The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No. 9243 of 2018 (An application Articles 226 and 227 of the Constitution of India) --------------- AFR Chandan Pradhan ...… Petitioner -Versus- State of Odisha & others ...…. Opp.Parties Advocate(s) appeared in this case:- _______________________________________________________ For Petitioner : M/s. Satyabrata Mohanty, S.S. Mohapatra, A.K. Jena, S.K. Das, P.K. Das & P. Sinha, Advocates For Opp.Parties : Mr. H.K. Panigrahi, Addl. Standing Counsel. Mr. P.K. Panda, Standing Counsel for S & M.E. Department. _______________________________________________________ CORAM: JUSTICE SASHIKANTA MISHRA JUDGMENT 29th September, 2022 SASHIKANTA MISHRA, J. The Government in School and Mass Education Department issued a Resolution dated 26th December, 2016 laying down guidelines for engagement of Sikshya Sahayaks. On the same day, an advertisement was issued inviting applications from eligible candidates for engagement against 14087 posts of Sikshya Sahayaks in different districts. The last date of submission of application was 9th December, 2017. The Petitioner submitted his application citing his first preference District as Angul and the second as Kalahandi. The Petitioner was selected for appointment in the district of Kalahandi, but by letter dated 3rd May, 2018 issued by the District Project Coordinator, Sarva Sikshya Abhiyan (D.P.C. SSA), Kalahandi (Opposite Party No.4), the State Project Director, OPEPA was intimated that the documents of the Petitioner were verified at the district level and it was found that he could not produce Identity Card issued by Director of Sports which is essentially required to claim reservation under the sports category as per Resolution No.24808/Gen dated 18th November, 1985 of G.A. Department. Hence, his candidature was rejected. The Petitioner claims that he had duly participated in the National Level Competitions for which valid certificates were issued by the Organizers, which was duly countersigned by the concerned authority and therefore, rejection of his candidature is entirely illegal. On such basis, the Petitioner has approached this Court seeking the following relief:- to admit “It is therefore humbly prayed that this Hon’ble Court may be graciously pleased the writ application, issue Rule Nisi by calling upon the Opp.Party as to why the order of rejection under Annexure-4 dated 3.5.2018 will not be quashed and the Petitioner will be given appointment as Sikshya Sahayak in the interest of justice. And pass necessary order/orders as Lordships’ deem fit and proper for the interest of justice.” 2. A counter affidavit has been filed on behalf of Opposite Party No.4 in which it is stated that the Petitioner had applied under sports category as provided under the Resolution dated 18th November, 1985. As per clause-4 of the said Resolution, recognized Associations/Federations, Organizing Bodies may issue Sports Certificates to the candidates who participated or represented the State in the open national events and championships. Further, the Director of Sports shall issue Identity Card to the deserving sportsmen on the basis of such certificates. As per Annexure-5, the sportsmen are required to produce the Identity Card at the time of their appointment against the post reserved. The Petitioner had produced an Identity Card issued by the National School Games showing his participation in 54th National School Games, 2008 at Sagar (M.P) for participating in Throw Ball and Kho-Kho Championship from 12th to 17th October, 2008, but the same is not an Identity Card issued by the Director of Sports as required under Resolution dated 18th November, 1985. Accordingly, his candidature was rejected. 3. The Petitioner filed a rejoinder to the counter filed by Opposite Party No.4 stating that his participation in the 54th National School Games in 2008 being selected by the Odisha State Schools Sports Association has been duly acknowledged by the Asst. Director, Physical Education, Directorate of Secondary Education, Odisha by issuing a certificate in his favour on 25th June, 2018. The Petitioner therefore, claims that he is eligible and should not be deprived of appointment on technical grounds. 4. The Opposite Party No.4 filed a reply to the rejoinder filed by the Petitioner mainly stating that instructions were sought for from the Director of Sports vide letters dated 13th July, 2018 and 8th January, 2021 as to whether the Petitioner could be engaged as Sikshya Sahayak under sports reservation by virtue of such certificate, but there has been no response from the Director of Sports so far. 5. The Petitioner filed an additional affidavit indicating that during pendency of Writ Petition and being permitted by this Court, he again applied for issue of Identify Card on 17th February, 2022 through Online mode. It is further stated that similarly situated sports persons placed below the Petitioner have been appointed. 6. The Director, Sports (Opposite Party No.5) has filed a counter affidavit and two further affidavits. It is stated that the Petitioner’s application for grant of Sports Identity Card was considered and he was found to be ineligible for which the same was rejected and communicated to him through his registered mobile number. It is also stated in the further affidavit that the Petitioner is not entitled to be issued with Sports Identity Card in view of the Resolution dated 18th November, 1985 read with Resolution dated 1st May, 2017 of the Government in Sports and Youth Services Department. It is stated that as per Resolution dated 1st May, 2017 the sports in which the Petitioner participated, that is Kho-Kho, belongs to Category ‘B’ and the National School Games in which he represented the State of Odisha is not a Senior National event and, therefore, his application was rightly rejected. 7. The Petitioner filed a rejoinder to the counter affidavit filed by Opposite Party No.5 stating that similarly situated persons placed below the Petitioner and having identical sports certificates namely, the candidate placed at Sl. No.119 as against Sl.No.33 of the Petitioner has been given appointment. This according to the Petitioner, amounts to discrimination. 8. The Opposite Party No.5 filed a further affidavit stating that no such Identify Card has been issued to any other sports person as claimed by the Petitioner. 9.
Legal Reasoning
Heard Mr. Satyabrata Mohanty, learned counsel for the Petitioner, Mr. H.K.Panigrahi, learned Addl. Standing Counsel for the State and Mr. P.K.Panda, learned Standing Counsel appearing for the School and Mass Education Department. 10. Mr. S. Mohanty would argue that admittedly the Petitioner had participated in the National School Games, 2008 in Throw Ball and Kho-Kho representing Odisha. There is no dispute that it is a National Level Championship. The Petitioner was duly issued with participating certificates, which were countersigned by the Asst. Director, Physical Education of the Directorate of Secondary Education. This, according to Mr. Mohanty, fulfils the criteria laid down in the Resolution dated 18th November, 1985 and therefore, the Director of Sports was duty bound to issue Sports Identify Card in his favour. As regards the Resolution dated 1st May, 2017, Mr. Mohanty contends that the same cannot be made applicable to the case of the Petitioner because the advertisement was issued much prior to the said date. Moreover, the Petitioner having been found eligible for appointment, he cannot be deprived of the same on the technical ground of non-production of Sports Identity Card, more so as there is clear evidence showing his participation in a National Level Sports event as a representative of the State. 11. Mr. P.K.Panda, learned Standing counsel for the School and Mass Education Department argues that the selection committee is bound by the terms of the Resolution dated 18th November, 1985, which mandates production of Identify Cards issued by the Director of Sports without which the candidature of a person cannot be considered. Therefore, despite the fact that the Petitioner was otherwise found suitable for engagement, he having applied under the sports quota, non-fulfillment of the conditions referred to above, disentitles him from such appointment. 12. Mr. H.K.Panigrahi, learned Addl. Standing Counsel for the State, has argued that participation in the National School games is not adequate to confer eligibility on a sports person to be issued with the Sports Identity Card as the rules require that the sports person should have participated in two Senior National events. Moreover, the sports in which the Petitioner participated is a category ‘B’ sports and therefore, he is not eligible to be issued with the Identity Card. 13. From the rival pleadings and contentions raised before this Court, it is evident that the issue involved in the case boils down to the question, whether the participation of the Petitioner in National School games confers eligibility on him to be issued with the Sports Identity card as per the relevant Resolution of the Government. It would be apposite to first refer to the Resolution dated 26th December, 2016 issued by the Government in School and Mass Education Department (enclosed as Annexure-2) laying down guidelines for engagement of Sikshya Sahayaks. Paragraph-8 deals with reservation and 8.1 reads as follows:- “The Orissa Reservation Vacancies (in posts and services for ST and SC) Act, 1975 along with rules made there under and OCS (Reservation of Vacancies for Women in Public Services) Rules, 1994 and such other principles of reservation as prescribed by the State Government time shall be followed”. from time to The Government in General Administration Department issued a Resolution on 18th November, 1985. Paragraphs-4 and 5 of the said Resolution read as follows: “4. Recognized Associations/Federations/ Organizing Bodies may issue the Sports Certificate to the candidates who participated or represented in the open national events and championships. The Director, Sports shall issue Identity Card to the deserving sportsmen on the basis of the above certificates. 5. The sportsmen shall produce the Identify Cards issued in their favour by the Director, Sport at the time of their appointment against the post reserved for.” From a bare reading of the Resolution, it is clear that the requirement of issuance of Identify Card is participation/representation in ‘Open National Events and Championships’. It is to be noted that the said expression ‘Open National Events and Championship’ has not been qualified in any manner. Surprisingly however, the guidelines purportedly appended to the Resolution, which lays down the criteria, inter alia, provides as under:- the Government “(ii) He/She should have represented the State in Senior National Championship/Tournament in any one of the recognized sports disciplines as approved time. The from by participation certificate needs to be issued by the recognized Association/Federation/ Organizing Body. letter head of the concerned Certificate Federation/Association shall not be entertained for consideration.” in the time to 14. It is apparent that the criteria laid down under the guidelines have restricted the eligibility criteria to participation/representation in Senior National Championship/ Tournaments and further to the recognized sports disciplines as approved by the Government from time to time. To appreciate the above, a reference to the Resolution dated 18.11.1985 again becomes necessary. The relevant portion of the Resolution reads as follows: “Government of Orissa General Administration Department RESOLUTION No. 24808/Gen Bhubaneswar, Dated 18.11.1985 Sub:– Reservation of vacancies for Sports man in Class II, III & IV services in State Govt. II and Class categories of Class- In their Resolution No. 1099-SC dt.16.02.85 the Tourism, Sports & Culture (Sports & Culture) Department have decided to adopt a Sports Policy broadly in keeping with the National Policy guidelines for ensuing systematic and concerted efforts for development of sports and games in the State. Besides certain other facilities provided for the sportsmen under the Sports Policy, a decision has also been taken that one per cent of the jobs in the Government and public sector organizations will be kept reserved for deserving sportsmen representing the State subject to their meeting the minimum educational requirement. 2. In order to implement this decision in a systematic manner, it has now been decided by Government that one per cent of vacancies arising in year to each of the -III services/Posts and in Class -IV posts filled by direct recruitment should be reserved for the sportsmen. Further it has been decided that the 8th Vacancy in cycle of 100 vacancies should be reserved for sportsmen. 3. A cell shall be constituted in the Directorate of Sports to register the names of the sportsmen and one of the Asst. Director will remain in charge of this Deptt. The Asst. Director in-charge shall receive applications from the sportsmen for registration. Application shall be accompanied with certificates relating to educational qualification and training, etc. and also with a certificate to the effect that the candidate is a sportsman and participates and represents the State in regular Open National Events and Championships. 4. Recognized Associations/Federations/ Organising bodies may issue the Sports Certificates to the candidates who participated or represented in the Open National Events and Championships. The Director, Sports shall issue Identity Card to the deserving Sportsmen on the basis of the above certificates. 5. The sportsmen shall produce the identity cards issued in their favour by the Director, Sports at the time of their appointment against the posts reserved for. 6. The above instructions may be followed by different Departments and Heads of Departments and the relevant recruitment rules framed by the Departments of Government may be amended accordingly xx xx” xx It is evident that this Resolution was issued in pursuance of Resolution No. 1099/ SC dated 06.02.1985 of the Department of Tourism, Sports & Culture (Sports and Culture) laying down the Sports Policy of the State. The introduction of the said Resolution is as follows: “RESOLUTION No. 1099/SC. GOVERNMENT OF ORISSA Department of Tourism, Sports & Culture (Sports & Culture). Bhubaneswar, Dated the 6th February, 1985 Sub : SPORTS POLICY The State Government considered it necessary to formulate and adopt a Sports policy, broadly in keeping with the National Policy Guidelines, for ensuring systematic and concerted efforts to develop sports and games, so as to achieve the high standards of excellence and help the State to take its rightful place in the sports arena of the country. Accordingly after careful consideration, Government have taken the following decisions for promotion of Sports and Games in the State.” It would also be useful to quote certain relevant paragraphs of the Resolution for better appreciation of the issue. xx xx “(III) Training and Coaching facilities. xx xx (b) A series of Sports Schools will be established all over the State with emphasis on individual games and sports in each school. These schools will provide specialised training in games and sports to students from Class VIII to XIIth and develop skilled and talented athletes and sportsmen. xx (IV) Incentives and promotional schemes (a) Scholarships will be provided talented sportsmen, athletes from the school level up to the University level. (b)(i) One percent of the jobs in the Government and Public Sector Organisations will be kept reserved for deserving sportsmen and athletes representing the State subject to their meeting minimum educational requirements. Age restrictions may be condoned in respect of sportsmen and athletes. xx xx (iiC) All sportsmen representing the State in the junior or senior the Government, public sector or private sector. levels will be provided jobs xx xx in to (Emphasis supplied) Xx xx (e) Special scholarship to be awarded to students who represent the State will be 50% more than the normal sports scholarships given to students. xx 15. Two things are apparent on a conjoint reading of the aforequoted paragraphs of the policy. Firstly, the Sports Policy of the State itself does not make any distinction between sports persons representing the State in the junior or senior levels, rather, paragraph-IV(iiC) specifically provides that all sportsmen representing the State in the junior or senior levels will be provided jobs in the Government, public sector or private sector. Secondly what constitutes the senior level and junior level has not been specifically differentiated in the Policy. However, the Policy having provided for establishment of sports schools all over the State to provide specialized training to students from Class-VIII to XII, it can be reasonably inferred that junior level includes sports persons from schools also. Such being the specific Policy of the State, the question that arises for consideration is, whether the guidelines appended to the Resolution dated 18.11.1985 in restricting the applicability thereof to only sports persons participating in senior National Events can be treated legally valid. It goes without saying that the Resolutions referred to hereinbefore can be classified as administrative instruction and in the absence of statutory provisions or rules governing the field, the same are applicable. It is well settled that in interpreting the provisions of administrative instructions the principle of statutory interpretation are to be adhered to as was held by the Apex Court in the case of CBI v. D.P. Singh, reported in (2010) 1 SCC 647. As already stated, neither the Sports Policy nor the Resolution dated 18.11.1985 provides for any distinction between junior and senior level sports persons. The guideline appended to the Resolution dated 18.11.1985 does so. In the case of Narendra Kumar Maheswari vs. Union of India reported in AIR 1989 SC 2138, the Supreme Court observed as follows: “Guidelines are issued by Governments and statutory authorities in various types of situations. Where such guidelines are intended to clarify or implement the condition and requirements precedent to the exercise of certain rights conferred in favour of citizens or persons and a deviation therefrom directly affects the rights so vested the persons whose rights are affected have a clear right to approach the court for relief…….. A Court, however, would be reluctant to interfere simply because one or more of the guidelines have not been adhered to even where there are substantial deviations, unless such deviations are, by nature and extent such as to prejudice the interests of the public which it is their avowed object to protect. Per contra, the court would be inclined to perhaps overlook or ignore such deviations, if the object of the statute or public justify or necessitate such deviations in a particular case. This is because guidelines, by their very nature, do not fall into the category of legislation, direct, subordinate or ancillary. They have only an advisory role to play and non-adherence to or deviation from them is the necessarily and circumstances of any particular fact or law situation warrants the same. Judicial control takes over only where the deviation either involves arbitrariness or discrimination or is so fundamental as to undermine a basic public purpose which the guidelines and the statute under which they are issued are intended to achieve.” implicitly permissible interest warrant, if (Emphasis supplied) So, when neither the Sports Policy or the Resolution dated 18.11.1985 providing for reservation to sports persons distinguish between junior and senior level sports persons for granting the intended benefits, how can the guideline do so? In other words, the benefits which are intended to be conferred as a matter of policy by the State cannot be curtailed or restricted in any manner by way of the guidelines. It would have been a different case altogether had such restriction been embodied in the policy decision or in the Resolution dated 18.11.1985, but the same not being the case, a mere guideline cannot be invoked to nullify the intended benefits. Just as an executive instruction cannot supplant but only supplement the statutory rules, the guideline, which is a creature of the executive instruction, cannot obviously supplant or run contrary to the administrative instruction itself. In such view of the matter, this Court has no hesitation in holding that non-grant of the sports identity card to the petitioner on the ground that he had not participated in any Senior National Event, cannot be sustained in the eye of law. 16. In the additional counter affidavits, it is stated that the Petitioner was found to be ineligible in view of the Resolutions dated 18th November, 1985 and 1st May, 2017. As held earlier, the Resolution dated 18th November, 1985 per se does not in any manner restrict its applicability only to persons participating/representing the State in Senior National Championships/Tournament and therefore, cannot be invoked to refuse issuance of Sports Identity Card to the Petitioner. In so far as the circular dated 1st May, 2017 is concerned, it is to be noted that the same was issued after the last date fixed for receipt of applications for the post of Sikshya Sahayak. There is no provision as such in the advertisement or the guideline dated 26th December, 2016 fixing any cut-off date for determination of eligibility of the candidates. It is well settled that if no such date is prescribed the eligibility criteria shall be applied by reference to the last date appointed for receiving the application. In the case of Dr. M.V. Nair v. Union of India; reported in (1993) 2 SCC 429, the Supreme Court held that suitability and eligibility have to be considered with reference to the last date for receiving the applications, unless, of course, the notification calling for applications itself specifies such a date. The principle of last date of receipt of filing of the application as being the cut-off date for determination of eligibility has been reiterated by the Apex Court in several decisions namely, Mills Douglas Michael v. Union of India; reported in (1996) 8 SCC 666, U.P. Public Service Commission v. Alpana; reported in (1994) 2 SCC 723 and many other cases. Therefore, the last date of receipt of applications being 9th February, 2017, the Resolution dated 1st May, 2017 can have no application. Even otherwise, it is well settled that an administrative instruction or an executive order cannot be made with retrospective effect to the prejudice of an employee or to adversely affect accrued rights. Reference may be had to the decision of the Apex Court in the case of Ex-Major N.C. Singhal v. Director General, Armed Forces Medical Services, reported in (1972) 4 SCC 765. 17. Coming to the facts of the case, it appears that the Petitioner participated in the 54th National School games organized by the Government of M.P., Directorate of Public Instruction under the aegis of School Games Federations of India. The certificate issued by the organizers is enclosed to the Writ Petition duly countersigned by the Asst. Director, Physical Education, Directorate of Secondary Education, Odisha. In the said games, the Petitioner had participated in National School Kho-Kho Championship. 18. Undoubtedly, the National School Games is a national event because of participation of sports persons (School Students) from all over the country. A reference to the Resolution dated 18th November, 1985 would show that the same was issued with the pious intent of promoting development of sports and games in the State as delineated in the opening paragraph thereof and quoted hereunder: “In their Resolution No.1099 SC dt.16.2.1985 the Tourism, Sports and Culture (Sports & Culture) Department have decided to adopt a Sports Policy broadly in keeping (sic) with the National Policy Guidelines for ensuing systematic and concerted efforts for development of sports and games in the State. Besides certain other facilities provided for the sportsmen under the sports policy, a decision has also been taken that one percent of the jobs in the Government and public sector organizations will be kept reserved for deserving sportsmen representing the State subject to their meeting the minimum educational requirements.” A plain reading of the above paragraph would suggest that the policy decision was taken with a view to ensure development of sports and games in the State as also to incentivize the sports persons by providing reservation in jobs in the Government/private sector organizations. There is not a whisper that such benefit was intended only for sports persons, who had participated in the Senior National events. Such an interpretation would run entirely contrary to the very spirit of the resolution itself which does not lay down any such restrictions. Even otherwise, it does not stand to reason that while a sports person participating in Senior National events would be given the benefit, a person at the Junior Level will be deprived of the same. It would be a fallacious proposition. 19. On a conspectus of the analysis made herein before, this Court is of the considered view that the Petitioner having participated in the 54th National School Games held in the State of M.P. in the year, 2008 must be held to have fulfilled the eligibility criteria laid down in the Resolution dated 18th November, 1985 for being issued with the necessary Identity Card by the Director, Sports. As already stated, the decision of the Government in the Department of Sports to reject the application of the Petitioner by referring to the provisions of Resolution dated 1st May, 2017 cannot be countenanced in law as the same can have no retrospective application to the facts of the present case. For such reasons, therefore, the impugned orders dated 3rd May, 2018 and 11th May, 2022 cannot be sustained in the eye of law. 20. Given the facts of the case and the law involved therein the question that now arises is what relief can be granted to the petitioner. Obviously, this Court having held that the impugned order dated 03.05.2018 followed by order dated 11.05.2022 cannot be sustained in the eye of law for the reasons spelt out in detail in the preceding paragraphs. Resultantly, the said orders are quashed. The opposite party No.5 is directed to issue Sports Identity Card in favour of the petitioner within a period of four weeks. The petitioner has also prayed for direction to appoint him as Sikshya Sahayak. It is stated at the bar that the Scheme of Sikshya Sahayak has in the meantime been abolished by the Government w.e.f. 2019. Law is well settled that the High Court cannot direct the State Government by a writ of mandamus to appoint a person against a post which has been abolished. Reference may be had to the decision of the Apex Court in the case of Balakrushna Behera v. Satya Prakash Dash, reported in (2008) 1 SCC 318. In such view of the matter, despite finding that the petitioner was wrongly denied appointment, this Court unfortunately cannot grant the desired relief to him because of abolition of the post in the meantime. 21. In the facts and circumstances of the case and particularly, having regard to the fact that despite being found suitable for appointment as Sikshya Sahayak at the relevant time he was prevented from being so appointed not due to any fault of his own but because of an erroneous interpretation of the relevant Resolution of the Government, this Court directs the opposite party authorities to consider the case of the petitioner sympathetically for his appointment against any equivalent post if he is found otherwise eligible for the same. 22.
Decision
The writ petition is disposed of accordingly. ..……..………………….. Sashikanta Mishra, Judge Orissa High Court, Cuttack, The 29th September, 2022 A.K. Behera, A.R.-cum-Sr. Secretary /A.K. Rana, P.A.