The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C)(OAC) No.1230 of 2016 Abdul Hakim Khan …. Petitioner Mr. S.D. Routray, Advocate -versus- State of Odisha & Ors. …. Opposite Parties Mr. S.K. Samal, AGA Mr. D. Mohapatra, Advocate (Opp. Party No. 5) CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY ORDER 17.01.2024 Order No 22. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode. 2. Instruction provided by the D.E.O., Bhadrak-Opp. Party No. 4 vide letter dtd.20.11.2023 so produced by the learned Addl. Govt. Advocate in Court be kept in record.
Legal Reasoning
3. Heard Mr. S.D. Routray, learned counsel for the Petitioner, Mr. S.K. Samal, learned Addl. Govt. Advocate appearing for the State- Opp. Parties and Mr. D. Mohaptra, learned counsel appearing for the Opp. Party No. 5. 4. The Petitioner has filed the present writ petition inter alia with the following prayer:- “In view of the facts stated in paragraph-6 above, the applicant prays for the following relief:- a) Admit the Original Application; b) Call for the records; // 2 // c) Declare that the Selection of the Respondent No. 5 for the post of Contract Teacher (Urdu) in Bhadrak district as invalid and the same is liable to be quashed and direct the Respondents to issue engagement order in favour of the applicant considering his position as per the merit in respect of the vacant post of Urdu teacher in Bhadrak district; d) And/or pass such other order(s) or direction(s) as this Hon’ble Tribunal may deem just and proper.” 5. It is contended that pursuant to the resolution issued by the Govt. in the Department of School & Mass Education on 27.10.2014 under Annexure-1 and the corrigendum issued on 06.01.2015 under Annexure-2, Petitioner made his application as against the post of Urdu Teacher in respect of Bhadrak Education District. It is contended that in the corrigendum issued under Annexure-2 on 06.01.2015, the selection procedure in respect of Classical Teacher (Sanskrit, Telugu & Urdu) was prescribed and the same is reproduced hereunder:- “8(ii) In case of recruitment of LSES teacher le Classical Teacher (Sanskrit, Telugu, Urdu) Hindi Teacher and PET after uploading of data by the DEOs the list of candidates as per their 1 preference of district shall be referred to the District Selection Committee of the respective districts as per common merit by limiting the same to the nos. of vacant posts in the districts in respective categories. While preparing draft merit list in case of Hindi teachers % of marks secured by a candidate in each qualifying examination (without extra /4th optional) such as HSC +2, +3/B.A with Hindi or Ratna / Sashtry / Snataka and marks obtained in Paraganta/B.H.Ed. / B.Ed. In Hindi shall be taken into consideration. Similarly, in respect of Sanskrit Teachers, marks obtained in HSC, +2, +3/ B.A with Sanskrit into or Sashtry and Sikhya Sashtry shall be consideration.” taken Page 2 of 8 // 3 // 5.1. Learned counsel for the Petitioner contended that since Petitioner was an applicant in respect of Bhadrak Education District in terms of the provisions contained under Para 8(ii) of the corrigendum under Annexure-2, Petitioner’s candidature should have been considered taking into account the candidates, who had made their application in respect of Bhadrak Education District. But the authorities since acted contrary to the stipulation contained under Para 8(ii) and while considering the vacancy in respect of Bhadrak Education District, the selection was made taking into account the common merit list of all the candidates throughout the State. Petitioner was deprived from the purview of selection and Opp. Party No. 5 got the benefit of appointment as against the post of Urdu Teacher. It is contended that had the selection been undertaken strictly in terms of Para 8(ii), Petitioner having secured 202.6068 marks, he should have been selected as against the vacancy meant for Bhadrak Education District. Since the authorities by preparing a common merit list of the State, made the selection which is contrary to the stipulation contained in Para 8(ii), Opp. Party No. 5 got the benefit of appointment while Petitioner was deprived of the same. It is accordingly contended that the selection and appointment of Opp. Party No. 5 as Contract Teacher (Urdu) in Bhadrak Education District is not sustainable in the eye of law and in her place Petitioner should be provided with the appointment taking into account the mark secured by him. 6. Learned Addl. Govt. Advocate while supporting the process of selection from amongst all the candidates who had made their applications in the entire State, supported the selection and Page 3 of 8 // 4 // appointment of Opp. Party No. 5. This Court taking into account the rival contention passed the following order on 27.02.2023:- “2. Heard Mr. S.D. Routray, learned counsel for the Petitioner, Mr. R.K. Samal, learned Standing Counsel for the State and Mr. D. Mahapatra, learned counsel for the private Opposite Parties. 3. Mr. Routray, learned counsel for the Petitioner contended that the selection for the post of contract Urdu Teacher is governed by the provision contained in the corrigendum issued on 06.01.2015 under Annexure-2 vide Clause-8(ii). 4. It is contended that as per Clause-8(ii), in case of recruitment of LSES teacher i.e. Classical Teacher (Sanskrit, Telugu, Urdu) Hindi Teacher and PET, after uploading of data by the DEOs, the list of candidates as per their 1st preference of district shall be referred to the District Selection Committee of the respective districts as per common merit by limiting the same to the nos. of vacant posts in the districts in respective categories. 5. It is contended that as admitted in Para-21 of the counter the selection of Urdu Teacher to which the present writ petition relates to has not been made in accordance with the provision contained under Para-8(ii) of the corrigendum dated 06.01.2015. 6. Mr. Samal, learned Standing Counsel is directed to obtain instruction as to whether the selection of Urdu Teacher has been made in accordance with the provision contained under Para-8(ii) of the corrigendum. Such information shall be provided to this Court before the next date. 7. As requested by Mr. Samal, list this matter on 17th of March, 2023. 8. A free copy of this order be handed over to Mr. Samal, learned Standing counsel for the State for compliance.” 6.1. Pursuant to the said order, basing on the stand taken by the learned State Counsel, this Court passed the following order on 11.07.2023:- Page 4 of 8 // 5 // “2. Heard learned counsel for the parties. 3. It is contended by the learned State Counsel that though in the corrigendum issued by the Government on 06.01.2015, it was provided that after uploading of data by the DEOs, the list of candidates as per their 1st preference of district, shall be referred to the District Selection Committee of the respective District as per the common merit by limiting the same to the number of vacant posts in the district in respective categories, but as per the decision taken by the Government, the selection list was prepared in the State level taking into account Para-9 of the Resolution issued under Annexure1. Even though such a stand has been taken in paragraph-5 of the affidavit, so submitted before this Court on 10.04.2023, but no document has been enclosed showing any such decision taken by the Government in terms of para-9 of the Advertisement under Annexure-1. 4. Mr. Panigrahi, learned Addl. Standing Counsel prays for some time to obtain instruction on the said point. 5. As requested, list this matter on 21.07.2023.” 6.2. Pursuant to the order passed on 11.07.2023, learned Addl. Govt. Advocate when produced further instruction so provided by the Department, this Court passed the following order on 25.07.2023:- “2. Heard Mr. S. Routray, learned counsel for the Petitioner, Mr. H.K. Panigrahi, learned Addl. Standing Counsel for the State and Mr. D. Mohapatra, learned counsel appearing for private Opposite Party No.5. 3. Pursuant to the order passed by this Court on 11.07.2023, learned Addl. Standing Counsel produced before this Court the instruction provided by the Department vide letter dated 24.07.2023. Copy of the said instruction be kept in record. 4. Mr. Routray, learned counsel for the Petitioner prays for some time to go through the instruction file a short written notes of submission. Mr. Mohapatra, learned counsel appearing for the private Opposite Party is also directed to file an affidavit indicating the preference opted by the Opposite Page 5 of 8 // 6 // Party No.5 while making her application for the post in question. Such affidavit shall be filed before the next date. 5. As requested by the learned counsel appearing for the Parties, list this matter on 11th of August, 2023.” 7. Subsequently, a contention was raised by the learned counsel appearing for the Opp. Party No. 5 that pursuant to the selection process, she has already been engaged vide order dtd.04.04.2016 under Annexure-A/5 to the counter. It is also contended that since Petitioner has no latches with regard to her selection and appointment, in view of the decision of this Court in the case of Bikash Mahalik Vs. State of Odisha & Ors. (2022 (I) ILR-CUT- 108), she has got a right of continuance. 7.1. 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. Page 6 of 8 // 7 // 28. In view of the law and fact, as discussed above, the irresistible conclusion is that the show-cause 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.” 8. Considering the rival submissions, this Court when directed the learned State Counsel to obtain instruction as to whether any vacancy is there to consider the candidature of the Petitioner, Opp. Party No. 4 vide his letter dtd.20.11.2023 has intimated that one post of Urdu teacher is lying vacant at present in D.N. Girls’ High School, Bhadrak. 9. Having heard learned counsel appearing for the Parties and placing reliance on the provisions contained under Para 8(ii) of the corrigendum under Annexure-2, it is the view of this Court that the selection should have been made in respect of candidates, who had made their application in respect of Bhadrak Education District, instead of making the selection from amongst the candidate of the entire State. However, placing reliance on the decision in the case of Bikash Mahalik as cited supra, this Court is not inclined to interfere with the selection and appointment of Opp. Party No. 5. Page 7 of 8 // 8 // 9.1. However, taking into account the mark secured by the Petitioner and the submission made by the learned AGA that there is one post lying vacant in D.N. Girls’ High School, Bhadrak, this
Decision
Court while disposing the writ petition, directs Opp. Party No. 2 to consider the candidature of the Petitioner in terms of the provisions contained under Para 8(ii) of the corrigendum dtd.06.01.2015 under Annexure-2. On such consideration and taking into account the mark secured by the Petitioner, if the Petitioner is otherwise found eligible in all respect, consequential follow up action be taken to provide him appointment as against the vacant post of Urdu Teacher in D.N. Girls’ High School, Bhadrak. Such an exercise be undertaken and completed by Opp. Party No. 2 within a period of two (2) months from the date of receipt of this order. 10. The writ petition is accordingly disposed of. (Biraja Prasanna Satapathy) Judge Sneha Signature Not Verified Digitally Signed Signed by: SNEHANJALI PARIDA Designation: Sr. Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 22-Jan-2024 11:53:35 Page 8 of 8