Bijaya Kumar Pradhan v. Orissa Administrative Tribunal
2017-07-07
SANJU PANDA, SUJIT NARAYAN PRASAD
body2017
DigiLaw.ai
JUDGMENT : S.N. Prasad, J. This writ petition under Articles 226 and 227 of the Constitution of India wherein the order dated 7.11.2000 in O.A.No.2565(C) of 1995 passed by the Orissa Administrative Tribunal, Cuttack Bench, Cuttack is under challenge whereby and whereunder the Tribunal has dismissed the original application for engagement of the applicant/petitioner as Process Assistant on the ground that he is not possessing required training qualification. 2. Fact of the case is that the applicant/petitioner who belongs to Scheduled Tribe obtained National Trade Certificate in 1992 in the trade of Engraving. In the year 1993, the State of Orissa has created six posts of Process Assistants and there were two consequential vacancies. According to the Orissa Government Press Industrial Employees Classification, Recruitment, Promotion, Conditions of Service and Appeal Rules, 1978, (for short, ‘the Rule,1978’) provides for filling up of the vacancies to the extent of 75% from amongst the holders of National Trade Certificate and 25% will be filled up by promotion of Class-IV employees and skilled industrial employees, who have acquired the necessary skill through their work experience during their service career in the undertaking. According to the applicant, vacancy on roster point-12 during 1995 was meant for Scheduled Tribe candidate but the authority without following the norms of the rules, arbitrarily and whimsically appointed a junior on that post. Applicant’s contention is that, according to section 9(3) of the Orissa Reservation of Vacancies in Posts and Services (for Scheduled Caste and Scheduled Tribes) Act, 1975, (for short “the ORV Act, 1975) as amended, there is no provision for exchange or de-reservation of reserve category posts, if sufficient number of candidates of these categories are not available or there are no candidates available at all from these categories. In such a contingency a fresh recruitment has to be made only from among the candidates belonging to the Scheduled Caste and Scheduled Tribes for filling up the vacancies or remaining vacancies. The applicant claims to be the senior most candidate with trade certificate and has been representing before the authority for consideration of his case but however, to no effect. 3. Case of the State authorities is that vacancies falling on reserved point-12 in the roster register was meant for Process Assistant (Plate-making). The vacancy, therefore, was offered to one Judhisthir Nayak, a Scheduled Caste candidate, who had a National Trade Certificate in the Process Plate-making Trade.
3. Case of the State authorities is that vacancies falling on reserved point-12 in the roster register was meant for Process Assistant (Plate-making). The vacancy, therefore, was offered to one Judhisthir Nayak, a Scheduled Caste candidate, who had a National Trade Certificate in the Process Plate-making Trade. It is further case of the authority that appointment of Judhisthir Nayak has been allowed to continue subject to final result of the original application and no appointment to the trade has been made after the Tribunal’s order. It has further been submitted that in the year 1993 six posts of Process Assistants were created of which five posts were for Plate-making and one for Engraving. Two more consequential vacancies arose, one for Plate-making and the other for Engraving. Thus there were six posts for Plate-making and two for Engraving. One of the posts falling on roster point-9(unreserved) was offered to a senior candidate belonging to the year 1991 who was appointed on the same post. The post falling on roster point-12 reserved for Scheduled Tribunal was meant for Plate-making Trade against which Judhisthir Nayak was appointed. The remaining post for Engraving Trade falls on roster point-11 which is reserved for Scheduled Caste candidate but the applicant who is a Scheduled Tribe candidate could not be appointed against that post by way of exchange because exchange of posts between Scheduled Caste and Scheduled Tribune in case of non-availability or insufficient availability of candidates belonging to these communities is not permissible under Section 6 of the ORV Act. The post of Plate-making Trade and Engraving Trade are two separate posts and cannot be exchanged. It has further been stated that these two posts are to be filled up basis upon different eligibility conditions. The Tribunal, after hearing the learned counsel for the parties, has passed order whereby and whereunder the claim of the petitioner has been rejected on the ground that the petitioner is not possessing training certificate of Plate-making Trade. 4. The petitioner has approached this Court assailing the order of the Tribunal on the ground that he being the applicant for the post of Process Assistant and for that post he is possessing required eligibility criteria but the Tribunal without taking note of this fact has gone into other aspects regarding eligibility of two posts, i.e. Process Plate-making Trade and Process Engraving Trade.
According to the petitioner, two trades are not distinct to each other, rather these posts are coming under the Process Assistant and for the said post he is possessing National Trade Certificate and as such he ought to have been selected but the Tribunal, without taking into consideration these aspects of the matter, has dismissed the original application. 5. We have heard learned counsel for the parties in detail and on perusal of the materials available on record as well as also the finding/observation made by the Tribunal in the original application, it is evident that the petitioner is having National Trade Certificate in the Process Engraving Trade. The petitioner has made application for consideration of his candidature to be appointed as Process Engraving Trade but he could not have been engaged as Process Engraving Trade but there were two vacancies in the Engraving Trade in the year 1993 of which one was unreserved under roster point-9 and the other was reserved for Scheduled Caste candidate being roster point-11, against the unreserved post, a senior-most trade certificate holder of 1991 batch was appointed and against the post under reserved Scheduled Caste, though no one seems to have been appointed, it could not be offered to the applicant on account of ban on exchange of vacancy between the Scheduled Caste and Scheduled Tribe under the provision of Rule 6 of the ORV Act. The petitioner claims that he ought to have been engaged on roster point-12 but the petitioner while negating the said argument on the ground that the post is falling at roster point-12 is reserved for Scheduled Tribe candidate and the same is for the Process Plate-making Trade in which the applicant has no training certificate. Tribunal has taken note of the fact that the Process Plate-making Trade and Process Engraving Trade are two distinct and separate trades and cannot be exchanged and offered to candidate having National Trade Certificate. 6.
Tribunal has taken note of the fact that the Process Plate-making Trade and Process Engraving Trade are two distinct and separate trades and cannot be exchanged and offered to candidate having National Trade Certificate. 6. This Court in course of hearing of the case has put a specific question upon the learned counsel for the petitioner to substantiate his ground regarding the finding given by the Tribunal wherein it has been stated that the post of Process Plate-making Trade and Process Engraving Trade are two distinct and separate trades but learned counsel for the petitioner has failed to produce any material in this regard either from the Rule,1978 or any other document to substantiate his argument to that effect. As such, we, in absence of any material available, cannot come to conclusion that the post of Process Plate-making Trade and Process Engraving Trade are not two distinct Trades, rather we, after going through the materials available on record, on perusal of the order passed by the Tribunal and the averments made by the State in the counter affidavit, copy of which has been served upon the learned counsel for the petitioner but in spite of the same no rebuttal reply has been filed, has accepted the fact and observation made by the Tribunal in the order impugned and as such, are in agreement with the finding regarding ground of the petitioner for his appointment at roster point-12 which is acceptable for the post of Process Plate-making Trade and the admitted position is that the petitioner is not possessing training certificate of Process Plate-making Trade rather he is having National Trade Certificate which is not required eligibility criteria to hold the post of Process Plate-making Trade and as such we find no reason to interfere with the order impugned. Accordingly, there is no error apparent in the order passed by the Tribunal. 7. In the result, we have no reason to interfere with the order impugned. Accordingly, the writ petition stands dismissed.