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IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C). No. 19791 of 2024 (An Application under Articles 226 & 227 of the Constitution of India) --------------- Dileswar Kisan & Ors...… Petitioners -Versus- State of Odisha & Ors.... Opposite Parties Advocate(s) appeared in this case:- ________________________________________________ For Petitioner Advocate : Mr. S.K.Purohit, For Opp. Party : Mr. S.Behera, AGA _______________________________________________________ CORAM: JUSTICE SASHIKANTA MISHRA SASHIKANTA MISHRA, J. JUDGMENT 20th November, 2024 The petitioners have approached this Court seeking the following relief: is “It that your Lordships may be graciously pleased to therefore prayed Page 1 of 9 admit this case, issue notice on the Opp. Parties asking them to show cause as to why the petitioners cannot be engaged as Shikshya Sahayak with the condition to pass OTET in the next oncoming OTET examination like the other petitioners in the aforesaid judgment(supra) and on hearing the Opp. Parties if the Opp. Parties show no or insufficient cause, then direct the Opp. Parties to engage the petitioners in any available equivalent post under the Opp. Party No.3 in pursuant of the advertisement dt. 08.12.2011; And/or pass such any other/further order(s)/ direction(s) as deemed just and proper by your Lordships in the aforesaid facts and circumstances of this case; And, allow this case with cost. And for such act of kindness, the petitioners as in duty bound, shall ever pray.” 2. Bereft of unnecessary details, the facts of the case are that the petitioners were applicants for the post of Sikshya Sahayak pursuant to advertisement dated 11.07.2011. It is submitted that an additional condition of passing OTET was imposed in course of selection. As such, the petitioners, though claimed to have been selected as per the third select list but did not have the Page 2 of 9 OTET qualification for which, they could not be appointed. Some of them approached this Court in W.P.(C). No. 18521 of 2013. By order dated 23.03.2021, this Court taking note of the fact that the petitioners had not qualified the OTET, did not find any reason to interfere and the writ application was dismissed. The petitioners carried the matter in appeal to the Division
Legal Reasoning
Bench being W.A. No. 532 of 2022. It was contended that some persons similarly placed as the petitioners had been granted the benefit. However, the Division Bench was not inclined to accept the contention on the ground that in the facts and circumstances of the case no negative equality can be applied. The writ appeal was thus, dismissed. 3. Mr. S.K.Purohit, learned counsel appearing for the petitioner would submit that the order passed by this Court in W.P.(C). No. 18521 of 2013 had not considered the ratio decided by another Coordinate Bench of this Page 3 of 9 Court in the case of Subrat Das and Others Vrs. State of Orissa and Batch (W.P.(C). No. 11270 of 2012 and batch) wherein, the condition of having OTET qualification was considered in detail and the concerned notification of the Government was quashed. Further, the Court directed to issue engagement letters as per the select list of Sikhya Sahayaks prepared by them on the condition that the candidates shall have to clear OTET by end of January 2013. According to Mr. Purohit, the subsequent order passed in W.P.(C). No. 18521 of 2013, not having noticed the judgment rendered in Subrat Das’s case must therefore, be treated as per incuriam. 4. Learned State counsel however, would submit that such plea not having been raised before the Division Bench in the writ appeal, is no longer available to be raised by the petitioners at this distance of time. 5. In response, Mr. Purohit draws attention of this Court to another judgment rendered in the case of Ramesh Page 4 of 9 Chandra Swain vrs. State of Odisha (W.P.(C). No. 8903 of 2021) wherein this Court after analyzing the ratio decided in Subrat Das in detail took note of the fact that the criteria for selection had been changed after commencement of the selection process and taking an overall view of the matter including the provision available for relaxation of the norms, held as follows: 13. It is true that in Subrat Das (supra) reference was made to the relaxation clause under Section 23 and direction was given to issue engagement letters granting them liberty to clear the OTET by end of January, 2013 but the same in the circumstances referred to in the preceding paragraphs cannot be interpreted to mean time line had been stipulated by the Coordinate Bench. On the contrary, it is quite easy to discern that such liberty was granted in respect of the candidates whose names had found place in the first and second phase selection list. By such time the 3rd selection list had not been published. It was published only in July, 2013, i.e. much after passing of the judgment in Subrat Das. It is therefore, not open for the State to argue that the petitioner should have cleared the OTET by the end of January, 2013. 14. Thus, from a conspectus of the analysis of facts and law as made above, this Court is of the considered view that the authorities have committed material illegality in fixing additional criteria for selection and engagement of Sikshya Sahayaks after initiation of selection process. It is stated at the bar that the scheme of Sikshya Sahayak has been abolished in the meantime and hence, the petitioner can only be engaged in an equivalent post, which is said to be junior teacher. Such being the case, the Page 5 of 9 relax the norms by Government can always permitting a Junior teacher so engaged to acquire TET within a specified time. In the instant case, as has already been held, the petitioner was wrongly deprived of engagement despite being placed in the third phase selection list published in July,2013. The authorities cannot therefore, contend that there being no posts left, he cannot be so engaged at present. It is reiterated that but for illegal deprivation of the petitioner he could have been engaged way back in 2013. The State being a model employer should consider that such undue, deprivation of engagement to of the petitioner militates against livelihood the Constitution. Therefore, the State with a view to recompense the petitioner for the valuable years lost by him in pursuing this job and in fighting multiple litigations before this Court to assert his rights, should treat it as a special case by engaging the petitioner in any equivalent post subject to the condition of his acquiring OTET qualification within a reasonable time and if necessary by relaxing the age criteria. ingrained under Article 21 of the right Holding thus, the said writ application was allowed and the concerned authorities were directed to engage the petitioner therein against available vacancy in any equivalent post subject to the condition of his acquiring OTET qualification within a stipulated period. It is stated at the bar that the judgment of this Court as above has not been set aside in appeal so far. Page 6 of 9 6. Learned State counsel, being directed has produced the speaking order passed by the Collector-Cum-CEO, Jharsuguda during pendency of this writ application wherein the representation submitted by the petitioners have been again rejected on the ground that the earlier writ applications filed by them was dismissed and the petitioners do not possess the OTET qualification. As is evident, the judgment passed by this Court in Ramesh Chandra Swain(supra) has not been considered. Though, this Court is fully conscious of the fact that the earlier writ application filed by the petitioners was dismissed and said order was confirmed in Writ Appeal yet the ratio decided in Subrat Das being subsequently examined in Ramesh Chandra Swain as mentioned above, the dismissal of the writ application filed by the petitioners’ earlier would not stricto sensu operate as a bar for consideration of the case of the petitioners afresh. The fact that the petitioners were selected and placed in the Page 7 of 9 third select list is highly significant and is something that cannot be brushed aside likely. There is some force in the submission of Mr. Purohit that persons similarly placed having been granted the benefit, it would be discriminatory if the present petitioners are denied the same. 7. Thus, taking an overall view of the matter, the writ application is disposed of with a direction to the Collector-cum-CEO, Jharsuguda to reconsider the case of the petitioners in light of the judgment of this Court in Ramesh Chandra Swain (supra). The petitioners shall appear before the Collector on 04th December along with certified copy of this order and also a copy of the judgment in Ramesh Chandra Swain (supra). The Collector shall consider the case of the petitioners in light of the judgment in Ramesh Chandra Swain (supra) and pass a reasoned order within one month thereafter. It is needless to mention that if the Collector finds that the Page 8 of 9 ratio of Ramesh Chandra Swain (supra) can be applied to the case of the petitioners, consequential orders shall be passed in their favour without any further delay. Deepak Sashikanta Mishra, Judge Signature Not Verified Digitally Signed Signed by: DEEPAK PARIDA Reason: Authentication Location: OHC,Cuttack Date: 26-Nov-2024 13:44:10 Page 9 of 9