The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK WPC (OAC) No.4526 of 2011 Gitanjali Sahu …. -versus- Petitioner Mr. M.K. Mishra, Sr.Advocate A. State of Odisha & Others … Opp. Parties State Counsel (Opp. Party No.1 to 4) Mr. S.K. Behera, Adv. (for opp. party No.5) CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY Order No ORDER 24.01.2024 17. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode.
Legal Reasoning
of this Court in the case of Bikash Mahalik, she is eligible to continue by accommodating the Petitioner as against any available vacancy. This Court in the case of Bikash Mahalik Vs.State of Orissa & Others has held as follows: // 4 // <8. There is no dispute with regard to the fact that the petitioner appeared in the written test and secured 234 marks out of 400 marks and also secured 31 marks in practical skill test out of 50. Opposite party no.3 prepared a select list taking into account marks secured in the written test as well as practical skill test and placed the petitioner at Sl. No.2 of the merit list. Subsequently, opposite party no.2 found out that marks secured in the practical skill test, being qualifying in nature, should not be added to the marks secured in the written test. Consequentially, he directed opposite party no.3 to redraw the final merit list on the basis of marks secured by the petitioner in the written test i.e. 234 marks excluding the marks secured in the practical skill test, in which the petitioner had qualified by securing 31 marks, which is above the qualifying mark of 15, out of 50 marks. But fact remains pursuant to merit list prepared by opposite party no.3, the petitioner has already joined and his service book has been opened. The amount towards GIS has been deducted from his salary and he has also been enrolled in the contributory pension scheme of the Government. As a result, a right has been accrued in his favour to continue in his post. Now, after lapse of one year 4 months, as per direction given by opposite party no.2, opposite party no.3 has redrawn the merit list and called upon the petitioner to show-cause why he shall not be removed from service. Whether such action of opposite party no.3 is hit by principle of estoppel, is facts and the short question circumstances of this case. to be decided the in 27. In Pratima Sahoo (supra), this Court held that the order of disengagement of the petitioner from the post of Sikhya 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 prejudicial 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 // 5 // allowed to continue with all service and financial benefits as due and admissible to him in accordance with law.= 8. Having heard learned counsel for the parties and after going through the materials available on record as well as the report submitted by the Expert Committee in Court today, this Court finds that even though petitioner had given the correct answer to Question No.16 and 17, but she has not been awarded any mark for the same. By awarding <2= marks in respect of Question no.16 & 17 and the total mark secured by the Petitioner at 60.6 as reflected under Annexure-C/4, Petitioner’s total mark will come to 62.6. Similarly, since Opp. Party No.5 in spite of giving wrong answer to Question No.16 and 17 has been awarded <2= marks, her total mark will come down from 62 to 60. However by taking the mark of Opp. Party No.5 at 62, she was selected and appointed. 8.1. In view of such position, which is not disputed by either of the parties, this Court while disposing the Writ Petition directs Opp. Party No.2 to take effective step to select and provide appointment to the Petitioner in place of Opp. Party No.5 by taking her total mark at 62.6 Such an order of appointment be issued in favour of the Petitioner within a period of four (4) weeks from the date of receipt of this order. 8.2. However, considering the submission of Mr. Behera, learned counsel that Opp. Party No.5 without any fault of her own, was selected and appointed in the year 2011 and she has already continued for more than 12 years, placing reliance on the decision of this Court in the case of Bikash Mahalik, it is observed that while providing the appointment to Petitioner in place of Opp. Party No.5, Opp. Party No.2 shall also consider the case of Opp. Party // 6 // No.5 for her adjustment as against any available vacancy without disturbing her appointment. 8.3. Considering the fact that this Writ Petition was filed in the year 2011 just after Opp. Party No.5 was appointed as a Forester in terms of the advertisement issued under Annexure-1, Petitioner’s appointment be treated to have been made from the date Opp. party No.5 was so appointed with all service and financial benefits. Petitioner however will be entitled to get the financial benefit notionally till the date of her appointment. With the aforesaid observation and direction, the
Arguments
2. Heard Mr. M.K. Mishra, learned Sr. Counsel appearing for the Petitioner, along with Mr. D.K. Pattanaik, Mr. S.K. Samal, learned Addl. Govt. Advocate for Opp. Party No.1 to 4 and Mr. Sarat Kumar Behera, learned counsel appearing for private Opp. Party No.5. 3. Pursuant to the order passed by this Court on 04.01.2024, report submitted by the Headmaster, Ravenshaw Collegiate School, Cuttack vide letter dt.11.01.2024, so produced by the learned Addl. Govt. Advocate in Court be kept on record. 4. From the report so produced, it is found that the correct answer of Question No.16 is <120 degree= i.e. answer No.(b) and correct answer of Question No.17 is <13 cm= i.e. answer No. (d). // 2 // 5. Basing on the instruction so provided and relying on the answer given by the Petitioner to Question Nos. 16 & 17, so available at page 150 & 152 of the brief, learned Sr. Counsel contended that even though Petitioner had given the correct answer in respect of Question No.16 & 17 which has been accepted by the Expert Committee in its report, but she has not been awarded any mark for those two correct answers. Petitioner as per Annexure-C/4 has been awarded 60.6 as total mark and if <2= marks will be awarded in respect of question No.16 &17 , her total mark will come to 62.06. 5.1. Similarly, even though private Opp. Party No.5 had given wrong answer to Question No.16 & 17, but she has been awarded <2= marks for both the questions and accordingly her total mark which was calculated at 62, will come down to <60. But by taking the total mark at 62, Opp. Party No.5 was selected and appointed as a Forester pursuant to the selection process initiated under Annexure-1. It is accordingly contended that in view of such position which is accepted by the Expert Committee in its report dt.11.01.2024, non-selection of the Petitioner while selecting Opp. Party No.5 as against the post of Forester by the D.F.O-Opp. Party No.4, basing on the selection process initiated in terms of the advertisement issued by the Principal Chief Conservator of Orissa-Opp. Party No.2 under Annexure-1 is not sustainable in the eye of law and Petitioner is liable to be selected and appointed in place of Opp. Party No.5. 6. Learned Addl. Govt. Advocate basing on the report submitted by the Expert Committee, in terms of the order passed by this Court on 04.01.2020, also fairly contended that Petitioner though had given the correct answer to // 3 // Question No.16 and 17, but she has not been awarded any mark for giving such correct answer. If <2= mark will be added to the total mark , Petitioner’s total mark will come to 62.6 mark. Similarly Opp. Party No.5 has been awarded <2= mark in respect of Question No.16 & 17, though she had not given the correct answer. Accordingly, the total mark of Opp. party No.5 will come down to 60 from 62. It is accordingly contended by the learned A.G.A that necessary direction be issued to the Principal Chief Conservator of Orissa to Opp. Party No.2 re-assess the position of the Petitioner vis-a-vis Opp. Party No.5 and take a final decision in the matter. 7. Mr. S.K. Behera, learned counsel appearing for Opp. Party No.5 on the other hand contended that in view of the report submitted by the Expert Committee Opp. Party No.5 since had not given the correct answer in respect of Question No.16 & 17 for which she was awarded with <2= marks, her total mark will come down to 60 from 62 However, it is contended that Opp. Party No.5 though had given correct answer to Question No.10, but she has not been awarded any mark. If <1= mark will be added in respect of Question No.10, total mark of Opp. Party No.5 will come to 61. 7.1. It is also contended that since without any fault of Opp.Party No.5, she was selected and appointed in the year 2011 and she has continued in the meantime for more than 12 years as a Forester, in view of the decision
Decision
Writ Petition is disposed of. (Biraja Prasanna Satapathy) Judge sangita Signature Not Verified Digitally Signed Signed by: SANGITA PATRA Reason: authentication of order Location: high court of orissa, cuttack Date: 31-Jan-2024 16:24:59