The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) Nos. 20494 & 22242 of 2023 W.P.(C) No. 20494 of 2023 In the matter of an application under Articles 226 & 227 of the Constitution of India. ……………… Abhijeet Ghosal …. Petitioner -versus- State of Odisha & Ors. …. Opposite Parties For Petitioners : Mr. B. Routray, Sr. Advocate along with Mr. J. Biswal, Advocate Mr. S.K. Das, Advocate (in W.P.(C) No. 22242 of 2023) Mr. P.K. Panda, Addl. Standing Counsel For Opp. Parties : PRESENT: THE HON’BLE JUSTICE BIRAJA PRASANNA SATAPATHY --------------------------------------------------------------------------------------- Date of Hearing: 08.01.2025 & Date of Judgment: 08.01.2025 --------------------------------------------------------------------------------------- Biraja Prasanna Satapathy, J. 1. This matter is taken up through hybrid mode.
Legal Reasoning
2. Heard learned counsel appearing for the Parties.
Decision
3. Since the issue involved in both the writ petitions are identical, both were heard analogously and disposed of by the present common order. // 2 // 4. Both the writ petitions have been filed inter alia challenging order dtd.25.05.2023 so passed by the Collector, Malkanagiri-Opp. Party No. 3. Vide the said order while considering the claim of the Petitioners in terms of the earlier order passed by this Court in W.P.(C) No. 27223 of 2020, claim of the Petitioners to get the benefit of appointment as against the post of contractual teacher B.Sc., B.Ed.(CBZ) was rejected. 5. Learned counsel for the Petitioners in both the cases contended that pursuant to the advertisement issued on 30.11.2018 under Annexure-1 though there was provision for appointment of Non-OSSTET candidates, but basing on the position of the Petitioners in the merit list only eligible candidates having OSSTET qualification were provided with the appointment. Accordingly, challenging such action of the Opp. Party No. 3, W.P.(C) No. 27223 of 2020 was filed by the present Petitioners. 5.1. It is contended that this Court vide order dtd.13.04.2023 while disposing the said writ petition along with a batch of writ petitions, directed Opp. Party No. 3 to consider the claim of the Petitioners as Non-OSSTET candidates and to provide them appointment if vacancies are available and also taking into account the interim order passed in the said writ petition on 15.10.2020. Page 2 of 10 // 3 // 5.2. It is contended that even though vacancies were very much available, but instead of considering the candidature of the present Petitioners in both the cases as against the available vacancies as Non- OSSTET candidates, claim of the Petitioners was rejected vide the impugned order dtd.25.05.2023. 5.3. It is contended that since this Court after considering the materials placed by both the parties in W.P.(C) No. 27223 of 2020 vide order dtd.13.04.2023, directed for consideration of the Petitioners’ claim to get the benefit of appointment as against the post of Contractual Teacher B.Sc. B.Ed.(CBZ) as Non-OSSTET Candidates against the vacancies available, without proper appreciation of the said order, claim of the Petitioners was rejected vide the impugned order. The direction contained in Para 7.1 of order dtd.13.04.2023 reads as follows:- “7.1. However, taking into account the submissions made by Mr. Biswal that the cases of the present Petitioners be considered as non-OSSTET candidates, this Court taking into account the provision contained in the advertisement and vacancies available at present as well as the interim order passed by this Court on 15.10.2020, directs the Opposite Party No.3 to consider the candidature of the Petitioners as non-OSSTET candidates. On such consideration, if it is found that the Petitioners are otherwise eligible for their selection as against the posts TGT (CBZ) and TGT (Arts), necessary action be taken by the Opposite Party No.3 to Page 3 of 10 // 4 // provide appointment to the Petitioners. Such an exercise shall be undertaken and completed by the Opposite Party No.3 within a period of one month from the date of receipt of this order.” It is accordingly contended that the impugned order is not sustainable in the eye of law. 6. Basing on the stand taken in the counter affidavit, learned Addl. Standing Counsel contended that in the common merit list of contract teacher for the post of B.Sc. B.Ed.(CBZ), names of the present Petitioners find place at Sl. Nos. 29 & 52. Since two (2) candidates i.e. Sl. No. 27 & 28 are above the Petitioners in W.P.(C) No. 20494 and seven (7) candidates are above the Petitioners in W.P.(C) No. 22242/2023 as Non-OSSTET candidates, Petitioners were not found eligible to get the benefit of appointment taking into account their position in the merit list as Non-OSSTET candidates and the vacancies available. It is accordingly contended that taking into account the position of the Petitioners in the merit list in respect of B.Sc. B.Ed.(CBZ) as Non-OSSTET candidates, their claim was considered in terms of the earlier order and they were not found eligible to get the benefit. Accordingly, their claim has been rejected vide the impugned order dtd.25.05.2023 under Annexure-14. Page 4 of 10 // 5 // 7. Considering the stand taken in the counter affidavit, when a stand was taken by the Petitioners that vacancies are available as against the posts advertised vide Advertisement dtd.30.11.2018 under Annexure- 1, this Court in the connected W.P.(C) No. 22245 of 2023 passed an order directing the State Counsel to provide the vacancy position in respect of the post of B.Sc. B.Ed. (CBZ) & B.A., B.Ed.. 8. Pursuant to the said order learned Addl. Standing Counsel produced the instruction provided by Opp. Party No. 3 vide letter dtd.21.12.2024. This Court after going through the said instruction finds that as against the post of B.Sc. B.Ed.(CBZ) though 12 posts were advertised to be filled up, 7 posts were filled up leaving 5 vacant posts. In the meantime taking into account the subsequent vacancy available, the total vacancy has now reached at 10. 9. To the submission made by the learned Addl. Standing Counsel that Petitioners in both the cases because of their position in the merit list as Non-OSSTET candidate are not eligible to get the benefit of appointment vis-à-vis the vacancies available, learned Sr. Counsel appearing for the Petitioner in W.P.(C) No. 20494 of 2023 contended that in view of the settled position of law governing the field, only the candidates approaching this Court are eligible to be considered as Page 5 of 10 // 6 // against the vacancies available. In support of the same, learned Sr. Counsel relied on the following decisions:- (i) Prasanna Kumar Nayak & Ors. Vs. National Insurance Co. & Ors., Vol. 73 (1992) C.L.T. 791 (ii) Satish Mohan Padhy Vs. NISER & Ors. reported in 2016(II)ILR- CUT-1242 9.1. This Court in Para 7 of the Judgment in the case of Prasanna Kumar Nayak has held as follows:- “7. However, to take care of the submission of Shri Nanda that if the opposite parties would be directed to absorb the four petitioners in the posts of Assistant (Typist), it would be not permissible for them to deny appointment to other persons whose names found place in the aforesaid select list, because of which the opposite parties shall have to give appointment to all the persons who had been selected and whose names are in the list. In this connection, we would like to say that there would be no such compulsion on the part of the opposite parties and the present decision of ours would not clothe other persons with any right whose names are in the select list but who had slept over the matter for long. Law permits Courts to grant and confine relief to those who come before them and to observe that the same would not be available proprio vigore to those similarly situated but who had chosen to sleep over their rights. Vigilance is said to be the price of liberty. We, therefore, make it clear that this decision of ours would not ipso facto clothe other persons whose names found place in the aforesaid list to claim appointment on the basis of this decision.” Page 6 of 10 // 7 // 9.2. Similarly, this Court in Para 12 of the Judgment in the case of Satish Mohan Padhy has held as follows:- “12. Apart from the above, so far as the claim of similarly situated persons are concerned, this Court is of the considered opinion that since they have slept over the matter and have not approached this Court in time, their cases cannot be considered. Similar question had come up for consideration before this Court in Prasanna Kumar Nayak and others (supra) and in paragraph-7 thereof a Division Bench of this Court observed as follows:-- "7. However, to take care of the submission of Shri Nanda that if the opposite parties would be directed to absorb the four petitioners in the posts of Assistant (Typist), it would be not permissible for them to deny appointment to other persons whose names found place in the aforesaid select list, because of which the opposite parties shall have to give appointment to all the persons who had been selected and whose names are in the list. In this connection, we would like to say that there would be no such compulsion on the part of the opposite parties and the present decision of our would not clothe other persons with any right whose names are in the select list but who had slept over the matter for long. Law permits Courts to grant and confine relief to those who come before them and to observe that the same would not be available proprio vigore to those similarly situated but who had chosen to sleep over their rights. Vigilance is said to be the price of liberty. We, therefore, make it clear that this decision of ours would not ipso facto clothe other persons whose names found place in the aforesaid list to claim appointment on the basis of this decision." In view of such position, this Court is of the considered view that the decision of ours allowing the petitioner to get admitted into the course would not ipso facto clothe other persons whose names Page 7 of 10 // 8 // found place in the rank list in question to claim for admission at par with the petitioner. Apart from the same, if other candidates, who do not exercise or pursue their rights or legal remedies against their non-selection expeditiously and promptly, then no relief can be granted by this Court to such candidates in the form of securing an admission.” 10. Having heard learned counsel appearing for the Parties and considering the submissions made, this Court finds that pursuant to the advertisement issued under Annexure-1, both the Petitioners made their respective applications as against the post of B.Sc., B.Ed.(CBZ) as Non-OSSTET candidates. In spite of their eligibility and placement in the merit list and the vacancies remained to be filled up, when they were not provided with the appointment as Non-OSSTET candidates, the matter was carried to this Court in W.P.(C) No. 27223 of 2020. 10.1. This Court vide order dtd.13.04.2023 while disposing the writ petition, directed Opp. Party No. 3 to consider the claim of the Petitioners to get the benefit of appointment as contractual teacher B.Sc., B.Ed.(CBZ) taking into account the vacancies available and the interim order passed on 15.10.2020. As found from the impugned order Opp. Party No. 3 without proper appreciation of the order passed by this Court on 13.04.2023 rejected the claim of the Petitioners on the ground, which is not sustainable in the eye of law. Page 8 of 10 // 9 // 10.2. Since it is not disputed that 5 posts remained vacant and could not be filled up pursuant to the recruitment process initiated vide Advertisement dtd.30.11.2018, this Court taking into account the vacancies available at present so produced by the State Counsel basing on the instruction of Opp. Party No. 3 and the earlier order passed on 13.04.2023 as well as the interim order passed on 15.10.2020, placing reliance on the decisions as cited (supra), is of the view that claim of the Petitioners is required to be considered as against those vacancies. The stand taken by Opp. Party No. 3 that some candidates are placed above the Petitioners in the merit list of Non-OSSTET Candidates is also not acceptable in view of the decision relied on by the learned counsels appearing for the Petitioners so rendered in the case of Prasanna Kumar Nayak and Satish Mohan Padhy as cited supra. Since only the Petitioners are prosecuting their claim to get the benefit of appointment, their cases are to be considered as against the vacancies available. 10.3. Therefore, this Court while quashing the impugned order dt.25.05.2023 in both the cases, directs Opp. Party No. 3 to consider the claim of the Petitioners as against the available vacancies as Non- OSSTET candidates and provide them appointment as against the post of B.Sc., B.Ed.(CBZ), if no claim of candidates placed above the Page 9 of 10 // 10 // Petitioners in terms of any order passed by this Court is pending before Opp. Party No. 3 at present for consideration. This Court directs Opp. Party No. 3 to complete the entire exercise within a period of six (6) weeks from the date of receipt of this order. 11. Both the writ petitions are accordingly disposed of. Photocopy of the order be placed in the connected case record. (BIRAJA PRASANNA SATAPATHY) Judge Orissa High Court, Cuttack Dated the 8th January, 2025/Sneha Signature Not Verified Digitally Signed Signed by: SNEHANJALI PARIDA Designation: Sr. Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 16-Jan-2025 18:06:25 Page 10 of 10