The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.18110 of 2023 Pankaj Kumar Karna …. Petitioner Mr. R.K. Bisoi, Advocate State of Odisha & Others -versus- …. Opposite Parties Mr. R.N. Mishra, AGA Mr. A. A. Mishra, Adv. for O.P.5 CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY Order No.
Decision
ORDER 08.09.2023 05. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode. 2. Heard learned counsel for the Parties. 3. The present Writ Petition has been filed challenging the office order dtd.15.05.2023 so passed by Opposite Party No.4 under Annexure-6. 4. It is contended that the Petitioner while continuing as a Ganasikhyaka, pursuant to the resolution issued by the Government in the Department of School & Mass Education on 22.12.2016 under Annexure-4, Petitioner was regularized as Level-V Asst. Teacher (ex-cadre) with retrospective effect from 01.03.2017 in the pay band of Rs.5,200-20,200 with Grade Pay of Rs.2,200/- and // 2 // starting pay Rs.23,600/- under ORSP Rules, 2017 with usual allowances as admissible to the State Government. 4.1. It is contended that since in the resolution dtd.22.12.2016 basing on which the Petitioner was regularized vide order dated 01.01.2018 under Annexure-2, there was a stipulation that the Petitioner has to qualify the OTET Examination by 31.03.2019 and the Petitioner could not qualify the same within the time stipulated therein, the benefit of increment extended in his favour in terms of Office order dtd.01.01.2018 under Annexure-2, was withdrawn vide impugned order dtd.15.05.2023 under Annexure-6. Vide the said order, Petitioner was directed to pay a sum of Rs.1,14,678/-, which he has received as benefit towards increment. 4.2. Mr. Bisoi, learned counsel for the Petitioner contented that after being regularized vide office order dtd.01.01.2018 under Annexure-2 in terms of the resolution dtd.22.12.2016, the Petitioner though made the application to take part in the OTET Examination, 2018 to be conducted by the Board and he was also issued with the Admit Card to take the said 2018 OTET Examination, but the said examination was cancelled by the Board because of leak of question paper in the social media. 4.3. It is also contended that after such cancellation of the OTET Examination, 2018, no further examination was Page 2 of 6 // 3 // held till the same was again conducted in the year 2019. The Petitioner was allowed to take part in the OTET 2019 Examination and he qualified the same, the result of which was published on 21.11.2019. 4.4. It is contended that since because of the cancellation of the OTET Examination 2018 by the Board, the Petitioner could not appear the test and accordingly could not qualify the OTET Examination in terms of the resolution of the Government dtd.22.12.2016, no fault can be attributed to the Petitioner for not qualifying the said test within the stipulated time. 4.5. It is also contended that challenging the notification issued by the Board of Secondary Education on 16.01.2019 in cancelling the OTET Examination, 2018, a batch of Writ Petitions were filed. This Court in its order dtd.05.07.2023 in W.P.(C) (OAC) No.1789/2019 and batch in Para-3 to 7 has held as follows:- “3. The present writ petition has been filed challenging the Notification issued by the Board on 16.01.2019 in cancelling the OTET Examination, 2018 vide Annexure-5. 4. Mr. Mishra, learned counsel for the Petitioners contended that without assigning any reason and only on the ground that the question paper of the said examination was leaked in the social media, since the entire examination was cancelled, the Petitioners were prejudiced as they failed to acquire the said qualification in terms of the guideline issued by the Govt. which prescribes that the Petitioners should acquire the qualification by 31st March, 2019. Page 3 of 6 // 4 // 5. On his appearance Mr. Rao, learned counsel for O.P.2 filed a counter affidavit justifying therein the reason for cancelling the OTET examination, 2018. 6. This Court after going through the stand taken in the counter affidavit so filed by the Board, finds that the Board has rightly cancelled the examination as the question paper was leaked in the social media. Since it is a general notification issued by the Board by cancelling the entire examination, this Court is not inclined to entertain the writ petition at the instance of some aggrieved persons. 7. In view of the same, this Court is not inclined to interfere with the prayer as made in the writ petition. However, taking into account the submissions made by Mr. Mishra, learned counsel for the Petitioners that the Petitioners because of such cancellation of the examination are yet to complete the OTET examination, which is a pre-requirement for their regularization, Petitioners are at liberty to take the examination as and when it is conducted by the Board. If so required, the Petitioners may make appropriate application to allow them further time to take the test and acquire the qualification. If any, such application is moved before the authority, it is observed that the concerned authority shall take a lenient view and take a decision in accordance with law”. 4.6. It is contended that since after cancellation of the OTET Examination, 2018, the Petitioner appeared the next examination conducted in the year 2019 and also qualified the same, there was no occasion to recall the benefit of increment which was extended in his favour in terms of office order dated 01.01.2018 with passing of the impugned order under Annexure-6 on 15.05.2023. It is accordingly contended that the office order dated 15.05.2023 issued by Opposite Party No.4 under Annexure-6 is not sustainable in the eye of law. 5. Mr. R.N. Mishra, learned Addl. Government Advocate as well as Mr. A.A. Mishra, learned counsel appearing for the Board on behalf of Mr. S.S. Rao fairly contended that Page 4 of 6 // 5 // the OTET Examination, 2018 was cancelled by the Board because of leak of question paper in the social media and the next examination was held only in the year 2019. 6. Having heard learned counsel for the Parties and in view of the fact that the Petitioner could not qualify the OTET Examination by 31.03.2019 due to cancellation of the OTET Examination, 2018 by the Board and the Petitioner qualified the same in the next examination conducted in the year 2019, no fault lies with the Petitioner for not acquiring the qualification by 31.03.2019 in terms of the resolution issued under Annexure-4. 6.1. In view of such factual position, this Court is of the view that the Petitioner is entitled to get the benefit of increment in terms of order dtd.01.01.2018 so passed under Annexure-2 and the said benefit could not have been withdrawn with passing of the impugned order on 15.05.2023. Therefore, this Court is inclined to quash the order dtd. 15.05.2023 so passed by Opposite Party No.4 under Annexure-6. While quashing the same, this Court directs Opposite Party No.4 to continue with the benefit of increment so allowed in terms of the office order dtd.01.01.2018 under Annexure-2. Since it is contended by the learned counsel for the Petitioner that some amount has been recovered basing on the impugned order, it is observed that any such amount which has Page 5 of 6 // 6 // been recovered be refunded to the Petitioner within a period of two months from the date of receipt of this order. 7. With the aforesaid observations and directions, the Writ Petition stands disposed of. (Biraja Prasanna Satapathy) Judge Subrat Signature Not Verified Digitally Signed Signed by: SUBRAT KUMAR BARIK Reason: ... Location: HIGH COURT OF ORISSA, CUTTACK Date: 11-Sep-2023 17:05:22 Page 6 of 6