Akshaya Kumar Behera vs Collector
2024 Latest Caselaw 335 Ori

Orissa High Court

Akshaya Kumar Behera vs Collector on 8 January, 2024

Author: R.K. Pattanaik

Bench: R.K. Pattanaik

                    IN THE HIGH COURT OF ORISSA AT CUTTACK

                                  W.P.(C) No.13456 of 2016

            Akshaya Kumar Behera                      ....             Petitioner
                                      M/s. S.D. Tripathy, Advocate & Associates

                                            -Versus-


            Collector, Bolangir & others               ....     Opposite Parties
                                                            Mr. J.P. Patra, ASC
                                              Mr. Moharana, CGC for O.P. No.3

                       CORAM:
                       MR. JUSTICE R.K. PATTANAIK

                                             ORDER

08.01.2024

Order No. I.A. No.14056 of 2022

26. 1. Heard learned counsel for the petitioner and opposite party No.3.

2. Instant I.A. is filed by opposite party No.3 to amend the cause title and replace opposite party No.3 with Director General Ordinance (Coordination & Service), Directorate of Ordinance and two others described therein.

3. No objection is received from the side of the petitioner.

4. The I.A. stands allowed accordingly.

5. The above order be carried out in the cause title of the writ petition incorporating the names of the substituted parties as opposite party Nos. 3 to 5 in place of opposite party No.3.

(R.K. Pattanaik) Judge

27. 1. Heard learned counsel for the petitioner and Mr. Patra, learned ASC appearing for opposite party Nos. 1 and 2 besides Mr. Moharana, learned counsel for opposite party Nos. 3 to 5.

2. Instant writ petition is filed by the petitioner assailing the impugned order dated 5th May, 2016 under Annexure-6 passed by opposite party No.1 with a consequential direction to opposite party No.3 to issue him a letter of appointment for the post of DBW (SS) retrospectively from 1997 on the grounds stated therein.

3. Learned counsel for the petitioner submits that in Misc. Case No. 20 of 1998, suo moto power was exercised by opposite party No.1 in terms of Rule 7 of OMC Rules and reviewed the order dated 12th May, 1995 of the Tahasildar, Titilagarh passed in connection with Revenue Misc. Case No.27/2505 of 1995 with respect to issuance of his residential certificate which was challenged in OJC No.15086 of 1999 disposed of on 2nd November, 2010 with a direction to consider the case in the light of the judgment in Chandramani Jena and others reported in 2007 (II) OLR 577 which was referred to. It is further submitted that later on, opposite party No.3 filed RVW-PET No. 59 of 2011 against the order dated 2nd November, 2010 passed in OJC No.15086 of 1999 disposed of on 9th April, 2014 with the conclusion that there has been no notice served on the party concerned, hence, without any opportunity of hearing being provided. It is contended that with the recall of the order in OJC No.15086 of 1999, without expressing anything on merits on the findings of opposite party No.1 vis-à-vis the subject in dispute, the matter was directed to be placed before the Bench concerned for final disposal providing opportunity of hearing to the parties involved. It is submitted that OJC No.15086 of 1999 was finally disposed of on 15th October, 2014 with a specific direction to opposite party No.1 to take up fresh hearing in Misc. Case No. 20

of 1998 with the order passed therein set aside with the liberty allowed to the petitioner to produce all such evidences in support of his claim being a resident of village-Phapsi in the district of Bolangir. It is alleged by learned counsel for the petitioner that despite such a direction for disposal of Misc. Case No. 20 of 1998, it was not taken up for hearing instead Misc. Case No. 18 of 2014 was registered leading to the passing by order dated 5th May, 2016 dismissing the request for issuance of resident certificate. It is also alleged that the original record in Revenue Misc. Case No.27/2505 of 1995 and record of the same was never produced by opposite party No.1 in spite of order dated 13th August, 2015, so therefore, the petitioner has been prejudiced with the final decision dated 5th May, 2016. In other words, according to learned counsel for the petitioner, the decision has not been by considering the relevant record, rather, the dismissal has been with reference to HSC certificate issued in favour of the petitioner with the conclusion that the residency could not have been within the limits of Bolangir district as he passed out matriculation from Khajurikata High School being a resident of a place situate in the district of Dhenkanal. Hence, therefore, it is submitted that in absence of an elaborate inquiry with specific findings considering the original record in place, the impugned order of opposite party No.1 vide Annexure-6 cannot be sustained in law, thus, therefore, it is liable to be interfered with and set aside.

4. No counter is filed by the State and in particular, opposite party No.1. However, Mr. Patra, learned ASC for the State submits that the impugned order under Annexure-6 is in accordance with law. Mr. Patra justifies the decision of opposite party No.1 on the ground that the petitioner could not be a resident of a place within the jurisdiction of Bolangir and since a complaint was received against him and others, after an inquiry held, since impugned order under Annexure-6 was passed, the same should not to be disturbed.

5. Mr. Moharana, learned counsel appearing for opposite party No.3 to 5 submits that the recruitment relates to the year 1997 and in the meantime, so many years have gone back and therefore, even assuming for the sake of argument that the petitioner to be a resident of place within the limits of Bolangir, he cannot be appointed and engaged in the establishment.

6. The details of the events followed post-advertisement till the time the final result of recruitment have been described, which are brought to the notice of the Court by Mr. Moharana, learned counsel for opposite party Nos.3 to 5 referring to the counter affidavit on record. It is further submitted by Mr. Moharana that opposite party Nos.3 to 5 (original opposite party No.3) not to be the necessary party since the dispute relates to the residency of the petitioner which has been examined by opposite party No.1 with the passing of the order under challenge.

7. Gone through Annexure-6.

8. In fact, this Court by order dated 6th January, 2022 had directed the State and particularly, opposite party No.1 to cause production of the LCR along with Form-I application but it has not been complied with. In course of hearing, Mr. Patra, learned ASC for the state produced the record lying at his disposal to apprise the Court about the facts of the case and the circumstances leading to the cancellation of the residential certificate issued by opposite party No.2, with the review by opposite party No.1.

9. In so far as, order dated 15th October, 2014 in OJC No.15086 of 1999 is concerned, on a bare reading of the same, it is made to appear that opposite party No.1 was directed to reconsider the grievance of the petitioner taking up hearing in Misc. Case No. 20 of 1998. In fact, the order passed by opposite party No.1 therein was set aside with a direction to take it up afresh providing an

opportunity of hearing and liberty to produce oral and documentary evidence in support of the claim of the petitioner being a resident of village-Phapsi in the district of Bolangir. In juxtaposition to the aforesaid order, on a perusal of the impugned decision i.e. Annexure-6, it is made to understand that the decision of opposite party No.1 is entirely based on and with reference to HSC certificate along with a remark that the petitioner could not have been the resident of the place within the limits of Bolangir district, he having passed the matriculation from a school situated in the district of Dhenkanal. The original record in Revenue Misc Case No.27/2505 of 1995 does not appear to have been referred to by opposite party No.1 considering Annexure-6. In fact, the said order is a cryptic one without any elaborate or detailed inquiry held as to the residency of the petitioner. It is alleged that the petitioner was not allowed to submit oral evidence, as such liberty was also granted by the Court in OJC No.15086 of 1999.

10. Taking cognizance of the fact that such a question does not depend on the permanent residency considering Form-I appended to the Orissa Caste Certificate for the SC & ST Rules, 1980, which shows the applicants to furnish present address as well, the Court finds that it has not been duly examined by opposite party No.1. So therefore, the Court is of the conclusion that the decision in question is required to be set aside. In other words, the Court is of the considered view that all such aspects as highlighted upon are to be examined threadbare by opposite party No.1 before reaching at a conclusion with regard to the residency of the petitioner. It is reiterated that the impugned order under Annexure-6 does not confirm to the directions issued in OJC No.15086 of 1999, which is with respect to providing the petitioner an opportunity of hearing adducing oral as well as documentary evidence. It is also reiterated that the residency or otherwise of the petitioner, as it has been claimed, cannot entirely depend on him passing out Matriculation

examination from a particular school situate beyond the limits of Bolangir district. Hence, the final conclusion of the Court is that a detailed inquiry is needed followed by an order by opposite party No.1 with reasons assigned vis-à-vis issuance of residence certificate in favour of the petitioner, which was originally allowed but was rejected after review with a confirmation vide Annexure-6 as the same would rather serve the purpose and meet the ends of justice leaving it open for opposite party Nos. 3 to 5 to consider his appointment depending on the outcome of such enquiry and order.

11. Hence, it is ordered.

12. In the result, the writ petition stands allowed. As a necessary corollary, the impugned order under Annexure-6 is hereby set aside for the reasons stated as above. Consequently, the proceeding in Misc. Case No.18 of 2014 is hereby restored to the file of opposite party No.1, who is to receive such evidence from the petitioner and considering all the materials on record with reference to Revenue Misc Case No.27/2505 of 1995, to take a final decision and at the end, to pass a detailed and reasoned order at the earliest preferably within a period of eight weeks from the date of receipt of a copy of this order. It is made clear that no opinion on merit has been expressed with regard to appointment of the petitioner in the establishment of opposite party Nos.3 to 5, which may be considered subject to outcome and the final result in Misc. Case No.18 of 2014.

13. Urgent copy of this order be issued as per rules.

(R.K. Pattanaik) Judge Signature Balaram Not Verified Digitally Signed Signed by: BALARAM BEHERA Designation: Personal Assistant Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 10-Jan-2024 14:54:17