Orissa High Court
Dinabandhu Munda vs State Of Odisha & Others on 10 April, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
WPC (OAC) No.2105 of 2017
Dinabandhu Munda .... Petitioner
Mr. S.K. Das, Advocate
-versus-
State of Odisha & Others .... Opposite Parties
Mr. R.N. Mishra,
Addl. Govt. Advocate
CORAM:
JUSTICE BIRAJA PRASANNA SATAPATHY
ORDER
10.04.2023
Order No
05. 1. This matter is taken up through Hybrid Arrangement
(Virtual/Physical) Mode.
2. Heard Mr. S.K. Das, learned counsel appearing for
the Petitioner and Mr. R.N. Mishra, learned A.G.A.
3. The present Writ Petition has been filed
challenging the notice dated 25.07.2017 issued by the
Orissa Public Service Commission under Annexure-7.
4. Learned counsel for the Petitioner contended that
after facing due recruitment process and on being found
suitable, the Petitioner was appointed as an Asst.
Section Officer in the Odisha Secretariat Service (Group-
B) vide order dated 05.10.2016 issued under Annexure-
5. It is contended that in terms of the said order, the
Petitioner joined in the service on 01.11.2016.
However, it is contended that while continuing as such,
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the order of appointment so issued in favour of the
Petitioner on 05.10.2016 when was cancelled vide the
impugned notice dated 25.07.2017. The Petitioner
challenged the same before the Tribunal in OA
No.2105(C ) of 2017. The Tribunal while issuing notice
of the matter vide order dated 11.08.2017 passed an
interim order by staying the operation of the impugned
notice dated 25.07.2017.
4.1. Mr. S.K. Das, learned counsel appearing for the
Petitioner contended that by virtue of the interim order,
the Petitioner was allowed to continue in that post and
he is also continuing till date. Mr. Das also contended
that the order of appointment so issued in favour of the
Petitioner was cancelled vide the impugned notice under
Annexure-7 on the ground that one Abhiram Bhoi when
was found to have secured more marks than the
Petitioner, in order to accommodate the said Abhiram
Bhoi, the order of appointment issued in favour of the
Petitioner was cancelled. However, it is contended that
in the meantime basing on the order passed by this
Court in W.P.(C ) No.33586 of 2018, Sri Abhiram Bhoi
has been appointed as against the post of ASO vide
order dated 11.05.2020 under Annexure-9 to the
rejoinder. It is contended that since the petitioner has
no fault with regard to his selection and appointment as
against the post of ASO vide order at Annexure-5, the
impugned notice cancelling such appointment under
Annexure-7 is not sustainable in the eye of law.
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It is also contended that since the Petitioner is
continuing since his initial date of joining and in the
meantime, he had rendered service for more than 6(six)
years, in view of the decision of the of this Court in the
case of Bikash Mahalik vs. State of Odisha &
Others, the petitioner is eligible and entitled to get the
benefit as prayed for. This Court in Para 8 and 28 of
the judgment has held as follows:
8. There is no dispute with regard to the fact that the petitioner
appeared in the written test and secured 234 marks out of 400
marks and also secured marks in practical skill test out of 50.
Opposite party no.3 prepared a select list taking into account
marks secured in the written test as well as practical skill test
and placed the petitioner at Sl. No.2 of the merit list.
Subsequently, opposite party no.2 found out that marks
secured in the practical skill test, being qualifying in nature,
should not be added to the marks secured in the written test.
Consequentially, he directed opposite party no.3 to redraw the
final merit list on the basis of marks secured by the petitioner
in the written test i.e. 234 marks excluding the marks secured
in the practical skill test, in which the petitioner had qualified
by securing 31 marks, which is above the qualifying mark of
15, out of 50 marks. But fact remains pursuant to merit list
prepared by opposite party no.3, the petitioner has already
joined and his service book has been opened. The amount
towards GIS has been deducted from his salary and he has
also been enrolled in the contributory pension scheme of the
Government. As a result, a right has been accrued in his favour
to continue in his post. Now, after lapse of one year / months,
as per direction given by opposite party no.2, opposite party
no.3 has redrawn the merit list and called upon the petitioner
to show-cause why he shall not be removed from service.
Whether such action of opposite party no.3 is hit by principle of
estoppel, is the short question to be decided in the facts and
circumstances of this case.
xxx xxx xxx
28. In view of the law and fact, as discussed above, the
irresistible conclusion is that the show-cause notice dated
31.03.2015 under Annexure-13 issued by opposite party no.3,
the letter dated 09.02.2015 under Annexure-13/1 issued by
opposite party no.2 to opposite party no.1 and letter dated
26.03.2015 under Annexure-13/2 issued by the Government of
Odisha, Revenue and Disaster Management Department to
opposite party no.2 cannot sustain. Therefore, the same are
liable to be quashed and hereby quashed. Pursuant to interim
order passed on 07.04.2019 by the Odisha Administrative
Tribunal since the petitioner is still continuing, he shall be
allowed to continue with all service and financial benefits as
due and admissible to him in accordance with law."
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5. Mr. R.N. Mishra, learned A.G.A on the other hand
made his submission basing on the stand taken in the
counter affidavit.
It is contended that the Petitioner though was duly
appointed as against the post of ASO vide order at
Annexure-5, but while complying order passed by the
Tribunal so passed in the case of Abhiram Bhoi, it was
found that Sri Abhiram Bhoi because of his wrong
placement in the merit list, was not given the benefit of
appointment at the initial stage. On subsequent
verification when it was found that Shri Bhoi is placed
above the Petitioner in the merit list, the impugned
notice was issued by cancelling the appointment of the
Petitioner. Therefore, it contended that there is no
illegality or irregularity with regard to the impugned
notice in cancelling the order of appointment, so issued
in favour of the petitioner.
6. Having heard learned counsel for the parties and
taking into account the fact that the other candidate Sri
Abhiram Bhoi has been appointed in the meantime vide
order dated 11.5.2020 under Annexure-9 to the
rejoinder and the petitioner since is continuing as
before in terms of the interim order passed on
11.08.2017, it is the view of this Court that Sri Abhiram
Bhoi has been appointed as against a vacant post.
Therefore, placing reliance on the decision of this Court
in the case of Bikash Mahalik, as cited supra, this
Court is inclined to quash the notice dated 25.7.2017
under Annexure-7. While quashing the same, this
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Court directs the opp. Parties to allow the Petitioner to
continue as before.
The Writ Petition accordingly succeeds and
disposed of.
(Biraja Prasanna Satapathy)
Judge
sangita
