Orissa High Court
Afr Satyabrata Nayak And Ors vs State Of Odisha And Ors. ..... Opp. ... on 15 September, 2021
Author: B.R.Sarangi
Bench: B.R.Sarangi
ORISSA HIGH COURT: CUTTACK
WPC (OAC) No. 902 of 2016
And
WPC (OAC) No.922 of 2016,
WPC (OAC) No.1326 of 2016,
WPC (OAC) No.1102 of 2017,
WPC (OAC) No.3219 of 2017,
WPC (OAC) No.1613 of 2017.
In the matter of applications under Articles 226 and 227
of the Constitution of India.
---------------
WPC (OAC) No. 902 of 2016 AFR Satyabrata Nayak and Ors. ..... Petitioners
-Versus-
State of Odisha and Ors. ..... Opp. Parties For Petitioners : Mr. B. Routray, Sr. Advocate along with M/s. S. Das, R.P. Dalai, S.K. Samal, S.P. Nath and S.D. Routray, Advocates For Opp. Parties : Mr. S. Jena, Standing Counsel S&ME WPC (OAC) No. 922 of 2016 Nihar Ranjan Sarangi and Ors. ..... Petitioners
-Versus-
State of Odisha and Ors. ..... Opp. Parties
// 2 //
For Petitioners : Mr. J.K. Mishra,
Advocate
For Opp. Parties : Mr. S. Jena,
Standing Counsel S&ME
WPC (OAC) No. 1326 of 2016
Jayanta Kumar Lenka and Ors. ..... Petitioners
-Versus-
State of Odisha and Ors. ..... Opp. Parties
For Petitioners : M/s. S.S. Das, R.K. Sahoo,
and K.C. Mohapatra, Advocates
For Opp. Parties : Mr. S. Jena,
Standing Counsel S&ME
WPC (OAC) No. 1102 of 2017
Susri Sangita Sahoo ..... Petitioner
-Versus-
State of Odisha and Ors. ..... Opp. Parties
For Petitioners : M/s. S.S. Das, R.K. Sahoo,
and K.C. Mohapatra, Advocates
For Opp. Parties : Mr. S. Jena,
Standing Counsel S&ME
WPC (OAC) No. 3219 of 2017
Tanmay Kumar Sahoo and Ors. ..... Petitioners
// 3 //
-Versus-
State of Odisha and Ors. ..... Opp. Parties
For Petitioners : M/s. S.S. Das, R.K. Sahoo,
and K.C. Mohapatra, Advocates
For Opp. Parties : Mr. S. Jena,
Standing Counsel S&ME
WPC (OAC) No. 1613 of 2017
Radharani Raut and Ors. ..... Petitioners
-Versus-
State of Odisha and Ors. ..... Opp. Parties
For Petitioners : Mr. B.B. Mohanty,
Advocate.
For Opp. Parties : Mr. S. Jena,
Standing Counsel S &ME
P R E S E N T:
THE HONOURABLE DR. JUSTICE B.R.SARANGI Date of hearing and judgment: 15.09.2021 DR. B.R. SARANGI, J. The petitioners, who were applicants for the post of Contract Teachers (Hindi) in Government High Schools of Odisha, pursuant to the advertisement // 4 // issued for the recruitment year 2014-15, have filed these writ petitions seeking to quash the draft reject list, so far as petitioners are concerned, whereby their candidature has been rejected on the ground that they have acquired the training qualification after the advertisement was issued, and to issue direction to the opposite parties to allow them to participate in the process of selection and consider their case for engagement against the said post. Therefore, all the above noted writ petitions were heard together and are disposed of by this common judgment which will govern all the cases.
2. The factual matrix of the case, in precise, is that an advertisement was issued in the year 2014-15, on the basis of the resolution no.23404/SME/dated 27.10.2014, inviting online applications from the intending candidates for engagement of contract teachers of different subjects, including Hindi, in Govt. and upgraded High Schools of Odisha. The upper age limit for the said post was fixed at clause-2 thereof, as 32 years as on 30.09.2014. As a result, a large number of candidates // 5 // were deprived of submitting their application on online basis. The candidates, who had crossed the age limit, as stipulated in the advertisement and guidelines, moved the Odisha Administrative Tribunal in a batch of original applications, with a prayer to consider their applications by enhancing the upper age limit from 32 to 42 years, as was prescribed in the previous year recruitment. The tribunal, vide judgment dated 17.12.2015, disposed of all the original applications directing the opposite parties to issue a corrigendum enhancing the upper age limit to 42 years for recruitment and further directed to invite only application forms from the eligible candidates excepting, those who have already submitted their applications. In compliance of the said judgment, a corrigendum was issued on 06.01.2016 by extending the upper age limit from 32 to 42 years and it was notified that such modification is only applicable to the selection against the advertisement made in the year 2014-15. 2.1 Subsequently, a revised guideline was issued by the Director, Secondary Education, Odisha, // 6 // wherein it was decided to invite online application forms from the intending candidates for the posts of contract teachers in Government High Schools for the year 2014-
15. It was further provided in the said guidelines that only those candidates, who were eligible in all respect as per eligibility criteria fixed in the advertisements and guidelines published in the OPEPA website and by the last date of receipt of application fixed in the advertisement, but did/could not apply for having crossed the age limit fixed in the advertisement, can apply. In view of the aforesaid guidelines issued, the candidates, who were otherwise eligible both trained and untrained, were debarred from making application because of fixation of upper age limit as 32 years. As per the resolution dated 27.10.2014, untrained candidates can apply, but they have to undergo the required training within a period of three years. Even though the petitioners had applied for the post of Contract Teacher (Hindi) and their applications were entertained, but a list was prepared rejecting their applications stating that they // 7 // have acquired training qualification after 06.04.2015. Hence these applications.
3. Mr. B. Routray, learned Senior Counsel appearing along with Mr. S.K. Samal, learned counsel for the petitioners in WPC (OAC) No.902 of 2016 contended that as per the resolution dated 27.10.2014 if untrained candidates can apply, provided they got the requisite qualification for engagement as Contract Teacher (Hindi), pursuant to advertisement issued in the year 2014-15, and after engagement they shall have to undergo required training within the timeline, as prescribed by the Government, then applications of the petitioners should not have been rejected on the ground that they produced the trained certificate after 06.04.2015. It is contended that if untrained candidates can make applications and their cases can be taken into consideration for selection to the post of Contract Teacher (Hindi), then for subsequent acquisition of B.Ed. qualification by the petitioners, they cannot be debarred from participating in the process of selection and, as such, rejection of their // 8 // applications is an outcome of non-application of mind and contrary to the resolution issued by the Government on 27.10.2014. It is further contended that similar matter had come up for consideration before this Court in WPC (OAC) No.1976 of 2015 (Nihar Ranjan Sarangi v. State of Odisha and others), wherein this Court by order dated 23.07.2021, came to hold that the ground of not selecting the petitioner for the post of Contract Hindi Teacher pursuant to the advertisement in question is not germane to the condition imposed in the resolution dated 27.10.2014, and thus is illegal. In that case, since the petitioner was fulfilling all the required qualification, this Court directed that in the event the petitioner fulfills other conditions, the competent authority shall draw a fresh select list of Contractual Hindi Teacher, pursuant to the advertisement in question, forth with. Thus, it is contended that the petitioners in these cases having stood in the same footing, such benefit should have been extended to them by quashing the draft reject list, so far as petitioners are concerned, and also direction may be // 9 // given to the authorities to allow them to participate in the process of selection of Contract Hindi Teacher, pursuant to resolution issued by the authorities on 27.10.2014.
4. Mr. J.K. Mishra, learned counsel appearing for the petitioners in WPC (OAC) No.922 of 2016; Mr. B.B. Mohanty, learned counsel appearing for the petitioners in WPC (OAC) No.1613 of 2017; and Mr. R.K. Sahoo, learned counsel appearing for the petitioners in WPC (OAC) No.1326 of 2016 and WPC (OAC) Nos.1102 & 3219 of 2017, endorsed the arguments advanced by Mr. B. Routray, learned Senior Counsel appearing along with Mr. S.K. Samal, learned counsel for the petitioners in WPC (OAC) No.902 of 2016, and contended that the draft reject list should be quashed and the petitioners may be permitted to participate in the process of selection, as large number of vacancies are available for recruitment in the post of Contract Teacher (Hindi), pursuant to advertisement issued by the authority.
// 10 //
5. Mr. S. Jena, learned Standing Counsel for School and Mass Education Department contended that for the selfsame relief, one Sasmita Sahu approached the tribunal by filing O.A. No.394 of 2016, and after due adjudication, the tribunal held that in the advertisement one of the criteria for Hindi Teacher was B.Ed. in Hindi and admittedly by the time of floating of the advertisement the applicant had no B.Ed. qualification and, therefore, in the draft reject list, her name found place at sl.no.191. Thereby, the tribunal did not find any infirmity in the draft reject list, which was published taking into consideration the terms and conditions of the advertisement, and held that the original application is not maintainable and accordingly rejected the same. Thereby, it is contended that since similar question has already been considered by the tribunal by rejecting the claim of the applicant in O.A. No. 394 of 2016, the petitioners having stood on similar footing these writ petitions should be dismissed.
// 11 //
6. This Court heard Mr. B. Routray, learned Senior Counsel appearing along with Mr. S.K. Samal, learned counsel for the petitioners in WPC (OAC) No.902 of 2016; Mr. J.K. Mishra, learned counsel for the petitioners in WPC (OAC) No.922 of 2016; Mr. B.B. Mohanty, learned counsel for the petitioners in WPC (OAC) No.1613 of 2017; Mr. R.K. Sahoo, learned counsel for the petitioners in WPC (OAC) No.1326 of 2016 and WPC (OAC) Nos.1102 & 3219 of 2017; and Mr. S. Jena, learned Standing Counsel for School and Mass Education Department by virtual mode. Since pleadings have been exchanged, with the consent of learned counsel for the parties, these writ petitions are disposed of finally at the stage of admission.
7. Admittedly, Government of Odisha in School and Mass Education Department issued a resolution on 27.10.2014 prescribing recruitment procedure for teaching staff in Government Secondary Schools, wherein clause-3 deals with Educational Qualification. So far as Hindi Teacher is concerned, the // 12 // same has been provided under clause-3(f) which reads as under:-
"(f) Hindi Teacher - Bachelor's degree from a recognized University with Hindi as one of the elective subject with minimum 50% marks in aggregate (45% for SC/ST/PH/OBC/SEBC candidates) or with Rastrabhasa Ratna from Rastrabhasa Prachar Samiti, Wardha or with Sastri from Orissa Rastrabhasa Parisada, Puri or with Snataka (Acquired by June-2005, the date up to which the temporary recognition has been granted) from Hindi Sikshaya Samiti, Orissa, Cuttack or an equivalent degree from a recognized institution with at least 50% marks in aggregate (45% for SC/ST/PH/OBC/SEBC candidates) and Hindi Sikshyan Parangat from Kendriya Hindi Sansthan, Agra/B.H.Ed. (a course prescribed by NCTE) from a Institution recognized by NCTE and affiliated to recognized university/B.Ed. in Hindi (a course prescribed by NCTE) from Dakhin Bharat Hindi Prachar Sabha, Madas, a institution recognized by NCTE and affiliated to a recognized university.
OR Bachelor's degree with Hindi as one of the optional/Hons subject with minimum 50% of marks in aggregate (45% for SC/ST/PH/OBC/SEBC candidates) and M.A. in Hindi with minimum 50% marks in aggregate from a recognized University.
(The untrained candidates shall have to undergo required training within the timeline as prescribed by Govt.) // 13 //
8. On perusal of the qualification prescribed for Hindi Teacher, as mentioned above, it appears that only eligible candidates can make application for consideration of Contract Teacher (Hindi) pursuant to advertisement issued for the year 2014-15. Clause-3(f) of the advertisement which has been placed in the bracket makes it clear that the untrained candidates shall have to undergo required training within the timeline as prescribed by Government. Thereby, necessary implication of incorporating this clause clearly indicates that though training qualification has been prescribed as eligibility criteria for making an application, the untrained candidates can also make an application but they have to undergo required training within the timeline as prescribed by the Government. It is not in dispute that the petitioners have got requisite qualification for appointment as Contract Teacher (Hindi). But only difficulty is that they had not acquired the training qualification by the time they submitted the application, though they had undergone training and result thereof // 14 // was not published. After submission of applications when result was published, before their applications were taken into consideration, even though they produced the training qualification certificates, their applications were rejected stating that "B.Ed. after 06.04.2015" or "certificate produced after 06.04.2015". The grounds for rejection of their applications cannot sustain, in view of the stipulation made in clause-3(f) of the resolution dated 27.10.2014. If untrained candidates can have right to make application and subsequently they can undergo required training within the timeline as prescribed by the Government, submission of their applications even as untrained candidates, cannot be said to be faulted with. Rather, their applications should have been considered as untrained candidates for selection to the post of Contract Teacher (Hindi) and they should have been allowed to undergo required training within the timeline as prescribed by the Government. As such, the present petitioners stand on a better footing in accordance with the stipulation made in clause-3(f) of the resolution dated // 15 // 27.10.2014. Meaning thereby, even though they had applied as untrained candidates and undergone training, but result thereof was not published by the time they submitted their applications. But before consideration of their applications, they had already acquired the qualification of training and, thereby, their applications should not and could not have been rejected by the authority stating "B.Ed. after 06.04.2015" or "certificate produced after 06.04.2015" and, as such, disqualifying them from participating in the process of selection is absolutely non-application of mind by the authority and unwarranted. Similar view has already been taken by this Court in Nihar Ranjan Sarangi (supra).
9. In Banarasi Das v. State of U.P., AIR 1956 SC 520, the apex Court held that it is open to the appointing authority to lay down requisite qualifications for recruitment to Government services.
10. Although a candidate must fulfil the requisite qualifications for being considered for // 16 // recruitment, difficulties often arise with regard to the interpretation of the requisite qualifications. Since the qualifications vary from case to case, decisions have turned upon the construction of the specific requirements provided by the rules or administrative instructions in the particular cases before the courts.
11. It is also brought to the notice of the Court that untrained persons have been given engagement vide order dated 04.04.2016 in respect of Mayurbhanj and Bolangir Education District. Thereby, it is contended that even though trained qualification of the petitioners had not been taken into consideration, but as untrained candidates, their cases should have been considered and engagement order should have been issued in their favour, as similarly situated persons have already been extended with such benefit. As such, the entire action authority is in gross violation of Articles 14 and 16 of the Constitution of India.
// 17 //
12. In view of such position, there is no ambiguity in the qualification prescribed under clause- 3(f) of the resolution dated 27.10.2014, so far as engagement of Contract Teacher (Hindi) is concerned. But by misconstruing the provisions contained therein, the applications of the petitioners have been rejected on the ground that "B.Ed. after 06.04.2015" or "certificate produced after 06.04.2015", though pursuant to such clause-3(f), untrained candidates can also make application and thereafter they shall have to undergo required training as per the Government norms.
13. In view of the factual and legal analysis, as discussed above, this Court is of the considered view that the draft reject list, so far as present petitioners are concerned, cannot sustain in the eye of law and the same is liable to be quashed and is hereby quashed. The opposite parties are directed to take into consideration the applications filed by the petitioners in the above mentioned writ petitions, allow them to participate in the process of selection, consider their case for engagement // 18 // as Contract Teacher (Hindi) by re-drawing the select list and extend them all the benefits in accordance with law, as expeditiously as possible, preferably within a period of three months from the date of communication of this judgment.
14. In the result, the writ petitions are allowed. However, there shall be no order as to costs.
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DR. B.R. SARANGI, JUDGE Orissa High Court, Cuttack The 15th September, 2021, Ashok/GDS