The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No. 29393 & 33004 of 2020 Rajalaxmi Mishra …. Petitioner Mr. B.B. Mohanty, Advocate -versus- State Of Odisha & Ors. …. Opposite Parties Mr. R.N. Mishra, AGA (Opp. Party Nos. 1 to 3) Mr. B.S. Rayaguru, CGC Along with Mr. P.K. Parhi, DSGI (Opp. Party Nos. 4 & 5) CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY ORDER 14.09.2023 Order No 01. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode.
Legal Reasoning
2. Heard Mr. B.B. Mohanty, learned counsel for the Petitioner and Mr. R.N. Mishra, learned Addl. Govt. Advocate appearing for the Opp. Parties. 3. It is contended by the learned counsel for the Petitioner that pursuant to the advertisement issued by the Opp. Party No. 2 for engagement of Contract Teachers in Upgraded Govt. High Schools during the year 2010-11 under Annexure-5, Petitioner made her application for the post of Contract Teacher (TGT). It is contended that in the advertisement the following qualification was prescribed as against the post of Contract Teacher (TGT):- // 2 // “Bachelor degree in Arts/Science along with a degree of Bachelor of Education from a recognized University.” 3.1. It is contended that the Petitioner does have the required B.A. qualification having passed the same from Utkal University in the examination held in the month of April, 2003 and in support of her B.Ed qualification, the Petitioner has obtained the qualification from the Rastriya Sanskrit Sansthan, which is a Deemed University, the examination which was held in the year 2009. 3.2. It is contended that since the Petitioner in terms of the advertisement issued under Annexure-5 does have the requisite qualification of B.A. with B.Ed., she made her application in terms of the advertisement. It is further contended that the application of the Petitioner was duly entertained and on being duly selected she was appointed as a Contract Teacher (TGT) vide order dtd.28.10.2011 under Annexure-5 series. 3.3. It is contended that even though the Petitioner was appointed as a Contract Teacher vide order dtd.28.10.2011 under Annexure-5 series, but on completion of 6 years of her service when she was not regularized, she approached this Court in W.P.(C) No. 20667 of
Decision
2019. This Court vide order dtd.04.11.2019 disposed of the matter with a direction on the Opp. Party No. 2 to take a decision on the Petitioner’s claim for her regularization. It is contended that in consideration of the direction so issued by this Court, Opp. Party No. 2 vide order dtd.28.09.2020 rejected the Petitioner’s claim on the ground that the Petitioner does not have the requisite qualification in terms of the advertisement issued under Annexure-5 series. Challenging the order dtd.28.09.2020 the Petitioner initially approached this Court in W.P.(C) No. 29393 of 2020. Page 2 of 8 // 3 // 3.4. It is contended that during pendency of W.P.(C) No. 29393 of 2020, when a show-cause was issued by the DEO, Koraput - Opp. Party No. 3 on 20.11.2020 under Annexure-15 calling upon her to file her reply as to why she will not be disengaged from her post as she does not possess the required qualification of B.Ed., the same was challenged by the Petitioner in W.P.(C) No. 33004 of 2020. This Court while issuing notice of the matter on 01.12.2020 passed an interim order directing for maintenance of status-quo. Learned counsel for the Petitioner contended that in terms of the said interim order passed on 01.12.2020 the Petitioner was not only allowed to continue but also she is continuing as on date as a Contract Teacher (TGT). 3.5. Mr. Mohanty, learned counsel for the Petitioner contended that the ground on which the claim for regularisation is rejected vide order under Annexure-14, which is the subject matter of challenge in W.P.(C) No. 29393 of 2020 and the ground on which the show- cause was issued under Annexure-16, which is the subject matter of challenge in W.P.(C) No. 33004 of 2020, are not sustainable in the eye of law as the Petitioner in terms of the advertisement issued under Annexure-5 series does have the requisite qualification of B.A. & B.Ed. It is contended that the Petitioner has passed the B.Ed. from Rastriya Sanskrit Sansthan in the examination held in the year 2009 vide Annexure-1 series. It is further contended that the qualification obtained by the Petitioner from Rastriya Sanskrit Sansthan has been declared as equivalent to B.Ed. by the authorities of Berhampur University vide Notification dtd.31.12.2014 under Annexure-3. It is contended that the B.Ed. qualification so acquired by the Petitioner from Rastriya Sanskrit Sansthan since has been declared as equivalent by the Berhampur University, Petitioner does have the requisite qualification in terms of the advertisement issued Page 3 of 8 // 4 // under Annexure-5 and she has been rightly selected and appointed vide order dtd.28.10.2011 under Annexure-5 series. 3.6. It is also further contended that since Petitioner’s application was not only entertained but she was selected and appointed vide order dtd.28.10.2011, no fault can be attributed for such selection and appointment of the Petitioner. In view of such selection and appointment of the Petitioner and his continuance for the last 12 years, she is otherwise eligible for her continuance. In support of his aforesaid submission Mr. Mohanty relied on a decision of this Court passed in the case of Bikash Mahalik Vs. State of Odisha & Ors. (2022 (I) ILR-CUT-108). 3.7. This Court in Para 27 & 28 of the Judgment in the case of Bikash Mahalik has held as follows:- “27. In Pratima Sahoo (supra), this Court held that the order of disengagement of the petitioner from the post of Sikshya Sahayak, pursuant to decision of the district administration, having found qualified in the selection process and appointed after resigning from her erstwhile post of Anganwadi Worker and having worked for six to eight months, amounts to putting the petitioner in prejudical and disadvantageous position and the reason assigned for later finding the petitioner not suitable for securing less marks than other meritorious candidates do holds good, the petitioner cannot be found faulted by the mistake committed by the appointing authority in calculating the percentage. Consequentially, direction was given to absorb the petitioner forthwith applying the doctrine of promissory estoppel in the said case. 28. In view of the law and fact, as discussed above, the irresistible conclusion is that the show-cause Page 4 of 8 // 5 // notice dated 31.03.2015 under Annexure-13 issued by opposite party no.3, the letter dated 09.02.2015 under Annexure-13/1 issued by opposite party no.2 to opposite party no.1 and letter dated 26.03.2015 under Annexure-13/2 issued by the Government of Odisha, Revenue and Disaster Management Department to opposite party no.2 cannot sustain. Therefore, the same are liable to be quashed and hereby quashed. Pursuant to interim order passed on 07.04.2019 by the Odisha Administrative Tribunal since the petitioner is still continuing, he shall be allowed to continue with all service and financial benefits as due and admissible to him in accordance with law.” 4. Making all such submissions Mr. Mohanty contended that the rejection of the Petitioner’s claim for his regularization vide order dtd.28.09.2020 and the show-cause issued subsequently on 20.11.2020 proposing to disengage the Petitioner on the ground that the Petitioner does not have the required B.Ed. qualification are not sustainable in the eye of law and calls for interference of this Court. 5. Mr. R.N. Mishra, learned Addl. Govt. Advocate on the other hand made his submission basing on the stand taken in the counter affidavit. It is contended that in the advertisement issued under Annexure-5 the requirement with regard to qualification was B.A. with B.Ed.. In the advertisement no provision to treat equivalent qualification was prescribed. The Petitioner in terms of the advertisement does not have the required B.Ed. qualification and the authorities without proper verification entertained her application and selected and appointed her vide order dtd.28.10.2011. When the Petitioner claimed for regularisation of her services and approached this Court and this Court directed for consideration of her claim, while considering the matter the fact Page 5 of 8 // 6 // that the Petitioner does not have the required B.Ed. qualification came to the light of the Opp. Party No. 2. Accordingly, claim of the Petitioner for her regularisation was rejected vide order dtd.24.09.2020. Subsequently, since it is found that the Petitioner has been illegally selected and appointed as she does not have the required B.Ed. qualification, show-cause was issued proposing to disengage the Petitioner from her services on 20.11.2020. 5.1. It is the main contention of the learned Addl. Govt. Advocate that since there was no provision to treat equivalency of any qualification as to B.A. and B.Ed. so indicated in the advertisement under Annexure-5, the application of the Petitioner was not at all entertainable. However, she was wrongly selected and appointed and accordingly she cannot claim the benefit of such illegal appointment. It is accordingly contended that prayer of the Petitioner for her regularisation has been rightly rejected with issuance of the show-cause. 6. Mr. B.S. Rayaguru, learned CGC along with Mr. P.K. Parhi, learned DSGI on the other hand contended that the University from which the Petitioner has acquired B.Ed. qualification has been declared as a Deemed University by National Council for Teacher Education vide its Notification issued under Annexure-2. It is accordingly contended by Mr. Rayaguru that the Petitioner has acquired the B.Ed. qualification from a recognized institution, which has been duly recognized by National Council for Teacher Education. 7. Having heard learned counsel appearing for the Parties and after going through the materials available on record, it is found that in the advertisement issued under Annexure-5 for the selection and appointment of Contract Teacher, the prescribed qualification was Page 6 of 8 // 7 // B.A. with B.Ed.. The Petitioner with having qualification of B.A. from Utkal University and B.Ed. from Rastriya Sanskrit Sansthan, made her application for the post of Contract Teacher (TGT Arts). It is found from the record that the application of the Petitioner was not only entertained but also she was selected and appointed as a Contract Teacher vide order dtd.28.10.2011 under Annexure-5 series. The Petitioner was also allowed to continue with due extension of her services from time to time. Only when the Petitioner raised her claim for regularization and this Court directed for consideration of the same, Opp. Party No. 2 while rejecting the claim vide order dtd.24.09.2020 took a stand that the Petitioner does not have the required B.Ed. qualification and accordingly she was not eligible to make the application and her selection and appointment has been made illegally. While holding so in order dtd.24.09.2020, the Petitioner was subsequently show-caused on 20.11.2020 as to why her services will not be terminated, as she does not have the requisite qualification of B.Ed. 7.1. This Court finds that the application of the Petitioner for the post of Contract Teacher (TGT) since was entertained and on being found suitable she was appointed vide order dtd.28.10.2011, the plea that has been taken by the Opp. Party No. 2 while rejecting her claim for regularization and the plea on which the show-cause has been issued on 20.11.2020 cannot sustain legal scrutiny as the Petitioner has no fault with regard to her selection and appointment way back in the year 2011. Placing reliance on the decision of this Court in the case of Bikash Mahalik as cited supra, this Court is of the view that the Petitioner since has been duly selected and appointed in the year 2011, no such plea can be taken by the Opp. Party No. 2 while Page 7 of 8 // 8 // rejecting her claim for regularization vide order dtd.24.09.2020 and while issuing the show-cause on 20.11.2020. Therefore, this Court is inclined to quash the order dtd.24.09.2020 as well as the show- cause issued on 20.11.2020, which are the subject matter of challenge in both the writ petitions. While quashing the order dt.24.09.2020 as well as the show-cause dt.20.11.2020, this Court directs Opp. Party No. 2 to take consequential action for regularisation of the services of the Petitioner. Such a fresh decision shall be taken within a period of three (3) months from the date of receipt of this order. 8. Both the writ petitions are accordingly disposed of. 9. Photo copy of the order be placed in the connected case record. (Biraja Prasanna Satapathy) Judge Sneha Signature Not Verified Digitally Signed Signed by: SNEHANJALI PARIDA Designation: Jr. Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 21-Sep-2023 13:22:24 Page 8 of 8