Application under Articles 226 & 227 of Constitution of India. Sailendra Narayan Panda & v. State of Odisha and Ors
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No. 10125 of 2021 Application under Articles 226 & 227 of Constitution of India. Sailendra Narayan Panda & Another …… Petitioners --------------- - Versus - State of Odisha and Ors. ...…. Opp. Parties Advocate(s) appeared in this case:- _________________________________________________________ For Petitioner : Mr. J.K. Rath, Sr. Advocate with M/s. D.N. Rath, A.K. Saa & S. Dash, Advocates. For Opp. Parties : Mr. A.R. Dash, Addl. Government Advocate _________________________________________________________ CORAM: JUSTICE SASHIKANTA MISHRA JUDGMENT 30th July, 2024 SASHIKANTA MISHRA, J. The petitioners have approached this Court with the following prayer: “Under the above circumstance, is therefore humbly prayed that this Hon’ble Court may be graciously pleased to issue a writ in the nature of writ of mandamus or any other appropriate writ, direction or order by directing the opposite parties, more particularly the opposite it Page 1 of 11 party no.4 to extend the benefit of engagement of Sikshya Sahayak in favour of the petitioners with effect from 02.01.2008 and the petitioners be given the benefit to the post of Junior Teacher with effect from 0201-2011 and thereafter to the post of Regular Primary School Teacher with effect from 02.01.2014. And this Hon’ble Court be further pleased to direct the opposite party no.3 to put the petitioners in the cadre of Primary School Teachers as maintained by him in accordance with the Orissa Elementary Education (Method of Recruitment and Conditions of Service of Teachers and Officers) Rules, 1997 as Level-V Teacher and accordingly to extend other benefits as are available under the said rule and to extend the seniority as well as financial benefit in favour of the petitioners without any further delay. And this Hon’ble Court be pleased to pass any further order/order or direction/ directions as this Hon’ble Court deems fit and proper in the facts and circumstances of the case. And for this act of kindness, as in duty bound, the petitioner shall ever pray. ” 2. The brief facts of the case are that on 31.05.2006, the Government in Department of School and Mass Education issued a resolution laying down the guidelines for engagement of Sikshya Sahayaks. In the said resolution it was provided that selection is to be made taking the education district as a unit. Subsequently, a corrigendum was issued on 12.10.2006 substituting the word ‘Block Unit’ in place of ‘Education District’ in clause Page 2 of 11 4.1 of the aforementioned resolution. Accordingly on 14.10.2006, an advertisement was issued for engagement of Sikshya Sahayaks indicating the persons to be engaged as such in each block of the revenue district. The advertisement mentioned that selection was to be made taking the revenue district as the unit. The number of vacancies in Bhadrak-II Education District was stated to be 1239. The petitioners claim to have been placed in the merit list for engagement as such. However, because of the fact that the selection was made taking the revenue district as the unit, the petitioners were not considered. The petitioners thereafter approached this Court in W.P.(C) No. 13458 of 2007 with prayer to recast the merit list taking the education district as the unit. Subsequently, this Court in the case of Chandramani Jena Vs. State of Odisha,1 in its judgment dated 23.08.2008 held that the amended claue- 4.1 of the resolution is violative of Article 16(2) of the Constitution of India. Subsequently, the writ petition filed by the petitioners being W.P.(C) No.13458 of 2007 was 1 2007 (II) OLR- 557 Page 3 of 11 disposed of by order dated 22.09.2015 granting liberty to the petitioners to submit representation to the Secretary in the Department of School and Mass Education which was to be considered in light of the decision of this Court in Chandramani Jena (supra). The petitioners submitted representations but the same came to be rejected by the Secretary by order dated 20.11.2015. The petitioners again
Legal Reasoning
approached this Court in W.P.(C) No. 6506 of 2016. By order dated 21.06.2018, this Court quashed the order of the Secretary passed on 20.11.2015 and directed that the petitioners’ case shall be reconsidered and accordingly remitted the matter to the Secretary to take a fresh decision within six weeks. Since no action was taken, the petitioners filed CONTC No. 2524 of 2018, which was disposed of directing the opposite parties to comply with the order within three months. The petitioners again filed CONTC No. 331 of 2019. During pendency of the said contempt application, a compliance affidavit was filed by the District Project Co-coordinator, SS, Bhadrak enclosing therewith copies of the orders of engagement issued in favour of the Page 4 of 11 petitioners on 06.08.2020. The petitioners are further aggrieved by issuance of the said engagement orders as they have been engaged not as Sikshya Sahayaks but as Junior Teacher Contractual. On such facts, the petitioners have approached this Court claiming that they ought to have been engaged as Sikshya Sahayaks w.e.f. 02.01.2008, the date on which persons from the same merit list were so engaged. Further, the petitioners claim that they should be treated as Junior Teachers w.e.f. 02.01.2011 and thereafter regularized as Primary School Teacher w.e.f. 02.01.2014. 3. Counter affidavit has been filed on behalf of the State opposite parties. The engagement of the petitioners as Junior Teacher Contractual is sought to be justified by stating that they have not worked as Sikshya Sahayaks from 02.01.2008 but joined only on 06.08.2020 pursuant to the engagement order issued. As such, they do not satisfy the criteria required to be fulfilled for being treated as Junior Teacher and thereafter as Regular Primary School Teacher. Page 5 of 11 4. The petitioners have filed a rejoinder refuting the averments made in the counter and by relying upon the judgment of the Supreme Court of India in the case of Saktipada Mohapatra Vs. State of Orissa (Civil Appeal Nos. 1215 of 2022, disposed of on 02.02.2022), wherein similarly situated persons were directed to be engaged as Sikshya Sahayaks pursuant to the original advertisement. 5. Heard Mr. J.K. Rath, learned Senior Counsel along with Mr. S Das, learned counsel for the petitioners and Mr. A.R Dash, learned Addl. Government Advocate for the State. 6. Learned Senior Counsel Mr. Rath would argue that the engagement of the petitioners being delayed by the authorities themselves, the petitioners cannot be blamed for the same. That apart, the said belated engagement must be held to be in pursuance of the advertisement issued on 14.10.2006. Mr. Rath has referred to a notification of the Government in School and Mass Education Department dated 12.03.2018, whereby the Sikshya Sahayaks were re- Page 6 of 11 designated as Junior Teachers Contractual. On such basis, Mr. Rath contends that most probably the authorities have been swayed away by the aforementioned resolution, which obviously cannot be made retrospectively applicable. 7. Mr. A.R. Dash, learned Addl. Government Advocate while opposing the arguments of Mr. Rath however, fairly submits that the engagement of the petitioners cannot be treated as fresh engagement but would relate back to the advertisement issued on 14.10.2006. Mr. Dash however, attempted to justify the non-engagement of the petitioners earlier by submitting that the decision to recast the merit list was taken only after passing of the judgment in Chandramani Jena’s case. 8. Upon going through the pleadings and contentions advanced, this Court finds that the facts of the case are not disputed. The petitioners have submitted their candidatures pursuant to the advertisement issued on 14.10.2006 for engagement as Sikshya Sahayak in Bhadrak-II Education District. This Court need not dwell Page 7 of 11 upon the facts relating to the substitution of clause-4.1 of the advertisement since the same is now long settled by the judgment of the Division Bench of this Court in the case of Chandramani Jena(supra). It would suffice to note that the petitioners, even as per the own admission of the opposite parties were held eligible for being engaged as Sikshya Sahayaks in Bhadrak Education District. In fact, in paragraph-12 of the counter affidavit filed by the State it is stated as under: “12. That it is humbly submitted that to comply to the order of this Hon’ble Court in W.P(C) No.6506 of 2016, this deponent has been attempted to recast the merit panel for the post of Sikshya Sahayak in Bhadrak District pursuant to the advertisement published during the year 2006-07 on Education District wise. It was found that if the selection was made on education district wise the present petitioners, Sri Sailendra Narayan Panda and Sri Bhaskar Chandra Das of CT category qualifies for the said post of 2006-07 recruitment in Bhadrak-II education district.” 9. It is also not disputed that ultimately the merit list was recast and the petitioners were issued with orders of engagement. Now the question that arises for consideration is, whether such engagement can be treated as fresh engagement or shall relate back to the original Page 8 of 11 advertisement issued on 14.10.2006. The answer is obvious as bereft of the advertisement dated 14.10.2006 there was no other occasion to engage the petitioners. Moreover, the order of engagement itself has been passed in compliance of the order of this Court in W.P.(C) No. 6506 of 2016 filed by the petitioners for their engagement pursuant to the original advertisement. It is not disputed that persons from the merit list prepared pursuant to the advertisement dated 14.10.2006 were appointed on 02.01.2008. From what has been narrated hereinbefore, there can be no manner of doubt that but for the inaction and inordinate delay caused at the end of the opposite parties the petitioners would also have been favoured with orders of engagement at least with effect that the date i.e.02.01.2008. Such being the factual scenario, the notification dated 12.03.2018 redesignating Sikshya Sahayak as Junior Teacher Contractual can have no application to the petitioners. 10. A stand has been taken by the opposite parties that the petitioners have not rendered any work to the Page 9 of 11 establishment and therefore, they cannot be extended with any benefits. This Court is fully conscious of the principle of ‘no work no pay’ but then in the instant case it is not so much a question of extension of financial benefits but the question of engagement of the petitioners for the purpose of notional extension of service benefits which they otherwise would have been entitled to but for non-issuance of the orders of engagement earlier. 11. Thus, from a conspectus of the analysis of facts and law made hereinbefore, this Court is left with no doubt that the petitioners should have been engaged w.e.f. 02.01.2008 and that too as Sikshya Sahayaks. Since the petitioners have been issued with engagement order dated 06.08.2020 as Junior Teacher Contractual, the same needs to be revisited and modified accordingly. 12. In the result, the writ petition is disposed of directing the Collector-cum-Chief Education Officer, Zilla Parishad, Bhadrak (opposite party No.4) and District Education Officer, Bhadrak-II (opposite party No.3) to issue Page 10 of 11 necessary orders to modify the orders of engagement issued in favour of the petitioners by treating their date of engagement as 02.01.2008 and by specifically designating them as Sikshya Sahayaks as envisaged in the advertisement dated 14.10.2006. It is made clear that the petitioners shall not be entitled to any financial benefits for the period during which they had not rendered any work to the establishment but they shall be entitled to all other service benefits including career advancement benefits notionally in accordance with law. Necessary order shall be passed by opposite party Nos. 3 & 4 within two months from the date of production of certified copy of this order. ……..……………………. Sashikanta Mishra, Judge Orissa High Court, Cuttack. The 30th July, 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: 01-Aug-2024 19:34:11 Page 11 of 11