(1.) THESE two writ petitions have been filed for issuance of writ of mandamus directing the learned District Judge, Sundargarh to issue appointment letter to the Petitioners against the available vacancies of Junior Clerk in the district judgeship of Sundargarh.
(2.) THE facts and circumstances giving rise to these cases are that an advertisement was made inviting application for the post of Junior Clerk in the district judgeship of Sundargarh and Petitioners being eligible submitted their applications and in response thereof they were permitted to participate in the selection process. A merit list dated 21.2.1987 (Annex. -I) containing 41 names of the successful candidates was published. The appointment on the said post at the relevant time was governed by the Orissa District and Subordinate Courts Ministerial Services (Method of Recruitment and Condition of Services) Rules, 1969 (hereinafter called 'the Rules, 1969), which prescribes a detail procedure for mode of recruitment. The select list prepared in the year 1987 and candidates whose names appeared in the select list at SI. Nos. 4 and 5 were offered the appointment on 1st March, 1989. Subsequent thereto, no appointment was made. Thereafter, an advertisement dated 9.4.1991 was issued in newspapers for fresh recruitment only to fill up the vacancies of reserved categories of Scheduled Caste and Scheduled Tribes. During the pendency of the said selection process, certain writ petitions were filed claiming relief of appointment in pursuance of the vacancies advertised in the year 1986. Writ petition i.e. O.J.C. No. 10108 of 1993 Madan Mohan Rout and Ors. v. District Judge, Sundargarh and Ors. was allowed vide judgment and order dated 19.09.1994 with certain directions. Subsequently writ petitions, O.J.C. No. 12144 of 1996 Alok Kumar Dey and Ors. v. State of Orissa and Anr. was disposed of vide judgment and order of this Court dated 13.8.2004 and O.J.C. No. 1312 of 1994 Kusumlata Behera and Ors. v. District Judge, Sundargarh and Ors. was allowed following the earlier judgment in Madan Mohan Rout (supra) vide judgment and order dated 24.2.1995. In the said judgment certain directions were issued for consideration of cases of the applicants for appointment in the posts of Junior Clerk on future vacancies since they had been the successful candidates and their names had been included ill the list prepared by the District Judge in accordance with the statutory rules subject to the Rules of reservation meant for Scheduled Caste and Scheduled Tribe candidates. It was further directed that in case any applicant become over -aged, relaxation should be granted. In view thereof, the candidates whose name appeared in the select list dated 9.2.1987 were directed to be appointed. The present two writ Petitioners claim to be similarly situated and these petitions have been filed seeking the same relief.
(3.) ON the contrary Shri P.K. Khuntia, learned Addl. Government Advocate vehemently opposed the petitions and submitted that the advertisement which was issued on 29.6.1986 did not provide any number of vacancies. In a case where the State Government has adopted the reservation policy, certain number of vacancies are to be filled up as per the roster, but the selection in the year 1987 has not been made following the roster point nor the number of vacancies was reflected in the advertisement, therefore, the entire selection process stood vitiated. More so, the present petitions have been filed at a much belated stage taking benefit of the judgments in the cases of other persons who were diligent and approached this Court within a reasonable time. Thus the present Petitioners cannot be permitted to take the benefit given to other diligent persons. In case the number of vacancies are not mentioned and it is not known as what would be the number of posts to be filled up, the ratio of reservation would not be maintained. All these aspects had not been considered by this Court in any of the earlier judgments. When the advertisement itself was void in the eyes of law, the earlier judgments giving relief to the applicants therein cannot be binding in nature. The said judgments remain per incuriam having been decided without taking into consideration the constitutional provisions. Therefore, the present petitions are liable to be dismissed.
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