The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No. 42079 of 2023 Pratap Kumar Pahi …. Petitioner Mr. J.K. Rath, Sr. Advocate on behalf of Mr. N. Nayak, Advocate -versus- State of Odisha & Ors. …. Opposite Parties Mr. S. Jena, AGA W.P.(C) No. 42661 of 2023 Kumarsen Senapati …. Petitioner Mr. U.C. Mohanty, Advocate -versus- State of Odisha & Ors. ….
Legal Reasoning
Opposite Parties Mr. S. Jena, AGA JUSTICE BIRAJA PRASANNA SATAPATHY CORAM: Order No 04. W.P.(C) No. 42661 of 2023 & I.A. No. …… of 2024
Decision
ORDER 04.01.2024 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode. 2. I.A. filed in Court be registered. 3. Considering the grounds taken, the prayer for intervention is allowed. Intervenor-Petitioner be impleaded as Opp. Party No. 4. // 2 // 4. Learned counsel for the Petitioner is permitted to implead the Intervenor-Petitioner as Opp. Party No. 4 in Court today. 5. I.A. is disposed of. 05. W.P.(C) Nos. 42079 & 42661 of 2023 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode. 2. Heard Mr. J.K. Rath, learned Sr. Counsel appearing for the Petitioner along with Mr. N. Nayak in W.P.(C) No. 42079 of 2023, Mr. U.C. Mohanty, learned counsel appearing for the Petitioner in W.P.(C) No. 42661 of 2022 and Mr. S. Jena, learned Addl. Govt. Advocate appearing for the Opp. Parties in both the cases. 3. While W.P.(C) No. 42079 of 2023 has been filed by the Petitioner therein challenging the order dtd.05.09.2023 so issued by the Director, Secondary Education – Opp. Party No. 2 under Annexure-1 and further order passed by the self same authority on 18.12.2023 under Annexure-9, W.P.(C) No. 42661 of 2023 has been filed challenging the notice dtd.22.09.2023 so issued by the D.E.O., Jajpur - Opp. Party No. 3 under Annexure-6. 4. It is the case of the Petitioner in W.P.(C) No. 42079 of 2023 that in terms of the guideline issued by the Govt. in the School & Mass Education Department on 07.07.2021 under Annexure-10, the selection and appointment of District Science Supervisor has to be made. Selection procedure as prescribed in the guideline is reproduced hereunder:- “B. Selection Page 2 of 7 // 3 // i. A list of top 20 TGT PCM/CBZ teachers of the district having the above eligibility will be prepared in order of seniority and shall be placed before the District Level Selection Committee. ii. The Committee will consider the merit and performance of the teachers in the list prepared in the manner as in para B (i) and shortlist 3 teachers to be recommended to State Selection Committee for final selection. iii. Merit and Performance will be assessed in followed manner.” 4.1. It is contended that without following the guideline so issued by the Govt. under Annexure-10, the name of the Petitioner in W.P.(C) No. 42661 of 2023 was approved by the Director vide his order dtd.05.09.2023, basing on the recommendation made by the D.E.O., Jajpur on 28.06.2023. 4.2. It is the main contention of the leaned counsel for the Petitioner in W.P.(C) No. 42079 of 2023 that since the recommendation and approval of the posting of the Petitioner in other case as District Science Supervisor has been made contrary to the guideline issued by the Govt. under Annexure-10, the approval of the Petitioner in W.P.(C) No. 42661 of 2023 made under Annexure-1 and so confirmed under Annexure-9 are not sustainable in the eye of law and accordingly liable for interference of this Court. 5. It is the case of the Petitioner in W.P.(C) No. 42661 of 2023 that basing on the recommendation made by the D.E.O., Jajpur on 28.06.2023, Opp. Party No. 2 vide his order dtd.05.09.2023 approved the posting of the Petitioner as District Science Supervisor. As the said order was not carried out by the D.E.O., Jajpur, Petitioner filed W.P.(C) No. 32130 of 2023. This Court vide order dtd.03.10.2023 directed Opp. Party No. 2 to take a decision Page 3 of 7 // 4 // on the claim of the Petitioner therein. Pursuant to the order passed by this Court on 03.10.2023 Opp. Party No. 2 vide order dtd.18.12.2023 while upholding his earlier order dtd.05.09.2023, has directed the D.E.O. to transfer the Petitioner and post him as District Science Supervisor within one (1) week from the date of receipt of the order. But in view of the interim order passed by this Court in W.P.(C) No. 42079 of 2023, Opp. Party No. 3 did not comply the order dtd.19.12.2023 and in the meantime Petitioner came to know that a fresh notice has been issued by the D.E.O. on 22.09.2023 under Annexure-3 for selection and recommendation form amongst eligible teachers for their posting as District Science Supervisor. Challenging the same, Petitioner is before this Court in the present writ petition. 5.1. It is contended by the learned counsel for the Petitioner that since Opp. Party No. 2 vide his order dtd.05.09.2023 approved the posting of the Petitioner as District Science Supervisor basing on the recommendation made by the D.E.O., Jajpur on 28.06.2023, which has now been upheld by the Director vide his order dtd.18.12.2013, Petitioner in the other case has no locus standi to challenge the same as the Petitioner in the other case never challenged the recommendation made by the D.E.O. on 28.06.2023 nor the approval made by the Opp. Party No. 2 on 05.09.2023. Only when the order dtd.05.09.2023 was not implemented, Petitioner approached this Court in W.P.(C) No. 32130 of 2023. Pursuant to the order passed by this Court on 03.10.2023, the order passed by the Director on 05.09.2023 was upheld vide order dtd.18.12.2023. It is accordingly contended that the prayer made by the Petitioner in other case is not at all entertainable. Page 4 of 7 // 5 // 6. Mr. S. Jena, learned Addl. Govt. Advocate appearing for the Opp. Parties in both the cases on the other hand contended that the guideline so relied on by the Petitioner in W.P.(C) No. 42079 of 2023 is a draft guideline and it has not yet been approved. Therefore, basing on the earlier guideline issued by the Director on 13.06.2017, D.E.O., Jajpur recommended the name of the Petitioner in W.P.(C) NO. 42661 of 2023 for his posting as District Science Supervisor on 28.06.2023. The same was also approved by the Director vide his order dtd.05.09.2023. 6.1. It is contended that the plea taken by the Petitioner in W.P.(C) No. 42079 of 2023 regarding applicability of the guideline issued under Annexure-10 is completely misconceived as the same has not yet been approved. It is also contended that in terms of the guideline issued by the Director on 13.06.2017 though it was required to suggest five names, but Opp. Party No. 3 recommended the name of the Petitioner in W.P.(C) No. 42661 of 2023 on 28.06.2023 and the same was approved by the Director on 05.09.2023. It is also contended by the learned AGA that Petitioner in W.P.(C) No. 42079 of 2023 never assailed the recommendation made by the D.E.O. on 28.06.2023 nor the earlier approval made in favour of the Petitioner in the other case on 05.09.2023. It is accordingly contended that the prayer made by the Petitioner W.P.(C) No. 42079 of 2023 is not at all entertainable. 7. Having heard learned counsel appearing for the Parties and after going through the materials available on record, this Court finds that the guideline issued by the Govt. in the Department of School & Mass Education on 07.07.2021 under Annexure-10 is a draft guideline and no document is there showing that the said draft Page 5 of 7 // 6 // guideline has been approved. Therefore, the guideline issued by the Director on 13.06.2017 is to be followed with regard to the posting of Science Teacher as District Science Supervisor. As found from the record, in terms of the guideline issued by the Director on 13.06.2017 though it was required to suggest five names, but D.E.O., Jajpur recommended the name of the Petitioner in W.P.(C) No. 42661 of 2023 for his posting as District Science Supervisor on 28.06.2023. The recommendation made by the D.E.O. on 28.06.2023 was approved by the Director on 05.09.2023. 7.1. On the face of such approval made in favour of the Petitioner in W.P.(C) No. 42661 of 2023 when consequential action was not taken by the D.E.O. for his transfer and posting, Petitioner in the said writ petition approached this Court in W.P.(C) No. 32130 of 2023. Pursuant to the order passed by this Court on 03.10.2023 Opp. Party No. 2 after due consideration upheld his earlier order passed on 05.09.2023 vide order dtd.18.12.2023. It is found from the record that Petitioner in W.P.(C) No. 42079 of 2023 has never assailed the recommendation made by the D.E.O. on 28.06.2023 nor the approval made in favour of the Petitioner in the other case on 05.09.2023, prior to passing of the order dt.18.12.2023, basing on the order passed by this Court on 03.10.2023 in W.P.(C) No. 32130 of 2023. 7.2. In view of such position, it is the view of this Court that Petitioner in W.P.(C) No. 42079 of 2023 has got no locus standi to challenge the order dtd.05.09.2023, which has now been upheld vide order dtd.18.12.2023. In view of such position, this Court while dismissing W.P.(C) No. 42079 of 2023, dispose of W.P.(C) No. 42661 of 2023 with a direction on the Opp. Party No. 3 to act Page 6 of 7 // 7 // upon the order dtd.05.09.2023 and 18.12.2023 within a period of seven (7) days from the date of receipt of this order. Petitioner in W.P.(C) No.42661 of 2023 is permitted to file the certified copy of this order before D.E.O., Jajpur-Opp. Party No.3 for compliance. Photo copy of the order be placed in the connected case record. 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: 09-Jan-2024 13:25:17 Page 7 of 7