Orissa High Court
Sujata Mohanty vs State Of Odisha And Another on 1 November, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
WPC (OAC) No. 1491 of 2018 &
W.P.(C) No. 22702 of 2020
Applications under Articles 226 & 227 of Constitution of India.
---------------
AFR WPC (OAC) No. 1491 of 2018
Sujata Mohanty .... Petitioner
-versus-
State of Odisha and another .... Opp. Parties
W.P.(C) No. 22702 of 2020
Sujata Mohanty .... Petitioner
-versus-
State of Odisha and Others .... Opp. Parties
Advocate(s) appeared in this case:-
_______________________________________________________
For Petitioners : M/s. B.S. Tripathy, A. Tripathy &
A. Sahoo, Advocates.
[ in both the writ petitions]
For Opp. Parties : Mr. B.P. Tripathy,
Addl. Govt. Advocate
[ in both the writ petitions)
__________________________________________________________
CORAM:
JUSTICE SASHIKANTA MISHRA
JUDGMENT
1st November, 2022
SASHIKANTA MISHRA, J.
Both these writ petitions have been filed by the
same petitioner involving similar facts and claiming more
or less similar reliefs. For convenience, both were heard
together and are being disposed of by this common
judgment.
2. Facts of both the cases, briefly stated, are that
the petitioner has been working as a Junior Clerk in the
office of BDO, Tirtol on being appointed by order dated
22.02.2014 of the Collector, Jagatsinghpur. Pursuant to an
advertisement dated 23.07.2013 issued by Odisha Staff
Selection Commission (for short, 'the Commission') for
recruitment to the post of Junior Assistant in the Heads of
Department, the petitioner applied and went through the
recruitment process. She being found suitable, her name
was recommended by the Commission for appointment.
She was asked to appear in the office of the Controller of
Accounts, Odisha (opposite party No. 2) on 23.11.2015 for
verification of documents and issuance of appointment
order. It is stated that such appointment was proposed to
be given in terms of the Odisha Group-C and Group-D
Posts (Contractual Appointment) Rules, 2013 (in short,
"2013 Rules"). The petitioner immediately raised her
objection regarding contractual appointment and requested
the authorities to issue appointment order on regular
basis. It is also stated that the petitioner submitted the
required documents for verification on the date fixed.
Despite such verification of documents no regular
appointment order was issued by opposite party No. 2 on
the ground that the petitioner's grievance would be
forwarded to the Government for redress and as such, the
petitioner was not allowed to join in her post. Some of the
similarly placed persons had approached the erstwhile
Odisha Administrative Tribunal in O.A. No. 4119 (C) of
2015 and batch seeking appointment on regular basis. The
Tribunal, by judgment dated 17.11.2016 quashed the
contractual appointment orders and directed the
authorities to issue appointment on regular basis. Basing
on the judgment of the Tribunal, the opposite party No.1
issued an office order dated 19.7.2017 clarifying that the
provisions of 2013 Rules would not be applicable to regular
appointments as the advertisements were issued prior to
commencement of the said Rules. The petitioner therefore
filed another representation on 12.03.2018 before the
opposite party No.2 reiterating her prayer of being issued
with regular appointment order on the basis of the
judgment of the Tribunal, which was forwarded to opposite
party No.1 but no action whatsoever was taken in the
matter. The Tribunal disposed of another batch of original
applications being O.A. Nos. 2091 (C) of 2016 and batch by
order dated 13.04.2018 passing similar orders. Upon
coming to know of the judgment the petitioner submitted
another representation on 20.04.2018 before opposite
party No.2 reiterating her prayer. The petitioner also met
the opposite party No.1 in his Grievance Cell on
14.05.2018 during which she was informally asked to
obtain similar order from the Tribunal. As such, the
petitioner approached the Odisha Administrative Tribunal
in O.A. No.1491 (C) of 2018 which has since been
transferred to this Court and registered as the present writ
application. In the counter filed by the opposite parties two
documents were enclosed namely, letter dated 10.04.2018
of opposite party No. 2 to the Government and 12.09.2018
of the Government addressed to the opposite party No.2. In
the first document the representation of the petitioner was
forwarded to the Government for taking a decision. In the
second document the prayer of the petitioner was rejected
on the ground of expiry of the validity of the select list. The
petitioner therefore was permitted to amend the prayer
made in the O.A. to seek quashment of the aforementioned
two documents in addition to her original prayer. While the
matter stood thus, the Tribunal came to be abolished and
though the O.A. was transferred to this Court, there was no
possibility of the same being decided at an early date
because of the prevailing Covid-19 pandemic situation. The
petitioner therefore filed W.P.(C) No. 22702 of 2020
claiming more or less the same relief.
3. Counter affidavit has been filed by the opposite
parties. While referring to the undisputed facts of the case
it is specifically stated that the petitioner was called upon
to appear for verification of documents on 23.11.2015 and
on the same day verification was done in respect of the
candidates who were present but the petitioner did not
appear. The petitioner was again requested to appear in the
office of opposite party No. 2 by letter dated 24.11.2015 on
or before 5.12.2015 clearly indicating that the offer of
appointment shall stand cancelled if she failed to appear. It
is stated that the petitioner did not appear on the said date
also. After a long lapse of time, the petitioner submitted a
representation on 12.03.2018 indicating that she is serving
as a Junior Clerk in the regular post under Collector,
Jagatsinghpur but the present nature of appointment
offered is contractual and hence, she is not willing to join
in the post. However her representation was forwarded to
the Government in Finance Department for consideration
by letter dated 10.04.2018, enclosed as an Annexure-G. It
is stated that the petitioner's claim of having submitted a
representation by Annexure-8 is not correct as no such
representation was ever received. The Government in
Finance Department considered the representation of the
petitioner in consultation with the GA and PG Department
and by order dated 12.09.2018, rejected the same on the
ground that the validity period of the select list had already
lapsed. As regards the orders passed by the Tribunal in the
batch of Original Applications filed by different candidates,
it is stated that in those cases the applicants had
approached the Tribunal in the year 2015 and 2016 itself
without any delay, whereas despite offer of appointment on
two occasions, the petitioner never turned up for document
verification and therefore she forfeited such offer. The
representation at Annexure -6 was also submitted two and
half years after publication of the select list dated
31.08.2015. The petitioner does not have any indefeasible
right to claim any appointment rather she must be held to
have forfeited the right of being considered for appointment
by not having appeared for verification of documents at the
relevant time.
4. The petitioner filed rejoinder to the counter. It is
basically stated that the Tribunal having held that the
provisions of 2013 Rules has no application as the
advertisement in question was issued for regular
appointment prior to commencement of the said Rules, the
petitioner should have been appointed on regular basis.
Since she was informally asked by the opposite party No.1
to obtain similar order from the Tribunal, she filed the O.A.
in question in which an order was passed to the effect that
pendency of the O.A. shall not be a bar for consideration of
her grievance in terms of the judgments passed by the
Tribunal in the batch of cases. It is further stated that the
petitioner only claims for appointment on regular basis
with pay protection and seniority as she is already serving
on regular basis under the Collector, Jagatsinghpur and
thereby no prejudice would be caused to the Government.
It is also stated that regular orders of appointment were
passed in respect of other candidates much after the expiry
of the select list and therefore, the petitioner cannot be
denied the same benefit on such ground.
5. The opposite parties filed a reply to the rejoinder.
It is reiterated that the Commission had sponsored the
names of nine candidates including that of the petitioner at
the relevant time. Since the 2013 Rules was in force with
effect from 12.11.2013 the appointments were sought to be
made on contractual basis and accordingly all the nine
candidates including the petitioner were asked to appear
on 23.11.2015 for verification of relevant documents and
issuance of appointment orders in their favour. The
petitioner neither turned up for verification of documents
nor raised any objection regarding contractual
appointment. In the meantime the Government in GA
Department, by order dated 19.07.2017 relaxed the
provisions of sub-Rule (2) of Rule 5 of the 2013 Rules.
Accordingly the candidates, who were present in the office
of opposite party No. 2 for verification of documents and
appointed on contractual basis, were regularized. Since the
petitioner did not turn up for verification of documents on
the first occasion she was given another chance to appear
on or before 05.12.2015 clearly indicating that the offer of
appointment would stand cancelled if she did not appear.
The petitioner neither turned up nor communicated
anything with regard to her absence and as such no formal
appointment order was issued in her favour within one
year from the date of publication of the select list. The
claim that the petitioner was informally asked to obtain
similar order from the Tribunal is specifically denied by
stating that she was never asked to do so. The
representation dated 23.11.2015 claimed by the petitioner
to have been submitted was never received. Since despite
the repeated instructions there was no response from the
petitioner there was no scope on the part of the opposite
parties to issue appointment order in her favour. It is
reiterated that the petitioner does not have any indefeasible
right to claim appointment.
6. Heard Mr. B.S. Tripathy, learned counsel for the
petitioner and Mr. B.P.Tripathy, learned Additional
Government Advocate.
7. It is argued by Mr. B.S. Tripathy that the
petitioner having been duly selected and placed in the
select list acquires at least the right of being considered for
appointment. Since she was already holding a regular post
under the Collector, Jagatsinghpur and the appointment
offered was on contractual basis, she rightly submitted
representation to the authorities to consider her case for
regular appointment. Such representation was never
considered. The Tribunal having laid down the law that the
advertisement in question being issued prior to
commencement of the 2013 Rules no appointment can be
made on contractual basis, it is to be held that the same
applies to every person equally and not just to the persons
who had approached the Tribunal. Nevertheless being
informally asked by the opposite parties, the petitioner did
approach the Tribunal in which an order was passed to the
effect that pendency of the said case would not be a bar for
the authorities to consider her case for regular
appointment. It is further argued that since persons were
appointed on regular basis even after expiry of the period of
the select list it is no longer open to the authorities to deny
appointment to the petitioner on the ground that the select
list had lapsed.
8. Opposing the contentions advanced by the
petitioner, Mr. B.P. Tripathy, learned State counsel argues
that being included in the select list does not confer any
indefeasible right on a person for appointment. It is settled
law that such a person only acquires a right to be
considered for appointment. The opposite party authorities
called upon all the nine candidates sponsored by the
Commission to appear for verification of documents but the
petitioner did not appear though all the other candidates
had appeared. The petitioner was given another chance but
still she did not appear. All the candidates who appeared
were given contractual appointments as per the prevalent
rules. That such appointments were subsequently made
regular basing on the judgment of the Tribunal cannot be
of any help to the petitioner in view of the fact that they
had accepted the contractual appointment and at the same
time approached the Tribunal. The petitioner neither
accepted the offer of appointment nor approached the
Tribunal at the relevant time but did so only after
favourable orders had been passed in respect of the other
candidates but by such time the validity of the select list
had expired. The petitioner is therefore nothing but a fence
sitter and therefore not entitled to any relief.
9. The basic facts of the case are not disputed
inasmuch as the petitioner while working as junior clerk in
the office of the B.D.O., Tirtol was also selected for
appointment to the post of Junior Assistant in the Heads of
the Department being successful in the recruitment
process undertaken pursuant to advertisement dated
23.07.2013 by the Commission. It is also not disputed that
basing on the performance of the candidates, nine names
including that the petitioner were recommended by the
Commission to the Government for their appointment.
Accordingly, the candidates were called upon to appear
before the opposite party No.2 on or before 23.11.2015 for
verification of documents. The said letter is enclosed as
Annexure-3 to the writ application, which mentions that
failure to attend the office as per scheduled date without
valid reason shall entail forfeiture of appointment.
Notwithstanding the above, the petitioner was again called
upon by letter dated 24.11.2015 (enclosed as Annexure-F
to the counter) to appear on before 05.12.2015 along with
required certificates for verification clearly stating that
failing such appearance it shall be implied that she has no
intention to join in service and the offer of appointment
shall stand cancelled. It is strongly asserted by the opposite
parties that the petitioner never turned up for document
verification which amounts to forfeiture of her appointment
due to non-acceptance of the offer. On the other hand, the
petitioner claims to have immediately submitted an
objection on 23.11.2015, copy enclosed as Annexure-4,
stating that she is submitting all required documents for
verification with a prayer that she should be appointed on
regular basis instead of contractual. The opposite parties
have denied receipt of such letter. The petitioner has not
adduced even a semblance of proof to show service of the
letter of opposite party No.2. It is also not stated as to by
which mode the said letter was sent. On the contrary, in
her representation dated 12.03.2018, enclosed as
Annexure-G to the counter, the petitioner has clearly
stated as under;
"In her application she has indicated that, she was
intimated for contractual appointment as per
"Odisha Group-C & Group-D post (Contractual
appointment) Rules, 2013" which contravenes the
Advertisement No. IIE-05/2013-1983/OSSC, Dated
23.07.2013 published by OSSC for recruitment for
118 nos. of Junior Assistant in the H.O.D. in the
Pay Band-1 of Rs.5200- 20,200/=- with Grade Pay
of Rs.1900/- on regular basis prior to
commencement of the said rules. Again as she was
working as Junior Clerk under Collector,
Jagatsinghpur on regular scale of pay in the PB-1
of Rs.5200/--20,000/- with G.P. 1900/- for which
she could not accept the office of this office for
appointment on contractual basis which was not in
accordance to the OSSC Advertisement. Further she
states that Govt. in GA & PG Dept. in their order
No. 15592/Gen, Dated 19.07.2017 have excluded
the contractual appointment rule for those
advertisement which were made prior to
commencement of "Odisha Group-C & Group-D post
(Contractual appointment) Rules-2013" as in case
of OSSC Advertisement No. 11e-05/2013-
1983/OSSC, Dated 23.07.2013. She stated that
due to irrational applicability of " Odisha Group-C
& Group-D post (Contractual appointment) Rules-
2013" for appointment of Junior Assistant in this
office she could not join the post as she has offered
to join the service in this office on contractual basis
as against the advertise post for regular
appointment." (Emphasis supplied)
Significantly, there is no reference in the said
representation to the earlier representation purportedly
sent on 23.11.2015. Thus, the basic fact that emerges from
the above discussion is, being called upon to submit the
required documents for verification on two dates, the
petitioner remained silent.
10. There is no dispute that the petitioner was
placed in the select list but then, mere inclusion in the
select list does not confer an indefeasible right of
appointment. This has been the long settled legal position
beginning from the decision of the Constitution Bench of
the Apex Court in the case of Shankarsan Dash v. Union
of India, reported in (1991) 3 SCC 47.
It is also true that the appointment cannot be
denied arbitrarily and that a person on the select list has a
right to be at least considered for appointment as was held
by the Apex Court in the case of R.S. Mittal v. Union of
India, reported in 1995 Supp (2) SCC 230.
In the instant case, no arbitrariness of action
can be attributed to the authorities in any manner
whatsoever in view of what has been discussed in the
preceding paragraphs. It is stated at the cost of repetition
that the petitioner herself did not turn up though called
upon twice to submit the required documents for
verification.
11. It has been argued that the petitioner had a
legitimate grievance to raise in view of the judgments
passed by the Tribunal to the effect that the advertisement
having been issued for regular appointment prior to coming
into force of the 2013 Rules, the said Rules shall have no
application due to which several other candidates were
conferred with regular appointments. This is sought to be
countered by the opposite parties by contending that in
such event the petitioner also ought to have accepted the
contractual appointment and approached the Tribunal in
time and obtained similar order in her favour. In the case
at hand, the Tribunal in its judgment dated 17.11.2016
passed in O.A. No. 4119(C) of 2015 and batch had held as
above. Such application to the Tribunal was made in the
year 2015. Similar applications were filed in the year 2016
being O.A. Nos.2091(C) of 2015 and batch, which
incidentally were disposed of by judgment dated
13.04.2018. Thus, the applicants in the above mentioned
cases had approached the Tribunal well within time and in
any case, during validity of the select list. The petitioner
obviously is a fence sitter who, being buoyed by the
favourable orders obtained by other candidates thought it
proper to also throw her hat in the ring. Law is well settled
that a fence sitter is not entitled to any relief.
12. Another point that has been raised is that the
petitioner's belated grievance was also considered but rejected
on the ground that the select list was no longer valid.
Admittedly, the select list was published on 31.08.2015. In the
absence of any stipulation, the select list is deemed to be valid
for a period of one year i.e. till 30.08.2016. Had the petitioner
moved the authorities during such period, the matter would
have been different. Not having done so it is no longer open to
the petitioner to challenge the rejection of her claim on the
ground of non-operation of the select list. In the case of State
of Orissa v. Rajkishore Nanda, reported in (2010) 6 SCC 777,
the Apex Court held as follows:
"16. A select list cannot be treated as a reservoir
for the purpose of appointments, that vacancy can
be filled up taking the names from that list as and
when it is so required. It is the settled legal
proposition that no relief can be granted to the
candidate if he approaches the court after the
expiry of the select list. If the selection process is
over, select list has expired and appointments had
been made, no relief can be granted by the court at
a belated stage."
13. There is therefore, no valid ground put forth by
the petitioner to persuade this court so as to interfere with
the impugned order.
14. For the foregoing reasons therefore, this court
finds no merit in the writ applications, which are therefore,
dismissed.
.................................
Sashikanta Mishra,
Judge
Orissa High Court, Cuttack,
The 1st November, 2022/`A.K. Rana, P.A.
