The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C). No. 37974 of 2021 (An Application under Articles 226 & 227 of the Constitution of India) --------------- Srinibash Kar ...… Petitioner -Versus- State of Odisha and Others .... Opposite Parties Advocate(s) appeared in this case:- ________________________________________________ For Petitioner : Mr. S.Kar ( appearing in person) For Opp. Party : Mr. S.N.Pattnaik, Additional Government Advocate for the State. _______________________________________________________ CORAM: JUSTICE SASHIKANTA MISHRA SASHIKANTA MISHRA, J. JUDGMENT 23rd August, 2024 This is the third journey of the petitioner who seeks engagement as Sikshya Sahayak (presently re-designated as Junior Teacher (Schematic)) mainly on the ground that his name found place in the merit list at the relevant time. Be it noted that the petitioner is a physically handicapped person being Visually impaired to the extent of 75 per cent. Page 1 of 14 2. The relevant facts are that pursuant to an advertisement issued on 14.10.2006 for the post of Sikshya Sahayak, the petitioner submitted his application and in the final merit list published by the authorities, his name found place at Sl. No. 2 under PH reserved category for engagement in Nischintakoili Block of Cuttack district. According to the petitioner, engagement orders were required to be issued to the candidates in order of merit as per 80-point Model Roster prepared by the G.A.
Facts
department. As such, from out of the first 14 candidates, one must belong to the physically handicapped (Visually Impaired category). The candidate who was placed at Sl. No. 1 under PH category did not turn up for appointment. As such, the petitioner was entitled to be engaged against the said post. The authorities however, acting in violation of the Model Roster, engaged other persons without considering the case of the petitioner. His representations submitted in this regard to the authorities bore no fruit for which he approached this Court in W.P.(C). No. 5481 of 2011. Said writ application was dismissed by order dated 10.02.2012 by a single Judge of this Court by holding that Page 2 of 14 the merit list prepared in 2006 had lost its sanctity due to efflux of time. The petitioner preferred an intra Court appeal to the Division Bench, being W.A. No. 298 of 2012. Said appeal was also dismissed by order dated 09.01.2015 on the same ground. Despite dismissal of the aforementioned cases, the petitioner continued to submit representations before the authorities including the Hon’ble Governor of the State, who forwarded his representation to the Government for necessary action. Ultimately, the file was referred to the Law Department of the Government for opinion on 08.02.2017. The Law Department opined that there is no legal bar for consideration of the petitioner’s case if he offered his candidature for the vacancies pursuant to advertisement issued in the year 2010. The petitioner claims to have applied in the year 2010 as also in the year 2011. It is the further case of the petitioner that some other candidates have been engaged as Sikshya Sahayak in 2009, 2012 and 2018 from the merit list of 2006 but he has been discriminated. Page 3 of 14 3. The stand of the State Opposite Parties, as culled out from the counter affidavit and 3 additional counter affidavits filed during the hearing of the case, is that though the 80-point Model Roster was in force at the relevant time, yet 16 (Sixteen) posts were notified under Nischintakoili Block. Therefore, as per the provisions laid down in the advertisement itself, the vacancies had to be bifurcated at the rate of 70 per cent for C.T. category of posts, i.e. 11 posts, and 30 percent for B.Ed. category posts, i.e. 5 posts. Since both the categories had less than 14 posts, reservation for physically handicapped candidates was not possible. It is the further case of the Opposite Party that the petitioner never applied in the year 2010-11. Moreover, the advertisement dated 05.01.2010
Legal Reasoning
was quashed by this Court in W.P.(C). No. 1361 of 2010 and batch for which the opinion tendered by the Law Department was no more relevant. Since the petitioner’s self-same prayer has been rejected earlier by this Court in
Decision
the writ petition and the writ appeal filed by him, he cannot be permitted to re-agitate his claim. As regards the engagement of other persons, the same was done pursuant Page 4 of 14 to specific orders passed by this Court in writ applications filed by them. It is further submitted that the original merit list was published on 06.12.2006 and as such, the validity of the said list expired on 07.12.2007. The petitioner submitted representation for the first time on 31.01.2009 which was rejected on 25.03.2010 and was never challenged and the three vacancies of the year 2007 were carried forward to the next recruitment year under ST category. It is further categorically stated that as per records maintained in the office of OSEPA, it is evident that the petitioner had never applied against the advertisement of the year 2011. 4. The petitioner has filed a rejoinder stating that as per clarification issued by the Government on 03.01.2008, one single list is to be prepared for both C.T. and B.Ed. category candidates for the purpose of applying the roster. The petitioner further reiterates that he had applied against the vacancies of 2011 as mentioned by the OPEPA in its letter dated 28.07.2011. Since other candidates have been appointed after the purported expiry of the merit list Page 5 of 14 of 2006, the petitioner should also be given the same benefit. 5. Heard Mr. Srinibas Kar appearing in person and Mr. S.N.Pattnaik, learned Additional Government Advocate for the State. 6. Mr. Kar submits that he being a Visually Impaired candidate with 75 per cent permanent disability was entitled to be engaged against the vacancies of 2006 as the candidate securing the first position in the PH category did not join. Mr. Kar further submits that the authorities had not applied the Model Roster despite clarification issued by the Government that one list is to be prepared covering both C.T & B.Ed. category candidates. Had such exercise been done, one post would have been available for being filled up by a PH candidate. Mr. Kar would further argue that when similarly placed persons could be given engagement long after expiry of the so-called validity of the merit list of 2006, ignoring the petitioner’s case clearly amounts to discrimination. In any case, the Law Department tendered a favourable opinion and since the Page 6 of 14 petitioner had applied against the 2011 advertisement, he should at least be given engagement from that date. 7. Mr. S.N.Pattnaik, learned Additional Government Advocate questions the maintainability of the writ application at the outset by submitting that the petitioner had earlier approached this Court with the self- same relief that ended in failure. He, therefore, cannot re-agitate the issue at this stage. On merits, Mr. Pattnaik would argue that the vacancies of 2006 were carried forward and in the meantime, two more recruitment processes have been concluded. As regards engagement of similarly placed candidates, Mr. Pattnaik would submit that they were engaged as per direction issued by this Court in the cases filed by them. The petitioner stands on different footing as his writ application and writ appeal were dismissed by this Court. As regards the opinion of Law Department, Mr. Pattnaik submits that taking note of the fact that the merit list of 2006 had become invalid, it was opined that he can offer himself as a candidate for subsequent vacancy if he possesses the eligibility and there is vacancy on the roster point made for his category. Page 7 of 14 8. Since the question of maintainability of the writ application has been raised, it would be proper to deal with the same, at the outset. The State counsel contends that the petitioner’s earlier approach to this Court with the self- same prayer having ended in failure, he cannot re-agitate the issue subsequently. This Court finds that the petitioner’s earlier writ application was disposed of on 10.02.2012 and the writ appeal preferred against such order was disposed of on 09.01.2015. The present writ application however has been filed as certain developments have taken place subsequent to the dismissal of the writ appeal. For instance, the law department tendered its opinion on 08.02.2017. Moreover, the earlier writ application and the writ appeal were disposed of on the ground of expiry of the validity of the select list. The question, whether the 80-point Model Roster was followed or not, was not specifically decided therein. That apart, there is a question of considering the petitioner’s candidature against subsequent vacancies. For all these reasons therefore, this Court is of the considered view that dismissal of the writ application as Page 8 of 14 confirmed in writ appeal would not stand in the way of considering the petitioner’s prayer as laid in the present writ application. 9. Coming to the merits of the case, it is admitted that the petitioner was placed at Sl. No. 2 in the merit list prepared for PH (VI) category in 2006. Undisputedly, the candidate at Sl. No.1 namely, Manoranjan Sahu did not join. Therefore, ordinarily, the post available to be filled up by a PH candidate was available. From the counter affidavit and additional counter affidavits filed by the State, this Court finds that prevaricating stands have been taken in this regard. While in the counter, it has been stated that 80 point roster could not be applied because of segregation of the candidates in to C.T. and B.Ed. categories bringing each to less than 14. On the other hand, a stand has been taken in one of the additional counter affidavits that because of expiry of the validity of the merit list, the candidature of the petitioner could not be considered. In the advertisement, dated 14.10.2006, under the heading “Selection”, following has been stated: “Selection:- Selection shall be made taking into account the marks secured in Matric & C.T. or Page 9 of 14 Graduation & B.Ed on merit basis only. There shall be no interview. 70% of total vacancies shall be filled by H.S.C./+2 C.T. applicants and rest 30% vacancies shall be filled up by Graduate B.Ed. applicants.” There being 16 vacancies, under Nischintakoili block,11 belong to the C.T. category, while 5 belong to the B.Ed. category. As already stated, this, according to the Opposite Parties was the reason for not applying the roster as two separate lists were prepared. However, a clarification was issued regarding reservation of vacancies under PH category by the Government in SME Department in its letter dated 03.01.2008 which is reproduced herein below: “To The Collector-cum-CEO, Zilla Parishad, Cuttack. Sub- Clarification regarding reservation of Vacancies for Sikhaya Sahayak under P.H. Category. Sir, I am directed to invite reference to your memo No. 3998 dt. 27.11.07 on the subject noted above and to say that as per this Deptt. Resolution No. 11676SME dt. 31.05.06 out of the total vacancies, 70% would be candidates having Matric, + 2 with C.T. qualification and 30% for candidates having B.A./B.Sc/B.Com with B.Ed qualification. As such there will be one list which cover both C.T. & B.Ed. qualification and the roster would be indicated from the said Page 10 of 14 list instead of two lists. So, reservation on account the total list of C.T. & B.Ed. candidate one unit/ one roster. Orders of Commissioner-cum-Secretary to Govt. S & M.E. Deptt. has been taken.” Thus, despite clarification being issued to the effect that one list is to be prepared covering both C.T. and B.Ed. candidates and that reservation on roster is to be calculated taking into account the total list of both category candidates as one unit one roster, the stand taken by the Opposite Parties stands automatically nullified. Of course, this Court is conscious of the fact that the petitioner’s earlier writ application was dismissed, yet reference to the above was made only to highlight that the petitioner could have been engaged against the available vacancy of 2006 but for the erroneous application of the roster by the concerned authority at the relevant time. But then, the petitioner is also himself guilty of delay and latches inasmuch as despite not being favoured with order of engagement, he remained silent till 2009 when he submitted representation which ultimately came to be rejected in 2010. He thereafter, approached this Court by filling the earlier writ application in the year 2011 without Page 11 of 14 impleading any of the engaged candidates as parties. That apart, the vacancies of 2006 were carried forward to the subsequent recruitment processes. Therefore, notwithstanding the finding of this Court that the petitioner was wrongly not considered against the available vacancy in the year 2006, it would not be proper to reopen the case at this belated stage as it would lead to unnecessary legal complications. As regards the claim of discrimination lodged by the petitioner, it is his case that three persons namely, Pradipta Kumar Swain, Pradeep Kumar Bhoi and Basant Kumar Sahoo were engaged much after the expiry of the so-called validity of select list. This Court finds that such appointment was made pursuant to orders passed by this Court in the writ applications filed before this Court and original applications filed before the erstwhile Odisha Administrative Tribunal. None of these candidates stand on the same footing as the petitioner as their cases were disposed of relying upon the judgment of this Court in the case of Chandramani Jena and others Vrs. State of Orissa and Others1 relating to rejection of 1 2007 2 OLR 577 Page 12 of 14 their candidature on the ground that they were not residents of the block in question. Therefore, the petitioner cannot claim parity with them. 10. Be that as it may, this Court has already found that the petitioner was wrongly deprived of engagement as Sikhaya Sahayak due to non-application of the 80-point Model Roster at the relevant time. 15 long years have passed in the meantime. The petitioner, being a Visually Impaired person with 75 per cent permanent disability, has been running from pillar to post for redressal of his legitimate grievance. There is some factual controversy as to whether the petitioner had submitted his candidature pursuant to advertisement in the year 2011 as there are conflicting materials on record. While it is stated in the additional counter affidavits that the petitioner was not an applicant, yet the Deputy Director of OPEPA in his letter dated 28.07.2011 addressed to the Additional Secretary to Government specifically mentioned that the petitioner had also applied for the said post during 2011. This Court would not like to enter into the controversy. Page 13 of 14 11. Therefore, taking an overall view of the matter and particularly the fact that the petitioner has been deprived by not being engaged against the PH vacancy at the relevant time as also taking note of the fact that selection process is on for the equivalent post of Junior Teacher (Schematic) since 2023 with the vacancies not yet filled up, this Court is of the considered view that ends of justice would be best served if the petitioner is adjusted against one of such vacancies with all benefits being given to him prospectively. Further, it is made clear that such engagement shall not be cited as a precedent. 12. The writ application is therefore disposed of in terms of the above directions. ……..………………….. Sashikanta Mishra, Judge Deepak Signature Not Verified Digitally Signed Signed by: DEEPAK PARIDA Reason: Authentication Location: OHC,Cuttack Date: 27-Aug-2024 20:24:53 Page 14 of 14