The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.16508 of 2024 In the matter of an application under Articles 226 & 227 of the Constitution of India, 1950. Anakar Swain …. Petitioner ------------- -versus- State of Odisha & Others …. Opposite Parties Advocates Appeared in this case For Petitioner - M/s.K.K. Swain, K. Swain & J.R. Khuntia, Advocates
Legal Reasoning
For Opp. Parties - Mr.D. N. Lenka, Addl. Government Advocate ------------ CORAM MR. JUSTICE DIXIT KRISHNA SHRIPAD ---------------------------------------------------------------------------------------- Date of Hearing & Judgment : 28.10.2025 ---------------------------------------------------------------------------------------- PER DIXIT KRISHNA SHRIPAD, J. Petitioner, who has suffered order dated 18.04.2024 at the hands of Director of Secondary Education, Odisha at Annexure-8 rejecting his claim for regularization of service, is knocking at the Page 1 of 8 doors of the Writ Court seeking its invalidation coupled with a direction for regularization. 2. Learned counsel for the petitioner submits that the only ground in the impugned order for denying regularization is that his client lacks the educational qualification, when he does not. He tells that the educational qualification prescribed in the Advertisement at Annexure-1 is satisfied by the petitioner and therefore, on that sole ground alone, petition needs to be allowed. Secondly, he presses into service the Delhi High Court Judgment in Social Justice, A Civil Rights Group v. Government of N.C.T. Delhi, [WP(C) No.677 of 2008] decided on 16.09.2009 to the effect that a degree in Special Education is equal to a degree in General Education. In other words, B.Ed. (SE) approximates to B.Ed. (GE). Thirdly, he presses into service a decision of Apex Court in Bhagawati Prasad v. Delhi State Mineral Development, AIR 1990 SC 371 to support his contention that once in terms of prescribed qualification, a candidate is appointed in due selection process, it Page 2 of 8 is not open to the Appointing Authority to contend that he lacked educational qualification for the purpose of service benefits such as regularization, etc. especially, when his services have been drawn for a long period after the irregular entry. 3. Learned AGA Mr. Lenka, drawing attention of the Court to the counter, vehemently contends that the qualification acquired by the petitioner does not answer the prescription in the Advertisement at Annexure-1; in the absence of requisite qualification, nobody can claim appointment, much less the regularization; education goes to the root of matter when recruitment process is undertaken and therefore, cannot be ignored. He also loudly reads out certain other contentions that have been taken up in his pleadings. 4. Having heard learned counsel for the parties and having perused the petition papers, this Court is inclined to grant indulgence in the matter as under and for the following reasons: Page 3 of 8 4.1. Petitioner came to be appointed to the position in question with effect from 01.07.2011 having undergone the selection process in terms of Advertisement dated 20.11.2009 at Annexure-1. Clause 2(d) under the Educational Column of the said Advertisement reads as under: “2(d) As regards the eligibility of candidates for engagement of contractual teachers, he/she must have obtained Bachelor’s Degree in Arts, Science along with a degree of Bachelor’s of Education from a recognized University for being considered as Trained Graduate Teacher….” After examining the documents, the Selecting Body came to the conclusion that the petitioner was qualified for appointment. Accordingly, select list was prepared followed by the issuance of appointment order. Since then, years have lapsed and there is absolutely no complaint whatsoever about the quantitative & qualitative discharge of his duties all through. Therefore, the contention of learned AGA Mr. Lenka that the petitioner lacks the requisite educational qualification is liable to be rejected. Page 4 of 8 4.2. Learned counsel appearing for the petitioner is more than justified in contending that the qualifications which his client does possess answer the requirement of Advertisement; he is right in placing reliance on the Delhi High Court judgment supra which is structured on the basis of affidavit filed by the Member Secretary of Rehabilitation Council of India wherein paragraphs 12 & 14 read as under: “12. It is submitted that B.Ed. Special Education is a degree programme for one year and minimum qualification for entrance is graduation and the successful candidates are eligible to impart education to the secondary level of students. Hence it is equivalent to B.Ed. (General). Diploma in Special Education (DSE) course is a 2 year regular course of the Council and the successful candidate will be eligible to teach the pre- primary level of education and hence this course is equivalent to the D.Ed./TTC(General). Without prejudice, I further say and submit that the successful candidates of B.Ed. Special Education in broader aspects are much more trained in comparison to the B.Ed. (General) and D.Ed./TTC (General) because apart of training of teaching, under this course they are getting the training to how to teach physically challenged children. Therefore, these candidates should get priority to be appointed as teachers in schools as they can teach general as well as children with special needs. At present the Council has already been registered 23,191 Special Educators; and 14. I further say and submit that Council is a statutory body to regulate the training programme in the field of disability. Section 13 sub clauses 2(b) of Act provides that no person other than qualified and registered with the Council can teach children with disability. In some of the state govt. has already considered the equivalence B.Ed. (SE) with B. Ed(General) and D.Ed.(SE) with D.Ed./TTC for the purpose of Page 5 of 8 appointment of the Special teachers in all the special schools as well as integrated school in the state.” Therefore, the contention as to the requisite qualification, as taken up by the petitioner, is adumbrated. 4.3. Learned counsel for the petitioner is again right in placing heavy reliance on the decision of Apex Court in Bhagabati Prasad supra. It supports his contention that once appointment has been done on irregular basis and the appointee works for a long period with no complaint whatsoever, whatever arguable effect in the educational qualification would pale into insignificance. At paragraph 6 of the decision it has been observed as under:- “6.The main controversy centres round the question whether some petitioners are possessed of the requisite qualifications to hold the posts so as to entitle them to be confirmed in the respective posts held by them. The indisputable facts are that the petitioners were appointed be- tween the period 1983 and 1986 and ever since, they have been working and have gained sufficient experience in the actual discharge of duties attached to the posts held by them. Practical experience would always aid the person to effectively discharge the duties and is a sure guide to assess the suitability. The initial minimum educational qualification prescribed for the different posts is undoubtedly a factor to be reckoned with, but it is so at the time of the initial entry into the service. Once the appointments were made as daily rated workers and they were allowed to work for a considerable length of time, it would be hard and harsh to deny them the confirmation in the respective posts on Page 6 of 8 the ground that they lack the prescribed educational qualifications. In our view, three years’ experience, ignoring artificial break in service for short period/periods created by the respondent, in the circumstances, would be sufficient for confirmation….” The above observation comes to the aid of petitioner and it demolishes the stand taken by the OP. 4.4. Mr. Lenka very passionately resisted the petition taking up various contentions that are alien to the reasoning of impugned order and therefore, cannot be entertained. The Apex Court, in Mohinder Singh Gill v. Chief Election Commission; AIR 1978 SC 851, has said as under:- “The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought ,out. We may here draw attention to the observations of Bose J. in Commissioner of Police, Bombay v. Gordhandas Bhanji, AIR 1952 SC 16 "Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in Ms mind, or what he intended to, do. Public orders made by public authorities are meant to have public effect and are intended to effect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself…..Orders are not like old wine becoming better as they grow older”. Page 7 of 8 Therefore, contentions alien to the reasoning in the impugned order have to stay away in the adjudicatory process. In the above circumstances, this petition is allowed and Writ of Certiorari issues quashing the impugned order coupled with Writ of Mandamus to O.P. No.3 to grant regularization with effect from the date on which the petitioner completed six years of continuous service and further to grant all consequential benefits within a period of three months. Costs reluctantly made easy. Web copy of judgment to be acted upon by all concerned. (Dixit Krishna Shripad) Judge Orissa High Court, Cuttack The 28th day of October, 2025/Basu Signature Not Verified Digitally Signed Signed by: BASUDEV NAYAK Designation: ASST. REGISTRAR-CUM-SR. SECRETARY Reason: Authentication Location: HIGH COURT OF ORISSA : CUTTACK Date: 31-Oct-2025 16:42:02 Page 8 of 8