Orissa High Court
Kalyani Sethi vs State Of Odisha And Others ..... Opp. ... on 19 September, 2024
Author: Sashikanta Mishra
Bench: Sashikanta Mishra
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No. 3772 OF 2016
Application under Articles 226 & 227 of Constitution of India.
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Kalyani Sethi ..... Petitioner
-versus-
State of Odisha and others ..... Opp. Parties
Advocate(s) appeared in this case through virtual mode:-
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For Petitioner : Ms. Sujata Jena, Advocate
For Opp. Parties : Mr. S.N. Pattnaik,
Addl. Government Advocate.
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CORAM:
JUSTICE SASHIKANTA MISHRA
JUDGMENT
19th September, 2024 SASHIKANTA MISHRA, J.
The petitioner has approached this Court with the following prayer:
"Therefore, it is prayed that, your lordship's may graciously be pleased to Admit the Writ application and appropriate directions/Orders may be issued to the Op. parties to consider the case of the petitioner for appointment of Sikshya Sahayak, under Puri District for +3Arts TGT against vacant post or she may be given opportunity to apply afresh as per the Order of Hon'ble High Court Page 1 of 13 coming under overage category in the interest of justice.
And any other relief/relives which deemed fit in proper may be passed in favour of petitioner.
And for this act of your kindness, the petitioner as in duty bound shall ever pray."
2. The facts of the case are that as per advertisement published on 12.09.2014 by the State Project Director, Odisha Primary Education Programme Authority (OPEPA), total number of 16601 posts of Sikshya Sahayak were notified for being filed up by the intending candidates. The advertisement contained the district-wise availability of vacancies. The last date of receipt of the application online was 30.09.2014. The petitioner, being a Scheduled Caste (SC) lady and having the requisite qualification submitted her application giving first preference as Puri district. She could not furnish her B.Ed. qualification certificate as at the relevant time the result of such examination was not published by the concerned University, i.e. University of Jammu. After scrutiny of the application forms, the name of the petitioner was placed at Page 2 of 13 serial No.130 under Puri district in the draft list. Further, her name was placed under 4th preference district, i.e., Bhadrak under SC(W) category. Since she had already appeared in the B.Ed. examination, she submitted an undertaking on 11.11.2014 before the OPEPA authorities along with the B.Ed. admit card requesting for grant of time to produce the B.Ed. Certificate after publication of the result. There was no reservation for SC(W) in Bhadrak district as per list published on 11.02.2016. In the meantime, as per order passed by this Court in W.P.(C) No. 6670 of 2015, the upper age limit was extended from 35 to 42 years. Accordingly, a corrigendum to the advertisement was published on 09.02.2016 but it was specifically mentioned that those who had not applied earlier due to over-age could only apply. Since the petitioner, being over- aged by then, had applied earlier pursuant to the original advertisement, she could not apply pursuant to the corrigendum as no such liberty granted to candidates like her. It is the petitioner's case that had she been allowed to apply afresh under the over age category or if her B.Ed. Page 3 of 13 qualification is added to her +3 Arts qualification she could have been selected for the post. Because of such irregularity of procedure adopted for recruitment, the petitioner was unjustly deprived of engagement in the said post. On such facts, the petitioner has filed this writ application with the prayer quoted above.
3. Counter affidavit has been filed by opposite party No.4, the District Project Coordinator, SSA, Puri admitting that during verification it was found that the petitioner had appeared in B.Ed. Examination under Jammu University and had submitted an undertaking that examination had already been held but result would be published soon, whereupon she would produce the B.Ed. certificate. However, as there was no instruction to accept such undertaking either in the advertisement or in the resolution of the Government dated 06.08.2013, such undertaking could not be considered. It is further stated that in Puri district, 7 numbers of SC (Open) and 3 numbers of SC(F) having trained qualification were placed in the merit list Page 4 of 13 with the cut off mark for SC (Open) category being 181.617% and 149.669% for SC(F) category. Accordingly, engagement orders were issued to the candidates. One Surekhabala Behera from SC (F) category had not joined and against such vacant post one Krushnapriya Jally, placed in the merit list as SC(F) untrained category with 158.931% of marks, was appointed. Since the petitioner secured less marks than Krushnapriya Jally, she could not be engaged. Subsequently, after the corrigendum, the over age candidates for the first preference district of Puri were engaged.
4. The petitioner filed a rejoinder to the counter. It is stated that she had secured 86.369% of marks without training qualification but had given undertaking to submit B.Ed. certificate after publication of the result. It is further stated that while Krushnapriya Jalli, the SC(F) untrained candidate secured more marks than the petitioner, yet one Gunanidhi Bhoi being SC(UR) category untrained candidate was engaged despite securing 83.054 % marks, Page 5 of 13 which is less than that of the petitioner. The petitioner was debarred from applying as over age candidate as she had applied earlier. As a result, the petitioner has become over aged and despite being trained and having secured more marks than Gunanidhi Bhoi, has not been engaged.
5. A reply to the rejoinder has been filed by the opposite party No.4 clarifying that Gunanidhi Bhoi gave his first option (over age) as Puri district. The petitioner could not have been considered as an over age candidate and was an untrained candidate at the relevant time.
6. Heard Ms. Sujata Jena, learned counsel for the petitioner and Mr. S.N. Pattnaik, learned Addl. Government Advocate for the State.
7. Ms. Jena would argue that the petitioner had pursued B.Ed. course in Jammu University and had also appeared in the examination but the result was not declared at the relevant time, for which she could not cite herself as a trained candidate in the application nor could furnish the B.Ed. certificate. Therefore, she had submitted Page 6 of 13 an undertaking. This fact ought to have been considered by the authorities and her candidature should have been accepted subject to production of B.Ed. certificate. In case she did not produce the certificate, her candidature could have been rejected but in the instant case, the petitioner acquired the B.Ed. qualification but for the inaction of the authorities she could not be considered at the relevant time resulting in becoming over-aged for employment. Furthermore, she could not have also applied as an over age candidate having applied pursuant to the first advertisement. Ms. Jena therefore, contends that the petitioner has been entirely left in the lurch.
8. Mr. S.N. Pattnaik, learned AGA contends that there was no provision either in the advertisement or in the Government Resolution dated 06.08.2013 permitting the authorities to accept undertaking submitted by a candidate for which the petitioner was treated as an untrained candidate. Since the last SC(F) candidate secured more marks than her, she cannot claim any right of employment. Page 7 of 13 Further, she cannot be compared with Gunanidhi Bhoi, who was an over aged candidate. In any event, the petitioner had applied for Puri, Khordha, Ganjam, Bhadrak and Koraput as her first to fifth preference districts respectively but no vacancy exists in any of the said districts so as to adjust the petitioner.
9. There is no dispute that the petitioner had applied as an SC candidate with Puri as her first preference district. She was an untrained candidate at the relevant time but had appeared in the B.Ed. examination under University of Jammu, as evident from the provisional certificate dated 04.02.2016 and marks certificate dated 03.02.2016 issued by the University of Jammu. Copies of these certificates have been enclosed to the writ application as Annexure-3 series. It appears from the marks certificate that the result was declared on 22.01.2016. The petitioner admittedly submitted an undertaking on 11.11.2014. Nevertheless, the fact that she acquired her B.Ed qualification at least in 2016 is not in dispute. It is also Page 8 of 13 borne out from the record that one Gunanidhi Bhoi under SC (UR) category being an untrained candidate was selected for engagement as per final merit list dated 28.03.2016. Further, admittedly, the petitioner secured more marks than him i.e., 86.369% but then said Gunanidhi Bhoi had applied as an over-aged candidate pursuant to the corrigendum issued on 09.02.2016.
10. From the above narration it becomes clear that though as on the date of the advertisement the petitioner was an untrained candidate yet, having OTET qualification she could have been engaged under such category. The authorities have failed to appreciate the fact that because of reasons beyond her control, she could not produce the B.Ed. certificate at the relevant time. Nonetheless, as on the date of engagement of Gunanidhi Bhoi she had already acquired B.Ed. qualification. Had the undertaking been accepted for whatever it was worth, the petitioner could have been engaged, at least subject to production of the certificate later. This is being said for the reason that the Page 9 of 13 inability of the petitioner to produce the B.Ed certificate cannot be attributed to her. The authorities cannot take a rigid view as each case has to be considered on its own merit. When there is no fault on the part of the candidate, relaxation of the Rules can be made. The following observations of the Supreme Court in the case of Asha v. Pt. B.D. Sharma University of Health Science1 are noteworthy in the present context.
"31.There is no doubt that 30th September is the cut-off date. The authorities cannot grant admission beyond the cut-off date which is specifically postulated. But where no fault is attributable to a candidate and she is denied admission for arbitrary reasons, should the cut-off date be permitted to operate as a bar to admission to such students particularly when it would result in complete ruining of the professional career of a meritorious candidate, is the question we have to answer. Having recorded that the appellant is not at fault and she pursued her rights and remedies as expeditiously as possible, we are of the considered view that the cut-off date cannot be used as a technical instrument or tool to deny admission to a meritorious students. The rule of merit stands completely defeated in the facts of the present case. The appellant was a candidate placed higher in the merit list. It cannot be disputed that candidates having merit much lower to her have already been given admission in the MBBS course. The appellant had attained 832 marks while the students who had attained 821, 792, 752, 740 and 731 marks have already been given 1 (2012) 7 SCC 389 Page 10 of 13 admission in the ESM category in the MBBS course.
It is not only unfortunate but apparently unfair that the appellant be denied admission.
Though there can be rarest of rare cases or exceptional circumstances where the courts may have to mould the relief and make exception to the cut-off date of 30th September, but in those cases, the Court must first return a finding that no fault is attributable to the candidate, the candidate has pursued her rights and legal remedies expeditiously without any delay and that there is fault on the part of the authorities and apparent breach of some rules, regulations and principles in the process of selection and grant of admission. Where denial of admission violates the right to equality and equal treatment of the candidate, it would be completely unjust and unfair to deny such exceptional relief to the candidate. [Refer Arti Sapru and others v. State of J. and K. and others [(1981) 2 SCC 484] : (AIR 1981 SC 1009); Chavi Mehrotra v. Director General Health Services [(1994) 2 SCC 370]; and Aravind Kumar Kankane v. State of UP and others [(2001) 8 SCC 355] : (AIR 2001 SC 2800 : 2001 AIR SCW 2851)."
(Emphasis Added).
11. If it is a case that the petitioner actually possesses the qualification required for engagement then mere non-production of the certificate at the relevant time, that too for reasons beyond her control, cannot always lead to rejection of his/her claim.
12. Another important aspect that ought to have been considered by the authorities is that the petitioner could not have applied afresh as an over aged candidate Page 11 of 13 after obtaining the B.Ed qualification. Thus, as has been argued by Ms. Jena, this is a case where the petitioner was left in the lurch and in the process lost an opportunity for being engaged, whereas a person securing less mark than her was engaged. This, in a way amounts to infraction of Article 14 of the Constitution.
13. Having held as above, it is now to be considered as to what relief can be granted to the petitioner at this distance of time in view of the specific stand of the opposite parties that no vacancies are available in any of the five districts opted by the petitioner. But then, as per written instructions dated 22.07.2024 issued by the State Project Director, OSEPA to the learned Additional Government Advocate presently, engagement of Junior Teacher (Schematic), 2023 is in progress as per the fresh requirement, which lends considerable support to the submission of Ms. Jena that large number of vacancies are available. Since this Court has held that the petitioner could have been engaged at the relevant time ether by Page 12 of 13 accepting her undertaking or at least by treating her as an over age candidate in the year 2016, it would not be iniquitous to direct the concerned authorities to consider her case for engagement against the vacancies in the ongoing process of engagement of Junior Teacher (Schematic), 2023.
14. In the result, the writ application is disposed of with a direction to State Project Director, OSEPA to consider the case of the petitioner for her engagement as Junior Teacher (Schematic) in any available vacancy subject to the condition that in case she is so engaged, the same shall be prospective in nature.
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Sashikanta Mishra, Judge Orissa High Court, Cuttack, The 19th September, 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: 19-Sep-2024 18:38:29 Page 13 of 13