SUKANTI DEI Vs. STATE OF ORISSA AND ORS.

JUDGEMENT

(1.) IN this writ petition under Article 226 of the Constitution, the petitioner assails the action of the opposite parties 3 and 4 in not appointing her to the post of Junior Assistant in the Notified Area Council, Konark (hereinafter referred to as "the NAC, Konark").

(2.) BEREFT of unnecessary details, the short facts of the case of the petitioner are that she is a matriculate. She was initially appointed as an Assistant Tax Collector on daily wage basis by the Executive Officer, NAC, Konark, opposite party No. 3 on 20.9.1986, vide Annexure -1. Opposite party No. 5 was engaged as an Assistant Tax Collector on daily wage basis on 24.9.1986. Though she was appointed as Asst. Tax Collector, but she was doing other works, such as, typing. While the matter stood thus, opposite party No. 3 appointed opposite party No. 5 as a Tax Collector on 11.11.1988 without any interview. On 27.11.1989, opposite party No. 3 requested the Director, Municipal Administration, opposite party No. 2, to create a post of Junior Asst. -cum -Typist under L.F.S Cadre and also sought permission to appoint the petitioner against such sanctioned post, vide Annexure -4. Thereafter, the Government of Orissa in its Housing and Urban Development Department sanctioned two posts of Junior Assistant in NAC., Konark by order dated 5.12.1991, vide Annexure -5. Thereafter, opposite parties 3 and 4 appointed opposite party No. 5 as Junior Assistant in contravention of Rule 7 of the Orissa Local Fund Service Rules, 1975 (hereinafter referred to as "the Rules, 1975"). While the matter stood thus, she was appointed as Tax Collector on regular basis on 23.12.1991, vide Annexure -6.

(3.) PURSUANT to issuance of notice, a counter affidavit has been filed by the Executive Officer, NAC, Konark, opposite party No. 3. The case of the opposite party No. 3 is that the petitioner was appointed as Assistant Tax Collector for a period of 99 days on 20.9.1986 on daily wage basis. The same was extended from time to time. Thereafter, she was promoted to the post of Tax Collector on regular basis vide order dated 23.12.1991. Opposite party No. 5 was also appointed as Assistant Tax Collector and joined in the post on 24.9.1986. Opposite party No. 5 was regularly appointed against the post of Tax Collector on 11.11.1988. The petitioner was promoted to the post of Tax Collector on 23.12.1991. As the post of Junior Assistant was lying vacant, the Executive Officer, NAC, Konark wrote a letter to the Additional Secretary to Government -cum -Ex -Officio Director of Municipal Administration, Orissa, Bhubaneswar, for creation of post of Junior Assistant and to give appointment to the petitioner. Accordingly, two posts were created in the year 1991, such as, Junior Assistant and Junior Assistant -cum -Typist. The Government of Orissa, Housing & Urban Development Department vide order dated 5.12.1991 sanctioned two posts. The Council of NAC, Konark selected two candidates through Selection Committee for the posts of Junior Assistants and Tax Collector. Accordingly, opposite party No. 5 and one J. Mohanty were appointed as Junior Assistants. The petitioner was appointed against the post of Tax Collector. All the three joined against their posts on 24.12.1991. After their appointment, the Government had been requested to approve their posts. It is further stated that the writ petition filed by her was disposed of on 4.3.2002 with a direction to dispose of the representation dated 5.6.2000 in accordance with law. The Government after due consideration disposed of the representation of the petitioner on 21.5.2002. In the said order, it was categorically stated that the post of Junior Assistant belongs to L.F.S cadre. The selection, condition of service etc. of the posts is made under the provision of Rules 1975. The appointment was made on the basis of merit -cum -seniority from among the employees of all urban local bodies. It is further stated that considering the seniority of opposite party No. 5, he was appointed. But then, his appointment was not challenged during the relevant time. It is further stated that the Selection Committee presided by the Collector, Puri selected opposite party No. 5 for the post of Junior Assistant. Further, there is no vacancy in the NAC, Konark. In case of vacancy arises, her case shall be considered in accordance with Rule 7 of Rules, 1975.