Application under Articles 226 & 227 of Constitution of India. AFR Pranat Kishore Mishra v. State of Odisha & Others
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No. 1770 of 2013 Application under Articles 226 & 227 of Constitution of India. AFR Pranat Kishore Mishra and Others …… Petitioners --------------- - Versus - State of Odisha & Others ...…. Opp. Parties Advocate(s) appeared in this case:- ________________________________________________________ For Petitioner : M/s. Kali Prasanna Mishra, Sr. Adv. with M/s. S. Mohapatra, T.P. Tripathy & L.P. Dwibedi, A. Mishra, Advocates For Opp. Parties : Mr. S.N. Pattnaik, Addl. Government Advocate M/s. S.C. Panda, R. Dasnayak & D.K. Nayak, Advocates. [ for O.P. No.5] _________________________________________________________ CORAM: JUSTICE SASHIKANTA MISHRA JUDGMENT 23rd December, 2024 SASHIKANTA MISHRA, J. The Governing of Odisha in Department of School and Mass Education decided to introduce Computer Education in the High Schools of the State through private computer organizations and accordingly three organizations were allotted different districts for the purpose as per letter Page 1 of 16 dated 18.12.2000 of the Director of Secondary Education. Because of below par performance of the said firms, the Government considered the proposal submitted by a registered non-Government organization called, Council for Computer Literacy and Awareness in Secondary Schools (CLASS), Odisha. As such, vide letter dated 06.01.2003 of the Director, the State Government decided to entrust the work to CLASS-Odisha. State Government also decided to introduce free computer education in rural High Schools through Biju Patnaik Memorial e-Library Project and CLASS-Odisha jointly as per letter dated 11.03.2003. Accordingly, an agreement was executed on 29.03.2003 between CLASS-Odisha and Government of Odisha to provide free computer education to needy and meritorious students of rural High Schools. The agreement was for two years and extended subsequently. By letter dated 12.10.2009, the Director requested the Chief Executive of CLASS-Odisha to furnish list of selected computer teachers to be appointed as e- teachers in High Schools, pursuant to which a list of such teachers was furnished. The petitioners acquired training of computer education through CLASS-Odisha. An advertisement Page 2 of 16 was issued on 09.10.2009 for appointment of e-Teachers (ICT Coordinators) by giving special residential training for one year with further clarification. The petitioners applied pursuant to such advertisement and acquired DOEACC „O‟ Level course successfully by spending valuable time and money. The Government of Odisha in Department of School and Mass Education vide letter dated 03.02.2011, intimated the President of Board of Secondary Education, Odisha to introduce 2 Years‟ Certificate Course in Computer Science in Class-IX and X from the academic session 2011-12. The Director thereafter directed all the Inspectors of Schools to implement the B.S.E. Scheme vide letter dated 04.06.2011. The Board of Secondary Education published an advertisement on 10.06.2011 inviting applications from intending recognised High Schools of the State having adequate infrastructural facilities for introduction of a two-year Certificate Course in Computer Science in High Schools during the academic Session 2011-12. After successful completion of training, the petitioners got their names enlisted through CLASS-Odisha to get their names sponsored for being appointed as e-Teachers in rural Schools. However, despite Page 3 of 16 obtaining training and their names being sponsored by CLASS- Odisha to the Director Secondary Education, the petitioners were not appointed as e-Teachers/ICT Coordinators. The Director also sent names of the candidates (empanelled by CLASS-Odisha) to different Inspectors of Schools for their appointment as e-Teachers by placing each of them in particular Schools. However, consequential
Decision
order of appointment was never issued, for which the petitioners approached this Court. On 15.05.2014, this Court as an interim measure passed the following order: “In that view of the matter if the authorities are going to approve engagement of the candidates sponsored by the N.G.O.-I.L. & F.S.E.T.S. Ltd. as E-Teachers/Trainers/School Coordinator for ICT- Schools Projects as well as by T.C.I.L., the case of the petitioners should be taken into consideration and their case should also be taken on priority basis as they have been selected prior to the I.L. & candidates approved by F.S.E.T.S. Ltd. as E-Teachers/Trainers/School Coordinator for ICT-Schools Projects as well as by T.C.I.L. the N.G.O.- Therefore, steps should be taken by the authorities to consider the case of the petitioners as expeditiously as possible preferably within a period of two months from the date of receipt of a copy of this order so that the interest of the trained teachers who are before this Court may not be jeopardized.” Page 4 of 16 Despite such order, no positive step was taken. On the contrary, another advertisement was issue on 28.05.2014 by the opposite party No.8 inviting applications for engagement as School Coordinators. Some of the petitioners therefore, submitted grievance petition along with copy of the order dated 15.05.2014 of this Court to the Commissioner-cum-Secretary. On 11.08.2014, the Secretary rejected the grievance petition mainly on the ground that permission given to CLASS-Odisha to impart Computer Education had been withdrawn for violation of terms and conditions of the agreement and Odisha Madhyamika Sikshya Mission (opposite party No.6) had executed an agreement with Odisha Knowledge Corporation Ltd. (OKCL) and the work was entrusted to the opposite party Nos.8 and 9 through open tender for implementation. According to the petitioners, when their names were approved and sponsored by the Director long before closure of contract with CLASS-Odisha, entering into new contract with other firms is entirely illegal besides being in violation of the order dated 15.05.2015 passed by this Court. Basically citing the Page 5 of 16 above facts, the petitioners, who are 101 in number, have filed the present writ application seeking the following relief: “Under the aforesaid facts and circumstances, it is therefore, prayed that this Hon’ble Court may graciously be pleased to: the Petitioners as E-Teachers (i) quash the Order, dated 12.08.2014 passed by the Opp.Party No.1 as at Annexure-18 and thereby direct the Opp.Parties to give appointment to (1.C.T.- Coordinators) to impart free Computer education to needy meritorious students of rural High Schools of Odisha, being qualified teachers, within a stipulated period, as may be prescribed by this Hon’ble Court for the interest of justice; (ii) pass such other order(s) / issue direction(s) as may be deemed fit and proper in the bona fide interest of justice; And for this act of kindness, the Petitioners shall as in duty bound, ever pray.” 2. The stand of the State opposite party (opposite party No.2) is that CLASS-Odisha is a non-government organization, for which the Government is not responsible for any advertisement made by it or any follow up action taken on such advertisement. In order to provide Computer Education in rural High Schools, the Department in School and Mass Education had entered into agreement with CLASS-Odisha. In the first phase, the project was implemented in 42 High Schools and in the second phase it was extended to 82 Schools. In the letter Page 6 of 16 dated 11.03.2003 and agreement dated 29.03.2003, it is made clear that the Government would not take any responsibility or liability for the Computer Education Programme to be run by CLASS-Odisha. The advertisements dated 09.10.2009 and 09.04.2010 not having been issued by the Government authorities but were published by CLASS-Odisha without there being any role of the Government. The grievance petition of the petitioners was rightly rejected as it had come to the notice of the Government that CLASS-Odisha had violated the terms and conditions by publishing an advertisement on 02.11.2012 inviting applications from candidates for the post of ICT Coordinators in High Schools. In larger public interest, the Government decided to withdraw the permission to impart free computer education and CLASS-Odisha was never authorized to publish such advertisement and engage employees under such scheme misleading the public. There was never any commitment from any government authorities to CLASS- Odisha for continuance of the computer education programme nor any commitment to any person for appointment as Computer Teacher in Schools. The ICT scheme is implemented Page 7 of 16 in the State through Built, Own, Operate and Transfer (BOOT) model, as per which, the work of engagement of School Coordinators is entrusted to the BOOT operators, but not the government. As such, the Odisha Madhyamika Siksha Mission executed an agreement with the Odisha Knowledge Corporation Ltd., which in turn entrusted two bidders through open tender for implementation of the Scheme. The School Coordinators engaged by the aforesaid implementing agency is specific to the project and they shall at no time stake any claim of right of employment. The School Coordinators have been engaged through outsourcing. The implementing agencies are purely private organizations and the petitioners could have offered their candidatures in response to the advertisements issued by them for their selection on merit. The State has no jurisdiction to interfere with the work of a private organization. 3. Counter affidavit has also been filed by Odisha Knowledge Corporation (opposite party No.7). After relating the admitted facts it is stated that OKCL is a Corporation promoted by Government of Odisha to provide IT enabled education and is also the implementing agency of ICT @ Schools project on Page 8 of 16 behalf of Odisha Madhyamika Sikshya Mission (opposite party No.6), which is the apex society. OKCL has awarded the tender for implementation of the Scheme in some districts of Odisha under BOOT model in favour of opposite party No.8. Further, the post of School Coordinator is totally different from the post of Computer Teacher/Instructor and it is not a Government job as the School Coordinator will be under the pay roll of opposite party No.8. The Government of Odisha and Odisha Knowledge Corporation have no liability in the matter. 4. Heard Mr. K.P. Mishra, learned Senior Counsel with Ms. Adyasidhi Mishra, learned counsel for the petitioners; Mr. S.N. Pattnaik, learned AGA for the State and Mr. A.C. Panda, leaned counsel appearing for opposite party No.5 2. Mr. Mishra would argue that the petitioners had applied for e-teachers (ICT Coordinators) pursuant to the advertisement issued in the year 2010, which is prior to the withdrawal of the agreement with CLASS-Odisha. The names of the petitioners were also recommended for appointment prior to withdrawal of such permission. Since the names of the Page 9 of 16 petitioners were sponsored by CLASS-Odisha on the request of the Director, Secondary Education, who also recommended their engagement in different High Schools, the concerned authorities could not have bypassed their legitimate expectations of being so engaged on the ground of withdrawal of permission to CLASS-Odisha. Mr. Mishra further argues that the petitioners possess the requisite qualification and have undergone one year training required for appointment to the post of ICT Coordinators. More importantly, in the order dated 15.05.2014 this Court, after considering the relevant facts, directed as an interim measure that if the authorities are going to approve engagement of the candidates sponsored by the new firms, the case of the petitioners should be taken into consideration on priority basis as they have been selected prior to the candidates approved by new firms. Despite such clear cut order, the grievance of the petitioners was rejected. As such, the legitimate expectation of the petitioners has been given a go-bye. 3. Mr. S.N. Pattnaik, learned AGA would argue that the petitioners have no vested right to any kind of appointment Page 10 of 16 under the Government. Only because the Director had called for a list of names does not create a right in favour of the petitioners. Since the agency in question was found to have violated the terms of the agreement by publishing advertisement, the Government decided to withdraw the permission granted to it. The petitioners were never appointed nor any commitment made by the State authorities at any point of time that they will be appointed. The job was entrusted to CLASS-Odisha and the Government did not have any kind of liability with regard to the mode of implementation of the Scheme by CLASS, Odisha. 4. Mr. Panda, learned counsel appearing for opposite party No.5 makes similar arguments as the State Counsel. 5. The facts of the case being as narrated above, it is to be seen whether the petitioners acquired any vested right of being appointed as e-Teachers/ICT Coordinators. Admittedly, the scheme of Computer Education was entrusted to CLASS- Odisha. The petitioners applied in pursuance of an advertisement issued by CLASS-Odisha and also acquired the Page 11 of 16 requisite training. The petitioners were however, never appointed as such. Their names were furnished by CLASS- Odisha pursuant to instructions issued by the Director, Secondary Education. The Director, Secondary Education, in turn, sought for information from the concerned Schools as to if necessary infrastructure was available. However, letters dated 16.08.2010, 12.09.2009 and 12.05.2011 issued by the Directorate to different Schools only mention that CLASS- Odisha has “proposed to appoint” qualified Computer Teachers. There is nothing on record to suggest that the Directorate issued any order regarding engagement of the persons, whose names had been furnished by CLASS-Odisha. The list only implies that such number of computer qualified teachers were available. Advertisements were issued for appointment of e- teachers (ICT Coordinator) by Madhaymika Computer Sakshyarata Parishad. Pursuant to such advertisement, the petitioners acquired DOEACC „O‟ level course successfully. Their grievance is that despite the above fact, they were never appointed. Thus, this Court finds that no offer of appointment as such was ever issued to the petitioners nor was any Page 12 of 16 commitment given. In any case, the Government does not appear to have any role in the matter, as even if the e-Teachers had been appointed and imparted Computer Education in Government High Schools, yet the same would have been through CLASS-Odisha and not the Government. True, their names having been furnished by CLASS-Odisha to the Director on the latter‟s requests and they having acquired the requisite qualification mentioned in the advertisement can be said to have at best a legitimate expectation of being engaged in the Scheme, but then the Government decided to withdraw the permission given to CLASS-Odisha. Said order has not been challenged nor is a subject matter of adjudication in the present writ application. 6. Be that as it may, in the order dated 15.05.2014, this Court directed the authorities to consider the case of the petitioners on priority basis over the candidates selected by newly appointed agencies on the ground that they had been selected prior to them. This ought to have weighed upon the Commissioner while disposing of the grievance petition of the petitioners. It is true that the Government cannot be compelled Page 13 of 16 by issuing a writ of mandamus to definitely engage the petitioners as e-Teachers/ICT Coordinators in the absence of any vested right having accrued in their favour, but then their legitimate expectation of being so engaged cannot be brushed aside lightly. It is well settled that when a person is provisionally selected certain decree of reasonable or legitimate expectation of selection comes into existence. Reference in this regard may be had to the judgment of the Supreme Court in the case of Chandrakala Trivedi v. State of Rajasthan, (2012) 3 SCC 129. True, in the instant case there has been no such „selection‟ but then the names of the petitioners were called for by the Director and the agency sponsored their names as qualified e-Teachers. The petitioners also applied pursuant to the advertisement and also acquired the requisite qualification. Though the decision of the Government to appoint another agency by way of open tender cannot be questioned but then in view of the above noted facts coupled with the interim order passed by this Court earlier, the Government ought to have considered the grievance of the petitioners sympathetically by enjoining upon the newly Page 14 of 16 selected agencies to at least consider engagement of the petitioners instead of seeking candidates from the open market. In a welfare State like India, the State cannot simply wash its hands off in respect of persons in the matters affecting their livelihood, which is otherwise guaranteed under Article 21 of the Constitution of India. As already stated, this Court is fully conscious that a writ of mandamus may not be issued commanding the State authorities to straight away engage the petitioners as e-Teaches/ICT Coordinators but the matter certainly needs to be revisited so as to adjust the petitioners in the work of computer education by issuing necessary direction to the implementing agencies in the peculiar facts and circumstances of the case. 7. In the result, the writ application is partly allowed. The impugned order dated 12.08.2014 is hereby set aside. The matter is remitted to the Commissioner-cum-Secretary to have a relook at the grievance of the petitioners, particularly in light of the observations made in this judgment and the interim order dated 15.05.2014, and to issue necessary directions to the implementing agency to adjust the petitioners, if found eligible Page 15 of 16 in the work of imparting Computer Education, if possible without disengaging any person already engaged by them. ……..……………………. Sashikanta Mishra, Judge Orissa High Court, Cuttack. The 23rd December, 2024/ A.K. Rana, P.A. Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: Personal Assistant Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 23-Dec-2024 15:00:01 Page 16 of 16