Orissa High Court
Akshaya Kumar Swain vs State Of Odisha & Ors on 23 March, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
WPC (OAC) No.3197 of 2013
In the matter of an application under Article 226 & 227 of the
Constitution of India.
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Akshaya Kumar Swain .... Petitioner
-Versus-
State of Odisha & Ors. .... Opposite Parties
For Petitioner ... Mr.G.R.Sethy, J.K.Digal &
B.K.Pattnaik, Advocate
For Opposite Parties ... Mr. S.Ghose, Addl. Standing
Counsel
JUDGMENT
PRESENT:
THE HONOURABLE JUSTICE BISWANATH RATH
Date of Hearing and Judgment: 23.03.2022
Biswanath Rath, J. This petition has been filed claiming the following relief:
"In view of the facts stated above in Para-6, the applicant prays
for the following relief(s):
i) To antedate the appointment of applicant w.e.f. 21.12.11 i.e the
date from which the person securing less mark than him have got
appointment in pursuance to the recruitment test held as per
advertisement as Annexure-1.
ii) To direct the respondents to grant all financial and
consequential benefits flowing from the antedating the
appointment of applicant.
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iii) And pass such other order/orders as may be deemed fit
and proper for the interest of justice."
2. Background involving the case is that petitioner involved in a
recruitment process pursuant to an advertisement issued by the State
Selection Board for the post of Constable in the district of Puri.
Finding himself ineligible through the list of selected candidates, in the
first round of litigation, petitioner brought Original Application
No.1166(C) of 2012. It is based on disposal of the above Original
Application involving contest of parties and direction therein to
reconsider the case of the petitioner further pleading available through
the application at hand that in reconsideration of the case of the
petitioner based on the direction of the Tribunal vide Annexure-4, the
competent authority observed there has been wrong indication in
marking resulting non- selection of the petitioner and as a consequence
of such decision, the competent authority came to find the petitioner, a
selected candidate. However, after coming to such decision vide
Anenxure-5, petitioner has been appointed from 15.7.2013 undisputedly
on a later date.
3. It is being aggrieved by such deferment in the appointment of the
petitioner and not appointing him from the date persons securing the
position above the petitioner in the same selection process and for non-
grant of necessary service benefits gave rise to petitioner to bring this
Original Application. It is taking to the aforesaid premises, from the
pleading of the applicant, petitioner herein, an attempt is made by Mr.
Sethy, learned counsel appearing for the petitioner that when the
mistake admitted to have been committed by the competent authority,
cure based on a direction of the Tribunal and looking to the direction of
the Tribunal , in the event the competent authority come to observe
petitioner is a selected candidate in the selection process involved, there
was no other option with the competent authority than to place the
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petitioner below the person in the merit list in the very selection process
and granting consequential relief. It is in the process, Mr.Sethy, learned
counsel for the petitioner requested this Court for allowing the Original
Application and passing suitable order.
4. Mr.Ghose, learned Addl. Standing Counsel appearing for the State
while attempting to justify the order at Annexure-5 contended that since
the petitioner was found to be a selected candidate on a subsequent date,
there has been loss of sufficient time in the meantime and so many
developments taking place involving the selected candidates, the
competent authority thought it appropriate to issue the appointment
order from the date of its decision. Mr.Ghose, learned Additional
Standing Counsel therefore claims, there is no illegality or infirmity in
the order required to be interfered with.
5. Considering the rival contentions of the parties, this Court finds
undisputed fact and the development remain to be petitioner not finding
his name in the select list in the interview involved, in the first round
of litigation, approached the Tribunal in Original Application
No.1166(C) of 2012. This Original Application appears to have been
disposed of with the following observation:
"Learned counsel for the applicants and learned Addl.
Standing counsel are present and heard.
Learned counsel for the applicant submits that he has been
awarded 3 marks for clearing 1.22 meters height in the high jump
test in the first chance only. As per information obtained under
R.T. Act, as annexure to the M.P.no. 1723(C)/2012, he submits
that the applicant must have cleared 1.38 meters in order to
attempt height of 1.50 meters in high jump in which he failed to
qualify as per the said annexure. As such the applicant is entitled
to 6 marks in high jump whereas he has been awarded three
marks only. Hence he submits that as the applicant has secured
52 marks only against 54.25 of the last sleeted SEBC non
Home Guards category candidate, the matter be referred to the
DGP, Orissa, Respondent no.2 for appropriate orders on merit
taking this submission in this O.A. and the M.P. into account.
Heard learned Addl. Standing counsel.
As submitted by the learned counsel for the applicant and
without going into the merits of the matter a copy of the paper
book along with these orders, be sent to respondent no.2 at the
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cost of the applicant for appropriate orders on merit, treating the
paper book and M.P. as representation within a period of 30 days
from the date of receipt of a copy of these orders under intimation
to the applicant.
It is clarified here that merits of the matter have not been
gone into at this stage.
With these orders, the O.A. is disposed of."
6. Consequent upon the direction vide Annexure-4, it appears the
competent authority on re-assessment of the case of the petitioner has
come to observe that there has been wrong elimination of the petitioner
in the selection process and has taken a decision to declare the petitioner
to be a selected candidate. As a consequence, petitioner was issued with
an order of appointment at Annexure-5. Finding the petitioner already
selected in the selection process involved, for the opinion of this Court,
petitioner should have been treated to have been selected along with all
selected persons pursuant to such selection. In such development, the
only option available with the opposite parties is in the event petitioner
did not serve for the period involved, there may be certain decision in this
regard to be taken by the competent authority.
7. In the circumstance and for the competent authority having come
to treat the petitioner as a selected candidate in the selection process
taking place on 21.12.2011, this Court in interfering with the order at
Annexure-4 only so far it relates to the extent of date of engagement
directs the opposite parties to treat the petitioner to have been selected
and appointed along with all such selected candidates in the particular
interview and while placing the petitioner in the select list, keeping in
view his position in the selection. Since the petitioner did not perform
all these period, while the petitioner be treated to be engaged from the
date other persons were appointed, financial benefits be treated
notionally. Petitioner, however, will be entitled to continuous of service
in so far as consideration for promotion and retiral benefits as well. The
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entire action involving the petitioner be undertaken within a period of six
weeks from the date of communication of certified copy of this order.
8. In the result, the Original Application succeeds. No cost.
.......................
Biswanath Rath,
Judge
Orissa High Court, Cuttack.
Dated the 23rd day of March, 2022/SKS
