The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.35927 of 2021 In the matter of an application under Articles 226 & 227 of the Constitution of India. ……………… Mantyena Padmaja …. Petitioner -versus- State of Odisha & Ors. …. Opposite Parties For Petitioner : Mr. R. Acharya, Advocate Mr. L.K. Mohanty, Advocate For Opp. Parties : Mr. R.N. Mishra, Addl. Govt. Advocate PRESENT: THE HON’BLE JUSTICE BIRAJA PRASANNA SATAPATHY --------------------------------------------------------------------------------------- Date of Hearing: 11.10.2023 and Date of Judgment: 01.11.2023 --------------------------------------------------------------------------------------- Biraja Prasanna Satapathy, J. The present writ petition has been filed inter alia challenging the order dtd.29.10.2021 so passed by the District Education Officer, Gajapati-Opp. Party No. 3 under Annexure-1. Vide the said order Opp. Party No. 3 directed to give effect to the order of termination so passed against the Petitioner initially on 19.11.2013. // 2 // 2. It is the case of the Petitioner that pursuant to the advertisement issued for engagement of Contract Teachers in different Govt. High Schools including Upgraded High Schools of the State during the year 2013-14 Petitioner made her application for the post of contract teacher in respect
Legal Reasoning
order of disengagement before this Court in W.P.(C) No. 25795 of 2013. This Court vide order dtd.05.12.2013 while issuing notice of the matter passed an interim order by keeping in abeyance the order of disengagement so issued on 19.11.2013. It is contended that by virtue of such interim order passed by this Court on 05.12.2013, Petitioner was allowed to continue in her service. 2.5. It is contended that W.P.(C) No. 25795 of 2013 was ultimately
Arguments
of Gajapati Circle. It is contended that in the advertisement issued under Anenxure-2 while inviting applications in the prescribed format from eligible persons, it was stipulated that applications in the prescribed formats are to be submitted before the concerned District Education Officers by 25.07.2013. 2.1. It is contended that as provided under Para 2 of the advertisement, in order to be eligible for engagement, a candidate must satisfy that he/she must have odia as a medium of examination in non-language subject at HSC or equivalent examination. The Petitioner since was not having the said eligibility as on date of making the application on 25.07.2013, Petitioner along with her application furnished an undertaking before the Opp. Party No. 3. In the said undertaking available at Annexure-3, Petitioner clearly submitted that she does not have the required certificate available with her with regard to passing of Odia as a medium of examination in non-language subject at HSC and she will submit the same at the time of verification of the documents. Page 2 of 13 // 3 // 2.2. It is contended that while accepting such undertaking, which was enclosed to the application, Petitioner’s application was not only entertained but also she was directed to attend verification camp for the purpose of verification of original certificates/documents vide notice issued on 26.08.2013 under Annexure-5. Petitioner duly appeared on 02.09.2023 for verification of documents and at the time of verification, Petitioner provided the certificate showing acquisition of Odia as a medium of examination, which was issued on 26.07.2013 i.e. one day after the last date of making the application. 2.3. After such verification of documents, Petitioner’s name was included in the approved select list so published under Annexure-5. Petitioner subsequently was issued with the engagement order on 01.10.2013 by Opp. Party No. 3 as a contract teacher TGT (CBZ) under Annexure-6 and she was posted to Netaji U.G. High School, Deula. Pursuant to the order of engagement issued under Annexure-6 Petitioner joined in the school on 03.10.2013 and the said fact was also intimated to Opp. Party No. 3 by the school on 03.10.2013 under Annexure-7. 2.4. It is contended that subsequent to such appointment of the Petitioner with consequential joining, when the Petitioner was disengaged from her work vide office order so issued by the Opp. Party No. 3 on 19.11.2013 under Annexure-8 with immediate effect, Petitioner challenged such Page 3 of 13 // 4 //
Decision
disposed of by this Court vide order dtd.15.03.2019. While disposing the matter, this Court permits the Petitioner to raise all objections before the competent authority for its consideration. While holding so, this Court permitted the Petitioner to raise an objection within a period of 10 days from the date of order and for its consideration by the Opp. Party No. 3 by giving opportunity of hearing to the Petitioner. This Court further held that the interim order passed by this Court on 05.12.2013 will continue till a fresh decision is taken by the Opp. Party No. 3 with due consideration of the objection. 2.6. It is contended that pursuant to the order passed by this Court on 15.03.2019, Petitioner made a detailed representation before the Opp. Party No. 3. However, it is contended that without proper appreciation of the stand taken in the objection so filed by the Petitioner, Opp. Party No. 3 while rejecting the objection, confirmed the order of disengagement Page 4 of 13 // 5 // passed against the Petitioner on 19.11.2013 so passed under Annexure-8 vide order dtd.29.10.2021 under Annexure-1. 3. Learned counsel for the Petitioner contended that in the advertisement issued under Annexure-1, a candidate has to submit the application by 25.07.2013 and all the candidates were directed to submit the application along with the required documents. Since the Petitioner by the date of submission of the application on 25.07.2013, was not having with her the required certificate showing that she has passed odia as a medium of examination in non-language subject at the HSC, the Petitioner along with the application, submitted an undertaking on 25.07.2013 vide Annexure-3. The application of the Petitioner along with the said undertaking was not only accepted but also the Petitioner was selected and appointed vide order under Annexure-6. 3.1. Learned counsel for the Petitioner contended that the result of the Petitioner’s HSC examination was published on 26.07.2013 vide Annexure-4 and the Petitioner at the time of verification of the documents on 02.09.2013 produced the certificate showing that the Petitioner has passed odia as a medium of examination in non-language subject at the HSC. It is contended that pursuant to the earlier order passed by this Court on 15.03.2019, Petitioner while submitting her objection also indicated that since the Petitioner has passed odia as a Page 5 of 13 // 6 // medium of examination in terms of the stipulation contained under Para 2 of the advertisement, no illegality of irregularity can be found with regard to her engagement so issued vide order dtd.01.10.2013 under Annexure-6. 3.2. It is also contended that during pendency of the claim before Opp. Party No. 3 pursuant to the order passed by this Court in the earlier writ petition, the name of the Petitioner was also included in the list of eligible teachers, so eligible for regularization by the Govt. in the Department of School & Mass Education vide Notification issued on 28.01.2021 under Annexure-10. In the letter issued by the Govt.-Opp. Party No. 1 under Annexure-10, name of the Petitioner is reflected at Sl. No. 1138 and the Petitioner is held eligible to get the benefit of regularisation w.e.f.03.10.2019. 3.3. However, it is contended that without proper appreciation of the stand taken by the Petitioner in the objection and the fact that the Petitioner acquired the required eligibility on 26.07.2013 as reflected under Anenxure-4 just one (1) day after the last date of submission of the application, Petitioner is eligible and entitled to get the benefit of continuance in her service and Opp. Party No. 3 illegally rejected the claim of the Petitioner vide the impugned order dtd.29.10.2021 under Annexure-1. Page 6 of 13 // 7 // 3.4. Learned counsel for the Petitioner also contended that while issuing notice of the matter vide order dtd.17.11.2021, this Court passed an interim order of status quo and by virtue of the said order, Petitioner is continuing as a contract teacher as on date. Learned counsel for the Petitioner also brought to the notice of this Court the stipulation contained in the communication issued by the Govt. in the Department of Education and Youth Services on 04.10.1988 under Annexure-9, wherein for appointment of Telugu/ Hindi/ Bengali/ Urdu teachers in primary schools, they were allowed with the benefit to acquire the required odia pass up to M.E. standard within a period of three (3) years from the date of such appointment. It is contended that even though the said fact was brought to the notice of Opp. Party No. 3 by the Petitioner while filing her objection, but the said fact was not taken into consideration and so also the decision of the Govt. to regularise the services of the Petitioner w.e.f.03.10.2019 while creating the post vide communication dtd.28.01.2021 under Annexure-10. 3.5. It is contended that since the Petitioner is having the required eligibility of having odia as a medium of examination in non-language subject at the HSC, the result of which was published on 26.07.2013, just one day after the last date of submission of the application on 25.07.2013, the ground on which the Petitioner was disengaged vide order under Annexure-8 so confirmed vide order under Annexure-1 are not sustainable in the eye of law and requires interference of this Court. In support of his aforesaid submission learned counsel for the Petitioner Page 7 of 13 // 8 // relied on a decision of this Court so passed in the case of Bikash Mahalik Vs. State of Odisha & Ors. (2022 (I) ILR-CUT-108). 3.6. 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 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.” Page 8 of 13 // 9 // 3.7. Learned counsel for the Petitioner also relied on another decision of this Court reported in 2021 (I) OLR 174 (Pratima Sahoo Vs. State of Odisha & Ors.) and another decision of the Hon’ble Apex Court in the case of Union of India & Ors. Vs. Pritilata Nanda (2011 – II- LLJ-305 SC). 3.8. This Court in Para 10 & 11 of the order in the case of Pratima Sahoo has held as follows:- “10. Thus, in this case the district administration, being an integral part of the State of Orissa by its declaration i.e. act of issuing order of appointment intentionally caused the petitioner to believe that she is found to be eligible on comparison of the marks secured by all the candidates and she acted upon such belief, thereby resigned from the post of Anganwadi Worker and joined the post of Sikhya Sahayak under Bhapur Block. In such situation, neither the State of Orissa nor its representatives i.e. the district administration or the Director of the OPEPA. In any proceeding between it and the petitioner deny the truth of that thing Once the State Government has allowed the petitioner to believe that she has qualified in the selection process and is being appointed as Sikhya Sahayak in Pursuance of which she resigned from the post of Anganwadi Worker and worked for almost to six to eight months as Sikhya Sahayak, the district administration/State Government cannot deny that she does not qualify for thy post of Sikhya Sahayak. 11. Hence, it is directed that the petitioner should be absorbed as Sikhya Sahayak under Bhapur Block with Page 9 of 13 // 10 // immediate effect. This order be complied with by the opposite parties within a period of two months hence.” 3.9. Similarly, Hon’ble Apex Court in the case of Pritilata Nanda in Para 19 has held as follows:- “We also agree with the High Court that once the candidature of the respondent was accepted by the concerned authorities and she was allowed to participate in the process of selection i.e., written test and viva voce, it was not open to them to turn around and question her entitlement to be considered for appointment as per her placement in the merit list on the specious ground that her name had not been sponsored by the employment exchange.” 4. Mr. R.N. Mishra, learned Addl. Govt. Advocate on the other hand made his submission basing on the stand taken in the counter affidavit so filed by the Opp. Party No. 3. It is contended that in terms of the advertisement issued under Annexure-2, Petitioner while submitting her application on 25.07.2013 she was not having the required eligibility i.e. Odia as a medium of examination in non-language subject at the HSC. The application of the Petitioner was not only wrongly entertained but also she was selected and engaged with issuance of the order of engagement under Anenxure-6. 4.1. It is contended that as on the last date of making the application the Petitioner was not having the eligibility, which she acquired only on 26.07.2013 i.e. one day after the last date of submission of the application. Even though Petitioner was engaged with due acceptance of Page 10 of 13 // 11 // her application, but the same having come to the knowledge of the Opp. Party No. 3 subsequent to her engagement, Petitioner was immediately issued with the order of disengagement on 19.11.2013 under Annexure- 8. 4.2. It is contended that since 19.11.2013 to till date the Petitioner is continuing by virtue of the interim order passed by this Court in two successive writ petitions. It is accordingly contended that since the Petitioner was not having the eligibility criteria as on the last date of making the application, she was rightly disengaged vide order dtd.19.11.2013 under Annexure-8 and after due consideration of her objection, the order of disengagement has been confirmed with passing of the order on 29.10.2021 under Annexure-1. Learned Addl. Govt. Advocate accordingly contended that the impugned order so passed under Annexure-1 has been rightly passed and it requires no interference of this Court. 5. Having heard learned counsel appearing for the Parties and after going through the materials available on record, this Court finds that for engagement of contract teachers in the State in different high schools in the advertisement issued under Annexure-1, the last date of making the application before the concerned D.E.O. was fixed to 25.07.2013. Even though as on the last date of making the application on 25.07.2013 Page 11 of 13 // 12 // Petitioner was not having the required eligibility i.e. passing of the odia as a medium of examination at the HSC level, but by accepting the undertaking so furnished by the Petitioner under Annexure-3, not only Petitioner’s application was entertained but also she was finally selected vide Annexure-5 and engaged with order of engagement issued on 01.10.2013 under Anenxure-6. As found from the record the Petitioner acquired the required eligibility on 26.07.2013 vide Annexure-4 series. 5.1. Since the application of the Petitioner was duly entertained and by the time the documents were verified, Petitioner had already acquired the eligibility as prescribed in the advertisement, this Court is of the view that the Petitioner has no latches with regard to her selection and engagement. Taking into account the continuance of the Petitioner since 03.10.2013, placing reliance on the decisions as cited (supra), it is the view of this Court that order of disengagement issued on 19.11.2013 under Annexure-8 and so confirmed vide order dtd.29.10.2021 under Annexure-1 are not sustainable in the eye of law. While taking such a view, this Court is inclined to quash the order of disengagement so passed on 19.11.2013 under Annexure-8 and confirmed vide order dtd.29.10.2021 under Annexure-1. While quashing both the orders, this Court allows the writ petition and directs Opp. Party No. 3 to allow the Petitioner to continue in her service. Page 12 of 13 // 13 // 6. The writ petition is accordingly disposed of with the aforesaid observation and direction. Orissa High Court, Cuttack Dated the 1st of November, 2023/Sneha (Biraja Prasanna Satapathy) Judge Signature Not Verified Digitally Signed Signed by: SNEHANJALI PARIDA Designation: Sr. Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 01-Nov-2023 19:13:47 Page 13 of 13