Application under Articles 226 & 227 of Constitution of India. AFR Ramesh Chandra Swain v. State of Odisha and others
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No. 8903 of 2021 Application under Articles 226 & 227 of Constitution of India. AFR Ramesh Chandra Swain .…… Petitioner --------------- - Versus - State of Odisha and others ...…. Opp. Parties Advocate(s) appeared in this case:- _________________________________________________________ For Petitioner : M/s. Prasanna Kumar Mohanty & P.K. Behera, Advocates. For Opp. Parties : Mr. S.N. Pattnaik, _________________________________________________________ CORAM: Addl. Government Advocate JUSTICE SASHIKANTA MISHRA JUDGMENT 16th April, 2024 SASHIKANTA MISHRA, J. Aggrieved by the rejection of his representation by the Collector-cum-CEO, Zilla Parishad, Sarva Shiksha Abhiyan (SSA), Ganjam by order dated 12.03.2020, the petitioner has approached this Court in the present writ application. 2. An advertisement was published on 08.12.2011 inviting applications from eligible candidates for engagement Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: Personal Assistant Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 16-Apr-2024 18:30:04 Page 1 of 17 as Sikshya Sahayak under Sarva Shiksha Abhiyan (SSA), Ganjam Chhatrapur. The petitioner submitted his application. His name found place in the third phase Select List and he was directed to attend the District Project Office at Chhatrapur for verification of documents etc. At that time he was asked to produce the Odisha Teacher Eligibility Test (OTET) mark sheet, which he could not as he did not have
Legal Reasoning
such qualification. It is stated that the candidates in the first and second phase selection had been engaged without insisting upon OTET qualification and such a condition was raised only during the third phase. The petitioner therefore, approached this Court in W.P.(C) No. 12926 of 2015, which was disposed of by order dated 22.07.2015 directing the petitioner to submit a representation before the Collector, Ganjam furnishing all details including copy of the order passed by this Court in the case of Subrat Das and others vs. State of Odisha and others.1. Further direction was issued to the Collector to take a decision in accordance with law and to grant the consequential relief to the petitioner, if his case was found to be covered by the Court in the case of Subrat Das (supra). The petitioner submitted a Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: Personal Assistant Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 16-Apr-2024 18:30:04 1 2012 (II) ILR-CUT-1050 ; 2012 SCC OnLine Ori 447 Page 2 of 17 representation on 09.03.2017 along with copy of the order of this Court as well as the judgment in Subrat Das (supra). The representation of the petitioner not having been disposed of within the stipulated time, he again approached this Court in W.P.(C) No. 20361 of 2018 for a direction to consider his case for engagement as Sikahya Sahayak as per third phase selection. By order dated 21.12.2018, this Court disposed of the said writ petition directing the Collector to take a decision on the pending representation within three months. Since such order was also not complied, the petitioner filed a contempt petition being CONTC No. 1676 of 2019, which was disposed of by order dated 23.09.2019 to comply with the order passed in the writ application within three months. Since the petitioner was not informed anything as regards disposal of the representation, he submitted an application under Right to Information Act, 2005 before the Collector in this regard. In response to such application, it was informed that the representation had been disposed of by the Collector by order dated 12.03.2020 and same had also been communicated to him on 13.03.2020. Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: Personal Assistant Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 16-Apr-2024 18:30:04 Page 3 of 17 3. It is stated that the petitioner’s name finds place at serial No.6 in the third phase select list and his case is squarely covered by the ratio of Subrat Das (supra). In spite of the above, his representation was rejected on the ground that he had not passed OTET Examination and that all the posts had been filled up as per merit list, for which another recruitment process of 2013-14 was also over and further recruitment process of 2014-15 was in progress. It is stated that the judgment of this Court in Subrat Das was well within the knowledge of the opposite parties at the time of submission of his representation on 07.09.2015 and therefore, he should have been given engagement. It is further stated that only four numbers of OTET pass candidates out of 1221 were engaged. Being thus aggrieved, the petitioner has approached this Court seeking the following relief. “The petitioner, therefore, most humbly prays that your Lordship would be graciously pleased to issue Rule Nisi calling upon the Opp.parties to show as to why the impugned order dtd.12.3.2020 under Annexure-8 series shall not be quashed and further be pleased to direct the Opp.Parties to give engagement to the petitioner as Sikshya Sahayak. And issue any other order or orders as this Hon’ble Court deem fit and proper. Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: Personal Assistant Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 16-Apr-2024 18:30:04 Page 4 of 17 And for which act of kindness, the petitioners as in duty bound shall ever pray.” 4. Counter affidavit has been filed by the District Project Coordinator, Ganjam (opposite party No.3). It is stated that the petitioner does not possess the basic and prescribed requisite qualification for engagement as Sikshya Sahayak being non-OTET candidate having 44.395% of marks. This Court, while disposing of the writ application filed by the petitioner being W.P.(C) No. 12926 of 2015 had directed the Collector to consider the case of the petitioner and to grant him relief, if his case is covered by the decision in Subrat Das (supra). The decision passed in Subrat Das (supra) has been referred to in the counter. It is further stated that OTET examination was conducted and result was published on 04.02.2013. Due to non-joining of selected candidates and resignation tendered by some of the candidates, the third phase select list out of 150% approved merit list was circulated on 12.07.2013, for execution of agreement and issue of engagement orders. But on 16.07.2013 the Collector received letter dated 11.07.2013 from the Government in School and Mass Education Department with instructions to issue engagement order to the candidates out of 150% Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: Personal Assistant Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 16-Apr-2024 18:30:04 Page 5 of 17 approved merit list, who have cleared OTET examination, the result of which was published on 04.01.2013. As such, all the posts have been filled up as per merit and the recruitment process of the year 2011-12 and 2013-14 was over and another recruitment process of 2014-15 was in progress. It is lastly stated that the order of the Collector being well discussed and a reasoned one, merits no interference. 5.
Legal Reasoning
Heard Mr. P.K. Mohanty, learned counsel for the petitioner and Mr. S.N. Pattnaik, learned Addl. Government Advocate for the State. 6. Mr. P.K. Mohanty would argue that once the selection process had begun, the authorities could not have changed the criteria for selection midway. Pursuant to the initiation of selection process, candidates were selected in two phases strictly as per the norms laid down in the advertisement. Suddenly however, during the third phase selection, an additional requirement of having TET qualification was introduced by the authority. This is not only illegal but also highly discriminatory inasmuch as such Signature Not Verified criteria was never applied to the candidates selected in the Digitally Signed Signed by: AJAYA KUMAR RANA Designation: Personal Assistant Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 16-Apr-2024 18:30:04 Page 6 of 17 first and second phases. Mr. Mohanty would further argue that even otherwise there is nothing in the advertisement or in any law making it mandatory for an applicant of Sikshya Sahayak for acquiring prior TET qualification. According to him, TET qualification may be mandatory for regular teachers but not for Sikshya Sahayaks, who cannot be equated with regular teachers. In any case, this Court in Subrat Das (supra) directed the authorities to issue conditional engagement orders as per the select list granting them liberty to acquire OTET in future. There is therefore, no reason why the same benefit would not be granted to the petitioner. 7. Per contra, Mr. S.N. Pattnaik, learned AGA would submit that the norms of selection were not changed as alleged by the petitioner but only an additional criteria of having TET qualification was insisted upon as the same is in consonance with the guidelines of NCTE and the provisions of the Right of Children to Free and Compulsory Education Act, 2009 (in short, ‘2009 Act”). The petitioners in so far as Subrat Das (supra) are concerned, were granted liberty to acquire TET qualification by the end of January, 2013. It was Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: Personal Assistant Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 16-Apr-2024 18:30:04 Page 7 of 17 open to the petitioner to acquire such training, but he failed to do so. In fact the petitioner does not have TET qualification even till date, which makes him ineligible for being engaged as Sikshya Sahayak. According to Mr. Pattnaik therefore, the impugned order passed by the Collector rejecting the petitioner’s representation does not warrant any interference. 8. It is not disputed at the bar that the advertisement dated 08.12.2011 inviting applications for engagement did not contain any such requirement of prior TET qualification as an eligibility condition. In the letter dated 05.12.2011 of the Commissioner-cum-Secretary to Government in SME Department containing instructions for engagement of Sikshya Sahayaks (Annexure-1), there is no such requirement of prior TET qualification for the candidates. It is also not disputed that pursuant to the selection process, several candidates were engaged in two phases. The Government issued a notification on 29.03.2012 instructing the Collectors not to proceed further in the matter of engagement of Sikshya Sahayaks on the ground that TET is mandatory for recruitment of teachers as stipulated by NCTE under the provisions of 2009 Act. A Coordinate Bench of this Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: Personal Assistant Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 16-Apr-2024 18:30:04 Page 8 of 17 Court in the case of Subrat Das (Supra) had the occasion of dealing with an identical matter and noted that the advertisement was issued in the year 2011, i.e., much prior to the notification dated 29.03.2012, which had no retrospective effect. Further, additional criteria of acquiring TET before engagement was fixed after initiation of the selection process. This Court in Subrat Das held that once the selection process had started the authorities should not have changed the criteria of selection. Taking note of the decisions of the Supreme Court in the cases of Rajiv Kapoor v. State of Haryana2, and Parmender Kumar v. State of Haryana3, the Coordinate Bench felt it proper to quash the notification dated 29.03.2012 and the consequential notification dated 16.06.2012 issued by the Board of Secondary Education, Odisha. This Court therefore, finds that the basic notification dated 29.03.2012 fixing additional criteria is no longer available having been quashed for the reasons spelt out by the Coordinate Bench. This Court is in respectful agreement with the decision of the Coordinate Bench as above.