands and without any suppression of fact. We have gone through the pleadings made in the writ petition (wpc-22992 of 2012) and one of the grounds challenging the order passed by the Tribunal in the original applications is ground no.22(c) wherein it has been stated “that the petitioners most respectfully beg to submit that they were not party to the O.A.No.1061/2011”. We have found from the order passed by Tribunal that the Tribunal has heard various original applications, one of it is O.A.No.1061(C) of 2011 in which the present petitioners were opposite parties as would appear from Memo No.9264 dated 5.10.2012, in which copy of the order passed in the O.A.No.1061(C) of 2011 along with other originals applications have been forwarded to the petitioners. It is evident from the material available on record that the writ petitioners have taken a ground in challenging the order passed by the Orissa Administrative Tribunal that the order has been passed behind their back but this fact is absolutely incorrect since they were parties to the proceedings and they have been heard, filed written statement and they have got copy of the order passed by the Tribunal, hence taking into consideration these aspects of the matter and also taking into consideration the fact that the writ court is a court of equity hence the parties will not be allowed to file false affidavit by suppressing the facts. 8. Taking into consideration these aspects of the matter, we are not inclined to interfere with the writ petitions and only on this ground the writ petitions are fit to be dismissed and accordingly dismissed.