Orissa High Court

Alok Kumar Pradhan vs State Of Orissa And Others on 7 December, 2022

                       ORISSA HIGH COURT: CUTTACK

                             W.P.(C) No.12264 of 2019

         In the matter of an application under Articles 226 and 227 of
         the Constitution of India

                                          ----

         Alok Kumar Pradhan                      .....    Petitioner

                                          -Versus-

         State of Orissa and others              .....   Opp. Parties


            For Petitioner           : Mr. S.K. Pradhan-3, Adv.

            For Opp. Parties         : Mr. S.K. Samal, A.G.A.


         P R E S E N T:

THE HONOURABLE MR. JUSTICE SANJAY KUMAR MISHRA

Date of Hearing: 26.09.2022 & Judgment: 07.12.2022

S.K. Mishra, J. In the present Writ Petition, a prayer has been made

to quash the letter dated 24.05.2019, as at Annexure-6, vide

which the Opposite Party No.2 rejected the proposal submitted

by the Project Director, DRDA, Nayagarh-Opposite Party No.4,

to treat the vacancy of the post of Computer Programmer in

Khandapara Block as filled up and release allotment towards

remuneration of Computer Programmer in the said Block in

favour of the Petitioner.

2. The factual matrix leading to filing of the present Writ

Petition is that the Petitioner passed HSC in the year, 1990,

BCA in the year, 2006 and MCA in the year, 2014. While he was

serving as Computer Programmer in Khandapara Block in the

District of Nayagarh since 26.12.2006, the Opposite Party No.4

published an advertisement on 21.04.2008 inviting applications

from eligible candidates for appointment of Computer

Programmer in the said Block i.e. the post in which the present

Petitioner is serving.

3. Being aggrieved by such advertisement dated 21.04.2008,

the Petitioner approached this Court in W.P.(C) No.6512/2008

praying therein to quash the said advertisement issued by the

Opposite Party No.4. The Writ Petition was disposed of on

20.02.2014 by quashing the advertisement dated 21.04.2008,

with an observation that since the Petitioner is continuing in the

post of Computer Programmer in Khandapara Block and there

was no vacancy to issue 2nd advertisement dated 21.04.2008,

the same is liable to be quashed and accordingly, the said

advertisement was quashed. It was further observed vide the

said Order that it is open to the Authority to take consequential

action, if the appointment Order issued in favour of the

Petitioner is without following the selection process.

4. In pursuance of the said observation of this Court, a

clarification was sought for from Panchayati Raj Department

vide DRDA letter dated 13.11.2014 for compliance of the Order

of this Court. In response to said communication, the Director,

Special Projects, P.R. Department, Government of Odisha, vide

letter dated 08.12.2015 instructed the Opposite Party No.3 to

take action at District level, he being the appointing Authority of

Computer Programmers, with an observation that the report

with regard to action taken may be sent for further action. In

response to the said communication dated 08.12.2015 of the

Opposite Party No.1, the Opposite Party No.3, vide Order dated

06.04.2018 in Misc. Case No.18/2016, confirmed the Order

passed by the Project Director, DRDA, Nayagarh, and directed

the Petitioner to continue as Computer Programmer in

Khandapara Block in the District of Nayagarh as before.

5. Pursuant to the Order passed in Misc. Case No.18/2016,

the Project Director, DRDA, Nayagarh, vide letter dated

02.08.2018, enclosing thereto the Order of the Collector,

Nayagarh, dated 06.04.2018, wrote a letter to the Director,

Special Projects, PR & DW Department, Government of Odisha,

Bhubaneswar, with a request to the effect that in view of the

Order passed by the Collector, Nayagarh, dated 06.04.2018,

vacancy of the post of Computer Programmer in Khandapara

Block may be treated as filled up and the allotment towards

remuneration of the Computer Programmer in the said Block

may be released.

6. However, the said proposal submitted by the Opposite

Party No.4 was rejected by the Opposite Party No.2, vide

communication dated 24.05.2019, as at Annexure-6, on the

plea that the same does not merit for consideration, which is

impugned in the present Writ Petition.

7. It is further case of the Petitioner that the decision of the

Opposite Party No.2 to reject the proposal of Opposite Party

No.4 dated 02.08.2018 regarding the acceptance of the post of

Computer Programmer in Khandapara Block to be filled up and

release of allotment for paying remuneration to Computer

Programmer is illegal, arbitrary and product of non-application

of mind, and is liable to be set aside as the said impugned

communication indicates no reason in refusing the proposal,

except stating therein that the said proposal bears no merit and

is a non-speaking one.

8. It is further stated that the Collector, Nayagarh, is the

appointing Authority of Computer Programmer of Khandapara

Block and after quashing of the 2nd advertisement published by

the Opposite Party No.4 dated 21.04.2008, as at Annexure-2,

by this Court, vide Order dated 20.02.2014, passed in W.P.(C)

No.6512/2008, there is no hurdle for the Petitioner to continue

as Computer Programmer in the said Block and the impugned

communication of the Opposite Party No.2 dated 24.05.2019

being issued without any valid reason, is totally unsustainable

in the eye of law and therefore, is liable to be set aside.

9. It has also been contended that the Collector, Nayagarh-

Opposite Party No.3, looking into urgency of Computer

Programmer for Khandapara Block, has confirmed the said

post. Therefore, there is no justification on the part of the

Opposite Party No.2 to reject the proposal submitted by the

Opposite Party No.4 for acceptance of post of Computer

Programmer for said Block and release the allotment towards

remuneration of Computer Programmer.

10. In response to the averments made in the Writ Petition, a

Counter Affidavit has been filed by the Opposite Party Nos. 3

and 4 stating therein that an advertisement was published by

the Project Director, DRDA, Nayagarh, on 31.07.2006 inviting

applications from eligible candidates for the post of Computer

Programmer for Khandapara Block of Nayagarh District for E-

Governance to be engaged on contractual basis with

consolidated remuneration of Rs.5,000/- per month. As per the

said advertisement, a panel of suitable candidates was

maintained at DRDA, Nayagarh, to fill up the further vacancies.

In the said advertisement, it was further stipulated that the

candidates so selected on the basis of the scrutiny will be

invited to appear before the Selection Committee and

engagement as Computer Programmer is purely temporary in

nature and made for one year. The candidates can be

disengaged at any time without any notice and assigning any

reasons thereof.

11. In response to the said advertisement, the Petitioner,

along with others, submitted application in the prescribed

format. The Selection Committee comprising of the Collector-

Cum-District Magistrate, Nayagarh, as Chairman and the

Members such as Project Director, DRDA, Nayagarh, Block

Development Officer, Khandapara, Assistant Project Director

(MIS), DRDA, Nayagarh & NIC, Nayagarh, conducted an

interview and Computer Test was conducted by the Committee

with the assistance of Computer Specialist, O/o the CDMO,

Nayagarh and Computer Programmer, DRDA, Nayagarh. The

Committee members awarded marks on the performance of the

candidates and on the basis of overall performance of the

candidates, two candidates were selected, namely, Prasanta

Kumar Mohapatra, at Serial No.1 and Alok Kumar Pradhan, at

Serial No.2, who is the present Petitioner.

12. It is the stand of the Opposite Party Nos. 3 and 4 that

since name of Prasanta Kumar Mohapatra placed in Serial No.1,

he ought to have been issued with the Order of appointment

and, in case of non-joining of Prasanta Kumar Mohapatra, the

case of the present Petitioner, whose name was at Serial No.2 of

the selection list, should have been considered for engagement.

The said proceeding of the Selection Committee was signed by

the Collector, Nayagarh, he being the Chairman of the

Committee. He never authorized any of the Authority at the

relevant time to issue engagement Order to the selected

candidate.

It has further been stated in the Counter Affidavit that no

record is available in the O/o the Project Director, DRDA,

Nayagarh, as to whether any Order of engagement is issued in

favour of Prasanta Kumar Mohapatra, whose name was found

at Serial No.1 of the merit list, so also as to whether Mr.

Mohapatra did not join in response to the issuance of Order of

engagement and under what circumstances, the present

Petitioner, whose name was at Serial No.2 of the merit list, was

issued with the Order of engagement by the then Project

Director, DRDA, Nayagarh, who is not competent Authority to

issue such Order of engagement. Even though the candidate at

Serial No.1 was not issued with the Order of engagement, it

throws a cloud of suspicion in the manner in which the present

Petitioner, being at Serial No.2 of the merit list, was issued with

the Order of engagement by the then Project Director, DRDA,

Nayagarh, without any authorization issued in his favour by the

Collector, Nayagarh, who is the competent Authority to issue

such Order of engagement. Since the very issuance of

engagement Order was by an incompetent Authority, such

engagement of the Petitioner is void abinitio and does not confer

any right on the Petitioner. It is also stated in the Counter

Affidavit that it is revealed from the Order of engagement dated

23.12.2006, issued by the then Project Director, DRDA,

Nayagarh, which was annexed to W.P.(C) No.6512/2008 as

Annexure-4, in the said engagement Order the number of Office

Order has been mentioned as "2768", dated 23.12.2006 but on

verification of the Issue Register in the O/o the DRDA,

Nayagarh, it is found that the said Order No.2768, dated

23.12.2006 refers to some other document and not the Order of

engagement of the present Petitioner. There was no record in

the O/o the DRDA, Nayagarh, for which the post of Computer

Programmer in the said Block was reported to be vacant.

Accordingly, an advertisement was issued on 21.04.2008 by the

Project Director, DRDA, Nayagarh, inviting applications from

eligible candidates for engagement of Computer Programmer for

the said vacant post of the Block for E-Governance, to be

engaged on contractual basis with consolidated remuneration of

Rs.5,000/- per month. Being aggrieved by the said

advertisement, the Petitioner preferred W.P.(C) No.6512/2008,

which was disposed of on 20.02.2014 by quashing the said

Advertisement dated 21.04.2008 giving liberty to the Authority

concerned to take consequential action, in case the appointment

Order issued in favour of the Petitioner is found to be without

following the selection process.

It is further stated in the Counter Affidavit that as per the

observation made by this Court in W.P.(C) No.6512/2008, a

Misc. Case, bearing No.18/2016 was instituted before the

Collector, Nayagarh. Although the Collector in Misc. Case

No.18/2016 came to a finding that the appointment Order

issued in favour of the Petitioner is created by the then Project

Director, DRDA, Nayagarh, under his signature ignoring all the

official procedure, even the issue number etc. in the said Order

is manipulated and the Collector is the appointing Authority of

Computer Programmer, being the Chairman of the Selection

Committee, but in the peculiar case, it is not understood, as to

why office became silent to take follow up action after selection

process was over, for which the selection procedure has been

completely violated. The integrity of the then Project Director,

DRDA, Nayagarh, is doubtful as he misused his official capacity,

for which he has been proceeded against by the Department.

Although the Collector, Nayagarh, vide Order dated 06.04.2018

came to a finding that the engagement of the Petitioner is illegal

and has been done without following due procedure, but on the

other hand, held that the Petitioner is continuing as Computer

Programmer in Khandapara Block since 23.12.2006 and getting

remuneration by virtue of an undertaking to the effect that if his

engagement Order is found to be a forged one, he shall refund

the amount. Accordingly, the Collector, Nayagarh, held that

there is no justification to debar the Petitioner from his

legitimate claim and by the said Order, the previous Order

under the signature of Project Director, DRDA, Nayagarh, was

confirmed by the Collector, Nayagarh, and it was ordered that

the Petitioner will continue as such.

13. It has further been reiterated in the Counter Affidavit that

as a consequence to the said Order dated 06.04.2018 of the

Collector, Nayagarh, the Project Director, DRDA, Nayagarh, vide

Order dated 02.08.2018 made a correspondence to the Director,

Special Projects, PR & D.W., Government of Odisha

Bhubaneswar, indicating therein that the Collector, Nayagarh,

has been pleased to allow the Petitioner as Computer

Programmer of Khandapara Block to continue as such and

confirm the appointment Order passed previously under the

signature of the then Project Director, DRDA, Nayagarh, and to

treat the vacancy post of Computer Programmer in Khandapara

Block to be filled up and to release the allotment towards

remuneration of Computer Programmer in Khandapara Block.

The Government in Panchayati Raj Department, after

considering the said proposal dated 02.08.2018 submitted by

the Project Director, DRDA, Nayagarh, regretted the same vide

letter dated 24.05.2019, as at Annexure-6 and such

communication was based on the finding of the Collector,

Nayagarh dated 06.04.2018, wherein it was observed that the

Petitioner was given engagement by the then Project Director,

DRDA, Nayagarh, who is not the competent Authority for

issuing such Order of engagement and further, no official

procedure was followed and issue number in the Order is

manipulated. Since the very initial engagement of the Petitioner

has been made by an incompetent Authority and in a

manipulating/fraudulent manner, the same cannot be treated

to be regular subsequently. So far as unpaid/arrear salary of

the Petitioner, it has been stated in the Counter Affidavit that

the Petitioner has been paid arrear salary till the month of July,

2022, vide Challan No. 188, dated 02.08.2022 of the B.D.O.,

Khandapara, for an amount of Rs.6,34,500/- and the said

amount has been credited to the account of the Petitioner.

14. In response to the Counter Affidavit filed by the Opposite

Party Nos. 3 and 4, Petitioner has filed Rejoinder Affidavit

stating therein that pursuant to advertisement dated

31.07.2006, one Prasanta Kumar Mohapatra and the present

Petitioner were selected. On verification, it was found that

Prasanta Kumar Mohapatra, who was selected as Serial No.1,

does not belong to Khandapara Block, which is the prime

requirement as per the said advertisement. Hence, as the

Petitioner, who has fulfilled all the requirements as per the said

advertisement, was selected and appointment Order has been

issued in his favour. It is further stated in the Rejoinder

Affidavit that in pursuance of the Order dated 20.02.2014 of

this Court passed in W.P.(C) No.6512/2008, the said issue has

already been decided and, as per the direction of this Court, the

Collector, Nayagarh, made an enquiry and passed the Order

confirming the appointment of the Petitioner, vide Order dated

06.04.2018, as at Annexure-4, which is not challenged till date.

Hence, at this juncture, if the said issue is re-opened, the same

will amount to abuse of the process of law. It is further stated

that the appointment of the Petitioner in the post of Computer

Programmer be accepted to be genuine and confirmed.

15. Learned Counsel for the Petitioner submitted that this

Court, while deciding W.P.(C) No.6512/2008, referring to the

earlier advertisement dated 31.07.2006 published in the daily

(Dharitri) on 03.08.2006, issued by the Project Director, DRDA,

Nayagarh, rightly entertained the Writ Petition and set aside the

fresh advertisement dated 21.04.2008 with an observation that

since the Petitioner is continuing in the post of Computer

Programmer in Khandapara Block and there was no vacancy to

issue a 2nd advertisement dated 21.04.2008, the same is liable

to quashed. Accordingly, the said advertisement was set aside

by this Court. In view of such observation of this Court, the

Collector, Nayagarh, who is the Chairperson of the Selection

Committee, initiated a proceeding, which was registered as

Misc. Case No.18/2016 and vide a reasoned Order dated

06.04.2018, allowed the said Misc. Case. The said Order passed

by the Collector, Nayagarh, not being challenged before the

appropriate forum, has attained finality and in view of the

admitted facts on record, the impugned communication dated

24.05.2019, as at Annexure-6, deserves to be set aside.

Learned Counsel for the Petitioner further submitted that

it is well revealed from the proceeding of the Selection

Committee interview for the post of Computer Programmer of

Khandapara Block held on 28.09.2006, as at Annexure-B/4 to

the Counter Affidavit of the Opposite Party Nos. 3 and 4, the

Petitioner stood 2nd and his name was at Serial No.2 of the

selection list and such selection list prepared by the Selection

Committee bear the signature of the Collector, Nayagarh, who is

the Chairperson of the Selection Committee, Project Director,

DRDA, Nayagarh, and BDO, Nayagarh and the Selection

Committee took such decision following due procedure.

16. It is submitted that since Prasanta Kumar Mohapatra did

not join in the Post of Computer Programmer of Khandapara

Block and he does not belong to said Block, which is the prime

requirement as per the advertisement dated 31.07.2006, the

Petitioner was rightly appointed in the said post. There being no

infirmity/illegality in the selection process, and in view of the

observation made by this Court vide its earlier Order dated

20.02.2014 passed in W.P.(C) No.6512/2008, wherein it was

observed that "it is open to the authority to take consequential

action in case the appointment order was issued without

following the selection process", since due process of selection

was followed before the proceeding dated 28.09.2006 was

drawn, the scope being limited and in view of the Order of the

Collector, Nayagarh, dated 06.04.2018, passed in Misc. Case

No.18/2016, it was no more open to the Opposite Party No.2 to

reject the proposal submitted by the Project Director, DRDA,

Nayagarh, vide communication dated 24.05.2019, as at

Annexure-6, and same being illegal, arbitrary, unreasonable

and product of non-application of mind, deserves to be set

aside.

17. Learned Counsel for the State-Opposite Parties submitted

that the very appointment of the Petitioner made by the then

Project Director, DRDA, Nayagarh, is illegal as he is

incompetent to issue such an Order of appointment. Also, there

being manipulation with regard to issuance of Order of

appointment in favour of the Petitioner by the then Project

Director, DRDA, Khandapara Block, against whom also action

was taken in terms of the memorandum of charges dated

28.08.2011, as at Annexure-E/4, the Opposite Party No.2 was

justified to reject the Proposal submitted by the Project Director,

DRDA, Nayagarh, vide impugned communication dated

24.05.2019. Hence, the said communication does not need any

kind of judicial interference, there being no illegality or infirmity

in it.

18. Admittedly, in view of the observation of this Court, vide

Order dated 20.02.2014, passed in W.P.(C) No.6512/2008, as at

Annexure-3, the said Order being communicated to the

Collector, Nayagarh, the Collector initiated Misc. Case

No.18/2016 suo motu and as it reveals from the said Order

dated 06.04.2018, as at Annexure-4, the Opposite Party was

found absent during hearing of the said proceeding and finally,

a reasoned and speaking Order was passed by the Opposite

Party No.3, the relevant portion of which reads as follows:

" In view of the facts & circumstances stated above it is opined that the appointment order issued in favour of the petitioner is created by the P.D.,D.R.D.A, Nayagarh under his signature ignoring all the official procedure. Even the issue number etc. mentioned in the order is manipulated. Collector is the appointing authority of the C.Ps. and Chairman of the selection committee. In this peculiar case it is not understood why the office became silent to follow up action after selection process is over for which the selection procedure has been completely violated. The integrity of the then P.D. Sri A.N.

Nayak, O.A.S.(S) is doubtful as he has misused his official capacity for which he has been proceeded against by the Department.

On the other hand the petitioner is continuing as C.P. in Khandapada Block since 23.12.06 and getting his remuneration by virtue of one undertaking stating that if engagement order is found to be a forged one he shall refund the amount. There is no question on the performance of the appellant as regards his official duty is concerned. The appellant has also performed his duties peacefully and completed about 12 years. The age limit for appointment of the appellant has already been barred. It is also not out of place to say that if proper procedure upto preparation of selection list has been made under the signature of Collector, Nayagarh, why appointment order was not issued at that time. Had it been issued at that time no complicacies would have been arisen. It is to be admitted that selection process was completed at that time. If the person who stood first is otherwise in eligible then the appellant (2nd in the merit list) should get the chance. It is not wise on the part of the authority to remain silent after completion of merit list. Cancellation of the merit list has also not been done. Most interesting thing is that the person stood first in the selection has never tried for his engagement as seen from the file. He might have engaged somewhere else. Further as it is ascertained from the voter list of the village which he had submitted in his residence certificate that he is not a permanent resident of Khandapada Block area, rather his name find place in Bhaga No.109 Kalika Prasad 1 in Sl.

No.101 of voter list 2007 in Nayagarh Block, for which he did not claim for his engagement for such a long time. So for the lapses of the authority the person engaged should not be penalized.

In view of this I do not find any justification to debar the appellant from his legitimate claim. Hence the order passed previously under the signature of the P.D., D.R.D.A., Nayagarh is hereby confirmed. The appellant will continue as such."

. 19. In view of such finding of the Collector, Nayagarh, vide

Order dated 06.04.2018 in Misc. Case No.18/2016, who is the

competent person to appoint the Computer Programmer, being

the Chairperson of the Selection Committee, which Order has

attained finality, not being challenged before the appropriate

forum, this Court is of the view that the impugned

communication of the Opposite Party No.2 dated 24.05.2019, as

at Annexure-6, being a non-speaking and non-reasoned

communication, is illegal and deserves interference.

20. Accordingly, the impugned communication dated

24.05.2019 of the Joint Secretary to Government of Odisha,

Panchayati Raj and Drinking Water Department, is hereby set