The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No. 28864 of 2023 Bibhuti Bhusan Sahoo …. Petitioner Mr. S.N. Mishra, Advocate -versus- State of Odisha & Ors. …. Opposite Parties Mr. S.K. Samal, AGA JUSTICE BIRAJA PRASANNA SATAPATHY CORAM:
Decision
ORDER 25.09.2023 Order No 03. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode. 2. Heard Mr. S.N. Mishra, learned counsel for the Petitioner and Mr. S.K. Samal, learned Addl. Govt. Advocate appearing for the Opp. Parties. 3. Even though the matter was listed under the heading of “for Orders”, but on the consent of the learned counsel appearing for the Parties, the matter was taken up “for Admission”. 4. The Petitioner has filed the present writ petition inter alia with the following prayer:- that therefore, prays “The petitioner, this Hon’ble Court be pleased to admit this application and after hearing the petitioner’s counsel issue a writ in the nature of mandamus or nay other suitable writ directing the Opp. Parties to treat the petitioner as having passed the O.T.E.T. Examination prior to 31.03.2019 for all purposes and to pay him all his // 2 // incremental benefits falling due after the increment dtd.28.02.2019 along with interest on such amount illegally withheld till now; And/or pass such other order as may be deemed just and proper in the circumstances of the case; And the petitioner as in duty bound shall ever pray.” 5. It is contended that the Petitioner in terms of the resolution issued by the Govt. on 25.07.2016 under Annexure-2 and 22.12.2016 under Annexure-3 was regularized as a level -V Asst. Teacher (Ex- Cadre) w.e.f.01.03.2017 vide order dtd.04.01.2018 under Anenxure-4. 5.1. It is contended that in terms of the resolution dtd.22.12.2016 so available at Annexure-3 Petitioner was required to complete the OTET by 31.03.2019 and as Petitioner could not qualify the said examination by the said date, no further increment was allowed in favour of the Petitioner. It is contended that Petitioner though after being regularized vide order dtd.04.01.2018 made his application to appear the OTET Examination, 2018 and admit card was issued by the Board to appear the examination, but the said examination was cancelled because of leakage of question paper in the social media. Accordingly, due to such cancellation, Petitioner could not appear the OTET examination 2018. 5.2. However, it is contended that Petitioner appeared the next examination conducted by the Board and passed the OTET, the result of which was published on 21.11.2019 under Annexure-8. It is contended that since Petitioner has no latches for not qualifying the OTET examination by 31.03.2019 and the earlier examination was cancelled by the Board because of leakage of question paper in the Social media, petitioner is eligible and entitled to get the benefit Page 2 of 5 // 3 // of increment in terms of the order of regularization passed on 04.01.2018. 5.3. Mr. Mishra contended that similar issue was before this Court in W.P.(C) No. 18110 of 2023 as well as W.P.C.(OAC) No. 1789 of 2019 and batch. This Court in its order dtd.05.07.2023 in W.P.C.(OAC) No. 1789 of 2019 and batch in Para 3 to 7 has held as follows:- The present writ petition has been filed challenging the “3. Notification issued by the Board on 16.01.2019 in cancelling the OTET Examination, 2018 vide Annexure-5. 4. Mr. Mishra, learned counsel for the Petitioners contended that without assigning any reason and only on the ground that the question paper of the said examination was leaked in the social media, since the entire examination was cancelled, the Petitioners were prejudiced as they failed to acquire the said qualification in terms of the guideline issued by the Govt. which prescribes that the Petitioners should acquire the qualification by 31st March, 2019. 5. On his appearance Mr. Rao, learned counsel for O.P.2 filed a counter affidavit justifying therein the reason for cancelling the OTET examination, 2018. 6. This Court after going through the stand taken in the counter affidavit so filed by the Board, finds that the Board has rightly cancelled the examination as the question paper was leaked in the social media. Since it is a general notification issued by the Board by cancelling the entire examination, this Court is not inclined to entertain the writ petition at the instance of some aggrieved persons. 7. In view of the same, this Court is not inclined to interfere with the prayer as made in the writ petition. However, taking into account the submissions made by Mr. Mishra, learned counsel for the Petitioners that the Petitioners because of such cancellation of the examination are yet to complete the OTET examination, which is a pre-requirement for their regularization, Petitioners are at liberty to take the examination as and when it is conducted by the Board. If so required, the Petitioners may make appropriate application to allow them further time to take the test and acquire Page 3 of 5 // 4 // the qualification. If any, such application is moved before the authority, it is observed that the concerned authority shall take a lenient view and take a decision in accordance with law.” 5.4. It is also contended that taking into account the fact that the OTET Examination, 2018 was cancelled due to leakage of question paper, this Court in W.P.(C) No. 18110 of 2023 while quashing the recovery of the benefit of increment so allowed in favour of the Petitioner in that case, held that the Petitioner is otherwise eligible to get the benefit of increment. The view of this Court expressed in Para 6.1 of the order dtd.08.09.2023 in W.P.(C) No. 18110 of 2023 is quoted hereunder:- “6.1. In view of such factual position, this Court is of the view that the Petitioner is entitled to get the benefit of increment in terms of order dtd.01.01.2018 so passed under Annexure-2 and the said benefit could not have been withdrawn with passing of the impugned order on 15.05.2023. Therefore, this Court is inclined to quash the order dtd.15.05.2023 so passed by Opposite Party No.4 under Annexure-6. While quashing the same, this Court directs Opposite Party No.4 to continue with the benefit of increment so allowed in terms of the office order dtd.01.01.2018 under Annexure-2. Since it is contended by the learned counsel for the Petitioner that some amount has been recovered basing on the impugned order, it is observed that any such amount which has been recovered be refunded to the Petitioner within a period of two months from the date of receipt of this order.” 5.5. It is accordingly contended that in view of the order passed by this Court in the aforesaid two cases, Petitioner is eligible and entitled to get the benefit of increment and it cannot be withheld on Page 4 of 5 // 5 // the ground that Petitioner could not qualify the OTET by 31.03.2019. 6. Mr. Samal, learned AGA does not dispute the order passed by this Court in the above noted two writ petitions. 7. Having heard learned counsel appearing for the Parties and considering the materials available on record as well as the order passed by this Court on similar issue as cited supra, this Court while disposing the writ petition, directs the Opp. Party No. 3 to extend the benefit of increment as due and admissible to the Petitioner within a period of three (3) months from the date of receipt of this order. 8. The writ petition is disposed of accordingly. (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: 27-Sep-2023 13:45:08 Page 5 of 5