Application under Articles 226 & 227 of Constitution of India. Prajnya Parimita Barik … v. State of Odisha & Others
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No. 28242 of 2013 Application under Articles 226 & 227 of Constitution of India. Prajnya Parimita Barik …… Petitioner --------------- - Versus - State of Odisha & Others ...…. Opp. Parties Advocate(s) appeared in this case:- ________________________________________________________ For Petitioner : M/s. Chandrakanta Nayak & R.K. Nayak, Advocates For Opp. Parties : Mr. S.N. Pattnaik, Addl. Government Advocate _________________________________________________________ CORAM: JUSTICE SASHIKANTA MISHRA JUDGMENT 12th February, 2025 SASHIKANTA MISHRA, J. The petitioner applied for engagement as Sikshya Sahayak pursuant to the advertisement issued for the year 2014-15. She being a physical disabled candidate has graduation qualification with B.Ed. Further, she also has OTET-I qualification. A list of trained eligible candidates was published by OPEPA, wherein the petitioner’s name was at serial No.191. The said list was of the trained candidates. Page 1 of 7 However, the District Project Coordinator (DPC), Balasore struck out her name from the said list and published her name in the category of untrained CT candidates at serial No. 51. The petitioner approached this Court in W.P.(C) No.52 of 2015 challenging such decision, but by judgment dated 16.02.2016, this Court dismissed the writ application by holding that the policy decision of the Government cannot be interfered with.
Legal Reasoning
The petitioner challenged such dismissal of the writ application before the Division Bench in W.A. No. 101 of 2016. By order dated 07.02.2017, the writ appeal was disposed of granting liberty to the petitioner to approach the concerned authority with her grievance. The petitioner submitted a representation, which came to be rejected by the District Project Coordinator by his order dated 20.05.2017. Said order is impugned in the present writ application. The petitioner contends that being a physically disabled candidate and having OTET-I qualification with B.Ed, she is eligible to be appointed as a trained candidate. Page 2 of 7 2. The stand of the State as reflected in the counter affidavit is that though the petitioner has acquired graduation with B.Ed. qualification and passed OTET in paper-1, she cannot apply under CT category post. As per clarification issued by the Government in Department of School and Mass Education vide letter dated 29.08.2023, a candidate passing OTET-I cannot apply under B.Ed. category and a candidate passing OTET-II cannot apply under CT category. It is further stated that the engagement process for the year 2014-15 has already been completed. Her earlier approach to this Court has met with failure. Therefore, the question of considering her as a handicapped person also does not arise. 3.
Legal Reasoning
Heard Mr. Chandrakanta Nayak, learned counsel for the petitioner and Mr. S.N. Pattnaik, learned Addl. Government Advocate for the State. 4. Mr. Nayak, would argue that admittedly the petitioner is a graduate with B.Ed. qualification and has passed OTET-I. Further, she being a disabled candidate having hearing impairment can be considered for CT category post. The DPC has not considered this aspect while rejecting the Page 3 of 7 representation of the petitioner basing on the clarification dated 29.08.2013 of the Government. 5. Per contra, Mr. Pattnaik would argue that as per the clarification issued by the Government, a candidate passing OTET-1 cannot apply under B.Ed. category even though she has B.Sc. qualification. Similarly, candidate passing OTET-II cannot apply under CT category. Admittedly, the petitioner having passed OTET-I cannot apply under CT category and therefore, was rightly treated as untrained. Mr. Pattnaik further argues that the petitioner’s case was earlier rejected on merits by this Court in the earlier writ application filed by her and therefore, she cannot be allowed to re-agitate the issue. 6. It is true that the petitioner had earlier approached this Court in W.P.(C) No. 52 of 2015, which was dismissed on merits. She preferred intra Court appeal being W.A. No. 101 of 2016, wherein she was permitted to withdraw the appeal with liberty to approach the appropriate authority. Therefore, applying the doctrine of merger, it can be said that the previous order passed by the Single Judge would not stand as res- Page 4 of 7 judicata. The order passed by the appropriate authority, DPC is to be considered for its correctness or otherwise. 7. Reading of the impugned order reveals that reference has been made to the clarification dated 29.08.2013 of the Government and the fact that the petitioner though qualified OTET-I, does not have CT qualification for the post meant for CT category. Therefore, she was treated as untrained candidate. Further, as she had not qualified OTET-II, she could not also be considered under B.Ed. category post. 8. It appears that by notification dated 11.09.2014 of the Government, guidelines were issued for engagement of Sikshya Sahayaks. The advertisement under Clause No.7 provided that OTET-1 passed untrained SC, ST and PH candidates can apply for CT posts. It is not disputed that the petitioner was a physically handicapped candidate in view of the certificate issued by the Medical Board, Balasore certifying her disability as 45 % hearing impaired. The list of eligible candidates originally published by the OPEPA, wherein the name of the petitioner is at serial No. 191, mentions her as a hearing impaired candidate. Though Clause-7 was referred to Page 5 of 7 in the previous judgment passed by the Hon’ble Single Judge, yet the fact that the petitioner is a PH candidate, was not specifically considered for grant of relaxation. The DPC while passing the impugned order has also not considered the provision of relaxation for PH candidates. In the counter affidavit it has simply been stated that in view of the rejection of the earlier writ application, the question of considering the petitioner’s case as handicapped person does not arise. After going through the relevant clause, this Court is of the view that there being a specific provision for relaxation meant for physically handicapped candidates specifically to the effect that such candidates having OTET-I qualification can also apply for CT category post, the same ought to have been considered by the DPC. 9. For the foregoing reasons therefore, this Court is persuaded to hold that the impugned order having been based only clarification dated 29.08.2013 but not having considered the effect of clause-7 of the advertisement (general instructions for candidates) cannot be said to have properly decided the representation of the petitioner. Page 6 of 7 10. The writ application is therefore, disposed of by setting aside the impugned order dated 20.05.2017 and by remitting the matter to the DPC Balasore to consider the grievance of the petitioner afresh by taking into account clause- 7 of the ‘General Instructions to the Candidates’ as per the advertisement. It is needless to mention that if the petitioner is held for consideration as per the aforesaid clause, necessary orders shall be passed in her favour without any further delay thereafter. ……..……………………. Sashikanta Mishra, Judge Orissa High Court, Cuttack. The 12th February, 2025/ A.K. Rana, P.A. Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: Personal Assistant Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 13-Feb-2025 11:29:58 Page 7 of 7