Orissa High Court
Bhabendra Pradhan And Others vs State Of Odisha And Others on 23 October, 2017
Author: S.N.Prasad
Bench: Sujit Narayan Prasad
HIGH COURT OF ORISSA: CUTTACK. W.P.(C) Nos.525, 1685, 1679, 1668, 1639, 1492, 1491, 1443, 1441, 1419, 1406, 1149, 1105, 1091, 1086, 1013, 724, 703, 589, 588, 551, 549, 548, 547, 3117, 3171, 3170, 3195, 3188, 3184, 1150, 2244, 2215, 2569, 2232, 2255, 2205, 2247, 2228, 2218, 2234, 2282, 2202, 2242, 2203, 2226, 2245, 2220, 2300, 2246, 2870, 2865, 2855, 2846, 2809, 2900, 996, 5422, 5423, 4384, 4379, 4358, 2897, 2894, 2893, 2876, 2871, 3418, 3454, 3405, 1535, 1536, 1549, 1588, 2582, 5577, 2529, 2506, 2502, 2504, 2521, 2523, 2527, 2550, 2568, 2570, 2577, 2578, 2580, 2262, 2279, 2294, 2290, 2266, 2299, 2240, 2287, 2293, 1771, 2800, 3606, 3629, 3645, 3691, 2771, 2772, 2786, 2745, 2755, 2758, 2703, 2713, 2717, 2722, 2741, 2742, 2743, 857, 5329, 5327, 1695, 2626, 3519, 3542, 3599, 3517, 3518, 3513, 2605, 2607, 2611, 2620, 2625, 1342, 2197, 2162, 2172, 1318, 1367, 1365, 2171, 2196, 2193, 2119, 2199, 2189, 2158, 1362, 2622, 1634, 2603, 2604, 2151, 2112, 3715, 2315, 2494, 2406, 2405, 2403, 2481, 2466, 2453, 2468, 2499, 2497, 2427, 2418, 2408, 2401, 2441, 2433, 2429, 2407, 2028, 1990, 1989, 1987, 1986, 3762, 3714, 3722, 2064, 2060, 2049, 2033, 2032, 2096, 2094, 2086, 2078, 2077, 2076, 2075, 2073, 2072, 2068, 2428, 2430, 2431, 2432, 2436, 2438, 2440, 2442, 2443, 2445, 2456, 2460, 2461, 2465, 2470, 2475, 2483, 2493, 4659, 1000, 2678, 2671, 2672, 1940, 1917, 1915, 1913, 1912, 1911, 1910, 1909, 1907, 1906, 1904, 1218, 1216, 1217, 1211, 1980, 1973, 1948, 1947, 1944, 1943, 1903, 1938, 1936, 1935, 1982, 2674, 2633, 2632, 2648, 2683, 2698, 2628, 2631, 2659, 1079, 1901, 1931, 1950, 1953, 1954, 1956, 1958, 1963, 2901, 2920, 2922, 2928, 2931, 2935, 2938, 2940, 2941, 2942, 2944, 2947, 2949, 2951, 2953, 2954, 2957, 2960, 2962, 2963, 2964, 2981, 2984, 2986, 2987, 3899, 3236, 3250, 3292, 3283, 3202, 1425, 3023, 3014, 3006, 3935, 3037, 3036, 3033, 3027, 2035, 2038, 3068, 3067, 3049, 3038, 3352, 2353, 2355, 2320, 2322, 2323, 2309, 2311, 2305, 2306, 2307, 2332, 2308, 2301, 2302, 2400, 2316, 2319, 2304, 1842, 1866, 1803, 1892, 1805, 1893, 1841, 1877, 2340, 2342, 2344, 2351, 3381, 2367, 2357, 2324, 2330, 2362, 2363, 2336, 2337, 1844, 1845, 1847, 1852, 1865, 1871, 1874, 1875, 1879, 1881, 1882, 1886, 1887, 1890, 1891, 1894, 1895, 1896, 1898, 1899, 5321, 1824, 1900, 13553, 4975, 3135, 4251, 2446, 1710, 2361, 5297, 5840, 5838, 2435, 12373, 2126, 20428 & 20431 of 2017 and 8800 of 2016. In the matter of applications under Article 226 and 227 of the Constitution of India. --------- Bhabendra Pradhan & Others (in W.P.(C) No.525 of 2017) Pramodini Parida & Others (in W.P.(C) No.1685 of 2017) 2 Bichhanda Charana Mohanty & Ors.(in W.P.(C) No.1679 of 2017) Sovabati Nanda (in W.P.(C) No.1668 of 2017) Malaya Kumar Mohapatra & Others (in W.P.(C) No.1639 of 2017) Jitendra Kumar Parida & Others (in W.P.(C) No.1492 of 2017) Pratap Kumar Sethi (in W.P.(C) No.1491 of 2017) Manoj Kumar Sahoo & Others (in W.P.(C) No.1443 of 2017) Tapan Kumar Sahoo & Others (in W.P.(C) No.1441 of 2017) Dushasana Sahoo (in W.P.(C) No.1419 of 2017) Sabita Grahacharya & Others (in W.P.(C) No.1406 of 2017) Arun Kumar Pradhan & Others (in W.P.(C) No.1149 of 2017) Ramesh Chandra Bej & Another (in W.P.(C) No.1105 of 2017) Krupamayee Behera & Others (in W.P.(C) No.1091 of 2017) Pratap Chandra Palai & Others (in W.P.(C) No.1086 of 2017) Jaya Prakash Thakur & Others (in W.P.(C) No.1013 of 2017) Chaitanya Bhoi & Others (in W.P.(C) No.724 of 2017) Nimai Charan Das & Others (in W.P.(C) No.703 of 2017) Pradipta Kishore Panda (in W.P.(C) No.589 of 2017) Sanjukta Bhuian (in W.P.(C) No.588 of 2017) Prasanta Kumar Nayak & Others (in W.P.(C) No.551 of 2017) Prasanna Kumar Sahoo & Others (in W.P.(C) No.549 of 2017) Banita Biswal & Others (in W.P.(C) No.548 of 2017) Bipin Bihari Swain & Others (in W.P.(C) No.547 of 2017) Sujata Kumari Devi & Another (in W.P.(C) No.3117 of 2017) Prafulla Nag (in W.P.(C) No.3171 of 2017) Abinash Patika (in W.P.(C) No.3170 of 2017) Ranjita Panda (in W.P.(C) No.3195 of 2017) Chitta Ranjan Thakur & Others (in W.P.(C) No.3188 of 2017) Samsad Banu & Others (in W.P.(C) No.3184 of 2017) Riti Snigdha Dash (in W.P.(C) No.1150 of 2017) Rasmita Nayak & Others (in W.P.(C) No.2244 of 2017) 3 Jibardhan Dandasena (in W.P.(C) No.2215 of 2017) Bijaya Kumar Nayak (in W.P.(C) No.8800 of 2016) Panchanan Behera (in W.P.(C) No.2569 of 2017) Maheswar Naik & Another (in W.P.(C) No.2232 of 2017) Ganesh Mohalik & Others (in W.P.(C) No.2255 of 2017) Ananda Chandra Sahoo & Others (in W.P.(C) No.2205 of 2017) Madhusudan Ray & Others (in W.P.(C) No.2247 of 2017) Ananta Narayan Mohapatra & Ors. (in W.P.(C) No.2228 of 2017) Sabita Ojha & Others (in W.P.(C) No.2218 of 2017) Birendra Kumar Ojha & Another (in W.P.(C) No.2234 of 2017) Prasad Bagarti & Others (in W.P.(C) No.2282 of 2017) Sabita Swain (in W.P.(C) No.2202 of 2017) Chandra Sekhar Sahoo (in W.P.(C) No.2242 of 2017) Janaki Pradhan (in W.P.(C) No.2203 of 2017) Ashish Mohan Baidya (in W.P.(C) No.2226 of 2017) Supravata Behera (in W.P.(C) No.2245 of 2017) Bijan Kumar Das (in W.P.(C) No.2220 of 2017) Prasad Kumar Patnaik & Others (in W.P.(C) No.2300 of 2017) Kalpana Sahoo (in W.P.(C) No.2246 of 2017) Akshaya Kumar Patra (in W.P.(C) No.2870 of 2017) Mamata Sahoo & Another (in W.P.(C) No.2865 of 2017) Ranjan Kumar Das (in W.P.(C) No.2855 of 2017) Arjuna Nayak & Others (in W.P.(C) No.2846 of 2017) Pusparani Behera & Another (in W.P.(C) No.2809 of 2017) Mohan Haldar (in W.P.(C) No.2900 of 2017) Sakuntala Parida & Others (in W.P.(C) No.996 of 2017) Subhranshu Gochhayat (in W.P.(C) No.5422 of 2017) Jharana Gochhayat (in W.P.(C) No.5423 of 2017) Sunita Sahu (in W.P.(C) No.4384 of 2017) Mamata Khadanga (in W.P.(C) No.4379 of 2017) 4 Pravat Kumar Nayak (in W.P.(C) No.4358 of 2017) Nirupama Bisoi (in W.P.(C) No.2897 of 2017) Madhumita Senapati & Another (in W.P.(C) No.2894 of 2017) Kalpana Mohanty (in W.P.(C) No.2893 of 2017) Deepak Ranjan Bhaisal & Others (in W.P.(C) No.2876 of 2017) Kaustuvamani Bag (in W.P.(C) No.2871 of 2017) Sanjukta Rout (in W.P.(C) No.3418 of 2017) Gautami Devi (in W.P.(C) No.3454 of 2017) Sanatan Tarai & Others (in W.P.(C) No.3405 of 2017) Sureswari Pradhan & Others (in W.P.(C) No.1535 of 2017) Bijaya Kumar Saha & Others (in W.P.(C) No.1536 of 2017) Sabita Nath (in W.P.(C) No.1549 of 2017) Gitanjali Patra & Others (in W.P.(C) No.1588 of 2017) A. Sanjukta Kumari Dora (in W.P.(C) No.2582 of 2017) Sabitri Nayak (in W.P.(C) No.5577 of 2017) Sadhana Moharana & Others (in W.P.(C) No.2529 of 2017) Rama Chandra Bahalia (in W.P.(C) No.2506 of 2017) Mamata Jena (in W.P.(C) No.2502 of 2017) Goutam Harpal (in W.P.(C) No.2504 of 2017) Sarbeswar Pradhan (in W.P.(C) No.2521 of 2017) Lilamayee Nanda (in W.P.(C) No.2523 of 2017) Shikha Routray & Another (in W.P.(C) No.2527 of 2017) Niranjan Nayak (in W.P.(C) No.2550 of 2017) Amitav Pradhan & Others (in W.P.(C) No.2568 of 2017) Kabita Behera (in W.P.(C) No.2570 of 2017) Hemanta Ku. Sahu & Others (in W.P.(C) No.2577 of 2017) Aniva Kumari Gouda (in W.P.(C) No.2578 of 2017) Sanghamitra Das (in W.P.(C) No.2580 of 2017) Suravi Nayak (in W.P.(C) No.2262 of 2017) Prafulla Kumar Sahoo (in W.P.(C) No.2279 of 2017) 5 Uttam Kumar Jitbabu (in W.P.(C) No.2294 of 2017) Arubala Pradhan (in W.P.(C) No.2290 of 2017) Gobinda Chandra Swain (in W.P.(C) No.2266 of 2017) Digambar Behera & Others (in W.P.(C) No.2299 of 2017) Mukunda Nandi & Others (in W.P.(C) No.2240 of 2017) Premananda Deheri & Another (in W.P.(C) No.2287 of 2017) Runubala Das (in W.P.(C) No.2293 of 2017) Md. Sayeedul Haque (in W.P.(C) No.1771 of 2017) Sabita Champati & Others (in W.P.(C) No.2800 of 2017) Manorama Mohanta (in W.P.(C) No.3606 of 2017) Santosh Ku. Maharana (in W.P.(C) No.3629 of 2017) Sudev Shankar Pathi (in W.P.(C) No.3645 of 2017) Mamata Sahoo (in W.P.(C) No.3691 of 2017) Smruti Rekha Mahanta & Another (in W.P.(C) No.2771 of 2017) Prafulla Kumar Sethi (in W.P.(C) No.2772 of 2017) Susanta Kumar Gauda (in W.P.(C) No.2786 of 2017) Ananta Naik & Others (in W.P.(C) No.2745 of 2017) Tularam Bhatra & Others (in W.P.(C) No.2755 of 2017) Binitarani Panda & Others (in W.P.(C) No.2758 of 2017) Diptimayee Rout & Others (in W.P.(C) No.2703 of 2017) Susanta Kumar Barik (in W.P.(C) No.2713 of 2017) Gulshan Kumar Mallick (in W.P.(C) No.2717 of 2017) Lakimi Meleka & Others (in W.P.(C) No.2722 of 2017) Tikeram Meher (in W.P.(C) No.2741 of 2017) Mrutyunjaya Bihari (in W.P.(C) No.2742 of 2017) Sanjay Kumar Meher (in W.P.(C) No.2743 of 2017) Sanjaya Kumar Prusty (in W.P.(C) No.857 of 2017) Sarbeshwar Das & Others (in W.P.(C) No.5329 of 2017) Chakradhar Jena (in W.P.(C) No.5327 of 2017) Aswini Mondal & Another (in W.P.(C) No.3629 of 2017) 6 Ratikanta Nayak (in W.P.(C) No.2626 of 2017) Geetanjali Mahanta (in W.P.(C) No.3519 of 2017) Rekhakumari Saha (in W.P.(C) No.3542 of 2017) Pragna Paramita Jena (in W.P.(C) No.3599 of 2017) Giridhari Sasmal (in W.P.(C) No.3517 of 2017) Bharat Ch. Mohanta (in W.P.(C) No.3518 of 2017) Sabita Mohanta (in W.P.(C) No.3513 of 2017) Trilochan Mahanto (in W.P.(C) No.2605 of 2017) Sheshadev Nayak (in W.P.(C) No.2607 of 2017) Anita Jena (in W.P.(C) No.2611 of 2017) Mohan Chandra Dey & Others (in W.P.(C) No.2620 of 2017) Saroj Ranjan Biswal (in W.P.(C) No.2625 of 2017) Ranjan Seth & Another (in W.P.(C) No.1342 of 2017) Ritashree Ranjita Biswal & Others (in W.P.(C) No.2197 of 2017) Paresh Kumar Nial & Another (in W.P.(C) No.2162 of 2017) Kshetra Mohan Mohanta (in W.P.(C) No.2172 of 2017) Bibhuti Bhusan Hota (in W.P.(C) No.1318 of 2017) Hrusikesh Panda & Others (in W.P.(C) No.1367 of 2017) Dillip Kumar Sethi & Others (in W.P.(C) No.1365 of 2017) Lilabati Mohanta (in W.P.(C) No.2171 of 2017) Puspalata Pradhan & Others (in W.P.(C) No.2196 of 2017) Prakash Chandra Swain & Another (in W.P.(C) No.2193 of 2017) Sankar Thanapati & Another (in W.P.(C) No.2119 of 2017) Babuli Patra & Others (in W.P.(C) No.2199 of 2017) Bibhuti Bhusan Malik & Others (in W.P.(C) No.2189 of 2017) Ramakanta Behera (in W.P.(C) No.2158 of 2017) Debendra Kumar Behera & Others (in W.P.(C) No.1362 of 2017) Dandapani Behera (in W.P.(C) No.2622 of 2017) Preeti Manjari Sahoo & Others (in W.P.(C) No.1634 of 2017) Akshaya Kumar Paikaray & Others (in W.P.(C) No.2603 of 2017) 7 Bhimsen Sahoo (in W.P.(C) No.2604 of 2017) Karunakar Behera (in W.P.(C) No.2151 of 2017) Bipin Bihari Rout (in W.P.(C) No.2112 of 2017) Draupadi Sethi (in W.P.(C) No.3715 of 2017) Bishnupriya Rout (in W.P.(C) No.2315 of 2017) Kishore Kumar Padhi & Others (in W.P.(C) No.2494 of 2017) Supriya Paira (in W.P.(C) No.2406 of 2017) Jashobanti Behera & Others (in W.P.(C) No.2405 of 2017) Girija Bhusan Padaranjan Mishra (in W.P.(C) No.2403 of 2017) Sasmita Das & Others (in W.P.(C) No.2481 of 2017) Giriprava nayak (in W.P.(C) No.2466 of 2017) Prakash Chandra Rout & Others (in W.P.(C) No.2453 of 2017) Padmini Nayak (in W.P.(C) No.2468 of 2017) Prasanta Kumar Swain (in W.P.(C) No.2499 of 2017) Susant Kumar Sahoo (in W.P.(C) No.2497 of 2017) Susil Kumar Sahu & Others (in W.P.(C) No.2427 of 2017) Ranu Prava Behera & Others (in W.P.(C) No.2418 of 2017) Lakshmidhar Prusty (in W.P.(C) No.2408 of 2017) Nigamananda Sahu (in W.P.(C) No.2401 of 2017) Rudrasen Mahanta & Another (in W.P.(C) No.2441 of 2017) Sasmita Patra & Others (in W.P.(C) No.2433 of 2017) Sulochana Nayak (in W.P.(C) No.2429 of 2017) Nirupama Senapati (in W.P.(C) No.2407 of 2017) Namita Kar & Another (in W.P.(C) No.2028 of 2017) Kamadev Behera (in W.P.(C) No.1990 of 2017) Harihar Sahu (in W.P.(C) No.1989 of 2017) Sangita Pattanaik & Another (in W.P.(C) No.1987 of 2017) Swagatika Samal (in W.P.(C) No.1986 of 2017) Raghunath Satapathy (in W.P.(C) No.3762 of 2017) Sanjukta Behera & Another (in W.P.(C) No.3714 of 2017) 8 Trinath Chhotray & Others (in W.P.(C) No.3722 of 2017) Sarat Karna & Others (in W.P.(C) No.2064 of 2017) Padmini Sahu (in W.P.(C) No.2060 of 2017) Annapurna Swain (in W.P.(C) No.2049 of 2017) Basanta Kumar Bhoi & Another (in W.P.(C) No.2033 of 2017) Sashi Bhusan Sarangi (in W.P.(C) No.2032 of 2017) Ashok Kumar Mallik (in W.P.(C) No.2096 of 2017) Susanta Kumar Mallik & Others (in W.P.(C) No.2094 of 2017) Heramba Meher & Others (in W.P.(C) No.2086 of 2017) Rajkishore Jena (in W.P.(C) No.2078 of 2017) Soubhagya Kumar Jena (in W.P.(C) No.2077 of 2017) Gourahari Sahoo (in W.P.(C) No.2076 of 2017) Dusmanta Sahoo (in W.P.(C) No.2075 of 2017) Sanjaya Kumar Shaw (in W.P.(C) No.2073 of 2017) Sukanti Tripathy (in W.P.(C) No.2072 of 2017) Bideshi Sahoo (in W.P.(C) No.2068 of 2017) Rohita Kumar Panda (in W.P.(C) No.2428 of 2017) Haripada Behera (in W.P.(C) No.2430 of 2017) Rina Kumari Behera & Others (in W.P.(C) No.2431 of 2017) Amulya Kumar Sahoo (in W.P.(C) No.2432 of 2017) Pradipta Kishore Bagarti & Others (in W.P.(C) No.2436 of 2017) Saroj Kumar Nimal & Others (in W.P.(C) No.2438 of 2017) Draupadi Mohapatra & Another (in W.P.(C) No.2440 of 2017) Shantipriya Pradhan & Another (in W.P.(C) No.2442 of 2017) Premamanjaree Sahoo & Others (in W.P.(C) No.2443 of 2017) Jayanti Kumari Dalabehera & Ors. (in W.P.(C) No.2445 of 2017) Gobinda Bhoi & Others (in W.P.(C) No.2456 of 2017) Mamata Sahu & Another (in W.P.(C) No.2460 of 2017) Manas Ranjan Mishra (in W.P.(C) No.2461 of 2017) Dayanidhi Barik (in W.P.(C) No.2465 of 2017) 9 Abhiram Behera & Another (in W.P.(C) No.2470 of 2017) Adhinayak Malik (in W.P.(C) No.2475 of 2017) Asit Kumar Das & Others (in W.P.(C) No.2483 of 2017) Satyanarayan Pradhan (in W.P.(C) No.2493 of 2017) Suvendu Kumar Patro (in W.P.(C) No.4659 of 2017) Priyambada Jena & Others (in W.P.(C) No.1000 of 2017) Satyabrata Behera (in W.P.(C) No.2678 of 2017) Dolagobinda Guin (in W.P.(C) No.2671 of 2017) Prahallad Chandra Barik (in W.P.(C) No.2672 of 2017) Manas Kumar Jena (in W.P.(C) No.1940 of 2017) Maheswar Jena & Others (in W.P.(C) No.1917 of 2017) Sanjeeb Kumar Behera (in W.P.(C) No.1915 of 2017) Gitanjali Mallik (in W.P.(C) No.1913 of 2017) Bhagirathi Mallik (in W.P.(C) No.1912 of 2017) Ranjita Mallick (in W.P.(C) No.1911 of 2017) Subhadra Senapati (in W.P.(C) No.1910 of 2017) Niranjan Rout (in W.P.(C) No.1909 of 2017) Arun Kumar Mallik (in W.P.(C) No.1907 of 2017) Monalisha Malik (in W.P.(C) No.1906 of 2017) Sharmila Jena (in W.P.(C) No.1904 of 2017) Bijay Kumar Pradhan & Others (in W.P.(C) No.1218 of 2017) Ramakanta Nath & Others (in W.P.(C) No.1216 of 2017) Manoranjan Sahoo & Others (in W.P.(C) No.1217 of 2017) Charulata Behera (in W.P.(C) No.1211 of 2017) Anitarani Samal & Another (in W.P.(C) No.1980 of 2017) Jnanendra Kumar Das (in W.P.(C) No.1973 of 2017) Manoj Kumar Jena (in W.P.(C) No.1948 of 2017) Abhaya Kumar Mallik (in W.P.(C) No.1947 of 2017) Soumya Ranjan Jena (in W.P.(C) No.1944 of 2017) Susanta Kumar Rout (in W.P.(C) No.1943 of 2017) 10 Ajay Kumar Jana (in W.P.(C) No.1903 of 2017) Hrusikesh Balabantray & Others (in W.P.(C) No.1938 of 2017) Annapurna Das & Others (in W.P.(C) No.1936 of 2017) Sahid Sangram Sa & Others (in W.P.(C) No.1935 of 2017) Kunja Bihari Naik & Another (in W.P.(C) No.1982 of 2017) Laxmikanta Jena & Others (in W.P.(C) No.2674 of 2017) Bhimasen Nayak (in W.P.(C) No.2633 of 2017) Aditya Prasad Mohapatra (in W.P.(C) No.2632 of 2017) Keshab Kumar Nayak (in W.P.(C) No.2648 of 2017) Srinila Dutta & Another (in W.P.(C) No.2683 of 2017) Lipika Parida & Another (in W.P.(C) No.2698 of 2017) Usharani Sahu (in W.P.(C) No.2628 of 2017) Prasanta Chhatria & Others (in W.P.(C) No.2631 of 2017) Santosh Kumar Mandal & Others (in W.P.(C) No.2659 of 2017) Ratikanta Bal & Others (in W.P.(C) No.1079 of 2017) Rajashree Bihari (in W.P.(C) No.1901 of 2017) Susama Sahoo (in W.P.(C) No.1931 of 2017) Karunakar Moharana (in W.P.(C) No.1950 of 2017) Janman Behera (in W.P.(C) No.1953 of 2017) Rudhirani Nayak (in W.P.(C) No.1954 of 2017) Kabyatara Pramanik (in W.P.(C) No.1956 of 2017) Dinabandhu Mohanta (in W.P.(C) No.1958 of 2017) Ashok Kumar Sahoo & Another (in W.P.(C) No.1963 of 2017) Pankaj Kumar Mahanta (in W.P.(C) No.2901 of 2017) Sanjeeb Kumar Sethi & Others (in W.P.(C) No.2920 of 2017) Kapilendra Sagria (in W.P.(C) No.2922 of 2017) Ambika Sahoo & Another (in W.P.(C) No.2928 of 2017) Ashok Kumar Jena (in W.P.(C) No.2931 of 2017) Supriya Malik (in W.P.(C) No.2935 of 2017) Animesh Kumar Giri (in W.P.(C) No.2938 of 2017) 11 Mrutyunjaya Routray & Another (in W.P.(C) No.2940 of 2017) Gobardhan Mahanta & Others (in W.P.(C) No.2941 of 2017) Sasmita Swain & Another (in W.P.(C) No.2942 of 2017) Bijay Kumar Pradhan & Another (in W.P.(C) No.2944 of 2017) Rakesh Ku. Keshi (in W.P.(C) No.2947 of 2017) Pitabas Swain (in W.P.(C) No.2949 of 2017) Bishnu Prasad Dakua (in W.P.(C) No.2951 of 2017) Sanjay Ku. Swain (in W.P.(C) No.2953 of 2017) Kailash Ch. Sethi (in W.P.(C) No.2954 of 2017) Sanjay Ku. Dash (in W.P.(C) No.2957 of 2017) Kumari Naik (in W.P.(C) No.2960 of 2017) Jogeswar Naik (in W.P.(C) No.2962 of 2017) Shankarshan Naik (in W.P.(C) No.2963 of 2017) Mamata Biswal (in W.P.(C) No.2964 of 2017) Durga Pr. Padhy (in W.P.(C) No.2981 of 2017) Susanta Ku. Jena (in W.P.(C) No.2984 of 2017) Manmohan Mohanta (in W.P.(C) No.2986 of 2017) Prakash Ch. Mohanta (in W.P.(C) No.2987 of 2017) Pritilata Jena (in W.P.(C) No.3899 of 2017) Dhaneswar Behera (in W.P.(C) No.3236 of 2017) Minati Jena (in W.P.(C) No.3250 of 2017) Harihara Pr. Pattnaik (in W.P.(C) No.3292 of 2017) Pradeep Ku. Patra (in W.P.(C) No.3283 of 2017) Bindurekha Gochhayat (in W.P.(C) No.3202 of 2017) Pankaj Ku. Parida (in W.P.(C) No.1425 of 2017) Debendra Harijan (in W.P.(C) No.3023 of 2017) Jyotsnamayee Panda (in W.P.(C) No.3014 of 2017) Karmeswar Sethy (in W.P.(C) No.3006 of 2017) Muralidhar Behera (in W.P.(C) No.3935 of 2017) Susanta Ku. Behera (in W.P.(C) No.3037 of 2017) 12 Bharati Dash (in W.P.(C) No.3036 of 2017) Babi Dei (in W.P.(C) No.3033 of 2017) Prakash Ch. Mallick (in W.P.(C) No.3027 of 2017) Nirupama Sahoo (in W.P.(C) No.2035 of 2017) Ananta Kumar Mallick (in W.P.(C) No.2038 of 2017) Jayashree Nanda (in W.P.(C) No.3068 of 2017) Minati Thatai (in W.P.(C) No.3067 of 2017) Srikanta Pr. Panda (in W.P.(C) No.3049 of 2017) Dinabandhu Dash & Others (in W.P.(C) No.3038 of 2017) Jayanti Soren (in W.P.(C) No.3352 of 2017) Satyajit Behera (in W.P.(C) No.2353 of 2017) Binod Bhusan Dhal (in W.P.(C) No.2355 of 2017) Kulamani Malik (in W.P.(C) No.2320 of 2017) Jogesh Chandra Baral & Another (in W.P.(C) No.2322 of 2017) Barendra Ku. Das & Another (in W.P.(C) No.2323 of 2017) Prasant Ku. Das & Another (in W.P.(C) No.2309 of 2017) Reenabala Behera & Others (in W.P.(C) No.2311 of 2017) Padmaja Dash (in W.P.(C) No.2305 of 2017) Aditya Ku. Panda (in W.P.(C) No.2306 of 2017) Namita Behera (in W.P.(C) No.2307 of 2017) Adikanda Malik & Others (in W.P.(C) No.2332 of 2017) Pratyush Ku. Bhoi & Others (in W.P.(C) No.2308 of 2017) Santosh Ku. Tripathy (in W.P.(C) No.2301 of 2017) Ajaya Ku. Dey & Others (in W.P.(C) No.2302 of 2017) Sarat Kumar Nath (in W.P.(C) No.2400 of 2017) Snehalata Samal (in W.P.(C) No.2316 of 2017) Pravata Behera (in W.P.(C) No.2319 of 2017) Sangita Biswal (in W.P.(C) No.2304 of 2017) Madhurika Jena (in W.P.(C) No.1842 of 2017) Sarangdhar Jena (in W.P.(C) No.1866 of 2017) 13 Mahendra Naik & Another (in W.P.(C) No.1803 of 2017) Arati Sethy (in W.P.(C) No.1892 of 2017) Biswamitra Bishi & Others (in W.P.(C) No.1805 of 2017) Mina Malik (in W.P.(C) No.1893 of 2017) Baijayanti Lenka (in W.P.(C) No.1841 of 2017) Nikunja Bihari Mallick (in W.P.(C) No.1877 of 2017) Gopala Chandra Behera (in W.P.(C) No.2340 of 2017) Mamatarani Mallick (in W.P.(C) No.2342 of 2017) Parsuram Jena & Others (in W.P.(C) No.2344 of 2017) Saroj Kumar Deep & Others (in W.P.(C) No.2351 of 2017) Sukumar Patra & Others (in W.P.(C) No.3381 of 2017) Mahanta Kumar Sahu and Another (in W.P.(C) No.2367 of 2017) Rekharani Baral & Others (in W.P.(C) No.2357 of 2017) Pritish Kumar Sohala (in W.P.(C) No.2324 of 2017) Priyadarsini Mallick & Others (in W.P.(C) No.2330 of 2017) Suravi Nayak & Others (in W.P.(C) No.2362 of 2017) Alok Ranjan Senapati (in W.P.(C) No.2363 of 2017) Kabita Naik (in W.P.(C) No.2336 of 2017) Chitta Ranjan Mallik (in W.P.(C) No.2337 of 2017) Panchanan Dalei (in W.P.(C) No.1844 of 2017) Radhakrushna Nath (in W.P.(C) No.1845 of 2017) Akshaya Behera (in W.P.(C) No.1847 of 2017) Ujjwal Kumar Roul (in W.P.(C) No.1852 of 2017) Keshab Chandra Sahoo (in W.P.(C) No.1865 of 2017) Prahalad Das & Others (in W.P.(C) No.1871 of 2017) Puspalata Mallick (in W.P.(C) No.1874 of 2017) Tilottama Behera & Others (in W.P.(C) No.1875 of 2017) Narayan Chandra Jena (in W.P.(C) No.1879 of 2017) Itishree Dash (in W.P.(C) No.1881 of 2017) Abhaya Kumar Jena (in W.P.(C) No.1882 of 2017) 14 Benudhar Jena (in W.P.(C) No.1886 of 2017) Kabita Malik (in W.P.(C) No.1887 of 2017) Abhimanyu Mallik & Others (in W.P.(C) No.1890 of 2017) Dhruba Charan Malik (in W.P.(C) No.1891 of 2017) Prarnaya Kumar Jena (in W.P.(C) No.1894 of 2017) Padmini Mallick (in W.P.(C) No.1895 of 2017) Subhashree Malik (in W.P.(C) No.1896 of 2017) Dhiren Kumar Mallick (in W.P.(C) No.1898 of 2017) Gyanaranjan Mohanty (in W.P.(C) No.1899 of 2017) Ranjan Kumar Suchen & Others (in W.P.(C) No.5321 of 2017) Sanjay Kumar Baral (in W.P.(C) No.1824 of 2017) Ashis Kumar Mallick (in W.P.(C) No.1900 of 2017) Shantilata Ghosh (in W.P.(C) No.13553 of 2017) Daitary Swain & Others (in W.P.(C) No.4975 of 2017) Ramesh Seth (in W.P.(C) No.3135 of 2017) Krushna Chandra Meher (in W.P.(C) No.4251 of 2017) Hrudaya Ranjan Sahoo (in W.P.(C) No.2446 of 2017) Anupama Jena (in W.P.(C) No.1710 of 2017) Saroj Kumar Sahoo & Others (in W.P.(C) No.2361 of 2017) Laxmikanta Dash & Others (in W.P.(C) No.5297 of 2017) Sunita Kumari Jena (in W.P.(C) No.5840 of 2017) Trisangram Keshari Swain (in W.P.(C) No.5838 of 2017) Puspalata Jena (in W.P.(C) No.2435 of 2017) Archana Sahu & Another (in W.P.(C) No.12373 of 2017) Santan Kumar Bag & Another (in W.P.(C) No.2126 of 2017) Mitanjali Mallick (in W.P.(C) No.20428 of 2017) Narahari Rout (in W.P.(C) No.20431 of 2017) ...... Petitioners - Versus- 15 State of Odisha and Others (in all the writ petitions) ...... Opposite Parties Counsel for Petitioners :M/s. Budhadev Routray, S. Das, B. Singh, R. P. Dalai, K. Mohanty, S. Jena, S. K. Samal, S. P. Nath, S. D. Routray, Mr. J. Pattnaik, Mr. B. Routray, Mr. J. K. Rath, Mr. Sachin Kumar Sahoo (in W.P.(C) Nos.525, 551, 549, 547, 548, 3117, 2568, 2570, 5329, 5327, 1365, 1362, 2064, 2086, 2443, 2460, 2483, 1216, 2632, 2631, 3899, 3037, 3036, 3068, 3038, 2357, 2324, 1852 of 2017) M/s. B. K. Mohanty, R. Mohanty, P. K. Singh, P. Sahu, G. N. Sahu (in W.P.(C) Nos.1685, 724, 1535, 1342, 1805, 4251 of 2017) M/s. Dillip Kumar Mohapatra, A. Sahoo, N. Nayak, A. Sahoo, N. Nayak, B. B. Swain, S. Samal, S. Samal (in W.P.(C) Nos.1679, 1091, 1549, 2622, 2405, 1990, 1989, 1987, 1986, 2431, 2465, 2683, 2319 of 2017) M/s. Banshidhar Satapathy, B. N. Parida, K. K. Panda (in W.P.(C) Nos.1668, 2809, 4358, 2894, 2800 of 2017) M/s. J. K. Khuntia, H. K. Rout, H. S. Deo (in W.P.(C) Nos.1639, 1086, 2300, 4379, 1588, 2299, 2758, 2436, 3049, 1871, 1875, 20428 and 20431 of 2017) M/s. Animesh Mohanty, S. Rout (in W.P.(C) Nos.1492, 2242, 996, 2717, 1000, 2935 of 2017) M/s. Dillip Ray, S. Das, K. B. Mishra, S. P. Mishra (in W.P.(C) Nos.1491, 2215, 2287, 2197, 2196, 2418, 2433, 2078, 2077, 2076, 2075, 1940, 1915, 1913, 1912, 1911, 1907, 1906, 1904, 1948, 1947, 1944, 1903, 1892, 1893, 1877, 2362,1874, 1879, 1882, 1886, 1887, 1890, 1891, 1894, 1895, 1896, 1898, 1900 of 2017) M/s. K.K. Swain, P. N. Mohanty, B. Jena, S. C. D. Dash, K. Swain, J. R. Khuntia, P. K. Mohapatra (in W.P.(C) Nos.1443, 1441, 2205, 2226, 2521, 2603, 16 2468, 1938, 1936, 1935, 1982, 2938, 2940, 2941, 2942, 2944, 3202, 2309, 5297 of 2017) M/s. Manoja Kumar Khuntia, G. R. Sethi, J. K. Digal, B. K. Pattnaik (in W.P.(C) Nos.1419, 703, 2202, 2355 of 2017) M/s. J. K. Lenka, P. K. Behera (in W.P.(C) No.1406 of 2017) M/s. Prafulla Kumar Mohapatra, S. C. Sahoo (in W.P.(C) Nos.1149, 2245, 2246, 3606, 3236, 1425 of 2017) M/s. K. K. Rout, T. K. Nayak, J. Naik, J. Nayak, M. Panda, S. K. Rout (in W.P.(C) Nos.1105, 3454, 2772, 2199, 2189 of 2017) M/s. Sohan Mishra, S. Padhy (in W.P.(C) No.1013 of 2017) M/s. Chitta Ranjan Pattanaik, S. Ch. Padhi, M. Sethi (in W.P.(C) Nos.589, 588 of 2017) M/s. Susanta Kumar Tripathy, M. K. Dash, B. P. Chalan, B. D. Chalan (in W.P.(C) Nos.3171, 3170, 2745, 2741, 2742, 2743, 1824 of 2017) Mr. Sangram Jena (in W.P.(C) No.3195 of 2017) M/s. Rabindra Kumar Patnaik, B. Jalli, P. K. Behera, T. K. Dwibedy, B. B. Acharya, U. Patnaik (in W.P.(C) Nos.3188, 2282, 1079, 5321 of 2017) M/s. Saumya Ranjan Pradhan, S. K. Baral, L. R. Das, S. K. Mahapatra, D. Mishra (in W.P.(C) Nos.3184, 2504, 2523, 3519, 3517, 3518, 3513, 2620, 2429, 2901, 2922, 2316 of 2017) M/s. Laxmi Narayan Patel, B. K. Ragada, S. Mohanty, N. K. Das, U. C. Dora, H. K. Muduli (in W.P.(C) No.1150 of 2017) M/s. Dillip Kumar Sahu, A. Pradhan, B. Pradhan, K. Ghadei, S. Mohapatra (in W.P.(C) Nos.2244, 2308, 2330 of 2017) 17 Mr. Pradeep Kumar Sahoo (in W.P.(C) No.8800 of 2016) M/s. Guru Prasad Pattnaik, R. R. Ray, P. K. Samal, P. Behera (in W.P.(C) No.2569 of 2017) M/s. Pranab Kumar Samantray, N. K. Pradhan, S. Mohanty (in W.P.(C) Nos.2232, 3250, 2060 of 2017) M/s. Ramdas Achary, T. Barik, S. R. Ojha, S. Hidayatullah, A. Pati, N. Barik (in W.P.(C) Nos.2255, 15564 of 2017) M/s. S. S. Das, B. Singh, R. P. Dalai, K. Mohanty, S. Jena, S. K. Samal, S. P. Nath, A. Sahoo, P. K. Sahoo (in W.P.(C) Nos.2247, 2068, 2302 of 2017) M/s. Dr. J. K. Lenka, C. R. Mishra, M. M. Das, D. P. Patra, S. G. Parija, P. K. Behera, A. Parida (in W.P.(C) Nos.2228, 3014 of 2017) M/s. Mihir Kumar Dash, D. Mohanty (in W.P.(C) Nos.2218, 2527, 2771, 2440, 1963 of 2017) M/s. Ashok Kumar Apat, L. Ray, S. K. Mohanta (in W.P.(C) Nos.2234, 3033 of 2017) M/s. Biswabihari Mohanty, J. N. Panda, M. Harichandan, B. Tripathy, B. Samantaray (in W.P.(C) No.2203 of 2017) M/s. Asit Kumar Jena, P. K. Maharaj, S. K. Panda, K. Panda (in W.P.(C) Nos.2220, 2580, 2432 of 2017) M/s. Gyanendra Chandra Swain (in W.P.(C) Nos.2870, 2266 of 2017) M/s. Rohit Ranjan Ray, P. K. Samal, N. Sen, T. N. Das, A. H. Khadanga (in W.P.(C) Nos.2865, 1318 of 2017) Mr. Ashok Kumar Das (in W.P.(C) Nos.2855, 2713, 1901, 1842, 1841, 1899 of 2017) 18 M/s. Kali Prasanna Mishra, S. Mohapatra, T. P. Tripathy, L. P. Dwivedy, M. Das (in W.P.(C) Nos.2846, 3135, 2361 of 2017) M/s. G. N. Mishra, A. K. Mishra, J. K. Pradhan, S. C. Sahoo (in W.P.(C) Nos.2900, 1695 of 2017) M/s. Supriya Patra, N. Agarwal (in W.P.(C) Nos.5422, 5423 of 2017) M/s. A. B. Parida, B. B. Biswal (in W.P.(C) Nos.4384, 5577 of 2017) M/s. M. R. Mahapatra, S. C. Das (in W.P.(C) No.2897 of 2017) M/s. Ramesh Kumar Sahu, M. Das, P. K. Satpathy, S. Sahoo (in W.P.(C) No.2893 of 2017) Mr. Pitambar Jena (in W.P.(C) No.2876 of 2017) M/s. Manasi Mohapatra, P. K. Mohanty, B. Rath, S. Mohanty (in W.P.(C) Nos.2871, 3542 of 2017) M/s. Saroj Kumar Jee (in W.P.(C) No.3418 of 2017) Mr. Subas Chandra Das (in W.P.(C) Nos.3405, 2594, 3629, 2158 of 2017) M/s. L. K. Mohanty, B. K. Jena (in W.P.(C) Nos.1536, 1973, 1803 of 2017) M/s. Janaki Kanta Mahapatra, P. K. Satpathy, D. P. Mishra, D. K. Naik (in W.P.(C) No.2582 of 2017) M/s. Ranjit Samal, S. Samal, P. Samal, S. Samal (in W.P.(C) Nos.2529, 2703, 2119, 2493, 2947, 2400 of 2017) M/s. Ganeswar Behera, A. K. Jena, R. C. Iyer (in W.P.(C) No.2506 of 2017) M/s. Nirmal Kumar Das, N. L. Behera, N. Das, M. K. Maharana (in W.P.(C) Nos.2502, 2499, 2497, 2633 of 2017) M/s. Tukuna Kumar Mishra, D. Dash (in W.P.(C) No.2550 of 2017) 19 M/s. P. P. K. Pandit, A. Behera (in W.P.(C) No.2577 of 2017) M/s. Santosh Kumar Nanda, M. Panda, A. Mohapatra, R. Mallick (in W.P.(C) No.2578 of 2017) Mr. J. K. Mishra - 2 (in W.P.(C) Nos.2262, 2151, 2442, 2671 of 2017) M/s. Tribhuban Sethi, A. C. Behera, B. C. Panda, S. K. Parida, K. K. Mahanta, B. K. Barik, R. K. Dash, K. K. Sahoo, C. R. Mohanty (in W.P.(C) Nos.2279, 2626, 3599, 2625, 2172, 1790, 2112, 2628, 2928, 2171 of 2017) M/s. Suvendu Kumar Parida, I. Palbabu, P. K. Sahu (in W.P.(C) Nos.2294, 2299, 2293 of 2017) M/s. Bhakta Ranjan Barick, S. K. Parida, P. K. Sahu (in W.P.(C) Nos.2290, 3715, 3714, 1980, 2960, 2962, 2963, 2964 of 2017) M/s. B. N. Panda - 2, P. K. Sejpada (in W.P.(C) No.2240 of 2017) M/s. Md. G. Madani, S. K. Jena (in W.P.(C) Nos.1771, 1943 of 2017) M/s. Himanshu Sekhar Panda, M. Pagal, S. S. P. Acharya (in W.P.(C) No.3762 of 2017) M/s. Usha Rani Padhi, C. R. Sahu (in W.P.(C) Nos.3645, 3292 of 2017) M/s. Purusottam Chuli, P. Nath (in W.P.(C) No.3691 of 2017) Mr. Jugal Kishore Panda (in W.P.(C) Nos.2786, 2605, 2494 of 2017) M/s. Rajib Lochan Pattnaik, S. Sahoo, P. K. Das (in W.P.(C) Nos.2755, 2461 of 2017) M/s. Sidheswar Mallik, P. C. Das, M. Mallik (in W.P.(C) Nos.2722, 2438, 2984 of 2017) M/s. A. Pattanaik, J. Behera (in W.P.(C) No.857 of 2017) 20 M/s. A. U. Senapati, P. Panda, S. Palei (in W.P.(C) Nos.2607, 2611, 2604 of 2017) M/s. Bhojaraj Seth, N. Maharana (in W.P.(C) Nos.2162, 3352 of 2017) Mr. Rama Prasad Dalai, Mr. Jagannath Pattnaik (in W.P.(C) Nos.1367, 2193 of 2017) M/s. Sidheswar Mohanty, S. K. Routray, L. Mohapatra, S. Pattnaik, P. K. Sahoo, P. Nayak (in W.P.(C) No.1634 of 2017) M/s. Bijay Kumar Rout, Bijay Kumar Rout - 1, N. L. Behera, N. K. Das, M. K. Moharana, N. Das (in W.P.(C) Nos.2315, 2403, 1211 of 2017) Mr. Nilamadhab Praharaj (in W.P.(C) Nos.2406, 2408, 2407 of 2017) M/s. Smruti Ranjan Mohapatra, B. R. Mohanty, M. Subudhi, S. Harichandan, M. K. Swain, I. Palbabu, L. Pattnaik, S. Mohanty (in W.P.(C) No.2481 of 2017) M/s. Srikanta Mahunta, A. K. Nayak, U. R. Jena, B. K. Behera, S. K. Rout (in W.P.(C) Nos.2466, 2427, 2035, 2322 of 2017) M/s. M. K. Sahoo, S. K. Rath (in W.P.(C) Nos.2453, 2674, 2311, 12373 of 2017) M/s. S. N. Biswal, D. N. Misra, N. Moharana (in W.P.(C) No.2401 of 2017) M/s. Prasanta Kumar Jena, D. P. Mohapatra, N. Panda (in W.P.(C) Nos.2441, 2648 of 2017) Mr. Sidhartha Swain, B. K. Barik (in W.P.(C) Nos.2028, 2049, 2033, 2032, 1950 of 2017) Mr. Deepak Kumar Mohapatra (in W.P.(C) No.3722 of 2017) M/s. Rabinarayan Behera, G. N. Rout, S. N. Sahoo, H. N. Palai (in W.P.(C) No.2096 of 2017) 21 M/s. Dinesh Kumar Panda, G. Singha, A. Mishra (in W.P.(C) No.2094 of 2017) M/s. Sanjay Kumar Das - 2, A. K. Jena (in W.P.(C) Nos.2073, 2072 of 2017) Mr. Sarbeswar Prusty (in W.P.(C) Nos.2428, 2981, 2306 of 2017) M/s. Debasish Mahakud, S. Dash, P. K. Mohanty (in W.P.(C) No.2430 of 2017) M/s. D. N. Mohapatra, P. K. Nayak, A. Das (in W.P.(C) Nos.2445, 2435 of 2017) M/s. Surendra Kumar Gartia, B. S. Das (in W.P.(C) No.2456 of 2017) M/s. G. K. Nanda, D. N. Mishra (in W.P.(C) No.2470 of 2017 M/s. Amitabh Tripathy, P. K. Das, D. Sahoo, B. Sahoo (in W.P.(C) No.2475 of 2017) M/s. B. S. Rayaguru, D. Mahakud, G. C. Sahu, P. P. Mulia (in W.P.(C) No.4659 of 2017) Mr. Kabi Ranjan Mohanty (in W.P.(C) No.2678 of 2017) M/s. Basudev Barik, P. Bhagat (in W.P.(C) No.2672 of 2017) M/s. Pradeep Kumar Das, S. K. Mishra, D. Sahoo, A. K. Patra (in W.P.(C) Nos.1917, 2659 of 2017) M/s. Lalatendu Jena, A. K. Parida, J. K. Lenka, G. C. Panda (in W.P.(C) No.1910 of 2017) M/s. Hemanta Kumar Ratsingh, B. B. Dash (in W.P.(C) Nos.1909, 1881 of 2017) M/s. S. K. Sahu, Jaganath Pattnaik (in W.P.(C) No.1218 of 2017) M/s. Sachia Kumar Sahu (in W.P.(C) No.1217 of 2017) 22 M/s. Shashanka Shekhar Patra, G. N. Padhi, B. K. Sahoo, S. K. Mishra, S. K. Patra, K. L. Sharma (in W.P.(C) No.2698 of 2017) M/s. Satyaranjan Mohapatra, K. K. Jena, S. P. Swain (in W.P.(C) Nos.1931, 2949, 2951, 2953, 2954, 2957, 2038, 5840, 5838 of 2017) M/s. K. K. Mohanta, A. Ch. Behera (in W.P.(C) Nos.1953, 1954, 1956, 1958, 1844, 1845, 1847 of 2017) M/s. Prabhu Prasanna Behera, K. Khuntia, R. Pradhan, D. P. Dash (in W.P.(C) Nos.2920, 2320 of 2017) M/s. Soumya Ranjan Das, A. K. Parida, S. R. Pati (in W.P.(C) No.2931 of 2017) M/s. Niranjan Lenka, H. K. Mahanta, L. Sahu, R. Lenka, N. Lenka (in W.P.(C) Nos.2986, 2987 of 2017) Mr. P. C. Acharya (in W.P.(C) No.3283 of 2017) M/s. Ananta Narayan Pattanayak, P. K. Mohanty, S. Mohanty (in W.P.(C) No.3023 of 2017) Mr. Bijay Kumar Parida (in W.P.(C) No.3006 of 2017) M/s. Dayanidhi Mohanty, T. N. Choudhury, R. C. Ojha, A. K. Jena, N. Swain (in W.P.(C) No.3935 of 2017) M/s. Abhaya Kumar Behera, A. Mallick (in W.P.(C) No.3027 of 2017) M/s. Soubhagya Kumar Dash, S. K. Tripathy (in W.P.(C) No.3067 of 2017) M/s. Haraprasad Rath, A. K. Behera, R. P. Rath (in W.P.(C) No.2353 of 2017) M/s. Girija Sankar Nayak, G. Muduli, P. Samal, G. Achari, P. C. Das, A. Achari, G. S. Muduli (in W.P.(C) Nos.2323, 3381 of 2017) 23 M/s. Dr. Chittaranjan Mishra, G. Mishra, H. K. Mallik, D. Das, S. K. Baraik (in W.P.(C) No.2305 of 2017) M/s. Rakesh Kumar Mallick, S. Panigrahi (in W.P.(C) No.2307 of 2017) M/s. Manoj Ojha, P. K. Mohanty (in W.P.(C) No.2332 of 2017) M/s. Subash Chandra Acharya, K. P. Behera (in W.P.(C) No.2301 of 2017) M/s. Sumanta Kumar Nayak, S. K. Sahu, A. B. Parida (in W.P.(C) No.2304 of 2017) M/s. Kunja Sundar Das, S. K. Nayak (in W.P.(C) Nos.1866, 1865 of 2017) M/s. Samir Kumar Mishra, J. Pradhan, S. Rout, S. S. Mohanty (in W.P.(C) Nos.2340, 2342, 2344 of 2017) Mr. Lalit Sahu (in W.P.(C) No.2351 of 2017) M/s. Sukanta Kumar Dalai, P. Swain (in W.P.(C) No.2367 of 2017) M/s. Biswajit Nayak, B. R. Sahu, S. Samal (in W.P.(C) Nos.2363, 2446 of 2017) Mr. K. K. Mohanta (in W.P.(C) No.2336 of 2017) Mr. B. C. Ghadei (in W.P.(C) No.2337 of 2017) M/s. Amiya Kumar Mohanty - A, R. C. Pradhan (in W.P.(C) No.13553 of 2017) M/s. Niranjan Singh, S. C. D. D. Dash (in W.P.(C) No.4975 of 2017) M/s. Samir Kumar Das - 2, H. K. Ratsingh, M. K. Panda, M. Subudhi, M. K. Padhi (in W.P.(C) No.1710 of 2017) M/s. Sushanta Kumar Mishra, P. K. Panda (in W.P.(C) No.2126 of 2017) 24 M/s. Shashi Bhusan Jena, S. Behera, A. Mishra, C. K. Sahoo. Counsel for Opp.Parties :Mr. S. P. Misra, Advocate General, Mr. Sisir Das, Sr. Standing Counsel, Mr. Biswajit Mohanty, Standing Counsel, Mr. Budhiman Rout, Standing Counsel, Mr. S. K. Samal, Standing Counsel (in all the cases) M/s. Amiya Kumar Pradhan, R. K. Behera, R. C. Pradhan, P. N. Mohanty (in W.P.(C) No.2568 of 2017) Mr. Ashok Kumar Das (in W.P.(C) No.2483 of 2017) PRESENT: THE HONOURABLE SHRI JUSTICE SUJIT NARAYAN PRASAD --------------------------------------------------------------------------------------- Date of hearing : 17.10.2017; Date of judgment: 23.10.2017 --------------------------------------------------------------------------------------- S. N. Prasad, J.
In these writ petitions the petitioners have invoked the jurisdiction of this court conferred under Article 226 and 227 of the Constitution of India questioning some of the conditions of resolution dtd.26.12.2016.
These cases contain different grievance of the petitioners, as such, for convenience, the cases have been grouped category-wise depending upon the nature of prayers made in the writ petitions.
CATEGORY-I
2. In these batch of writ petitions clause 7 of the resolution dated 26.12.2016 as contained in Annexure-11 whereby and where under the maximum age for consideration of candidature of candidates to be engaged as Sikhya 25 Sahayak has been restricted up to 32 years of age is under challenge. Further direction has been sought for to direct the State authorities to issue necessary corrigendum fixing the upper age limit up to 42 years.
3. In this batch of writ petitions the petitioners have raised the grievance on the basis of the fact that they are the candidates who are aspiring to be considered for their engagement as Sikhya Sahayaks.
Their contention is that in the State of Odisha there is no direct recruitment to the post of Asst. Primary Teacher, the Government has come out with a Recruitment Rule, known as Odisha Elementary Education (Method of Recruitment and Conditions of Service of Teachers and Officers) Rules, 1997 (hereinafter referred to as the Rules, 1997) which contains provision for recruitment of the teachers in the elementary education wherein the maximum age has been prescribed up to 32 years but the stipulation made therein regarding the upper age limit has not been followed for making selection of the Sikhya Sahayaks since the Government, after introduction of the Sarva Sikshya Aviyan, has issued various resolutions from 3.10.2000 wherein upper age limit of 32 years has been extended up to 42 years and the candidature of the candidates falling in between the age group of 32 to 42 years have been considered.
The Right to Education Act, 2009, known as Right of Children to Free and Compulsory Education Act, 2009 (herein after referred to as the RTE Act, 2009) has come into effect for the purpose of maintaining quality in the education system across the country amongst the children in between the age group of 6 to 14 years and to maintain the same provision has been made under Section 23 of 26 the said Act to constitute an apex body to lay down the minimum educational qualification, the apex body has been constituted by virtue of notification issued by the Central Government in the year 2010, amended in the year 2011, known as National Council for Teacher Education (in short NCTE). The NCTE, vide its notifications, have laid down the minimum educational qualification but no maximum age prescription has been laid down therein.
After coming into effect the RTE Act, 2009 and the decision to constitute the NCTE, the Government has come out with a notification on 10.01.2011 wherein the maximum age has been kept up to 42 years, as such, even after enactment of the RTE Act, 2009 the maximum age has been prescribed up to 42 years.
The Government has come out with a resolution on 6.8.2013 and for the first time the maximum age has been restricted up to 35 years, that was challenged before this court in series of writ petitions, one of it was W.P.(C) No.18542 of 2014 wherein the High Power Committee of the State Government has given relaxation to such candidates who were up to the age of 42 years to consider their candidature, in the light of the recommendation / decision of the High Power Committee, this court disposed of the writ petition vide order dtd.2.3.2015 whereby relaxation in the upper age limit up to 42 years for general candidates for engagement as Sikhya Sahayak have been accorded.
4. The contention of the petitioners is that right from 3.10.2000 till 6.8.2013 the candidates who were in between the age group of 32 years to 42 years have been allowed to participate for consideration of their candidature but 27 without considering the grievance raised by the candidates falling under the age group of 33 to 42 years the Government has come out with a resolution bearing No.25605 dtd.26.12.2016 whereby and where under the maximum age has been restricted up to the age of 32 years and in the light of the said age prescription the decision has been taken to come out with an advertisement to fill up the vacancy of the Sikhya Sahayaks.
Their further grievance is that by doing this, the State has acted in arbitrary and illegal manner. It is their further contention that when there is no maximum age prescribed for consideration of engagement as Sikhya Sahayak, restricting it up to the age of 32 years, without following the precedence of last 13 years, cannot be said to be justified action on the part of the State.
It has also been submitted that the action of the State is further arbitrary and illegal because on information obtained under Right to Information Act, 7062 vacancies which are to be filled up, are of the previous years where the maximum age for consideration of candidature of one or the other candidate was 42 years, as such at least consideration for filling up 7062 vacancies should have been done on the basis of maximum age prescription up to 42 years.
Further arbitrariness has been shown by arguing that under the RTE Act, 2009 read with NCTE notification, the Teacher Eligibility Test has been held to be mandatory wherein no maximum age has been prescribed for getting the Teacher Eligibility Test, as such putting the maximum age up to 32 years will also be said to be unjustified action on the part of the State.
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The contention has further been made that under the provision of RTE Act, 2009 there is a provision U/s.38(4) which stipulates that every enactment or the decision to be taken by the State in the field is to be placed before the Legislature, but these resolutions have not been placed before the legislature, as such the resolution itself is in violation of the provision of Section 38(4) of the RTE Act, 2009.
The learned Sr. Counsel appearing for the petitioners, on the strength of these grounds, have assailed the decision of the state and prayed to allow such category of candidates who are in between the age group of 32 to 42 years to participate in the selection process of the year 2016-17.
5. Per contra learned Advocate General arguing for the State has rebutted the argument, contention and the plea taken by the petitioners by arguing that the decision of the Government to fix upper age limit up to 32 years cannot be said to be unjustified, arbitrary, irrational, unreasonable and suffers from malice.
It has been contended that in the State of Odisha a rule has been formulated in the year 1989 known as Odisha Civil Service (Fixation of Upper Age Limit) Rules, 1989 (herein after referred to as the Rules, 1989) having been enacted in pursuance to the power conferred to the State under Article 309 of the Constitution of India whereby the State Government has fixed the upper age limit up to 32 years for recruitment in civil services or civil posts in pensionable establishments under the State Government.
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The teachers were being appointed on the basis of maximum age prescribed up to 32 years before the specific rule has been framed by the State Government in the year 1997 since the State of Odisha has formulated a rule known as Odisha Elementary Education (Method of Recruitment and Conditions of Service of Teachers and Officers) Rules, 1997 (herein after referred to as the Rules, 1997) which has been enacted upon in exercise of power conferred under Article 309 of the Constitution of India wherein apart from other eligibility conditions the condition for consideration of candidature of candidates up to the age of 32 years has been provided under the provision of Rule 7.
It has been contended that after 1997 the statutory provision contained for consideration of candidature in between the age of 18 to 32 years and even in course of operation of the provision of Rules, 1997 when the concept of Sarva Sikhya Aviyan, having been launched by the Central Government, has been adopted by the State of Odisha under which the main concern of Union as well as the State is to provide education to the children in between the age group of 6 to 14 years in order to universalize the education system across the country.
The State of Odisha has decided to appoint Swechha Sevi Sikhya Sahayak (in short SSS) by issuing a resolution in the name of the Governor of the State wherein the Government has taken decision to give relaxation in the maximum age by relaxing it for a period of ten years, i.e. to consider the candidature of such candidates up to the age of 42 years and the said decision was taken keeping the fact into consideration the predicament of such candidates who were waiting for their turn to be considered for engagement as teacher after getting certification on training or the bachelor in education degree. But due to 30 appointment having not been made of the post of teachers, they might have crossed the maximum age prescribed of the age of 32 years, hence decision was taken to give relaxation of 10 years by extending 32 years of age up to 42 years and the said procedure continued up to the year 2011.
In the meanwhile, in the year 2009, RTE Act, 2009 has come. The sole aim of the RTE Act, 2009 was to provide free and compulsory education to all children up to the age of 6 to 14 years, wherein the provision has been made under Section 23 to constitute an apex body to provide quality teaching to the students in between the age group of 6 to 14 and in the light of the said provision the NCTE notification has come on 25th October, 2011 and thereafter on 29th July 2011 laying down the minimum educational qualification to be possessed by one or the other candidate for consideration of their candidature to be appointed as teacher. The government even thereafter has come out with the resolution to consider the candidature up to the age of 42 years and it is for the first time on 6.8.2013 the maximum age has been restricted up to 35 years.
This decision of the State authorities have been challenged before this court and this court has asked the State authorities to consider the candidature of such candidates who are falling in between the age group of 35 years to 42 years and in view thereof the High Power Committee was constituted and recommended, considering the vacancy position, to grant relaxation up to 42 years of age of candidates, this court, accepting the recommendation, has disposed of the writ petition directing the state authorities to consider the candidature of such candidates who are in between the age group of 35 to 42 31 years but this will not be treated as precedence and no future advantage can be sought on the basis of this order.
6. Learned Advocate General, on the basis of the facts narrated herein above, has submitted that it is the decision of the government which was taken on 3.10.2000 depending upon the situation, need and requirement prevailing during the relevant time to grant relaxation of such candidates who have crossed 32 years of age and the government by relaxing the maximum prescription of age of 32 years either from the Rules, 1997 or from the Rules, 1989 has granted relaxation by 10 years, but the relaxation given to such category of candidates for the period of a decade does not confer any right upon the candidates to claim relaxation as a matter of right.
He submits that relaxation cannot confer any legal vested right upon the candidate and it is settled that the writ court is not meant to get benefit on the basis of precedence rather the party is to show legal vested rights for issuance of writ under Article 226 and 227 of the Constitution of India.
He submits that there is no doubt about the fact that the Sikhya Sahayaks are not in absolute sense a teacher but their duty is of teacher and in all the resolutions the Government has taken decision to absorb them in the regular establishment after completing particular years of service, now six years as Asst. Primary teacher. The Sikhya Sahayaks are being appointed on contract basis subject to renewal of their contract year to year depending upon their performance in service and all the conditions since been stipulated in the resolution and in the light of the same the successful candidates before engagement needs to enter into 32 an agreement reflecting therein the terms and conditions and on its acceptance they are being engaged, as such the plea taken by the petitioners that since they are treated to be teacher on the basis of the educational qualification, they cannot be differentiated in this way, is not to be considered by this court.
He submits that in the State of Odisha 32 years of age is maximum for engagement in all public service posts, as such it would not be appropriate for the State to continue with the policy to extend the benefit of relaxation for indefinite period otherwise it will be discriminatory to such candidates who are aspiring to be engaged in other public offices.
It is not in dispute that the Sikhya Sahayaks are not teacher in true sense and merely on account of the fact that they are to be engaged on the basis of the minimum qualification prescribed under NCTE, they will be given relaxation of age but giving relaxation on this count would be unfair to other public servant who are aspiring to be engaged in other public offices. The reason for having minimum educational qualification as provided under NCTE notification is that there is no direct recruitment to the post of Asst. Primary Teacher and it is from amongst the Sikhya Sahayaks, on completion of particular years of satisfactory service, they are being absorbed as Asst. Primary Teacher, hence it is the mandatory requirement of having minimum educational qualification of such Sikhya Sahayaks other wise the provision of RTE Act, 2009 read wit NCTE notification would be meaning less.
So far as the contention to fill of 7062 vacancies basis upon the previous guideline containing the maximum age of 42 years, it has been submitted 33 on behalf of the State that there is no concept of any backlog vacancy rather the Sikhya Sahayaks are being engaged on year to year basis by preparing the select list and it is apparent from the condition laid down in the resolution itself that the select list is to be valid for a period of one year and the moment the validity of select list goes, the vacancy will come to the subsequent year.
So far as the contention that there is no maximum age prescribed for the Teacher Eligibility Test, as such the maximum age cannot be prescribed, but that argument is very astonishing and if that would be accepted then there should not be any maximum age what to say about 32 or 42 years.
So far as the contention regarding not placing the resolution before the Legislature as provided in pursuance to the provision made U/s.38(4) of the RTE Act, 2009, the same is not available to the petitioners considering the nature of prayer made by them. The learned Advocate General submits that the petitioners now cannot raise this point to show the resolution as nullity since the prayer made by them in the writ petitions are to grant relaxation in the light of the resolution and if it will be said to be nullity by virtue of not following the provision of Section 38(4) of the Act, 2009, the entire payer of the petitioners will be said to be misconceived. He has also submitted that there is no prayer to declare the resolution as nullity.
7. In response, learned Sr. Counsel appearing for the petitioners has submitted that writ court has got ample power to mould the prayer and it can be moulded but the said argument has also been rebutted by learned Advocate General by submitted that the principle of moulding the prayer only be applicable 34 if the prayer will be consistent with the pleading but here the prayer is different to that of the pleading hence this principle will not be applicable herein.
8. Heard the learned counsels for the parties and perused the documents available on record as also gone through the written notes of arguments filed by the parties.
This court, before appreciating the rival submission of the parties, has thought it proper to deal with the statutory provisions first.
In the State of Odisha the Education Code 1969 has been enacted upon to streamline the education system of the State. In streamlining the education system, a rule has been enacted upon, known as odisha Sub-ordinate Education (Method of Recruitment and Conditions of Service) Rules, 1993 (herein after referred to as the Rules, 1993) enshrined by virtue of the power conferred by proviso to Article 309 of the Constitution of India. The said rule has been meant to appoint the teachers and equivalent post of class-III of the State Civil Services in the offices subordinate to Director, Secondary Education, Orissa wherein under the provision of Rule 8(c) the condition of eligibility, so far as it relates to the minimum and maximum age, has been laid down by fixing it in between the age group of 20 to 32 years.
The State has come out with a Rule to appoint the elementary teachers in the year 1997 known as Odisha Elementary Education (Method of Recruitment and Conditions of Service of Teachers and Officers) Rules 1997 enshrined in pursuance to the powers conferred under proviso to Article 309 of the 35 Constitution of India wherein under the provision of Rule 7(b) the minimum and maximum age has been provided in between the age group of 18 years to 32 years.
The provision has been made to fix the upper age limit for civil services and that rule has come in the year 1989 by its enactment by virtue of the power conferred under the proviso to Article 309 of the Constitution of India, known as Odisha Civil Service (Fixation of Upper Age Limit) Rules, 1989 wherein for recruitment of civil services or civil posts in pensionable establishment under the State Government the upper age limit for entry in the government service has been fixed up to 32 years except where higher upper age limit has been prescribed for any such service or post.
It is thus evident from the enactment of the State Government under its statutory power that the upper age has been fixed up to 32 years. The Government on its wisdom, depending upon the situation and requirement, has taken decision at the time when the concept of Sarva Sikhya Aviyan (in short SSA) has been directed to be implemented across the country by the Central Government with the cooperation of the respective State Governments and mission was to provide education to the children in between the age group of 6 to 14 years.
To relax the upper age limit which has been fixed under its enactment as 32 years by relaxing it for the period of 10 years, i.e. making the 32 years as 42 years reason behind it, as has been disclosed by the learned Advocate General in course of argument that to achieve the purpose of SSA more force of the volunteers were required to awaken the guardians by convincing them to sent 36 their wards to the school so that they may get literacy and the rate of literacy in the country may go up. The govt. has taken decision to enhance the upper age limit up to 42 years for other reason also that was in the interest of the candidates who have failed to appear in the recruitment test because of no advertisement having been published by the State Govt. when they have passed out by getting the certification on training and the B.Ed., as such the upper age limit has been relaxed from the age of 32 years to 42 years and the candidates have participated in the selection process for engagement of SSS as it then was , i.e. in the year 2000, subsequently known as S.S. This process of giving relaxation of 10 years continued fairly for a period of more than 10 years. In between this period, Right to Education Act, 2009 has come to provide free education to all children in between the age group of 6 to 14 years. But simultaneously it has also been the concern of the legislature to provide quality education across the country so that a candidate residing in a state may be able to compete in the other states, i.e. in other words to achieve the aim of uniformity in the education system on the basis of the educational qualification as also merit-wise and to achieve that purpose, under the provision of section 23 of the RTE Act, 2009 it has been provided to constitute an apex body by the Central Government by virtue of notification whose main authority will be to prescribe minimum educational qualification applicable across the country.
It has been gathered from the RTE Act, 2009 or the NCTE notification that there was no provision to provide minimum or maximum age to test the eligibility of candidates on this count, which goes to suggest that this has been left open for the respective State Governments to take decision to relax the maximum 37 upper age limit or to make an enactment in this regard depending upon the situation and requirement existing in one or the other states of the country.
The State Govt., for the first time by virtue of resolution dtd.6.8.2013, has fixed the maximum age up to 35 years, meaning thereby the relaxation of 10 years has been reduced up to the year of 3 years, i.e. the maximum age has been relaxed from 32 as provided under the statute to 35 years.
This decision of the State Govt. fell for consideration before this court in series of writ petitions, one of them is W.P.(C) No.18542 of 2014. The state authorities have constituted a High Power Committee to judge the situation as to whether there is any requirement to grant relaxation to the candidates so far as it relates to relaxing the maximum age of 35 to 42 years. The High Power Committee has convened its meeting on 24.2.2015 and taken a decision to relax the age up to 42 years, but this was made as one time exercise and only based on court's order. It cannot be considered as precedent, for better appreciation the decision of the high power committee is being referred herein below:-
"A meeting was held under the Chairmanship of Commissioner-cum- Secretary to Govt., S & M E Deptt. in pursuance to the direction of hon'ble High Court, odisha in W.P.(C) No.18542 of 2014 for relaxation of upper age limit for engagement of Siksha Sahayak on 24.2.2015 at 12.00 Noon.
The following officers were present in the meeting:-
1. SPD, OPEPA
2. Addl. Secretary to Govt., S & M E Deptt.
3. Addl. Director (General), OPEPA
4. U.C. Mohanty, Consultant, S & M E Deptt.
5. Asst. Director (MIS), OPEPA Commissioner-cum-Secretary wanted to know the total number of candidates joined as Shiksha Sahayak till date. It was informed that as per the available date only 6449 candidates have joined as Shiksha Sahayaks till date as per the first preference offered by candidates.
On analysis of the eligibility conditions of the applicants, it is observed that after completion of all the preferences, the no. of posts advertised may not be filled up due to want of trained candidate and a large number of posts will remain vacant. On the other hand, it is ascertained that 513 no. of 38 candidates beyond the upper age limit but within 42 years of age have applied for SS. Out of these, about 150 no. of SS have taken shelter in Hon'ble high Court which is under sub judice.
Keeping the mandate of RTE in view and taking the vacancies into consideration, the committee decided that the Deptt. will have no objection if the candidates beyond the upper age limit, i.e. up to 42 years of 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 24.08.2013 of S & M E 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 time and only based on Court order. It cannot be considered as precedent.
However, as the case is pending the final order of the Hon'ble High Court will adhered to for relaxation of upper age limit, i.e., 42 years for Shiksha Sahayaks.
The meeting ended with vote of thanks of the Chair."
The decision of the high power committee has been placed before this court at the time of hearing of W.P.(C) No.18542 of 2014, a coordinate Bench of this court has disposed of the writ petition vide order dtd.2.3.2015 by passing the following order:-
"Heard learned counsel for the petitioners and Mr. B. P. Tripathy, learned Standing Counsel for the School & Mass Education Department and Mr. P.K. Mohanty, learned senior counsel for the OPEPA.
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.
Counter affidavit sworn to by Sri Manoj Kumar Mohanty, Joint Secretary to Government, has been filed on behalf of the Commissioner-cum- Secretary to Government, School & Mass Education Department, O.P.1 enclosing the copy of the proceeding of the meeting (Annexure-A/1) 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 vacancies into consideration, the committee decided that the Deptt. will have no objection if the candidates beyond the upper age limit, i.e. up to 42 years of 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 24.08.2013 of S & M E 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 time and only based on Court order. It cannot be considered as precedent.
In view of such decision of the High Power Committee, the writ petition is allowed.
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Since the Government in its resolution under Annexure-A/1 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 petitioners. 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. The Misc. Case also stands disposed of.
Issue urgent certified copy.
Let a free copy of this order be supplied to the learned counsel for the School & Mass Education Department."
It is thus evident from the decision of the state government taken by the high power committee and the order passed by this court that the petitioners have challenged the decision of the authority in reducing the relaxation period from 10 years to 3 years, however, the same has been granted but with the condition not to treat it as precedence and this court has also passed order to that effect not to treat the order passed in the said writ petition as precedence and no future benefit will be given for other cases, meaning thereby the state government has granted relaxation only for once not to treat as precedence and this court, without interfering with the decision of the Government, has directed the State Government to grant relaxation by way of last chance. This order has attained its finality.
It is the considered view of this court that the same issue has been raised before this court on earlier occasion challenging the same clause but this court has declined to interfere by not quashing it, rather granted relaxation by way of last chance.
9. The State government has come out with the resolution on 26.12.2016 wherein the upper age limit has been fixed up to 32 years followed with the direction to advertise to fulfill the post Sikhya Sahayaks on the basis of 40 the decision taken in the said resolution. These are under challenge in this batch of writ petitions.
It is evident from the discussion made herein above that the petitioners have challenged the said clause again.
Now the question is whether this court can extend the relief as has been sought for originally in the writ petitions, the answer of this court is in negative, reasons being that:-
(i) The same issue fell for consideration before this court in W.P.(C) No.18542 of 2014 for quashing of the decision of the State Government by which the maximum age has been reduced from 42 years to 35 years, but this court has not quashed the same, rather granted relaxation by way of one time exercise, i.e. by last chance, not to treat as precedence for future appointment and the said order has attained its finality, hence the same question, which has attained its finality, cannot be again agitated by other set of candidates.
(ii) That if it would be quashed by the court of law, then it will be highly discriminatory for the other candidates who are to be engaged in other civil services of the state government where, as per the provision of Rules, 1989, the maximum age prescribed is up to 32 years. In view thereof the original prayer made by the petitioners for quashing the prescription of upper age limit up to 42 years is not sustainable in the eye of law.
(iii) So far as the contention that the prescription of 32 years would not be applicable for candidates who are to be engaged as Sikhya Sahayaks since it 41 is not under the regular establishment of the government, but the same is also not sustainable in view of the fact that although the entry point is as Sikhya Sahayak but after rendering particular years of service, now 6 years, they are being absorbed as Asst. Primary Teacher and the moment they will be absorbed as Asst. Primary Teacher, they will come under direct control of the State Government.
In view thereof the provision of Rules, 1989 will be applicable but the government in its wisdom and consciousness has come out with a rule in the year 2014 known as Odisha Elementary Education (Method of Recruitment and Conditions of Service of Teachers and Officers) amendment Rules, 2014 whereby and where under the provision of Rule 7 from Rules, 1997 has been omitted and it has rightly been omitted because in the State of Odisha there is no direct entry to the post of Asst. Primary Teacher, rather it is by way of absorption from amongst the Sikhya Sahayaks after rendering particular year of service subject to satisfactory performance of their service.
(iv) The contention has been raised that the Sikhya Sahayaks cannot be treated as teacher since they are being engaged on contract basis, as such they be given the premium by relaxing the eligibility condition so far as it relates to the age, but that can also not be acceded to for the reason that merely on account of the fact that they are to be engaged on contract basis, the conditions cannot be relaxed, further they are being engaged on the basis of the conditions mentioned in the resolution time to time issued by the State Government and one or the other candidates, after going through and after knowing it fully, are participating in the process, hence they cannot be 42 allowed to raise this point, moreover, merely on account of the fact that they are only getting remuneration during the contract period of service, they cannot be given any special privilege of relaxation in the maximum age.
(v) So far as the remuneration part is concerned, the candidates who are to participate in the selection process, are knowing very well that what will they get and after accepting the terms and conditions of the resolution, they in order to be absorbed as Asst. Primary Teacher, are participating in the selection process, hence they cannot raise this point for relaxation in the eligibility condition.
(vi) The other reason is that relaxation in age or any eligibility condition or the reservation in post is the absolute prerogative of the state government and is to be granted by it depending upon the situation existing in the state and the same cannot be claimed as a matter of right. The relaxation has been granted depending upon the situation as it was required, but it does not mean that the same will continue indefinitely or for ever.
It is settled that it is the policy decision of the state government and the policy decision is least to be interfered by the High Court sitting under Article 226 of the constitution of India unless it is arbitrary or suffers from malice. In the judgment rendered by Hon'ble Apex Court in the case of K. Nagraj & Others Vrs. State of Andhra Pradesh & Another reported in (1985) 1 SCC 523 wherein the issue was regarding reduction of the age of retirement from 58 to 55 years. The Hon'ble Apex Court has been pleased to hold that the same was taken by virtue of policy decision in order to provide 43 employment opportunity to the younger sections of the society and the need to open up promotional opportunities to employees at the lower level early in their career and since it is based upon reasonable consideration, it was declined to be interfered with.
It has been laid down therein that if the age of retirement is fixed at unreasonably low level so as to make it arbitrary and irrational, the court's interference would be called for, though not for fixing the age of retirement but for mandating a closer consideration of the matter.
In the case of State of Jharkhand & Others Vrs. Ashok Kumar Dangi & Others reported in (2011) 13 SCC 383 Hon'ble Apex Court has been pleased to hold at paragraph 17 and 18 that it is well settled that the State Government must have liberty and freedom in framing policy. Further, it also cannot be denied that the courts are ill-equipped to deal with competing claims and conflicting interests. Often, the courts do not have the satisfactory and effective means to decide which alternative, out of the many competing ones, is the best in the circumstances of the case. One may contend that providing primary education to the children is essential for the development of the country. Whereas others argue that physical training of the children in the primary schools is must as that would make the nation healthy. As in the present case, the candidates trained in teaching claim that the posts of primary school teachers be filled by them and physical trained candidates be considered for posts of physical trained teachers only as they, in the absence of any training in education, are not equipped to teach in primary schools, whereas physical trained teachers contend that they should 44 be considered for appointment against both the posts. These competing claims, in our opinion, need to be addressed by the policy-makers. Further, we do not have the statistics as regards to the number of primary schools, the resources which the government can spend for providing physical trained teachers and their need. In such a situation, any direction in matters of policy is uncalled for.
In the case of Census Commissioner & Others Vrs. R. Krishnamurthy reported in (2015) 2 SCC 796 their Lordships of Hon'ble Apex Court have been pleased to hold at paragraph 25 that ".......But the courts are not to plunge into policy-making by adding something to the policy by way of issuing a writ of mandamus. There the judicial restraint is called for remembering what we have stated in the beginning. The courts are required to understand the policy decisions framed by the executive. If a policy decision or a notification is arbitrary, it may invite the frown of Article 14 of the Constitution. But when the notification was not under assail and the same is in consonance with the Act, it is really unfathomable how the High Court could issue directions as to the manner in which a census would be carried out by adding certain aspects. It is, in fact, issuance of a direction for framing a policy in a specific manner."
In the case of Delhi Subordinate Services Selection Board Vrs. Praveen Kumar reported in 2016 SCC Online SC 1549 it has been held that it is the employer's prerogative to decide the age limit and academic suitability of candidates which they wish to employ and so long as the same 45 are not contradictory to the academic eligibility as prescribed by the NCTE Act.
In the case of Chandigarh Administration Through the Director Public Instructions (Colleges), Chandigarh Vrs. Usha Kheterpal Waie and Others reported in (2011) 9 SCC 645 wherein Hon'ble Apex Court has been pleased to hold at paragraphs 22 and 23 as follows:-
"22. It is now well settled that it is for the rule-making authority or the appointing authority to prescribe the mode of selection and minimum qualification for any recruitment. Courts and tribunals can neither prescribe the qualifications nor entrench upon the power of the concerned authority so long as the qualifications prescribed by the employer is reasonably relevant and has a rational nexus with the functions and duties attached to the post and are not violative of any provision of Constitution, statute and Rules. [See J. Rangaswamy vs. Government of Andhra Pradesh - 1990 (1) SCC 288 and P.U. Joshi vs. Accountant General - 2003 (2) SCC 632]. In the absence of any rules, under Article 309 or Statute, the appellant had the power to appoint under its general power of administration and prescribe such eligibility criteria as it is considered to be necessary and reasonable. Therefore, it cannot be said that the prescription of Ph.D. is unreasonable.
23. The Tribunal and the High Court have held that in the years 1989 and 1991, the Tribunal had accepted the earlier administrative instructions dated 20.8.1987 which required the UT cadre employees to be considered for the post has to be followed. The fact that at that time Ph.D. degree was not insisted upon, does not mean that for all times to come, Ph.D. degree could not be insisted. Ph.D. degree was made a qualification because UGC guidelines required it for direct recruitment post and the UPSC approved the same. Therefore, merely because on some earlier occasions, the posts of Principal were filled by UT cadre lecturers without Ph.D. degree, it cannot be argued that the Ph.D. degree cannot be prescribed subsequently."
So far as interference by way of exercise of power of judicial review in case of arbitrariness and malice, according to the considered view of this court, no case of malice and arbitrariness has been made out by the candidates, merely on account of the fact that the privilege has been given by relaxing the maximum age to the candidates for a period of more than a 46 decade. Granting relaxation for a period cannot create any legal vested right and it cannot also be said to be arbitrariness and suffers from malice, rather if it will be granted it would be said to be arbitrary and malice towards the other candidates who are to be engaged in other public offices of the state government, for them 32 years is the maximum age as per the provision of Rules, 1989, as such this court, sitting under Article 226 of the constitution of India declines to interfere with respect to the policy decision of the state government for the reasons stated herein above.
(vii) So far as the alternative prayer to grant relaxation in the age, that cannot directed to be given in view of the fact that to get relaxation cannot be said to be legal vested right of a candidate, rather it depends upon the policy decision of the govt. depending upon the situation, need and requirement time to time. Moreover, the part of granting relaxation since been dealt with by this court in W.P.(C) No.18542 of 2014 wherein the same has been allowed to be given by way of last chance, not to be treated as precedence and not to be taken as an example for future appointment. Although these petitioners were not party to that writ petition but the issue was same and when the similar issue has been dealt with by this court, merely on account of the fact that these petitioners are not party to the proceeding, the order / direction / observation contained therein will not be applicable for the future appointment.
In view thereof the alternative prayer is also not fit to be allowed, accordingly the same is rejected.
47
(viii) So far as the contention that for Teacher Eligibility Test since there is no maximum age, as such fixing maximum age will be said to be unjustified decision but this argument is also not acceptable to this court for the reason that if that would be accepted, there will be no meaning of fixing maximum age, rather a candidate even can be engaged at the age of 52 years, 59 years or even after retirement, but that is not the purpose of getting eligibility test, as provided under the RTE Act, 2009 rather the purpose is to get the educational qualification along with other minimum educational qualification as provided under the NCTE Act, although no age has been prescribed for getting Teacher Eligibility Test but Teacher Eligibility Test cannot be said to be recruitment as teacher rather it is an eligibility test and the minimum or maximum age as decided and provided under the statute will govern in testing the eligibility and suitability of the candidates, providing no age for getting Teacher Eligibility Test is immaterial for testing the suitability and eligibility of the candidate to be appointed as Sikhya Sahayaks.
(ix) So far as the argument of learned Sr. Counsel to direct to State authorities to fill up at least 7062 vacancies on the basis of previous resolution containing the maximum age up to 42 years, before appreciating the argument advanced on behalf of the parties on this ground, it would be relevant for this court to refer the legal position, although the same has been discussed herein above, but at the risk of repetition it is being discussed again in the context of this argument.
The Government of Odisha has formulated a rule in the year 1989 fixing the upper age limit of 32 years. In the year 1993 another rule was 48 formulated by the State of Odisha known as the Odisha Sub-ordinate Education (Method of Recruitment and conditions of Service) Rules, 1993 wherein the upper age limit has been fixed as 32 years. Thereafter the Rules 1997 has been enacted upon for the primary teachers fixing the upper age limit as 32 years. The Rules 1993 and 1997 wherein the upper age limit has been fixed as 32 years is for the reason that in the other public offices under the State of Odisha the upper age limit has been fixed up to 32 years as per the provision of Rules, 1989, as such, in order to maintain parity in fixing the upper age limit, 32 years has been kept as the upper age limit even for the teachers who are holders of Civil Posts being pensionable in view of the provision of Odisha Aided Education Employees' Benefit Rules, 1981. The State Government, in order to streamline the education by enforcing the Sarva Sikhya Aviyan (SSA) and to impart education to the children in between the age group of 6 to 14 years, has decided to appoint Swechha Sevi Sikhya Sahayak (SSS), now Sikhya Sahayak by giving relaxation in fixing the upper age limit as provided under the Rules, 1989 or Rules 1997.
It is evident from the discussion made herein above that the S.S. is to be engaged year to year and on every selection the government has come out with a separate resolution issued in the name of his Excellency, the Governor of the State in exercise of the provision of the Rules of Executive Business. The said relaxation has been granted up to the year 2011 for 10 years and on 6.8.2013 for a period of 3 years.
The State Government has never amended the provision of Rules, 1989 or 1997 so far as it relates to fixating of upper age limit of 32 years and 49 these rules have been enacted upon in exercise of power conferred to the proviso to Article 309 of the Constitution of India, meaning thereby the upper age limit was there and in course thereof relaxation in the age was granted by virtue of issuance of different resolutions keeping it to consider up to 42 years of age.
In the light of this factual matrix the argument of the petitioners to fill up 7062 vacancies on the basis of the resolution which was in course of the said vacancies which will be said to be backlog vacancy, would be filled up by virtue of keeping the upper age limit up to 42 years. This argument is based upon the settled proposition that if any backlog vacancy is there, the same is to be filled up on the basis of the prevalent rule on the date of said vacancy.
In this context the definition of 'backlog vacancy' needs to be referred, i.e. the vacancy notified but not filled up then it will be said to be backlog vacancy. In the context of this position, it is to be seen by this court as to whether the principle of the rule prevalent on the date of 7062 vacancies would be followed or not?
As has already been discussed herein above that the statute for fixing upper age has been enacted under the proviso to Article 309 of the constitution of India, the same has never been amended. The petitioners' contention is that these resolutions wherein the upper age limit has been kept to 42 years will be said to be amended but this contention is not sustainable in view of the fact that even in course of different resolutions 50 having been issued time to time right from the month of October, 2010 till the year 2011 keeping the upper age as 42 years and on 6.8.2013 as 35 years that was in course of operation of the provision of Rules, 1989 or 1997 by relaxing the provisions contained therein. It is position of Law that resolutions cannot supersede the statutory provision enacted under the provision of proviso to Article 309 of the constitution of India.
The State Government although has come out with the amendment making amendment in the Rules, 1997 by enacting a rule in the year 2014 wherein the provision as contained in Rules, 1997 regarding the age criteria which has been omitted, although the provision of Rules, 2014 has been kept in abeyance by the order passed by the Tribunal in O.A. No.3078(C) of 2014 dtd.22.09.2014 even accepting the original statute as contained in the Rules, 2014 wherein the provision of Rule 7 of the Rules, 1997 has been omitted even in that situation, since it has already been observed herein above that the provision of Rules, 1989 will be applicable wherein the maximum age has been provided as 32 years, then also the maximum age of 32 years will be prevailing as on the date, but since it has been stayed by the court of law, hence even the provision as contained in Rule 7 of the Rules 1997 is applicable on the date.
In view of this discussion the contention of the petitioners is not acceptable to this court to issue direction upon the opposite parties to fill up 7062 vacancies on the basis of the resolution wherein the upper age limit has been provided up to 42 years.
51
(x) So far as the contention of the petitioners regarding the resolution having not been placed under the provision of Rule 38(4) of the RTE Act, 2009, as such the entire exercise of the state authorities is void, this argument is also not sustainable in view of the fact that neither in the RTE Act, 2009 nor in the NCTE notification there is any stipulation regarding the criteria of eligibility so far as it relates to minimum or maximum age which does suggest that the age is to be decided by the respective state across the country.
Section 38(4) stipulates that the Act, 2009 stipulates to provide free and qualitative education to the school going children in between the age group of 6 to 14 years and in that context the provision of section 23 has been enshrined wherein the minimum eligibility educational qualification has been decided to be provided by the Apex Academic body to be appointed by the Central Government and in the light of the said provision the NCTE has notified a notification on 25th October, 2010 and 29th July, 2011, i.e. for fixing the minimum educational eligibility criteria.
Section 38(4) of the Act, 2009 concern with the eligibility conditions and the other conditions reflected U/s.38(1) wherein there is no stipulation regarding the age criteria. Section 38(4) provides that every rule or notification made by the State Government under this Act shall be laid down as soon as may be after it is made before the state legislature, but this provision will not be applicable so far as the issue raised in these writ petitions are concerned for the reason that fixing age criteria has already been enacted upon by the State Government in exercise of power conferred 52 under the Proviso to Article 309 of the constitution of India by enacting the provision of Rules, 1989 or Rules, 1997 and there is no dispute about the fact that the legislation made under proviso to Article 309 of the constitution of India is having its statutory force, hence the same is not required to be placed before the Legislature. Moreover, since age criteria is not the subject matter of RTE Act, 2009, as such the same is also not within the provision of section 38(4) of the Act, 2009.
The principle of moulding the prayer by High Court sitting under Article 226 of the Constitution of India will not be applicable in the facts of these cases since this can be exercised only if the prayer made in the writ petition is consistent with the pleading, but here prayer is to allow them to participate in the selection process by either quashing the upper age limit of 32 years or in alternative to relax the same up to 42 years while the pleading made in para 29 of the writ petition is to declare the resolution void since the same has not been placed before the legislature under Section 38(4) of RTE Act, 2009, as such prayer and pleading (at paragraph 29 of the writ petition) are contradictory to each other.
In the entirety of facts and circumstances of the cases, this batch of writ petitions is dismissed.
CATEGORY-II
10. In this batch of writ petitions the following reliefs has been sought for:-
53
(i) To quash clause 6.1 of the resolution dtd.26.12.2016 in so far as in fixing the minimum qualification of 50% marks in Higher Secondary / graduation level;
(ii) To direct the opposite parties to act in conformity with the amended Regulation / Notification of the NCTE dated 29.07.2011 under Annexure-4 and also to direct the opposite parties to issue necessary corrigendum by fixing the minimum qualification as per the NCTE amended regulation dtd.29.07.2011.
11. The issue raised in this batch of writ petitions is as to whether the appointing authority can deviate from the statutory recruitment rules.
The grievance raised in these writ petitions is that under the Right to Education Act, 2009 National Council for Teacher Education, being the Apex Body, has formulated the eligibility qualifications, that cannot be deviated any way by the authorities but that has been done while issuing the impugned resolution and the advertisement by depriving a category of the candidates whose candidature ought to have been considered in the light of the NCTE notification which contains a condition that for Classes-I - V the Senior Secondary (or its equivalent) with at least 45% marks and 2-year Diploma in Elementary Education (by whatever name known), in accordance with the NCTE (Recognition Norms and Procedure), Regulations, 2002 likewise for Classes -VI to VIII the candidates having minimum qualification of graduation with at least 45% marks and 1-year Bachelor in Education (B.Ed.), in accordance with the NCTE (Recognition Norms and Procedure) Regulations issued from time to time in this regard. But in the 54 impugned resolution such candidates who have got graduation degree with 45% marks and 1 year Bachelor in Education in accordance with the NCTE Regulation have been deprived.
12. Before appreciating the argument the minimum educational qualifications provided under NCTE regulation needs to be referred:-
"Minimum Qualifications:-
Classes-I-V
(a) Senior Secondary (or its equivalent) with at least 50% marks and 2-year Diploma in Elementary Education (by whatever name known) OR Senior Secondary (or its equivalent with at least 45% marks and 2-year Diploma in Elementary Education (by whatever name known), in accordance with the NCTE (Recognition Norms and Procedure), Regulations, 2002.
OR Senior Secondary (or its equivalent) with at least 50% marks and 4-year Bachelor of Elementary Education (B.E./Ed.) OR Senior Secondary (or its equivalent) with at least 50% marks and 2-year Diploma in Education (Special Education) OR Graduation and two year Diploma in Elementary Education (by whatever name known) AND
(b) Pass in the Teacher Eligibility Test (TET), to be conducted by the appropriate Government in accordance with guidelines framed by the NCTE for the purpose.
Sub-para (ii) of Para I of the Principle Notification, the following shall be substituted, namely:-
Classes VI-VIII
(a) Graduation and 2-year Diploma in Elementary Education (by whatever name known) OR Graduation with at least 50% marks and 1-year Bachelor in Education (B.Ed.) OR Graduation with at least 45% marks and 1-year bachelor in Education (B.Ed.), in accordance with the NCTE (Recognition Norms and Procedure) Regulations issued from time to time in this regard.
OR Senior Secondary (or its equivalent) with at least 50% marks and 4-year Bachelor in Elementary Education (B.E/Ed.) OR Senior Secondary (or its equivalent) with at least 50% marks and 4- year B.A./B.Sc.Ed. or B.A.Ed./B.Sc.Ed.
OR Graduation with at least 50% marks and 1-year B.Ed. (Special Education) 55 AND
(b) Pass in Teacher Eligibility Test (TET), to be conducted by the appropriate Government in accordance with the guideline framed by the NCTE for the purpose.
(III) For para 3 of the Principal Notification the following shall be substituted, namely:-
(i) Training to be undergone.- A person-
(a) With Graduation with at least 50% marks and B.Ed. qualification or with at least 45% marks and 1-year Bachelor in Education (B.Ed.), in accordance with the NCTE (Recognition Norms and Procedure) Regulations issued from time to time in this regard shall also be eligible for appointment to Class I to V up to 1st January, 2012, provided he / she undergoes, after appointment, an NCTE recognized 6-month Special Programme in Elementary Education;
(b) With D.Ed. (Special Education) or B.Ed. (Special Education) qualifications shall undergo, after appointment an NCTE recognized 6-mont Special Programme in Elementary Education."
13. This court, before answering the issue, thought it proper to discuss the legal position as to whether the appointing authority can deviate from the eligibility condition prescribed in the statute. It is cardinal rule of interpretation that where a statute provides that a particular thing should be done, it should be done in the manner prescribed and not in any other manner, reference in this regard may be made to the judgments rendered by Hon'ble Apex Court in the case of Babu Verghese & Others Vrs. Bar Council of Kerala and Others reported in 1999 3 SCC 422, State of Jharkhand and Others Vrs. Ambay Cements and Another reported in (2005) 1 SCC 368 and Zuari Cement Limited Vrs. Regional Director, Employees' State Insurance Corporation, Hyderabad and Others reported in (2015) 7 SCC 690.
It is evident from the proposition laid down in the judgments referred herein above that the authorities are to follow the statute and there cannot be any departure from the statutory provision.
14. The learned Advocate General, in order to strengthen his argument, has relied upon the judgment rendered by Hon'ble Apex Court in this regard that 56 the eligibility condition is the absolute domain of the State Government, as such the same cannot be interfered with by the High Court sitting under Article 226 of the constitution of India, reliance has been put on the judgment rendered by Hon'ble Apex Court in the case of Dr. Gangaprasad Verma and Others Vrs. State of Bihar and Others reported in (1995) Supp. (1) SCC 192 wherein it has been held that the court must give effect to the Act if the language is clear and explicit.
The ratio laid down in this judgment rather supports the case of the petitioners since the NCTE notification prescribes an eligibility condition for these categories of the petitioners but the same has been omitted, as such the State has travelled beyond its jurisdiction in omitting the said eligibility condition with the statute is very clear and explicit in this regard.
In the case of V. Lavanya and Others Vrs. State of Tamil Nadu and Others reported in (2017) 1 SCC 322 the issue fell for consideration before the Hon'ble Supreme Court was to assess the legality and propriety of the order of the High Court wherein the State government circular issued on 6.2.2014 granting relaxation of 5% marks in passing marks for the candidates belong to SCs/STs/BCs, BCs (Muslim), most BCs, denotified communities and persons with disability while the minimum qualifying marks with regard to general candidates was retained as 60%, but the said relaxation of 5% marks for reserved category candidates was held applicable to Teacher Eligibility Test (TET) held on 17.08.2013 and 18.8.2013 and all future TETs. The High Court, while disposing of the petition, has upheld the validity of the Government Memorandum No.25 dtd.6.2.2014 but set aside the grading system adopted by the government in 57 Government Memorandum No.252 dtd.5.10.2012 observing that it lacks rationality as it places a candidate with the difference of 1 to 9 marks in the same bracket. Pursuant to the order passed by the High Court, the sate government has come out with the subsequent order by way of issuing a Government Memorandum No.71 dtd.309.5.2014 in tune with the suggestion made by the Single Judge. The Government Memorandum No.71 dtd.30.5.2014 was challenged both on the ground of weightage having been awarded for the marks obtained in three qualifications and also the method of gradation.
The Madras Bench of the High Court dismissed the writ appeals as well as the petitions, as opposed to the view taken by the Madras Bench of the High court, the Madurai Bench quashed the relaxation given to reserved category candidates hence the matter fell for consideration before the Hon'ble Supreme Court and the Hon'ble Apex court has been pleased to hold at paragraph 42 that the Madras High Court rightly rejected the challenge to Government Memorandum Nos.25 dtd.6.2.2014 and 71 dtd.30.5.2014 holding that as per the NCTE guidelines, the State government has the power to grant relaxation on the marks obtained in TET for the candidates belonging to reserved category and the same is affirmed. The Madurai Bench did not keep in view the NCTE guidelines and the power of the State Government to grant relaxation in terms of their extent reservation policy and erred in quashing the Government Memorandum no.25 dtd.6.2.2014, hence the same is liable to be set aside.
It is evident from this judgment that the Hon'ble Apex Court has also taken into consideration the fact that the Central Government or the State Government are duty bound to follow the NCTE guidelines and they cannot deviate 58 in any manner unless counter rule is framed in accordance with law, hence this judgment rather suits the case of the petitioners.
In the case of State of Gujurat & Others Vrs. Arvind Kumar T. Tiwari & Another reported in (2012) 9 SCC 545 wherein the fact was regarding relaxation in the eligibility criteria and it has been laid down in the said judgment that the Court cannot issue direction to relax eligibility criteria.
The fact herein is not regarding the relaxation in the eligibility criteria, rather it is omission of the particular eligibility criteria depriving the candidates in participating in the selection process. However, this judgment will be applicable so far as it relates to issue related to category-I. Further reliance has been placed in the case of Pramod Kumar Vrs. U.P. Secondary Education Services Commission & Others reported in (2008) 7 SCC 383. The fact related to the said case was regarding non-consideration of candidates having no valid eligibility criteria, but the fact in this batch of cases is not for getting any consideration in the lack of the eligibility criteria.
Reliance has further been placed in the judgment rendered in the case of Visveswaraiah Technological University and Another Vrs. Krishnendu Halder and Others reported in (2011) 4 SCC 606. The fact leading to the said case was as to whether on account of unfilled seats in a particular year, the eligibility criteria fixed by the State / University would cease to apply or that the minimum eligibility criteria suggested by AICTE alone would apply. Unless and until the State or the University chooses to modify the eligibility criteria fixed by them, they 59 will continue to apply in spite of the fact that there are vacancies or unfilled seats in any year.
So far as the facts of this batch of writ petitions are concerned, the same is not regarding relaxation in the eligibility criteria on account of the unfilled vacancies, rather the issue is regarding omission of a particular eligibility criteria which has been provided under the NCTE guideline having been accepted by the state Government by way of enacting the Rule, 2010, hence this judgment is not applicable in the facts and circumstances of the instant case.
Reliance has further been placed on the judgment rendered in the case of Delhi Subordinate Services Selection Board Vrs. Praveen Kumar (supra). It is not in dispute that it is the absolute domain of the State Government to lay down the eligibility criteria so far as it relates to the age as well as academic qualification, but this judgment will not be applicable in the facts and circumstances of the cases as because omission of the particular eligibility criteria which is in question in these batch of writ petitions are not in accordance with the NCTE Act, hence this judgment supports the contention of the petitioners so far as the eligibility criteria is concerned.
Reliance has further been placed on the judgment rendered in the case of State of Tamil Nadu and Another Vrs. S.V. Bratheep (minor) and Others reported in (2004) 4 SCC 513 wherein the issue was of providing higher minimum prescribed by the State Government than that has been prescribed by AICTE and as such it has been laid down therein that it is in any manner adverse to the standard fixed by the AICTE or reduces the standard fixed by AICTE, then 60 only it can be said to be improper, but if it is higher, it would be permissible for the state government to prescribe the same for the purpose of admission in the engineering college that what has been prescribed by AICTE.
The fact of this judgment is regarding admission in the Engineering colleges and for that the higher minimum standard has been prescribed as fixed by the AICTE and in that pretext the judgment has been rendered by Hon'ble Apex Court laying down the proposition that fixing higher minimum criteria cannot be said to be improper, but here the fact is not like that of the fact of the judgment, rather the fact in the instant case is regarding consideration of candidature of a particular category who have got minimum 45% of marks in graduation with diploma in education under the NCTE regulation, so it is a case of depriving such category of candidates in participating in the selection process. Hence this judgment will not be applicable in the facts and circumstances of the instant case.
In view of the discussion made above the Centre or the State is duty bound to act in pursuance to the provision as contained in the statute / guideline and it is further stated herein that the State of Odisha has come out with a resolution in the year 2010 having been notified with effect from 27.9.2010, known as the Odisha Right to Free and Compulsory Education Rule, 2010 whereby and where under the guideline issued by the NCTE has been adopted under the provision of Rule 15 of the said rule.
15. The fact which is not in dispute in these cases is that the State authorities have taken clear cut stand as per the requirement of law as provided under the provision of Right to Education Act, 2009 which contains a provision 61 U/s.23 as has been quoted above which is being repeated at the risk of repetition that any person possessing such minimum qualification, as laid down by an academic authority, authorized by the Central Govt., by notification, shall be eligible for appointment as a teacher.
It is evident from this provision that an academic authority is to frame eligibility criteria to fix the minimum qualification. In view of such provision National Council for Teacher Education has notified a notification on 25.8.2010 wherein the minimum qualification has been prescribed for consideration of candidature of one or the other candidate from Classes-I - V and Classes- VI-VIII wherein candidate possessing senior secondary (or its equivalent) with at least 45% marks and 2-year Diploma in Elementary Education (by whatever name known), in accordance with the NCTE (Recognition Norms and Procedure), Regulations, 2002 are to be considered for their engagement, likewise for Classes- VI-VIII graduation with at least 45% marks and 1-year Bachelor in Education (B.Ed.), in accordance with the NCTE (Recognition Norms and Procedure) Regulations issued from time to time in this regard. This notification has undergone some amendments by virtue of notification issued on 29 th July, 2011 but so far as it relates to the category of candidate possessing 45% marks in graduation with 1-year Bachelor in Education in accordance with NCTE regulation, so far as it relates to Classes-VI to VIII remained unchanged.
It is not in dispute that the NCTE is the Apex Body as per the provision of Section 23 having been authorized by the Central Govt. to fix the minimum qualification. It is also not in dispute that the state is bound to follow 62 the rules/regulations governing the recruitment by the NCTE, i.e. the mandate of the central legislation, i.e. Right to Education Act 2009.
16. Learned Advocate General has raised the issue of locus of the petitioners by submitting that the petitioners have not got CT training as per the NCTE regulation, as such the writ petitions are fit to be dismissed on the ground of locus itself.
The argument of learned Advocate General, in this context, is not acceptable to this court for the reason that it is not the question of a candidate, rather it is the question of legality and propriety of the decision taken by the authorities which fell for consideration before this court in these writ petitions and if one section of candidates is being deprived from consideration of their candidature as per the right vested upon them under the statute promulgated by the competent body, then this court cannot shut its eyes, moreover, the petitioners are not seeking their engagement, rather they are only seeking consideration of their candidature, if the applications will be submitted, then only it will be said as to whether they are eligible on the ground of minimum educational qualification or not, but such category of candidates cannot be denied consideration of their candidature on conjectures by prejudging any thing when the statute provides to consider, even in the counter affidavit no specific response has been given to that effect save and except stating at paragraph 18 to the effect that there are enough qualified candidates with CT, B.Ed and OTET but they are not eligible due to fixation of 50% marks in the qualifying examination, some of the candidates secured less than 50% of marks but what is the justification in not inserting the criteria regarding 45% marks as provided under the NCTE Act, has not been 63 reflected, meaning thereby the contention raised by the petitioners has been admitted by the state - opposite parties.
17. This court, after going through the impugned resolution as well as the advertisement, has found that the category of candidates who are possessing graduation with 1-year Bachelor in Education (B.Ed.), in accordance with the NCTE (Recognition Norms and Procedure) Regulations issued from time to time in this regard have been deprived from participating in the selection process since this is lacking in the impugned resolution as well as in the advertisement which is contrary to the Rule framed by the State Government in exercise of power conferred under Section 38 of the RTE Act, 2009, known as "The Orissa Right of Children to Free and Compulsory Education Rule, 2010, effected w.e.f. 27.09.2010 wherein under Part VI, Rule 15, minimum qualifications for appointment as teacher in elementary schools have been provided as the qualification shall be in consonance with the qualification laid down by the academic authority constituted by the Central Government.
The NCTE being the apex academic authority, came out with notification bringing down minimum educational qualifications as quoted above wherein the eligibility condition in question find place but in the resolution impugned, this criteria of eligibility condition has been omitted.
The State in the counter affidavit also not given reasonable explanation and that cannot be given since it is admitted case of the State that the Right to Education Act, 2009 is mandatorily to be followed as also the rules and regulations governing the recruitment process by the Apex Authority having been 64 notified by the State Government, hence the action of the State Govt., depriving these sections of the candidates from participating in the selection process, cannot be approved by this court, in view thereof the prayer made by the writ petitioners in this batch of writ petitions is fit to be allowed and accordingly the same are allowed.
18. In the result the matter is remitted before the State authorities to take consequential steps with respect to such category of employees strictly as per the NCTE regulation as per the discussion made herein above before proceeding further in the selection process.
CATEGORY-III
19. In this batch of writ petitions the following relief has been sought for:-
(i) To quash the direction issued by the opposite party no.1 dtd.26.12.2016 to the State Project Director (opposite party no.2) for reserving 60% vacancies to be filled up by candidates having Science (+2 Science / +3 Science) and 40% to be filled up by candidates having Arts / Commerce background (+2 Arts or Commerce / + 3 Arts).
(ii) To incorporate the eligibility criteria meant for teachers to be appointed in classes- VI to VIII, i.e. B.A./B.Sc. 2-years Diploma in elementary education (by whatever name known) in terms of the NCTE Notification No.215 as one of the eligibility criteria in the impugned guidelines dtd.26.12.2016.
(iii) To issue direction upon the opposite parties to treat all the vacancies as advertised for engagement of Sikhya Sahayak during the year 2016-17 as 65 one category particularly in respect of Classes - 1 to V and to consider the petitioners as against all the vacancies advertised for engagement of Sikhya Sahayak meant for Classes - VI to VIII.
20. The case of the petitioners in this batch of writ petitions is that they have acquired required qualification, i.e. +2 Arts with Diploma in Elementary Education (CT). Some of the petitioners have also acquired +3 Degree, i.e. (B.A.) and have also possessed Diploma in Elementary Education (D.E.L.Ed.). All these petitioners, after acquiring training, i.e. D.E.L.Ed. (CT), have also appeared the Odisha Teacher Training-I examination conducted by the Board of Secondary Education and declared as successful in the said examination. After coming into effect the RTE Act, 2009 the "Elementary Education" has been defined which means the education from Class-I to Class-VIII. Section 23(1) of the Act prescribes the qualification and terms and conditions of service of Teachers. Section 19 of the said Act provides that no school shall be established without obtaining certificate of recognition unless it fulfills the norms and standard of the school. From the schedule it appears that numbers of teachers are required to be appointed from Class-I to Class-V and the norms and standards for engagement of such teachers have also been provided. Similarly from Class-VI to VIII a separate category of teachers have been provided.
From joint reading of Sections 19 and 23 of the Act read with Rule 15(2) of the said Rule it is evident that it is only the academic authority authorized by the Central Government, i.e. NCTE to lay down the minimum qualification by virtue of notification. It is evident from the minimum qualification as laid down by the NCTE notification that from Class-I to Class-V that candidates who have 66 acquired qualification, i.e. senior secondary (+2) with at least 45% marks and 2- years diploma in elementary education (D.E.L.Ed.) (whatever names known) i.e., C.T. and candidates having senior secondary (or its equivalent) with 50% marks and 2-years diploma in elementary education (D.E.L.Ed.) are the minimum qualification to be considered for appointment of teachers in respect of Classes-I to V. Similarly the norms have been prescribed under the NCTE regulation in respect of other category of classes in elementary education from Classes-VI to VIII.
The opposite party no.1 issued a revised guideline for engagement of Sikhya Sahayak during the year 2016-17 wherein the minimum qualifications have been laid down pursuant to the NCTE notification with respect to both the category of classes, i.e. from Classes-I to V and Class-VI to VIII but though it has specifically been provided in the said guideline, the minimum qualification has not been reflected in the impugned resolution since in the resolution no provision has been made making the reservation of vacancies for Science and for Arts category of teachers in both the +2 Arts or Commerce of +3 Arts and Commerce. The state government has also issued one communication on 26.12.2016 indicating therein the procedure for selection of Sikhya Sahayak by fixing 50% of vacancies from the candidates having the qualification of higher secondary education with CT / D.E.L.Ed) and rest 50% will be filled up from the candidates having graduate with B.Ed. It has further been provided that in such category 60% of vacancies will be filled up from the candidates having Science (+2 Science/+3 Science) and 40% will be filled up from Arts/Commerce (+2 Arts / Commerce / +3 Arts) background.
The case of the petitioners is that such reservation of post of 60% having Science and the rest 40% having the background of Arts / Commerce is 67 contrary to the procedure laid down by the academic authority, i.e. NCTE, hence these writ petitions.
21. The contention of the petitioners is that when there is no bifurcation of posts to be filled up from amongst the Arts / Science category of candidates, as such it would be justified for the State to proportion it in between the Science and Arts / Commerce candidates in the equal ratio otherwise the candidates having Arts/Commerce background will be discriminated in the matter of selection since larger number of vacancies have been earmarked for the candidates having Science background.
So far as the second prayer, it has been contended by them that the NCTE notification provides provision to provide opportunity to such candidates having graduation and 2-years diploma in elementary education by whatever name known, but in complete violation of the same this category of candidates have been deprived from consideration of their candidature.
It has further been contended that the candidates possessing B.A./ B.Sc. and 2 years diploma in elementary education or whatever name known has been omitted from the minimum eligibility criteria for the category-II and thereby such type of candidates have been deprived from consideration of their candidature.
The contention raised by the State in this regard is that since the aforesaid minimum eligibility criteria has already been prescribed in respect of category-I which is meant for classes-I to V, as such the same has not been prescribed for category-II, i.e. for Classes-VI to VIII. 68
It is the further contention that although the NCTE has prescribed the minimum qualification as per the notification dtd.29th July, 2011, but the state can fix higher qualification than the minimum qualification, fixing higher qualification as minimum qualification is not in violation of the notification dtd.29.7.2011, had the state fixed lower qualification than the minimum qualification prescribed by the NCTE, then it would have in violation of the minimum qualification.
It has further been contended that even if the qualification of graduation and 2 year diploma in elementary education by (whatever name known) is included for one of the qualification for category-2, then also the present petitioners cannot be eligible for consideration against category-2 as in clause-b of category-2, it has been made mandatory passing in OTET but none of the petitioners have acquired the eligibility of OTET-2, hence on this ground the relief sought for by these writ petitioners are fit to be rejected.
22. Heard the learned counsels for the parties and perused the documents available on record.
This court, after considering the rival submission of the parties so far as first prayer is concerned, i.e. regarding earmarking the higher number of vacancies from the candidates having science background and lesser number of vacancies to the candidates having Arts/Commerce background, it is not in dispute that the NCTE notification does not prescribe any criteria of earmarking the vacancies on the basis of faculty, but however the pupil - teacher ratio has been provided therein for keeping the post filled up from amongst the teachers as 69 would be evident from the schedule referred under the RTE Act, 2009 in consonance with the provision of Section 19 and 25 of the said Act. It is not in dispute that filling up of the vacancies depends upon the exigency and need of the appointing authority. It is evident from the intent of the provision of RTE Act, 2009 read with NCTE notification that the primary object of the government to provide free education to the children of the age group of 6 to 14 years and their standard of the education is also to be maintained uniformity across the country, meaning thereby if a candidate who lives in a particular state is to be prepared in such a way that he / she may compete in high competitive examination at any level with the candidates living in other parts of the country and to achieve this aim and qualitative improvement in the human resources well foundation is to be given to the school going children and for that the state government is duty bound to provide qualitative teaching, keeping this fact into consideration in larger issue the appointing authority will be said to be the competent authority to fill up the vacancies depending upon the urgency, need and to provide qualitative teaching.
It is not in dispute that the students require uniform standard of teaching in all the faculties i.e. arts, science or commerce. Admittedly for classes-I to V the subject having science background is less excepting the reading of mathematic, etc., but now we are living in the era where even the mathematics is being taught from Class-I in ICSE course or in the CBSE course.
Here, in the instant case, the state government is concerned with the education to be imparted to such category of candidates through its own board known as secondary board having 10+2 syllabus side by side the courses being run by Central Board of Secondary Education (in short CBSE) Indian Certificate of 70 Secondary Education (in short ICSE) are also going on, hence the requirement of the day is that the children studying in the state secondary board is to compete with the students studying with CBSE course or ICSE course.
In this predicament it is the state government who is the best to judge the persons to be inducted in the service of teachers to strengthen the foundation of the children of category-1 which imparts studies to class-I to class-V candidates. If this fact would be taken into consideration, as has been argued orally by the learned Advocate General, the justification shown by learned Advocate General that since the quota of fixing vacancy is not available in the NCTE notification, as such the state government is the best judge to earmark the vacancies to be filled up from amongst the science or Arts or Commerce category, according to him, keeping the larger interest of the children which is the sole aim of enacting the RTE Act, 2009, the state has taken a conscious decision to earmark 60% of vacancies to be filled up from Science background teacher to impart teaching from Class-I to Class-V. In that view of the matter, according to the considered view of this court, the reasoning given by the learned Advocate General seems to be just and proper and it does not seem to suffer from the vice of malice or the arbitrariness.
Since it has not been provided under the statute earmarking the quota of science or arts or commerce background, rather it depends upon the need and exigency, the government in future can also take decision of reducing this percentage of quota as has been submitted by learned Advocate General. This also 71 led this court to come to the conclusion that the state action cannot be said to be unreasonable.
Overall providing any qualification fixing any quota of engagement of a category of employee since is the policy decision of the State government, unless arbitrary, the scope of judicial review is very limited that too when no specific criteria has been fixed in this regard under the statute.
In that view of the matter, according to the conscious view of this court, showing interference in any manner in this regard by this court sitting under Art. 226 of the constitution of India will only lead to interference with the scope of the state government in making out the policy decision which is for the larger interest of the pupil.
In that view of the matter, this court restrains itself to exercise the power of judicial review as has been prayed by the petitioners, accordingly this prayer of the petitioners is declined to be interfered with.
23. So far as the second prayer regarding omission of consideration of candidature of B.A./B.Sc. and 2-years diploma in elementary education by whatever name known, in the State of Odisha it is known as certification on training is concerned, this court is not in agreement with the reasoning given by the state through the learned Advocate General rather reiterating the view which has been taken by this court while deciding the issue raised in the writ petitions referred as category-II above, is of the considered view that the state is supposed to act strictly in pursuance to the legislation.
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Furthermore, the resolution reflects that the candidates are to apply either in category-I or category-II as per their qualification as would be evident from clause 6.2, if this minimum educational qualification is not under category-II then such candidates will be deprived from making their applications for category-II.
The contention that since this is provided under category-I as such the same is not required to be referred under Category-II, but this is also not convincing to this court as because so far as insertion of graduation and 2 years diploma in elementary education/ 2 year diploma in special education has been inserted in category-I that is also not required under the NCTE notification as would be evident from the quoted portion while discussing the writ petitions related to category-II, and as already been held while dealing with batch of cases falling under Category-II as such the same is not repeated for the shake of brevity.
In that view of the matter the matter needs consideration by the authorities, hence the second prayer of the petitioners is fit to be allowed with a direction to the state authorities to act strictly in pursuance to the minimum educational qualification provided under the NCTE notification before proceeding further in the selection process.
In the result this batch of writ petitions are partly allowed. CATEGORY-IV
24. In these batch of writ petitions prayer has been made to quash the resolution on the ground that there is inconsistency in between clause 6.1 and 6.2 of the resolution so far passing of Odiya, as M.I.L. up to class-X. 73 The contention raised by the petitioners in these batch of writ petitions is that the resolution impugned contains an eligibility condition under clause 6.1 for category-I under (C) that candidate must have Odiya as M.I.L. up to class-X or pass in Odiya language test equivalent to Matric standards conducted or declared equivalent by Board of Secondary Education, Odisha except the candidates as mentioned under para-6.2, while on the other hand under clause 6.2 it has been provided that the eligibility condition for Urdu, Bengali, Telgu Sikhya Sahayaks candidates to have passed Urdu, Bengali, Telgu as the case may be as MIL up to HSC standard. According to the petitioners both these eligibility conditions are contradictory to each other, as such not sustainable in the eye of law.
25. While on the other hand, learned AG has submitted that there is no inconsistency in between the eligibility condition as provided under clause 6.1(C) and 6.2 of the resolution for the reason that Category-I provides the eligibility conditions of having Odiya pass as Mother Indian Language (MIL) from the recognized Board, but that is in exception to the provision made in the eligibility condition as contained in clause 6.2 which is meant for the Urdu, Bengali, Telgu Sikhya Sahayaks and they have to pass Urdu, Bengali, Telgu as M.I.L. up to HSC standard along with certificate from the Head Master of the concerned schools to the effect that she / he has passed H.S.C. examination in Odia medium, since they are to teach in bilingual schools.
In view thereof it has been contended that it is not inconsistent rather it is required in the State of Odisha to extend education not only to the Odiya knowing people, but also to Urdu, Bengali, Telgu knowing candidates who 74 are residing in the fore corners of the state of Odisha and for them the SS are required to teach them.
26. Having heard learned counsels for the parties and on perusal of the resolution it is evident that the NCTE notification does not provide minimum eligibility condition so far as it relates to the language and it has rightly not been provided since the main subject has been taken into consideration by providing the minimum educational qualification leaving open to the respective state governments to make out its own policy decision to provide education to the children on the basis of language.
Since in the State of Odisha it is the requirement of appointment of teacher having known with the odiya language, as such for category-I the odiya language has been made mandatory except the candidates mentioned under para 6.2 while 6.2. which relates to providing education to the Urdu, Bengali, Telgu background of the children and for them Urdu, Bengali and Telgu has been made mandatory language to be passed up to the H.S.C. standard, simultaneously they are also required to give the certificate from their Head Masters that they have passed H.S.C. examination in the Odia medium and the candidate has been asked to apply either in Category-I or Category-II as per their requirements.
In view of the same the candidates having not passed Odiya language as required under t he provision of 6.1(C), they will be declared to be not possessing the minimum required qualifications and likewise the candidates having not passed Urdu, Bengali and Telgu as M.I.L. up to H.S.C. standard along with knowledge of the Odiya pass H.S.C. examination, they will not be eligible to 75 participate in the selection process, the whole intention is that they impart teaching in Urdu, Bengali and Telgu language but since such type of children are living in the state of Odisha and they are much acquainted with the Odiya language it is required that such teachers must know the odiya language, hence it cannot be said to be inconsistent rather it is the requirement for the State of Odisha, as such the same has been taken as a policy decision.
Further, the provision of clause 6.1(C) and 6.2 are quite different to each other, while under clause 6.1(C) the requirement is that Odiya as M.I.L. up to Class-X while under 6.2 a certificate is to be produced from the Head Master of the concerned school that he / she has passed H.S.C. examination in Odiya medium, as such while one reflects passing of H.S.C. examination with Odiya as M.I.L. while other reflects passing of H.S.C. in Odiya medium, hence both are different to each other.
In view thereof this court is declined to interfere with the same, accordingly this batch of writ petitions stand dismissed. CATEGORY-IV
27. In these batch of writ petitions which have been filed by the candidates who have discharged their duties as non-formal educator wherein prayer has been made by these writ petitioners to quash the upper age limit fixed as 32 years as prescribed in clause No.7 of the resolution dtd.26.12.2016 and allow them to participate in the selection process by granting relaxation in view of the government decision taken on dtd.4th December, 2007 and 20th February, 2010.
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28. The fact of the cases is that these writ petitioners have been appointed under a scheme known as non-formal education scheme, introduced by the Central Government and implemented by the respective States, including the State of Odisha to achieve the aim and object of providing elementary education to the children within the age group of 6 to 14 years. The said non-formal education scheme was replaced by the Central Govt. with effect from 31.3.2001, as such the State Government has decided that non-formal education instructors / supervisors working in the said scheme and who were retrenched due to abolition of such scheme will be given relaxation to compete for the post of S.S., though these writ petitioners have fulfilled all eligibility criteria as prescribed in the resolution dtd.26.12.2016 but no relaxation has been provided as per the government decision contained in the letter dtd.4.12.2007 and 20.02.2010, hence these writ petitions Learned Sr. Counsel appearing for the petitioners has submitted that the petitioners have been given the benefit of relaxation vide resolution dtd.19.11.2009 by taking a decision to relax their upper age limit wherever necessary and their past experience shall be taken into consideration for the purpose as per the instruction issued by School and Mass Education Department letter No.7196 dtd.19.3.2006 and 3358 dtd.16.8.2008. According to the petitioners the said benefit has not been provided in the impugned resolution, as such these batch of writ petitioners have been deprived from participating in the selection process, hence they be given relaxation in the upper age limit so that their candidature may be considered on merit.
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29. Stand has been taken by the opposite parties in the counter affidavit that as per the Right to Education Act, 2009, section 23(1) provides that any person possessing qualification as laid down by the academic authority, authorized by the Central Government by notification, shall be eligible for appointment as S.S. (teacher). Considering the eligibility criteria, no relaxation clause kept for any ex-non-formal educator volunteers, so, if the ex-non-formal educator volunteers having requisite qualification, i.e. training, TET and within the prescribed age limit, may come to compete and get selected as there is no bar for them.
30. This court, after having heard the learned counsels for the parties and on appreciation of rival submission advanced on their behalf, found that the Central Govt. has launched a scheme known as non-formal education scheme to impart education to the children in the age group of 6 to 14 years. The said non- formal education scheme was replaced by the Central Govt. w.e.f.31.3.2001, the State Government had decided that the non-formal educator instructors / supervisors working under the said scheme, who were retrenched due to abolition of such scheme, will be given relaxation to compete for the post of S.S. and accordingly decision was taken to that effect by the Government vide office order dtd.4.12.2007 whereby and where under it has been decided that their candidature will be considered for engagement as S.S. by giving relaxation to their upper age limit wherever necessary and taking their past experience into consideration as given to D.P.E.P./E.F.A. and para teachers at the rate of 5 marks per year up to maximum 3 years (5X3=15 marks).
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The Joint Secretary to Government has issued a letter on 20th February, 2010 addressed to the State Project Director, wherein it has been communicated to give them grace marks and age relaxation.
It is evident from the material available on record that the scheme of S.S. has been launched under the Sarva sikhya Aviyan under the scheme of the Central Government and to implement it the government of Odisha has issued a resolution on 3.10.2000 wherein under clause 4.7 a provision has been made with respect to non-formal education instructors / supervisors and left out Sikhya Karmis giving them opportunity to apply along with others and compete on merit.
On the basis of this resolution the State Government has proceeded in making selection of Swechha Sevi Sikhya Sahayak. It is admitted position that the non-formal education scheme has already been closed prior to introduction of Sarva Sikshya Aviyan having been introduced by way of resolution dtd.3.10.2000 but the condition mentioned in clause 4.7 has not been questioned by the ex-non- formal educators for getting any benefit in the age relaxation. The said practice continued up to the date of issuance of resolution No.18536 dated 19.11.2009. The State Government when issued resolution dtd.19.11.2009 a clause has been inserted therein under Clause No.19 wherein the persons engaged by the Government in different schemes such as District Primary Education Programme (DPEP), Education for All (EFA), non-formal educator (NFE), Gana Sikhyaks having requisite qualifications may be considered for engagement as S.S. by relaxing their upper age limit wherever necessary and their past experiences will be taken into 79 consideration for the purpose as per instruction issued vide S & M E Department letter no.7198 dtd.19.3.2006 and resolution No.3358 dtd.16.2.2008.
Another resolution has been issued on 10.01.2011 but no provision has been made in the said resolution granting relaxation or any weightage to this category of persons who have rendered their services under these schemes. But this has also not been questioned by any of the ex-engagee who have worked under these schemes.
Thereafter the Right to Education Act, 2009 has come and the authorities has been vested with National Council of Teacher Education by virtue of notification dtd.25th August, 2010 whereby and where under there is no clause for giving relaxation to any of the candidates or weightage. The NCTE has fixed minimum educational qualification. After coming into effect of Right to Education Act, 2009 or the NCTE Act, 2010, other resolutions have been issued by the State Government on 6.8.2013 wherein there is no reference of giving any weightage to this category of candidates, likewise in the present resolution.
In view of this admitted position it is evident that this category of candidates are seeking relaxation in age and to give weightage after lapse of seven years, i.e. from issuance of resolution dtd.19.11.2009 thereafter also resolution has come but no body has questioned that.
It has already been dealt with while answering the question raised by the batch of writ petitioners pertaining to Category-I that in case of absence of any eligibility condition so far as it relates to qualification or age, it is the domain of 80 the State authorities to fix the minimum eligibility criteria, after all seeking relaxation cannot be claimed as a matter of right.
31. In the instant case the petitioners have been directed to be given weightage in the year 2009 in view of the decision taken by the State authorities so that the candidates who have rendered their services under these schemes may avail the opportunity and be selected if found to be eligible in other respect, but it does not mean that a right has been conferred upon these categories of candidates to get relaxation and weightage in the marks on account of rendering the past services.
32. In view of the settled proposition as has been discussed herein above relating to the policy decision of the State Government, the jurisdiction of the High Court, sitting under Article 226 of the Constitution is very limited to direct the State authorities to come out with a particular criteria fixing the eligibility criteria by directing the State authorities to grant relaxation in age or any eligibility criteria unless it is found to be arbitrary or unreasonable, but nothing has been found by this court that the action of the authorities is arbitrary, rather chance has been given to such category of candidates.
In view of such discussion these category of writ petitions lack merit, hence dismissed.
CATEGORY-V
33. In these batch of writ petition the following prayers has been made:- 81
(i) To quash / modify the impugned resolution dtd.26.12.2016 under Annexure-5 to the extent in directing the State Government to allow untrained OTET pass SC/ST candidates to submit their application forms for engagement of Sikhya Sahayaks;
(ii) To issue necessary corrigendum to allow the untrained SC / ST candidates who have passed OTET to be considered as per resolution dtd.26.12.2016 as has been done in the previous resolutions dtd.10.1.2011 and 6.8.2013 and the advertisement dtd.11.9.2014 under Annexures-2, 3 and 4 and to consider the candidatures of the present petitioner and to allow them to participate in the selection process for engagement of Sikhya Sahayaks.
34. Learned counsel representing the petitioners has relied upon the resolution dtd.6.8.2013 as contained in resolution No.18668 wherein the provision has been made for the untrained category of candidates. They further rely upon the communication dtd.11.9.2014 wherein the provision has been made for PH/SC/ST category candidates who are untrained but OTET pass. They have further submitted that in the impugned resolution the untrained candidates belonging to PH/SC/ST have been deprived from participating in the selection process, hence these writ petitions.
35. The learned Advocate General, while countering the argument advanced on behalf of the petitioners, has submitted that there is no question of deletion of any qualification pertaining to this category of candidates as because it is already provided under Right to Education Act, 2009 U/s.23 wherein under Sub-Section (2) the State has been empowered to make requisition before the 82 Central Government if the trained candidate is not coming forward, as such since this condition itself is mentioned in the statute, hence the cases of these category of candidates will not in any way being prejudiced.
He further submits that these writ petitions are premature since the State has invited applications from the candidates and the statute provides that if in case of inadequate number of trained candidates then only requisition can be made by the State Govt. before the Central Govt. for relaxation, but that stage has not yet come, hence the writ petitions are fit to be dismissed by holding that these are premature writ petitions.
36. Heard the learned counsels for the parties and perused the documents available on record.
For appreciating the argument advanced on behalf of the parties with respect to the issue involved in these cases, reference of Sec.23 sub-section (2) needs to be made which has already been quoted herein above.
As per the said provision the State has been empowered in case of exigency of non-availability of trained teachers, if the State Govt. will make requisition before the Central Govt., the Central Govt. may, if it deems necessary, by notification, to relax the minimum qualification required for appointment as teachers for such period, not exceeding 5 years as may be specified in that notification.
It is evident from the said provision that the power to relax has been conferred by the statute upon the Central Government. The resolution dtd.6.8.2013, upon which the learned counsel appearing for the petitioners have 83 given much emphasis, contains a provision under clause no.6.2 which speaks that in case trained qualified candidates of above categories are not available, the State Government shall request the Central Government for relaxation of the prescribed minimum qualification as laid down by the academic authority for engagement of the S.S. (teachers) in accordance with the provisions made under section 23(2) of the said Act, read with Rule 16(2) and (4) of the said Rules. The candidates having requisite academic qualification without training qualification with OTET pass may be considered for engagement only on the basis of qualification so relaxed by the Central Govt.
The provision of clause 6.3 speaks that the untrained candidates having requisite academic qualification required for teacher's training courses as decided by NCTE from time to time and passing the OTET may only be eligible for appointment as teacher. The condition contained in provision 6.4 speaks that untrained candidates selected as per the relaxed standard shall have to furnish an affidavit at the time of engagement to the effect that they shall acquire the required training qualification within the stipulated period in accordance with the provisions of the Act or as decided by the Government of India from time to time. Candidates unable to acquire the training qualification within the stipulated period shall be disengaged automatically.
It is evident from the joint reading of the provisions as contained in clause nos.6.2, 6.3 & 6.4 that it has been laid down in the resolution dtd.6.8.2013 in the light of the statutory provision contained under Section 23(2) of the Right to Education Act, 2009. It is further evident from the said provision that these are only to be exercised in case of non-availability of trained candidates and in that 84 situation the State Government will make requisition before the Central Government to grant relaxation and it is up to the Central Government to relax it in view of the provision of Section 23(2) of the Right to Education Act, 2009.
37. This court has gathered that the stage of providing relaxation to untrained categories of candidates has not yet come since the recruitment process is in the initial stage and unless it will be completed, the number of posts occupied by the trained candidates cannot be ascertained and it is then only question of seeking relaxation would come.
In view thereof the petitioners, cannot be granted any relief since the writ petitions are premature in view of the provision as contained in Section 23(2) or even on the basis of the condition mentioned in the resolution dtd.6.8.2013 under clause 6.2 which itself indicates that in case of non-availability of trained candidates but that stage has not yet come.
Accordingly these writ petitions are dismissed.
CATEGORY-VI
38. In these batch of writ petitions the following prayers has been made:-
(i) To quash the impugned resolution dtd.26.12.2016 under Annexure-6 wherein there is no provision for giving relaxation of age and additional weightage of marks towards experience in terms of the decision dtd.23.12.2013.
(ii) To issue corrigendum giving relaxation of age and additional weightage of marks for the experience to the disengaged NLCP instructors in terms of the 85 government decision dtd.23.12.2015 and allow the petitioners to be considered for engagement of Sikhya Sahayak pursuant to the resolution as well as the advertisement dtd.26.12.2016.
39. The case of the petitioners is that they were working under National Child Labour Project (in short NCLP) vide engagement order dtd.26.8.2004, continued in service, thereafter after coming into effect the Right to Education Act, 2009 decision has been taken for closure of NCLP special child labour school as per the instruction issued by the Govt. of India, accordingly the State Govt. has taken decision in its meeting held on 23.12.2013 to bring the children of NCLP school in the mainstream under the school run by the school and mass Education Department.
The rehabilitation of the educational instructors and volunteers of the erstwhile NCLP schools have been decided to be considered by the School and mass Education Department as per the decision taken in the meeting of the Chief Secretary on 23.12.2013.
40. Learned Sr. Counsel representing the petitioners has submitted that in the proceeding dtd.23.12.2013 the decision was taken to give appropriate relaxation in age and additional marks for experience, to enable them to participate in regular selection process for engagement of S.S. by the S and M E Department. However, they should have the requisite education and training qualification for the post as per the provided norms.
It has further been stipulated therein that in order to enable the teachers of NCLP teachers/instructors/ to acquire necessary educational / 86 training qualification, the relaxation in age would be applicable for a period of three years from their disengagement from the NCLP school. The contention of the petitioners is that three years from the date of engagement has not yet come, as such they are entitled to be given relaxation in age as per the decision taken in its meeting held on 23.12.2013.
It has been submitted by learned counsel for the petitioners that although averments made in the counter affidavit at paragraph 22 with respect to weightage to be given to the ex-non-formal education volunteers but no statement has been given with respect to consideration of the candidature of such teachers who have been directed to be given relaxation as per the minutes of the meeting dtd.23.12.2013.
It is the contention of the petitioners that they have requisite educational qualifications as per the Right to Education Act, 2009 norms.
41. Countering the submission of learned Sr. Counsel for the petitioner, learned Advocate General has submitted that although the Chief Secretary has taken a decision in its meeting dtd.23.12.2013 but since the government has come out with the impugned resolution by way of policy decision in consonance with the provision of Right to Education Act, 2009 fixing the upper age limit as 32 years as per the provision of Rules, 1989, in view thereof this category of candidates cannot claim benefit of relaxation in age in pursuance to the decision of the meeting held on 23.12.2013.
In the minutes of meeting dtd.23.12.2013 decision has been taken to give relaxation of age subject to the condition that they should have the requisite 87 educational qualification and training qualification as per the Right to Education norms, in view thereof the writ petitions has got no substance, accordingly the same are liable to be dismissed.
42. Heard the learned counsels for the parties and on appreciation of the factual aspects it is evident from the material available on record that the petitioners were working under the NCLP Schools. After coming into effect the Act, 2009, the Govt. has taken decision for closure of NCLP Special Child Labour School since under the Right to Education Act, the schools cannot be allowed to run.
The authorities have taken decision with respect to the future of the teachers working therein and to that effect a meeting was convened on 23.12.2013 under the chairmanship of the Chief Secretary of the State of Odisha wherein decision has been taken to give appropriate relaxation in age and additional marks for experience subject to the conditions that they should have the requisite qualification and training qualification as per the RTE norms.
It is not in dispute that the Chief Secretary of the State under his chairmanship has taken a decision to grant relaxation in age but when the Government has taken a policy decision by way of resolution in the name of His Excellency the Governor of the State, the decision taken by the Chief Secretary will not prevail upon the decision taken by the State under the rules of Executive business.
As has already been decided relaxation cannot be claimed by way of matter of right rather it is the domain of the State Government to grant relaxation 88 or not, but the High Court, sitting under Article 226 of the constitution of India, cannot issue mandamus upon the State authorities to grant relaxation in the age unless it is arbitrary and suffers with malice but the petitioners have failed to make out a case of arbitrariness over and above the decision taken by the State Government.
43. This court has found that the all along case of the opposite parties is to maintain the education standard by following the statutory provision and in that view of the matter interference by this court under Article 226 of the Constitution of India will amount to transgressing in its jurisdiction, in the result the writ petition lacks merit and accordingly dismissed. CATEGORY-VII
44. These batch of writ petitions have been filed for quashing the resolution dtd.26.12.2016 under Annexure-15 on the ground that they are the candidates who were the petitioners in W.P.(C) No.18542 of 2014 and in view of the direction passed by this court basing upon the decision taken by the High Power Committee granting relaxation in age up to 42 years. The day when this court has passed an order, the selection process has commenced and reached to 3rd preference stage but in the 3rd preference their cases has not been considered and thereafter the 4th and 5th preference has been closed, thereby the petitioners have been deprived from consideration of their candidature even in the light of the order passed by this court in W.P.(C) No.18542 of 2014.
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The petitioners in that background have filed these writ petitions to grant them relaxation up to the age of 42 years by quashing the upper age limit of 32 years as contained in clause 7 of the resolution dtd.26.12.2016.
45. It has been submitted by the learned Sr. Counsel appearing for the petitioners that these petitioners have approached before this court in W.P.(C) Nos.18904 of 2015, 16711 of 2016, 18768 of 2015 and 22369 of 2015 and these cases are pending for consideration before this court.
46. Learned Advocate General, countering the argument and submission of learned Sr. Counsel, has submitted that the petitioners cannot be extended relief in these writ petitions merely on the ground of non-consideration in the previous selection process in the light of the order passed by this court in W.P.(C) No.18542 of 2014, the upper age limit fixed up to the age of 32 years cannot be quashed.
He submits that the ground taken by the petitioners regarding non- consideration is pending consideration in other writ petitions before this court.
47. Heard the learned counsels for the parties and perused the documents available on record.
After hearing the learned counsels for the parties, the fact which is not in dispute in these cases is that all the petitioners were petitioners in W.P.(C) No.18542 of 2014 (quoted above) wherein a coordinate Bench of this court has directed the State Government to constitute a High power Committee and consider to extend the benefit of relaxation in upper age limit and in view thereof the State Govt. constituted a High Power Committee who gave its recommendation in the 90 light of availability of vacancy to grant relaxation by way of one time exercise by relaxing the age up to the age of 42 years and accordingly the writ petition has also been disposed of, although the decision of High Power Committee and this Court's order have been referred above, but for the convenience and at the risk of repetition, the same are again been referred here under as:-
"A meeting was held under the Chairmanship of Commissioner-cum- Secretary to Govt., S & M E Deptt. in pursuance to the direction of hon'ble High Court, odisha in W.P.(C) No.18542 of 2014 for relaxation of upper age limit for engagement of Siksha Sahayak on 24.2.2015 at 12.00 Noon.
The following officers were present in the meeting:-
6. SPD, OPEPA
7. Addl. Secretary to Govt., S & M E Deptt.
8. Addl. Director (General), OPEPA
9. U.C. Mohanty, Consultant, S & M E Deptt.
10. Asst. Director (MIS), OPEPA Commissioner-cum-Secretary wanted to know the total number of candidates joined as Shiksha Sahayak till date. It was informed that as per the available date only 6449 candidates have joined as Shiksha Sahayaks till date as per the first preference offered by candidates.
On analysis of the eligibility conditions of the applicants, it is observed that after completion of all the preferences, the no. of posts advertised may not be filled up due to want of trained candidate and a large number of posts will remain vacant. On the other hand, it is ascertained that 513 no. of candidates beyond the upper age limit but within 42 years of age have applied for SS. Out of these, about 150 no. of SS have taken shelter in Hon'ble high Court which is under sub judice.
Keeping the mandate of RTE in view and taking the vacancies into consideration, the committee decided that the Deptt. will have no objection if the candidates beyond the upper age limit, i.e. up to 42 years of 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 24.08.2013 of S & M E 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 time and only based on Court order. It cannot be considered as precedent.
However, as the case is pending the final order of the Hon'ble High Court will adhered to for relaxation of upper age limit, i.e., 42 years for Shiksha Sahayaks.
The meeting ended with vote of thanks of the Chair."
The decision of the high power committee has been placed before this court at the time of hearing of W.P.(C) No.18542 of 2014, a coordinate Bench of 91 this court has disposed of the writ petition vide order dtd.2.3.2015 by passing the following order:-
"Heard learned counsel for the petitioners and Mr. B. P. Tripathy, learned Standing Counsel for the School & Mass Education Department and Mr. P.K. Mohanty, learned senior counsel for the OPEPA.
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.
Counter affidavit sworn to by Sri Manoj Kumar Mohanty, Joint Secretary to Government, has been filed on behalf of the Commissioner-cum- Secretary to Government, School & Mass Education Department, O.P.1 enclosing the copy of the proceeding of the meeting (Annexure-A/1) 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 vacancies into consideration, the committee decided that the Deptt. will have no objection if the candidates beyond the upper age limit, i.e. up to 42 years of 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 24.08.2013 of S & M E 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 time and only based on Court order. It cannot be considered as precedent.
In view of such decision of the High Power Committee, the writ petition is allowed.
Since the Government in its resolution under Annexure-A/1 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 petitioners. 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. The Misc. Case also stands disposed of.
Issue urgent certified copy.
Let a free copy of this order be supplied to the learned counsel for the School & Mass Education Department."
The day when the writ petition was disposed of, the selection process has already commenced and reached to the stage of 3rd preference district since the selection was directed to be done in pursuance to the decision of the 92 government preference-wise giving preference of 5 districts. The selection process has commenced in view of the fact that no interim order was granted by this court in W.P.(C) No.18542 of 2014. The petitioners' candidature has been considered at the time of consideration of 3rd preference district but they have not been found to be qualified accordingly not selected.
According to the petitioners they have secured higher marks and if their cases would have been considered at the time of consideration of 1 st or 2nd preference, they would have been selected and engaged.
Their further contention is that after conclusion of the selection process at the time of 3rd preference district even the authorities have not preceded with the consideration of candidature for 4th and 5th preference district.
48. Here, the petitioners have challenged the resolution dtd.26.12.2016 by assailing it so far as it relates to fixation of the maximum age of 32 years with a prayer to give them relaxation, but they cannot be granted relaxation in these writ petitions in the light of the order passed by the High Power Committee which contains a condition that relaxation would be granted to those category of candidates who were applicants by way of one time exercise and not to be treated as precedent.
The high court has ordered in W.P.(C) No.18542 of 2014 that the said order will be by way of one time exercise and no benefit will be granted in the future vacancies.
In view of such admitted position, the petitioners cannot get any relief in these writ petitions.
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In view thereof this batch of writ petitions lacks merit and accordingly dismissed.
It is made clear that this court has not gone into the claims of the petitioners which is pending for its consideration in W.P.(C) Nos.18904 of 2015, 16711 of 2016, 18768 of 2015 and 22369 of 2015 before this court.
Accordingly all the writ petitions stand disposed of.
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S.N.Prasad, J.
Orissa High Court, Cuttack, Dated the 23rd October, 2017 / Manas.