The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.C(OAC) No.3152 of 2017 Sagarika Dwari State of Odisha and Others …. Petitioner Mr. S. Mallik, Advocate -versus- …. Opposite Parties Mr. S.K. Jee, AGA Mr. K.K. Swain, Advocate CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY Order No. ORDER 19.02.2025 08. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode. 2. Heard learned counsel for the parties. 3. Petitioner has filed the present Writ Petition inter alia with the following prayer:- “In view of the fact mentioned in Para 6 above, the applicant prays for the following relief(s):- (I) Quash the impugned order of appointment of the respondent No.4 as at Annexure-5 and the rejection order dated 21.01.2017 as at Annexure-7. (II) Direct/Order that the applicant being secured higher marks than the respondent No.4 may be declared as selected and may be appointed as PET w.e.f. the date of appointment of respondent No.4 with all consequential service and monetary benefits.” the // 2 // 4. It is contended that pursuant to the advertisement issued for engagement of Contractual Teachers in Government High School during the year 2011-12 under Annexure-1, petitioner participated in the selection process as against the post of PET in respect of Mayurbhanj District. The total vacancy in respect of said district as against the post of PET was 14. It is contended that as prescribed in the advertisement issued under Annexure-1, the selection of candidates is required to be made in terms of the provisions contained under Clause-5(iv). Clause-5(iv) of the advertisement reads as follows:- “5(iv). A merit list shall be prepared on the basis of the percentage of the marks secured in Matriculation (without 4th optional), B.A./B.Sc. and B.Ed. Examination in case of TG (Arts and Science) Teachers and IA/+2 C.T./Classical/Hindi/PET’s, percentage of marks secured by a candidate in each qualifying examination starting from HSC Examination. In case two or more candidates secure the same marks, the candidates older in age will be placed above in the merit list.” in case of
Legal Reasoning
4.1. It is contended that the petitioner passed the HSC Examination compartmentally and percentage of mark secured by the petitioner in the HSC Examination should have been calculated at 48%, as the petitioner secured 360 marks out of 750 in the compartment examination. But by following the principle of average mark secured by the petitioner in three subjects which she appeared compartmentally, percentage of mark of the petitioner in her HSC Examination was calculated Page 2 of 9 // 3 // at 40.800% i.e. 306 out of 750 as reflected under Annexure-C/4 series to the counter filed by O.P. No.4. 4.2. It is also contended that since because of the wrong calculation of the percentage of mark of the petitioner in the HSC examination, petitioner was deprived from the purview of selection and O.P. No.4 was so appointed, petitioner initially approached the Tribunal by filing O.A. No.2677(C) of 2013. The Tribunal vide order dated 26.03.2014, directed O.P. No.3 to re-calculate the mark of the petitioner as has been secured by her in the HSC Examination and on such re-calculation, if it will be found that the applicant has secured 360 marks instead of 306 mark as has been taking into account by the authority, then she will be come within the zone of selection. 4.3. It is contended that on the face of such order passed by the Tribunal on 26.03.2014, O.P. No.3 without proper appreciation of the said direction, held the petitioner to have secured 306 marks in her HSC Examination and take the percentage of mark at 40.800%. While holding so, petitioner’s claim to get the benefit in place of O.P. No.4 was rejected vide the impugned order dated 21.01.2017 under Annexure-7. 4.4. It is however contended that in subsequent recruitment process, where the petitioner had taken Page 3 of 9 // 4 // part, her percentage of mark in the HSC examination was taken at 360 out of 750 i.e. 48%. 4.5. In support of the same, learned counsel for the petitioner relies on the documents available under Annexure-8 and 9. In both those documents, while publishing the provisional merit list of PET candidates by the self-same DEO, Mayurbhanj, percentage of mark of the petitioner in her HSC examination was taken at 48%. 4.6. It is contended that on the face of such calculation of the percentage of mark of the petitioner in her HSC examination under Annexure-8 and 9, percentage of mark in the recruitment process initiated pursuant to Annexure-1, could not have been taken at 40.800% and thereby depriving the petitioner from the purview of selection and appointment. It is also contended that even though before the Tribunal the document enclosed vide Annexure-8 was there for consideration, but O.P. No.3 without proper appreciation of the said document, held the percentage of mark of the petitioner in the HSC Examination at 40.800% and accordingly rejected the claim of the Petitioner. 4.7. It is contended that in view of the percentage of mark given to the petitioner in the subsequent recruitment process by the self-same DEO, in her HSC Page 4 of 9 // 5 // Examination at 48%, rejection of the petitioner’s claim on the ground indicated in the impugned order is not sustainable in the eye of law and requires re- consideration. 5. Mr. S.K. Jee, learned Addl. Govt. Advocate and Mr. K.K. Swain, learned counsel appearing for private O.P. No.4 made their submissions basing on the stand taken in the counter affidavit so filed. 5.1. Learned counsel appearing for private O.P. No.4 contended that percentage of mark of the petitioner in the HSC examination at 40.800% was calculated in terms of the guideline issued by the Department of Higher Education, Govt. of Odisha under Annexure- H/4. Placing reliance on Annexure-H/4 more particularly the provision contained under Para-6.4, it is contended that since petitioner passed the examination compartmentally, the percentage at 40.800% was calculated in terms of Para-6.4. Para-6.4 of the prospectus available under Annexure-H/4 reads as follows:- of In case “6.4. the HSC/HS/equivalent examination compartmentally, average of marks secured in the subject/s concerned at both the examinations shall be taken into consideration to determine the aggregate.” candidates passing 5.2. It is contended that as per the paraphernalia followed by the authority pursuant to the selection process initiated under Annexure-1, percentage of Page 5 of 9 // 6 // mark of the petitioner was calculated in terms of Para- 6.4 of the prospectus available under Annexure-H/4, so issued by the Department of Higher Education, Govt. of Odisha. It is accordingly contended that there is no illegality or irregularity with regard to calculation of the percentage of mark of the petitioner in her HSC Examination as it has been done in terms of Para-6.4. 5.3. It is also contended that for no fault of O.P. No.4, she was not only selected and appointed on contractual basis vide order dated 28.06.2012 under Annexure- D/4, but also in the meantime she has been regularized on completion of 6 years of contractual service w.e.f. 14.09.2018 vide Annexure-F/4 order dated 15.12.2020. 5.4. It is contended that since O.P. No.4 has been duly selected and in the meantime has got the benefit of regularization with continuance of more than 12 years interest of O.P. No.4 be protected, if this Court is inclined to direct for re-consideration of the petitioner’s claim. 6. Mr. S.K. Jee, learned Addl. Govt. Advocate on the other hand also made similar submission as like the submission made by the learned counsel for O.P. No.4. It is contended that percentage of mark of the petitioner in her HSC Examination was calculated in terms of the provisions contained in Para-6.4 of the Page 6 of 9 // 7 // prospectus enclosed vide Annexure-H/4 to the counter filed by O.P. No.4. 6.1. It is contended that selection in terms of the advertisement issued under Annexure-1 in the year 2011, has since been completed and there is no interim order protecting the interest of the petitioner. Since the selection process has already been completed, there is no interim order protecting the interest of the petitioner, claim of the petitioner cannot be considered at present. 6.2. It is also contended that since in terms of Para- 6.4, petitioner’s claim was considered and rejected vide the impugned order dated 21.01.2017 under Annexure- 7, no illegality or irregularity can be found with the same. 7. Having heard learned counsel for the parties and considering the submissions made, this Court finds that pursuant to the selection process initiated under Annexure-1, petitioner participated in the selection process as against the post of PET in Mayurbhanj District. It is not disputed that petitioner passed the HSC examination compartmentally and in the 3(three) subjects in which she failed in her first attempt, she had secured 82 marks and in the subsequent examination, in those 3 (three) subjects, she secured 198 marks. Taking into account the mark secured in Page 7 of 9 // 8 // those 3 (three) subjects in the 2nd attempt, petitioner’s total mark comes to 360 and that comes to 48%. But by following the principle contained under Para-6.4 of Annexure-H/4, petitioner’s mark in her HSC examination was calculated at 40.800%. This Court placing reliance on the document available under Annexure-8 and 9, finds that the self-same authority- O.P. No.3, take the percentage of mark in her HSC examination at 48%. 7.1. As found from the impugned order, the aforesaid fact has not been taken into consideration while re- considering the claim of the petitioner in terms of the order passed by the Tribunal. In that view of the matter, this Court is inclined to quash office order dated 21.01.2017 so passed by O.P. No.3 under Annexure-7. While quashing the same, this Court directs O.P. No.2 to take a fresh decision on the petitioner’s claim more particularly the percentage of mark secured by her in the HSC examination. 7.2. This Court while directing so, also observe that relevancy and effect of the percentage of mark given to the petitioner in the subsequent recruitment process as available under Annexure-8 and 9, be taken into consideration by the O.P. No.3. On such re- consideration, if it will be held that petitioner’s percentage of mark in the HSC examination is to be Page 8 of 9 // 9 // taken at 48%, appropriate order be passed in that regard. Since O.P. No.4 in the meantime has been regularized after completion of 6 (six) years of contractual service, without disturbing her, steps be taken to provide appointment to the petitioner on contractual basis against any available vacancy. This Court directs Opp. Party No.3 to complete the entire exercise within a period of four (4) months from the date of receipt of the order. 8. With the aforesaid observation and direction, the
Decision
Writ Petition stands disposed of. (Biraja Prasanna Satapathy) Judge Basudev Signature Not Verified Digitally Signed Signed by: BASUDEV SWAIN Designation: SR. STENO Reason: Authentication Location: High Court of Orissa, Cuttack Date: 24-Feb-2025 13:35:21 Page 9 of 9