A. Susanta Kumar Samantaray & Anr. v. State of Odisha (Vig.)

Case Number: CRLMC No. 1483 of 2023
Date of decision: 18th December 2023

Accused released on interim bail is deemed to be in ‘constructive custody’
of the Court and therefore, he need not surrender to avail regular bail.

In this case, the accused-Petitioners are assailing the order dated 20.03.2023 passed by the learned Special Judge, Vigilance, Bhawanipatna in G.R. Case No.21 of 2021 (V) and also seeking a direction from this Court to give effect to the order passed by this Court dated 24.01.2022 in ABLAPL Nos.16694 and 16666 of 2021. The allegation against the present petitioners is that they being public servants committed criminal conspiracy with some subordinate officials of their department in misappropriating a sum of Rs.23,63,940/- causing wrongful loss to the Government and were also responsible for forging some official documents. The specific allegation was that funds were allotted for plantation of seedlings and on verification by the Vigilance it was allegedly found that the plantation was not properly done as required number of plants were not there at the spot. Apprehending arrest in connection with the aforementioned vigilance case and were allowed by this Court by order dated 24.01.2022.

After submission of such charge sheet, learned Court took cognizance of the offence and issued summons pursuant to which the present Petitioners appeared on 20.03.2023 and filed applications for bail. The learned Special Judge rejected the Petitioners prayer for bail and by the impugned order dated 20.03.2023 and remanded the accused Petitioners to custody.

The Petitioner submitted that the impugned order is ex-facie illegal. And, in doing so the Special Judge lost sight of sub-section 3 of Section 438 of Cr.P.C. whereby, the learned Court was required to issue a bailable warrant in the face of the order passed by this Court under Section 438(1) of the Cr.P.C. On the other hand, the Vigilance Department submitted that in the face of alternative remedy available, the CRLMC under Section 482 Cr.P.C. is liable to be rejected.

The preliminary objection raised by the learned counsel for the Vigilance that rightly or wrongly since the Petitioners have been remanded to custody, the only remedy available to them is under Section 439 of Cr.P.C and the present Application under Section 482 of Cr.P.C. is not maintainable. This Court clarified that in the face of express remedy, the power under Section 482 Cr.P.C is not to be exercised. But in the factual matrix of the case at hand when the accused have been remanded even in the face of an order of anticipatory bail being granted by this Court, on a fallacious interpretation of the order and oblivious of the law governing the field, this Court is of the considered view that self-imposed embargo ought not to deter this Court from exercising its inherent jurisdiction to sub-serve justice. Further this Court held that by virtue of the interim bail granted, Petitioners are deemed to be in the constructive custody of the Court in seisin and therefore the impugned order was set-aside .

Tusar Kanti Tripathy & Anr. v. State of Odisha & Anr.

Case Number: W.P.(C) No.16781 of 2015

Date of decision: 31st July 2023

In this case, the petition was filed assailing the selection/appointment of Opposite Party Nos.4 to 12 as Assistant Town Planner (ATP) / Junior Town Planner (JTP) in Bhubaneswar Development Authority (BDA), Opposite Party No.2. The petitioners claimed that they fulfilled the requisite criteria as prescribed in the advertisement and accordingly they applied for the said post. They participated in the recruitment process. However because for formation of a defective selection committee by office order dated 03 .02. 2015 under the chairmanship of Vice Chairman BDA consisting of 9 members the selection committee with ulterior motive selected Opp. Parties 4 to 12 whereas ignored the legitimate claim of the petitioners.

They further submitted that the selection committee was not duly constituted as per the Rules in vogue. It was also urged that the selection committee is not the final authority after the process of selection since such select list has not been approved by the ‘authority’. On the other hand, the Opposite Party Nos. 2 and 3, Bhubaneswar Development Authority (BDA), contended that the provisions of the ODA Act as well as rules framed there under are not at all violated as claimed by the petitioners. The BDA being a statutory body duly exercised its power by issuing the advertisement and also conducted the selection process in terms of the relevant provisions of the statutory Rules. It was further submitted by the BDA that the objection raised by OPSC with respect to the educational qualification and the consequential decision of the government to cancel the previous advertisement with the further stipulation to take up the selection process after amendment of the rule has no bearing vis-a-vis the impugned advertisement.

This Court observed that in the present case, it was not dealing with a Public Interest litigation rather it was a service dispute where the selection and appointment of OP No. 4 to 12 is only under challenge. The prayer of the petitioners in the writ petition was for quashing selection and appointment of the opposite parties number 4 to 12 as Assistant Town Planner and Junior Town Planner and to issue writ in the nature of certiorari quashing the impugned order of appointment. As pointed out by the Counsels for the Opp. parties-the selected candidates, in fact, there was no prayer by the petitioners relating to their own claim as well as there is no such averments even in the writ petition indicating whether the petitioners once successful in the case at hand can be appointed qua the selected private opposite parties. It was also not the prayer in the writ petition to declare the constitution of the selection committee or the selection procedure adopted by the BDA to be illegal or unjust. Therefore in absence of any pleading and/or prayer with respect to the petitioners themselves in the present writ petition they cannot be treated as aggrieved party in a service dispute for which this Court is of the firm view that the case at hand does not merit consideration.

Furthermore, this Court held that the petitioners have deliberately misrepresented the facts and they have not approached this court with clean hand. Admittedly the candidature of the petitioners was rejected and such rejection list was in public domain and presumption can easily be drawn that petitioners were very much aware of the same. Therefore, the petitioners have deliberately suppressed such material fact about the rejection of their candidature as much as they have failed to challenge the said rejection of their candidature in the present writ petition.

Maheswar Dash v. Union of India & Ors.

Case Number: W.P.(C) No.22890 of 2014

Date of decision: 6th January 2023

Court ought to adopt liberal interpretation while deciding claim for pension.

In this case, the petitioner was dismissed from service (constable) by order dated 30.11 1991. The said order of dismissal, on the representation of the petitioner was modified to one of compulsory retirement from service with effect from 30.11.1991 by the Revisional Authorities. In the said order it was mentioned that the petitioner is entitled to draw two third compensation pension and gratuity as admissible. Being aggrieved by the amount of gratuity and compensation pension paid to him in terms of the said order, the petitioner approached this court with a prayer to modify the punishment order and granting pension. By order dated 5.3.2014, this Court disposed of the said Writ Petition directing the Opposite Party No. 2 to dispose of the appeal keeping in view sub Rule-3 of Rule 40 of the Central Civil Services (Pension) Rules, 1972 (herein after referred to as CCS (Pension) Rules, 1972). The Opposite Party No. 2 held that the petitioner is not eligible for pension as he has not completed 10 years qualifying service in terms of Rule 49 (1) of CCS (Pension) Rules 1972.

The petitioner contended that on a bare reading of the Rule 49 it can be seen that the same is ex-facie not applicable in the case at hand in as much as the petitioner being compulsorily retired, his case is squarely covered under Rule 40. In the case at hand, the petitioner joined in service on 30.03.1982 and compulsorily retired from service w.e.f. 30.11.1991 treating the suspension period as such. Thus the petitioner has completed 9 year and 8 months of service.

The petitioner submitted that the period of service of petitioner has to be rounded off to ten years in terms of provisions contained in Rule-49(3) of CCS (Pension) Rules, as admittedly the petitioner is governed under the said Rule.

This Court held that the petitioner having putting 9 years and 8 months of service, the period of 8 months by fiction of law has to be treated as one complete year, in computing the service period as qualifying service as envisaged under Rule 49(1) of CCS (Pension) Rules thereby entitling of petitioner for pension on account of compulsory retirement in terms of Rule 40 of CCS (Pension) Rules. It is trite law that while considering claim for pension interpretation which would further such entitlement to be preferred without affecting the intent of the provision. The provision of payment of pension being a beneficial legislation ought to be liberally interpreted as held by Apex Court in catena of decision. This Court therefore, held in favour of the petitioner.

Nirmal Maharana & Anr. v. State of Odisha & Ors.

Case Number: WP(C) No.2920 of 2014
Date of decision: 17th July 2023

In this case, the grievance relates to cancellation of self-same selection for the post of Diploma Engineers – Electrical (on contract) by the erstwhile CESU and fresh advertisement by TPCODL. The stand of the Petitioner was that an advertisement was floated by the Opposite Party Nos.2 and 3 on 13.06.2011 for selection and engagement of Diploma Engineer (Electrical) against the advertised vacancies and in terms of selection, the name of the Petitioners figured in the select list. However, without showing valid reasons whatsoever and on extraneous consideration such selection was cancelled.

The Petitioners contended that without any decision of the Board, the H.R. (Human Resources) Department of Opposite Party No.3 had cancelled the selection of the Petitioners so also failed to assign any valid reason. The Petitioners stated that being otherwise eligible in all respect as stipulated in the advertisement dated 13.06.2011 issued by the erstwhile CESU, they applied for the said posts and were called to appear in the written examination. After the result of the written examination, 617 numbers of candidates as against 245 posts were short listed and were directed to appear for personal interview. The Petitioners appeared before the interview Board and the final merit list was published consisting of 203 numbers of candidates circulated in the website of CESU as against the advertised post of “245”. On the basis of aforesaid select list circulated in the website, congratulation letters were also issued in the website to the respective selected candidates including the present Petitioners. However, instead of giving effect to such select list by issuing appointment orders in favour of the Petitioners, the Opposite Party Nos.2 and 3 issued impugned notice on 01.11.2012, circulating the same in the official website of CESU that advertisement dated 13.06.2011 and the consequential selection of the Petitioners for the post of Diploma Engineers – Electrical (on contract) is cancelled.

The Opposite Parties submitted that the advertisement published on 13.6.2011 specifically reflected that the authority concerned reserved/preserved the right to cancel the entire recruitment and candidate had taken part in the selection on their own will being conscious of such condition. In view of such clear stipulation in the advertisement, they have the power to cancel the advertisement at any stage. It was further submitted by the Opposite Party No.3 that the impugned order cancelling the advertisement is a communication of decision of the Board of Management through website. It was contended that the Petitioners have deliberately misled the Court with bald allegations by not referring to the decision of the Board of Management in its 37th meeting where such a decision to cancel the advertisement and consequential selection process was taken.

This Court held that a candidate seeking appointment to a civil post cannot be regarded to have acquired an indefeasible right to appointment to such post merely because of inclusion of his name in the merit list. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the employer is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the prospective employer has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. If the vacancies or any of them are filled up, the employer is bound to respect the comparative merit of the candidates as reflected in the recruitment and no discrimination can be permitted.

This Court further held that mere inclusion in the select list does not confer upon the selectee an indefeasible right to appointment, but that is only one aspect of the matter. The other is the obligation of the employer to act in a discernible manner. The whole exercise cannot be reduced to a farce. The authorities cannot surreptitiously and without valid reasons nullify the whole exercise and tell the candidates who have gone though the rigors of selection that they have no legal right to be appointed since every such candidate would have the legitimate expectation for being appointed. Accordingly, this Court held in favour of the Opposite Parties.