MAMATA PATI Vs. STATE OF ODISHA

JUDGEMENT

(1.) The petitioner, by means of this writ petition, seeks to quash the order dated 27.11.2004 under Annexure-8, by which the joining report of the petitioner received on 23.11.2004, has not been accepted, and to issue direction to the opposite parties to allow her to work as Jr. Diarist by accepting her joining report and grant all consequential service benefits.

(2.) The factual matrix of the case, in brief, is that the husband of the petitioner Late Godabarish Pati, who was working as a Junior Clerk in the office of the D.F.O., Plantation Division, Berhampur, died prematurely on 13.03.2000, while in service, leaving behind his old mother, wife and two children. As the family members faced acute hardship, the petitioner applied for compassionate appointment as per the provisions of Orissa Civil Service (Rehabilitation Assistance) Rules, 1990, but the same was not considered by the Conservator of Forest. Consequentially, she filed representation before the Chief Conservator of Forests, Orissa, Bhubaneswar, who directed for production of vacancy position. In compliance of the same, the Conservator of Forests, vide letter dated 10.06.2003, informed the Principal, Chief Conservator Forests that one Lalmohan Panigrahi, Junior Diarist has already been retired from service on 31.05.2003 and the said post is lying vacant w.e.f. 01.06.2003. But prior to such vacancy, there were other vacancies available, which fact was not brought to the notice of the Principal, Conservator of Forests, Bhubaneswar. However, the Principal, Conservator of Forests, vide letter dated 03.07.2003, requested the State Government for issuance of necessary instructions for appointment of the petitioner under rehabilitation assistance rules. In the said letter, it was pointed out that a post of Jr. Diarist has fallen vacant w.e.f. 01.06.2003 due to superannuation of Lalmohan Panigrahi on 31.05.2003. As a consequence thereof, on 28.10.2003, the matter was placed before the Finance Department for grant of permission for appointment of the petitioner. Accordingly, appointment order was issued in favour of the petitioner on 17.11.2004.

(3.) Mr. S. Behera, learned counsel for the petitioner contended that in the order dated 11.11.2004 passed by the tribunal in O.A. No.1276 of 2004 only direction was issued to the Conservator Forests to consider the case of Bhagwan Mohanty for promotion to the post of Jr. Diarist considering the paper book within two months. Since joining report dated 23.11.2004 of the petitioner was not accepted, she submitted a representation to the Principal, Conservator Forests, Bhubaneswar on 01.12.2004 as against non-acceptance of joining report contending therein that it amounts to termination of service without complying the principles of natural justice. But on the basis of the direction given by the tribunal in O.A. No.1276 of 2004, the Principal, Conservator Forests took a decision on 14.03.2005 that the proposal for convening DPC to consider the promotion of Bhagwan Mohanty to the rank of Jr. Diarist has already been exhausted, as there was no vacancy in the rank of Jr. Diarist under the control of Conservator Forests and consequentially rejected the representation filed by Bhagwan Mohanty. It is contended that the Principal, Conservator of Forests also directed the Conservator of Forests on 28.07.2005 to allow the petitioner to continue in the post, pursuant to which the petitioner submitted her joining report dated 23.11.2004 and the same being accepted she was continuing in the post w.e.f. 30.07.2005. It is contended that if the post of Jr. Diarist was lying vacant because of retirement of Lalmohan Panigrahi and the same was filled up by giving appointment to the petitioner under rehabilitation assistance rules, merely because Bhagwan Mohanty filed an original application, that ipso facto cannot entitle him to get such benefit, as the post had already been filled up and furthermore his representation had been rejected by the Principal, Conservator of Forests on 14.03.2005. In the circumstances, it is contended that the joining of the petitioner in the post of Jr. Diarist w.e.f. 23.11.2004 should be accepted and the date 30.07.2005, with effect from which the petitioner was effectively allowed to join, should relate back to the initial date of her joining on 23.11.2004, by quashing Annexure-8, and she should be granted all differential consequential benefits for the period from 23.11.2004 to 30.07.2005 as admissible to her.