The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C). No. 16673 of 2016 (An Application under Articles 226 & 227 of the Constitution of India) --------------- Pradeep Ku. Panigrahi & Others ...… Petitioners -Versus- State of Odisha and Others .... Opposite Parties Advocate(s) appeared in this case:- ________________________________________________ For Petitioner : Mr. S.K.Das, Sr. Advocate, For Opp. Party : Mr. S.N.Pattnaik, Additional Government Advocate for the State. _______________________________________________________ CORAM: JUSTICE SASHIKANTA MISHRA SASHIKANTA MISHRA, J. JUDGMENT 19th September, 2024 The petitioners have approached this Court with the following prayer: “Under the facts & circumstances, it is prayed that this Hon’ble Court may graciously be pleased to;- (i) Admit the Writ Application; (ii) Call for the records; (iii) Quash the Order dated 02.02.2016 under Annexure-5; (iv) And issue a writ in the nature of mandamus or any other direction/direction(s) order/order(s), appropriate Page 1 of 14 directing the Opp. Parties to accommodate & allow the petitioners to continue as Sikhya Sahayak in any primary School or Upper Primary School run under the control of School & Mass Education Deptt. Instead of Ashram Schools run under ST & SC Department and further direct the Opp. Parties t o count the service period of the petitioners as Sikhya Sahayak for all service benefit initial appointment in their respective Ashram Schools and also extent similar benefit from the date of their initial appointment in their respective Ashram Schools and also extent similar benefits, as is available to other Sikhya Sahayak who were selected along with the to the advertisement under petitioners pursuant Annexure-2; the date of from their And pass further order/orders, such direction/directions as this Hon’ble Court may think fit and proper for the ends of justice; And for which act of kindness the petitioners, as in duty bound, shall ever pray.” other (v) 2. The facts of the case are that pursuant to an advertisement issued by the State Project Director, Orissa Primary Education Programme Authority (OPEPA) on 06.08.2023 for engagement of Sikhya Sahayaks, the petitioners being trained graduates submitted their applications. The petitioners had applied against the vacancies advertised for Ganjam district. After due scrutiny of the applications, a provisional merit list was prepared. The names of all the three petitioners found place in the said provisional merit list. The petitioners were issued with appointment orders on 22.01.2014 but instead of engaging them against the Page 2 of 14 vacant posts of primary or upper primary schools run by the Government in department of School and Mass Education, they were directed to join as Sikhya Sahayaks in Ashram Schools run under the ST & SC Development Department. According to the petitioners, had they been engaged in schools run by the School and Mass Education Department, they would have got the benefit of being treated as Junior Teacher after completion of 3 years of service, regular teacher after completion of 6 years of service and would have been included in the elementary cadre of level-V under the Odisha Elementary Cadre (Method of Recruitment and Conditions of Service) Rules, 1997. On the other hand, they have been appointed in Ashram Schools run by the ST & SC Development Department, which would be governed under the provisions of Odisha Subordinate Tribal Welfare Education (Recruitment and Condition of Service) Rules 1993 wherein there is no provision to grant similar benefit to the Sikhya Sahayaks/teachers as is granted to their counterparts engaged in schools run by the School Page 3 of 14 and Mass Education Department. Furthermore, after engagement of the petitioners, persons securing less marks than them were engaged in schools run by the School and Mass Education Department in the second phase select list. As a result, the petitioners will not get the benefit of regular teachers in the elementary cadre as also promotional benefits given to teachers under the 1997 Rules. The Opposite Party authorities by engaging the petitioners in Ashram Schools have violated the terms of the advertisement and such action has resulted in gross discrimination inasmuch as persons securing less marks than the petitioners have been granted the benefits. The petitioners approached this Court ventilating their grievances in W.P.(C). No. 1787 of 2015. Said writ application was disposed of by order dated 30.07.2015 directing the District Project Coordinator to consider the representation of the petitioners within a stipulated period. Pursuant to such order, the District Project Coordinator vide order dated 02.02.2016 rejected the claims of the petitioner. Challenging such rejection of Page 4 of 14 their claim, the petitioners have approached this Court again in the present writ application with the prayer as already quoted before. 3. Counter affidavit has been filed by the DPC (Opposite Party No.5). It is stated that pursuant to the advertisement of the year 2013, the selection process commenced on the basis of merit and the petitioners were placed in the draft merit list. In the meantime, the Government in ST & SC Development Department in the letter dated 16.11.2013 requested the Commissioner- cum-Secretary to the Government in department of School and Mass Education for engagement of Sikhya Sahayaks district-wise from the panel centrally prepared by OPEPA without going for further advertisement. Accordingly, 2226 nos of Sikhya Sahayaks were requested to be recruited by the State Project Director, OPEPA. The District Welfare Officer, Ganjam requested for sponsoring the candidates by letter dated 27.11.2013 by which time, the selection process of Sikhya Sahayak was over and engagement orders had already been Page 5 of 14 issued. The petitioners’ name find place in the panel list but they could not come under the zone of selection and as such their names were sponsored to the District Welfare Officer, Ganjam on 18.12.2013 for engagement as Sikhya Sahayak in the schools run by the ST & SC Development Department. The Petitioners were thereafter called upon to execute agreement as per norms and guidelines. They also executed undertaking indicating that they are interested to join as Sikhya Sahayaks in the Ashram Schools, if selected, and would not claim transfer or regularization in the schools of S & M.E Department. Accordingly, the petitioners executed necessary agreement and undertaking on 09.11.2014 pursuant to which they were issued with engagement orders. It is further stated that the allegation of being deprived of the benefits available to their counterparts engaged in schools run by the School and Mass Education Department is misconceived inasmuch as the Government in the department of School and Mass Education, in its Resolution dated 01.08.2011 has Page 6 of 14 categorically decided that the decision taken in matter of Career Advancement policy of Sikhya Sahayaks will also mutatis-mutandis apply to the institutions looked after by the ST & SC Development Department. On such basis, the petitioners who have been appointed in the year 2014 were treated as Junior teachers upon completion of three years of service on 28.06.2017 and also were regularized upon completion of 6 years of continuous service on 29.01.2021 with pay scale at par with the Sikhya Sahayaks who have been regularized as Zilla Parishad Teachers (Level-V). 4. The petitioner has filed a rejoinder reiterating the claim raised in the writ application. It is stated that there being no provision in the advertisement for engagement of petitioners in Ashram Schools, the initial engagement of the petitioners itself is illegal. As regards the affidavit and undertaking executed by the petitioners, it is stated that there cannot be estoppel against law and moreover,
Legal Reasoning
the parties are not on equal terms. Therefore, only because the petitioners executed the Page 7 of 14 agreement/undertaking, they cannot be held to have forfeited their right to be engaged strictly as per the terms of the advertisement. 5. Heard Mr. S.K.Das, learned counsel for the petitioner and Mr. S.N.Pattnaik, learned Additional Government Advocate for the State. 6. Mr. Das would argue that the Government Resolution dated 06.08.2013, laying down guidelines for engagement of Sikhya Sahayaks, followed by further guidelines issued on 06.08.2013 as well as the advertisement dated 06.08.2013 do not contain any provision for engagement of Sikhya Sahayaks in any school other than schools managed by the School and Mass Education Department. Therefore, the very engagement of the petitioners in Ashram Schools managed by ST & SC Development Department is unsustainable. Even otherwise, the authorities being in a dominant position forced the petitioners to execute the agreement against their interest, which can have no sanctity of law. Since they were unemployed, they had no option but to join in Page 8 of 14 schools run by ST & SC Department. But had they joined the schools run by School and Mass Education Department they would have received much higher benefits in service and therefore, the rejection of the claim of the petitioners is wholly unjustified and illegal. 6. Per contra, Mr. S.N.Pattnaik, learned AGA would argue that merely because the petitioners were placed in the draft merit list did not confer any right on them to be engaged. In fact, the petitioners could not come within the zone of selection in the first place. In such a situation, an offer was given to them to be engaged in Ashram Schools managed by ST & SC Development Department, which they willfully accepted. There is no question of any pressure or coercion being applied by the authorities as it was a decision taken by the petitioners themselves on their volition. Mr. Pattnaik, further argues that even on merits, the claim of the petitioners is misconceived in view of the specific decision taken by the Government that the Sikhya Sahayaks/Junior teachers engaged in Ashram Schools would be treated at par with Page 9 of 14 their counter parts in a schools run by School and Mass Education Department. In fact, the petitioners have been granted identical benefits in the meantime. 7. The facts of the case are not disputed. Admittedly, the petitioners had applied pursuant to the advertisement dated 06.08.2013, which was floated for engagement of Sikhya Sahayaks in schools run by the School and Mass Education Department. According to the Opposite Parties, the petitioners, though placed in the draft merit list, could not come within the zone of selection in the first phase. Such assertion had not been denied by the petitioner in their Rejoinder rather, it is admitted under paragraph 4 thereof that their names did not find place in the first select list. It is mentioned in the writ application that the second phase list was prepared in July, 2014 and 9 candidates were engaged. In the meantime, the petitioners had already been engaged in the Ashram Schools after executing agreements and undertakings on 09.01.2014 pursuant to order dated 18.12.2013 of the District Welfare Officer, Ganjam. Had the petitioners not Page 10 of 14 joined, their case obviously could have been considered in the second select list since they claim to have secured more marks than the 9 candidates who were selected in the second phase. But instead of waiting for the second phase selection, the petitioners opted to accept the offer of the authorities to be engaged in Ashram Schools. What would be the effect of acceptance of such offer by the petitioners? It must be kept in mind that there is nothing on record to suggest that any coercion was applied against the petitioners in any manner. Merely because they were unemployed and therefore, accepted whatever was offered to them cannot imply that they were definitely in a position of disadvantage. This is said for the reason that had they not accepted such offer, they could still have been considered for engagement in the second phase selection. On the other hand, they opted to be engaged in the Ashram Schools. Their very conduct shows that they had willfully decided to accept such offer. Having once accepted the offer given by the authorities, and acted upon it, they cannot turn around Page 11 of 14 to question the same as law does not permit approbation and reprobation at the same time. Reference to the judgment of the Supreme Court in the case of R.N. Gosain vrs. Yaspal Dhir1 would be noteworthy “law does not permit a person to both person approbate and reprobate. This principle is based on doctrine of election which postulates that no party can accept and reject the same instrument and that a person cannot say at one time that a transaction is valid and thereby obtained some advantage, to which he could only be entitled on the footing that it is valid, and then turn around and say it is void for the purpose of securing some other advantage.” Further, in the case of P.R. Deshpandey vrs. Maruti Balramhaibatti2, the Supreme Court observed that doctrine of election is based on the rule of estoppel and the principle of approbate and reprobate inheres in it. The doctrine of estoppel by election is one of the species of estoppels in pais (or equitable estoppel), which is a rule in equity. By that law, a person may be precluded by his actions or conduct or silence when it is his duty to speak, from asserting a right which he otherwise would have had.