Application under Articles 226 & 227 of Constitution of India. Nirupama Jena … v. State of Odisha & Others
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No. 9688 of 2016 Application under Articles 226 & 227 of Constitution of India. Nirupama Jena …… Petitioner --------------- - Versus - State of Odisha & Others ...…. Opp. Parties Advocate(s) appeared in this case:- ________________________________________________________ For Petitioner : M/s. K.K. Swain, P.N. Mohanty, B. Jena, S.C.D. Dash, P.K. Mohanty, U. Chhotray, R.P. Das & K. Swain, Advocates For Opp. Parties : Mr. S.N. Pattnaik, Addl. Government Advocate _________________________________________________________ CORAM: JUSTICE SASHIKANTA MISHRA JUDGMENT 04th March, 2025 SASHIKANTA MISHRA, J. An advertisement was issued on 11.09.2014 by the Commissioner-cum-Secretary to Government in School and Mass Education Department for engagement of Sikshya Sahayaks in different districts. Since the upper age limit was fixed to 35 years and as the petitioner was more than 35 years, she could not apply. Said
Legal Reasoning
advertisement was challenged before this Court by some Page 1 of 10 candidates with regard to upper age limit of 35 years in W.P.(C) No.6670 of 2015 and batch. During pendency of the writ application, the Government enhanced the upper age limit of general category candidates to 42 years. Accordingly, a corrigendum was issued on 09.02.2016 especially for the over age candidates. The last date of submission of application was 28.02.2016. The petitioner being eligible submitted her application. She was allowed to participate in the selection process and came out successful therein. After verification of the documents, she was selected for engagement and was posted to Baranga Nodal U.P. School in the district of Bhadrak as per engagement order dated 29.03.2016. She joined in the said post on 31.03.2016 after executing an agreement with the Collector-cum-CEO, Zilla Parishad, Bhadrak. Suddenly on 03.05.2016, the District Project Coordinator, SSA, Bhadrak cancelled her engagement on the ground that the petitioner had acquired B.Ed. qualification after September, 2014. It is stated that no opportunity whatsoever of hearing was granted to the petitioner before passing of such order. Even on merits, it is stated that the petitioner having passed B.Ed. examination Page 2 of 10 before the cut-off date of 28.02.2016 was eligible, for which her application was accepted and she was engaged. It is further stated that she had left her previous job as Asst. Teacher in Saraswati Sishu Vidya Mandir being selected as Sikshya Sahayak. But in view of cancellation of her engagement, she has been seriously prejudiced. On such facts, the petitioner has filed this writ application with the following prayer. “An appropriate writ be issued quashing the impugned order dated 03.05.2016 passed by the District Coordinator, SSA, Bhadrak canceling the engagement of the petitioner under Annexure-7 and she may be allowed to continue in the post of Sikhya Sahayak with all consequential service and financial benefits or in the alternative she may be adequately compensated as she has lost her job as an Assistant in Saraswati Sisu Bidyamandir, Unit-8, Teacher Bhubaneswar as in order to join as Sikhya Sahayak she had to resign from her previous post; (b) any other order/orders or direction/directions be issued so as to give complete relief to the petitioner; And for this act of kindness, the petitioner shall as in duty bound ever pray.” 2. Counter affidavit has been filed by the District Project Coordinator (opposite party No.4). It is stated that as per the guidelines dated 06.08.2013, a candidate is required to pass B.Sc/B.A. with B.Ed in order to be eligible for engagement as Sikshya Sahayak. Further, maximum age was fixed as 35 years and 5 years relaxation was granted for SC, ST, Women, Page 3 of 10 Ex-Servicemen and SEBC candidates as on 12.09.2014, i.e., the date of publication of the advertisement. The petitioner, being born on 06.06.1976 was 38 years, 3 months and 6 days as on the cut-off date, i.e. on 12.09.2014. But being a woman and SEBC candidate, 5 years relaxation was available. But she did not possess B.Ed. qualification. As such, she had not applied pursuant to the advertisement dated 12.09.2014. In view of the order passed by this Court in W.P.(C) No.6670 of 2015 and batch of cases, a corrigendum was issued extending the last date of submission of online application for candidates within the age group of 35 to 42 years to 30.09.2014 with relaxation for the reserved category candidates. The corrigendum was specifically meant for those candidates who were not able to apply pursuant to the first advertisement due to age specification. The petitioner cannot be treated as such a candidate as she was entitled to age relaxation of five years but had no training qualification (B.Ed.). Therefore, she cannot take advantage of the corrigendum, which was specifically meant for those candidates who could not apply because of age specification. However, the petitioner’s application was Page 4 of 10 inadvertently accepted and she was given engagement. Subsequently the mistake was detected for which the engagement order was cancelled. 3. The petitioner has filed a rejoinder to the counter stating that she became eligible to apply pursuant to the corrigendum having acquired B.Ed. qualification on 19.02.2015. Further, she also had OTET qualification. Since the corrigendum was issued on 09.02.2016, the eligibility of candidates is to be judged from the said date. 4.
Legal Reasoning
Heard Mr. K. Swain, learned counsel for the petitioner and Mr. S.N. Pattnaik, learned Addl. Government Advocate for the State. 5. Mr. Swain would argue that the petitioner acquired B.Ed. qualification from Indira Gandhi National Open University (IGNOU) on 19.02.2015, which is prior to the last date of submission of her application, i.e., 28.02.2016, as per corrigendum dated 09.02.2016. Therefore, she was eligible to be engaged as Sikshya Sahayak. Mr. Swain relies upon a judgment of the Division Bench of this Court in the case of Page 5 of 10 Biswaranjan Biswal and Ors. v. State of Odisha1 to submit that since there are no specified Rules as regards the relevant date for considering whether the candidate has requisite qualification, the last date fixed for submission of application is to be considered. The impugned order was passed only on the ground that she had acquired B.Ed. qualification after the last date fixed in the advertisement. It is settled law that once the last date for submission of applications is extended, it follows that eligibility would also be considered from the said extended date. Mr. Swain further argues that even otherwise it is not the case of the opposite parties that the petitioner had misrepresented facts or fraudulently obtained engagement. The fault, if any, was with the authorities for which the petitioner cannot be blamed. In this context, Mr. Swain has relied upon the judgments of this Court in the case of Pratima Sahoo vs. State of Odisha 20212 and Bikash Mahalik vs. State of Odisha.3 6. Per contra, Mr. S.N. Pattnaik would argue that the petitioner was admittedly not eligible to apply pursuant to the 1 2022 (III) ILR-CUT-1033 2 2021 (I) ILR –CUT- 150 3 2022 (I) ILR –CUT- 108 Page 6 of 10 first advertisement, as she did not possess B.Ed. qualification. The corrigendum was issued to permit only those candidates who were unable to apply pursuant to the original advertisement because of age restrictions. It was never meant for candidates like the petitioner who was ineligible for want to training qualification. The fact that the petitioner had acquired B.Ed. qualification after the last date of original advertisement is immaterial. 7. Reference to the guidelines dated 11.09.2014 issued by the Government mentions that the maximum age limit was 35 years for general candidates with relaxation of 5 years in case of ST, SC, Women, Ex-Servicemen and SEBC candidates. Undisputedly, the petitioner is a woman and SEBC category candidate. Therefore, she could have applied pursuant to the first advertisement. However, the requirement was to have B.Ed. qualification along with graduation, which the petitioner did not possess. She admittedly acquired B.Ed. qualification on 09.02.2015. A corrigendum was issued on 09.02.2016 inter alia stating as follows: “In pursuance of order of Hon’ble High Court passed in W.P.(C) No. 6670/15, read with Letter No. 2730/S&ME Page 7 of 10 to in continuation dated 04.02.2016 and the advertisement published vide OPEPA letter No. 7710 dated 11.09.2014, the last date for submission of on- line application for the post of Shiksha Sahayak (SS) is hereby extended for the candidates within the age group of 35-42 as on 30.09.2014 with relaxation of 5 years for for P.H. SC/ST/SEBC/Women and 10 years Candidates, those who were not able to apply due to age specification. The candidates, those who come under the age group of 35-42 with such relaxation can only be eligible to apply afresh who had not applied for the post of SS due to over age in response to the above advertisement. This relaxation of age has been made for one time only and this cannot be considered as a precedent.” 8. On a plain reading of the corrigendum, it would be clear that the same was issued only for those candidates who were not able to apply due to age specification. The petitioner obviously cannot be treated as such a candidate, as she was otherwise not eligible for want of B.Ed. qualification. But then, she did acquire B.Ed. qualification by the time the corrigendum was issued. So, as on the date of the corrigendum, she fulfilled the eligibility criteria and was also within the extended age group. Her application was accepted and she was favoured with an order of engagement. The only ground taken by the authorities for cancelling her engagement is that she acquired B.Ed. qualification after September, 2014. This is obviously not the same thing as not possessing B.Ed. qualification. If the Page 8 of 10 ground insisted upon by the authorities in the impugned order is to be accepted, then the petitioner’s application itself should not have been considered in the first place, but having accepted her application and giving her engagement it is certainly not open to the authorities to turn around and cancel the order of engagement on the ground of detecting the mistake later. It is stated at the cost of repetition that the petitioner is not someone who did not possess the eligibility. Therefore, only because she acquired the qualification after the last date for submission of application as per the original advertisement, by itself cannot make her engagement illegal. 9. This Court also finds that the order cancelling her engagement was issued without granting her any opportunity of hearing. Thus, the impugned order is in violation of the principle of natural justice. On such count also, the same cannot be sustained. 10. The petitioner’s assertion that she had resigned her former job to join as Sikshya Sahayak has not been specifically disputed or denied by the opposite parties in their counter. Assuming the said averments to be correct, it would be a Page 9 of 10 situation where the petitioner would be left with no means for livelihood, if the impugned order is sustained. This would amount to violation of the principles underlying Article 21 of the Constitution of India. 11.
Decision
For the foregoing reasons therefore, this Court holds that having accepted the candidature of the petitioner and selecting her and engaging her as Sikshya Sahayak, the authorities cannot subsequently turn around and cancel the same on the ground of detection of the purported mistake. That apart, the petitioner fulfills all the eligibility criteria for being engaged as Sikshya Sahayak. Therefore, her engagement cannot be set at naught only on the technical ground of not having the B.Ed. qualification on or before September, 2014. 12. In the result, the writ petition is allowed. The impugned order under Annexure-7 is hereby quashed. The opposite parties are directed to allow the petitioner to continue as Sikshya Sahayak with all consequential service and financial benefits. Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: Personal Assistant Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 06-Mar-2025 11:19:19 Orissa High Court, Cuttack. The 4th March, 2025/ A.K. Rana, P.A. ……..……………………. Sashikanta Mishra, Judge Page 10 of 10