Orissa High Court
Anil Kumar Jena & Ors vs State Of Odisha & Ors. .... Opposite ... on 12 March, 2024
Author: Biraja Prasanna Satapathy
Bench: Biraja Prasanna Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.978 of 2024
In the matter of an application under Articles 226 & 227 of the
Constitution of India.
..................
W.P.(C) No.1385 of 2024
Anil Kumar Jena & Ors. .... Petitioners
-versus-
State of Odisha & Ors. .... Opposite Parties
W.P.(C) No.1496 of 2024
V. Avyakta .... Petitioner
-versus-
State of Odisha & Ors. .... Opposite Parties
W.P.(C) No.1499 of 2024
Sriyanka Sethi .... Petitioner
-versus-
State of Odisha & Ors. .... Opposite Parties
W.P.(C) No.1560 of 2024
Bhaktahari Mohanty & Ors. .... Petitioners
-versus-
State of Odisha & Ors. .... Opposite Parties
// 2 //
W.P.(C) No.1945 of 2024
K. Rajani Rani .... Petitioner
-versus-
State of Odisha & Ors. .... Opposite Parties
W.P.(C) No.1591 of 2024
Mustakim Ahemad .... Petitioner
-versus-
State of Odisha & Ors. .... Opposite Parties
W.P.(C) No.1599 of 2024
Samir Kumar Dethi & Ors. .... Petitioners
-versus-
State of Odisha & Ors. .... Opposite Parties
W.P.(C) No.1712 of 2024
Rajalaxmi Balabantaray .... Petitioner
-versus-
State of Odisha & Ors. .... Opposite Parties
W.P.(C) No.978 of 2024
Chintamani Bhuian & Ors. .... Petitioners
-versus-
State of Odisha & Ors. .... Opposite Parties
Page 2 of 50
// 3 //
For Petitioners : Mr. S.K. Das, Advocate
For Opp. Parties : Mr. A.K. Parija, Advocate General
along with
Mr. Saswat Dash,
Addl. Govt. Advocate
Mr. M.K. Balabantaray,
Addl. Govt. Advocate
PRESENT:
THE HON'BLE JUSTICE BIRAJA PRASANNA SATAPATHY
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Date of Hearing: 31.01.2024 and Date of Judgment: 12.03.2024
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Biraja Prasanna Satapathy, J.
Since all these writ petitions involve similar question of law and fact and have been filed challenging the process of selection adopted by Opp. Party No. 2 with regard to recruitment to the post of Junior Teacher (Schematic) in the Primary and Upper Primary Schools under different districts of Odisha, all were heard analogously and disposed of by the present common order. However, for the sake of convenience and considering the fact that pleadings were completed with filing of counter affidavit as well as rejoinder affidavit and written notes of submission in W.P.(C) No. 978 of 2024, the same was treated as the lead case in the present batch of writ petitions and the facts stated in the Page 3 of 50 // 4 // said writ petition is to be taken into consideration for effectual adjudication of the dispute.
2. Learned counsel appearing for the Petitioners in W.P.(C) No. 978 of 2024 contended that for recruitment to the post of Junior Teacher (Schematic) advertisement/notice was issued on 10.09.2023 under Annexure-2 by Opp. Party No. 2 i.e. Odisha School Education Programme Authority (in short OSEPA). It is contended that such a notice under Annexure-2 was issued in pursuance of the School & Mass Education Department, Odisha Resolution No. 20336/SME dtd.22.08.2023 and letter No. 21742/SME dtd.08.09.2023. 2.1. It is contended that in the resolution issued by the Govt.-Opp. Party No. 1 on 22.08.2023 under Annexure-1 to the writ petition, the guideline for engagement of Junior Teacher (Schematic) was prescribed. Para 5 of the resolution deals with the eligibility criteria to fill up the post of Junior Teacher (Schematic) in both category i.e. Category 1 for Class I to V and Category 2 for Class VI to VIII. Para 5 of the resolution reads as follows:-
"5. ELIGIBILITY Candidates securing percentage of marks in their academic qualification as per the eligibility mentioned below can apply for the online computer-based test for engagement as Junior Teacher (Schematic). The percentage of marks secured by the candidates in aggregate out of the total marks will be taken into consideration for eligibility.Page 4 of 50
// 5 // 5.1 (1) CATEGORY-1 (For Classes I to V)
(a) Higher Secondary (+2) or its equivalent with at least 50% marks and 2-year Diploma in Elementary Education (by whatever name known) OR Higher Secondary (+2) 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.
Higher Secondary (+2) or its equivalent with at least 50% marks and 4-year Diploma in Elementary Education (B.El.Ed.) OR Higher Secondary (+2) 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 Odisha Teacher Eligibility Test-I (OTET-I) c. Candidates must have Odia as MIL up to class-X or pass in odia language test equivalent to Matric standard conducted or declared equivalent by Board of Secondary Education, Odisha except for the candidates as mentioned under Para 5.2.
(ii) CATEGORY-2 (For Classes VI to VIII) a. Graduation and two-year Diploma in Elementary Education (by whatever name known) OR At least 50% marks either in Graduation or in Post-Graduation and B.Ed.
OR Page 5 of 50 // 6 // Graduation with at least 45% marks and 1-year Bachelor of Education (B.Ed.) in accordance with the NCTE (Recognition Norms and Procedure) Regulations issued from time to time in this regard.
OR Higher Secondary (+2) or its equivalent with at least 50% marks and 4-year Bachelor in Elementary Education (B.El.Ed.) OR Higher Secondary (+2) 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) OR Post-Graduation with a minimum 55% marks or equivalent grade and three-year integrated B.Ed-M.Ed.
AND b. Pass in Odisha Eligibility Test-II (OTET-II) c. Candidates must have odia as MIL up to class-X or pass in odia language test equivalent to Matric standard conducted or declared equivalent by Board of Secondary Education, Odisha except for the candidates as mentioned under Para 5.2.
5.2 In order to be eligible for Urdu/Bengali/Telugu Junior Teacher (Schematic), candidates must have passed Urdu/ Bengali/Telugu as the case may be as MIL up to High School Certificate (HSC) standard. Since their engagement is likely to be held in the bilingual schools, such candidates shall produce a certificate from the Head Master of the concerned school to the effect that she/he has passed HSC examination in odia medium.
5.3 Persons with Diploma in Education (Special Education) or B.Ed. (Special Education) qualification shall undergo, after appointment, an NCTE recognised 6- month Special Programme in Elementary Education. Page 6 of 50
// 7 // 5.4 Relaxation of 5% in minimum qualifying marks shall be allowed to the candidates belonging to reserved categories, such as SC, ST, SEBC and PwDs. 5.5 Candidates can apply in Category-1, in category-2 or both as per their eligibility. In case a candidate applies for both the categories, she/he will have to exercise irrevocable option of preference (between category 1 and 2) for engagement at the time of submission of application. Explanation i. For the purpose of equivalency of Higher Secondary (+2), examinations conducted by the institutions declared equivalent by the Council of Higher Secondary Education, Odisha shall be considered. ii. For the purpose of equivalency of Graduation and Post- Graduation, examinations conducted by the institutions declared equivalent by the Universities of Odisha shall be considered. The said university must have been affiliated to UGC.
iii. For the purpose of degree in Teacher Education (B.Ed.), B.Ed. Degree of other universities declared equivalent with corresponding degree of the Universities of Odisha and a course recognised by the NCTE shall be considered.
iv. For the purpose of two years Diploma in Education (Special Education) or one year B.Ed, (Special Education), a course recognised by Rehabilitation Council of India (RCI) shall be considered. The candidate must have registered his/her name with the RCI and at the time of submission of application, she/he has to submit the RCI Registration certificate.
v. Candidates possessing Academic/Training qualifications from Boards/Universities/Institutions outside Odisha shall have to produce the authenticated proof of equivalency, affiliation of the ir institution to a recognised University and recognition of such training course and institute Page 7 of 50 // 8 // by NCTE, failing which she/he shall not be considered as eligible for selection.
vi. A candidate furnishing certificates, mark sheets with grades and grade points shall have to also furnish numerical equivalence of grades/grades point from the examining bodies failing which she/he shall not be treated as eligible for selection.
vii. In case of compartmental examination, the fail marks secured in the subject(s) is to be deducted from the total marks and pass marks of the compartmental examination shall be added to the total marks for arriving at the effective percentage of marks."
2.2. Similarly, Para 8 of the resolution prescribes the selection procedure to be followed for such recruitment to the post of Junior Teacher (Schematic). Para 8 of the resolution is reproduced hereunder:-
"8. SELECTION PROCEDURE 8.1 Publication of Master List After expiry of last date of submission of online application form, list of the candidates for each category with respect to their first preference district as submitted by them at the time of submission of application form will be published in OSEPA website. Information on subsequent preference districts of each candidate will also be available in OSEPA website on search.
8.2 Online Computer-Based Test An online computer-based test will be conducted by OSEPA /an Authorised Agency as per the syllabus contained in the advertisement to be published before the recruitment.
8.3 District wise and Category wise draft merit list District wise and category wise draft merit list will be published in OSEPA website. Draft merit list will be prepared taking into consideration all district preference submitted by individual candidates in order of preference followed by merit rank je for a particular district, after exhausting all Page 8 of 50 // 9 // candidates having 1st preference, subsequent preferences will be considered. In case of a tie i.e. when two or more candidates obtain equal score, inter-se merit of such candidates shall be decided in the order as mentioned below:
i. Date of birth (Older candidate will be above other candidates) ii. Percentage of marks in qualifying examination i.e. in Higher Secondary (or its equivalent) will be considered. In case of further tie, marks secured in Graduation will be taken into consideration followed by post-Graduation marks.
If a tie still persists, Government will issue suitable instructions for breaking the tie.
For a particular post, in a category within district, district preference will be preferred over merit.
8.4 Document verification After publication of the draft merit list, all candidates in the said list will be called for verification of original documents at their respective district headquarters. All documents required for verification will be notified by OSEPA in the detailed advertisement in OSEPA website.
During document verification, if any candidate is not able to produce the essential document(s) in support of his/her claim of the Social/Special category/Age proof/Academic & Training qualification/RCI registration certificate as per information provided in the application form, the candidature will be rejected and his/her name will be marked as deleted in the draft merit list. The candidates have to produce the Academic and Training qualification/RCI registration certificate (in case of Special Education Candidates) acquired/issued on or before the last date of submission of online application.
8.5 Preparation of District wise Provisional Merit List and Approval Page 9 of 50 // 10 // Provisional merit list will be prepared after document verification of the candidates placed in the draft merit list. Then objections will be invited from the candidates who are placed in the provisional merit list and rejection list. The provisional merit list will be approved by the Competent Authorities at respective districts after verification of the original documents and inviting objections from candidates within specific time period as mentioned in the calendar of activities issued by the School & Mass Education Department. 8.6 Publication of District wise Final Merit List District wise final merit list will be published at concerned District websites as well as OSEPA website after approval by the Competent Authority. 8.7 Counselling The candidates will be called for allocation of schools through counseling by respective districts. Separate notifications will be issued and displayed by respective districts in their District websites as well as OSEPA website. Vacancies remain due to unavailability of eligible candidates, rejection and non-joining will be carried forward and recruitment will be done subsequently as per requirement. There will be no waiting list." 2.3. Placing reliance on the provisions contained under Para 8 of the resolution, learned counsel appearing for the Petitioners contended that as provided under Para 8.1, after expiry of last date of submission of online application form, list of the candidates for each category with respect to their first preference district as submitted by them at the time of submission of application form will be published in OSEPA website. Information on subsequent preference district of each candidate will be available in OSEPA website on search. After such publication of the Master list, as provided under Para 8.2, an online Computer Based Test Page 10 of 50 // 11 // will be conducted by OSEPA/ an authorized agency as per the syllabus contained in the advertisement to be published before the recruitment. It is contended that after publication of the Master list in terms of the provisions contained under Para 8.1 of the Resolution, the Computer Based Test was conducted by an agency namely EdCIL (India Limited), which is a 'Mini Ratna', Category-I CPSE, Govt. of India. 2.4. It is contended that after conduct of such Computer Based Test by the aforementioned agency, as provided under Para 8.3 of the resolution, a district wise and category wise draft merit list is required to be published in OSEPA Website. As further provided under Para 8.3, draft merit list should be prepared taking into consideration all district preference submitted by individual candidates in order of preference followed by merit rank i.e. for a particular district. After exhausting all candidates having 1st preference, subsequent preference will be considered. It is also indicated in Para 8.3 that for a particular post, in a Category within district, district preference will be preferred over merit. 2.5. It is contended that as provided in the resolution a candidate with having the requisite eligibility can make his application for both Category 1 and Category 2, but the fact remains that after conduct of the Online Computer Based Test as provided under Para 8.2, district wise and category wise draft merit list was to be published by OSEPA Page 11 of 50 // 12 // in its website in terms of the provisions contained in Para 8.3. But without complying the provisions contained under Para 8.3 of the resolution, when the impugned draft result sheet of Junior Teacher (Schematic)-2023 was published in the OSEPA website under Annexure-6, but not in terms of the provisions contained under Para 8.3 of the resolution, all these present batch of writ petitions including the present writ petition was filed challenging such illegal action of OSEPA in not adhering to the provisions contained under Para 8.3. 2.6. It is contended that since as provided under Para 8.3 of the resolution under Annexure-1, Opp. Party No. 2 was required to publish district wise and category wise merit list taking into consideration all district preference submitted by individual candidates in order of preference followed by merit rank for a particular district, the draft result sheet published under Annexure-6 series is not in terms of the provisions contained under Para 8.3. It is accordingly contended that such a draft merit list published by OSEPA under Annexure-6 is not sustainable in the eye of law.
2.7. It is also contended that without publishing the district wise and category wise draft merit list as provided under Para 8.3, when Opp. Party No. 3 issued the notice in terms of the provisions contained under Para 8.4, asking the candidates to go for verification of their original Page 12 of 50 // 13 // documents in their respective district headquarters, this Court considering the submission made by the learned counsel appearing for the Petitioners as well as learned Advocate General appearing for the State while directing the State to obtain instruction vide order dtd.19.01.2024, passed an interim order to the following effect in I.A. No. 1012 of 2024:
"1. Since basing on the impugned draft result sheet published under Annexure-6 series, verification of documents has been fixed to 20th & 21st of this month, let the process with regard to verification of the documents may continue on the date fixed, but no final decision be taken with regard to final selection and appointment till 24th January, 2024."
2.8. Learned counsel for the Petitioners contended that after passing of the interim order by this Court on 19.01.2024, Opp. Party No. 2 though published the district wise merit list of candidates for each of the 30 districts of the State and an affidavit was filed in that regard by Opp. Party No. 2, a rejoinder affidavit was filed by the Petitioners to the affidavit so filed by Opp. Party No. 2 on 24.01.2024.
3. The stand taken by Opp. Party No. 2 in Para 5 & 6 of the affidavit dtd.24.01.2024 is reproduced hereunder:-
"5. That with regard to the statements made in Paragraph -5 of the affidavit of the Opp. Party No.2, it is humbly submitted that Clause-8 of the Government resolution dtd:22.08.2023 given a detail procedure and stages for selection, which are summaries as follows:Page 13 of 50
// 14 // ➤Clause-8.1- On expiry of last date of submission of application form, a master list of candidates of each category with respect to their 1"
preference districts is to be published in the OSEPA website. ➤ Clause-8.2- Online computer based test is to be conducted. ➤Clause-8.3- Draft merit list is to be prepared taking into consideration the district preference of the individual candidates for a particular district. After exhausting of candidates having 1" preference, subsequent preference will be considered.
It means the merit list is to be prepared and published with the candidates from their 1" preference districts in the descending order of their mark in the CBT.
Nowhere in Clause-8.3, it has been authorized to the OSEPA to prepare a state wise combined merit list and then allot the candidates to their 1 preference districts. On the list is to be prepared on the basis of the candidates of the 1" preference districts. Therefore the cutoff mark may vary from one district to another. That means there will be 30 cutoff marks for 30 districts of the State. But as it understood from the affidavit filed by the Opp. Party No.2, it has prepared and state wise combined list and then allot them to the district. This is quite illegal and wrong. ➤ Clause-8.4- From these draft merit list candidates are to be directed to cause their original documents verified in the respective districts headquarters.
➤Clause-8.5- After verification of documents a provisional merit list is to be prepared, district wise and the merit list will be put to objection if any by any candidates and then it has to get its approval from the competent authority of respective districts.
➤Clause-8.6- On completing all the above procedure the district wise final merit list to be published in the OSEPA website after approval of the competent authority.
Page 14 of 50
// 15 // ➤Clause-8.7- All these candidates named in the final merit list of particular districts are called upon for counseling for their choice of posting of school.
In the aforesaid premises the procedure prescribed under the Government resolution dtd:22.08.2023 has to be followed scrupulously. But in the case in hand the Government guideline has been violated by the Opp. Party No.2 at the stage of Clause-8.3 i.e. preparation of district wise and category wise fresh merit list. Instead of preparing the district wise merit list the Opp. Party No.2 has prepared a state wise list under Annexure-6 series and basing on such a list under Annexure-6 series, directed for document verification, which was conducted on 20th and 21 January, 2024. Therefore there is clear violation of the Clause-8.3 of the Government resolution dtd:22.08.2023.
6. That with regard to the statements made in paragraph-6 of the affidavit filed by the Opp. Party No.2 it is humbly submitted that it is quite incorrect and misleading on the part of the Opp. Party No.2 to say that he has prepared the district wise and category wise draft merit list subsequently across the 30 districts and kept in a sealed covered. The aforesaid statement made in Paragraph-6 well justify that the Opp. Party No.2 violated the guideline. Furthermore such a procedure adopted by the Opp. Party No.2 is unacceptable and illegal for the following reasons:
➤ If the district wise and category wise list was prepared and kept in a sealed covered after the order of the Hon'ble Court, it is not understood how could the Opp. Party No.2 in Paragraph-5 of the affidavit stated that the documents verification of 8829 candidates of Category-I was completed on 20.01.2014 and 7989 candidates from Category-II have been completed on 21.02.2024. From which list he has done it. When the list is in a sealed covered and not made public, how the verification could be possible. Hence it is a complete misleading statement.
➤ The petitioners have already filed an affidavit with documents on 24.01.2024 clarifying the position with evidence that the so called district wise and category wise list is being prepared by the state authorities as Page 15 of 50 // 16 // alleged and kept in sealed cover is candidates from Annexure-6 series i.e. state wise list cannot be said to be in consonance with Clause-8.3 of the Government guideline, hence the statements made in Paragraph-6 of the affidavit are absolutely baseless and misleading.
➤When the draft list is in a sealed covered, it is not understood how could the Opp. Party No.2 called the candidates for verification of documents and from which list. This proves Annexure-6 series is a state wise list." 3.1. It is also stated in the affidavit that in terms of the notification issued by Opp. Party No. 2 on 16.01.2024 vide Annexure-A/2 series and following the interim order passed by this Court on 19.01.2024 verification of documents of the candidates in both Category 1 and Category 2 was conducted successfully on the date fixed. It is also stated in the affidavit that taking into account the interim order passed by this Court on 19.01.2024, separate merit list district wise for each of the 30 districts of the State was also published.
4. To the stand taken in the affidavit dtd.24.01.1024, a rejoinder affidavit was filed by the Petitioners. Basing on the stand taken in the rejoinder affidavit, learned counsel for the Petitioners contended that because of the dispute raised in the writ petition, the authorised agency EdCIL issued a press release under Annexure-D, indicating therein that a combined merit list of the candidates was handed over to OSEPA on 13th January, 2024 followed by submission of merit list with district allocation on 15th January, 2023. Taking into account the stand taken in the press release issued by the agency, learned counsel appearing for Page 16 of 50 // 17 // the Petitioners contended that since in terms of the provisions contained under Para 8.3 of the resolution a district wise and category wise list was required to be published for each of the 30 districts of the State, the stand taken in the press release by the agency clearly indicates that no such district wise and category wise merit list was ever handed over by the said agency to OSEPA. But after receipt of the combined merit list so handed over by the agency to OSEPA on 13.01.2024 and the merit list with district allocation on 15.01.2024, the impugned draft result sheet was published under Annexure-6 series on 16.01.2024.
4.1. To the stand taken in the affidavit so filed by Opp. Party No. 2 that after passing of the interim order on 19.01.2024 by this Court, district wise list has already been published by segregating the candidates to different districts from out of the draft result sheet published under Annexure-6 series, learned counsel for the Petitioners vehemently contended that the list so published district wise has also not been published in terms of the provisions contained under Para 8.3 of the resolution.
4.2. To be specific and giving an example to the district wise list published by OSEPA in its website and so produced before this Court in sealed cover, learned counsel appearing for the Petitioners contended Page 17 of 50 // 18 // that in the district wise list published for the district of Balasore & Sambalpur, which was downloaded by the Petitioners on 18.01.2024, it is found that candidates giving 1st preference to other districts have been enlisted in the district list of Sambalpur. Not only that in the district list published for Kalahandi district as well as Gajapati, candidates who have never preferred Gajapati as their 1st preference district found place in the district list for Gajapati. 4.3. Taking a cue from the district wise list published by OSEPA after passing of the interim order by this Court, learned counsel appearing for the Petitioners brought to the notice of this Court the district wise list published in Category 1 for the district of Sambalpur and contended that candidates placed at Sl. No. 76 had given his 1st preference for Jharsuguda. But his name was reflected in the district wise list published for the district of Sambalpur. Similarly, in respect of the district wise list published for the district of Kalahandi vide Annexure- G, candidate placed at Sl. No. 10 has given his 1 st preference as Balasore and candidate placed at Sl. No. 11 has given his 1st preference as Keonjhar as per the verification conducted by the Petitioners and so enclosed vide Annexure-H to the rejoinder.
4.4. Placing reliance on the discrepancies in the district wise list for Sambalpur as submitted under Annexure-F and in respect of Kalahandi Page 18 of 50 // 19 // district under Annexure-H and so also in respect of Gajapati district as submitted under Annexure-J to the rejoinder, learned counsel appearing for the Petitioners contended that even though district wise list was published after segregating the names from the impugned list published under Annexure-6, candidates who have given their 1st preference in respect of other districts since have been included in a particular district, it is to be held that district wise and category wise list so published after publication of the impugned result sheet under Annexure-6 series is also not in terms of the provisions contained under Para 8.3 of the resolution.
4.5. Making all these submissions, learned counsel appearing for the Petitioners contended that since in terms of the provisions contained under Para 8.3 of the resolution district wise and category wise list has not been published by allotting candidates to a particular district who have given their 1st preference, not only the impugned draft result sheet published under Annexure-6 series is illegal but also the district wise list published by Opp. Party No. 2 subsequent to the interim order passed by this Court and so contended in the affidavit filed by Opp. Party No. 2 on dtd.24.01.2024.
4.6. It is accordingly contended that since the selection has not been conducted with publication of the merit list in terms of the provisions Page 19 of 50 // 20 // contained under Para 8.3 of the advertisement, such process of selection conducted by Opp. Party No. 2 is vitiated and liable for interference of this Court. In support of his aforesaid submission learned counsel appearing for the Petitioners relied on the decisions of the Hon'ble Apex Court in the case of Union of India & Ors. Vs. V. Mahendra Singh (Civil Appeal No. 4807 of 2022) disposed of on 25.07.2022. Hon'ble apex Court in Para 14 of the said Judgment has held as follows:-
"14. The argument of Mr. Bhushan that use of different language is not followed by any consequence and, therefore, cannot be said to be mandatory is not tenable. The language chosen is relevant to ensure that the candidate who has filled up the application form alone appears in the written examination to maintain probity. The answer sheets have to be in the language chosen by the candidate in the application form. It is well settled that if a particular procedure in filling up the application form is prescribed, the application form should be filled up following that procedure alone. This was enunciated by Privy Council in the Nazir Ahmad v. King-Emperor9, wherein it was held that "that where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all. Other methods of performance are necessarily forbidden."
4.7. Similarly, reliance was placed in the decision of the Hon'ble Apex Court in the case of K. Manjushree Vs. State of Andhra Pradesh & Anr. (2008) 3 SCC 512. Hon'ble Apex Court in Para 27 of the said Judgment has held as follows:-
Page 20 of 50
// 21 // "27. But what could not have been done was the second change, by introduction of the criterion of minimum marks for the interview. The minimum marks for interview had never been adopted by the Andhra Pradesh High Court earlier for selection of District & Sessions Judges, (Grade II). In regard to the present selection, the Administrative Committee merely adopted the previous procedure in vogue. The previous procedure as stated above was to apply minimum marks only for written examination and not for the oral examination. We have referred to the proper interpretation of the earlier Resolutions dated 24-7-2001 and 21-2-2002 and held that what was adopted on 30-11-2004 was only minimum marks for written examination and not for the interviews. Therefore, introduction of the requirement of minimum marks for interview, after the entire selection process (consisting of written examination and interview) was completed, would amount to changing the rules of the game after the game was played which is clearly impermissible. We are fortified in this view by several decisions of this Court. It is sufficient to refer to three of them -- P.K. Ramachandra Iyer v. Union of India [(1984) 2 SCC 141 : 1984 SCC (L&S) 214] , Umesh Chandra Shukla v. Union of India [(1985) 3 SCC 721 : 1985 SCC (L&S) 919] and Durgacharan Misra v. State of Orissa [(1987) 4 SCC 646 : 1988 SCC (L&S) 36 : (1987) 5 ATC 148] .
4.8. Reliance was placed to the decision of the Hon'ble Apex Court in the case of Bedanga Talukdar Vs. Saifudaullah Khan & Ors. (2011) 12 SCC 85. Hon'ble apex Court in Para 29 to 32 of the said Judgment has held as follows:-Page 21 of 50
// 22 // "29. We have considered the entire matter in detail. In our opinion, it is too well settled to need any further reiteration that all appointments to public office have to be made in conformity with Article 14 of the Constitution of India. In other words, there must be no arbitrariness resulting from any undue favour being shown to any candidate. Therefore, the selection process has to be conducted strictly in accordance with the stipulated selection procedure.
Consequently, when a particular schedule is mentioned in an advertisement, the same has to be scrupulously maintained. There cannot be any relaxation in the terms and conditions of the advertisement unless such a power is specifically reserved. Such a power could be reserved in the relevant statutory rules. Even if power of relaxation is provided in the rules, it must still be mentioned in the advertisement. In the absence of such power in the rules, it could still be provided in the advertisement. However, the power of relaxation, if exercised, has to be given due publicity. This would be necessary to ensure that those candidates who become eligible due to the relaxation, are afforded an equal opportunity to apply and compete. Relaxation of any condition in advertisement without due publication would be contrary to the mandate of equality contained in Articles 14 and 16 of the Constitution of India.
30. A perusal of the advertisement in this case will clearly show that there was no power of relaxation. In our opinion, the High Court committed an error in directing that the condition with regard to the submission of the disability certificate either along with the application form or before appearing in the preliminary examination could be relaxed in the case of Respondent 1. Such a course would not be permissible as it would violate the mandate of Articles 14 and 16 of the Constitution of India.
31. In our opinion, the High Court was in error in concluding that Respondent 3 had not treated the condition with regard to the submission of the certificate along with the application or before appearing in the preliminary examination, as mandatory. The aforesaid finding, in our opinion, is contrary to the record. In its Page 22 of 50 // 23 // resolution dated 21-5-2010, the Commission has recorded the following conclusions:
"Though Shri S. Khan had mentioned in his letter dated 10-12-2009 that he was resubmitting the identity card with regard to locomotor disability he, in fact, had submitted the documentary proof of his locomotor disability for the first time to the office of the APSC through his above letter dated 10-12-2009. However, after receiving the identity card the matter was placed before the full Commission to decide whether the Commission can act on an essential document not submitted earlier as per terms of advertisement but submitted after completion of entire process of selection. The Commission while examining the matter in details observed that Shri S. Khan was treated as general candidate all along in the examination process and was not treated as physically handicapped with locomotor disability. Prior to taking decision on Shri S. Khan it was also looked into by the Commission, whether any other candidate's any essential document relating to right/benefits, etc. not furnished with the application or at the time of interview but submitted after interview was accepted or not. From the record, it was found that prior to Shri S. Khan's case, one Smt Anima Baishya had submitted an application before the Chairperson on 26-2- 2009 claiming herself to be an SC candidate for the first time. But her claim for treating herself as an SC candidate was not entertained on the grounds that she applied as a general candidate and the caste certificate in support of her claim as SC candidate was furnished long after completion of examination process."
32. In the face of such conclusions, we have little hesitation in concluding that the conclusion recorded by the High Court is contrary to the facts and materials on the record. It is settled law that there can be no relaxation in the terms and conditions contained in the advertisement unless the power of relaxation is duly reserved Page 23 of 50 // 24 // in the relevant rules and/or in the advertisement. Even if there is a power of relaxation in the rules, the same would still have to be specifically indicated in the advertisement. In the present case, no such rule has been brought to our notice. In such circumstances, the High Court could not have issued the impugned direction to consider the claim of Respondent 1 on the basis of identity card submitted after the selection process was over, with the publication of the select list."
4.9. Reliance was also placed to the decision of the Hon'ble Apex Court in the case of Pavnesh Kumar Vs. Union of India & Ors. (2023) SCC OnLine SC 1583. Hon'ble Apex Court in Para 14 &15 of the said Judgment has held as follows:-
"14. No doubt appointment to a higher post of an incumbent working on lower post is in the form of an accelerated promotion but it cannot be equated with normal mode of promotion. This is evident from the advertisement itself which in unequivocal terms states that applications are invited for selection to the post of Sub-Inspector (GD) in BSF through LDCE. The very fact that the applications were invited for selection to the post of Sub-Inspector (GD) connotes that it was not a normal promotion rather selection to the higher post from amongst the eligible candidates working on the lower post. Thus, the submission that the normal rules of promotion or medical examination ought to have been applied, is not acceptable.
15. This apart, selection was to be conducted in terms of the advertisement. The scheme of the selection contained in the advertisement categorically provided clearing of the examination in all the five stages which included detailed medical examination. This was independent and in addition of Page 24 of 50 // 25 // the eligibility condition that a candidate must possess the medical category SHAPE-I while working on the lower post."
5. Per contra learned Advocate General appearing for the State on the other hand made his submission basing on the stand taken in the affidavit so filed by Opp. Party No. 2 on 24.01.2024. It is contended that after conducting the recruitment process, district wise and category wise draft merit list in OSEPA website was published on 15.01.2024 and notification was issued on 16.01.2024 regarding the schedule and requirement of original documents/certificates for document verification. As per the schedule, out of 9982 candidates in Category 1 original documents of 8829 candidates were verified successfully on 20.01.2024 and out of 8806 candidates in Category-2 original documents of 7389 candidates were completed successfully on 21.01.2024 in terms of the notification issued by the OSEPA under Annexure-A/2 series.
5.1. It is also contended that details of the candidates, their application numbers, roll numbers, category of posts, streams and allocation of district published vide Notification No. 899 dtd.15.01.2024 in OSEPA website remains unchanged in the preset district wise and category wise draft merit list so published for each of the 30 districts and produced in sealed cover before this Court for better appreciation. Page 25 of 50
// 26 // 5.2. It is also contended that for each of the 30 districts while publishing the district wise and category wise draft merit list, cut off mark was fixed for each of the district and none of the Petitioners who have given their 1st preference as Nabarangpur, Malkanagir and Rayagada as well as Koraput have secured the cut-off mark so fixed by Opp. Party No. 2 in each of the district in question. It is contended that since none of the Petitioners who have given their 1st preference to various district, have secured the cut-off mark so fixed by Opp. Party No. 2 while publishing the district wise and category wise draft merit list for each of the 30 district including Nabarangpur, Malkanagiri, Rayagada and Koraput, Petitioners have no locus standi to challenge the process of selection as they have become unsuccessful having not secured the cut off mark so fixed. It is also contended that seeking permission to proceed with the selection process in terms of the advertisement issued on 10.09.2023 under Annexure-2 pursuant to resolution dtd.22.08.2023 under Annexure-1, an I.A. has been filed in I.A. No. 1536 of 2024.
5.3. Learned Advocate General contended that since the recruitment in question is to fill up 20,000 posts of Junior Teacher (Schematic) and out of those 20,000 posts, 9982 candidates in Category-I and 8806 candidates in Category 2 have been selected in different districts of the Page 26 of 50 // 27 // State, candidates so selected will be seriously prejudiced if the State is not permitted to proceed with the selection process. 5.4. With regard to the allegation made by the learned counsel for the appearing for the Petitioners in the present writ petition and to the submission of learned counsel appearing in other batch of writ petitions, learned Advocate General contended that since none of the candidate, whose names appeared in the impugned draft select list published under Annexure-6 series have been impleaded as Party to the writ petition, no adverse order can be passed, without them being brought on record. In support of the aforesaid submission learned Advocate General relied on a decision of the Hon'ble Apex Court in the case of Vishal Ashok Thorat & Ors. Vs. Rajesh Shrirambapu Fate (2020) 18 SCC 673. Hon'ble Apex Court in Para 34 of the said Judgment has held as follows:-
"34. One more submission raised by the learned counsel for the appellant in civil appeal filed by Vishal Ashok Thorat needs to be noticed. The submission of the appellant is that Respondent 1 in his Writ Petition No. 1270 of 2018 did not implead any of the selected candidates out of the list of 832. No selected candidate having been impleaded by Respondent 1, the High Court erred in issuing direction to modify and review the select list. The direction of the High Court in para 51 is clearly against the interest of the appellants, who as per direction shall go out of the select list, the select list having been published on 31-3-2018 i.e. much before the date when Respondent 1 filed application Page 27 of 50 // 28 // for amendment in the writ petition for challenging Advertisements Nos. 2 and 48 of 2017, he ought to have impleaded the selected candidates whose names were already published by the MPSC. Respondent 1 without bringing the selected candidates on record could not have obtained any order adverse to the selected candidates."
5.5. Learned Advocate General also relied on the decision of the Hon'ble Apex Court in the case of SECY.(Health) Deptt. of Health & F.W. & Anr. Vs. Dr. Anita Puri & Ors. (1996) 6 SCC 282. Hon'ble Apex Court in Para 9 of the said Judgment has held as follows:-
"9. The question for consideration is whether such sub-division of marks by the Commission on different facets and awarding only 2½ marks for higher qualification can be said to be arbitrary? Admittedly, there is no statutory rule or any guideline issued by the Government for the Commission for the purpose of evaluation of merit of the respective candidates. When the Public Service Commission is required to select some candidates out of a number of applicants for certain posts, the sole authority and discretion is vested with the Commission. The Commission is required to evolve the relative fitness and merit of the candidate and then select candidates in accordance with such evaluation. If, for that purpose the Commission prescribes marks for different facets and then evaluates the merit, the process of evaluation cannot be considered to be arbitrary unless marks allotted for a particular facet is on the face of it excessive. Weightage to be given to different facets of a candidate as well as to the viva voce test vary from service to service depending upon the requirement of the service itself. In course of the arguments Page 28 of 50 // 29 // before us the learned counsel for Respondent 1 had submitted that the awarding of 20 marks for viva voce and 20 marks for general knowledge out of 100 marks must be held to be on the face of it arbitrary giving a handle to the Public Service Commission to manipulate the selection and, therefore, the High Court had rightly come to the conclusion that it was arbitrary. We are unable to accept this contention. This Court in the case of Ajay Hasia v. Khalid Mujib Sehravardi [(1981) 1 SCC 722 : 1981 SCC (L&S) 258] , while considering the case of selection, wherein 33% marks was the minimum requirement by a candidate in viva voce for being selected, held that it does not incur any constitutional infirmity. As has been stated earlier the expert body has to evolve some procedure for assessing the merit and suitability of the applicants and the same necessarily has to be made only by allotting marks on different facets and then awarding marks in respect of each facet of a candidate and finally evaluating his merit. It is too well settled that when a selection is made by an expert body like the Public Service Commission which is also advised by experts having technical experience and high academic qualification in the field for which the selection is to be made, the courts should be slow to interfere with the opinion expressed by experts unless allegations of mala fide are made and established. It would be prudent and safe for the courts to leave the decisions on such matters to the experts who are more familiar with the problems they face than the courts. If the expert body considers suitability of a candidate for a specified post after giving due consideration to all the relevant factors, then the court should not ordinarily interfere with such selection and evaluation. Thus considered, we are not in a position to agree with the conclusion of the High Court that the marks awarded by the Commission was arbitrary or that the selection made by the Commission was in any way vitiated."Page 29 of 50
// 30 // 5.6. Learned Advocate General also relied on the decision of this Court in the case of Kabita Jena & Ors. Vs. Rajat Kumar Mishra & Ors. (W.A. No. 1822 of 2023 & batch) decided on 22.12.2023. This Court in Para 24, 27, 30, 31 & 34 of the said Judgment has held as follows:-
"24. The underlying principles of non-joinder of parties emanates from the provisions contained in Order 1 Rule-9 of the CPC. Although Order 1 Rule-9 of the CPC is a rule of procedure not affecting the substantive law, yet when decree can be effective in absence of necessary parties, the suit is liable to be dismissed, in view of the judgment of the apex Court in the case of Udit Narain Singh Malpaharia (supra). In the present case, the issue of non- joinder of parties was raised at the earliest, but the same has not been answered.
xxx xxx xxx
27. The aforesaid findings were arrived at by this Court relying upon the judgments of the apex Court, as discussed therein, and, as such, the appellants have also relied upon those judgments in the present proceeding. Therefore, there is no iota of doubt that the learned Single Judge ought not to have proceeded without insisting upon impletion of selected candidates as opposite parties in the writ petition, i.e., W.P.(C) No. 32174 of 2022.
xxx xxx xxx
30. The learned Single Judge, while considering the review application, observed in paragraph 35 of the judgment that in course of hearing of the earlier writ petition bearing W.P.(C) No. 32174 of 2022, learned Senior Counsel including the Advocate General appearing for the State-opposite parties took almost all possible grounds to defend the OPSC. The learned Single Judge has also observed that the Court has rendered a detailed Page 30 of 50 // 31 // judgment by taking note of the contentions of all the appearing parties and has disposed of the said writ petition. One main question of non-joinder of parties was also raised, but the learned Single Judge observed at paragraph-36 of the judgment that the review petitioners were not necessary parties to the previous writ petition and in paragraph-37 of the judgment the learned Single Judge also observed that in the event the review petitioners are Page 73 of 98 aggrieved by the finding of this Court, they could challenge the same by filing intra-court appeal, if advised.
31. Having admitted the fact that the review petitioners were the successful candidates and they, having not been impleaded as parties to the writ petition, have filed the review petition, the learned Single Judge could have allowed their review petition, because their rights have been affected by quashing the select list, where the names of the review petitioners found place. Therefore, dismissal of the review petition filed before the learned Single Judge both on maintainability as well as merits cannot be sustained, as there is gross violation of principle of natural justice and, as such, the review petitioners have not been given opportunity of hearing to defend their case.
xxx xxx xxx
34. It is of relevance to note that the learned Single Judge in the judgment has observed that if the review petitioners are aggrieved by the finding of the Court, they can be well advised to challenge the same in intra-Court appeal. But fact remains, what ultimately the review petitioners will do, the learned Single Judge should not have made an observation to that effect. Therefore, the observation of the learned Single Judge to that effect Page 79 of 98 cannot be sustained. As a consequence thereof, this Court finds gross error apparent on the face of the record by not permitting the review petitioners to be made as parties to the writ petition, in which learned Single Judge has delivered the Page 31 of 50 // 32 // judgment. When the rights accrued in favour of the selected candidates have been grossly affected, for non-inclusion of their names in the writ petition, the writ petition suffers from non- joinder of parties."
5.7. Learned Advocate General also contended that the draft result sheet of Junior Teacher (Schematic) so published in the OSEPA website on 15.01.2024 vide Annexure-6 series have been so published strictly in terms of the procedure prescribed under Para 8.3 of the resolution, save and except for the fact that district lists were arranged into a single master list so published in the website for information of the candidates. However, by segregating the names from the said master list so published under Annexure-6 series, district wise and category wise merit list have been published by Opp. Party No. 2 and such district wise and category wise draft merit list for each of the 30 districts has been uploaded in the OSEPA website, copy of which have been provided to this Court in sealed cover.
5.8. It is also contended that district wise and category wise list so published in the meantime reveals the details of the candidates, their application numbers, roll numbers, category of posts, streams and allocation of district and everything remains unchanged in the district wise and category wise draft list submitted in sealed cover. It is also contended that though as per the provisions contained under Para 8.3, draft merit list is to be prepared district wise and category wise, but Page 32 of 50 // 33 // dehors the merit rank of a particular candidate, the list cannot be prepared.
5.9. It is contended that as provided under Article 21(A) of the Constitution of India, rendering of quality education to the students with best quality teachers is sine qua none. State while publishing the draft result sheet under Annexure-6 series and consequential district wise and category wise merit list for each of the 30 district has selected candidates strictly in terms of their merit in terms of the provisions contained under Article 21(A) of the Constitution of India.
With regard to the aforesaid stand, learned Advocate General contended that since best quality teachers have been recruited considering their merit, no illegality can also be found with regard to the draft result sheet published under Annexure-6 and consequential district and category wise merit list published for each of the 30 districts with segregation of their names.
5.10. In support of his aforesaid submission, learned Advocate General relied on the decision of the Hon'ble Apex Court in the case of Devesh Sharma Vs. Union of India & Ors. (2023 SCC OnLine SC 985). Hon'ble Apex Court in Para 19 & 22 of the said Judgment has held as follows:-
Page 33 of 50
// 34 // "19. When the validity of the Act was challenged before this Court7 , this Court, while upholding its validity emphasized that the Act, was intended not only to impart "free" and "compulsory" education to children, but the purpose was also to impart 'quality' education! "The provisions of this Act are intended not only to guarantee right to free and compulsory education to children, but it also envisages imparting of 'quality' education by providing required infrastructure and compliance of specified norms and standards in the schools." [See Para 8, (2012) 6 SCC 1] Xxx xxx xxx
22. Free and compulsory education for children becomes meaningless if we make compromise on its 'quality'. We must recruit the best qualified teachers. A good teacher is the first assurance of 'quality' education in a school. Any compromise on the qualification of teachers would necessarily mean a compromise on the 'quality' of education. Jacques Barzun, the American educationalist and historian, in his seminal work 'Teacher in America', says "teaching is not a lost art, but the regard for it is a lost tradition"11 . Though this comment was for the state of higher education in America, it is equally relevant here on the treatment of Primary education in our country, as it emerges from the facts before us."
5.11. Learned Advocate General relied on another decision of the Hon'ble Apex Court in the case of Satyajit Kumar & Ors. Vs. State of Jharkhand & Ors. (2022 SCC OnLine SC 954). Hon'ble Apex Court in Para 97 & 99 of the Judgment has held as follows:-Page 34 of 50
// 35 // "97. Even otherwise, it is to be noted that it may be true that so far as basic education (at the level of primary section) is concerned, it may help student at the primary level (while providing basic education) to be taught in their own tribal language. But the same principle may not be applicable when question is of providing education at higher level viz. above 5 th standard. Therefore, if the candidates belonging to other areas (non-Scheduled Areas/ Districts) are given an opportunity to impart education (who may be more meritorious than the candidates belonging to the Scheduled Areas / Districts) than it will be more beneficial to the students belonging to the Scheduled Areas and their quality of the education shall certainly improve. The quality of education of the school-going children cannot be compromised by giving 100% reservation in favour of the teachers of the same/some districts and prohibiting the appointment to more meritorious teachers.
xxx xxx xxx
99. Even under Article 16(3) of the Constitution of India, it is the Parliament alone, which is authorized to make any law prescribing, in regard to a class or classes of employment or appointment to an office under the Government of, or any local or other authority within, a State of Union Territory, any requirement as to residence within the State or Union territory prior to such employment or appointment. As per Article 35 of the Constitution of India, notwithstanding anything contained in the Constitution, the Parliament shall have and the Legislature of a State shall not have the power to make laws with respect to any of the matters which, under clause (3) of Article 16 may be provided for law made by Parliament. Therefore, impugned Notification/Order making 100% reservation for the local resident of the concerned Scheduled Area/Districts (reservation on the basis of resident) is ultra vires to Article 35 r/w Article 16(3) of the Constitution of India."Page 35 of 50
// 36 // 5.12. Learned Advocate General also relied on the decision of the Hon'ble Apex Court in the case of Anmol Kumar Tiwari & Ors. Vs. State of Jharkhand & Ors. (2021) 5 SCC 424. Hon'ble Apex Court in Para 12 of the said Judgment has held as follows:-
"12. The second issue relates to the claim of the interveners in the writ petitions for appointment. There is no doubt that selections to public employment should be on the basis of merit. Appointment of persons with lesser merit ignoring those who have secured more marks would be in violation of Articles 14 and 16 of the Constitution of India. The interveners in the writ petitions admittedly have secured more marks than the writ petitioners. After cancellation of the appointments of the writ petitioners, 43 persons have been appointed from the revised select list. Those 43 persons have secured more marks than the interveners. By the appointment of 43 persons, the number of posts that were advertised i.e. 384 have been filled up. The interveners have no right for appointment to posts beyond those advertised. The contention on behalf of the interveners in the writ petitions is that they cannot be ignored when relief is granted to the writ petitioners who were less meritorious than them. We are unable to agree. Relief granted to writ petitioners is mainly on the ground that they have already been appointed and have served the State for some time and they cannot be punished for no fault of theirs. The interveners are not similarly situated to them and they cannot seek the same relief. The other ground taken by the interveners in the writ petitions before us is that relief was denied to them only on the basis of a wrong statement made on behalf of the State Government that there were no vacancies. No doubt, the interveners have placed on record material to show that there was no shortage of vacancies for their Page 36 of 50 // 37 // appointment. One of the reasons given by the High Court for not granting relief to the interveners is lack of vacancies. However, we are not inclined to direct appointment of the interveners as selections in issue pertain to an advertisement issued in 2008. Subsequently, selections to posts of Sub- Inspectors have been held and a large number of persons were appointed. The number of posts advertised in 2008 is 384 and the interveners have no right for appointment for posts beyond those advertised. They cannot claim any parity with the writ petitioners."
5.13. Learned Advocate General also contended the writ petition against draft merit list is also not entertainable in view of the decision of the Hon'ble Apex Court in the case of State of Odisha & Ors. Vs. MESCO Steels Ltd. & Anr. (2013) 4 SCC 340. Hon'ble Apex Court in Para 19 & 20 of the said Judgment has held as follows:-
"19. It is obvious from a conjoint reading of the letter dated 12-1-2006 and communication dated 19-9-2006 sent by the Director of Mines in response thereto that a final decision on the subject had yet to be taken by the Government, no matter the Government may have provisionally decided to follow the line of action indicated in its communication dated 12-1-2006 issued under the signature of the Joint Secretary, Department of Steel and Mines. It is noteworthy that there was no challenge to the communication dated 12-1-2006 before the High Court nor was any material placed before us to suggest that any final decision was ever taken by the Government on the question of deduction of the area granted in favour of the respondent so as to render the process of issue of show-cause notice for hearing the respondent Company an exercise in futility.Page 37 of 50
// 38 //
20. On the contrary, the issue of the show-cause notice setting out the reasons that impelled the Government to claim resumption of a part of the proposed lease area from the respondent Company clearly suggested that the entire process leading up to the issue of the show-cause notice was tentative and no final decision on the subject had been taken at any level. It is only after the Government provisionally decided to resume the area in part or full that a show-cause notice could have been issued. To put the matter beyond any pale of controversy, Mr Lalit made an unequivocal statement at the Bar on behalf of the State Government that no final decision regarding resumption of any part of the lease area has been taken by the State Government so far and all that had transpired till date must necessarily be taken as provisional. Such being the case the High Court was in error in proceeding on an assumption that a final decision had been taken and in quashing what was no more than an inter-departmental communication constituting at best a step in the process of taking a final decision by the Government. The writ petition in that view was premature and ought to have been disposed of as such. Our answer to Question 1 is accordingly in the affirmative."
5.14. To sum up the submissions, learned Advocate General contended that since following the decisions of the Hon'ble Apex Court in the case of Devesh Sharma, Satyajit Kumar and Anmol Kumar Tiwari as cited (supra), candidates with high rank in merit have been selected and enlisted in the draft result sheet published under Annexure-6, so further published by segregating their names in district wise and category wise list published for each of the 30 district, no illegality or irregularity can be found with regard to the placement of the candidates in the draft Page 38 of 50 // 39 // result sheet published under Annexure-6 and/or in the district and category wise list published for each of the 30 district so produced before this Court in a sealed cover. It is also contended that out of 20,000 vacancies so notified, 18788 no. of candidates in Category 1 and Category 2 were shortlisted while publishing the draft result sheet under Annexure-6 series. Out of those 18,788 candidates so enlisted, after verification of the documents on 20th & 21st January, 16, 217 candidates have attended documents verification in different district headquarters and after filling up those 16,217 posts, as against the remaining vacant post, case of the Petitioners in the present batch of writ petitions can be considered subject to their eligibility.
6. To the submissions made by learned Advocate General, learned counsel appearing for the Petitioners contended that since the draft result sheet published under Annexure-6 and subsequent list published district wise by segregating the names is a draft merit list itself and it will only attain finality after completion of the process enumerated under Para 8.4 to 8.7 of the resolution, the selected candidates whose names appear in the draft result sheet published under Annexure-6 and/or in the district wise list are not necessary party to the writ petition.
Page 39 of 50
// 40 // 6.1. Since prior to publication of the final merit list in terms of the provisions contained under Para 8.6 of the resolution, all these writ petitions including the present one has been filed challenging the publication of the draft result sheet under Annexure-6 series, without complying the provisions contained under Para 8.3 of the resolution, the stand taken by the learned Advocate General that selected candidates, whose names appear in the draft result sheet under Annexure-6 are necessary party to the proceeding is not entertainable. It is also contended that the issue involved in the case of Kabita Jena as cited supra is not applicable to the facts of the present case as the present batch of writ petitions have been filed against the draft select list, which has not yet attained its finality. It is accordingly contended that names of those candidates, which appear in the draft select list published under Annexure-6 series and so also in the district and category wise list published for each of the 30 districts are neither necessary nor proper Party to the proceeding.
6.2. It is contended that since the recruitment process has not been conducted in terms of the Resolution issued under Annexure-1, in view of the decisions of the Hon'ble Apex Court in the case of K. Manjushree, V. Mahendra Singh, Bedanga Talukdar & Pavnesh Kumar as cited (supra), the draft result sheet published under Annexure-6 series and subsequent district and category wise list Page 40 of 50 // 41 // published by OSEPA and produced in sealed cover before this Court are not to be treated as the draft select list published in terms of the provisions contained under Para 8.3 of the Resolution.
For better appreciation, provisions contained under Para 8.4, 8.5, 8.6 and 8.7 of the resolution dtd.22.08.2023 under Annexure-1 are reproduced hereunder:-
"8.4 Document verification After publication of the draft merit list, all candidates in the said list will be called for verification of original documents at their respective district headquarters. All documents required for verification will be notified by OSEPA in the detailed advertisement in OSEPA website.
During document verification, if any candidate is not able to produce the essential document(s) in support of his/her claim of the Social/Special category/Age proof/Academic & Training qualification/RCI registration certificate as per information provided in the application form, the candidature will be rejected and his/her name will be marked as deleted in the draft merit list. The candidates have to produce the Academic and Training qualification/RCI registration certificate (in case of Special Education Candidates) acquired/issued on or before the last date of submission of online application.
8.5 Preparation of District wise Provisional Merit List and Approval Provisional merit list will be prepared after document verification of the candidates placed in the draft merit list. Then objections will be invited from the candidates who are placed in the provisional merit list and rejection list. The provisional merit list will be approved by the Competent Authorities at respective districts after verification of the original documents and inviting Page 41 of 50 // 42 // objections from candidates within specific time period as mentioned in the calendar of activities issued by the School & Mass Education Department.
8.6 Publication of District wise Final Merit List District wise final merit list will be published at concerned District websites as well as OSEPA website after approval by the Competent Authority.
8.7 Counselling The candidates will be called for allocation of schools through counselling by respective districts. Separate notifications will be issued and displayed by respective districts in their District websites as well as OSEPA website. Vacancies remain due to unavailability of eligible candidates, rejection and non-joining will be carried forward and recruitment will be done subsequently as per requirement. There will be no waiting list.") 6.3. Learned counsel appearing for the Petitioners also contended that with regard to selection of Sikshya Sahayak for each of the district of the State when was not followed with publication of district wise merit list, the matter was before this Court in W.P.(C) No. 3319 of 2018. This Court vide order dtd.28.02.2019 while disposing the writ petition, clearly held that since Sikshya Sahayak is a district cadre post, merit list is to be prepared on district wise. The view expressed by this Court in its order dtd.28.02.2019 is reproduced hereunder:-
"Even a candidate secured higher percentage marks in costal districts, he may not be given an appointment in district cadre, but a candidate who secured less percentage of marks in district cadre, he may be selected."Page 42 of 50
// 43 //
7. I have heard Mr. S.K. Das, learned counsel appearing for the Petitioners and other counsels appearing in the present batch of writ petitions and Mr. A. Parija, learned Advocate General appearing for the State along with Mr. Saswat Dash and Mr. M.K. Balabantaray, learned Addl. Govt. Advocates.
8. Having heard learned counsel appearing for the Parties and after going through the materials available on record, it is found that for recruitment of 20,000 posts of Junior Teacher (Schematic), OSEPA - Opp. Party No. 2 issued the notice/advertisement on 10.09.2023 under Annexure-2. As reflected in the said notice, such a notice was issued in pursuance of the resolution issued by Opp. Party No. 1 on 22.08.2023 under Annexure-1. Resolution dtd.22.08.2023 under Annexure-1 prescribes the modalities to be followed for selection and engagement of Junior Teacher (Schematic). As per the said resolution a candidate having the requisite qualification is/was eligible to make his application for both Category 1 and Category 2. Para 8 of the resolution prescribes the selection procedure to be followed for such recruitment. 8.1. As provided under Para 8.1 after expiry of the last date of submission of online application, list of the candidates for each category with respect to their 1st preference district as submitted by them at the time of submission of application form will be published in Page 43 of 50 // 44 // OSEPA website. Thereafter, an online Computer Based Test is to be conducted either by OSEPA or an authorized agency as per the syllabus contained in the advertisement to be published before the recruitment. Pursuant to the notice issued under Annexure-1, EdCIL is the authorised agency, which conducted the Computer Based Test. 8.2. As provided under Para 8.3 of the resolution, Opp. Party No. 2 was required to publish district wise and category wise draft merit list taking into consideration all district preference submitted by an individual candidate followed by merit rank for a particular district. As further provided under Para 8.3, after exhausting all candidates having 1st preference for a particular district, subsequent preference will be considered. It is further provided in Para 8.3 that for a particular post, in a Category within district, district preference will be preferred over merit. This Court after going through the initial impugned draft result sheet of Junior Teacher (Schematic)-2023 so published under Annexure-6 series was prima facie satisfied that such a draft result sheet published by OSEPA under Annexure-6 series is not in accordance with Para 8.3 of the resolution and accordingly passed the interim order on 19.01.2024.
8.3. However, since by the time this Court took up the matter on 19.01.2024, Opp. Party No. 2 had already fixed the date of verification Page 44 of 50 // 45 // of documents of the candidates so enlisted in the impugned draft result sheet published under Annexure-6 series fixing 20.01.2024 for verification of documents of Category-1 and 21.01.2024 for verification of documents of Category-2, vide notice dtd.16.01.2024/17.01.2024 under Annexure-A/2 to the affidavit of Opp. Party No. 2, this Court while restraining the Opp. Party No. 2 from publishing the final select list, permitted to go for verification of documents so fixed to 20 th & 21st of January, 2024.
8.4. Though in the meantime by segregating the names of the candidates, whose name finds place in the draft result sheet published under Annexure-6 series, district wise and category wise list was published by Opp. Party No. 2 for each of the 30 districts of the State, but as found from Annexure-E, G & I to the rejoinder affidavit, candidates who have given their 1st preference in respect of other districts have been included in a particular district so verified and enclosed vide Annexure-F, H & J to the rejoinder affidavit. The discrepancy reflected in the rejoinder affidavit so filed by Petitioners to the affidavit dtd.24.01.2024 of Opp. Party No. 2 vide Annexure-F, H & J, has not been disputed by Opp. Party No. 2 by filing any further affidavit.
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// 46 // 8.5. Not only that as found from the Press Release issued by the authorised agency EdCIL under Annexure-D to the rejoinder affidavit, it is found that after conducting the Computer Based Test, the agency handed over the combined merit list of candidates to OSEPA on 13th January, 2024 followed by merit list with district allocation on 15th January, 2024. The said combined merit list handed over to OSEPA on 13th January, 2024 as found, was published under Annexure-6 series, which is impugned in the present writ petition.
8.6. Even though during pendency of the matter and after passing of the interim order on 19.01.2024, by segregating the names of the candidates whose names were reflected in the draft result sheet published under Annexure-6 series, Opp. Party No. 2 prepared district and category wise list for each of the 30 districts, but as submitted and which is not disputed, in respect of the district wise list published for the district of Sambalpur under Annexure-E for the district of Kalahandi under Annexure-G and for the district of Gajapati under Annexure-I to the rejoinder affidavit, a statement has been prepared by the learned counsel appearing for the Petitioners showing the inclusion of candidates, who have been given their 1 st preference for other district, having been included in the district list published for the aforesaid 3 districts under Annexure-F, H & J. The aforesaid discrepancies specifically pointed out by the learned counsel appearing Page 46 of 50 // 47 // for the Petitioners vide Annexure-F, H & J to the rejoinder affidavit has not been controverted by Opp. Party No. 2. Since district wise and category wise list so produced contains the names of candidates who have given their 1st preference to other districts, as per the considered view of this Court such a district and category wise list cannot be taken as a list prepared and published in terms of the provisions contained under Para 8.3 of the Resolution.
8.7. With regard to the stand taken by the learned Advocate General that since the selected candidates whose names found place in the impugned draft result sheet published under Annexure-6 series have not been impleaded as Party to the writ petition, the writ petition is not maintainable, it is the view of this Court that the present writ petition along with the batch have been filed challenging the draft merit list published by Opp. Party No. 2 under Annexure-6 series. Since the impugned draft result sheet is a draft list though it has not been published in terms of the provisions contained under Para 8.3 and the final merit list is to be prepared after exhausting the provisions contained under Para 8.4 to 8.7 of the Resolution dtd.22.08.2023 under Annexure-1, this Court is of the view that since the list published under Annexure-6 series and the list published district wise and category wise are draft select list, which is to be finally published only after completion of the process so provided under Para 8.7 of the Resolution, Page 47 of 50 // 48 // the candidates, whose name appear therein are neither necessary party nor proper party to the proceeding. This Court finds no substance with regard to the plea raised by the learned Advocate General that the writ petition is not maintainable in absence of the selected candidates having been impleaded as Party to the writ petition and decision rendered in the case of Kabita Jena as cited (supra) is not applicable to the facts of the present issue.
8.8. Since this Court finds that the draft merit list published under Annexure-6 and/or consequential district and category wise list published by segregating the names for each of the 30 districts so produced in sealed cover before this Court has not been prepared in terms of the provisions contained under Para 8.3 of the resolution placing reliance on the decisions in the case of K. Manjushree, V. Mahendra Singh, Bedanga Talukdar & Pavnesh Kumar as cited (supra), this Court is inclined to interfere with the draft result sheet published under Annexure-6 as well as the district and category wise list published for each of the districts by segregating the names and so produced before this Court in a sealed cover.
8.9. The stand taken by the learned Advocate General that Merit is the sole criterion for selection of teachers and that has been followed is not acceptable as it runs contrary to the provisions contained under Para 8.3 Page 48 of 50 // 49 // of the Resolution. Taking into account the submission of the learned Advocate General that the list of successful candidates have been prepared taking into account their performance and merit, it can be inferred that the stipulation contained in Para 8.3 of the Resolution has not been followed. Since the provisions contained under Para 8.3 is very specific, selection of candidates only basing on their merit irrespective of their preference given for a particular district is not sustainable in the eye of law. This Court accordingly is inclined to quash the draft result sheet published under Annexure-6 and so also the district and category wise list published for each of the 30 districts, the list of which was produced before this Court in a sealed cover. While quashing the list in question, this Court directs Opp. Party No. 3 to prepare district wise and category wise draft merit list strictly in terms of the provisions contained under Para 8.3 of the resolution dtd.22.08.2023 under Annexure-1. After such publication of district wise and category wise list, Opp. Party No. 2 shall proceed with the selection in terms of the provisions contained under Para 8.4 and 8.5, prior to publishing the district wise final merit list as provided under Para 8.6.
8.10. On such publication of district wise and category wise draft merit list in terms of the provisions contained under Para 8.3 as directed, the candidates whose names will be there from out of the list published by Page 49 of 50 // 50 // segregating the names from the list published under Annexure-6 series, they may not be asked to go for document verification as in terms of the interim order passed by this Court on 19.01.2024, the verification of documents of such candidates has already been completed. However, by fixing another date for both Category 1 & 2, verification of documents of the rest of the candidates will be made and thereafter the selection process will be completed in terms of the provisions contained under Para 8 of the resolution.
This Court accordingly disposes of the present batch of writ petitions with the aforesaid observation and direction.
(Biraja Prasanna Satapathy) Judge Orissa High Court, Cuttack Dated the 12th of March, 2024/Sneha Signature Not Verified Digitally Signed Signed by: SNEHANJALI PARIDA Designation: Sr. Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 18-Mar-2024 10:06:04 Page 50 of 50