Orissa High Court
Bipra Charan Sahoo vs State Of Odisha And Others on 4 May, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
WP(C) Nos. 18699 of 2015
Application under Articles 226 & 227 of Constitution of
India.
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Bipra Charan Sahoo .... Petitioner
-versus-
State of Odisha and others .... Opp. Parties
Advocate(s) appeared in these cases:-
For Petitioner : Mr. R.K. Prusty, D. Das &
M.L. Jena, Advocates.
Vs.
For Opp. Parties : Mr. B.P. Tripathy,
(Additional Government Advocate)
Mr. S. Mohanty, R.C. Panigrahi
P.K. Samantray
(For O.P. Nos. 3 & 4)
D. Nanda, B.B. Mohapatra &
B.K. Sahoo, Advocates
(For opposite party No.5)
__________________________________________________________
CORAM:
JUSTICE SASHIKANTA MISHRA
JUDGMENT
4th May, 2023
SASHIKANTA MISHRA, J.
The petitioner, in the present writ application
seeks the following relief:-
"It is therefore prayed that your lordship
kindly be pleased to admit the present writ
application, notice be issued, record be call for
and after hearing, issue appropriate writ/writs
directing the opposite party Nos. 1,2 and 5 to
appoint or to promote the petitioner in the post
of Junior assistant/Clerk.
And/or any other appropriate order/orders
direction/directions be passed or given which
will be deem fit according to facts and
circumstances of the case.
And for this act kindness, the petitioner shall
as in duty bound every pray."
2. Bereft of unnecessary details, the case of the
petitioner is that he was appointed as an Attendant in
Botany in the Maharshi College of Natural Law,
Bhubaneswar by order dated 27.08.1993 of the Principal
(Opposite party No.5). Since he claims to have had the
requisite qualification, he filed several
applications/representations before the college authorities
to promote/appoint him as Junior Clerk in the college. But,
instead of considering his case, one Dibakar Nayak
(Opposite Party No.3), who was working as Library
Attendant were appointed as Junior Assistant. The said
opposite party No.3 had also joined as a Laboratory
Attendant in the department of Physics. One Sai Sankar
Mohapatra was also appointed as a Clerk. On 08.05.2000,
a Departmental Promotion Committee (DPC) was held
wherein the case of petitioner was not considered as there
was no vacancy in the College for appointment of Junior
Clerk/Sr. Clerk. However, on 15.02.2001 one Lala Sunil
Kumar Ray (Opposite party No. 4) was appointed as Junior
Assistant/Junior Clerk without holding DPC. The
petitioner had approached this Court earlier in OJC No.
4072 of 2001, which was disposed of by order dated
19.06.2015 with direction to the Principal to consider the
representations of the petitioner. The Opposite Party No.5
rejected the representation of the petitioner by order dated
22.09.2015 (enclosed as Annexure-10). It is further claimed
that two clerical posts are lying vacant against which the
petitioner can be appointed.
3. Of the opposite parties, only the Principal of
college (Opposite party No.5) filed counter, refuting the
averments made in the writ petition. Referring to the
resolution of the DPC held on 08.05.2000, it is stated that
the decision was taken to consider the case of the
petitioner, if any recruitment process is initiated in future.
Further, the petitioner's services having been approved as
Attendant of Botany, he is receiving block grant and
therefore, he has no right to claim further appointment to
the post of Junior Clerk. Having accepted, the post of
Attendant and being in receipt of block grant, he cannot
claim appointment to any higher post. It is also stated that
in case decision is taken to fill up clerical posts in future by
way of promotion, the petitioner may make fresh
application for consideration along with others. But as of
now, he has no right for such post.
4. Heard Mr. R.K. Prusty, learned counsel for the
petitioner, Mr. B.P. Tripathy, learned Additional
Government Advocate for the State and Ms. D. Nanda,
learned counsel for the opposite party No.5.
5. Mr. R.K. Prusty has argued that the petitioner
was qualified for the post of Clerk from the very beginning
and yet was appointed in a Class-IV post. He was further
discriminated by the Management by giving appointment to
the opposite party Nos. 3 and 4, both of whom are less
qualified than him.
6. Ms. Nanda submits that the petitioner's services
as an Attendant in Botany have been approved and he is in
receipt of block grant. While applying for block grant he is
deemed to have waived his claim for appointment to any
post other than the Attendant.
7. The facts of the case are not disputed. As it
appears, the Management of College appointed/promoted
Opposite Party Nos.3 and 4 as Junior Clerk/Junior
Assistant. Nothing is forthcoming from the record to justify
such appointments/promotion as in the DPC held on
08.05.2000 it was held that there is no vacancy in the post
of Junior Clerk/Senior Clerk. If so, how could they be
appointed/promoted? Notwithstanding the above, this
Court is of the view that the petitioner has to stand on his
own legs and cannot base his claim entirely on negative
equality. Even assuming for the sake of argument that the
appointment/promotion of Opposite Party Nos. 3 and 4
was not legally valid then the same cannot enure any
benefit to the petitioner by claiming discrimination. It is
stated at the cost of the repetition that the petitioner has to
stand on the strength of his own case.
8. Viewed in the above background, it is seen that the
petitioner having been appointed in the year 1993 has
represented time and again for being appointed as a Junior
Clerk. But as evident from a perusal of the impugned order
under Annexre-10, he had claimed block grant from
Government in 2009. His services were thus approved and
block grant was released in the year 2009. Having
accepted the same it is no longer open to the petitioner to
re-agitate his claim for promotion to the higher post. This
Court thus finds that the petitioner has no legal right to
claim promotion/appointment to the post of Junior Clerk.
Nevertheless, this Court observes that in the impugned
order, it has been stated that he can be considered afresh
for recruitment to Clerical post, if he so qualifies in the
recruitment process, if initiated by the Management in
future.
9. For the foregoing reason therefore, while not
being inclined to grant the relief claimed by the petitioner,
the writ petition is disposed of directing the opposite party
No. 5 to consider the case of the petitioner, if and when the
process of recruitment is undertaken for filling up any
vacant Clerical posts.
.................................
Sashikanta Mishra,
Judge
BHIGAL Digitally
by BHIGAL
signed
CHANDR CHANDRA TUDU
Date: 2023.05.05
A TUDU 18:45:38 +05'30'
Orissa High Court, Cuttack,
The 4th May, 2023/ B.C. Tudu, Sr.Steno
