Application under Articles 226 & 227 of Constitution of India. AFR Mamata Nayak .… v. State of Odisha & others
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No. 10791 of 2022 Application under Articles 226 & 227 of Constitution of India. AFR Mamata Nayak .…… Petitioner --------------- - Versus - State of Odisha & others ...…. Opp. Parties Advocate(s) appeared in this case:- _________________________________________________________ For Petitioner : M/s. Shashi Bhusan Jena, S. Behera, S.P. Jena & C.K. Sahoo, Advocates. For Opp. Parties : Mr. S.N. Pattnaik, Addl. Government Advocate. ___________________________________________________________ CORAM: JUSTICE SASHIKANTA MISHRA JUDGMENT 26th April, 2024 SASHIKANTA MISHRA, J. The petitioner has approached this Court seeking the following relief: “Under facts and the abovementioned circumstances of the case, this Hon’ble Court may graciously be pleased to issue a writ of mandamus or any other appropriate writ/writs by quashing the order of rejection vide order no. 3502 dated. 7.3.2022 under Annexure-9. And to direct further be pleased the Opp.Parties to appoint the petitioner as Sikhya Sahayak taking into account 4136 number of vacant posts and by applying the principles decided in the judgment of this Hon’ble Court in Babita Satpathy and Ors vs. State of Odisha and (W.A. No.701/2019 disposed of on Others Page 1 of 13 23.12.2020) and batch of writ appeals for filling up the vacant posts. Or pass such order(s)/direction(s) as case may be deemed fit and proper in the interest of justice and equity.” 2. The petitioner’s case is that pursuant to advertisement issued vide Notification dated 26.12.2016 by the Commissioner-cum-Secretary to Government in School and Mass Education Department to fill up 14087 posts of Sikhya Sahayaks in 22 districts, the petitioner submitted her application online. It is stated that as per Clause-2(iii) of the said Notification, the petitioner submitted her option for 22
Facts
districts, with the first preference district being Bolangir and the 22nd being Malkangiri. She was asked to attend the verification of her original certificates on 01.02.2018. Thereafter, the eligible list of candidates was published, wherein her name found place at serial No.472. By a further Notification dated 01.12.2017 issued in pursuance of order passed by this Court in another writ application, over-aged candidates were called upon to apply. In the selection that followed only first two options were taken into account by the authorities. As a result, only 9951 posts were filled up leaving 4136 posts vacant. It is further stated that the other options exercised by the candidates including the petitioner Page 2 of 13 were not taken into consideration, but had such exercise been undertaken the petitioner would have definitely been selected for the post. In the meantime, she having become over-aged is no longer eligible to apply in case any fresh
Legal Reasoning
advertisement is issued. It is further stated that this Court in the case of Babita Satpathy v. State of Odisha1, directed engagement of Sikshya Sahayaks against unfilled vacancies. Such order passed in writ appeal has since been confirmed by the Supreme Court. The petitioner submitted several representations to the authorities but no action was taken, for which she approached this Court in W.P.(C) No.9290 of 2021. By order dated 17.03.2021, this Court directed the Secretary of the Department to consider the representation of the petitioner in accordance with law within three months. Since the order was not complied with, the petitioner filed CONTC No. 3666 of 2021, which was disposed of by this Court on 09.07.2021 directing the authority to comply with the order within three months. The petitioner again filed contempt application being CONTC No. 6230 of 2021. During pendency of the said application, it was informed by the State Counsel that the petitioner’s representation had been 1 2020 SCC OnLine Ori 921 Page 3 of 13 rejected by order dated 07.03.2022. As such, the petitioner withdrew the contempt application and filed the present writ application seeking to challenge the order of rejection. It is stated that the rejection of the petitioner’s application is on untenable grounds and that the authorities had not adhered to the procedure laid down in Clause-(v) of the advertisement, for which less meritorious candidates were appointed. Specific reference has been made to two vacant posts of SEBC category in Jajpur where, according to the petitioner, she could have been engaged. 3. Counter affidavit has been filed on behalf of all opposite parties by opposite party No.3. It is stated that a draft merit list was prepared taking into consideration all district preferences submitted by the candidates in the order of preference followed by merit, i.e. after exhausting all candidates with first preference districts, second and third and subsequent preferences has been considered. It is further stated that the petitioner secured 169.733 marks, which was below the cut-off mark for SEBC (W) candidates being 196.333 in the first round. In the second round also she could not be selected because of securing less marks Page 4 of 13 than the cut-off marks. Two rounds of selection process were held for filling up 100% posts and in both rounds of selection all the preference choice districts of the candidates were considered. 4136 numbers of posts remained unfilled due to non-joining of selected candidates and non-availability of eligible candidates in respective social and educational category as per their preference choice. The petitioner was not found suitable as the cut-off mark of SEBC category in the second round selection of the district was 204.411 whereas she has secured 169.733. It is further stated that the judgment of this Court in the case of Babita Satpathy (supra) is not applicable to the petitioner. 4. The petitioner has filed a rejoinder seeking to refute the averments made in the counter. It is reiterated that though the petitioner exercised option for 22 districts, yet the authorities took into account only two options for which all the posts could not be filled up. It is also stated that because of the wrong procedure followed by the authorities several candidates having forged certificates were selected and several untrained candidates were also selected ignoring Page 5 of 13 trained and eligible candidates like the petitioner. As such, the petitioner has been discriminated. 5. Heard Mr. S.P. Jena, learned counsel for the petitioner and Mr. S.N. Pattnaik, learned Addl. Government Advocate for the State. 6. Mr. Jena draws attention of the Court to the notification dated 26.12.2016, of which Clause-2(iii) provides that the candidate may give option up to 30 districts in order of preference, wherever vacancies are available. He further submits that since vacancies were available in only 22 districts, the petitioner submitted her preferences accordingly for 22 districts. Mr. Jena further refers to the Resolution dated 26.12.2016 containing guidelines for engagement of Sikshya Sahayaks, wherein Clause-5.7, 5.10 and 5.11 read conjointly would imply that all the preference choices of the candidates have to be considered until finalization of 100% merit list or exhausting all candidates. According to Mr. Jena, the authorities wrongly stopped the selection process after considering only two options, which is contrary to the guidelines. He further submits that had all the preferences cited by the petitioner been considered, she would have been Page 6 of 13 selected against the available vacancy of her category in any other districts but because of such wrong procedure adopted by the authorities, 4136 vacancies remained unfilled. 7. Mr. S.N. Pattnaik, learned Addl. Government Advocate, on the other hand, submits that it is wrong to contend that the preferences exercised by the petitioner were not considered. Rather, the authorities found that she had secured less than the cut-off mark of her category, for which she could not be selected against any district. Mr. Pattnaik further argues that the authorities have followed the procedure laid down in the guidelines strictly without any deviation. 8. The facts averred in the writ application are not disputed. The petitioner while submitting her application had exercised option for 22 districts with the first district being Bolangir and 22nd district being Malkangiri. It has been stated that the petitioner having secured 169.333 marks, could not be selected as it was less than the cut-off mark i.e., 196.333 for SEBC(W) in the first round selection process and 204.411 in the second round selection. Undisputedly, there were only two rounds of selection. It is stated that the Page 7 of 13 preferences cited by the petitioner were considered during these two selection rounds. No document substantiating the same has been produced. While rejecting the representation of the petitioner, the Secretary of the department has held that the engagement of less meritorious candidates than the applicants in other districts cannot create a right for them to be appointed in the district of their preference. It is not known what was the cut-off mark in respect of each of the 22 districts under the SEBC category. Reference to the guidelines vide Resolution dated 26.12.2016 (copy enclosed as Annexure-A/3 to the counter) reveals that there is no provision for fixing any cut-off mark at the time of selection. The process of selection as would be apparent from reading of Clause-5 is that it envisages multiple rounds of selection till 100% merit list is reached or all the candidates are exhausted. Reference to the relevant clauses would be in order at this stage, which are quoted hereinbelow. “5.2 A candidate may submit only one application to any of the 30 districts subject to the availability of vacancy in that particular district irrespective of his/her home Revenue District. The choice of districts will be freezed after the last date of submission of online application. xx xx xx Page 8 of 13 5.4. District wise list of applicants, as per candidates first preference district and other districts in the order of preference and all other information as entered by candidates will be published in the website. xx xx xx 5.7. District wise, post wise and category wise 100 % merit list (as per vacancies will be prepared by OPEPA through NIC as per district preferences submitted by the candidates and merit of the candidates. The draft merit list will be published in the OPEPA website. The draft merit list will be prepared taking in to consideration of all district preferences submitted by the candidates in the order of preference followed by merit i.e., after exhausting all candidates with 1st preference district, 2nd and 3rd and subsequent preferences will be considered. For a particular post, in a category within district, district preference will be preferred over merit. xx xx xx 5.10. Steps 5.6 through 5.8 constitute one round off draft merit list. In each round, there is possibility of deduction of candidates from draft merit list due to absence of rejection during document verification, thus reducing the draft merit list to less than 100 % of vacancies. To make the draft merit list 100 % steps 5.6 through 5.8 will be repeated discarding absence and rejected candidates from previous draft merit list. xx xx xx 5.11. In each round, few candidates may be deducted due to absence or rejection. Preparation of draft merit list will continue until finalisation of 100 % merit list or exhaust of all candidates. (Emphasis supplied) xx xx xx 5.15. 2nd round online selection procedure will be repeated for vacancies arising out of non-joining of candidates, if any and is only applicable to the eligible candidates who have already applied but not got selected in any district in the 1st round online procedure of selection.” 9. Thus, the guidelines provide that the process is to be repeated with the intention of filling up all the posts. In fact, Page 9 of 13 as is evident from a reading of Clause-5.15 quoted above, the process is to be repeated for vacancies arising out of non- joining of candidates. There is nothing in the guidelines suggesting fixation of cut-off marks. On the contrary, the object appears to be to fill up all vacancies by eligible candidates. The opposite parties have not come up with a definite case showing as to how the petitioner was found ineligible for selection against the vacancies existing in any of the 22 districts in her order of preference. It has also not been clarified as to against which district the so called cut-off marks were applied as against the marks secured by the petitioner. 10. Viewed otherwise, as against 14087 posts advertised, only 9951 posts were filled up leaving 4136 vacancies. If the reasoning adopted by the authorities were to be accepted as correct, it would imply that only 9951 candidates were eligible for selection while 4136 candidates were not. This Court has already observed that there is no provision for fixing any cut-off marks in the guidelines rather, the endeavour is to be to fill up all the posts advertised. Of course, it would be different matter, if the candidates are not Page 10 of 13 otherwise eligible but to say that they had secured less than the cut-off marks would be untenable having regard to the scope and object of the guidelines. It has been stated that the vacancies still exist in SEBC category in some districts, against which the petitioner could have been considered. Be it noted that this is not a case where the Government took a policy decision not to fill up the remaining vacancies but took a specific plea that the petitioner was ineligible having secured less than the cut-off marks. 11. The case of Babita Satpathy (supra) has been cited. Though said case was on a different point i.e., consideration of over-aged candidates, yet one thing cannot be lost sight of that this Court directed the authorities to accommodate the appellants therein against the unfilled vacancies. 12. From what has been discussed in the previous paragraphs it is apparent that the authorities have not really adhered to the procedure mandated in the guidelines. It is true that Clause-5.7 does provide that for a particular post in a category within district, district preference will be preferred over merit but then such a stand supported by evidence has not been laid before this Court to justify the non-selection of Page 11 of 13 the petitioner. The very fact that as many as 4136 vacancies exists by itself proves that the procedure mandated under Clause-5.11 and 5.15 were not followed and the selection process appears to have been stopped midway. True, merely being included in the list of eligible candidates does not confer a vested right on any candidate for being selected but then if the authorities are found to have acted in an arbitrary manner, which according to the considered view of this Court the authorities have done in the present case, a right of consideration certainly exists for such a candidate. The above is the settled position of law. Reference in this regard may be had to the decision of the Supreme Court in the case of East Coast Railway v. Mahadev Appa Rao2. 13. Thus, from a conspectus of the analysis of the facts and law made hereinbefore, this Court is of the view that the petitioner was wrongly not considered for selection despite availability of vacancies. This Court therefore, holds that the petitioner has made out a good case for interference. 14. In the result, the writ application is disposed of by directing the opposite parties to consider the case of the 2 (2010) 7 SCC 678 Page 12 of 13 petitioner for her engagement as Sikshya Sahayak or in any equivalent post against the existing vacancies specifically taking note of the preferences cited by her at the time of submitting her application in terms of the relevant provisions of the guidelines referred to hereinbefore and to issue appointment order in her favour in whichever district she is found to be eligible as per her preference. The whole exercise should be completed within a period of four months. ……..……………………. Sashikanta Mishra, Judge Orissa High Court, Cuttack. The 26th April, 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: 26-Apr-2024 17:42:05 Page 13 of 13