Orissa High Court
Secretary vs Bhagabata Malla & Others on 2 May, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
RVWPET No.120 of 2023
Secretary, Odisha Subordinate Staff .... Petitioner
Selection Commission (OSSSC)
Mr.T.Patnaik, A.S.C., Advocate
Bhagabata Malla & others .... Opposite Parties
Mr.S.D.Routray, Advocate.
CORAM:
JUSTICE A.K. MOHAPATRA
ORDER
Order No. 02.05.2023
01. 1. This matter is taken up through Hybrid Arrangement (Virtual
/Physical Mode).
2. Heard Mr.Patnaik, learned Additional Standing Counsel as
well as Mr.S.D.Routray, learned counsel for the Opposite Party
Nos.1 to 3.
3. The present Review Application has been filed at the instance
of the State seeking review of the order dated 28.11.2022 and
09.01.2023 passed by this Court in W.P.(C) No.10034 of 2022.
4. Learned Additional Standing Counsel appearing on behalf of
the State-Petitioner submitted before this Court that the select list
which was the subject matter of dispute before this Court was not in
force by the time order dated 28.11.2022 was passed in W.P.(C)
No.10034 of 2022. He further submitted that in view of the
provisions contained in Rule the select list shall remain valid for a
period of one year. Accordingly, by the time the order dated
28.11.2022 was passed the select list was no more in force.
// 2 //
Accordingly, this Court committed an error by directing the Opposite
parties to give appointment from the select list, which has lost its
validity with passage of time by the time direction was given by his
Court.
5. On perusal of the order dated 28.11.2022 passed in W.P.(c)
No.10034 of 2022, this Court observed that the Writ Petition was
disposed of with a direction to the Opposite Party No.2 to consider
the case of the Petitioner and in the event it is found that they are
eligible and their names find place in the Master Merit List and the
select list is valid, then the names of the Petitioners be
sponsored/recommended to Opposite Party No.1 within a period of
four weeks from the date of that order. Further, the Opposite Party
No.2 was directed that while recommending the names from the
Master Merit List shall ensure that names are recommended in the
order of merit. Further, it is also directed that the names sponsored by
the Opposite Party No.2 the Opposite Party Nos. 1 and 3 shall do
well to fill up those vacant posts by giving appointment to the
Petitioner within a period of four weeks from the date the names are
sponsored. This Court further observed in Para-6 of the order dated
28.11.2022, it has been clearly indicated that initially names of 127
candidates were sponsored for appointment to the post of Junior
Assistant during the year 2021 and out of such 127 candidates, 10
candidates did not join even after they were issued with the
appointment letters and thereafter the total vacancy position as on
10.02.2022 stood as 18 and by the time the Writ Petition was filed
there was total 18 numbers of Junior Assistant. The aforesaid
vacancy position has not been disputed by the learned Additional
Standing Counsel when the order dated 28.11.2022 was passed as it
appears from paragraph-9 of the order. Accordingly, this Court
// 3 //
directed the Opposite Party No.2 to sponsor the names from the
Master Merit list which was valid till the Petitioner approached the
Court by filing the Writ Petition.
6. Learned counsel for the Opposite Parties on the other hand
submitted that by the time the Petitioner approached this Court, the
select list was live. During the pendency of the Writ Petition, one
year valid period has expired. In the aforesaid context, learned
counsel for the Petitioner drawing the attention of this Court to a
judgment of the Hon'ble Supreme Court in the case of State of U.P.-
v.-Ram Sawrup Saroj reported in Civil Appeal No.1977 of 2000
and submitted that in Pragraph-10 of the said judgment the Hon'ble
Supreme Court has categorically observed that merely because a
period of one year has elapsed during pendency of litigation, the
Court cannot decline to grant relief to which the respondents have
been found entitled to. For better understanding Pargraph10 of the
aforesaid judgment is quoted herein below:
"10. Similarly, the plea that a list of selected
candidates for appointment to the State services remains valid
for a period of one year only is primarily a question depending
on facts and yet the plea was not raised before the High Court.
Secondly, we find that the select list was finalized in the
month of November, 1996 and the writ petition was filed by
the respondent in the month of October, 1997, i.e., before the
expiry of one year from the date of the list. Merely because a
period of one year has elapsed during the pendency of
litigation, we cannot decline to grant the relief to which the
respondent has been found entitled to by the High Court. We
may place on record that during the course of hearing of SLP
before this Court, on 29.09.1999 we had directed the learned
Additional Advocate General for the State of U.P. to bring on
record on affidavit the status of present recruitment of the
judicial officers and the present vacancy position in the
subordinate judiciary. In the affidavit of Joint Secretary,
Department of Appointment, State Government, Uttar Pradesh
sworn in on 04.11.1999 and filed before this Court, it is stated
that as on 14.10.1999 there were 231 vacancies existing in the
// 4 //
cadre of Munsif Magistrates ( now Civil Judge, Junior
Division/Judicial Magistrates). That being the factual position
we see no reason why the direction made by the High Court
should be upset in an appeal preferred by the State of Uttar
Pradesh."
In view of the aforesaid facts, learned counsel for the Opposite
Parties submitted that there is no error apparent on the face of the
record which would call for interference of this Court by exercising
the review jurisdiction. He further submitted that the review
jurisdiction of this Court is confined to error apparent on the face of
the record. Since there is no error apparent on the face of the record,
this Court should not interfere by exercising the review jurisdiction.
7. Additionally, it is submitted by the learned Additional
Standing Counsel that there is no direction to the Collector to send
requisition to the Odisha Staff Selection Commission in the original
order dated 28.11.2022. Therefore, they are finding it difficult to
implement the order dated 28.11.2022.
8. Considering such submission, the Collector and District
Magistrate, Opposite Party No.3 to the Writ Petition and Proforma
Opposite Party No.5 to the Review Petition is directed to send
requisition pursuant to the order dated 28.11.2022 passed in W.P.(C)
No.10034 of 2022 as expeditiously as possible preferably within a
period of two weeks.
9. Considering the contentions raised by the learned counsel for
the respective parties and upon a careful consideration of their
submissions as well as the materials placed before this Court, this
Court observed that the select list which was the subject matter of
dispute before this Court prepared on 28.04.2021 was valid for a
period of one year i.e. same was to expire on 27.04.2022. It is also
seen from the record that the Petitioners have approached this Court
// 5 //
by filing W.P.(C) No.10034 of 2022 on 17.04.2022. Therefore, the
Petitioners had approached this Court by filing the Writ Petition
when the select list was live and was in full force. Moreover, the
vacant post which could not be filled up were also advertised to be
filled up. Accordingly, the authorities were also supposed to fill up
such vacancy from the select list that was prepared on 28.04.2021.
Since the Petitioners had approached this Court when the select list
was valid by applying the ratio of the judgment in State of U.P.-v.-
Ram Sawrup Saroj passed in Civil appeal No.1977 of 2000, this
Court is of the considered view that there is no error apparent on the
face of the record. Accordingly, directions given by this Court are in
consonance with law. In such view of the matter, the Review Petition
is devoid of merit and accordingly dismissed.
RKS ( A.K. Mohapatra )
Judge
