Orissa High Court
Saroj Kumar Mohapatra vs State Of Odisha & Ors on 7 February, 2023
1
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P (C) No.16362 of 2018
Saroj Kumar Mohapatra ..... Petitioner
Mr. K.C. Sahu, Advocate
Vs.
State of Odisha & Ors. ..... Opposite Parties
Mr. A.K. Mishra, AGA
CORAM:
DR. JUSTICE B.R. SARANGI
MR. JUSTICE B.P. SATAPATHY
ORDER
07.02.2023
Order No. This matter is taken up through hybrid mode.
2. Heard Mr. K.C. Sahu, learned counsel appearing for the
petitioner and Mr. A.K. Mishra, learned Additional Government
Advocate appearing for the State-opposite parties.
3. The petitioner has filed this writ petition seeking to quash
the order dated 14.03.2018 under Annexure-9 passed by the State
Administrative Tribunal in O.A. No.3641 (C) of 2016 and further
to issue direction to the opposite parties to regularize the service of
the petitioner from the initial date of appointment with all
consequential service and financial benefits within a stipulated
period.
4. Mr. K.C. Sahu, learned counsel appearing for the petitioner
contended that seeking regularization of service, the petitioner had
approached the State Administrative Tribunal, Cuttack Bench,
Cuttack by filing O.A. No.3641 (C) of 2016, and the Tribunal, vide
common order dated 14.03.2018 directed the opposite parties to
take a policy decision for regularization of the petitioner or to take
such other action in exercising the relaxation provision under Rule-
17 of the 2016 Rules and by resorting to such provision, if the
petitioner is otherwise found eligible and suitable, he should be
considered for appointment and such action shall be taken within a
period of three months and till such action is taken, the petitioner
may be allowed to continue in the present post. It is contended that
this Court passed an interim order protecting the interest of the
petitioner. It is further contended that even though opposite party
no.1 has passed the order in compliance of the order dated
14.03.2018 passed by the Tribunal, that ipso facto cannot take
away the rights of the petitioner to approach this Court.
5. Mr. A.K. Mishra, learned Additional Government Advocate
appearing for the State-opposite parties contended that this Court,
while entertaining this writ petition, has not granted any interim
order staying operation of the order/judgment passed by the
Tribunal. Rather, this Court protected the interest of the petitioner
granting status quo to continue in service. Therefore, in compliance
of the order passed by the Tribunal, opposite party no.1 has passed
the order dated 08.08.2018 rejecting the claim of the petitioner,
which has been placed on record by way of amendment sought by
the petitioner. The said order having been passed in compliance of
the order of the Tribunal, nothing remains to be adjudicated in this
writ petition, rather fresh cause of action arises for the petitioner to
approach the appropriate Court. Instead of doing so, the petitioner
cannot pursue his remedy by the present writ petition.
6. Considering the contentions raised by learned counsel for
the parties and after going through the records, this Court finds that
the petitioner, who is working as Junior Lecturer in Government
(S.S.D.) Higher Secondary School, had approached the Tribunal
seeking direction for regularization of his service from the date of
his initial appointment with all consequential service and financial
benefits. The Tribunal, after due adjudication, passed order dated
14.03.2018, paragraphs-15 and 16 whereof read as under:
"15. Law is well settled that any appointment made to
public service is to be done following the regular
recruitment process or in the absence of any statutory rule,
on the basis of any resolution and circular of the
Government. Thus, recruitment to a post is the prerogative
of the Government and there is no scope for the Tribunal to
issue any direction in violation of the statutory rule. Rule -
17 of the Orissa Higher Secondary Education Service (in
State's Scales of Pay) (Method of Recruitment and
Conditions of service of post Graduate teachers of the
Scheduled Tribe and Scheduled Caste Development) Rules
2016 Rules provide for relaxation of any provision which
read as follows:
"17. Relaxation - Whenever it is considered
necessary or expedient to do so in the public
interest, the Government may by order, for
reasons to be recorded I writing in consultation
with the Commission, relax any of the
provisions of these rules in respect of any
class or category of persons.
In the case of the Dental Surgeon, it appears from
the order vide Annexure-10 that their services have been
regularized as pre the resolution of the Government.
Therefore, considering the plight of the applicants and that
the applicants have been appointed being duly selected
through walk-in-interview, they should be extended with
similar benefits invoking the relaxation provision under Rule-
17 of the 2016 rules and there is no scope to issue any
direction for regularization in violation of the statutory rule.
16. In view of the discussion, the O.As are disposed of with
a direction to respondents to take a policy decision for
regularization of the applicants or to take such other action
in exercising of the relaxation provision under Rule-17 of the
2016 Rules and by resorting to such provision, if the
applicants are otherwise found eligible and suitable, they
should be considered for appointment and such action be
taken within a period of three months from the date of
receipt of a copy of this order and till any such action is
taken the applicants may be allowed to continue in the
present post".
Aggrieved by such order, the petitioner has approached this Court
by filing this writ petition and, this Court has not passed interim
order staying the order/judgment passed by the Tribunal, rather
passed the order of status quo with regard to continuance of the
petitioner in service. But during pendency of this writ petition,
opposite party no.1 has passed order dated 08.08.2018 rejecting the
claim of the petitioner in compliance of the order passed by the
Tribunal. Needless to say, if the grievance of the petitioner has
been complied with in terms of the order dated 14.03.2018 passed
by the Tribunal, that itself creates separate cause of action for the
petitioner, which is the assignment of the learned Single Judge of
this Court.
7. As a consequence thereof, this Court is of the considered
view that the order dated 14.03.2018 passed by the Tribunal having
been complied with by opposite party no.1, nothing remains to be
adjudicated in this writ petition. Thereby, this Court disposes of
this writ petition granting liberty to the petitioner to assail the order
dated 08.08.2018 passed by opposite party no.1 in compliance of
the order passed by the Tribunal before the appropriate Court.
8. Issue urgent certified copy as per rules.
(DR. B.R. SARANGI)
JUDGE
(B. P. SATAPATHY)
JUDGE
Alok
Alok
