K.R. MOHAPATRA, J.
1. One Sri Ajay Kumar Behera as well as the State of Odisha have filed W.P.(C) No.15392 of 2011 and W.P.(C) No.17011 of 2012 respectively,
assailing the legality and propriety of order dated 08.04.2011 passed by the learned Tribunal in O.A. No.211 of 2010.
2. Since both the writ petitions involve similar facts and law, these are taken up together for hearing and disposal. For the sake of convenience, Sri
Ajay Kumar Behera is hereinafter referred to as petitioner and the functionaries of State Government are referred to as opposite parties.
3. Grievance of the petitioner in O.A. No.211 of 2011 was that pursuant to a recruitment test held on 21.08.1984 for the post of Junior Assistant in the
office of the Director General of Police Orissa, (DGPO), petitioner-Ajay Kumar Behera was duly selected and was appointed as Junior Assistant on
29.09.1984 on ad hoc basis. While continuing as such, another recruitment test was conducted to fill up 56 posts of Junior Assistant on regular basis on
25.06.1985. The petitioner although qualified in the written test, but was not called to appear in the viva voce conducted in November, 1986.
Consequently, the petitioner along with other Junior Assistants, who were continuing on ad hoc basis, were discharged from service with effect from
06.12.1986 pursuant to order dated 03.12.1986. Being aggrieved, some of the retrenched employees (not the petitioner) filed O.A. Nos. 246 of 1986
and 96 of 1987 praying inter alia to quash the termination order.
The said Original Applications were disposed of vide order dated 25.08.1987 with a direction to allow the applicants therein to continue as such till the
posts are filled up through regular recruitment test to be held in conformity with the procedure/instructions governing the field. The said order of
learned Tribunal was challenged by the State of Odisha before the Hon’ble Supreme Court, which was dismissed vide order dated 19.01.1988 and
the order of learned Tribunal was confirmed. It is apt to note that earlier recruitment to the post of Junior Assistant of Ministerial Cadre in the Police
Head Quarters and in other Departments of Government of Odisha was governed by the Orissa Ministerial Service (Method of Recruitment) of
Junior Assistant in office of the Heads of Departments Rules, 1975. In the year 1980, the Director General of Police requested the Government to
exempt his office from application of the said Rules. Thus, the State Government desired the DGPO to submit draft Rules for consideration and in the
interregnum, some appointments like the petitioner was made during 1981 to 1988. Subsequently, Orissa Ministerial Officers of the Office of the
Director-General and Inspector-General of Police and Certain other Offices (Method of Recruitment and Conditions of Service) Rules, 1988 (for
short, ‘the Rules, 1988’) came into force.
Recruitment test was held in the year 1988 in terms of the Rules, 1988. The petitioner along with other employees who were continuing on ad hoc
basis also faced the selection process. Some of the unsuccessful employees (not the petitioner) challenged their termination in O.A. No. 1179 of 1988
and O.A. No.206 of 1989 and similar other Original Applications. When O.A.No.206 of 1989 was pending, O.A.No.1179 of 1988 was disposed of
vide order dated 22.10.1990 quashing the termination order and treating the applicants therein (12 in numbers) deemed to be continuing in service from
their initial date of appointment, i.e., 20.12.1986 without any break. Similar other Original Applications were also disposed of along with the same. The
State-opposite parties assailed those orders in different Special Leave Petitions, which were dismissed on the ground of delay. After dismissal of the
Special Leave Petitions, the applicants in O.A No.1179 of 1988 were issued with appointment orders on 27.11.1991. Subsequently, O.A. No.206 of
1989 was taken up for hearing.
Although the applicants in OA No.206 of 1989 stood in a similar footing with applicants in O.A. No.1179 of 1988, learned Tribunal took a different
view in OA No.206 of 1989 and disposed of the same vide order dated 03.01.1997 directing as under:-
“(i) Candidates who have been appointed by the Director General and Inspector General of Police between the years 1981 and 1988 before the
rules came into force are to continue on ad hoc basis and cannot be treated to have been validly recruited to be appointed on regular basis when State
Government did not approve the proposal of the Director General and Inspector General of Police to regularize them.
(ii) Decision of the Tribunal treating those appointments to be on regular basis without taking note of pendency of this application and incorrectly
distinguishing the decision of the Supreme Court would not be binding on the Respondents and thus, the decision cannot give any benefit to the
successful parties.
(iii) Result of the recruitment examination held in which the applicants and many others appeared has to be verified again. Those who satisfy the
requirement of the rules are to be considered to have been selected and shall be given appointments. They will be senior to the candidates who have
been allowed to continue on ad hoc basis.
(iv) In respect of others, a special test under the statutory rules shall be held for their regular appointment.
(v) Since applicants have suffered for about eight years and irregular appointees are continuing for about 15 years, I direct that the entire process as
directed shall be completed within six months from the date of receipt of this order by the Director General and Inspector General of Police
(Respondent No.2). Respondent No.1 shall regulate the implementation of this order within the time stipulated.â€
4. Â Being not satisfied, one Ajay Kumar Bhuyan and four others (respondent Nos.10, 11,14,15 and 24 in OA No.206 of 1989) filed a Review Petition
bearing R.P. No.17 of 1997, which was dismissed vide order dated 01.03.1997. Being aggrieved, said Ajay Kumar Bhuyan and others as well as the
State-Opposite parties moved the Hon’ble Supreme Court against the orders passed in OA No.206 of 1989 as well as in Review Petition bearing
RP No.17 of 1997, by filing separate Civil Appeals, which were dismissed vide order dated 03.12.2002 by Hon’ble Supreme Court. Hon’ble
Supreme Court while dismissing the Civil Appeals also deprecated the earlier orders passed in OA No.1179 of 1988 and similar other Original
Applications disposed of in terms of OA No.1179 of 1988. Due to non-compliance of the order passed in O.A. No. 206 of 1989, Contempt Petition in
C.P. No. 49 (C) of 2003 was filed. In the contempt proceeding, State-opposite parties took a stand that pursuant to the direction in O.A. No. 206 of
1989, the authorities have verified the result of recruitment in between 1981 to 1988 and had implemented the order of learned Tribunal in its letter and
spirit. On the basis of the submissions made by learned State Counsel, the contempt proceeding was dropped. W.P.(C) No.8076 of 2005 filed assailing
the order passed in contempt proceeding was dismissed vide order dated 18.04.2006. It may be appropriate at this place to note that after disposal of
O.A. No.206 of 1989, which was confirmed by Hon’ble Supreme Court, the petitioner filed several representations, which remained un-attended.
Hence, he filed O.A. No.377(C) of 2008, which was disposed of on 27.03.2008 with a direction to send the paper book in the said Original Application
to the authorities to consider his grievance. Consequently, the representation of the petitioner was rejected on 03.02.2009, which was assailed in O.A.
No.211 of 2010. Learned Tribunal considering the rival contentions of the parties, disposed of the Original Application, vide order dated 08.04.2011
with direction as under:-
“19. We therefore, hold that the applicant stands selected in the recruitment and direct that he be given appointment to the post of junior assistant.
It appears that the seniority list of such recruited candidates has been prepared, whether they were ad hoc appointed candidates or open market
candidates. So, the applicant be placed below the persons, who have been appointed/recruited pursuant to the recruitment test held on 22.06.88. So,
the applicant is entitled to get his service seniority accordingly, except the pay and allowances. We make it clear that this order is passed for and is
applicable to the present applicant only. The O.A. is disposed of accordingly. No order as to cost.†The same has been assailed by both the petitioner
and State of Odisha in W.P.(C) No.15392 of 2011 and W.P.(C) No. 17011 of 2012 respectively.
5. It is submitted by learned counsel for the petitioner (Sri Ajay Kumar Behera) that learned Tribunal on consideration of rival contentions of the
parties, came to a categorical conclusion that persons, who secured nominal marks both in individual papers and in aggregate without being called for
viva voce test, were given appointment. Likewise, many candidates who secured less than 33% mark (after relaxation) in individual papers were
called for viva voce test and were given appointment, whereas many candidates like that of the petitioner, who secured more than pass marks in each
paper and more than 40% of marks in aggregate have been denied appointment. Learned Tribunal, on consideration of materials on record, although
found that the Director General of Police had wrongly interpreted the Rules in an arbitrary manner giving rise to appointment of less qualified and less
meritorious candidates, but most erroneously directed to place the petitioner below the persons appointed pursuant to the recruitment test dated
22.06.1988. In fact, the petitioner is entitled to be placed above the candidates, who secured less marks. Such a finding is not sustainable in the eyes of
law and the petitioner is entitled to be placed above the persons who have been recruited on 22.06.1988.
6. Learned State Counsel referring to the contentions raised in W.P.(C) No.17011 of 2012, assailed the order in O.A. No.211 of 2010 stating that the
Original Application was hopelessly barred by time. The Original Application was also hit by principles of res judicata as the contentions raised by
learned counsel for the petitioner had already been agitated and decided in Original Application in O.A. No.206 of 1989 and subsequently confirmed
by Hon’ble Supreme Court. Appointment pursuant to recruitment test dated 22.06.1988 has been challenged in O.A. No.211 of 2010, after more
than 12 years. Even if the petitioner claims similar benefit as that of the candidates selected pursuant to the selection test dated 22.06.1988, he should
have approached learned Tribunal within a reasonable time. Having not done so, the Original Application is barred by limitation. Even otherwise,
learned Tribunal could not have reopened the issue settled pursuant to the direction in OA No.206 of 1989 and subsequent proceedings. The petitioner
has never challenged his termination order at any point of time before 2008. Hence, he prayed for dismissal of the Original Application.
7. We have heard learned counsel for the parties and perused the materials on record including the impugned judgment. Pursuant to directions made in
OA No.206 of 1989, disposed of on 03.01.1997, Ajay Kumar Bhuyan and others including State of Odisha filed two separate Civil Appeals before the
Hon’ble Supreme Court and the Hon’ble Supreme Court, vide order dated 03.12.2002, rejected the said Civil Appeals and confirmed the order
passed in OA No.206 of 1989. The petitioner (Sri Behera) had never challenged his order of termination at any time. It is only after disposal of the
SLPs in Supreme Court on 03.12.2002, he woke from his great slumber and filed representations for extending the benefit of said judgment in his
favour. For non-disposal of his representations, the petitioner had approached the learned Tribunal in OA No.377(C) of 2008, which was disposed of
on 27.03.2008 with an innocuous direction to send the paper book in the said Original Application to the authorities to consider his grievance.
Subsequently, the representation of Sri Behera was rejected on 03.02.2009. Assailing the same, the petitioner had filed Original Application bearing
O.A. No.512(C) of 2009 before the Cuttack Bench of learned Tribunal, which was subsequently transferred to the Principal Bench at Bhubaneswar
of the learned Tribunal and renumbered as OA No.211 of 2010.
8. Be that as it may, the petitioner essentially seeks to challenge the selection of the year 1988 and for extension of the benefit of the judgment passed
in OA No.206 of 1989, in his favour, which was subsequently confirmed by Hon’ble Supreme Court by judgment dated 03.12.2002. On perusal of
record, it appears that the petitioner thereafter had only made representations to the authorities for redressal of his grievance and lastly filed OA
No.377(C) of 2008. Direction of learned Tribunal in OA No.377(C) of 2008 cannot be a fresh cause of action for the petitioner to agitate his
grievance, which has become stale by the time of filing of the said Original Application.
Law is well-settled in the case of C.Jacob Vs. Director of Geology Min.Indus.Est. & Anr., reported in (2008) 10 SCC 115 that direction for disposal
of representation will not give rise to a fresh cause of action to maintain an Original Application before the learned Tribunal seeking for a relief which
has become stale. It appears that the State authorities raised the issue of limitation before the learned Tribunal, which has not been properly dealt with.
Learned Tribunal holding that the cause of action of the petitioner arose after disposal of his representation only on 03.02.2009, directed for
reinstatement of the petitioner. The finding of the learned Tribunal to the effect that the Original Application in OA No.211 of 2010 is in time, is
erroneous, inasmuch as the same is hopelessly barred by time. As held by learned Tribunal more than two decades have passed by the time the
selection of 1988 was challenged. As such, entertaining an application after two decades after the initial cause of action shows the latches on the part
of the petitioner. As such, the order passed in OA No.211 of 2010 is not sustainable in the eyes of law and is liable to be set aside.
9. Accordingly, the impugned order dated 08.04.2011 passed by learned Tribunal in OA No.211 of 2010 is set aside. Consequently, W.P.(C) No.17011
of 2012 filed by the State of Odisha succeeds and W.P.(C) No.15392 of 2011 filed by Sri Ajay Kumar Behera is dismissed holding that OA No.211 of
2010 was barred by limitation. Ordered accordingly.
