The main legal point established in the judgment is that appointments to public posts must adhere to the constitutional requirements, including advertising vacancies and following statutory rules. The distinction between statutory rules and executive instructions was emphasized, highlighting that executive instructions cannot amend or supersede statutory rules.

JUDGMENT :

B.S. Chauhan, C.J. - This writ petition was filed on 3.4.2001 seeking a direction to the opposite parties to allow the Petitioner to continue as Candidate Peon and to consider his case for regular appointment on the post of Process Server whenever vacancy occurs in future.

2. The facts and circumstances giving rise to the case are that Petitioner applied for the post of Candidate Peon and in pursuance of the intimation dated 27.12.1993 issued by the Registrar, Civil Courts, Kalahandi-Nuapada, opposite party No. 2, the Petitioner appeared in the written test held for the said post. After having been duly selected, the Petitioner vide letter dated 2.2.1994 was directed to appear before the District Judge, Kalahandi, Nuapada, opposite party No. 1 on 11.2.1994 for interview (Annex.-1). Petitioner also passed the medical test and submitted two character certificates for being enrolled as a Candidate Peon. Petitioner was enrolled as a Candidate Peon vide order dated 21.2.1994 and attached vide order dated 26.4.1994 (Annex.-3) to the office of Civil Judge (Sr. Division), Dharamgarh. Petitioner was relieved from Bhawanipatna and was directed to join at Dharamgarh on 1.5.1994 and he joined therein. Petitioner had not been permitted to work as his name has been removed from the list of candidate peons vide order dated 10.6.1994 He made several representations to continue as Candidate Peon, but in vein. Other similarly situated persons have been continuing as Candidate Peons. Hence this writ petition.

3. Sri D.K. Misra, learned Counsel for the Petitioner has submitted that Petitioner has been discriminated by removing his name from the list of Candidate Peons, while other similarly situated persons have been retained and subsequently some of them have been appointed as Process Server in substantive capacity. Petitioner made several representations but the same have not been decided by the learned District Judge. Thus, he is entitled for the relief sought.

4. On the contrary, Mr. P. Panda, learned Addl. Standing Counsel has opposed the petition contending that the name of the Petitioner has been removed the list of Candidate Peons in June 1.994, but he filed the petition after expiry of seven years in 2001. Thus there has been inordinate delay on his part in filing the petition. The petition is liable to be dismissed on that ground alone.

It has further been submitted that during the pendency of the writ petition, State Government has framed the Orissa District and Subordinate Courts' Non-Judicial Staff Services (Method of Recruitment and Conditions of Service) Rules, 2008 (hereinafter called the 'the Rules, 2008'), which are in force and the Rules, 2008 provide 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 the rest 50% of the posts shall be made by direct recruitment from open market who have had minimum VIII standard or equivalent qualification. In view thereof, the question of filling filing up of the vacancies under Clause 75 of the General Rules and Circular Orders (Civil) (hereinafter called the 'GR & CO') does not arise as the Rules, 2008 provide for making appointment of Process Server from the Peons/Orderlies and other Group-'D'. Petitioner, admittedly, does not fall in either of those categories. It has been contended that the GR & CO is merely the Executive Instructions and the same cannot supersede the statutory rules framed under the proviso to Article 309 of the Constitution of India. Therefore, this petition is devoid of any merit and is liable to be dismissed.

5. However, taking into consideration the submissions made by Sri Misra that the Petitioner has been deprived from regularisation as a Process Server as per the provisions of the GR&CO, we have examined the GR&CO which confer certain right of appointment on a person who had been appointed without adverti