Rasmita Mishra vs State Of Odisha & Others .... Opposite ...
2025 Latest Caselaw 2212 Ori

Orissa High Court

Rasmita Mishra vs State Of Odisha & Others .... Opposite ... on 8 January, 2025

Author: Biraja Prasanna Satapathy

Bench: Biraja Prasanna Satapathy

 IN THE HIGH COURT OF ORISSA AT CUTTACK

               W.P.(C) (OAC) No.2191 of 2017

In the matter of an application under Section 19 of the
Administrative Tribunal's Act, 1985

                                   ..................

Rasmita Mishra                            ....                    Petitioner

                                   -versus-

State of Odisha & Others                  ....            Opposite Parties


        For Petitioner        :       M/s. U.K. Samal & M.R.
                                      Mohapatra

        For Opp. Parties :            M/s. Mr. S.K. Jee,
                                      Addl. Government Advocate
                                      Mr. P.K. Parhi, DSGI along with
                                      Mr.B.K. Padhi, CGC

PRESENT:


      THE HONBLE JUSTICE BIRAJA PRASANNA SATAPATHY

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 Date of Hearing:08.01.2025 and Date of Judgment:08.01.2025
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 Biraja Prasanna Satapathy, J.

1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode.

2. Heard learned counsel appearing for the Parties.

3. The present Writ Petition has been filed inter alia with the following prayer:-

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"(i) Admit the original application, call for the records and quash the order dtd.06.03.2017 passed by the Opposite Party No.1 vide Annexure-9 and direct the Opp. Party No.2 to consider the case of the applicant in available vacancy either of a Tutor or against Clinical Instructor in any of the Government Hospitals within a reasonable time to be stipulated by this Hon' ble Tribunal"

4. Learned counsel for the Petitioner contended that pursuant to the advertisement issued under Annexure-1 by Opposite Party No.2 for recruitment to the post of Tutor & Clinical Instructors the last date for making the application was fixed to 10.01.2013.

4.1. It is contended that Petitioner as directed though send his application by Speed Post on 08.01.2013, but the same was only delivered on 30.12.2013. It is accordingly contended that since for the laches of the postal department application of the petitioner was not delivered within the last date so fixed in Annexure-1, Petitioner was deprived from the purview of selection.

4.3. It is also contended that as prescribed under Annexure-1, the process of selection is to be made only on the basis of academic merit.

4.4. It is contended that had the application of the Petitioner being delivered within the cut-off date taking into account the academic merit of the Petitioner, she could have got the benefit of selection and appointment as against the post of Tutor.

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4.5. It is also contended that persons with having less academic merit got the benefit of appointment in terms of the recruitment process initiated under Annexure-1.

4.6. It is also contended that challenging such action of the Opposite Parties in not considering her claim to get the benefit of appointment, Petitioner approached the Tribunal by filing O.A. No.1928 (C) of 2014. The said matter was disposed of by the Tribunal vide order dtd. 16.01.2017 under Annexure-8 with a direction on Opposite Party No.1 i.e. Secretary, Department of Health & Family Welfare, Government of Orissa, Bhubaneswar, Khurda to consider the grievance of the Petitioner. But without proper appreciation of the Petitioner's grievance such claim was rejected vide the impugned order dtd.06.03.2017 under Annexure-9.

4.7. It is contended that in the impugned order, it has also been clearly admitted that application of the Petitioner was duly sent by Speed Post on 08.01.2013 and the same was received on 30.12.2013. But since the application was not received within the stipulated time, Petitioner's claim was not considered and rejected accordingly.

4.8. Learned counsel for the Petitioner contended that since because of the fault of the postal department- Respondent No.3, Petitioner's application could not be delivered within the last date so fixed to 10.01.2013, for

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such laches of the Department, Petitioner should not be made to suffer.

In support of such submission, learned counsel for the Petitioner relied on the decision in the case of Dr. Annada Prasad Pattnaik vs. State of Orissa & Others reported in AIR 1989 Orissa 130. This Court in Para-5 of the said judgment has held as follows:-

"5. Para 6.3 of the prospectus as well as the admission notice stipulated that the application could only be sent "by registered post only and not by any other manner". Hence, the petitioner could not have been delivered his application in the office of the Convenor even if he wanted to. He had to post and did post in the post office located inside the campus of the College barely 100 yards away from where the office of the Convenor is located. By requiring the applicant to send his application through post, the Convenor nominated the post office as his agent. Therefore, if the application was received in the office of the Convenor on 1-688, the petitioner cannot suffer. It should be deemed to have been delivered on 27-5-88. Haging Regard to the distance that the letter was to travel, posting three days before cannot be Considered to be unreasonable. The petitioner therefore, should not suffer for the time the letter took in its journey of 100 yards from the post office to the office of the Convenor".

4.9. It is also contended that number of vacancies are available at present and taking into account academic merit of the Petitioner, Petitioner can get the benefit of appointment as against the post of Tutor. It is accordingly contended that appropriate direction be issued to Opposite Party No.2 to consider the claim of the Petitioner to get the benefit of appointment as against the

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post of Tutor pursuant to the selection process initiated under Annexure-1.

5. Even though notice of the Writ Petition has been issued since 14.09.2017, but no counter affidavit has been filed. However considering the dispute involved, this Court passed the following order on 14.08.2024:-

" 1. This matter is taken up through hybrid mode.

2. Heard learned counsel appearing for the Parties.

3. Considering the dispute involved, this Court directs learned Addl. Govt. Advocate to obtain instruction as to whether any vacancy as against the post of Tutor is available in the establishment of C.D.M.O., Sundergarh as on date.

4. As requested, list this matter on 23rd August, 2024. In the meantime learned counsel for the Petitioner is directed to serve an extra copy of the writ petition on Mr. P.K. Parhi, learned DSGI.

5. Office is directed to indicate the name of Mr. P.K. Parhi, learned DSGI in the case record as well as in the cause list henceforth.

Free copy of the order be provided to Mr. M.K. Balabantaray, learned AGA for compliance".

6. Pursuant to the said order and on instruction, learned Addl. Government Advocate for the State contended that at present 64 posts of Tutor are lying vacant under General Category. However, learned Addl. Government Advocate for the State contended that since admittedly Petitioner's application was not received within the cut-off date, she has got no right of appointment and for such delayed delivery of the article, Petitioner may sue the Department of posts. It is also contended that selection

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process pursuant to Annexure-1 has since been completed.

7. Mr. P.K. Parhi, learned DSGI on the other hand fairly contended that the article in question though was sent by Speed Post on 08.01.2013 vide Article No. EO424579639IN, but the same was only delivered on 30.12.2013.

8. Having heard learned counsel appearing for the Parties and considering the submissions made and the fact that Petitioner sent the article on 08.01.2013 by Speed Post which was delivered only on 30.12.2013, for such laches of the Department, Petitioner's grievance should have been considered in the light of the order passed by the Tribunal under Annexure-8. Since Petitioner has no fault with regard to such delay in delivery of the article, placing reliance on the decision in the case of Dr. Annada Prasad Pattnaik as cited (supra), it is the view of this Court that for such inaction on the part of the Department of posts, Petitioner should not be made to suffer.

8.1. This Court accordingly while quashing the impugned order dtd.06.03.2017 under Annexure-9 directs Opposite Party No.2 to consider the claim of the Petitioner to get the benefit of appointment taking into account the vacancy available as against the post of Tutor in UR category. This Court however directs Opposite

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Party No.2 to provide such appointment to the Petitioner if any candidate having less academic merit has got the benefit of appointment pursuant to Annexure-1. This Court directs Opposite Party No.2 to complete the entire exercise within a period of three (3) months from the date of receipt of this order.

8. Accordingly, the Writ Petition stands disposed of.

(Biraja Prasanna Satapathy) Judge

Orissa High Court, Cuttack Dated the 8th of January, 2025/Subrat

Location: HIGH COURT OF ORISSA, CUTTACK