State Of Odisha And Others vs Rashmita Das Vs

Arindam Sinha, ACJ.

Mr. Swain, learned advocate, Additional Government Advocate appears on behalf of applicants-appellants. He submits, State is aggrieved by judgment dated 5th May, 2023 of the learned single Judge. There is merit in the appeal. It was presented on reported delay of 272 days. Application has been filed for condonation.

Mr. Jena, learned advocate appears on behalf of respondent and submits, objection has been filed. There is no explanation regarding delay beyond prescribed period of 30 days for preferring the appeal. Reported delay is of 272 days. As per the explanation, impugned order dated 5th May, 2023 received views from the law department on 13th November, 2023. It is itself sufficient for the application to be dismissed and consequently, the appeal. He relies on order dated 22nd January, 2021 of the Supreme Court in Special Leave Petition (Civil) Diary no.11989/2020 (The Commissioner of Public Instruction and others v. Shamshuddin).

Mr. Swain in reply reiterates, there is merit in the appeal. He draws attention to paragraph 6.7 in impugned judgment. The paragraph is reproduced below.

“6.7. In view of such continuance of the Petitioner for the last 20 years and placing reliance of the decision of the Hon’ble Apex Court as cited (supra), this Court is of the view that the claim of the Petitioner for her absorption in the regular establishment deserves favourable consideration by the Opposite Parties.

Not only that since the Petitioner is continuing for the last 20 years, this Court is also of the view that the Petitioner is continuing as against a substantive vacant post. While holding so, this Court directs the Opposite Parties to take appropriate step for absorption of the Petitioner in the regular establishment within a period of three (3) months from the date of receipt of this order.”

(emphasis supplied)

He lays emphasis that there was view taken to say petitioner is continuing as against vacant post since she had continued for 20 years. He submits, the delay should not be held against the contention, to be adjudicated in the appeal.

We do see that the learned single Judge took view respondent is continuing as against a substantive vacant post. Respondent having had continued for 20 years, we see the view as necessity for a post, which required her to continue to work for 20 years. Respondent obtained relief by impugned judgment.

Respondent opposes the application on submission that admittedly much beyond prescribed period to prefer the appeal, view from law department was obtained. Subsequently, other steps have been alleged resulting in reported delay of 272 days. It is no explanation at all.

We reproduce below a paragraph from Shamshuddin (supra).

“We have also categorized such kind of cases as “certificate cases” filed with the only object to obtain a quietus from the Supreme Court on the ground that nothing could be done because the highest Court has dismissed the appeal. The objective is to complete a mere formality and save the skin of the officers who may be in default in following the due process or may have done it deliberately. We have deprecated such practice and process and we do so again. We refuse to grant such certificates and if the Government/public authorities suffer losses, it is time when concerned officers responsible for the same, bear the consequences. The irony, emphasized by us repeatedly, is that no action is ever taken against the officers and if the Court pushes it, some mild warning is all that happens.”

The Supreme Court went on to dismiss the special leave petition on importing cost of ₹25,000/-. In this case we do not think objective for filing the appeal is a mere formality, to save some officers who may be in difficulty. State’s contention appears to be non-existence of post. We have already interpreted view taken by the learned single Judge on this aspect. As such we condone the delay and admit the appeal. The application is disposed of.

By reason of aforesaid we direct appellant to create a post in respect of respondent having put in 20 years of continuous service, to follow through by considering her case for regularization, favorably as directed by the learned single Judge.

Impugned judgment is modified to above extent. We expect there will be prompt action, contrary to conduct in filing the appeal. The process must be concluded within 12 weeks from date of communication of certified copy of this judgment

The appeal is disposed of..

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