The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.1017 of 2022 Sambit Rekha Jena …. Petitioner Mr. S.C. Devdash, Advocate -versus- State of Odisha & Ors. …. Opposite Parties Mr. S. Rath, ASC CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY ORDER 12.04.2023 Order No 05. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode.
Legal Reasoning
2. Heard Mr. S.C. Devdash, learned counsel for the Petitioner and Mr. S. Rath, learned Addl. Standing Counsel appearing for the Opp. Parties. 3. The Petitioner has filed the present writ petition inter alia with the following prayer:- <Under the above circumstances, it is humbly prayed that the writ petition may be allowed; (A) a writ of mandamus or an appropriate writ may be issued commanding the opposite parties to regularize the services of the petitioner as Trained Graduate Teacher in Arts in terms of the resolution dated 08.12.2008 issued by the Government of Odisha in School and Mass Education Department, Bhubaneswar under Annexure-6 and the provisions of the Contractual Appointment Rules, 2013 under Annexure-7 within a time to be stipulated by the Hon’ble Court. (B) And any other order/orders or direction/direction may be issued so as to give complete relief to the petitioner. // 2 // And for this act of kindness, the Petitioner shall as in duty bound remain ever pray.= 4. It is contended that the Petitioner on being found suitable and eligible pursuant to the advertisement issued under Annexure-1, he was appointed as a Contract Teacher vide letter issued on 24.12.2012 under Annexure-2 and consequential order of engagement so issued by the District Education Officer on 07.03.2013 under Annexure-3 series. 4.1. Learned counsel for the Petitioner contended that on being so engaged as a Contract Teacher, the Petitioner was allowed to continue as such and the Petitioner is also continuing in the same capacity as on date. But when his services was not regularized after completion of 6 years of contractual engagement, the Petitioner is before this Court in the present writ petition inter alia with the prayer as indicated hereinabove. 5. Mr. Rath, learned ASC on the other hand made his submission basing on the stand taken in the counter affidavit. It is contended that since the Petitioner has acquired the B.Ed. Special Education (Mental Retardation) from West Bengal State University, Kolkata and the said qualification since is not equivalent to the B.Ed. degree of Utkal University, the Petitioner is not eligible for his absorption in the regular establishment. In support of the same, Mr. Rath brought to the notice of this Court the equivalency of B.Ed. qualification so issued by the Utkal University vide Annexure-B/3. 5.1. It is contended that even though vide Annexure-B/3 Utkal University has declared the B.Ed. degree offered by different Universities which also includes West Bengal State University, Kolkata, placed at Sl. No. 64 of the list as equivalent to the B.Ed. Page 2 of 6 // 3 // degree of Utkal University, but since the Petitioner has obtained the B.Ed. Special Education (Mental Retardation) from West Bengal State University, it cannot be held as equivalent to the B.Ed. degree of Utkal University. Accordingly, it is contended that Petitioner is not eligible for his absorption in the regular establishment. 6. Mr. Devdash, learned counsel for the Petitioner on the other hand contended that the Petitioner at the time of his recruitment produced the B.Ed. certificate so obtained from West Bengal State University, Kolkata vide Annexure-4 series and the Petitioner on being found suitable was provided with the appointment. So, at this belated stage and after allowing the Petitioner to continue for more than 10 years, the Opp. Parties cannot take a plea that the Petitioner has been wrongly selected and appointed. It is also contended by Mr. Devdash that in the meantime Govt. in the Department of School & Mass Education vide communication dtd.28.01.2021 under Annexure-10 series has already created 3884 nos. of regular post of teachers during the year 2018-19 in abolition of equal nos. of contractual posts of teacher engaged in different Government and upgraded High Schools of the State during the year 2012-13. In the list enclosed to the communication dtdd.28.01.2021, name of the Petitioner finds place at Sl. No. 2468. It is accordingly contended that in view of such action of the Govt. in creating regular posts as reflected in Annexure-10, Petitioner is eligible for his absorption. 7. Having heard learned counsel for the Parties and after going through the materials available on record, it is not disputed that the Petitioner has acquired the B.Ed. degree in Special Education (Mental Retardation) from West Bengal State University, Kolkata. As reflected in Annexure-B/3, Utkal University has declared the Page 3 of 6 // 4 // B.Ed. degree offered by West Bengal State University, Kolkata as equivalent to the B.Ed. degree of Utkal University. The stand taken by the O.P. No. 3 in the counter that the B.Ed. Special Education (Mental Retardation) is not equivalent to the B.Ed. Regular degree as per the considered view of this Court is not justified. 7.1. In view of the fact that Petitioner was duly selected and engaged by the Opp. Parties in accepting the B.Ed. certificate so produced by the Petitioner and Petitioner having been allowed to continue as such for the last 10 years, no fault can be attributed to the Petitioner for his engagement and continuance. This Court in the case of Bikash Mahalik Vs. State of Odisha & Ors. has taken the following view in similar issue:- <8. There is no dispute with regard to the fact that the petitioner appeared in the written test and secured 234 marks out of 400 marks and also secured 31 marks in practical skill test out of 50. Opposite party no.3 prepared a select list taking into account marks secured in the written test as well as practical skill test and placed the petitioner at Sl. No.2 of the merit list. Subsequently, opposite party no.2 found out that marks secured in the practical skill test, being qualifying in nature, should not be added to the marks secured in the written test. Consequentially, he directed opposite party no.3 to redraw the final merit list on the basis of marks secured by the petitioner in the written test i.e. 234 marks excluding the marks secured in the practical skill test, in which the petitioner had qualified by securing 31 marks, which is above the qualifying mark of 15, out of 50 marks. But fact remains pursuant to merit list prepared by opposite party no.3, the petitioner has already joined and his service book has been opened. The amount towards GIS has been deducted from his salary and he has also been enrolled in the contributory pension scheme of the Page 4 of 6 // 5 // Government. As a result, a right has been accrued in his favour to continue in his post. Now, after lapse of one year 4 months, as per direction given by opposite party no.2, opposite party no.3 has redrawn the merit list and called upon the petitioner to show-cause why he shall not be removed from service. Whether such action of opposite party no.3 is hit by principle of estoppel, is the short question to be decided in the facts and circumstances of this case. 27. In Pratima Sahoo (supra), this Court held that the order of disengagement of the petitioner from the post of Sikhya Sahayak, pursuant to decision of the district administration, having found qualified in the selection process and appointed after resigning from her erstwhile post of Anganwadi Worker and having worked for six to eight months, amounts to putting the petitioner in prejudicial and disadvantageous position and the reason assigned for later finding the petitioner not suitable for securing less marks than other meritorious candidates do holds good, the petitioner cannot be found faulted by the mistake committed by the appointing authority in calculating the percentage. Consequentially, direction was given to absorb the petitioner forthwith applying the doctrine of promissory estoppel in the said case. 28. In view of the law and fact, as discussed above, the irresistible conclusion is that the show-cause notice dated 31.03.2015 under Annexure-13 issued by opposite party no.3, the letter dated 09.02.2015 under Annexure-13/1 issued by opposite party no.2 to opposite party no.1 and letter dated 26.03.2015 under Annexure-13/2 issued by the Government of Odisha, Revenue and Disaster Management Department to opposite party no.2 cannot sustain. Therefore, the same are liable to be quashed and hereby quashed. Pursuant to interim order passed on 07.04.2019 by the Odisha Administrative Tribunal since the petitioner is still continuing, he shall be Page 5 of 6 // 6 // allowed to continue with all service and financial benefits as due and admissible to him in accordance with law.= 7.2. Therefore, placing reliance on the decision in the case of Bikash Mahalik and the decision of the Govt. so taken in Annexure-10, the prayer as made by the Petitioner needs to be allowed. The Opp. Parties are directed to regularize the services of the Petitioner within a period of three (3) months from the date of receipt of this order.
Decision
8. The writ petition is disposed of accordingly. (Biraja Prasanna Satapathy) Judge Sneha Page 6 of 6