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2019 DIGILAW 601 (ORI)

Bholanath Harijan v. D. P. O. , Nuapada

2019-09-23

B.R.SARANGI

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JUDGMENT : B.R. Sarangi, J. 1. The petitioner, by means of this writ application, seeks to quash the selection and appointment of opposite party No. 5 as Salesman/Supply Assistant of Litisargi Gram Panchayat under Boden Panchayat Samiti in the district of Nuapada, and further seeks for direction to the State opposite parties to allow him to continue in the said post of Salesman/Supply Assistant keeping in view his past experience as per the guidelines issued by the Government. 2. The factual matrix of the case, in hand, is that in order to fill up the post of Salesman/Supply Assistant to assist the Panchayat Secretary for smooth distribution of Public Distribution System (PDS) commodities among the public, Litisargi Gram Panchayat took a decision by passing resolution and communicated the same to the Block Development Officer, Boden Panchayat Samiti, who in turn, vide letter dated 02.07.2001, recommended the same to the District Project Officer, Nuapada for according approval. The District Project Officer, Nuapada, basing upon the recommendation made by the Block Development Officer and resolution made by the Gram Panchayat, by its letter dated 04.07.2001 accorded approval of engagement of the petitioner as Salesman/Supply Assistant w.e.f. 05.05.2001. Accordingly, an office order was issued on 04.07.2001 allowing the petitioner to continue as Salesman/Supply Assistant in a consolidated wages of Rs. 500/- per month. 2.1. Pursuant to approval accorded by the District Project Officer in its letter dated 04.07.2001, the petitioner was continuing till July, 2007. As the PDS commodities are being sold by mobile van, the petitioner was not allowed to discharge the duty and subsequently the Government decided to sell the PDS commodities through the Panchayats again, for which the petitioner represented to the Sarpanch on 23.08.2007 requesting to allow him to continue as before. Thereafter, a resolution was passed by the Gram Panchayat on 02.06.2011 taking unanimous decision to remove the petitioner from the post of Salesman and in his place opposite party No. 5 was allowed to continue. Accordingly, engagement order was issued on 11.11.2013 in favour of opposite party No. 5 wherein his name finds place at serial No. 24 with a fixed honorarium of Rs. 3500/- per month out of the funds earned from commission and cost of gunny bags of PDS. Accordingly, engagement order was issued on 11.11.2013 in favour of opposite party No. 5 wherein his name finds place at serial No. 24 with a fixed honorarium of Rs. 3500/- per month out of the funds earned from commission and cost of gunny bags of PDS. The Government in Food Supplies & Consumer-Welfare Department issued a guideline on 12.08.2013 stating inter alia that the salesman engaged by the Gram Panchayats for dealing" with PDS may be given preference over others due to their experience in the job and so far as KBK districts are concerned, the letters dated 21.04.2012 and 27.04.2012 partially modified to the extent that the educational qualification for appointment of Jogan Sahayak in respect of 8 KBK districts and in five tribal populated districts was relaxed as 10th class passed. But without considering the same and without taking into consideration the experience of the petitioner, opposite party No. 5 has been engaged. Hence this application. 3. Mr. S.K. Joshi, learned counsel for the petitioner argued with vehemence and contended that the petitioner having been engaged, by getting due approval of the District Project Officer, as Salesman to assist the Secretary of the Panchayat for distribution of PDS commodities on the basis of the recommendation made by the Block Development Officer, his services could not have been dispensed with by the authorities on the ground that PDS commodities are distributed by using van. Further, when subsequently decision was taken that PDS commodities are to be distributed as before, in that case, the past experience gained by the petitioner should have been taken into consideration and he should have been allowed to continue in the post of Salesman/Jogan Sahayak as per the guidelines issued by the Government. Instead of doing so, the authorities have engaged opposite party No. 5 to work as Jogan Sahayak, thereby the Government guideline dated 12.08.2013 has been given a goby. It is contended that the authorities have acted arbitrarily and unreasonably, and, therefore, he seeks interference of this Court. 4. Mr. S. Palit, learned Addl. Government Advocate admitted the factum that the petitioner was engaged as Salesman of Litisargi Gram Panchayat under Boden Block, pursuant to resolution passed by the Gram Panchayat, which was duly approved by the District Project Office as provided under Rule 220 of Odisha Gram Panchayat Rules, 1968. 4. Mr. S. Palit, learned Addl. Government Advocate admitted the factum that the petitioner was engaged as Salesman of Litisargi Gram Panchayat under Boden Block, pursuant to resolution passed by the Gram Panchayat, which was duly approved by the District Project Office as provided under Rule 220 of Odisha Gram Panchayat Rules, 1968. But the petitioner did not attend the office and was not discharging his duties and also the PDS commodities were distributed by the departmental van. It is contended that since there was no requirement of the petitioner's engagement, vide resolution dated 02.06.2011 passed by the gram-panchayat, he was removed. It is further contended that Masatram Sabar, who was working as Executive Officer of Litisargi Gram Panchayat, was absconded from Government duties since 25.03.2006. Consequentially, there was no lifting of PDS commodities during his absence period and since then the Public Distribution System remained with the Supply Department,' and more so the petitioner, who was engaged as Salesman, did not attend the office. Subsequently, when another Executive Officer was posted to the said Gram Panchayat, it was decided to lift the PDS commodities for smooth distribution to the consumers. As the petitioner remained absent from his duties for a long period, without intimating the Gram Panchayat, consequentially, opposite party No. 4 did not allow him to continue and, pursuant to resolution passed by the Gram Panchayat, the petitioner was removed from service. Subsequently, opposite party No. 5 was appointed as Jogan Sahayak, who has been discharging his duties assigned to him. Therefore, the claim made by the petitioner to quash the engagement of opposite party No. 5 cannot have any justification. It is further contended that even though the petitioner remained absent for a quite long time, he had not been disengaged till 01.06.2011 It is contended that opportunities were also given to the petitioner by opposite party No. 4 by giving notice in Annexure-3 series, which he did not respond. Further, after the petitioner was removed from service, opposite party No. 5 was engaged as Jogan Sahayak vide order dated 11.11.2013 of the Collector, Nuapada and, as such, he is discharging his duties in the Gram Panchayat office from that date. Therefore, no illegality or irregularity has been committed by the authority so as to warrant interference by this Court. 5. Mr. Therefore, no illegality or irregularity has been committed by the authority so as to warrant interference by this Court. 5. Mr. S.S. Pradhan, learned counsel for opposite party No. 5 contended that the petitioner was removed from service, pursuant to resolution dated 02.06.2011, but he has not challenged the same. It is contended that opposite party No. 5 belonged to scheduled caste community and after completion of +2 Arts he enrolled himself in District Employment Exchange, Nuapada on 18.09.2006. Pursuant to notice inviting applications by Litisargi Gram Panchayat from the intending candidates for the post of Salesman, the opposite party No. 5 applied for the post and he having been duly selected, the Collector engaged him vide order dated 11.11.2013 and accordingly opposite party No. 5 joined in the post and continued to discharge his duties assigned to him. It is further contended that pursuant to letter dated 21.04.2012, in order to provide better service and for smooth supply of PDS materials, it was decided to appoint educated youths as Jogan Sahayak on contractual basis with consolidated remuneration of Rs. 4000/- per month arid, as such, even for KBK districts the educational qualification has also been relaxed. It is contended that opposite party No. 5 has been engaged by following due procedure after removal of the petitioner w.e.f. 02.06.2011 and, as such, opposite party No. 5 was engaged in the substantive vacancy. Thereby, the claim made by the petitioner cannot sustain in the eye of law. 6. This Court heard Mr. S.K. Joshi, learned counsel for the petitioner; Mr. S. Palit, learned Addl. Government Advocate; and Mr. S.S. Pradhan, learned counsel for opposite party No. 3 and perused the record. Pleadings having been exchanged, with the consent of learned counsel for the parties, this writ petition is being disposed of finally at the stage of admission. 7. The factual matrix, as delineated above, is not disputed. Meaning thereby, initially the petitioner was engaged as Salesman by Litisargi Gram Panchayat by passing resolution, and on the basis of the recommendation made by the BDO, approval was made by the District Project Officer. But from the year 2006 onwards, the petitioner did not discharge his duties on the plea that-PDS commodities were being distributed through departmental authority by van. But from the year 2006 onwards, the petitioner did not discharge his duties on the plea that-PDS commodities were being distributed through departmental authority by van. But subsequently, when it was decided to restore the earlier system, as the petitioner was not discharging his duty, he had been removed from service by passing resolution by the Gram Panchayat and accordingly he was no more in employment w.e.f. 02.06.2011 and the said post remained vacant till a fresh consideration was made by the Gram Panchayat. As such, by following due procedure, opposite party No. 5 was selected and appointed on 11.11.2013 and from that date opposite party No. 5 has been discharging his duty assigned to him and in the meantime more than six years have already passed and, as it reveals, opposite party No. 5 has been discharging his duty in conformity with the provisions of law More particularly, when opposite party No. 5 was engaged by following due procedure of law and as per the guidelines issued by the Government and engagement order was issued by the Collector, in that case, no step can be taken against opposite party No. 5 for disengagement from service to facilitate the engagement of the petitioner. 8. In order to promote and encourage to take up FPS retailer-ship by the Gram Panchayat Women Self Help Groups and Cooperatives, the Government of Odisha in the Department of Food Supply and Consumer Welfare, formulated a scheme introducing new Departmental Storage System in its letter dated 21.04.2012. Pursuant to such scheme, it has been decided to give preference to the institutional agencies, like Gram Panchayats, Self Help Groups and Cooperative Bodies over a private agency in issuing licence to deal with PDS items in a particular area. In an ideal situation there could be two institutional leadership in a Gram Panchayat, one being the Gram Panchayat and other being Women Self Help Group or a Cooperative organization to ensure better distribution and to eliminate monopoly. Further, in order to achieve smooth supply of PDS materials, it has been decided to appoint educated youths as Jogana Sahayaks on contractual basis with consolidated remuneration of Rs. 4000/- per month. Further, in order to achieve smooth supply of PDS materials, it has been decided to appoint educated youths as Jogana Sahayaks on contractual basis with consolidated remuneration of Rs. 4000/- per month. Thereafter, the Government of Odisha in the Department of Food Supplies and Consumer Welfare in its letter dated 12.08.2013, partially modified the selection procedure of Jogana Sahayaks and relaxed the qualification from Graduation to 10th class passed equivalent to matriculation in respect of eight KBK districts and five tribal populated districts. In the said letter it has been further provided that the Salesmen, who were earlier engaged in Gram Panchayats for dealing with PDS, would be given preference over others for appointment as Jogan Sahayak. 9. As it appears, due to his absence from duties, the petitioner was not allowed to continue as Salesman of Litisargi Gram Panchayat since 2006. However, he was removed from service with effect from 02.06.2011, pursuant to resolution passed by the Gram Panchayat. Thereafter, pursuant to proposal No. 9, fresh steps were taken to select a competent person who can discharge his duty in consonance with the guidelines issued by the Government from time to time. Thereby,' fresh applications were invited from the interested candidate's and opposite party No. 5 was selected and given engagement by following due procedure. In view of such position, this Court is of the considered view that the claim made by the petitioner cannot sustain in the eye of law. 10. Accordingly, the writ petition, being devoid of merits, stands dismissed. However, there shall be no order as to costs.