Madan Gopal Nandi & Anr. … v. State of Odisha and Anr
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No. 40653 of 2021, W.P.(C) No. 40657 of 2021, W.P.(C) No. 40660 of 2021 & W.P.(C) No. 40661 of 2021 Application under Articles 226 & 227 of Constitution of India. AFR W.P.(C) No. 40653 of 2021 Madan Gopal Nandi & Anr. …… Petitioners --------------- - Versus - State of Odisha and Anr. ...…. Opp. Parties W.P.(C) No. 40657 of 2021 Sarat Kumar Rath ...…. Petitioner - Versus - State of Odisha and Anr. ...…. Opp. Parties W.P.(C) No. 40660 of 2021 Pravata Kumar Rout & Anr. ...…. Petitioners - Versus - State of Odisha and Anr. ...…. Opp. Parties W.P.(C) No. 40661 of 2021 Jyotsna Mahapatra ...…. Petitioner - Versus - State of Odisha and Anr. ...…. Opp. Parties Advocate(s) appeared in this case:- _________________________________________________________
Legal Reasoning
are not covered by the judgment passed by this Court in the writ appeals directing to accommodate the appellants. Page 2 of 13 3. The facts of the case are that on 11.09.2014, the opposite party No.2 issued an advertisement inviting applications for the post of Sikshya Sahayak in respect of 30 districts. Since the age limit was reduced from 42 years to 35 years, all the petitioners approached this Court by filing different writ applications, the details of which would be discussed a little later. While the matters were pending, a decision was taken at the level of the Government in a meeting held under the Chairmanship of Commissioner- cum-Secretary, School and Mass Education Department on 24.02.2015 to enhance the upper age limit to 42 years. Again on 03.06.2015, taking note of the fact that the vacancies up to the second preference districts had been filled up, it was decided to forward the cases of the eligible candidates to their third preference districts. Again on 30.07.2015, a decision was taken by the High Power Committee to consider the over aged candidates, who had applied online and obtained positive direction from the High Court. It would be apt to mention here the details of the Page 3 of 13 cases filed by the present petitioners at the relevant times and the orders passed therein: Present writ application No. Name of the petitioner Previous writ application No. Date of disposal W.P.(C) No. 40653 of 2021 Madan Gopal Nandi W.P.(C) No. 21968 of 2014 02.03.2015 Kailash Chandra Sethi W.P.(C) No. 19569 of 2014 02.03.2015 W.P.(C) No. 40657 of 2021 Sarat Kumar Rath W.P.(C) No. 19557 of 2014 02.03.2015 W.P.(C) No. 40660 of 2021 Amulya Kumar Roul W.P.(C) No. 18757 of 2014 02.03.2015 W.P.(C) No.40661 of 2021 Jyotsna Mohapatra W.P.(C) No. 11241 of 2015 23.06.2015 A single Judge of this Court passed an identical order on 02.03.2015 and 23.06.2015 in all the aforementioned cases, which is as under: “Heard learned counsel for the petitioners and Mr.B.P.Tripathy, learned Standing Counsel for the School & Mass Education Department and the Mr.P.K.Mohanty, OPEΡΑ. learned senior counsel for The petitioners have filed this writ petition challenging the order dated 11.9.2014 issued by the Commissioner-cum-Secretary to Government in School & Mass Education Department reducing the maximum age limit to 35 years for making applications by the general candidates for the post of Sikhya Sahayak. In W.P.(C) No.18542 of 2014, which is connected to the present writ petition, counter affidavit sworn to by Sri Manoj Kumar Mohanty, Joint Secretary to the Government, has been Commissioner-cum-Secretary to Government, School & Mass Education Department, O.P.1 enclosing the copy of the proceeding of the meeting (Annexure-A/1) filed on behalf of Page 4 of 13 held under the Chairmanship of O.P.1 on 24.2.2015 in pursuance of the direction of this Court issued on 30.1.2015, wherein they have taken the following decision :- "Keeping the mandate of RTE in view and taking the committee into consideration, the vacancies decided that the Deptt. will have no objection if the candidates beyond the upper age limit, i.e., up to 42 years for general candidates with 5 years age relaxation for SC/ST/OBC/SEBC /Women/Ex- Serviceman and 10 years age relaxation as per Order No.20199 dated 24.8.2013 of S & ME Deptt. are allowed by Hon’ble High Court for consideration for their engagement as per merit only who are otherwise eligible. But this will be one timeand only based on Court order. It can not be considered as precedent." In view of such decision of the High Power
Arguments
For Petitioner(s) : Mr. B. Routray, Sr. Advocate with M/s. Saubhagya Kumar Samal, S.P. Nath, S.D. Routray, S. Sekhar & Page 1 of 13 A.K. Das, Advocates. For Opp. Parties : Mr. S.N. Pattnaik, Addl. Government Advocate _________________________________________________________ CORAM: JUSTICE SASHIKANTA MISHRA JUDGMENT 28th August, 2024 SASHIKANTA MISHRA, J. Since all these writ applications involve identical facts they were heard together and are being disposed of by this common judgment. 2. All these petitioners are aggrieved by rejection of their representations by the State Project Director, OPEPA (opposite party No.2) whereby their claim for engagement as Sikshya Sahayak being over aged candidates was turned down on the ground that the Government Policy does not permit engagement of ineligible candidates and further they
Decision
Committee, the writ petition is allowed. Since the Government in its resolution has no. objection for relaxation of the upper age limit up to 42 years for general candidates for engagement of Sikhya Sahayak, I direct that the upper age limit shall be fixed to 42 years for consideration of engagement of Sikhya Sahayak of the petitioner. The applications, which have been rejected on the ground of over-age, shall be considered accordingly. However, this order shall not be a precedent for other cases in future. Issue urgent certified copy. Let a free copy of this order be supplied to the the School & Mass counsel for learned Education Department.” 4. In so far as the petitioner-Pravata Kumar Rout in W.P.(C) No. 40660 of 2021 is concerned, he along with others had approached this Court in W.P.(C) No. 18768 of 2015, which was dismissed by order dated 29.11.2019 for non-joinder of parties. Some petitioners of the above writ Page 5 of 13 application preferred writ appeal against the said order of dismissal being W.A. No. 703 of 2019. Some other similarly placed candidates had also approached this Court when they were not engaged in their third preference districts on the ground of non-availability of posts. The said writ applications being dismissed for non-joinder of parties they also preferred writ appeals. All the writ appeals being W.A. Nos.700, 701, 702 & 703 of 2019 were heard together and by judgment dated 23.12.2020, the order passed by the Single Judge was set aside and the authorities were directed to accommodate all the appellants as there are unfilled vacancies available. The State preferred SLP before the Supreme Court in being SLP(C) Nos. 5687 of 2021, 5716 of 2021 and 5965 of 2021 but the same were dismissed by order dated 27.08.2021. While the matter stood thus, the petitioners along with others filed a writ application being W.P.(C) No. 7553 of 2021 with prayer to extend the benefit as given to the appellants in the aforementioned writ appeals. This Court vide order dated 05.04.2021 directed the opposite party No.2 to take a decision on the Page 6 of 13 representation filed by the petitioners. By order dated 16.09.2021, the opposite party No.2 rejected the representations of the petitioners on the ground that this Court had specifically directed to accommodate the appellants of the above writ appeals for which the benefit cannot be extended in favour of the petitioners and further that the Government Policy does not permit to engage ineligible candidates. 5. No counter affidavit was filed by the State though the State Counsel has made oral arguments in support of the stand taken by it. 6. Heard Mr. B. Routray, learned Senior Counsel with Mr. S.K. Samal, learned counsel appearing for the petitioners and Mr. S.N. Pattnaik, learned Addl. Government Advocate for the State. 7. Mr. Routray would argue that all the petitioners had approached this Court in different writ applications and all such writ applications were disposed of taking note of the decision taken by the State to extend the upper age limit to Page 7 of 13 42 years. Further, despite availability of posts, no over aged candidates were engaged on the ground of non-availability of vacancy. Being aggrieved, some of such candidates including the petitioner-Pravata Kumar Rout in W.P.(C) No. 40660 of 2021 had approached this Court along with other similarly placed candidates but those writ applications were dismissed by the Single Judge for non-joinder of necessary parties. The writ appeals preferred against such dismissal were allowed taking note of the availability of vacancies. According to Mr. Routray, the petitioners having approached this Court earlier and the writ applications being disposed of by favourable orders, they cannot be denied the benefits granted to the appellants only on the ground that they had not filed writ appeals. Mr. Routray further argued that the orders passed in the writ appeals have to be treated as judgment in rem as the principle was decided there, which affects all similarly placed candidates. 8. Mr. S.N. Pattnaik, on the other hand would argue that the earlier writ applications filed by the Page 8 of 13 petitioners were disposed of taking note of the decision of the Government to enhance the upper age limit to 42 years but then by such time, the process of recruitment had already been completed up to the second preference districts. Though it was decided to consider the cases of all eligible candidates against their third preference districts, yet no post was available to accommodate them. Thereafter, the Division Bench in its judgment dated 23.12.2020 directed specifically to accommodate the appellants against the unfilled vacancies. There was no direction to the State to consider the cases of any other candidate. According to Mr. Pattnaik therefore, the representations submitted by the petitioners were rightly rejected. 9. The facts of the case are not disputed. As has already been stated hereinbefore, all the present petitioners had approached this Court earlier in different writ applications as per the table referred to earlier. All the said writ applications were disposed of taking note of the counter affidavit filed by the Joint Secretary to Government on Page 9 of 13 behalf of the Commissioner-cum-Secretary, School and Mass Education Department in W.P.(C) No.18542 of 2014, wherein it was stated that the Department will have no objection if the candidates beyond the upper age limit (along with relaxation for social and special category candidates) are allowed by the High Court for consideration of their engagement as per merit only, who are otherwise eligible and that it would be a one time and only based on Court order and not to be considered as precedent. Therefore, this Court specifically directed that the applications, which were rejected on the ground of over age, shall be considered accordingly but the order shall not be precedent for other cases in future. It is true that despite not being favoured with order of engagement, the petitioners did not challenge the same immediately thereafter though some of the similarly placed candidates did and their writ applications being dismissed, they went further in appeal to the Division Bench and ultimately got the desired relief. Page 10 of 13 10. Having regard to the fact that the petitioners are not rank outsiders staking their claim for the first time but are candidates who had earlier approached this Court and obtained favourable orders in the year 2015, it cannot be said that the judgment passed by the Division Bench in the writ appeals would have no application to them. On the contrary, the Government’s decision being applicable to all such over aged candidates, who obtained orders from this Court, the benefit ultimately granted by the Division Bench cannot be denied to them as it was a matter of principle and not a grant of individual largesse. To reiterate, had the petitioners approached this Court claiming parity with the appellants of the writ appeals for the first time, their claims could have been reasonably rejected by citing them fence sitters, but as has already been narrated in detail, the petitioners have been staking their claim before this Court since the year 2014-15 and have also got orders in their favour. Therefore, they cannot obviously be blamed for the inability of the authorities to work out the direction issued by this Court in the earlier writ applications filed by them, Page 11 of 13 which not being challenged, stares at the authorities being a subsisting judicial pronouncement. 11. From the foregoing narration it is evident that the opposite party No.2 has taken a hyper-technical view to reject the representations submitted by the petitioners on the untenable ground that the judgment passed by the Division Bench in the writ appeals would be confined to the appellants only. In the process, the previous orders passed by the Single Judge on 02.03.2015/26.06.2015 in the writ applications earlier filed by these petitioners have been overlooked. As already stated, this being a matter of principle and policy of the Government, there can be no discrimination in this regard. Moreover, there being positive orders of this Court in favour of the petitioners in subsistence, rejection of their representations cannot be sustained. 12. For the foregoing reasons therefore, the writ applications are allowed, the opposite party authorities are directed to issue orders of engagement in favour of the Page 12 of 13 petitioners for the post of Sikshya Sahayaks/Junior Teacher (Schematic) as the case may be, against the unfilled vacancies without any further delay and in any case, not later than two months from the date of production of certified copy of this order by the petitioners. ……..……………………. Sashikanta Mishra, Judge Orissa High Court, Cuttack. The 28th August, 2024/ A.K. Rana, P.A. Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: PERSONAL ASSISTANT Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 29-Aug-2024 17:07:45 Page 13 of 13