Sarita Dei vs State Of Odisha And Others
2023 Latest Caselaw 6548 Ori

   IN THE HIGH COURT OF ORISSA AT CUTTACK

              WPC(OAC) NO.525 of 2016

 (In the matter of application under Section 19 of the
 Administrative Tribunal's Act, 1985).

 Sarita Dei                       ...         Petitioner
                       -versus-

 State of Odisha and Others       ...   Opposite Parties


 For Petitioner           : Mr. B.K.Pattnaik,Advocate


 For Opposite Parties : Mr. S.S. Pradhan, AGA

      CORAM:
                JUSTICE G. SATAPATHY

              DATE OF HEARING :26.04.2023
              DATE OF JUDGMENT :19.05.2023

G. Satapathy, J.

The applicant-Petitioner Sarita Dei

in O.A.No. 525 (C) of 2016 which is re-numbered as

WPC(OAC) No. 525 of 2016 after abolition of Odisha

Administrative Tribunal has sought for to quash the

order dated 10.10.2015 passed by the

Superintendent Engineer, Cuttack(R & B) Circle at

annexure-1 whereby the representation of the

applicant-Petitioner for appointment to the post of

Clerk-G was rejected and further consequential relief

to direct the Respondents-Opposite Parties to

consider her case for appointment to the post for

which she is eligible according to her education and

training qualification.

2. The background facts are that the Petitioner

completed the course of Apprentice training in Clerk-

G in the Office of Executive Engineer R & B Division,

Jagatsinghpur (O.P. No.3) during the period of

30.02.1989 to 12.02.1990. According to the

Petitioner, after completion of training, although she

was eligible for an appointment as Clerk, but her

application was not considered and she went on

representing to the authority for consideration of her

case to the said post, but invain and finally she

approached the tribunal in O.A. No.2147(C) of 2015

which was disposed of on 17.08.2015 with direction to

O.P. Nos. 2 and 3 to consider her grievance by treating

the contents of O.A. and its annexure as her

representation and dispose of the same within a period

of 45 days from the date of receipt of the copy of the

aforesaid order, but O.P. No.2 by way of his Office

order No.180/2015/1799 dated 10.10.2015 at

annexure-1 disposed of her representation by rejecting

it and the Petitioner, thereby, again approached the

tribunal in the present OA which was transferred to the

High Court after abolition of the tribunal in the present

case.

3. In the course of hearing of the present case,

Mr. B.K. Pattnaik, learned counsel for the Petitioner

submits that although the Petitioner was eligible to be

absorbed as Clerk-G on completion of her Apprentice

training in the establishment of O.P. No.2, but without

any rhyme and reason, the case of the Petitioner was

not considered for a substantial long period despite the

Petitioner having made numerous representation. Mr.

B.K. Pattnaik, by referring to the representation made

by the Petitioner at annexure-3 series and the letter of

Director of Apprentice training/Central Apprentice

Advertiser/Secretary Central Apprentice counsel at

annexure-6 submits that O.P. No.2 ought to have

considered the case of the Petitioner for her absorption

to a post for which she was eligible, but the Opposite

Parties arbitrarily had not considered the case of the

Petitioner. It is further submitted that one similarly

situated candidate namely Anjali Barik had been

extended the benefit of appointment as a tracer by an

order of Division Bench of this Court in WP(C)

No.19849 of 2011, but the present Petitioner has been

deprived of her right to be observed for any post

commensurate to her eligibility. In summing up his

argument, learned counsel for the Petitioner has also

relied upon the judgment of Apex Court in U.P. State

of Road Transport Corporation and another Vrs.

U.P. Parivahan Nigam Shishukhs Berozgar Sangh

and others; JT 1995 (2) S.C.26 to extend the benefit

of appointment to the Petitioner.

4. On the other hand, Mr. S.S. Pradhan,

learned AGA, however, has refuted the contention of

the Petitioner by submitting inter-alia that the

Petitioner has not been able to qualify as to under

what provision she is entitled for an appointment to a

post in the establishment of O.P. Nos.2 and 3. It is

also submitted by the learned AGA that the facts of

the case of Anjali Barik is not the same in the case of

Petitioner because the Petitioner was never diligent in

applying for the post or approaching the tribunal in

time. It is also submitted by the learned AGA that the

Petitioner has not been able to clarify as to the basis

of her claim and it is also not found from the

materials on record as to whether the Petitioner had

applied to O.P.Nos.2 and 3 for a post in their

establishment. Learned AGA also emphatically

submits that the decision in UPSRTC(Supra)is not

applicable to the case of the Petitioner.

5. From the admitted averments made by the

Petitioner in Original Application, it would disclose

that she had undergone a course of apprentice

training in Clerk-G in the Office of O.P. No.3 w.e.f.

13.02.1989 to 12.02.1990 and she was eligible to be

appointed as Clerk, but her application was not

considered. Neither the date of application made by

the Petitioner to any authority was pleaded in the

O.A. nor was any copy of such application annexed in

the Original Application. On the other hand, it is

stated by the Petitioner that she had gone on

representing vide annexure-3 series which are stated

to be photo copies of some representations without

any proof of delivery of such representations to any

authority and it appears to the Court that these

documents are perhaps created to explain the delay

and laches of the Petitioner. Additionally, when the

Petitioner could approach the tribunal in the year

2015 for non-consideration of her case, but what

prevented her not to approach any authority or

tribunal for non-consideration of her representation

made by her during 20.04.1990 to 01.03.2003 till

2015 when she filed O.A. No.2147(C) of 2015 before

the tribunal. Besides, O.P. No.2 by way of annexure-1

had rejected the representation of the Petitioner after

taking into consideration her case.

6. According to the Petitioner, she had

completed her apprentice training in the year 1990,

but she approached the tribunal for the first time in

the year 2015 after 25 years of accrual of cause of

action to her, but she had utterly failed to explain

satisfactorily the delay in approaching the

tribunal/Court. Delay is genus to which laches and

acquiescence are species, but laches invites principle

of estoppels which precludes a party from asserting

something contrary to what is implied by a previous

action or statement of that person. In this case, the

Petitioner having approached the Court/Tribunal after

a gap of 25 years itself negates her case on the

ground of delay and laches. Law has been well settled

in this regard in UNION OF INDIA AND OTHERS

VRS. N. MURUGESAN AND OTHERS; (2022) 2

SCC 25, wherein the Apex Court at Paragrap-22 has

held under:-

"22. Two essential factors to be seen are the length of the delay and the nature of acts done during the interval. As stated, it would also involve acquiescence on the part of the party approaching the Court apart from the change in position in the interregnum. Therefore, it would be unjustifiable for a Court of equity to confer a remedy on a party who knocks its doors when his acts would indicate a weaver of such right. By his conduct, he has put the other party in a particular position, and therefore, it would be unreasonable to facilitate a challenge before the Court. Thus, a main responsible for his conduct on equity is not expected to be allowed to avail a remedy."

Similarly, in GOVERNMENT OF WB VRS.

TARUN K.ROY AND OTHERS; (2004) 1 SCC 347,

a three Judge Bench of the Apex Court has held

that:-

"The Respondents furthermore are not even entitled to any relief on the ground of gross delay and laches on their part in filing the writ petition."

7. Examining the case of the Petitioner on

another angel, Sub Section-1 to Section-22 of the

Apprentice Act, 1961(In short "Act") which was

incorporated by way of amendment on 22.12.2014,

makes it clear that every employer shall formulate its

own policy for recruiting any apprentice who has

completed the period of apprentice training in his

establishment, but the Petitioner could not brought to

the notice of the Court that the O.Ps have in fact any

policy to absorb the apprentice. It is, however, clear

that before amendment, Section-22(1) of the Act

stipulates that it shall not be obligatory on the part of

the employer to offer any employment to any

apprentice who has completed the period of his

apprenticeship training in his establishment, nor shall

it be obligatory on the part of the apprentice to

accept any employment under the employer. It is not

disputed that the Applicant-Petitioner had approached

the tribunal for the first time at the age of 47 years

and that too, in absence of any proof of applying to

the concerned authority, but in any way, the

Petitioner would be over-aged even after grant of age

relaxation as admissible to her as per the observation

of the decision relied on by the Petitioner in

UPSRTC(Supra) wherein the Apex Court at

paragraph-12(3) has been pleased to observe as

under:

"12(3). If age bar would come in the way of the trainee, the same would be relaxed in accordance with what is stated in this regard, if any, in the concerned service rule. If the service rule be silent on this aspect,

relaxation to the extent of the period for which the apprentice had undergone training would be given."

Besides, right now the Petitioner would be

aged about 55 years which in any way would be

against the Petitioner for her absorption in any post

in the establishment of O.P.Nos. 2 and 3. Although it

is claimed on behalf of the Petitioner that in view of

the absorption of one Anjali Barik in the

establishment of Chief Engineer, National Highway,

Orissa, she is entitled to the relief claimed, but the

facts of that case having not pleaded/disclosed

precisely by the Petitioner to show her to be similarly

situated with Anjali Barik, this Court does not feel it

appropriate to extend the benefit to the Petitioner. In

the provisional counter filed by the Respondents

(OPs), it is claimed that the decision of Apex Court in

UPSRTC(Supra) is not applicable to the Petitioner in

this case since the Office imparted only practical

training to the Petitioner as trainee, but not for

appointment in the Office which was never denied by

the Petitioner by filing any rejoinder to above claim of

the Respondents-OPs. Further, the Respondents-OPs

have not been able to clarify as to how the principles

laid down by Apex Court in UPSRTC(Supra) would

be applicable to her case to be absorbed to the post

of Clerk-G in the establishment of the Respondents-

OPs, when she is not only negligent in applying for

the post, but also clearly at fault for approaching the

tribunal after a long delay of 25 years and more

particularly, when she is aged about 55 years at

present.

8. In view of the above admitted facts and

taking into consideration the claim of the Petitioner

after 25 years without any proper and valid

explanation of delay in approaching the tribunal to

assert her claim which is, of course, subject to further

scrutiny and keeping in view the rejection of the

representation of the Petitioner by the authority on

10.10.2015 and above all the age of the Petitioner

being much beyond the age bar even after relaxation

and the Petitioner having not been able to establish

to have applied to the authority for consideration of

her case immediately after her completion of

apprentice training or within a reasonable period

thereafter, the claim of the Petitioner not only suffers

from delay and laches, but also merits no

consideration.

9. In the result, the WPC(OAC) sans any merit,

stands dismissed on contest, but in the circumstance

there is no order as to costs.

(G. Satapathy) Judge

Signature Not Verified Digitally Signed Signed by: PRIYAJIT SAHOO Orissa High Court, Cuttack, Designation: Jr. Stenographer Reason: Authentication Dated the 19th of May, 2023/Priyajit Location: HIGH COURT OF ORISSA Date: 20-May-2023 16:10:55