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2017 DIGILAW 555 (ORI)

Gopabandhu Moharana v. State of Odisha

2017-05-09

D.DASH

body2017
JUDGMENT : 1. The petitioner in this writ application has prayed to direct the opp.parties to treat him as “Management Trainee” with effect from 31.12.1990 and further to quash the order of his disengagement dated 17.10.1995 and the order of termination dated 27.04.2002 filed under Annexure-22 and Annexure-25 respectively; to direct the opp. parties to absorb him in IDCO in the vacant regular cadre post of Assistant Manager (Arch.) held by Sri Sesha Bhusan Acharya, after completion of training for a period of one year, with regular scales of pay along with the continuity of service w.e.f. 31.12.1990 i.e. initial date of joining of the petitioner in IDCO; to direct the opp. parties to pay all the service and financial benefits due and payable to him retrospectively; and lastly to pass appropriate order/orders for willful furnishing of misleading information by IDCO authorities in OJC No. 9905/1999 & W.P.(C) No. 3279/2002 earlier filed before this Hon’ble Court. 2. (a) The office order dated 17.10.1995 under Annexure-22 which is sought to be quashed runs as under:- “OFFICE ORDER The following three Graduate Trainee Architects were appointed on adhoc basis for a period of 44 days with effect from the dates noted against each with the stipulation that the appointments are purely temporary and it can be terminated at any time without any notice and without assigning any reason thereof. Since their services are no longer required by IDCO they are dis-engaged with effect from 17th Oct.1995 (A.N.). (1) Sri L.K.Nandy .. 21.9.95 (2) Sri G.Moharana .. 21.9.95 (3) Sri G.C.Acharya .. 11.9.95 By order of M.D. Sd/- CHIEF GENERAL MANAGER (P & A)” (b) The subsequent order dated 27.04.2002 under Annexure-25 reads as follows:- “ORDER This Office order no.4852 Dtd.22.03.2002 engaging Sri Gopabandhu Moharana, Graduate Architect on a consolidated fee of Rs.5,000/- per month for a period of 89 days with effect from 3rd March, 2002 is hereby revoked. As it is found redundant, with the leave of Hon’ble High Court, Orissa the engagement of Sri Moharana is hereby terminated with effect from 27th April, 2002 (After-noon). BY ORDER Sd/- General Manager (P&A)” 3. Heard the petitioner in person and Mr.C.A. Rao, learned counsel for the opp.party nos. 3 and 4. 4. As it is found redundant, with the leave of Hon’ble High Court, Orissa the engagement of Sri Moharana is hereby terminated with effect from 27th April, 2002 (After-noon). BY ORDER Sd/- General Manager (P&A)” 3. Heard the petitioner in person and Mr.C.A. Rao, learned counsel for the opp.party nos. 3 and 4. 4. In view of challenge made by the opp.party nos.3 and 4 to the maintainability of this writ application and that the prayers made herein are no more entertainable by going to decide the matters as raised on merit, let it be taken up first. 5. For the purpose, the earlier rounds of litigations concerning the subject being relevant need be briefly stated. The petitioner had earlier filed OJC No. 9905 of 1999. The prayer therein was to direct the opp.parties for his absorption in service in the post of Asst. Manager (Arch.) in IDCO on regular basis earmarked for General candidates with immediate effect and to treat the continuity of his service for all intents and purposes from 31.12.1990 till regular absorption. Then the petitioner in that prcoeeding filed Misc. Case No. 12282 of 2001 seeking a direction to the opp.parties not to dispense with his service as stated in order dated 22.6.1999 till disposal of said writ petition. It may be stated that engagement of the petitioner as per the said letter was on contractual basis for a period of 89 days on monthly consolidated remuneration of Rs.2000/- only till 7.6.1999 or joining of Regular Asst. Manager (Arch.) whichever is earlier and on other terms and conditions. This Court by order dated 17.8.1999 in the interim directed the opp.parties not to terminate the service of the petitioner without the leave of the Court. The opp.parties then by filing counter when took the decision for creation of two posts of Asst. Manager (Arch.) and to fill up the same by way of open advertisement and accordingly having gone ahead, when received the applications from a number of candidates including that of the petitioner, as decided to be afforded with all the opportunities to appear in the interview for consideration of his case vis-à-vis others and in case he comes out successful to be so appointed, the petitioner came to file Misc. Case No. 4227 of 2000 with the following prayer:- “(a) to exempt the petitioner from appearing in the interview. Case No. 4227 of 2000 with the following prayer:- “(a) to exempt the petitioner from appearing in the interview. (b) not to hold any interview for the post meant for general candidates. (c) pending hearing and final disposal of main petition the respondents be restrained not to fill up the post meant for general candidates etc.” The Court then on 12.5.200 passed the following order:- “M.C.No.4227/2000 This is an application for staying the interview scheduled to be held on 22.5.2000 and for exempting the petitioner from appearing at the interview, Mr. Rao for the IDCO submits that he has filed counter today. In the interim, petitioner may appear at the interview without prejudice to the claims involved in the writ petition. The Misc. Case is disposed of.” Thereafter, the opp.parties filed Misc. Case No.12282 of 2001 for granting the leave to terminate the petitioner of his engagement in obedience to interim order passed in Misc. Case No. 9039 of 1999. This Court then by order dated 22.4.2002 granted the leave. The order is as under:- “Misc. Case No. 12282 of 2001 This is an application filed by opposite party nos. 4 to 8 for granting leave to the said opposite parties to terminate the engagement of the petitioner as Graduate Architect of IDCO. This application has been filed because of the orders passed in Misc. Case No. 9030 of 1999 on 17.8.1999 that the engagement of the petitioner as Graduate Architect shall not be terminated without the leave of this Court. Mr.Rao, learned counsel appearing for opposite party os. 4 to 8 submitted relying on the averments made in paragraphs 6 and 7 of this misc. application that on 22.5.2000, the petitioner appeared along with others for the interview. But, while Mrs. Kabita Kadambala stood first in the merit list of general candidates and Mrs. Alaka Patra, a Scheduled Tribe candidate, stood second, the petitioner stood third in the merit list. Accordingly, Mrs. Kabita Kadambala and Mrs. Alaka Patra were appointed against two vacancies in the post of Assistant Manager (Arch.) and as there was no other vacancy, the petitioner couldnot be accommodated and there was no work for the petitioner. Learned counsel for the petitioner states that he is no longer a counsel in this case and the brief has been taken back by the petitioner for engaging some other counsel. Learned counsel for the petitioner states that he is no longer a counsel in this case and the brief has been taken back by the petitioner for engaging some other counsel. Since the petitioner has not taken steps to engage a counsel to oppose the prayer made in this misc. case, we allow the said prayer. Accordingly, this misc. case is disposed of by the order granting leave to opposite party nos. 4 to 8 to terminate the engagement of the petitioner as a Graduate Architect.” The petitioner then filed Misc. Case No. 4837 of 2002 to recall the order passed on 22.4.2002 in Misc. Case No. 12282 of 2001. The Court on that occasion passed the following order:- “Misc. Case No. 4837 of 2002 This is an application filed by the writ petitioner to recall the order dated 22.4.2002 passed in Misc. Case No. 12282 of 2001. By the said order dated 22.4.2002, the Court granted leave to opposite parties 4 to 8 to terminate the engagement of the petitioner as a Graduate Architect. The writ petitioner has now filed the present misc. case stating therein as to why he was not present in Court when the said order was passed on 22.4.2002 and has prayed that the said order dated 22.4.2002 passed in Misc. Case No. 12282 of 2001 be recalled. The petitioner Shri Moharana appearing in person submitted that his appointment was regular appointment and that this fact has been suppressed from the Court and the order dated 22.4.2002 has been obtained. Although the petitioner’s case is that his appointment was regular, we find from the order of appointment dated 22.6.1999, copy of which is annexed to the writ petition as Annexure-1, that his appointment was ill the joining of a regular Assistant Manager (Architecture). Mr. Moharana is unable to produce before us any other material to show that his appointment was regular. It appears that pursuant to a selection held for two posts of Assistant Manager (Architecture), Mrs. Kabita Kadambala stood first, Mrs. Alaka Patra stood second and the petitioner stood third in the merit list. Mr. Moharana is unable to produce before us any other material to show that his appointment was regular. It appears that pursuant to a selection held for two posts of Assistant Manager (Architecture), Mrs. Kabita Kadambala stood first, Mrs. Alaka Patra stood second and the petitioner stood third in the merit list. Since it was stated before us on 22.4.2002 by Mr.C.A.Rao, learned cousnel for opp.parties 4 to 8 that only two vacancies in the post of Assistant Manager (Architecture) were available, we granted leave to the said opposite parties 4 to 8 to disengage the petitioner so that the two selected candidates may be appointed to the two vacant posts. As the petitioner stood third in the merit list, we are not inclined to recall the said order dated 22.4.2002 passed in Misc. Cases No. 12282 of 2001. However, we make it clear that the appointment of the said two candidates, namely, Mrs. Kabita Kadambala and Mrs. Alaka Patra, will be subject to the result of the writ petition. Further, we direct that since the petitioner has stood third in the merit list, in case any further vacancy occurs in the post of Assistant Manager (Archt.), opposite parties 4 to 8 will accommodate the petitioner in such vacancy. The misc. case accordingly stands disposed of.” After that the petitioner again filed W.P.(C) No. 3279 of 2002 praying his absorption in the post of Asst. Manager (Arch.) with regular scale of pay along with continuity of service w.e.f. 31.12.1990 till joining as was given to regular Asst.Manager (Arch.) of IDCO. There the petitioner did not further question the appointment of other two persons selected in the process for the two posts standing first and second impleading them parties. Both the writ applications on the petitioner’s prayer stood disposed of as withdrawn on 18.3.2015 for filing better application incorporating all the documents received subsequently. The leave as aforesaid having been granted, the present writ application has come to be filed advancing the prayer as stated in the forgoing paragraph. It is pertinent to state here that the subsequent W.P.(C) No. 3279 of 2002 had not been filed specifically to quash the order of termination dated 27.4.2002 which is now the Annexure-25 which was passed with the leave of the Court but it was with the prayer to direct the opp.parties to absorb the petitioner in the post of Asst. It is pertinent to state here that the subsequent W.P.(C) No. 3279 of 2002 had not been filed specifically to quash the order of termination dated 27.4.2002 which is now the Annexure-25 which was passed with the leave of the Court but it was with the prayer to direct the opp.parties to absorb the petitioner in the post of Asst. Manager (Arch.) with regular scale of pay along with continuity of service w.e.f. 31.12.1990 i.e. the date of his joining in the IDCO as was being given to regular Asst.Manager (Arch.) of IDCO. 6. In so far as the first prayer is concerned now it is being advanced herein for the first time. Therefore, such a stale claim at this highly belated stage is not entertainable and the petitioner is not permitted in law to raise that question in this writ application. The prayer for quashing of disengagement of the petitioner passed on 17.10.1995 under Annexure-22 is no more available because after that order accepting the request of the petitioner, he had been engaged with effect from 13.6.1996 on contract basis for a period of 89 days on consolidated emolument being extended from time to time with gap till 22.6.1999 and thereafter on the strength of the order of this Court passed on 27.4.2002. Thus the prayer to quash the order under Anenxure-22 is misconceived. In so far as the prayer for quashing the order dated 27.4.2002 under Annexure-25 is concerned, at the cost of repeatation, it may be stated that it had been passed with the leave of the Court and then the petitioner’s move to recall said order had not been successful. The Court then had made an observation that in case any vacancy occurs, the opp.parties would accommodate the petitioner in such vacancy. It had of course been the order in that Misc. Case that the appointment of two candidates Mrs. Kabita Kadambala and Mrs. Alaka Patra will be the subject to the result of writ petition. The petitioner in this writ application does not seek quashment of order of appointment of the above two persons and there are also now not parties before the Court. On the other hand, he seeks quashment of order dated 17.10.1995 and order of termination dated 27.4.2002 under Annexure-22 and 25 respectively which in the facts and circumstances of the case not only appear to be untenable but also misconceived. On the other hand, he seeks quashment of order dated 17.10.1995 and order of termination dated 27.4.2002 under Annexure-22 and 25 respectively which in the facts and circumstances of the case not only appear to be untenable but also misconceived. Moreover, he now prays for his absorption in the vacant regular cadre post of Assistant Manager (Arch.) held by one Sesha Bhusan Acharya, on completion of his training of one year with regular scale of pay along with the continuity of service w.e.f. 31.12.1990 i.e. initial date of joining of the petitioner in IDCO which had never been raised earlier. In this writ application Sri Sesha Bhusan Acharya is also not a party leaving aside those two namely, Smt. Kabita Kadambala and Smt.Alaka Patra. Earlier this Court while permitting the withdrawal of OJC No. 9905 of 1999 and W.P.(C) No. 3279 of 2002 when had granted leave for filing better application with better particulars incorporating all the documents received subsequently, the present application is not found to be inconsonance with the said order granting the leave as to the limited extent. For the above reason, the present writ application is found to be not maintainable for the reliefs claimed and as such the same does not deserve consideration on merit. 7. Accordingly, the writ application is dismissed. No order as to cost.