WP(C)/3646/2021
2021 Latest Caselaw 4518 Ori

W.P.(C) No.3646 of 2021

05. 05.04.2021 This matter is taken up by video conferencing mode.

Heard Sri S.S.Das, learned senior counsel being assisted by Miss Das, learned counsel appearing for the petitioner and Sri A.K.Parija, learned Advocate General being assisted by Sri H.M.Dhanl, learned Additional Government Advocate for the State opposite parties.

Short background involving the case having a legal battle up to Hon'ble Supreme Court, this Court finds in the first round of litigation, the Tribunal in disposing the petitioner's case along with several other O.As directed as follows:

"we would dispose of the application with the direction that the performance of these applicants during the period of their ad hoc service be evaluated by a committee consisting of the Director of Culture and representations of the departments of Culture. G.A. and Welfare not below the rank of Deputy Secretary and if their performance during the period of ad hoc service had been satisfactory then they may be regularly appointed against the posts which are ear-marked for the categories to which they belong according to the model roster and against the direct recruitment quota in accordance with the resolution dated 22.8.99. As regards those who cannot be adjusted in the above manner they may be allowed to continue till the posts are filled up in the prescribed manner and they are replaced by regularly selected incumbents in accordance with the judgment of the Supreme Court in the case of State of Haryana and others Vrs. Piara Singh and others reported in AIR 1992 SC 2130. However, if any such vacancy is ear-marked for a reserved category to which the person concerned does not belong, then his/her continuance shall be only in spells of 45 days so as not to violate the ORY Act. The applicant in O.A. 1925/94 who is officiating against a post of Junior Clerk-

cum-Typist and in whose case there is some confusion as to whether she belongs to General of SEBC, shall

produce the caste certificate to determine her category. If she can be regularly appointed in accordance with the guidelines indicated above, orders of Government in the G.A. Department shall be obtained for relaxation of Rule 14 of the OMS Rules,1985. If no post ear-marked for her category is available then she may be allowed to compete in the next recruitment for Junior Clerks conducted by Collector, Khurda by relaxing her upper age limit if necessary.

5. The exercise of evaluation of the performance on the basis of the CCRS/other service records be completed within three months from the date of receipt of a copy of this order and regular appointment in the case of those who can be adjusted as indicated be completed within one month thereafter.

With the above directions, the original applications are disposed of. No cost."

This matter involves in another Original Application which matter came to be in a writ petition bearing W.P.(C).No.6274 of 2005 also involving the petitioner. This High Court in a Division Bench in disposal of W.P.(C).No.6274 of 2005 passed the following order:

"We have heard learned counsel for the opposite parties. Taking into consideration fact situation of the case in its entirety, we are not disturbing the finding of the learned Tribunal, but learned Tribunal while considering the matter has travelled beyond the prayer, which has been claimed and also failed to take into consideration the direction issued by it in earlier O.A. i.e. O.A.No.305 of 1996, disposed of on 16th May, 2000.

In that view of the matter, the order of the learned Tribunal is required to be quashed and set aside and we so direct. The case of the petitioner will now be considered by the Committee in view of the order passed in earlier O.A. No.305 of 1993.

We make it clear that the entire exercise shall be completed within a period of twelve weeks from receipt of this order."

It seems the petitioner being aggrieved by the order in disposal of the writ petition indicated

hereinabove went to Hon'ble Supreme Court in S.L.P.(Civil) Diary No.33554 of 2019. The Hon'ble Apex Court disposing the above S.L.P. on 14.10.2019 passed the following order:

"Delay condoned.

We have heard Mr.Sourya Sundar Das, learned senior counsel appearing for the petitioner.

We are not inclined to interfere with the impugned order except reiterating the following direction of the High Court:

"The case of the petitioner will now be considered by the Committee in view of the order passed in earlier O.A.No.340 of 1994.

We make it clear that the entire exercise shall be completed within a period of twelve weeks from receipt of this order."

As a consequence of non-compliance of the direction of the Tribunal vis-à-vis the ultimate direction of the Hon'ble Apex Court at Annexure-6, the petitioner was forced to file the writ petition in 2021. This Court upon hearing the same case ultimately on 24.2.2021 passed the following order:

"Heard Sri S.S.Das, learned counsel for the Petitioner and Sri H.M.Dhal, learned Additional Government Advocate for the State.

There is already a proceeding involving the issue disposed of in O.A. No.340(C) of 1994. The Writ Petition having been filed at the instance of the Petitioner, this Court almost confirmed the order of the Tribunal but however in the attempt of the Petitioner, the Hon'ble Supreme Court in disposal of SLP (Civil) Diary No.33554/19 by order dated 14.10.2019 passed the

following order :-

"Delay condoned.

We have heard Mr.Sourya Sundar Das, learned senior counsel appearing for the petitioner. We are not inclined to interfere with the impugned order except reiterating the following direction of the High Court :

"The case of the petitioner will now be considered by the Committee in view of the order passed in earlier O.A. No.340 of 1994.

We make it clear that the entire exercise shall be completed within a period of twelve weeks from receipt of this order."

The Special Leave Petition is accordingly disposed of.

Pending applications, if any, shall also stand disposed of."

Looking to the grievance of the Petitioner involving the Writ Petition and taking into account the direction of the Hon'ble Supreme Court through Annexure-6, this Court finds strange in the attitude of the competent authority in not considering the case for regularization of the Petitioner through the Committee as per the direction of the Tribunal when clarified by the Hon'ble Supreme Court.

This matter stands adjourned to 15.3.2021."

On 15.03.2021, again this Court passed the following order:

"Heard Sri S.S.Das, learned senior counsel for the Petitioner and Sri H.M.Dhal, learned Additional Government Advocate for the State.

Finding a legal battle by the Petitioner through O.A.No.340(C) of 1994 being confirmed by the Hon'ble Supreme Court in disposal of SLP(C) Diary No.33554/19 on 14.10.2019, whereby Hon'ble Supreme Court while directing that the case of the Petitioner would be considered by the Committee in view of the order passed earlier O.A. No.340 of 1994 and such exercise would be completed within a period of twelve weeks from receipt of the order. On 24.2.2021, this Court directed the learned State Counsel to take instruction as to the action of the competent authority.

Today on the proceeding being taken, Sri H.M.Dhal, learned Additional Government Advocate for the State asks for further time to take instruction. This Court is not satisfied with the asking for time. For involving non-compliance of the direction of the Hon'ble

Supreme Court even after almost one year, this Court directs the Secretary to Government, Department of Tourism and Culture and the Director, Harekrushna Mahatab State Library, Bhubaneswar to appear before this Court in person on 5th April, 2021 at 10.30 A.M. with explanation on day-to-day development at their end after Hon'ble Supreme Court passed the order dated 14.10.2019 in SLP(C) Diary No.33554/19 upon service of copy of order by the next date.

However, pendency of the Writ Petition shall not stand on the way of the Opposite Parties in working out the directions of the Tribunal vis-à-vis Hon'ble Supreme Court in the meantime.

Place this matter on 5th April, 2021.

A free copy of this order be supplied to the learned State Counsel."

Heard Sri Das, learned Senior Advocate, who on reiteration of the allegation in the matter of non- compliance of the direction of the Tribunal as well as the Hon'ble Supreme Court and right through the repeated orders of this Court and requested for allowing the writ petition consequently. Sri Parija, learned Advocate General at the outset submitted that for there is already compliance of the direction of the Tribunal vide Annexure-A/2, through the affidavit dated 5.4.2021 and in this view of the matter sought for exemption of at least of the Director, Hare Krushna Mahatab State Library, Bhubaneswar on the premises of compliance of the order already. Taking this Court to the Annexure- A/2, Sri Parija, learned Advocate General submitted that for there being one unreserved post in the consideration pursuant to the Tribunal direction, one Smt.Manjurai Muduli, since her performance found to be better than the petitioner Smt. Kabita Rani Mohanty,

was accommodated against the unreserved category through the decision at Annexure-A/2. So far as the petitioner is concerned, Sri Parija, learned Advocate General brought to the notice vide Annexure-A/2 that petitioner since has already been regularized since 21.2.2019 is directed to continue from her date of regularization on 21.2.2019 however with notional benefits from 01.05.2008 against the promotional vacancy in unreserved category subsequently vacated due to superannuation.

It is in this view of the matter, Sri Parija, learned Advocate General contended that there has been already compliance of the direction of the Tribunal following further direction of the Hon'ble Supreme Court and thus the writ petition should be dropped.

Considering the rival contentions of the parties this Court finds there is already compliance of the order of the Tribunal dated 15.05.2000 but however for the involvement of subsequent Original Application and pendency of the writ petition bearing W.P.(C).No.6274 of 2005 disposed of on 11.04.2019 again on carrying on a S.L.P to the Hon'ble Apex Court registered as S.L.P.(Civil) Diary No.33554 of 2019 though disposed of on 14.10.2019 giving rise an authority on the competent authority for compliance of the order passed in O.A.No.340 of 1994 by Annexure-A/2 ultimately this order of the Tribunal in O.A.No.340 of 1994 has been

complied with. This Court, however, does not find any satisfactory explanation as to when the direction of the Hon'ble Apex Court was given on 14.10.2019, the public authority complied the order of the Tribunal in their meeting dated 30.3.2021. For inordinate delay, while cautioning the Public Officers involved herein to see that there is no further repetition of this act in future also inclined to issue direction to the Secretary, Odiya Language Literature and Culture at least to circulate all concerned under his Department to work out the directions against them within the reasonable period.

At this stage, Sri Das, learned senior counsel makes a complain that the developments through Annexure-A/2 is just an eye wash but in fact there is no compliance of the order of the Tribunal concluded through the direction of the Hon'ble Apex Court.

For recording the submission of learned Advocate General in presence of the Officers of the establishment made through the affidavit of the competent authority dated 5.4.2001, this Court does not want to entertain such aspect at this stage. Petitioner, if so advised, may foind out other options available to her.

Personal appearance of Sri Bishnupad Seth, Secretary and Sri Arindam Dakua, Secretary who are present in persons in this Court, for the disposal of the writ petition, their personal appearance is dispensed with.

As restrictions due to the COVID-19 situation are continuing, learned counsel for the parties may utilize a soft copy of this order available in the High Court's website or print out thereof at par with certified copy in the manner prescribed, vide Court's Notice No.4587, dated 25th March, 2020.

..................................... Biswanath Rath, J.

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