COMMUNICATION CLIENT INTERVIEWING

COUNSELLING
AND ADVOCACY SKILLS

Submitted by :
VANSHIKA LAMBA
BA.LLB
SEM-4
SEC-A
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Sujit Kumar Nag vs. The District Judge-Cum-Chairman, District
Recruitment Committee, Judgeship of Sonepur ( AIR 2015 , SCC 8980 )

Sujit Kumar Nag : Petitioner

The District Judge-cum-Chairman, District Recruitment Committee,

Judgeship of Sonepur : Opposite Party

Judges: The Hon'ble MR. Justice B.K.Nayak and the Hon'ble DR. Justice
D.P.Choudhury

This case related to the matter of an application under Articles 226 and 227 of the
Constitution of India, 1950 . The Challenge has been made to the action of the opposite party
in issuing order dated 02.07.2014 (Annexure-4) by which the enrolment of the petitioner as
Candidate Peon was stopped and issuance of fresh advertisement to fill up the said vacancy.

Facts of the Case :

The case was a writ petition in pursuant to an advertisement dated 12.12.2012 issued
by the opposite party to fill up the post of Candidate Peon as per Rule- 71 of the General
Rules and Circular Orders. The petitioner applied for the said post. After due selection,
appointment letter dated 24.03.2014 was issued to the petitioner.

The above selection was made after due publication of the advertisement in the newspaper
and in the notice board. Out of 22 selected Candidate Peons, 14 candidates were already
absorbed in Group-D March, 2014. But, the petitioner along with others were asked to join as
Candidate Peon and they continued to work. All on a sudden on 02.07.2014 (Annexure-4), a
letter was issued to disengage the petitioner because of the letter issued from this Court on
28.06.2014 in the administrative side.

Another advertisement was issued in the later part of 2014 for filling up 13 posts of
Group-D when the petitioner was expecting his regularization in the Group-D post for which
he preferred a representation on 09.01.2015 vide Annexure-7. The opposite party sought for
clarification from the High Court and the petitioner came to know that due to the instruction

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of this Court and the decision of the Hon'ble Supreme Court in the case of Renu and others -
V- District and Sessions Judge, Tis Hazari and another; AIR 2014 SC 2175, his regularization
is taking backseat. It is stated by the learned counsel for the petitioner, the said decision of
the Hon'ble Supreme Court is not applicable to the case of the petitioner as he was appointed
after due selection. It is the further claim of the petitioner that since some persons from the
very selected list have already been absorbed in Group-D post, his disengagement is not only
contrary to law but also violates Articles 14 and 16 of the Constitution of India.

Points for Determination :

The main points for determination are as to whether

(I) the petitioner has been recruited legally to the post of Candidate Peon and his
disengagement is legal and proper and

(II) Whether the petitioner is entitled to be absorbed against the regular vacancy of Group-D
post?

Rule-71, 73 and 75 of the G..C.O said :

Rule 71 about candidate peons:-

The Nazir shall keep a register of candidates for filling up leave and permanent vacancies.
These candidates will be enrolled under orders of the Judge-in-charge of Nazarat and their
number shall not exceed 15 per cent of the total strength of permanent peons employed at any
station subject to the minimum of one candidate.

Rule 73 relating to the appointment of process-servers:-

No process server shall be appointed except from these candidates and orderlies, office peons
and night watchmen will be eligible for appointment as process servers without being
enrolled as candidates.

Rule 75 relating to vacancies being filled –

Vacancies occurring at any Judgeship shall ordinarily be filled up by appointment
respectively of peons and enrolled candidates attached to that Judgeship .

From the aforesaid provisions, it is clear that 50% of the total strength of the
permanent peons shall be from Candidate Peons and unless a person is Candidate Peon, he
cannot be a Process-Server. Moreover, the regular vacancy in the judgeship has to be filled
up by appointment of the Peons and enrolled Candidate Peons attached to the Judgeship. The
aforesaid provisions under G.R.C.O. have been incorporated by virtue of the power conferred
on the High Court to make rules under Section 122 of CPC read with Section 128 of CPC. It
appears that the Rules have been made with the previous approval of the State Government.
So, the recruitment and appointment of Process-Server is under the relevant Rules of
G.R.C.O. and it cannot be said that the appointment is arbitrary one.
 Rule-11(e) of Orissa District and Subordinate Court's Non-Judicial Staff Services
(Method of Recruitment & Conditions of Service) Rules, 2008 says that 50% of the posts of
Process Servers shall be made by promotion on the basis of Merit-cum-Seniority from
amongst Peons/Orderlies and other Group-'D' employees who possess the requisite
qualification and rest 50% of the posts shall be made by direct recruitment from open market
who have had minimum VIII standard or equivalent qualification.

The Letter dated on 28.06.2014 under Annexure-B to the counter affidavit referred to by the
learned Additional Government Advocate shows that the Candidate Peon appointed was
abandoned and instruction was issued by the High Court to undertake recruitment of Group-C
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and Group-D employees in compliance with the Rules, 2008. It appears that such letter was
issued in order to comply the direction of the Hon'ble Supreme Court. But later on, on
10.12.2014 (Annexure-C), the High Court issued clarification to the effect that the Candidate
Peons who have been enrolled as per Rule-71 of G.R.C.O. prior to 12.02.2014 and waiting
for their regularization would not be covered by the judgment of the Hon'ble Supreme Court.
So, instruction was issued in administrative side to take up their cases for regularization at the
time of giving appointment to the candidates to be selected in the ongoing recruitment
process. From the aforesaid letters of the High Court, it is made clear that Rule-71 of
G.R.C.O. would continue to reign in the matter if the requirements of the Hon'ble Supreme
Court are fulfilled by itself. It is also emanating from the aforesaid letters that the Candidate
Peon, waiting for their regularization, would be regularized if the process of recruitment has
already been initiated and finalized prior to 12.02.2014 when the judgment of the Hon'bl
Supreme Court was pronounced.

On the other hand, the letter dated 28.06.2014 of the High Court was somewhat diluted
by the latest letter dated 10.12.2014 (Annexure-C). It appears from that letter that after the
recruitment made to the petitioner for the post of Candidate Peon, the query was made by the
opposite party from time to

Judgement of the case :

Plea by the petitioner :

1. To quash the order dated 02.07.2014 (Annexure-4) issued by the opposite party and

2. To direct for regularization of the petitioner against a regular vacancy of Group-D post.
We are of the view that the letter of disengagement dated 02.07.2014, being contrary to law is
liable to be quashed, the Court do so.

The Supreme Court held that the petitioner should be reinstated as Candidate
Peon by the opposite party within a period of two weeks from today; and After the
reinstatement of the petitioner as Candidate Peon, he would be absorbed against regular
Group-D vacancy within a period of two weeks from the date of his reinstatement as
Candidate Peon with due regard to the roaster under the Orissa Reservation of Vacancies in
Posts and Services (For Scheduled Castes and Scheduled Tribes) Act, 1975 maintained
against the regular vacancies.

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