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2017 DIGILAW 628 (ORI)

Narendranath Dash v. State of Odisha

2017-06-23

SANJU PANDA, SUJIT NARAYAN PRASAD

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JUDGMENT : S. N. Prasad, J. 1. This writ petition is under Articles 226 and 227 of the Constitution of India wherein the order passed by the Orissa Administrative Tribunal dtd.2.8.1999 in original application No.2169 (C) of 1999 has been challenged whereby and where under the Tribunal has refused to grant relief to the petitioner regarding appointment in terms of advertisement issued in the year 1988. 2. The brief facts of the case is that the applicant who is petitioner herein has participated in the selection process for the post of Jr. Grade Typist in terms of an advertisement published in the month of October, 1988. The name of the petitioner has been incorporated in the panel for being selected having his name appeared at Sl. No.72. The petitioner has not been appointed. The case of the petitioner is that the validity of the panel has been extended till publication of the result of the next examination which has been directed vide order passed by the Tribunal in O.A. No.969 of 1992 dtd.16th October, 1992 and as such according to him the result of the next examination since been published in year 2000, hence he ought to have been appointed in pursuance to the said panel and by not doing that the authorities have disobeyed the direction passed by the Tribunal in O.A. No. 969 of 1992. He further submits that even as on date the Government can relax the upper age limit and he can be appointed. 3. On the other hand learned Additional Government Advocate has vehemently opposed the prayer made on behalf of the petitioner by defending the order impugned. He has submitted that the order passed by the Tribunal in O.A. No.969 of 1992, decided on 16th October 1992 cannot be said to have general application, rather it is judgment passed in favour of one Smt. Sabita Kumari Jena, accordingly the same has been complied with, which cannot be made applicable to the petitioner for the reason that the petitioner admittedly has approached to the Tribunal in the year 1999 and the day when he has approached the tribunal, the Recruitment Rule has been changed by virtue of amendment having been brought by the General Administration Department vide notification No.969 dtd.31.7.1998 whereby and where under the task of recruitment of Jr. Grade Typists of offices of State Government has been assigned to the Odisha Staff Selection Commission. He submits that the moment the Recruitment Rules, 1993 has been amended w.e.f. 31.07.1998, the panel which has been prepared on the basis of Recruitment Rules, 1982 will have no application and on this ground alone the relief sought for by the petitioner is not sustainable in the eye of law. He further submits that the petitioner has approached to the Tribunal after lapse of about 11 years from the date of advertisement while the Recruitment Rules 1982 says that the merit list shall remain valid for a period of one year or till publication of the result of next recruitment examination, which ever is earlier, but even accepting the argument of the petitioner that the result has been published in the year 2000, as such in view of the provision as contained in Rule, 1982 regarding validity of the panel, the petitioner cannot derive any benefit by virtue of the amendment having been brought by the G.A. Department notification dtd.31.7.1998 amending the entire recruitment rules and in that view of the matter the entire process initiated for fulfilling the post will be said to be redundant in the eye of law. 4. We have heard the learned counsels for the parties and perused the documents available on record. The undisputed fact in this case is that the petitioner has made an application for consideration of his candidature in pursuance to an advertisement published in the month of October, 1988 for the post of Jr. Grade Typist, in which his name has been incorporated under the panel at sl. no.72. His grievance is that even though his name was in the panel, he has not been engaged, while the other candidate whose name was also in the select list, when not selected, has approached the tribunal vide O.A. No.969 of 1992 in which the Tribunal has passed an order directing the authorities to appoint her by treating the panel valid till publication of the next result. It is also not in dispute that the recruitment process has been started on the basis of the Recruitment Rule notified on 9th November 1982 wherein there is a clause contained in rule 8 to the effect that the merit list shall remain valid for a period of one year or till the publication of the results of the next recruitment examination, which ever is earlier. It is also not in dispute that the Staff Selection Recruitment Rule has been notified in the year 1993 which was amended vide notification dtd.27.07.1998 whereby and where under the post of Jr. Grade Typist of the Heads of Department under General Administration Department has been brought under the purview of the Odisha Staff Selection Commission Rules, 1993 and in terms thereof the Government has issued the advertisement, as would be evident from Annexure-9 dtd.5.5.1999. We have got from the counter affidavit that after the amendment having been brought by notification dtd.31.7.1998 the same has been communicated to the Heads of the Department intimating there available vacancies of Jr. Grade Typist to Odisha Staff Selection Commission and in terms thereof the process has been initiated for conduct of recruitment examination for the post of Jr. Grade Typist. It is also evident from Rule 20 of the Odisha Staff Selection Commission Rules, 1993 that the provisions of rules shall have overriding effect on the provisions of other recruitment rules regulating direct recruitment to the Class-III Civil Services/posts constituting state cadre. There is no dispute about the fact that the recruitment is to be made in pursuance to the prevalent rule and when the advertisement in question has been issued, at that time the Recruitment Rule, notified on 9th November 1982, was in vogue. The recruitment process has been initiated in pursuance to the Rule as contained in notification dtd.9.11.1982, the petitioner has been found to be successful, in view there of his name has been incorporated in the panel. It is also apparent from the provision of Rule 8 that the merit list shall remain valid for a period of one year or till publication of the results of the next recruitment examination, whichever is earlier. It is also apparent from the provision of Rule 8 that the merit list shall remain valid for a period of one year or till publication of the results of the next recruitment examination, whichever is earlier. The tribunal, after taking note of the provision of Rules, 1982 has passed an order in O.A. No.969 of 1992 with respect to one other candidate, namely, Smt. Sabita Kumari Jena and taking note of the fact that the result of next recruitment examination has not been published, has directed the authority to issue appointment letter. It is also not in dispute that the petitioner has not approached the court of law fairly for a long period, i.e. for about 11 years and he only approached in the year 1999 by virtue of the order passed in O.A. No.2169 (C) of 1999 which is impugned in this writ petition having been disposed of vide order dtd.02.08.1999. It is also not in dispute that the moment the Rule lost its force by virtue of coming into effect of the new Rule, the process will be taken up by virtue of the new Rule. We, after going through the amendment dtd.21.7.1998 as contained in notification no.969 dtd.31.7.1998 whereby and where under the Jr. Grade Typist has been brought under the purview of Orissa Staff Selection Commission having the different sets of regulation for recruitment of the candidates to that post, hence according to our considered view the process which has been initiated by virtue of the previous rule came to an end the moment the new rule has taken shape substituting the old rule. 5. The petitioner’s main contention is that he has to be given the same benefit as has been given to the applicant of O.A. No.969 of 1992, but that cannot be acceptable to us, reason being that it is the recruitment process and a candidates who is not vigilant to get his right immediately and waiting for the result of the others and approached the court of law after lapse of more than 11 years, such candidate is not entitled to get the benefit of recruitment on the basis of an advertisement issued way back in the year 1988. 6. 6. So far as the contention of extending benefit of relaxing the age is concerned, the same is also not fit to be ordered from a panel prepared way back in the year 1989 otherwise the same will contrary to the new recruitment rule and also in the teeth of Articles 14 and 16 of the Constitution of India. 7. We, after going through the finding given by the order impugned, have found that the Tribunal has taken into consideration all the aspects of the matter and dealing with the intent of Article 14 of the Constitution of India has dismissed the original application, hence there is no error apparent on the face of the order passed by the Tribunal, accordingly in our considered view there is no infirmity in the order impugned. In the result the writ petition stands dismissed.