Orissa High Court
Pratima Sahoo vs State Of Orissa And Others ...... Opp. ... on 9 November, 2020
Equivalent citations: AIRONLINE 2020 ORI 161
Author: S.K. Mishra
Bench: S. K. Mishra
HIGH COURT OF ORISSA: CUTTACK.
W.P.(C) No.14057 of 2012
In the matter of an application under Articles 226 and 227 of the
Constitution of India.
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Pratima Sahoo ...... Petitioner
-Versus-
State of Orissa and others ...... Opp. Parties
For Petitioner : Mr. Jagadish Biswal.
M/s. D. Routray, P.K. Sahoo, S. Das,
S. Jena,S.K. Samal, S.P. Nath &
S. Rout.
For Opp. Parties : Mr. Karunakar Rath (A.S.C. for School
and Mass Education Department)
PRESENT:
THE HONOURABLE SHRI JUSTICE S. K. MISHRA
Date of hearing - 21.10.2020 : Date of judgment - 09.11.2020
S.K. MISHRA, J. In this writ petition, the petitioner has prayed for issuance of
writ in the nature of certiorari or any other writ/ writs or direction/
directions quashing the impugned order dated 23.05.2012 i.e. Annexure-6
issued by the opposite party no.3- District Project Coordinator, SSA,
Nayagarh and directing the opposite parties more particularly the opposite
party no.2- Collector-cum-Chief Executive Officer, Zilla Parishad, Nayagarh,
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At/PO/ District- Nayagarh to engage her in the post of Sikhya Sahayak in
any Primary School under Bhapur Block.
02. Facts are not in dispute.
The petitioner- Pratima Sahoo was initially engaged as
Anganwadi Worker under the C.D.P.O., Bhapur Block, Bhapur and while
she was continuing in the said post, an advertisement was floated for filling
up of the post of Sikhya Sahayak under Bhapur Block Circle for which the
petitioner who had satisfied all the eligibility criteria in terms of the said
advertisement offered her candidature for the post of Sikhya Sahayak.
Since the petitioner has acquired B.Ed. training, the Selection Committee
after due verification, selected the petitioner for the post of Sikhya Sahayak
under Bhapur Block vide letter dated 31.08.2007 and she was requested to
submit necessary documents for verification, on 05.09.2007 in the office of
the opposite party no.3-District Project Coordinator, SSA, Nayagarh. On the
said date, the documents of the petitioner were verified.
02.1. Thereafter, the petitioner on receiving the engagement order for
the post of Sikhya Sahayak resigned from the post of Anganwadi Worker
and joined as Sikhya Sahayak on 17.10.2007. While she was continuing as
such, all on a sudden, she got a letter on 20.02.2008 wherein the opposite
party no.3- District Project Coordinator, SSA, Nayagarh had issued a show
cause notice to the petitioner as to why she would not be disengaged from
the post of Sikhya Sahayak since she secured less percentage of mark then
other candidates.
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02.2. On receipt of such letter, the petitioner challenged the same by
filing W.P.(C) No.3548 of 2008 which was disposed of by this Court
on 04.04.2008 directing the opposite party no.2-Collector-cum-Chief
Executive Officer, Zilla Parishad, Nayagarh to consider the case of the
petitioner. On 26.08.2008, the petitioner was disengaged from the post of
Sikhya Sahayak with immediate effect on the ground that she has secured
94.66% of mark in B.A. and B.Ed. percentage taken together whereas the
lowest cut-off mark for selection in the category was 96.76%.
02.3. The petitioner, therefore, approached this Court by filing
W.P.(C) No.1940 of 2009 which was disposed of at the threshold directing
the opposite party no.2- Collector-cum-Chief Executive Officer, Zilla
Parishad, Nayagarh to consider the representation of the petitioner within a
period of four months. On 15.03.2012, the writ petition bearing W.P.(C)
No.1478 of 2010 filed by the petitioner challenging the disengagement order
dated 26.08.2008, under Annexure-4, was disposed of, on the basis of the
instructions submitted by the District Project Coordinator of the School and
Mass Education Department that there were 2 vacancies in B.Ed. category,
directing the opposite party no.2- Collector-cum-Chief Executive Officer,
Zilla Parishad, Nayagarh to reconsider the matter, if any post is lying
vacant, by taking a sympathetic view. On 23.03.2012, the petitioner filed a
fresh representation before the opposite party no.2 enclosing a copy of the
order dated 15.03.2012 passed by this Court in W.P.(C) No.1478 of 2010.
However, the representation of the petitioner was rejected by the opposite
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party no.2- Collector-cum-Chief Executive Officer, Zilla Parishad, Nayagarh
on 21.05.2012 vide enclosed disposal order under Annexure-6 to the
writ petition. That order passed by the opposite party no.2- Collector-cum-
Chief Executive Officer, Zilla Parishad, Nayagarh on 21.05.2012 was
intimated to the petitioner vide letter dated 23.05.2012 under Annexure-6
issued by the opposite party no.3-District Project Coordinator, SSA,
Nayagarh. In the order dated 21.05.2012 the exact reasons given by the
opposite party no.2- Collector-cum-Chief Executive Officer, Zilla Parishad,
Nayagarh in rejecting the representation of the petitioner can be well
perceived from the plain languages used by him.
"In order to comply the Hon'ble High Court's order in
W.P.(C) No.1940/2009, the petitioner Smt. Sahoo was
heard personally on 8.4.2009 by the then Collector. The
Collector observed that it is not a matter only between
the Appointing Authority and the Appointee concerned.
The aggrieved one can be all those who had similar or
better qualification than the appointee. It will be
improper to appoint a person with inferior or lower
marks ignoring better candidates. Giving reengagement
to such candidates will amount to perpetuation of
injustice." (underline supplied)
03. Terming the reasoning given by the opposite party no.2-
Collector-cum-Chief Executive Officer, Zilla Parishad, Nayagarh to be
inappropriate and erroneous, learned counsel for the petitioner submitted
that while considering the case between the Appointing Authority and the
Appointee concerned, the opposite party no.2- Collector-cum-Chief
Executive Officer, Zilla Parishad, Nayagarh should not have taken into
consideration the persons who may have higher marks than the petitioner
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but has accepted the fait accompli and have not taken any step for
redressal of their grievances, if they have any.
03.1. The other distinguishing feature in this case is that the cases of
some persons were considered, though they have not come forward to
knock the doors of the Court or even of the authorities. But, when the
petitioner was found eligible; she was given letter of appointment; she
resigned from her service as an Anganwadi Worker and then joined the post
of Sikhya Sahayak and continued for some time, thereafter, this matter
arose.
04. Learned counsel for the petitioner argued that for no fault on
the part of the petitioner, she has been left to suffer in this case. It is not
the case of the Appointing Authority that the petitioner had concealed the
marks she has secured or anyway made any misrepresentation in order to
secure the post for which she had applied for. If there was any mistake in
calculation of the percentage of marks and the inter se ranking between the
candidates then it is the fault of the Appointing Authority and his/ her
staffs. In such a situation, where the petitioner has left a gainful
employment of Anganwadi Worker and joined the post of Sikhya Sahayak
then the State of Orissa and the District Administration shall be the
estopped from raising the plea of mistake and hence, the order of
disengagement and rejection of representation of the petitioner have to be
set aside.
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05. The specific plea taken by the opposite party no.3- District
Project Coordinator, SSA, Nayagarh, District- Nayagarh was that the
petitioner had applied for the post of Sikhya Sahayak pursuant to the
advertisement made in the year 2006 and the petitioner had applied for the
same post for Bhapur Block under B.Ed. category vacancy. The opposite
party no.3- District Project Coordinator, SSA, Nayagarh, District- Nayagarh
admitted that the name of the petitioner was wrongly inserted in the select
list in B.Ed. category as the mark of B.Ed. examination was calculated
wrongly as 467 out of 900 which was actually 467 out of 950. It was,
therefore, submitted that the total percentage in B.A. and B.Ed. taken
together was wrongly calculated as 97.39% instead of 94.66%. Without
detecting the above mistake, the petitioner was given engagement order at
that time for the post of Sikhya Sahayak.
05.1. When the matter stood thus, pursuant to the direction of this
Court in W.P.(C) No.13326 of 2007 filed by one Anusuya Pattajoshi against
the State of Orissa and others, the percentage of marks of the petitioner
was re-calculated and error was detected against calculating marks of
B.Ed. examination. After detection of error, it was rectified and said
Anusuya Pattajoshi was given engagement in place of the present petitioner
and the petitioner was disengaged immediately by the Collector-cum-
Chairman, District Selection Committee due to less percentage than the
selected candidates. Alternatively, it was submitted by the learned counsel
for the opposite parties that this writ petitioner was an applicant to the
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panel of 2006-07 which had already been expired and even after that panel,
two other recruitments for Sikhya Sahayak had been completed during
2010-11 and 2011-12 and hence, the engagement of the petitioner who
hold the position below to some other meritorious candidates and waiting
list's applicants from 2006-07 panel is now not suitable in the eyes of law.
05.2. Mr. K. Rath, learned Additional Standing Counsel for the
School and Mass Education Department submitted that any order passed
by this Hon'ble Court at this juncture directing engagement of the
petitioner in the cadre of Sikhya Sahayak under Bhapur Block will unsettle
the settled position as prevailing at present.
06. In the case of Shyam Babu Verma and Others -vrs.- Union of
India and Others: reported in (1994) 2 SCC 521, the Hon'ble Supreme
Court has held that in case higher pay scale erroneously was given to the
petitioners since 1973 and the same was reduced in 1984, the petitioners
received the higher scale due to no fault of theirs, it shall only be just and
proper not to recover any excess amount already paid to them. Similar view
has been taken by the Hon'ble Supreme Court in the case of Sahib Ram -
vrs.- State of Haryana and Others: reported in 1995 Supp.(1) SCC 18.
06.1. In the case of Sanatan Gauda -vrs.- Berhampur University
and Others: reported in (1990) 3 SCC 23, the Hon'ble Supreme Court
expanding the scope of promissory estoppels held that if a student is
admitted, allowed to appear in examination and later admitted to the final
year course but at the stage of declaration of his results of pre-Law and
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Inter-Law examinations, objections to his ineligibility to be admitted to the
Law course raised by University on the basis of its own interpretation of
the relevant regulations is to be countenance, as the University is estopped
from refusing to declare the results of appellant's examination or from
preventing him from pursing his final year course because the appellant
has made no false statement and suppressed any evidence before the
authority and the student cannot be punished by the University for
negligence of the Principal or the University Authority.
06.2. In the case of Minati Kar and Others -vrs.- Rashtriya
Sanskrit Sansthan and Another: reported in 1993 (II) OLR 342, a Division
Bench of this Court held that "xx xx xx Admittedly, the petitioners did not
have 45 % of marks as required under Clause 1(a) of the prospectus. The
prospectus clearly stipulated that form should be filled in only if the
candidate fulfils the eligibility requirements. It is no doubt true that by
permitting the petitioners to appear at the entrance test and, thereafter, by
admitting them to the course and they having pursued their courses for one
year, they have already wasted more than two years and it is because of the
fact that the opposite parties by their conduct entertained their application
forms and permitted them to appear at the test and, thereafter, on the
basis of the result of the test permitted them to take admission and
undergo studies for one year". Distinguishing the ratio decided by this
Court, in the case of Suresh Chandra Choudhury -vrs.- the Berhampur
University and others: reported in AIR 1987 Orissa 38, the Division Bench
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of this Court held that the plea of estoppels will not apply as the petitioner
was aware of the true state of things. In the said case, this Court has
not applied the principles of promissory estoppels.
07. Applying the aforesaid principles to the present case, we
noticed the following silent features that are not disputed by anybody:
(i) The petitioner was holding the post of Anganwadi Worker
and was discharging her duties;
(ii) The petitioner had applied pursuant to the advertisement
for appointment as Sikhya Sahayak;
(iii) As per the advertisement, the petitioner was eligible to
apply for the post of Sikhya Sahayak;
(iv) It is not disputed by anybody that the petitioner had
made any false representation or anyway inflated the marks
she has obtained;
(v) There was a mistake on the part of the Appointing
Authority while calculating the petitioner's B.A. and B.Ed.
combined percentage;
(vi) The petitioner was appointed pursuant to a letter of
appointment issued in her favour; and
(vii) The petitioner resigned from the post of Anganwadi
Worker and she joined the post of Sikhya Sahayak.
08. It is not disputed by anybody that the State of Orissa and
consequently the District administration headed by the District Collector-
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cum-Magistrate are the State and, therefore, they should act as a model
employer. They should not in any manner put any employee or any
servant under them to any kind of prejudicial and disadvantage position for
the fault of the employees of the Government. In this case, the petitioner
has not misrepresented about her marks. The marks of the petitioner were
miscalculated by the authorities-in-charge of the selection procedure. As a
result of the miscalculation, the petitioner was held to be eligible to be
appointed as Sikhya Sahayak. The appointment letter i.e. Annexure-1 was
issued in favour of the petitioner for engagement as Sikhya Sahayak.
09. Section 115 of the Indian Evidence Act, 1872 provides for the
definition of estoppel which is as follows:
"When one person has, by his declaration, act or
omission, intentionally caused or permitted another person
to believe a thing to be true and to act upon such belief,
neither he nor his representative shall be allowed, in any
suit or proceeding between himself and such person or his
representative, to deny the truth of that thing.
Illustration
A intentionally and falsely leads B to believe that
certain land belongs to A, and thereby induces B to buy and
pay for it.
The land afterwards becomes the property of A, and
A seeks to set aside the sale on the ground that, at the time
of the sale, he had no title. He must not be allowed to prove
his want of title."
10. Thus, in this case, the district administration, being an integral
part of the State of Orissa, by its declaration i.e. act of issuing order of
appointment intentionally caused the petitioner to believe that she is found
to be eligible on comparison of the marks secured by all the candidates and
she acted upon such belief, thereby resigned from the post of Anganwadi
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Worker and joined the post of Sikhya Sahayak under Bhapur Block. In
such situation, neither the State of Orissa nor its representatives i.e. the
district administration or the Director of the OPEPA, in any proceeding
between it and the petitioner deny the truth of that thing. Once the State
Government has allowed the petitioner to believe that she has qualified in
the selection process and is being appointed as Sikhya Sahayak in
pursuance of which she resigned from the post of Anganwadi Worker and
worked for almost six to eight months as Sikhya Sahayak, the district
administration/ State Government cannot deny that she does not qualify
for the post of Sikhya Sahayak.
11. Hence, it is directed that the petitioner should be absorbed as
Sikhya Sahayak under Bhapur Block with immediate effect. This order be
complied with by the opposite parties within a period of two months hence.
Accordingly, this writ petition is disposed of.
There shall be no order as to costs.
As restrictions are continuing due to COVID-19 pandemic,
learned counsel for the parties may utilize the soft copy of this order
available in the High Court's official website or print out thereof at par with
certified copies in the manner prescribed, vide Court's Notice No.4587,
dated 25.03.2020.
..............................
S.K. Mishra, J.
Orissa High Court, Cuttack, Dated 9th of November, 2020/B.Jhankar