Orissa High Court
A.F.R. Purna Ch. Majhi vs State Of Odisha & Others ... Opposite ... on 12 February, 2025
Author: Sashikanta Mishra
Bench: Sashikanta Mishra
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.23102 of 2024
(Application under Articles 226 and 227 of the Constitution of
India)
A.F.R. Purna Ch. Majhi ... Petitioner
-versus-
State of Odisha & others ... Opposite Parties
Advocates appeared in the case through hybrid mode:
For Petitioner : Mr.Srinivas Mohanty,
Advocate.
-versus-
For Opposite Parties
: Mr. S.N.Patnaik, A.G.A
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CORAM:
JUSTICE SASHIKANTA MISHRA
JUDGMENT
12.2.2025.
Sashikanta Mishra,J. The Petitioner was appointed as Gram
Rojgar Sevak (GRS) on 25.7.2016 and is working as
such since then. The Government created 7142 posts
of Accountant-cum-Data Entry Operators, one for each
Panchayat. As per the provisions of the Odisha
Accountant-cum-Data Entry Operator (Method of
Recruitment and Conditions of Service) Rules, 2024
(for short Rules 2024) , 70% of aforesaid posts are to
be filled up by way of direct recruitment and 30% from
amongst the GRS. The Rules also provide that as an
One-Time-Measure, the GRS who have completed 5
years of continuous service shall be absorbed on
regular basis against vacant posts of Accountant-cum-
Data Entry Operator subject to fulfilment of other
conditions of service and relaxation of upper age limit,
if required.
2. A criminal case was instituted against the Petitioner
being Jaipatna P.S. Case No.142/2021 corresponding
to C.T. Case No.136/2021/T.R. No.33/2024 of the
court of learned J.M.F.C., Jaipatna for commission of
offences under Sections 341/294/323/355/506 of
I.P.C. Said criminal case arose out of a private and
village dispute. In any case, by judgment passed on
20.3.2024 by the learned J.M.F.C., Jaipatna, the
Petitioner was fully acquitted of the offences.
3. The Petitioner's grievance is that while
considering the case of GRS of the District for their
absorption in the regular post of Accountant-cum-Data
Entry Operator as per the 2024 Rules, his case was
not considered on the ground that the order of
acquittal in his case was passed after 14.3.2024. It is
stated that the Petitioner otherwise fulfills all eligibility
criteria and is therefore, eligible for being absorbed but
has been grossly discriminated on the unconscionable
ground of being acquitted after the cut-off date.
On such facts, the Petitioner has filed this Writ
Petition with the following prayer;
"The petitioner, therefore, prays that your
lordship would graciously be pleased to admit
this petition, call for the records and after
hearing the parties issue Rule Nisi calling upon
the Opp. Parties as to how the petitioner stands
discriminated from his similarly situated other
colleagues on fixation of cut-off date of acquittal
on or before 14.03.2024 under Annexure-5.
And further be pleased to show cause as to how
the cut-off date of acquittal is fixed contrary to
the statutory guidelines.
And showing their no cause or insufficient
cause make the Rule Absolute.
And further be pleased to direct the authority to
appoint the petitioner as ADEO (Accountant cum
DEO) on the basis of the guideline dtd-
12.03.2024 in quashment of the observation
made in the order dtd-07.08.2024 under
ANNEXURE-5.
And pass any other and /or further order as
deemed fit and proper under the circumstances
of the case,
And for this act of kindness the petitioner as in
duty bound shall forever pray.
4. The State has not filed any counter affidavit
but an affidavit was filed by the B.D.O. (Opp.Party
No.2), inter alia, stating that a District Selection
Committee was constituted vide Office order dated
13.3.2024 and basing on its recommendation, the
selection of GRS was made. Further, in the absence of
specific guiding provisions, the calculation of 5 years
has been made up to the date of commencement of the
Rules, i.e. 12.3.2024. The cut-off date for pendency of
criminal case and other cases were also taken into
consideration by the Committee as 12.3.2024, i.e. the
date of notification of the 2024 Rules.
5. Heard Mr. Srinivas Mohanty, learned counsel for
the Petitioner and Mr. S.N. Patnaik, learned Addl.
Government Advocate for the State.
6. Mr. Mohanty would argue that admittedly, the
Petitioner was entangled in a criminal case which had
no relation to his official work as GRS but had arisen
out of a purely private dispute. In any case, he was
honourably acquitted from the offences. The District
Selection Committee arbitrarily fixed a cut-off date i.e.
14.3.2024 without backing or sanction of law. Once a
person has been acquitted there cannot be any cut-off
date to hold him innocent. Mr. Mohanty further
submits that even otherwise as per the ratio decided by
this Court in the case of Ashis Kumar Debta vs.
State of Odisha and others; W.P.(C) No.5838/2024,
even pendency of a criminal case is not relevant in so
far as absorption of GRS in the regular post of
Accountant-cum-Data Entry Operator is concerned.
According to Mr. Mohanty therefore, by depriving the
Petitioner of his right to be considered for absorption
despite his acquittal from the criminal case is grossly
unfair, unjust and highly discriminating.
7. Per contra, Mr. S.N.Patnaik, learned Addl.
Government Advocate would argue that the selection
board meeting was held initially on 14.3.2024 when as
many as 207 GRS were found eligible for being
absorbed in the regular post of Accountant-cum-Data
Entry Operator and therefore, their cases were
recommended. Nineteen cases including that of the
Petitioner were not taken into consideration due to
pendency of criminal case/vigilance case and other
reasons considering the provision under Rule 10(5) of
the said Rules. After receipt of relevant information
from different sources including the S.P., Kalahandi, it
came to light that criminal cases against two
candidates had ended in acquittal before 14.3.2024.
The cases of four other candidates including the
Petitioner were not considered on the ground that the
date of disposal of the criminal cases was after
14.3.2024.
8. It would be apposite to refer to the relevant
provisions of 2024 Rules at the outset. Rule 10, being
relevant is quoted herein below;
"10. Procedure for filling up of vacancies by way of Selection:-
(1) A panel list of all eligible GRS shall be maintained
at the District level (Zilla Parishad) basing upon their
date of engagement. Candidates equal to vacancies
arising in a year against 30% of the sanctioned
strength of the Cadre shall be allowed to appear for
recruitment through the Commission. In case suitable
candidates are not available, the post shall remain
vacant to be treated as carry forward vacancy for the
next year.
Provided that as a one time measure, by way of
relaxing the provisions of this Rule, those GRS who
have completed 5 (five) Years of continuous service on
the date of commencement of this Rule, shall be
absorbed on regular basis against vacant posts of
Accountant-cum-Data Entry Operators subject to
fulfillment of other conditions of service and
relaxation of upper age limit, if required. Subsequent
vacant posts created in the cadre of Acct-cum-DEO
shall be filled up as per the provisions prescribed in
the Rules.
(2) The Schedule and Syllabus for the selection of the
eligible GRS to Acct-cum-DEO shall be as decided by
the PR & DW Department, however the recruitment
shall be conducted by the Commission.
(3) A maximum of three chances shall be allowed to
the GRS to pass the recruitment test.
(4) The Recruitment test may be held once each Year,
preferably during the month of December.
(5) In order to be eligible for selection, the Selection
Board constituted under Rule 11 for the purpose shall
consider:
(a) Satisfactory performance report of preceding 5
Years to be issued by the CDO-cum- Executive Officer
on the recommendation of the BDO concerned.
(b) Vigilance and Criminal clearance report."
A bare reading of the Rules would suggest that
ordinarily 30% of the sanctioned strength in the cadre
shall be filled up by way of selection from the eligible
GRS. However, as per the proviso to Sub-rule (1), as a
one time measure, provision for absorption on regular
basis of those GRS who have completed five years of
continuous service has been made by way of relaxing
the provisions of the Rules. This carves out an
exception to the normal procedure i.e., by way of
selection.
9. The proceeding of the District Selection Board held
on 7.8.2024 refers to sub-rule (5) of Rule 10,
apparently to justify its decision of not considering the
case of the Petitioner on the ground of pendency of
criminal cases. However, this Court, in the case of
Ashis Kumar Debata (Supra) has interpreted Rule
10 and held as follows;
"It would now be proper to examine the
statutory provision keeping the settled
position of law as referred to above in the
perspective.
As is evident, Rule 10 lays down the
procedure for filing of vacancies by way of
selection. Rule 4 provides that not less than
70% of the cadre strength shall be filled up
by way of direct recruitment and not more
than 30% of the cadre strength shall be filled
up by means of selection of the eligible GRS
engaged under MGNREGS Scheme. Coming
back to Rule 10, Rules (1)(2)(3)(4) and (5)
relate to the procedure to be followed for
selection of eligible GRS for the post of
Accountant-cum-Data Entry Operator. The
proviso to Sub-rule (1) however carves out an
exception for those GRS who have completed
5 years of continuous service on the date of
commencement of this Rule. The proviso
speaks of 'absorption' and not 'selection'.
This is the most significant distinction. Such
absorption has been made subject to
fulfillment of 'other conditions of service' and
'relaxation of upper age limit if required.' The
proviso thereafter goes on to state in clear
and unambiguous terms that 'subsequent
vacant posts' created in the cadre shall be
filled up as per the provisions prescribed in
the rules. Plainly understood, this means
that while filing up of the post of Accountant-
cum-Data Entry Operator is ordinarily to be
done by way of selection of eligible GRS, the
State also deemed it proper to provide for
another avenue for filling up the post from
amongst the existing GRS, who have
completed 5 years of continuous service by
way of 'absorption'. Obviously, absorption
cannot be equated with selection. That apart,
the proviso itself makes it clear that the
procedure laid down in the rules shall be
applied only for those vacancies that arise
after the one time measure of absorption is
over. The use of the words 'subsequent
vacant posts' can have no other meaning.
Thus, in order to be eligible for absorption the
GRS must have completed five years of
continuous service as such. Though it is
stated that such absorption shall be subject
to fulfillment of other conditions of service but
the same has not been clarified adequately.
It would however suffice for the present
purpose to note that in so far as the
absorption on regular basis of an existing
GRS is concerned, the rules would have no
application"
10. Therefore, mere pendency of criminal case would
not be a bar for considering the case of a GRS for his
absorption as a one time measure as per the proviso.
Therefore, the decision taken by the Selection Board on
14.3.2024 to leave out the case of the Petitioner cannot
be said to be correct.
11. Be that as it may, it is fundamental to criminal
jurisprudence that a person is presumed to be
innocent until proven guilty. Further, acquittal from a
criminal case implies acknowledgement of innocence of
the accused by the competent court. Therefore, both
situations have to be considered together. Introducing
a cut-off date would tantamount to creating an
artificial barrier inasmuch as the status of the person
before the said date would be that of a person against
whom a criminal case is pending while his status after
the cut-off date would be of a person acquitted in the
criminal case. In the first case, it would be contrary to
the fundamental principle of presumption of
innocence. In other words, if a cut-off date is fixed and
his case is not considered as he was facing a criminal
case before such date, it would be akin to treating him
guilty. This Court fails to understand as to how the
date of selection board meeting, 14.3.2024 can have
any relevance in this regard. The subsequent order of
acquittal, as already stated, only goes to legally
acknowledge the fact of innocence of the Petitioner. It
must therefore, be held that he was innocent all
through notwithstanding pendency of the criminal
case. Such being the case, he cannot be discriminated
on the basis of the date of judgment of acquittal, which
obviously is not under his control.
12. Another significant aspect that needs mention is
the apparent disparity in the stand taken by the State
in the matter. In the affidavit, filed by the B.D.O., the
cut-off date has been mentioned as 12.3.2024 and
justified as being the date of commencement of the
2024 Rules. The proceeding of the Selection Board
however, mentions something else. As already stated,
it mentions 14.3.2024, which is the date on which the
last selection meeting was held.
13. Thus, from a conspectus of the analysis of facts
and law made hereinbefore, this Court is of the
considered view that non-consideration of the case of
the petitioner for absorption as Accountant-cum-Data
Entry Operator was not justified firstly, on the ground
of pendency of criminal case against him and secondly,
despite his acquittal therefrom on the unconscionable
ground of such acquittal being after 14.3.2024.
14. For the foregoing reasons therefore, the Writ
Petition is allowed. The impugned order under
Annexure-5 in so far as it relates to the Petitioner is
hereby quashed. The Opp.Party-authorities are
directed to consider the case of the Petitioner for his
absorption as Accountant-cum-Data Entry Operator
as per the 2024 Rules, if he is otherwise found to be
eligible for the same as per the statutory provisions.
................................
Sashikanta Mishra,
Judge
Ashok Kumar Behera
Location: High Court of Orissa, Cuttack
