The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No. 8756 of 2019 (In the matter of an application under Articles 226 and 227 of the Constitution of India, 1950) Smt. Swarnalata Panda …. Petitioner(s) -versus- State of Odisha & Ors. …. Opposite Party(s) Advocates appeared in this case through Hybrid Arrangement Mode: For Petitioner(s) For Opposite Party(s) : : Mr. K.K. Swain, Adv. Mr. Ch. Satyajit Mishra, AGA CORAM: DR. JUSTICE S.K. PANIGRAHI DATE OF HEARING:-23.11.2023 DATE OF JUDGMENT: -22.12.2023 Dr. S.K. Panigrahi, J. 1. The Petitioner through this Writ Petition has challenged the order dated 23.02.2019 passed by the Collector and District Magistrate, Nayagarh, wherein he has rejected the case of the petitioner on the ground that the District Selection Committee of Nayagarh District in its meeting held on 30.04.2007 decided that experience of Ex-Non- Formal Instructor of other district will not be taken into account for the purpose of selection which is in violation of order dated 08.01.2018 passed in W.P. (C) No.15386 of 2015. Signature Not Verified
Legal Reasoning
Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 31-Jan-2024 17:58:36 Page 1 of 10 I. CASE OF THE PETITIONER: 2. Pursuant to the advertisement dated 13.10.2006 published in the local daily "The Dharitri", the petitioner applied for the post of Sikhya Sahayak in respect of Daspalla Block of Nayagarh district. Accordingly, the petitioner was allowed to participate in the selection process and she being selected, she was issued with engagement order to join as a Sikhya Sahayak by virtue of order dated 14.06.2007 of the Collector-cum-Chief Executive Officer, Zilla Parishad, Nayagarh. Pursuant to the said order dated 14.06.2007, the petitioner joined the said post on 20.06.2007 and continued to discharge her duties peacefully to the best satisfaction of all concerned. 3. The petitioner while continuing as such, all of a sudden, she was disengaged from service on the ground that she has secured less percentage of marks in the merit list. The petitioner being aggrieved by the order dated 12.10.2007 passed by the Collector-cum-Chief Executive Officer, Zilla Parishad, Nayagarh filed a writ petition bearing W.P.(C) No.15026 of 2010 in this Court. 4. After issuance of notice in the said writ application, a comprehensive counter affidavit was filed by the opposite party no.4, i.e., the District Project Coordinator, SSA, Nayagarh wherein a stand was taken that the petitioner was wrongly awarded 20 grace marks for having worked as Non- Formal Instructor continuously till 31.03.2001. In other words, according to the counter affidavit Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 31-Jan-2024 17:58:36 Page 2 of 10 filed by the opposite party no.4, she should have been awarded 8 marks as per the advertisement dated 13.10.2006. Another ground was taken in the counter affidavit that the last engaged candidate had secured 94.44% of marks and the petitioner having secured less percentage of marks than the last engaged candidate, hence, she was rightly disengaged from service. 5. The petitioner filed a rejoinder affidavit in W.P. (C) No.15026 of 2010 clearly indicating therein that her percentage of marks in B.A. and B.Ed. Examination comes to 90.51 as she secured 43.40% of marks in B.A. and 47.11% of marks in B.Ed. Besides that 8 marks having been awarded to her on the basis of her past experience as a Non- Formal Instructor. Further, she had rendered two years of service as a Non- Formal Instructor, her total percentage of marks come to 98.51%. Therefore, her total percentage of marks being more than the last engaged candidate who has secured 94.44% of marks, the disengagement order is liable to be quashed and she should be re- engaged / reinstated in her former post. 6. This Court upon hearing the parties vide order dated 10.02.2015
Decision
disposed of the writ petition filed by the petitioner by quashing the disengagement order dated 12.10.2007 and directed the opposite parties to re-consider the candidature of the petitioner and appoint her as Sikhya Sahayak afresh. 7. In pursuance of the aforesaid order dated 10.02.2015 passed in W.P.(C) No.15026 of 2010, the Collector- cum-Chief Executive Officer, Zilla Parishad, Nayagarh instead of issuing engagement Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 31-Jan-2024 17:58:36 Page 3 of 10 order in favour of the petitioner rejected her case mainly on the ground that she has not passed Ο.Τ.Ε.Τ. Examination and her total percentage of marks as per present Scheme is less than the last selected candidate who has secured 212.58 % of marks in B.A., B.Ed. category. 8. The order dated 07.08.2015 passed by the Collector-cum-Chief Executive Officer, Zilla Parishad, Nayagarh was challenged in this Court by filing W.P.(C) No. 15386 of 2015 mainly on the ground that her case could not have been considered on the basis of the advertisement made in the year 2014, as the authorities ought to have taken into consideration the percentage of marks of last selected candidate of 2006 advertisement. Besides that there was no necessity of passing of O.T.E.T. Examination at the relevant time when the advertisement of 2006 was floated. So far as O.Τ.Ε.Τ. Examination is concerned, the same was introduced in the year 2011. 9. Apart from it, the petitioner had also taken another ground that since she had served as Non-Formal Facilitator for around two years, she is entitled to 8 grace marks instead of 20 marks and if 8 grace marks are taken into account, then also she would have been selected as her total percentage of marks come to 98.51 per cent. 10. It appears that the matter was taken up by the competent authority pursuant to the aforesaid direction of this Court. Perusal of the impugned order, it becomes clear and apparent that the decision involving the issue has been taken by following the guidelines Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 31-Jan-2024 17:58:36 Page 4 of 10 circulated on 6.8.2013 admittedly has no existence at the time of advertisement. Law is fairly settled that a document not seen the light of the day should not be taken into account. Considering that the advertisement was issued based on a set of circulars/ resolutions existed then for the prospective nature of resolution applied and decided in the case of the petitioner, this Court finds, the impugned order at Annexure-7 is not sustainable in the eye of law. As a consequence, this Court interfering in the impugned order at Annexure-7, sets aside the same and remits the matter back to the competent authority, i.e. the Collector-cum- Chief Executive Officer, Zilla Parisad, Sarvasikhya Abhiyan, Nayagarh, opposite party no.3 for having a fresh look to the grievance of the petitioner and passing appropriate order remaining with the circulars and resolutions in operation at the time of advertisement only. 11. Pursuant to the order dated 08.01.2018 passed by this Court in W.P.(C) No. 15386 of 2015, the Collector and District Magistrate, Nayagarh vide its order dated 23.02.2019 again rejected the case of the petitioner on the ground that although there is no stipulation in the advertisement to disallow the Ex-Non-Formal Instructor of other district, as per the decision of the District Selection Committee of Nayagarh held on 30.04.2007, the grace marks will not be granted to the Ex- Non-Formal Instructor of other district and therefore, no mark will be given to the petitioner for her experience as Non- Formal Instructor and accordingly, rejected her case. Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 31-Jan-2024 17:58:36 Page 5 of 10 12. The impugned order dated 23.02.2019 passed by the Collector and District Magistrate, Nayagarh under Annexure-8 is liable to be quashed/ set aside, as in the advertisement of 2006 there is a clear stipulation that Ex-Non- Formal Instructor/ Facilitator will get 4 marks for each year and the petitioner having served for around two years as Non-Formal Facilitator, the Collector and District Magistrate, Nayagarh ought to have given 8 grace marks to the petitioner. 13. The action of the District Selection Committee of Nayagarth is contrary to the advertisement/ resolution of the State Government for engagement of the Sikhya Sahayak which has been admitted by the Collector and District Magistrate, Nayagarh in his impugned order dated 23.02.2019. Therefore, the impugned order dated 23.02.2019 passed by the Collector and District Magistrate, Nayagarh may be quashed and necessary direction/ directions may be made to the opposite parties to engage her as Sikhya Sahayak pursuant to the advertisement of 2006, as she has secured higher marks than the last selected candidate, if 8 grace marks is taken into account as per the advertisement of 2006. 14. In the fitness of circumstances and in the interest of justice, the impugned order dated 23.02.2019 passed by the Collector and District Magistrate, Nayagarh may be quashed and necessary direction/ directions may be made to the opposite parties to re- engage the petitioner as Sikhya Sahayak with all consequential benefits, as the opposite parties are harassing the petitioner for last Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 31-Jan-2024 17:58:36 Page 6 of 10 12 years. Therefore, necessary directions/ directions may be made to the opposite parties to pay her remuneration from the date of her disengagement, as her case is rejected from time to time by the authorities despite the successive orders passed by this Court. Therefore, the opposite parties with malafide intention are harassing the petitioner who is out of employment since 12.10.2007. II. SUBMISSIONS OF OPPOSITE PARTIES: 15. Per contra, learned Counsel for the Opp. Parties intently made the following submissions: 16. While preparing the select list the case of the petitioner was considered and she was awarded 20 Grace marks for having worked as NFE continuously till 31.03.2001 i.e. 4 marks per year and maximum 5 years as an additional mark for such category of candidates on the basis of a certificate submitted by the applicant purportedly issued by D.I. of schools, Bhubaneswar certifying that Smt Swarnalata Panda was working as an instructor at jail road, Jharapada NFE Centre from 12.07.1999 to 31.03.2001 and the said certificate does not carry the letter number or date of letter issue followed by Government offices. 17. On the basis of the total marks secured by the applicant in BA and BEd. Examination taken together, which comes to 90.51% and besides that she was awarded 20 marks for having worked as NFE instructor and accordingly she was given engagement as Sikshya Sahayak in respect of Daspalla Block. Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 31-Jan-2024 17:58:36 Page 7 of 10 18. After such engagement process was over complaints from various quarters were received regarding illegality and irregularity of the selection process and considering the above said complaints the Collector cum CEO, Zilla Parishad, Nayagarh directed for recasting of the merit list after due scrutiny of the all application forms. 19. After recast of the entire merit list the applicant found place at serial no 34 under UR category and the last engaged candidate considering the vacancy position under UR category has secured 94.44% of marks. Now, there are more other applicants having more % of marks than the petitioner and have not engaged till now due to lack of post and in view of that the petitioner did not come within the zone of consideration. 20. As regards the contention of the applicant that no show cause notice was issued before such termination, it is respectfully submitted that the law is well settled that there is no need of issuing any show cause notice to a person who has been given engagement due to certain irregularity. As the present applicant was given engagement irregularly, there was no need to issue show cause notice to take action after recasting to the merit list. III. COURT’S REASONING AND ANALYSIS: 21. It is pertinent to mention here that as per Resolution dated 31.05.2006 of Govt. of Odisha in S & ME Department the selection of Sikshya Sahayaks was made taking Block as a unit, as the applicant had applied in respect of Daspalla Block, the Petitioner being a resident of the said Block, she was considered in respect of Daspalla Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 31-Jan-2024 17:58:36 Page 8 of 10 Block. After such engagement process was over, complaints from various quarters were received regarding irregularity of the selection process and considering the above said complaints the Collector cum CEO, Zilla Parishad, Nayagarh directed for recasting of the merit list after due scrutiny of the all application forms. 22. On further scrutiny of the application form of the petitioner, it was detected that although the petitioner submitted the NFE certificate purportedly issued by the D.I. of schools, Bhubaneswar which should not have been taken into consideration at the time of selection as it was passed by the proceeding of District Selection Committee, Nayagarh held on 30.04.2007 that the NFE instructor from the other Education District should not be entertained for the time being and since she did not work as NFE instructor in Nayagarh District. But, inadvertently, she was awarded 20 marks in the previous merit list which was disclosed after such defect was detected in the revised merit list and, accordingly, the percentage of marks of the applicant comes to 90.51%. 23. After recast of the entire merit list the applicant found place at serial no 34 under UR category and the last engaged candidate considering the vacancy position under UR category has secured 94.44% of marks. Now, there are more number of applicants having more percentage of marks than the petitioner and have not engaged till now due to non-availability of post and in view of that the petitioner did not come within the zone of consideration. Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 31-Jan-2024 17:58:36 Page 9 of 10 24. In view of the aforesaid discussions, this Court is not inclined to entertain the prayer of the petitioner. Accordingly, this Writ Petition is dismissed. No order as to cost. (Dr. S.K. Panigrahi) Judge Orissa High Court, Cuttack, Dated the 22nd Dec., 2023/ Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 31-Jan-2024 17:58:36 Page 10 of 10