✦ High Court of India

Chandramani Jena v. State of Orissa) and further be pleased to direct the Opp.Party No

Case Details

IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.21887 of 2013 (Application under Articles 226 and 227 of the Constitution of India) A.F.R. Prafulla Kumar Sahoo … Petitioner -versus- State of Odisha & others … Opposite Parties Advocates appeared in the case through hybrid mode: For Petitioner : Mr.P.R.Chhatoi, Advocate. -versus- For Opposite Party Nos.1 to 4 : Mr. S.N.Patanaik, A.G.A --------------------------------------------------------------------------- CORAM: JUSTICE SASHIKANTA MISHRA JUDGMENT 19.04.2024. Sashikanta Mishra,J. The Petitioner has approached this Court seeking the following relief; W.P.(C) No.21887 of 2013 Page 1 of 16 “In the facts and circumstances of the case, the Petitioner fervently prays that this Hon’ble Court would be graciously pleased to admit the writ petition, call for relevant records, after hearing the counsel of the parties issue a writ in the nature of mandamuos or any other appropriate writ commanding the Opp.Party No.3 to consider the case of the petitioner in the light of judgment reported in 2007 OLR (II) 577 (Chandramani Jena Vs. State of Orissa) and further be pleased to direct the Opp.Party No.3 to pass an order of engagement as Sikshya Sahayak in favour of the Petitioner as per the merit list published under Annexure-7 order after dtd.30.3.2013 vide Annexure-12.” quashing the 2. The facts of the case are that pursuant to an advertisement published in the daily newspaper on 14.10.2006 by the Director, Orissa Primary Education Programme Authority (OPEPA) (Opposite Party No.2) inviting applications for engagement as Sikshya Sahayaks, the Petitioner, having the requisite qualification submitted his application along with all necessary documents. A draft merit list of Sikshya Sahayaks for Harichandanpur Block in the district of Keonjhar was published by the Selection Committee headed by the Collector-cum-CEO, Zilla Parishad, Keonjhar (Opposite Party No.3), wherein the name of the Petitioner found place. However, no engagement order was issued purportedly as some complaint was W.P.(C) No.21887 of 2013 Page 2 of 16 lodged against him in relation to his residence. The Petitioner requested the Opposite Party No.3 by placing various records before him who, in turn sought for a report from the Tahasildar, Ghatagaon. The Tahasildar conducted a field enquiry and submitted report on 29.9.2007 stating that the Petitioner is a resident of village Tentulipal and that his name appears in the electoral roll and that he was member of Rasol Gram Panchayat during the year 2007. Since no action was taken thereafter, the Petitioner approached this Court in W.P.(C) No.712/2008. By order dated 25.1.2008, this Court directed the Petitioner to submit a detailed representation before the Opposite Party No.3 enclosing relevant documents, which was to be considered on its own merit within three months. The Petitioner therefore, submitted a representation to the Opposite Party No.3 along with all relevant documents including the resident certificate. But the Opposite Party No.3 rejected the representation of the Petitioner on the ground that she is not a permanent resident of Harichandanpur Block. The Petitioner thereafter W.P.(C) No.21887 of 2013 Page 3 of 16 submitted another representation on 9.2.2009 seeking consideration afresh of her case in light of Chandramani Jena and others Vs. State of Orissa others1. Since the second representation was not acted upon, the Petitioner again approached this Court in W.P.(C) No.16516/2011 which was disposed of by order dated 13.9.2011 directing the Petitioner to file a fresh representation before the competent authority. The Petitioner submitted representation on 7.10.2011 before the Opposite Party No.3 with prayer to consider his case afresh taking into consideration the judgment in Chandramani Jena’s case (supra). But the Opposite Party No.3 directed the Opposite Party No.4 to seek clarification from the Government as to whether the Petitioner is entitled for the post of Sikshya Sahayak as per the judgment in Chandramani Jena’s case (supra). Further, the Opposite Party No.3 directed the Sub- Collector, Keonjhar (Opposite Party No.5) to re-enquire the residential status of the Petitioner. Since the case of the Petitioner was not finally disposed of, he filed 1 2007 (II) OLR 577 W.P.(C) No.21887 of 2013 Page 4 of 16 Contempt Petition being CONTC No.1938/2012. At this stage, the Opposite Party No.3 vide order dated 30.3.2013 rejected the representation of the Petitioner by holding that the resident certificate issued by the Tahasildar, Ghatagaon, in favour of the Petitioner is not correct. Claiming that the rejection of the Petitioner’s candidature and his representation by the Opposite Party No.3 is contrary to the law laid down by this Court in Chandramani Jena’s case (supra), the Petitioner has approached this Court in the present Writ Petition. 3. Counter affidavit has been filed by the Opposite Party No.3 and Opposite Party No.4. It is stated that during the period of submission of objection, allegation was received against the Petitioner about his residential status, which was referred to Opposite Party No.5 for enquiry. The Opposite Party No.5 in his letter dated 29.06.2007 reported that the residential certificate submitted by the Petitioner along with his Sikshya Sahayak application vide Misc. Case W.P.(C) No.21887 of 2013 Page 5 of 16 No.5661/2004 was forged. Basing on such report, the Petitioner’s case for engagement was rejected. The Petitioner thereafter approached this Court and basing on the order passed, the Opposite Party No.3 was asked to consider his representation. The Opposite Party No.3 directed to obtain necessary clarification from the Government. The Tahasildar, Ghatagaon reported that the residential certificate issued from his office was a forged one. As per the advertisement published on 14.10.2006 it was stipulated that the applicant should submit the residential certificate of the block area where he applied for the post of Sikshya Sahayak. In view of the report of the Tahasildar, Ghatagaon, and Opposite Party No.5 regarding his residential status, the Petitioner’s case was rightly rejected. Basing on Chandramani Jena’s case (supra), the Government has come out with a new resolution, vide No.673 dated 10.1.2008, but at the relevant time he was bound by the earlier regulations which required that he should have been a permanent resident of the block area in which he submitted his application. W.P.(C) No.21887 of 2013 Page 6 of 16 4. In course of hearing, being directed by this Court, the Tahasildar, Ghatagaon, has filed an affidavit enclosing therewith the resident certificate of the Petitioner and the report dated 13.6.2007 of the Tahasildar, Ghatagaon, on the basis of field enquiry. Further, during pendency of the Writ Petition a show

Legal Reasoning

16(2) of the Constitution by this Court in Chandramani W.P.(C) No.21887 of 2013 Page 7 of 16 Jena’s case (supra). Therefore, after passing of the judgment by this Court on 23.8.2007, it was no longer open to the Opposite Party-authorities to have raised the same ground of the residential status of the Petitioner. Mr.Chhatoi further argues that even otherwise there is absolutely no proof that the certificate submitted by the Petitioner was fake or forged. The only observation made by the Tahasildar after his field enquiry is that it was not correct but without specifying as to how it was not correct. The resident certificate issued in favour of the Petitioner not having been cancelled cannot be ignored more so, in the absence of any evidence to show that it was not validly issued or that it is a forged document. Shri Chhatoi argues that but for the deliberate wrong interpretation made by the Opposite Party-authorities coupled with the inordinate delay of nearly 18 years, the Petitioner has been unduly deprived of his legitimate right of appointment as Sikshya Sahayak despite being placed in the merit list. W.P.(C) No.21887 of 2013 Page 8 of 16 7. Shri S.N.Patanaik, learned Addl. Government would argue that the judgment passed in Chandramani Jena’s case (supra) was not in rem but in personam. The Petitioner never challenged the relevant clause of the advertisement at the relevant time, but submitted his application accepting the condition. The Petitioner’s residential status was verified by the Tahasildar, Ghatagaon in a field enquiry and certain genuine doubts were raised for which the resident certificate was rightly not taken into consideration and his candidature was rejected. In any case, the merit list prepared in 2006 expired after one year and therefore, the Petitioner could not have been engaged. 8. Undisputedly, an advertisement was issued by the Opposite Party No.2 on 14.10.2006 inviting applications for engagement of Sikshya Sahayaks in different Districts. Said advertisement contained a list of District wise and Block wise posts. In so far as the present case is concerned, it is seen that 112 posts were advertised for Harichandanpur Block against W.P.(C) No.21887 of 2013 Page 9 of 16 which the Petitioner was one of the applicants. It has been argued that as per the terms of the said advertisement the applicant must produce a resident certificate of the concerned block of which he is an applicant. The validity of such requirement in the same advertisement was considered by a Division Bench of this Court in the case of Chandramani Jena’s case (supra). After considering the law settled in the field, the Division Bench held as follows; “17. From the discussions above, this Court is of the opinion that Clause 4.1 of the advertisement dated for appointment of 14.10.2006 under Annexure- 6 the Swechhasevi Sikhya Sahayak as amended by Corrigendum dated 12.10.2006 the is violative of provisions of Article 16(2) of the Constitution and the same is set aside. This Court, however, declares that any person who satisfies the criteria of educational qualification and other eligibility condition, shall be entitled to apply for appointment to the post of Swechhasevi Sikhya Sahayak despite the fact that he or she does not stay within any block where such appointment will be made. In other words, there can be no disqualification on the ground of residence.” Thus, the law as laid down by this Court is, there can be no disqualification of a candidate basing on his residential status. 9. This Court is therefore of the considered view that the ground on which the Petitioner’s candidature W.P.(C) No.21887 of 2013 Page 10 of 16 was rejected despite his inclusion in the merit list cannot be countenanced. 10. Be that as it may. 11. Even factually, this Court finds that according to the report of the Opposite Party No.5 (copy enclosed as Annexure-A/4) the certificate issued in respect of the Petitioner vide Misc. Case No.5661/2004 is forged as reported by the Tahasildar, Ghatagaon. This Court has perused the report of the Tahasildar dated 13.6.2007 wherein the following is mentioned in respect of the Petitioner; ‘Prafulla Kumar Sahoo - 5661/2004 - Issued from this Office but not correct.’ - Tentulipal How such certificate is not correct has not been demonstrated either by the Tahasildar, Ghatagaon or by any other authority. 12. Fact remains that the certificate was issued by the Tahasildar. Can it amount to forgery? As per the W.P.(C) No.21887 of 2013 Page 11 of 16 Oxford Advanced Learner’s Dictionary2 ‘forgery’ means ‘the crime of copying money, documents, etc. in order to cheat people’. As per the Black’s Law Dictionary3, ‘forgery’ means the act of fraudulently making a false document or altering a real one to be used as if genuine’. Nothing has been stated or brought on record by the authorities as to how the document in question was forged if at all by the Petitioner. Since it is clearly admitted that the certificate was issued from the Office of the Tahasildar and it has not yet been cancelled, it has to be treated as valid. Thus, this Court finds that the very basis of rejection of the Petitioner’s candidature, even on facts, is wrong. Though it is stated that some allegation was received against the Petitioner as regards his residential status yet the source of such allegation has not been disclosed. This does not behoove the Opp. Parties having regard to the fact that they are public functionaries and therefore, are expected to place all relevant facts before the Court. This Court observes 2 New 9th Edition 3 17th Edition W.P.(C) No.21887 of 2013 Page 12 of 16 with some concern that the stand taken by the Opposite Party-authorities regarding the so-called complaint/allegation made against the Petitioner is vague and non-specific for which it cannot be considered. 13. Another ground, not taken in the counter affidavit but mentioned in the show cause affidavit submitted by the Ex-Collector, Keonjhar, is that by the time of coming into force of the new resolution doing away with the requirement of residence of the same block area, the merit list prepared earlier had expired since 17.12.2007. Said resolution was on the basis of Chandramani Jena’s case (supra). This Court is unable to accept the contention as above for the reason that Chandramani Jena’s case (supra) was decided on 23.8.2007, wherein the offending clause in advertisement dated 14.10.2006 was interpreted in the manner stated hereinbefore. This Court never said that a new resolution should be issued by the Government dropping the clause. It was a policy W.P.(C) No.21887 of 2013 Page 13 of 16 decision of the Government. But it does not take away the effect of the Judgment on the advertisement dtd.14.10.2006 in any manner whatsoever. That apart, it is seen that the Petitioner had raised grievance at the earliest possible opportunity basing on which the field enquiry was conducted on the direction of the Opposite Party No.3 and Opposite Party No.5. It is well settled that the plea of expiry of the select list cannot be raised to defeat the claim of a candidate if the same expires during pendency of litigation when the candidate had staked his claim during the currency of the panel. Reference in this regard may be had to the judgment of the Supreme Court in the case of State of U.P. vs. Ram Swarup Saroj;4 2003 SCC 699. In the instant case, the merit list was published in 2006. As no engagement order was issued, the Petitioner approached the Opposite Party No.3, who directed a field inquiry to be conducted. Thus, the Petitioner had staked his claim during currency of the merit list. Even otherwise, this Court finds that while considering the 4 2003 SCC 699 W.P.(C) No.21887 of 2013 Page 14 of 16 representation of the petitioner and by disposing of the same by order dated 14.3.2012 and further order dated 30.3.2013, such a stand was never taken. The Counter affidavit is also silent in this regard. This plea has been taken by the Ex-Collector in the show cause affidavit filed before this Court for the first time. This Court therefore, rejects such plea as being untenable in the eye of law. 14. Thus, from a conspectus of the analysis of the facts and law as made herein before, this Court is of the considered view that rejection of the Petitioner’s candidature for appointment as Sikshya Sahayak despite his name being placed in the merit list published way back in the year 2006 is contrary to law being violative of his right to livelihood guaranteed under Article 21 of the Constitution of India. As such, the impugned order dtd.30.3.2013, copy enclosed as

Arguments

cause affidavit was filed by Shri Balwant Singh, Ex- Collector, Keonjhar pursuant to order dated 06.7.2015 of this Court. In addition to stating all the facts mentioned in the counter affidavit, it has been also stated that by the time the new resolution came into force the earlier merit list had expired since 17.12.2007. 5. Heard Mr. P.R.Chhatoi, learned counsel for the Petitioner and Mr. S.N.Patanaik, learned Addl. Government Advocate for the State. 6. Shri Chhatoi would argue that the relevant clause in the advertisement dated 14.10.2006 has been held to be violative of the provisions of Article

Decision

Annexure-12 to the Writ Petition, cannot be sustained. 15. For the foregoing reasons therefore, the Writ Petition is allowed. The impugned order under W.P.(C) No.21887 of 2013 Page 15 of 16 Annexure-12 is hereby quashed. The Opposite Party- authorities are directed to issue necessary order of appointment in favour of the Petitioner for the post of Sikshya Sahayak as advertised or in any equivalent post considering his qualifications without any further delay and in any case, within four months from the date of communication of this order or on production of certified copy thereof by the Petitioner. Judge Sashikanta Mishra, Ashok Kumar Behera Signature Not Verified Digitally Signed Signed by: ASHOK KUMAR BEHERA Designation: Addl. Deputy Registrar-cum-Addl. Principal Secretary Reason: Authentication Location: High Court of Orissa, Cuttack Date: 24-Apr-2024 14:00:52 W.P.(C) No.21887 of 2013 Page 16 of 16

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