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IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C). No. 8012 of 2022 (An Application under Articles 226 & 227 of the Constitution of India) W.P.(C). No. 8012 of 2022 N.Eswar Rao ...… Petitioner --------------- -Versus- State of Odisha and Others .... Opposite Parties W.P.(C). No. 8014 of 2022 N.Pitambar Rao ….. Petitioner -Versus- State of Odisha & Others …. Opposite Parties W.P.(C). No. 8015 of 2022 D.Mohan Rao ... Petitioner -Versus- State of Odisha & Others ….. Opposite Parties Advocate(s) appeared in this case:- ________________________________________________ For Petitioner : Mr. P.K.Mishra, Advocate, with Mr. S.K.Dash, Advocate For Opp. Party : Mr. S.N.Pattnaik, Additional Government Advocate for the State. _______________________________________________________ CORAM: JUSTICE SASHIKANTA MISHRA JUDGMENT 9th August, 2024 Page 1 of 13 SASHIKANTA MISHRA, J. This batch of cases, involves common issues arising out of the identical facts inasmuch as the dates of appointment of all the three petitioners is 20.12.2003 and their prayer is also same. As such, all the three cases were heard together and are disposed by this common judgment. However, for the sake of convenience and brevity, the facts of W.P.(C) 8012 of 2022 are referred to herein after. 2. The petitioners in all three writ applications challenge the order dated 07.03.2022 passed by the District Project Coordinator, SSG, Gajapati in discharging them from service. 3. The facts, relevant only for deciding the lis is that the petitioner (in W.P.(C). No. 8012 of 2022) having successfully completed Teacher’s Training Course in 2000 submitted his application for engagement as Swechha Sevi Sikshya Sahayak pursuant to an Page 2 of 13 advertisement issued in the year 2003. He was selected and an order of engagement was issued in his favour on 18.12.2013 pursuant to which he joined on 20.12.2013. While he was continuing as such, another advertisement was issued to fill up the post of Swechha Sevi Sikshya Sahayaks in Pralakhemundi Education District for the year 2004-05. The petitioner also applied and a provisional merit list was prepared wherein he was placed at Sl. No. 32. The said list was however cancelled as per notification dated 10.01.2005. The petitioner found that candidates having less percentage of marks and had been appointed like the petitioner, were included in the fresh merit list prepared on 20.01.2005 but the petitioner’s name did not find place therein. The petitioner approached this Court in W.P.(C). No. 1103 of 2005 wherein by order dated 27.02.2006, this Court while issuing notice directed as an interim measure that the petitioner shall not be disengaged without the leave of the Court. In the year 2019, the then District Education Officer Paralakhemundi instigated the petitioner to withdraw the case as a condition for his regularization. Page 3 of 13 Accordingly, the petitioner on his own bonafide plea withdrew the writ application on 31.01.2019. He was however asked to show cause by letter dated 11.02.2022 as to why his service would not be terminated. The petitioner submitted his reply but without considering the same, the impugned order was passed disengaging him from service. On such facts, the petitioner has approached this Court with the following prayer. to allow the authority “The petitioner, therefore, most humbly prays that this Hon’ble Court may be graciously pleased to issue a Rule Nisi calling upon the Opp. Parties to show cause as to why the order dtd. 07.03.22 passed by Opp.Party No.5 issued (Annexure-13) shall not be directing the petitioner to continue as S.S.S. teacher by inclusion of the petitioner in the merit list on 20.01.2005 of SSS published pursuant to the advertisement under Annexure-6 and why the petitioner will not be granted the consequential benefits in terms of the engagement order under Annexure-5 if the Opp. Parties so in sufficient cause made the said rules absolute. And the writ petition may kindly be allowed. And the Hon’ble Court may issue further order/direction deemed just and proper in the peculiar of the present case. And the petitioner as in duty bound shall ever pray.” this act of kindness, for Page 4 of 13 4. The Opposite Party No.5 has filed a counter wherein the relevant facts are not disputed but it is stated that the initial engagement of the petitioner and similarly
Legal Reasoning
placed candidates was held to be illegal by this Court in the case of Hrushikesh Bindhani Vs. State of Odisha1. However, the petitioner was not disengaged and allowed to continue as per instructions of the Government issued on 06.12.2004 and 24.12.2004. It is further stated that the petitioner is not otherwise eligible as he passed matriculation examination conducted by Andhra University held in the year 1989, which is not equivalent to HSC examination of Board of Secondary Education, Odisha. Therefore, he was rightly disengaged. 5. In his rejoinder, the petitioner stated that he appeared in the matriculation examination on 11.06.1988 but could clear only 2 out of 6 subjects. He again appeared on 03.12.1988 and cleared the remaining 4 subjects on 30.11.1989. Therefore, he should be treated as a student of the year 1988. Since the matriculation examination 1 W.P.(C). No. 11748 of 2003 Page 5 of 13 conducted by Andhra University was then equivalent to HSC examination of BSE, Odisha, the petitioner is eligible. It is further stated that another person namely N.Hema Sundar Rao, who is identically placed as the petitioner, has in the meantime been regularized without raising the issue of equivalency. 6. Heard Mr. P.K.Mishra, learned counsel for the petitioner and Mr. S.N.Pattnaik, learned Additional Government Advocate for the State. 7. Mr. Mishra would argue that there is no dispute that the list prepared after the advertisement of the year 2003 was quashed by this Court in the case Hrushikesh Bindhani (supra). Notwithstanding such fact, the petitioner was continued to be engaged as per instructions issued by the Government. The authorities have taken a new plea of lack of equivalence between Andhra University and BSE in respect of matriculation examination only to disengage the petitioner. Mr. Mishra further submits that when the case of N.Hemsundar Rao, Page 6 of 13 who is identically placed as the petitioner, could be favourably considered, there is no reason why the petitioner’s case would not be considered as otherwise it would amount to discrimination. Mr. Mishra further submits that the petitioner having appeared in the matriculation examination for the first time in the year 1988 and having cleared 2 out of 4 subjects in his first attempt must be deemed to have passed the matriculation examination in the year 1988. 8. Mr. S.N.Pattnaik, learned Additional Government Advocate submits that the petitioner’s case is covered by the judgment of this Court in Hrushikesh Bindhani (supra) as his engagement was done as per letter dated 26.09.2003 which was declared null and void by the Court. Even otherwise, the petitioner passed matriculation examination conducted by Andhra University in the year 1989 when such course was not equivalent to that of the HSC examination of BSE. Mr. S.N.Pattnaik, learned AGA further argues that the case of N.Hema Sundar Rao cannot be compared to the facts of Page 7 of 13 the case for the reason that his appointment was made in furtherance of the guidelines issued in the year 2012, as per which the minimum academic qualification was plus two pass with CT qualification. On the contrary, in the advertisement issued in the year 2004-05, the minimum academic qualification was matriculation. Therefore, N. Hema Sundar Rao’s case cannot be taken into account. 9. Admittedly, the petitioner was engaged as Swechha Sevi Sikshya Sahayak w.e.f. 18.12.2003 in Upper Primary School, Dengali of Mohana block of Gajapati district. In the case of Hrushikesh Bindhani (supra) this Court held that the engagement of Swechha Sevi Sikshya Sahayaks, made in pursuance of letter dated 26.09.2003 without advertisement, was null and void and directed issuance of fresh advertisement. It is not disputed that the petitioner applied pursuant to such fresh advertisement. By letter dated 24.12.2004, the Government in School and Mass Education Department directed all the Collectors to issue engagement orders to those Swechha Sevi Sikshya Sahayaks who were reselected in the Page 8 of 13 current merit list from 10682 irregular engagement made after 26.09.2003. Significantly, it was also directed that the rest of Swechha Sevi Sikshya Sahayak who have not been reselected in the current merit list were to be continued until further orders. No further material has been placed before this Court to show as to what decision was taken as regards the Swechha Sevi Sikshya Sahayaks who were not reselected but allowed to continue. It is only when the petitioner was permitted to withdraw the writ application filed by him, being W.P.(C). No. 1103 of 2005, that he was asked to show cause by notice dated 11.02.2022. The show cause notice does not mention any reason as to why the petitioner should be disengaged save and accept that the writ application filed by him was dismissed as withdrawn. Thus, in between 24.12.2004 and 11.02.2022, the Government directed that all Sikhya Sahayakas who have not been reselected were to continue until further orders, and no further decision apparently was taken by the Government in this regard. It is only in the counter affidavit filed by the Opposite Party No.5 that for the first time a plea has been Page 9 of 13 taken that the petitioner is not eligible because of lack of equivalence of matriculation examination of Andhra University and the HSC examination of BSE. Such fact not having been mentioned in the show cause notice, cannot obviously be permitted to be raised subsequently. Nevertheless, this Court finds that the petitioner appeared in the matriculation examination for the first time in October 1987 but could clear only two subjects. He again appeared in September 1988 and this time he cleared 3 subjects. Finally, he appeared in March 1989 and cleared the remaining 2 subjects. Obviously, the petitioner can only be treated as having cleared all the subjects on March 1989 but then, the repeat examinations that he appeared twice can only relate back to the original examination held in October 1987. A similar situation arose in case of N. Hema Sundar Rao who had also similarly appeared for the first time in the matriculation examination on 11.06.1988 but could clear only 2 subjects. He again appeared on 03.12.1988 when he cleared only 2 subjects and again appeared on 30.11.1999 when he cleared the remaining 2 subjects. A Page 10 of 13 clarification was sought for citing such facts by the DPC to the Controller of Examination of BSE by letter dated 17.09.2019. The response of BSE to such letter is not forthcoming from the record but this Court finds that said N.Hema Sundar Rao’s services were regularized by order dated 18.05.2023 upon completion of 6 years of continuous engagement as Swechha Sevi Sikshya Sahayak and Junior Teacher taken together. 10. It has been argued that the case of N.Hema Sundar Rao cannot be taken into account as the basis of selection in his case was marks secured in plus two examination while in case of the petitioner it was matriculation. This is an absurd argument which can be considered only to be rejected. It is for the reason that according to the Opposite Parties, if the matriculation qualification was unacceptable because of lack of qualification, how could a higher qualification be considered. Obviously, a candidate whose matriculation examination is unacceptable, any higher qualification acquired by him would be of no avail. Since, such a Page 11 of 13 question was not raised in the case of N.Hema Sundar Rao it obviously implies that his matriculation certificate was accepted. Such being the case, there is no reason why the petitioner should be discriminated as he too stands on absolutely the same footing as N. Hema Sundar Rao. 11. For the foregoing reasons therefore, this Court finds firstly, there is no material placed to show that the decision taken by the Government as communicated in letter dated 24.04.2004 was withdrawn or recalled so as to justify discontinuance of the engagement of the petitioner. Moreover, the petitioner has continued in service on the strength of the interim order passed by this Court in W.P.(C). No. 1103 of 2005. By the time the impugned show cause notice came to be issued in the year 2012, the petitioner had already put in 19 years of service. Secondly, the other ground taken by the authorities, i.e. lack of minimum qualification for want of equivalence, is entirely unsustainable as held hereinbefore. This Court therefore, finds that the action Page 12 of 13 of the authorities in disengaging the petitioner is wholly unjustified as also discriminatory. 12. Furthermore, the reasons as mentioned above, are also fully applicable to the facts of the cases in W.P.(C) 8014 of 2022 & W.P.(C) 8015 of 2022 and consequently the directions as mentioned below are also applicable to those cases as well. 13. In the result, the writ applications are allowed. The impugned order of disengagement dated 07.03.2022 in each of the cases is hereby quashed. The Opposite Parties are directed to reinstate the petitioners in service forthwith. The petitioners shall not be entitled to any financial benefits from the date of their disengagement till reinstatement but their services shall be notionally counted for the purpose of continuity. ……..………………….. Sashikanta Mishra, Judge Signature Not Verified Digitally Signed Signed by: DEEPAK PARIDA Deepak Reason: Authentication Location: OHC,Cuttack Date: 16-Aug-2024 14:04:36 Page 13 of 13