Application under Articles 226 & 227 of Constitution of India. AFR Anuradha Nayak … v. State of Odisha and Ors
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No. 2993 of 2023 Application under Articles 226 & 227 of Constitution of India. AFR Anuradha Nayak …… Petitioner --------------- - Versus - State of Odisha and Ors. ...…. Opp. Parties Advocate(s) appeared in this case:- _________________________________________________________ For Petitioner : M/s. Karunakar Rath, G.C. Moharana & D.B. Rath, Advocates For Opp. Parties : Mr. S.N. Pattnaik, Addl. Government Advocate _________________________________________________________ CORAM: JUSTICE SASHIKANTA MISHRA JUDGMENT 9th October, 2024 SASHIKANTA MISHRA, J. The petitioner in the present writ application seeks to challenge the order dated 23.03.2022 passed by the Collector & District Magistrate, Balasore, whereby her Page 1 of 14 representation for engagement as Shikshya Sahayak out of the merit list of the year 2006-2007 was rejected. 2. The facts of the case are that pursuant to notification dated 14.10.2006 for engagement of Shikshya Sahayaks, the petitioner submitted her candidature. A panel list for C.T., S.E.B.C. (W) category candidates for Simulia Block was prepared by the erstwhile District Inspector of Schools, Simulia, which being approved by the Collector, was published. In the said list, the petitioner’s name found place at serial No.3 as she had secured 46.11% of marks. However, as she did not receive any engagement order and also came to know that candidates securing less marks than her had been allowed to join, she approached the Collector, Balasore. She was told that there being some doubt with regard to her nativity/residential certificate, the engagement order had not been issued. The petitioner submitted representation to consider her case on the ground that her parental home is at Simulia where she is residing, though her in-laws house is at Soro. Since no
Legal Reasoning
action was taken, she approached this Court in W.P.(C) No. Page 2 of 14 2080 of 2007. By order dated 10.02.2009, said writ application was disposed of directing the Collector, Balasore to consider the representation of the petitioner. However, her case was not considered, for which she moved from pillar to post ventilating her grievance. Ultimately she submitted her grievance before the Government in Department of School and Mass Education, which was forwarded to the Collector, Balasore on 16.08.2018 for consideration. Despite such direction of the Government, no action was taken. The petitioner therefore, again approached this Court in W.P.(C) No. 13390 of 2021. Said writ petition was disposed of by order dated 15.04.2021 directing the Collector, Balasore to consider the representation of the petitioner within a stipulated period. Said direction not being complied with, she filed a contempt petition being CONTC No.7633 of 2021. After receiving notice of the contempt petition, the Collector passed an order on 23.03.2022 rejecting the representation basically on the ground of limitation. On such facts, the Page 3 of 14 petitioner has approached this Court with the following prayer: “Therefore it is most humbly prayed that this Hon’ble Court may graciously be pleased to admit this writ petition, call for the records, issue rule Nisi calling upon the Opp. Parties to show cause as to why the order of the Collector in rejecting the representation of the petitioner vide order dtd. 23.3.2022 shall not be quashed and the petitioner shall not be allowed to be engaged as Swaccha Seva Sikhsya Sahayak from the date of selection and pursuant to advertisement 2006 in Simulia block, Balasore and issue the writ of certiorari in quashing the rejection order of Collector, Balasore, dtd.23.3.2022 and issue the writ of mandamus directing the Oppo. Party No.-3 to allow the petitioner to join in the School under Simulia Block or any Block of Balaosre District in giving the Notional benefit since 2007 onwards. And may pass such other writ/writs, order/ orders, direction/directions as may be deemed fit and proper. And for this act of kindness, the petitioner as in duty bound shall ever pray.” 3. Counter affidavit has been filed by the State opposite parties (opposite party nos. 3 and 4) admitting the fact that the petitioner’s name was placed at serial No. 3 in the final merit list of SEBC(W) category. It is however, the nativity certificate issued in her favour was rejected by Tahasildar, Simulia vide letter 15.11.2007 for which her candidature was rejected. It is further stated that the Page 4 of 14 process of engagement pursuant to the advertisement of the year 2006 has already been completed in the year 2007 and there is no vacancy available. Moreover, this Court in W.P.(C) No. 2080 of 2007, while directing the Collector to dispose of the representation, made it clear that the same shall be considered only if any post of Shikshya Sahayak is lying vacant in the Block. Pursuant to said order, the matter was heard by the Collector on 10.08.2009 and was also rejected on the same day. Said order has never been challenged by the petitioner. Subsequently, the Tahasildar, Simulia issued a fresh residential certificate basing on the enquiry made by the local R.I. on 18.04.2016 but by such time, the selection process had already been completed and the vacancies had been filled up. After a long gap of 11 years, the petitioner approached this Court in W.P.(C) No.13390 of 2021. The Collector, taking note of the fact that the process of engagement relating to the advertisement of the year 2006 having been already completed and there being no existing vacancy, rightly rejected the representation. That apart, the post of Page 5 of 14 Shikshya Sahayak does not exist anymore and instead, the post of Junior Teacher (Schematic) has been introduced as per Resolution dated 22.08.2023 of the Government in School and Mass Education Department. 4. The petitioner has filed a rejoinder stating that the rejection of her candidature on the ground of rejection of residential certificate cannot be treated as a valid ground in view of the ratio decided by this Court in the case of Chandramani Jena and others1. Therefore, irrespective of the petitioner’s residence, her candidature ought to have been accepted. That apart, delay cannot be a ground to deny the petitioner her legitimate claim for engagement as held by the Supreme Court in the case of Saktipada Mohapatra vs. State of Odisha2 5. Heard Mr. Karunakar Rath, learned counsel for the petitioner and Mr. S.N. Pattnaik, learned Addl. Government Advocate for the State. 1 2007 (II) OLR 577 2 CIVIL APPEAL NO(S). 1215 OF 2022 Page 6 of 14 6. Mr. Rath would argue that rejection of the candidature of the petitioner on the ground of residence is not a valid ground because of the law laid down by this Court in the case of Chandramani Jena (supra). Mr. Rath further argues that the order of the Collector passed on 10.08.2009 was never communicated to her for which she had no scope to be aware of the same so as to challenge it. In any case, the Government having directed the Collector on 16.08.2018 to consider the case of the petitioner, the question of limitation does not arise. The Supreme Court in the case of Saktipada Mohapatra (supra) held that even if the scheme is abolished, a person can be engaged with the notional benefits of seniority. 7. Mr. S.N. Pattnaik on the other hand, would argue that pursuant to direction of this Court in W.P.(C) No. 2080 of 2007, the Collector gave an opportunity of personal hearing to the petitioner and the matter was heard in presence of the petitioner and disposed of on the same day. It cannot therefore, be believed that the petitioner was not aware of passing of the order by the Page 7 of 14 Collector. That apart, this Court has specifically directed that the representation would be considered only if a vacancy is available. There was no vacancy available at the relevant time. The petitioner remained silent for as long as eleven years before approaching this Court again. Though the Deputy Secretary to Government directed the Collector to consider the representation of the petitioner, yet there was no reference to the previous order of rejection of the petitioner’s representation therein. Nevertheless, the Collector considered the representation of the petitioner and rightly rejected it on the ground of limitation. Mr. Pattnaik further argues that the facts in Saktipada Mohapatra’s case are entirely different from the present case and therefore, said case has no application. 8. After hearing learned counsel for the parties and on going through the materials available on record, this Court finds that in paragraph-5 of the writ petition the following has been averred. “5. That when her case was not considered she the filed a writ petition against cancellation of the nativity certificate before the Hon’ble Court in WP (C) No.- 2080 of 2007. Page 8 of 14 Said writ petition was disposed of by the Hon’ble High Court vide order dtd. 10.2.2009 directing the Collector, Balasore to consider the case of the petitioner taking into the account of representation but her case was not considered, she moved from pillar to bottom and bottom to pillar but her case was not considered. Lastly she agitated her grievance before the Government in the Department of School and Mass Education. The Deputy Secretary to Govt., S & Μ.Ε. Deptt. On 16.8.2018 wrote a letter to the Collector, Balasore for consideration of the case of the petitioner and disposed of the matter at his level and to report the matter to Department of s & ME. Within a fortnight. But th4e Collector is silent over the matter. The Copy of the letter of the Deputy Secretary to Government, s & M.E. Deptt. Dtd. 16.8.2018 is annexed herewith as Annexure-3.” 9. The order passed by this Court on 10.02.2009 has neither been quoted nor enclosed in the counter affidavit. The relevant portion of the order passed by this Court has been quoted in paragraph-6 in the following manner. "xxxxxxxxx Therefore, the writ petition is disposed of giving liberty to the petitioner to file suitable representation/appeal before the Collector, Balasore within two weeks. If such appeal/representation is filed, the authority shall do well to consider the same and pass a reasoned order. It is made clear that the Collector shall dispose of the representation if any post of Swechhasevi Siksha only Sahayaka the block.xxxxxxxxxxx" vacant lying in is Page 9 of 14 10. Further, reading of the order dated 10.08.2009 reveals that the petitioner, DI of Schools, Balasore-II, Soro, and District Project Coordinator, Balasore were present at the time of hearing and were heard. In the writ petition however, the petitioner has not disclosed the above fact, which is nothing but suppression of material facts. It is contended that the order of the Collector was never communicated but then said plea is unacceptable for the reason that if the petitioner had personally attended the hearing on 10.08.2009, there is no explanation as to why she remained silent for years together and did not ventilate her grievance before the appropriate authority in the Government or by approaching this Court. As already seen in the order dated 10.08.2009, this Court specifically directed that the Collector shall dispose of the representation only if any post of Shikshya Sahayak is lying vacant in the Block. It is the consistent case of the State- opposite parties that the process of selection pursuant to the advertisement of the year 2006 has already been concluded. The petitioner approached this Court in Page 10 of 14 W.P.(C) No.13390 of 2021 on 08.04.2021, which is nearly 11 years after the order passed by the Collector rejecting her application. From the letter of the Deputy Secretary to Government dated 16.08.2018 it can be inferred that the petitioner had submitted a representation to the Government on 31.07.2018. Even accepting the same, there was after lapse of 10 years, which is unexplained. 11. Coming to the case of Saktipada Mohapatra, reference to the judgment makes it clear that in the said case, the petitioner’s writ petition was dismissed by a Single Judge and confirmed in writ appeal by the Division Bench. In the said case, the question was the criteria for selection being based on the marks secured in the academic qualification along with the grace marks based on the nature of service rendered by the applicant, which was the sole factor for determination of merit. Even though the criteria for determination on merit was to be based on academic qualification and experience as notified in the advertisement, yet grace marks were awarded to candidates, who had earlier served as para-teachers and Page 11 of 14 marks were added above the total percentage of marks computed as per the procedure prescribed in the advertisement. Thus, when the marks secured by the candidates were converted into percentage, some of the candidates, who otherwise secured lower marks, were granted higher percentage of marks and were selected by the case of the petitioner, was rejected. The Supreme Court further referred to the clarification issued by the Government that grant of grace marks as notified in the advertisement has to be strictly followed and merely converting the marks secured by the applicants on the basis of the academic records and experience into percentage would not in any manner be made prejudicial to the interest of the petitioner (Saktipada Mohapatra), which is the determining factor for assessment of merit and for consideration of the appointment. It is under the above facts that the Supreme Court allowed the appeal and directed the authorities to grant all notional benefits including pay scale and seniority to the petitioner therein Page 12 of 14 notwithstanding abolition of the Shikshya Sahayak scheme. 12. It is evident that the facts of Saktipada Mohapatra are entirely different from the facts of the present case and therefore, this Court holds that the ratio decided therein would have no application to the present case. 13. Reading of the impugned order reveals that the Collector has referred to his earlier order of rejection and the fact that there is no existing vacancy in Simulia Block and further that the claim of the petitioner is not maintainable on the ground of limitation. 14. From what has been stated hereinbefore, this Court finds no infirmity much less illegality in the order of the Collector so as to be persuaded to interfere. It is reiterated that the petitioner is guilty of gross delay and laches. Moreover, the order of the Collector passed on 10.08.2009 has remained unchallenged. 15. Be that as it may, fact remains that the original rejection of the candidature of the petitioner on the ground Page 13 of 14 of residence cannot be sustained in view of the ratio decided in the case of Chandramani Jena (supra). Admittedly, she was placed in the 3rd position in the final merit list and persons securing less mark than her have been engaged. Therefore, while not being inclined to issue a writ of mandamus directing the authorities to engage her as Shikshya Sahayak because of gross delay and laches on her part, this Court, nevertheless leaves it open to the authorities to consider the case of the petitioner for engagement under the new scheme of Junior Teacher (Schematic) prospectively, if vacancies are available with the rider that she shall have no claim to any kind of retrospective benefit. 16. The writ petition is disposed of in terms of the above observations. ……..……………………. Sashikanta Mishra, Judge Orissa High Court, Cuttack. The 9th October, 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: 09-Oct-2024 11:18:53 Page 14 of 14