The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.A. No.62 of 2025 Choudhury Saubhagya Mohan Dash ..... Appellant versus- State of Odisha and others ..... Respondents Advocates appeared in this case: For Appellant : Mr. P.K. Rath, Sr. Advocate For Respondents : Mr. Pitambar Acharya, Advocate General with Mr. Saswat Das, Addl. Govt. Advocate Mr. Sanjib Swain, Standing Counsel for OSSC Mr. Gautam Misra. Sr. Advocate (for Caveator) Miss Pami Rath, Sr. Advocate (for Caveator) W.A. 3433 of 2024 Punyasha Seeyaram and others ..... Appellants State of Odisha and others ..... Respondents versus- Advocates appeared in this case: For Appellants For Respondents : Ms. Kaveeta Wadia, Sr. Advocate Mr. Shashank Tripathy, Advocate : Mr. Pitambar Acharya, W.A. no.62 of 2025 and batch Page 1 of 19 Advocate General with Mr. Saswat Das, Addl. Govt. Advocate Mr. Sanjib Swain, Standing Counsel for OSSC Mr. Manoj Mishra, Sr. Advocate for Caveator W.A. No.3459 of 2024 Swagat Swain and others ..... Appellants versus- State of Odisha and others ..... Respondents Advocates appeared in this case: For Appellants
Legal Reasoning
: Mr. Budhadev Routray, Sr. Advocate For Respondents : Mr. Pitambar Acharya, Advocate General with Mr. Saswat Das, Addl. Govt. Advocate Mr. Sanjib Swain, Standing Counsel for OSSC Mr. G. Misra, Sr. Advocate (for Caveator) Ms. Pami Rath, Sr. Advocate (for Caveator) W.A. No.91 of 2025 Alka Mahima Surin ..... Appellant State of Odisha and others ..... Respondents versus- Advocates appeared in this case: For Appellant : None For Respondents : Mr. Mr. Pitambar Acharya, W.A. no.62 of 2025 and batch Page 2 of 19 Advocate General with Mr. Saswat Das, Addl. Govt. Advocate Mr. Sanjib Swain, Standing Counsel for OSSC Mr. Gautam Misra. Sr. Advocate (for Caveator) Ms. Pami Rath, Sr. Advocate (for Caveator) W.A. No.92 of 2025 Albert Surin ..... Appellant State of Odisha and others ..... Respondents versus- Advocates appeared in this case: For Appellant : None For Respondents : Mr. Mr. Pitambar Acharya, Advocate General with Mr. Saswat Das, Addl. Govt. Advocate Mr. Sanjib Swain, Standing Counsel for OSSC Mr. Gautam Misra. Sr. Advocate for Caveator W.A. No.94 of 2025 Alina Ankita Surin ..... Appellant State of Odisha and others ..... Respondents versus- Advocates appeared in this case: For Appellant : None For Respondents : Mr. Pitambar Acharya, Advocate General with Mr. Saswat Das, Addl. Govt. Advocate W.A. no.62 of 2025 and batch Page 3 of 19 Caveator Mr. Sanjib Swain, Standing Counsel for OSSC Mr. Gautam Misra. Sr. Advocate for CORAM: THE HON'BLE MR. JUSTICE ARINDAM SINHA, ACTING CHIEF JUSTICE AND THE HON'BLE MR. JUSTICE M.S.SAHOO J U D G M E N T ------------------------------------------------------------------------------------------------------- Date of hearing and judgment: 11th March, 2025 ------------------------------------------------------------------------------------------------------- ARINDAM SINHA, ACJ. 1. Six writ appeals have been listed and have been called on for hearing. Mr. Routray, learned senior advocate appears on behalf of appellants in W.A. no.3459 of 2024. Miss Wadia, learned senior advocate appears on behalf of appellants in W.A. no.3433 of 2024. Mr. Rath, learned senior advocate appears on behalf of appellants in W.A. no.62 of 2025. None appears on behalf of appellants in W.A. nos.91, 92 and 94, all of 2025. 2. Impugned in the appeals is judgment dated 3rd December, 2024 of the learned single Judge. Mr. Routray submits, his clients’ contention stands recorded in paragraph-8. Rule 4(b) of Combined Technical Services Recruitment Examination Rules, 2022 does not provide restrictions on allowing candidates with higher W.A. no.62 of 2025 and batch Page 4 of 19 qualification. The qualification required, though diploma for recruitment to post of Junior Engineer, candidates having higher qualification by degree cannot thus be excluded. He points out from the paragraph, case of degree engineers was, they are not aggrieved by the advertisement nor the rules but they claim eligibility to apply for the post. In allowing them to also apply it would not cause prejudice to diploma holders. Two years of the degree course is equivalent to the required diploma. 3. He draws attention to the 2022 rules. He submits, eligibility criteria for direct recruitment, in supersession of all earlier rules or resolutions or executive instructions or orders have been provided for by overriding effect given on rule 8. Rule 4 provides for eligibility conditions. The post of Junior Engineer has been said to have, inter alia, minimum educational qualification as noted in column-3 of schedule-I. Said column gives the requirement as by Odisha Diploma Engineering Service (Method of Recruitment and Condition of Services) Rules, 2012. Drawing attention to the 2012 rules he submits, eligibility has been prescribed under rule 6, by clause (b). The clause provides for possession of a diploma in engineering or an equivalent qualification from an institution recognized by Odisha Council of Technical Education and W.A. no.62 of 2025 and batch Page 5 of 19 Vocational Training. He submits, going by subsequent mandate in the 2022 rules, prescribed qualification is but the minimum. His clients have degree in engineering. It cannot be disputed that a degree holder possesses higher qualification than a diploma holder. He reiterates, two years of the course is equivalent to the diploma. 4. Mr. Routray draws attention to counters filed by State through Under Secretary to Government, Department of Water Resources. He submits, same counter has been filed in some writ petitions that have given rise to the appeals. With reference to paragraph-9 in the counter he submits, the Under Secretary has said that there is no restriction for candidates who possess higher qualification. Relied upon sentence in the paragraph is reproduced below. “9. … … It is reiterated that there is no restriction for the candidates who possess higher qualification such as B.Tech. in Civil Engineering through Diploma in Civil Engineering to participate in the recruitment process of Junior Engineer. … …” (emphasis supplied) 5. He relies on view taken by a Division Bench of the Bombay High Court by interim order dated 11th December, 2024 in Writ Petition no.18052 of 2024 (Akash Santosh Deshmukh and others v. Brihanmumbai Municipal Corporation and another), W.A. no.62 of 2025 and batch Page 6 of 19 paragraphs-20 to 24. He submits, there is no intelligible differentia for the classification contended by State, to exclude degree holders from applying for post of Junior Engineer. By the view taken the Bombay High Court, after having given option to the Municipality, directed relief to petitioners, similarly placed as his clients. 6. Mr. Routray submits, his clients’ contentions urged before the learned single Judge were not dealt with. He draws attention to paragraph-26 in it to submit, it is the reasoning paragraph for denying his clients the relief. Impugned judgment be reversed in appeal and there be appropriate direction for steps being taken to allow his clients to participate in the recruitment of Junior Engineers. 7. Miss Wadia, learned senior advocate submits on the hierarchy of posts making up the cadres. Under the rules of 2012 there are two posts. The feeder post is the post of Junior Engineers, to be filled up by direct recruitment. There is 100% promotion to the other post of Assistant Engineer, as mentioned in said rules. There is further promotional avenue open to Assistant Engineers, by lateral entry into the post of Assistant Executive Engineer. Post of Assistant Executive Engineer is a post that has essential eligibility requirement of engineering degree. Hence, there is no logic or W.A. no.62 of 2025 and batch Page 7 of 19 rationale in excluding degree holders from applying to the lowest feeder post of Junior Engineer, which post has promotional avenue up to and beyond post of Assistant Executive Engineer because, posts above the latter are to be filled up only on promotion. She lays emphasis, the advertised post for recruitment being Junior Engineer by direct entry, is the feeder post. 8. She relies on judgments of the Supreme Court. (i) Puneet Sharma v. Himachal Pradesh State Electricity Board Limited and another reported in (2021) 16 SCC 340, paragraphs- 31 and 37. Paragraph-31 is reproduced below. “31. In the present case, what is evident from the rules is that direct recruitment to the post of JEs in HPSEB is to the extent of 72%. Undoubtedly, eligibility is amongst those who passed in matriculation or 10+2 or its equivalent qualification. However, this Court is of the opinion that the diploma holders’ contention that the minimum qualification is matriculation and that the technical qualification is diploma is incorrect. The minimum qualification for the post cannot be deemed to be only matriculation but rather that only such of those matriculates, or 10+2 pass students, who are diploma- holders would eligible. The term “with” in this category has to be read as conjunctive.” (ii) State of Uttarakhand v. Deep Chandra Tewari reported in (2013) 15 SCC 557, paragraph-11. W.A. no.62 of 2025 and batch Page 8 of 19 (iii) State of Haryana v. Abdul Gaffar Khan reported in (2006) 11 SCC 153, paragraph-7. (iv) Uma Shankar Sharma v. Union of India reported in (1980) 3 SCC 202, paragraph-5. She submits, the Supreme Court said that terms and conditions of service are intended to be construed reasonably and too technical a view can defeat the essential spirit and intent embodied in them. She relies on this decision and Deep Chandra Tewari (supra) to submit, there cannot be an embargo on candidates having higher qualification from participating in the recruitment for the post. 9. Mr. Acharya, learned advocate, Advocate General appears on behalf of State. At the outset we drew his attention to paragraph-9 in the counter, to the passage relied upon. He submits, the 2022 rules provide for procedure on eligibility. The 2012 rules provide for procedure of recruitment and conditions of service. Drawing attention to the 2012 rules he demonstrates, said rules prescribe procedure in the cadre, Odisha Diploma Engineers’ Service. Clause (k) under definitions rule 2 gives meaning of diploma to be 3 years diploma course in mentioned disciplines. Rule-3 constitutes the service to be of Junior Engineer and Assistant Engineer. He submits, rule 4 clearly prescribes procedure of direct recruitment for W.A. no.62 of 2025 and batch Page 9 of 19 post of Junior Engineer and promotion to the next post of Assistant Engineer. These two posts he reiterates, constitute the cadre as providing a feeder and promotional posts to fulfill all requirements including career progression. He then draws attention to rule-7 in the 2012 rules, clause (v). The clause is reproduced below. “7. xxx xxx xxx (v) Selection shall be based on career evaluation and objective type written test. (a) Weightage on career evaluation shall be 50% (fifty per cent) and objective type written test 50% (fifty per cent) (b) The career evaluation shall be made in the following manner, (i) High School Certificate: 20% (Twenty per cent) (ii) Certificate or Diploma in Engineering : 30% (Thirty per cent). … …” (emphasis supplied) He submits, unless a candidate possesses a diploma, he cannot be considered for selection. Contentions of equivalence and submissions made in regard thereto before the learned single Judge are of no relevance because even if two years in a degree course is assumed, though not admitted to be equivalent to a diploma, there is no mechanism for assessing the 30% as is required by clause (v) under rule-7. W.A. no.62 of 2025 and batch Page 10 of 19 10. Having submitted as above he answers our question regarding passage in paragraph-9 of the counter on submission that a diploma holder, after obtaining appointment as a Junior Engineer and carrying on to be promoted as Assistant Engineer can, in the meantime, obtain degree for being considered for entry to the post of Assistant Executive Engineer. 11. Mr. Acharya relies on judgments of the Supreme Court. (i) Chief Manager, Punjab National Bank v. Anit Kumar Das reported in (2021) 12 SCC 80, paragraph-17.3. He submits, the Supreme Court declared that it is for the employer to determine and decide relevancy and suitability of the qualifications for any post and it is not for the Court to consider and assess. (ii) Maharashtra Public Service Commission v. Sandeep Shriram Warade reported in (2019) 6 SCC 362, paragraph- 9. In this case the Supreme Court said, it is for the employer who is best suited to decide the requirements a candidate must possess according to needs of the employer and nature of work. He submits, a need of State is to fulfill the societal obligation to allow employment opportunity to diploma holders. W.A. no.62 of 2025 and batch Page 11 of 19 (iii) Zahoor Ahmad Rather v. Sheikh Imtiyaz Ahmad reported in (2019) 2 SCC 404, paragraph-26. He submits, the Supreme Court agreed with its earlier decisions on presence of rule, absence of which would make it impermissible to draw an inference that a higher qualification necessarily pre- supposes the acquisition of another, albeit lower qualification. The rule considered in the earlier decisions was rule-10 (a) (ii) in Kerala State and Subordinate Services Rules, 1958. (iv) Unnikrishnan CV and others v. Union of India and others available at 2023 SCC OnLine SC 343, paragraph-13. Mr. Acharya relies on a sentence in the paragraph, where the Supreme Court said that before the High Court appellants therein had attempted to justify their claim contending diploma is equivalent to a degree and as such being entitled for promotion, which has been negatived by the High Court and rightly so. 12. Mr. Acharya submits further, State has devised employment opportunity for diploma holders by the 2012 rules. Similar rules have also been formulated to provide employment for degree W.A. no.62 of 2025 and batch Page 12 of 19 holders. Impugned judgment is a good one. There is no error either in fact or in law. The appeals be dismissed. 13. Mr. Swain, learned advocate appears as Standing Counsel for respondent no.2. He submits, the Commission in publishing the notice for recruitment, required the candidates to have essential qualification of diploma. 14. Mr. M. Mishra, learned senior advocate appears on behalf of applicant, a diploma holder who lodged caveat in W.A. no.3433 of 2024. He adopts submissions already made on behalf of those opposing the appeals. Mr. G. Misra, learned senior advocate appears on behalf of applicant, a diploma holder who lodged caveat in W.A. no.62 of 2025. He distinguishes Puneet Sharma (supra) by reliance on paragraph-40, reproduced below. “40. As noticed previously, in addition to the above considerations, an amendment to the rules was made on 3-6-2020 declaring that those with higher qualifications are also entitled to apply or be considered for appointment. This amendment was brought in to clear all doubts and controversies and, in that sense, the amending provisions should be deemed to have been inserted from inception.” (emphasis supplied) W.A. no.62 of 2025 and batch Page 13 of 19 He submits further, submissions made by Miss Wadia stand recorded in paragraphs-9 and 11 of the judgment in Zahoor Ahmad Rather (supra). They were dealt with by paragraph-27 in the decision, reproduced below. “27. While prescribing the qualifications for a post, the State, as employer, may legitimately bear in mind several features including the nature of the job, the aptitudes requisite for the efficient discharge of duties, the functionality of a qualification and the content of the course of studies which leads up to the acquisition of a qualification. The State is entrusted with the authority to assess the needs of its public services. Exigencies of administration, it is trite law, fall within the domain of administrative decision-making. The State as a public employer may well take into account social perspectives that require the creation of job opportunities across the societal structure. All these are essentially matters of policy. Judicial review must tread warily. That is why the decision in Jyoti K.K. must be understood in the context of a specific statutory rule under which the holding of a higher qualification which presupposes the acquisition of a lower qualification was considered to be sufficient for the post. It was in the context of specific rule that the decision in Jyoti K.K. turned.” Miss Rath, learned senior advocate appears for a diploma holder, who filed caveat. She submits, the recruitment was by an online W.A. no.62 of 2025 and batch Page 14 of 19 process. On a candidate seeking to apply, only way he or she can would be by proceeding with the online application having only option on educational qualification to be diploma. She submits further, the 2012 rules for degree engineers do not require engineering degree for those entering by lateral entry from the diploma cadre. 15. We understand that the 2022 rules prescribe the recruitment procedure. In making the prescription there is provision for minimum eligibility criteria, for recruitments to the several cadres. Therefore the prescription by said rules cannot be relied upon, either as expansion on minimum or otherwise, as the minimum being essential. The prescription is by way of regulating procedure as per referred rules in column 3 of schedule-I. As such the eligibility criteria provided for by the referred rules in column 3, must have primacy. 16. There are separate rules promulgated in year 2012 to provide for two separate cadres. One is Odisha Diploma Engineering Service (Method of Recruitment and Conditions of Services) Rules, 2012 and the other, Odisha Engineering Service (Methods of Recruitment and Conditions of Services) Rules, 2012. Only difference between them is, the former having word ‘Diploma’ W.A. no.62 of 2025 and batch Page 15 of 19 between words ‘Odisha’ and ‘Engineering’ as the rules are called. Intention of State by the subordinate legislation is thus clear on providing for two separate cadres. One for diploma engineers and the other for degree engineers. It is State’s policy to appoint diploma engineers in a separate cadre. We accept contention of State that selection provided for in rule 7 of the diploma rules of 2012 will become difficult to work out in event degree holders apply on strength of their degrees. It may be that a degree holder has higher qualification than a diploma holder but to find the point and score in the degree course as would be equivalent to the score in the diploma is something nobody has attempted nor even tried to demonstrate to us. They are distinguishing facts. Here we add, the statement in the counter means, a diploma engineer also having degree, can apply for the post of Junior Engineer. 17. Declarations of law made by the Supreme Court in Anit Kumar Das (supra), Sandeep Shriram Warade (supra) and Zahoor Ahmad Rather (supra) all support contentions of State. Reliance on Unnikrishnan CV (supra), however, is of no aid to State because converse contention was negatived by the High Court and the Supreme Court said it was rightly so. The contention was that diploma is equivalent to degree. It follows that, judgments W.A. no.62 of 2025 and batch Page 16 of 19 of the Supreme Court in Puneet Sharma (supra), Uma Shankar Sharma (supra), Deep Chandra Tewari (supra) and Abdul Gaffar Khan (supra) do not come to aid of appellants. 18. In Puneet Sharma (supra) relied upon paragraphs- 31 and 37 must be understood in context of paragraph-40. Reproduced below is paragraph-11 from Deep Chandra Tewari (supra). “11. We are conscious of the principle that when particular qualifications are prescribed for a post, the candidature of a candidate possessing higher qualification cannot be rejected on that basis. No doubt, normal rule would be that candidate with higher qualification is deemed to fulfill the lower qualification prescribed for a post. But that higher qualification has to be in the same channel. Further, this rule will be subject to an exception. Where the prescription of a particular qualification is found to be relevant for discharging the functions of that post and at the same time, the Government is able to demonstrate that for want of the said qualification a candidate may not be suitable for the post, even if he possesses a “better” qualification but that “better” qualification has no relevance with the functions attached with the post.” (emphasis supplied) The Supreme Court was conscious of the principle that when particular qualifications are prescribed for a post, candidature of a W.A. no.62 of 2025 and batch Page 17 of 19 candidate possessing higher qualification cannot be rejected on that basis. However, the Court also pointed out the principle being subject to an exception. In this case we are satisfied that the Government has been able to demonstrate separation of cadre, which implies that work of Junior Engineer can be done by a diploma holder, while work of an Assistant Executive Engineer can only be executed by those having higher qualification of degree in engineering. Moreover, declaration of the principle and the exception was in context of facts of that case, where requirement was of B.Ed. degree and there were persons holding B.Ed. with specialization in vocational education asking to be considered for appointment as assistant teacher at primary level. There was also reliance on paragraph-7 in Abdul Gaffar Khan (supra). Facts in that case can be distinguished as the Supreme Court upon close scrutiny of the advertisement issued found, it did not anywhere stipulate diploma is the required qualification. 19. Proceeding to assume that a diploma engineer appointed in the post of Junior Engineer finds promotion to become Assistant Engineer, he in the meantime, if improved himself to obtain the degree, can then apply for ‘lateral entry’ to post of Assistant Executive Engineer on strength of subsequently acquired degree. W.A. no.62 of 2025 and batch Page 18 of 19 There is no promotional avenue from post Junior Engineer to post Assistant Executive Engineer. Entry into the latter is direct, on having eligibility of possessing engineering degree followed by selection on merit. There is no scope of otherwise ‘lateral entry’ for diploma engineers to the cadre of degree engineers provided for by their rules of 2012. It follows that said rules for degree engineers does not mention eligibility in respect of diploma engineers. 20. Impugned judgment needs no interference. The appeals are thus dismissed. ( Arindam Sinha ) Acting Chief Justice ( M.S. Sahoo ) Judge Gs/Radha Prasant Signature Not Verified Digitally Signed Signed by: RADHARANI JENA Reason: Authentication Location: OHC Date: 13-Mar-2025 15:53:59 W.A. no.62 of 2025 and batch Page 19 of 19