Orissa High Court
Anita Mohapatra vs State Of Odisha And Others on 29 September, 2023
Author: Savitri Ratho
Bench: Savitri Ratho
IN THE HIGH COURT OF ORISSA AT CUTTACK.
WA No.1437 of 2022
WA No.1255 of 2022
WA No.1256 of 2022
WA No.1257 of 2022
WA No.1258 of 2022
WA No.1259 of 2022
WA No.1260 of 2022
From the common judgment dated 07.09.2022 passed by the Hon'ble Single Judge in
WPC (OAC) No.3375(C) of 2015, WPC (OAC) No.2373 of 2014, WPC(OAC) No.
2222 of 2015, WPC(OAC) No. 2219 of 2015, WPC(OAC) No. 2221 of 2015,
WPC(OAC) No. 2223 of 2015 and WPC(OAC) No. 2220 of 2015
WA No.1437 of 2022
Anita Mohapatra ...... Appellant
-Versus-
State of Odisha and others ...... Respondents
----------------------------------------------------------------------------------------
For Appellant :Dr. J.K. Lenka, Advocate
For Respondents :Mr. P.K. Muduli, AGA
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WA No.1255 of 2022
Purna Chandra Nayak & Another ...... Appellants
-Versus-
State of Odisha and others ...... Respondents
----------------------------------------------------------------------------------------
For Petitioner :Ms. Pami Rath, Senior Advocate
Ms. G. Gumansingh, Advocate
State of Odisha and others: Mr. P.K. Muduli, AGA
-----------------------------------------------------------------------------------------
2
WA No.1256 of 2022
Suchismita Mohapatra ...... Appellant
-Versus-
State of Odisha & others ...... Respondents
----------------------------------------------------------------------------------------
For Appellant : Ms. Pami Rath, Senior Advocate
Ms. G. Gumansingh, Advocate
For Respondents : Mr. P.K. Muduli, AGA
For Respondent No.5 : Dr. J.K. Lenka, Advocate
-----------------------------------------------------------------------------------------------------------------------------
WA No.1257 of 2022
Laxmi Prasad Mohapatra ...... Appellant
-Versus-
State of Odisha & others ...... Respondents
----------------------------------------------------------------------------------------
For Appellant : Mr. D.P. Nanda, Senior Counsel
Ms. S. Moharana, Advocate
For Respondents : Mr. P.K. Muduli, AGA
For Respondent No.5 : Mr. S.K. Das, Advocate
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Page 2 of 46
3
WA No.1258 of 2022
Chitta Ranjan Sethi ...... Appellant
-Versus-
State of Odisha & others ...... Respondents
----------------------------------------------------------------------------------------
For Appellant : Mr. B. Routray, Senior Advocate
Mr. Manoj Kumar Pati, Advocate
Mr. Jagdish Biswal, Advocate
For Respondents : Mr. P.K. Muduli, AGA
For Respondent No.5 : Mr. S.K. Das, Advocate
-----------------------------------------------------------------------------------------------------------------------------
WA No.1259 of 2022
Smt. Sasmita Nayak ...... Appellant
-Versus-
State of Odisha & others ...... Respondents
----------------------------------------------------------------------------------------
For Appellant : Mr. B. Routray, Senior Advocate
Mr. Manoj Kumar Pati, Advocate
Mr. Jagdish Biswal, Advocate
For Respondents : Mr. P.K. Muduli, AGA
For Respondent No.5 to 7: Mr. S.K. Das, Advocate
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Page 3 of 46
4
WA No.1260 of 2022
Smt. Jyotnamayee Behera ...... Appellant
-Versus-
State of Odisha & others ...... Respondents
----------------------------------------------------------------------------------------
For Appellant : Mr. B. Routray, Senior Advocate
Mr. Manoj Kumar Pati, Advocate
Mr. Jagdish Biswal, Advocate
For Respondents : Mr. P.K. Muduli, AGA
For Respondent No.5 to 7: Mr. S.K. Das, Advocate
-----------------------------------------------------------------------------------------------------------------------------
CORAM :
HONOURABLE THE CHIEF JUSTICE
HONOURABLE MISS. JUSTICE SAVITRI RATHO
JUDGMENT
th 29 September, 2023 S.Talapatra, C.J. All these intra-court appeals being W.A. No.1437 of 2022 (Anita Mohapatra Vs. State of Odisha and others), W.A. No.1255 of 2022 (Purna Chandra Nayak & Another Vs. State of Odisha and others), WA No.1256 of 2022 (Suchismita Mohapatra Vs. State of Odisha & others), WA No.1257 of 2022 (Laxmi Prasad Mohapatra Vs. State of Odisha & others, WA No.1258 of 2022 (Chitta Ranjan Sethi Vs. State of Odisha & others, WA No.1259 of 2022 (Smt. Sasmita Nayak Vs. State of Odisha & others) and WA No.1260 of 2022 (Smt. Jyotnamayee Page 4 of 46 5 Behera Vs. State of Odisha & others) are combined for disposal by a common judgment in as much as these appeals emerge from the common judgment and order dated 07.09.2022 delivered in WPC (OAC) No. 3375 of 2015, WPC(OAC) No. 2373 of 2014, WPC(OAC) No. 2887 of 2015, WPC(OAC) No. 2219 of 2015, WPC(OAC) No. 2220 of 2015, WPC(OAC) No. 2221 of 2015, WPC(OAC) No. 2222 of 2015, WPC(OAC) No. 2223 of 2015 and WPC(OAC) No. 2225 of 2015. By the said judgment the learned Single Judge has observed and issued directions as under:
"(i) The impugned order dated 20th June, 2015 and the notice dated 29th June, 2015 are hereby quashed.
(ii) The selection committee headed by the Collector, Jagatsinghpur shall convene a meeting of the committee within two months to consider the revised list submitted by the Board.
(iii) A fresh list in terms of the revised results forwarded by the Board shall be published.
(iv) All persons, who are found eligible as per the revised list shall be offered appointment.
(v) In case any of the original appointees is also found to have qualified in the fresh select list he shall be allowed to continue.
(vi) The inter se position of all the candidates including the original appointees, if any, shall be determined on the basis of their relative position in the order of merit.
(vii) The freshly appointed candidates shall be allowed to count their seniority from the date of appointment of the original appointees if any of them are found eligible as per the revised select list, in the respective categories in accordance with their position in the merit list, but only notionally."Page 5 of 46 6
2. It is evident from our order dated 28.09.2022 passed in WA No.1258 of 2022 (Chitta Ranjan Sethi Vs. State of Odisha and others) that this Court directed that the revised select list be prepared in terms of the impugned judgment of the learned Single Judge and the said revised list shall be kept in a sealed cover and produced before the Court. Accordingly, the State counsel has produced the revised select panel list in a sealed cover. The basic facts and the issues involved in all the writ appeals are identical and for that reason, learned Single Judge clubbed all the petitions together for disposal by a common judgment.
3. On 19.07.2012, the Collector, Jagatsinghpur invited an application from the eligible candidates for recruitment to the post of Junior Clerk for the Registration Offices of Jagatsinghpur District. Ten vacancies were shown in the said advertisement, out of which three were meant for unreserved (UR) category while seven posts were reserved for different reserved categories. The written test was taken on 05.01.2014 and result was published on 18.06.2014. Thereafter, the candidates who cleared the written test were asked to appear in the Computer Practical and Viva Voce test on 30.06.2014. The result was published on the same day. Nine candidates were recommended by the Collector, Jagatsinghpur Page 6 of 46 7 for issuing appointment order by the District Sub-Registrar, Jagatsinghpur (the Appointing Authority). Even though appointment order was issued to nine candidates, but eight candidates joined and one candidate after joining had resigned. On 24.03.2015 some unsuccessful candidates submitted a written complaint to the Collector, Jagatsinghpur alleging that the OMR valuation was not done as per the answer keys provided by the Board of Secondary Education (BSE). The result sheets were obtained by the petitioners by the/through RTI Act. Subsequently, by a letter dated 04.05.2015, the Secretary BSE, Odisha Cuttack wrote to the Collector informing that due to inadvertent mistakes, three sets of question papers i.e. B, C and D were not jumbled in respect of paper-1 for which result was revised and handed over to the authorized officer. The Collector convened an urgent meeting of the selection committee on the same day and it was found that out of four sets of question papers in respect of General Knowledge and English viz, Set-A, Set-B, Set-C and Set-D, the answer in respect of Set-A question paper was correctly depicted, whereas the answers for Set-B, Set-C and Set-D were found to be defective, though the questions and sequence were the same in all the four sets. As the question sets were identical, the answers should have been identical. But it has been found that there was a serious lapse in Page 7 of 46 8 preparation of question papers as well as the answer keys by the BSE. The Collector in the emergent circumstances sought for clarification from the Government in Revenue and DM Department on the following questions:
(i) if the previous result list communicated by the Board of Secondary Education will be declared void and the candidates already appointed will be removed from service as their appointment becomes illegal and fresh appointment order to be issued as per fresh result list communicated by Board of Secondary Education;
(ii) whether we may go for fresh recruitment process after cancellation of the previous recruitment process;
(iii) what steps will be taken in respect of those employees regarding receipt of their salary.
In response to the following questions of the Collector Jagatsighpur, the Government in Revenue and DM Department by their letter dated 20.06.2015 communicated that the views from the Law Department were sought and the views are as follows:
"(i) The selection process is completely illegal and the list of successful candidates prepared by the Board of Secondary Education should not be given effect.
(ii) the candidates who have already joined in the post of a junior clerk are to be terminated as the basis of their appointment is completely wrong.Page 8 of 46 9
(iii) the recruitment process is to be cancelled and fresh recruitment may be conducted.
(iv) the damages claimed by any candidate should be realized from the Board of Secondary Education, Odisha as the process of recruitment has been dealt in a most irrational manner."
However, it has been also noted that the said view is subject to outcome of the original application being O.A. No.2373(C) of 2014 transferred and renumbered as WPC(OAC) No. 2373 of 2014. In terms of the said letter dated 20.06.2015, the Collector requested the District Sub-Registrar to terminate the Junior Clerks who were selected and sponsored by his office and had joined in the office as Junior Clerks subject to outcome of the aforementioned case. By the notice dated 29.06.2015, the Collector had cancelled the recruitment process. But for the prohibitory order passed by the Odisha Administrative Tribunal in the said original application, the said order could not be given effect to and as a result, seven candidates are still continuing in service.
4. The grievance as enumerated in the transferred writ petitions needs to be noted. The petitioners in WPC (OAC) No.3375 of 2015 (Anita Mohapatra vs. State of Orissa and others), the Appellant in W.A. No.1437 of 2022 and the petitioner in WPC (OAC) No.2373 of Page 9 of 46 10 2014 were not selected in the questioned selection procedure. The petitioner in WPC (OAC) No.2224 of 2015 ( Purna Chandra Nayak vs. State of Odisha and others), the Appellant in WA No.1255 of 2022, the petitioner in WPC (OAC) No.2222 of 2015 (Suchismita Mohapatra vs. State of Odisha and others), the Appellant in WA No.1256 of 2022, the petitioner in WPC (OAC) No.2219 of 2015 (Laxmi Prasad Mohapatra vs. State of Odisha and others), the Appellant in W.A. No.1257 of 2022, the Petitioner in WPC (OAC) No.2221 of 2015 (Chitta Ranjan Sethi vs. State of Odisha and others), the Appellant in WA No.1258 of 2022, the petitioner in WPC (OAC) No.2223 of 2015 (Sasmita Nayak vs. State of Odisha and others), the Appellant in W.A. No.1259 of 2022 and the petitioner in WPC (OAC) No.2220 of 2015 (Jyotsnamayee Behera vs. State of Odisha and others) are out of the seven selected candidates who were appointed as Junior Clerks and by virtue of the interim order as noted above, they are still continuing in their service. Those writ petitioners except the writ petitioner of WPC (OAC) No.3375 of 2015 have challenged the order dated 20.06.2015 as passed by the Government in directing the Collector, Jagatsinghpur to cancel the recruitment process and to conduct fresh recruitment. The said selected writ petitioners have also challenged the consequential order dated Page 10 of 46 11 29.06.2015 issued by the Collector, Jagatsinghpur directing the District Registrar, Jagatsinghpur to terminate the services of those appellants. It may be mentioned that only the Appellants have challenged the validity of the common judgment and order dated 07.09.2022. A few writ petitioners, as it appears from the records have preferred not to file any appeal.
5. Learned Single Judge had formulated following two questions, considered to be relevant for deciding the batch of writ petitions:
(i) Whether the seven (7) selected/appointed candidates have made out any case for interference with the impugned order dated 20.06.2015 of the Government in Revenue and DM Department and notice dated 29.06.2015 issued by the Collector, Jagatsinghpur. If so, to what relief they are entitled?
(ii) Whether the three (3) non-selected candidates are entitled to the relief claimed by them. If so, to what extent?
6. One Priyabrata Ray the writ petitioner in WPC(OAC) No.2225 of 2015 has filed the W.A. No.1255 of 2022 with Purna Chandra Nayak who was the petitioner in WPC(OAC) No.2224 of 2015. As Priyabrata Ray has filed the combined appeal with Purna Chandra Page 11 of 46 12 Nayak, the one appeal can be treated as regular, even though two separate appeals were to be filed by the writ petitioners.
7. Learned Single Judge has observed that the evaluation by the answers key by the Board of Secondary Education (the BSE in short) was seriously flawed to the effect that the question sets being identical, the answer keys should have been identical for all the four sets of questions. Having complaints from a few candidates, the Collector, Jagatsinghpur, requested the BSE to verify and re-examine the valuation of papers and to furnish report. The BSE has admitted the flaws resulting in the anomalous results. Those are unsustainable. In the counter affidavit, filed by the BSE in WPC(OAC) No.3375 of 2015, it has been stated that the result was revised and handed over to the authorized officer. Having received that report, the selection committee under the chairmanship of the Collector, Jagatsinghpur sat to take their decision on the complaint. They came to a conclusion that the evaluation of the answers had been anomalous for using inappropriate keys. The said illegality had been committed at the level of BSE. By the letter dated 06.05.2015, the Collector sought the instruction of the Government in Revenue and DM Department. On 01.07.2014 the appointment letters were issued to the selected candidates and majority of them joined the Page 12 of 46 13 post. The original select list prepared by the BSE was based on wrong answer keys. On instruction, the revised select list was prepared and communicated by the BSE to the Collector by their letter dated 04.05.2015. That was not acted upon. The Collector instead sought instructions from the Government as stated earlier. It has been inferred that the flaw has not flown from any malafide intention. That was an error which crept in to the process for not utilizing correct answer keys. Subsequently, on the basis of the correct answer keys, the select list was revised.
8. It has been observed by the learned Single Judge that on perusal of the concerned files of the Revenue and DM Department, as produced by the State counsel, it transpired that the BSE had sent the revised list to the Collector, but the Collector had not intimated the said revised list to the Law Department. Learned Single Judge extracted the opinion of the Law Department tendered on 23.02.2021-which reads inter alia as follows:
".......after calculation of marks in the answer sheets if there is any error, a fresh merit list may be prepared. If the petitioner (Bijay Kumar Parida) is in the revised merit list, then he may be given appointment and the representation of the petitioner may be disposed of accordingly."Page 13 of 46 14
The opinion of the Law Department on whether the seven Junior Clerks who were continuing as Senior Clerk by virtue of the interim order passed by the Tribunal would be allowed to continue after recasting of the merit list irrespective of their position in the revised merit list or it will be decided as per the merit list etc. The other issues as referred to the Law Department not having any bearing in the present controversy, we are not making any reference to those issues. The Law Department's opinion has been reproduced by the learned Single Judge in the impugned judgment, which reads as follows:
"The revision of the merit list will depend on the final order of these OAs by the Hon'ble High Court. The A/D is also required to file an application for revision of the order of the Hon'ble High Court dtd.18.12.2020 in WP(C) No. 35311/2020 with prayer for hearing of the revision petition as well as the above OAs analogously to avoid any conflict of orders. After final disposal of these OAs, revision of the merit list may be taken up as per order of the Hon'ble High Court and there would be no apprehension of Contempt of Court. If the A/D propose to take action as per the above views of this Department, they may resubmit the file for orders of the Government."
9. According to the learned Single Judge, the Law Department's opinion was not clear enough to set the matter at rest. They had advised to wait for the result of the pending litigation. Learned Page 14 of 46 15 Single Judge has also discarded the objection raised on the basis of the principle of laches. Non-impleadment of the District Sub-Registrar in the array of the parties has been criticized by the learned Single Judge. So far as the question of impleadment of the successful candidates is concerned, learned Single Judge has observed that the writ petitioners/original applicants have impleaded only the selected candidates from their category. For example, in the case of in WPC (OAC) No.2887 of 2015 (Suvashish Mohanty vs. State of Odisha and others) the impleaded selected candidates were Laxmi Prasad Mohapatra and Jagannath Patra respectively the Opposite Parties No.3 and 4 (in the renumbered writ petition), as they all belong to UR category and the petitioners also do belong to UR category. The learned Single Judge while considering the objection based on estoppel by conduct has observed that in view of the admitted fact of serious irregularity, the said doctrine cannot be pressed in service against the writ petitioners. So far as the writ petition of the unselected candidate i.e. WPC (OAC) No.3375 of 2015 is concerned, it has been observed by the learned Single Judge that since the said writ petitioners (Anita Mohapatra) had participated in the process knowing the process of selection as laid down in the advertisement viz the cut-off marks prescribed for the Computer Skill Page 15 of 46 16 test, she cannot turn around and question the process of recruitment. It has been also observed that at no point of time the said writ petitioner has raised any objection or protest as regard the said process adopted by the selection committee, even though that was known to her before she participated in the selection process.
10. According to the learned Single Judge, the BSE is only responsible for the entire mess. That apart, he has observed that after the selection process is over, selection committee cannot continue without the permission from the competent authorities. But for intervention of the Chairman, Selection Committee (the Collector), the rot has come out and consequently, the revised select list has been prepared by the BSE, and that was forwarded to the authority (the Collector). Learned Single Judge has observed that there is no allegation of fraud. It was a human error. For that reason, who have been selected erroneously, cannot be allowed to continue. Error and its effects are to be done away with, who might have found place in the revised select list, cannot claim their appointment as a matter of right. Having referred to State of Odisha v. Mamata Mohanty: 2011 (3) SCC 436, learned Single Judge has observed that if a candidate not securing the required marks has been appointed leaving out eligible candidates, the very appointment is to be Page 16 of 46 17 treated as a nullity. Such view has also been restated by the apex Court in a subsequent decision in State of Bihar and others v. Devendra Sarma: 2020 (15) SCC 466. In M.S. Patil v. Gulbarga University: 2010 (1) SCC 63, the apex Court had occasion to enunciate the law as follows:
"15. Once the facts of the case are narrated, there remains hardly anything to adjudicate upon. The facts of the case lead to only one conclusion that the appellant was wrongly appointed to a post that was reserved for 'Group B' category. The High Court has also found that the appellant's selection for appointment to the post was tainted by the participation of the Head of the Department of Kannada, who was related to him, in the selection process. In those facts and circumstances, all that is needed is to dismiss the appeal without further ado.
16. But at this stage once again a strong appeal is made to let the appellant continue on the post where he has already worked for over 17 years. Mr. Patil, learned Senior counsel, appearing for the appellant, submitted that throwing him out after more than 17 years would be very hard and unfair to him since now he cannot even go back to the college where he worked as lecturer and from where he had resigned to join to this post.
17. We are unimpressed. In service law there is no place for the concepts of adverse possession or holding over. Helped by some University authorities and the gratuitous circumstances of the interim orders passed by the Court and the delay in final disposal of the matter, the appellant has been occupying the post, for all these years that lawfully belonged to someone else. The equitable considerations are, thus, actually against him rather than in his favour.
18. The matter can also be looked at from a slightly different angle. It is noted above how the appellant was able to secure the appointment and how he managed to continue on the post. By notification dated August 13, 2004, the appellant was discharged from the service of the University on the post of Reader in Kannada but was asked to continue on ad hoc basis until the appointment of the new incumbent to the post. His position is, thus, only ad hoc till the appointment of the new incumbent and in that position he is continuing on the basis of the Page 17 of 46 18 direction of this Court to maintain status quo. We see no reason to continue this ad hoc arrangement any further and we do not wish to stand any longer in the way of the post being filled up on a regular basis".
Almost in similar circumstances the apex Court in Channabasavaih v. State of Maysore and others: AIR 1965 SC 1223 has stated that when it is found that the selection was not proper, such selection must be set aside. It has been also observed in Channabasavaih (supra) that the persons who have wrongly selected, cannot claim the protection under the law as our public institution are to inspire that confidence which is expected of them. Thereafter, it has been observed as follows:
".......we would be failing in duty if we did not, even at the cost of considerable inconvenience to Govt. and the selected candidates do the right thing. If any blame for the inconvenience is to be placed it certainly cannot be placed upon the petitioners candidates, the candidates whom this order displaced......"
Learned Single Judge has observed, and correctly so that continuance of a person in a post by virtue of an interim order is always subject to outcome of the litigation and no vested right can be claimed to have accrued in his favour, merely because of the length of the service rendered by him.
Page 18 of 46 19
11. In Ranjit Singh Kardam v. Sanjib Kumar: AIR 2020 SC 2020, the law has been unequivocally laid down by the apex Court in the following words:
".......when the continuance of a person on a post is by virtue of an interim order, the continuance is always subject to outcome of the litigation. The displacement of appellants from their posts is inevitable consequence of upholding of the judgment of the High Court."
12. Learned Single Judge has also taken note of the contrary view as expressed by the apex court in Rajesh Kumar and others v. State of Bihar and others: (2013) 4 SCC 690 where it has been held that while allowing a fresh merit list to be drawn up, the candidates already appointed need not be ousted. According to the learned Single Judge, in Rajesh Kumar and others (supra) the apex Court did not lay down any principle, the said decision is based on equity as there were 2268 posts available for appointments and only 210 candidates were selected. But in the present case, this is not the position. Only 10 vacancies were available to be filled up. Out of 26 persons who had been recommended, only 09 were offered the appointment and finally 07 had joined and continued. The decision of Rajesh Kumar and others (supra), according to the learned Single Judge is unworkable in the present context. Page 19 of 46 20 Thereafter, learned Single Judge has recorded his observation and issued the direction as reproduced before.
13. As the reliefs sought in the writ petition has not been fully granted or it may be stated that the substantive relief as sought has been denied, the writ petitioners aggrieved by the said judgment dated 07.09.2022 have filed these intra-court appeals. It is apparent from Para- 29 of the judgment that the order dated 20th June, 2015 and the notice dated 29th June, 2015 have been quashed with further direction on the Collector, Jagatsinghpur to convene the meeting of the selection committee and to consider the revised list as received by the BSE. It has been directed to publish the revised list after due consideration and all the eligible candidates in terms of the said revised list shall be given appointment. If the original appointees are found to have qualified in the fresh and revised select list, they shall also be allowed to continue. But interse select position will be determined on the basis of their relative position in the select panel, meaning, seniority position of the fresh candidates appointed on the basis of the revised select list shall be counted from the date of the appointment of the candidates who have been selected and appointed on the basis of the earlier select list and Page 20 of 46 21 confirmed by the revised select list, but, there shall be no financial benefit. The benefit of pay and allowance will be treated notional.
14. For sake of convenience, we will record the submission of the learned counsel appearing for the Appellants in W.A. No.1255 of 2022, W.A. No.1256 of 2022, W.A. No.1258 of 2022, W.A. No.1259 of 2022 and W.A. No.1260 of 2022 separately. The intra-court appeal being W.A. No.1437 of 2022 emerges from the said common judgment of the learned Single Judge, but the factual matrix and the nature of challenge are different. In W.A. No.1255 of 2022 and W.A. No.1256 of 2022, Ms. Pami Rath, learned Senior Counsel has appeared for the Appellant along with Ms. G. Gumansingh, learned counsel whereas in W.A. No.1257 of 2022 Mr. D.P. Nanda, learned Senior Counsel has appeared for the Appellant with Ms. S. Maharana, learned counsel. In W.A. No.1258 of 2022, W.A. No.1259 of 2022 and W.A. No.1260 of 2022 Mr. B. Routray, learned Senior Counsel has appeared for the Appellants along with Mr. M.K. Pati and Mr. J. Biswal, learned counsel. In all these appeals Mr. P.K. Muduli, learned Additional Government Advocate has appeared for the Respondents-State. In W.A. No.1256 of 2022 Dr. J.K. Lenka, learned counsel has appeared for the Respondent No.5. In W.A. No.1257 of 2022 Mr. S.K. Das, learned counsel has Page 21 of 46 22 appeared for the Respondent No.5. In W.A. No.1258 of 2022, W.A. No.1259 of 2022 and W.A. No.1260 of 2022 Mr. S.K. Das, learned counsel has appeared for the Respondents No. 5 to 7.
15. In W.A. No.1437 of 2022, Dr. J.K. Lenka has appeared for the Appellant and Mr. P.K. Muduli, learned Additional Government Advocate has appeared for the Respondents-State.
16. In all these writ appeals including W.A. No.1437 of 2022, we have passed the common order in the proceeding. By the order dated 10th July, 2023 this court has made the observation and direction:
"xxx xxx xxx
2. Heard the appellants at length but at the request of Mr. P.K. Muduli, learned Addl. Government Advocate who is appearing for the respondent-State, let the matters be listed on 18.07.2023 at 02.00 PM.
3. In the meanwhile, the respondent-State shall file an affidavit clearly stating that out of the declared 10 vacancies, how many persons have joined and presently, how many vacancies are available against the post of Junior Clerk against the said 10 posts.
4. In this regard, we would like to clarify that the vacancy position be stated as on 19.07.2012. It has been stated by learned counsel for the appellants that one of the selected candidates had resigned. It may also further pointed out that against the 10 vacancies 9 candidates were selected and out of them 8 Page 22 of 46 23 candidates joined and as stated, one candidate had resigned. As a result, 7 candidates joined and occupied the post.
5. The Respondent-State shall clearly state that whether the two candidates as mentioned above have left the post permanently or not? Whether have they kept any lien on the post?
6. That apart, the revised merit list as has been prepared in terms of the order dated 02.11.2022 passed in W.A. No.1255 of 2022 shall be placed before this court, under the sealed cover, for perusal."
17. In compliance of the said order dated 10.07.2023, the Respondents-State by filing an affidavit, through the Respondent No.2 in W.A. No.1437 of 2022 and W.A. No.1258 of 2022 have stated that for filing up of 10 vacant posts of Junior Clerks in the Registration Office under Jagatsinghpur district the notification vide Advertisement No.112/Estt. dtd.19.07.2012 was issued. The details of the vacant posts have been shown in a table in Para-05 of the said affidavit. For our reference, we extract the table below:
Sl.No. Category Male Female Total 1. UR 2 1 3 2. SEBC 2 1 3 Page 23 of 46 24 3. SC 1 1 2 4 ST 1 1 2 10
It has been further stated that as per the proceeding the selection committee meeting held on 25.06.2014, out of 485 candidates 26 candidates on one: three' ratio were allowed to appear in the Computer Practical Skill Test for 50 marks and such test was held on 30.06.2014. The selection committee had decided to fix 10 marks out of total 50 marks, for SC and ST candidates and 15 marks, out of the total 50 marks for other candidates to qualify in the said Computer Practical Skill Test. 26 candidates were called for the Computer Practical Skill Test. The table below represents those figures:
Category No. of vacancy No. of Remarks
advertised candidates
allowed to appear
the Computer
Practical Skill
Test
UR(M) 2 6
UR(W) 1 3
SEBC(M) 2 6
Page 24 of 46
25
SEBC(W) 1 3
SC(M) 1 3
SC(W) 1 3
ST(M) 1 1 Only one
candidate was
attended in
written test
ST(W) 1 1 Only one
candidate was
attended in
written test
TOTAL 10 26
The candidates belonging to ST(W) category had not appeared in the Computer Practical Skill Test. On the basis of the result of the Computer Practical Skill Test, 09 candidates out of the 10 vacancies advertisement were recommended for appointment. Out of the 09 candidates, 08 candidates joined and one candidate belonging to ST(M) namely, Deepak Kumar Pradhan did not join. Further out of the 08 candidates, one candidate belonging to UR(M) category namely, Sri Jagannath Patra who was placed in the Serial No.2 of the appointment order dated 01.07.2014, resigned from his post with effect from 16.03.2015. It has been submitted that as on 19.07.2012, 10 vacancies were available, against those vacancies finally only 07 candidates have joined. The posts are permanent. It has been also stated in the said Page 25 of 46 26 compliance affidavit that the revised merit list has been prepared and kept in a sealed cover.
18. In W.A. No.1257 of 2022, the petitioner represented by Ms. S. Maharana, learned counsel, has filed an additional affidavit in response to the said order dated 10.07.2023. Based on RTI disclosure, the said petitioner has averred that as per the information disclosed under RTI Act at present, there are 29 posts of Junior Clerk in the district of Jagatsinghpur lying vacant [see Anexure-A/1 of the said affidavit]. Most importantly, what has been stated in Para-05 of the said affidavit (filed on 07.07.2023), is that the Appellant in W.A. No.1258 of 2022 namely, Chitta Ranjan Sethi has been selected and promoted to the Odisha Revenue Service Group-B [Level-1 of Pay Matrix of ORSP Rules, 2017]. The appellant joined on 10.02.2023, pursuant to the notification dated 01.02.2023 as the Assistant Collector at the Office of the Collector and District Magistrate, Bhadrak. The copy of the notification dated 14.02.2023 in support of the said averments, has placed under Annexure A/3 to the affidavit. It has been further averred that one Sarada Prasad Mohanty has been appointed as Junior Clerk, Group-C on contractual basis vide Order No.1546 dated 19.06.2017 having been recommended Page 26 of 46 27 by Odisha Staff Selection Commission. Sarada Prasad Mohanty was at Serial No.2 in the initial select list, on the basis of which the Appellant except the Appellants in W.A. No.1437 of 2022, were recruited. Thus, another vacancy arose. At this stage, we should record that the appointment of Chitta Ranjan Sethi to the Odisha Revenue Service, Group-B has its root in the said recruitment of Junior Clerks. It is true that, for his appointment to the Odisha Revenue Service Group-B, another vacancy arose at the level of Junior Clerks or It is evident that for appointment of Sarada Prasad Mohanty, one vacancy in the level of Junior Clerks arose. That apart, the Appellant in W.A. No.1258 of 2022 has filed one interlocutory application being I.A. No.372 of 2022 urging this Court to modify/clarify the order dated 02.11.2022 by allowing only the parties in the present appeals to undergo the Computer Practical Skill Test. The said I.A. has become inessential as the matter has been heard finally and the order dated 02.11.2022 will be subject to the said outcome.
19. Dr. Lenka, learned counsel has appeared for the Appellant, in W.A. No.1437 of 2022 who had applied for the post of Junior Clerk like other Appellants and after the written test, she was also called to appear in the Computer Practical Skill Test on 30.06.2012. She has Page 27 of 46 28 admitted that in the written instruction under the note 2 of the advertisement, it was stipulated that Practical Skill Test in Computer is qualifying in nature and the mark secured shall not be added to the total marks secured in the written examination. In case the candidate does not appear, the test his/her candidature is liable for rejection. When the appointment letter was issued on 01.07.2014, the said Appellant was not offered the appointment and later on, on the basis of the complaint the entire process was re-verified. At this point, we are to note that the complaints were made in respect the written examination, not about the Computer Practical Skill Test. There is no allegation about the said test. The appellant in W.A. No.1437 of 2022 has urged to continue the exercise only amongst the parties in the litigation. In respect of this Appellant, the learned Single Judge has clearly observed that since she was called for the Computer Practical Skill Test and she was not selected, she can neither challenge the process nor can she take any advantage under the revised selection panel. It has been contended by Dr. Lenka, learned counsel that when the selection process is found to be vitiated, the Appellant has right to question the process and the selection of candidates like the Respondent No.4. The Respondent No.4 has been subsequently promoted to the post of Senior Clerk and according to the Page 28 of 46 29 Appellant, on extraneous consideration. But there is no such averment which can persuade this court to believe the said allegation. True, it is that when it was found that gross mistake had taken place during OMR evaluation for using the wrong answer-key, the authority has recalled the selection process and asked for a revised selection list. One additional point has been raised by the Appellant that the statement of reservation cannot be more than 50% in a year in view of the ceiling, as laid down by the apex Court in Indra Sawhaney v. Union of India: 1992 Supp. (3) SCC 217. In this regard, learned Single Judge has noted that objection, but finally did not give his opinion on that point, but it has been held that the writ petition filed by this Appellant is hit by estoppel by conduct. What is surprising is that while making the submission on the 50% limit, no reference has been made to a subsequent decision of the Supreme Court in R.K. Sabharwal v. State of Punjab: (1995) 2 SCC 745 where the apex Court has innovated the rule of substitution and the carry forward rule. As such, we are not impressed that we need to interfere with the impugned judgment on the ground of ceiling in the reservation. In respect of the opinion of the learned Single Judge that the said appellant's case is hit by estoppels by conduct, we have no different opinion. As such, this appeal being W.A. No.1437 of 2022 is liable to be Page 29 of 46 30 dismissed. Moreover, we would like to observe that in the writ appeal the said Appellant has supported the cancellation of the process and preparation of the revised merit list. It is conceived that if the Appellant has found a place in the said revised list, she should get another opportunity of appearing before the Computer Practical Skill Test. In view of the said position taken by the Appellant, the writ petition ought to have been dismissed on its face, as no action can be maintained under Article 226, only to support a State action.
20. Mr. Routray, learned Senior Counsel appearing for the Appellants in W.A. No.1258 of 2022, W.A. No.1259 of 2022 and W.A. No.1260 of 2022 has submitted that out of the total advertised posts, initially 08 candidates joined. Subsequently, one candidate resigned from the post. Thereafter, 07 candidates have been continuing including the Appellants he represents. He has also pointed out that 03 candidates, the private Respondent No.5, 6 and 7 had filed three original applications and out of those 03 applicants, one Anita Mohapatra, the Respondent No.6 (the Appellant in W.A. No.1437 of 2022) could not qualify in the computer based test as she secured 2.5 out of 50 marks. Out of two remaining applicants, the Respondent No.7, after filing of the writ petition by the Appellants, got the better job as he was appointed the Page 30 of 46 31 Co-operative Inspector under the Registrar, Co-operative Societies at Keonjhar district. That apart, the Respondent No.7 has qualified for appointment in the post of Assistant Section Officer (Group-B post) on 07.06.2019. Thus, the Respondent No.6 did not show any interest in respect of the litigation. The remaining one, the Respondent No.5, Bijaya Ku. Parida, if at all selected in terms of the revised merit list, he can be appointed against one vacant post of UR category, which is still available. Mr. Routray, learned Senior Counsel has emphatically argued that there cannot be any amount of debate that the error was committed by the Board of Secondary Education (BSE) in the matter of evaluation of the answers. For that, the entire consequence cannot be transferred to the Appellants, as they are neither found to have committed any fraud or misrepresentation for securing the appointment. Mr. Routray, learned Senior Counsel has pointed out that the Appellants have not only completed 08 years of continuous service, but a few of them have been promoted to the higher post as per the recommendation of the DPC. The termination of the Appellants at this stage will not only impinge upon their economic security but also adversely affect their career. Mr. Routray, learned Senior Counsel has referred a few decision of the apex Court including Vikas Pratap Singh & Ors vs State Of Chhatisgarh & Page 31 of 46 32 Ors: (2013) 14 SCC 494, where 26 candidates were supposed to be ousted from their service on the basis of the cancellation of their appointment qua the revised merit list after they had served for more than three years by virtue of the interim order passed by the High Court. Meanwhile, they had undergone the training and put on blemished service. Having referred to Rajesh Kumar and others Vs. State of Bihar and others: 2013 (3) SCALE 393, it has been contended that the direction of the Court to the respondent-State to re-evaluate the answer scripts on the basis of correct model answers key and consider sympathetically the case of such candidates who, after having being appointed in terms of erroneous evaluation and having served the State for a considerable length of time and having not found place in the fresh merit list drawn after re-evaluation, cannot be faulted with on equity. The Respondent-State did not want to oust such candidates. They suggested to place them at the bottom of the fresh merit list. In that context, it has been observed in Rajesh Kumar (supra) as follows:
"20. The pristine maxim of fraus et jus nunquam cohabitant (fraud and justice never dwell together) has never lost its temper over the centuries and it continues to dwell in spirit and body of service law jurisprudence. It is settled law that no legal right in respect of appointment to a said post vests in a candidate who has obtained the employment by fraud, mischief, misrepresentation or malafide. (See: District Collector & Chairman, Vizianagaram Page 32 of 46 33 Social Welfare Residential School Society, Vizianagaram and another v. M. Tripura Sundari Devi, (1990) 3 SCC 655, P. Chengalvaraya Naidu v. Jagannath and others, (1994) 1 SCC 1 and Union of India and others v. M. Bhaskaran, 1995 Suppl. (4) SCC 100). It is also settled law that a person appointed erroneously on a post must not reap the benefits of wrongful appointment jeopardizing the interests of the meritorious and worthy candidates. However, in cases where a wrongful or irregular appointment is made without any mistake on the part of the appointee and upon discovery of such error or irregularity the appointee is terminated, this Court has taken a sympathetic view in the light of various factors including bonafide of the candidate in such appointment and length of service of the candidate after such appointment (See: Vinodan T. and Ors. v. University of Calicut and Ors.,(2002) 4 SCC 726; State of U.P. v. Neeraj Awasthi and Ors. (2006) 1 SCC 667).
21. In Girjesh Shrivastava and Ors. v. State of M.P. and Ors., (2010) 10 SCC 707, the High Court had invalidated the rule prescribing selection procedure which awarded grace marks of 25 per cent and age relaxation to the candidates with three years' long non-formal teaching experiences as a consequence of which several candidates appointed as teachers at the formal education institutions under the said rule stood ousted. This Court while concurring with the observations made by the High Court kept in view that upon rectification of irregularities in appointment after a considerable length of time an order for cancellation of appointment would severely affect economic security of a number of candidates and observed as follows:
"28. ...Most of them were earlier teaching in Non- formal education centers, from where they had resigned to apply in response to the advertisement. They had left their previous employment in view of the fact that for their three year long teaching experiences, the interview process in the present selection was awarding them grace marks of 25 per cent. It had also given them a relaxation of 8 years with respect to their age. Now, if they lose their jobs as a result of High Court's order, they would be effectively unemployed as they cannot even revert to their earlier jobs in the Non-formal education centers, which have been abolished since then. This would severely affect the economic security of many families. Most of them are between the age group of 35-45 years, and the prospects for them of finding another job are rather dim. Some of Page 33 of 46 34 them were in fact awaiting their salary rise at the time of quashing of their appointment by the High Court."
Therefore, mindful of the aforesaid circumstances this Court directed non-ouster of the candidates appointed under the invalidated rule.
22. In Union of India (UOI) and Anr. v. Narendra Singh, (2008) 2 SCC 750 this Court considered the age of the employee who was erroneously promoted and the duration of his service on the promoted post and the factor of retiring from service on attaining the age of superannuation and observed as follows:
"31. The last prayer on behalf of respondent, however, needs to be sympathetically considered. The respondent is holding the post of Senior Accountant (Functional) since last seventeen years. He is on the verge of retirement, so much so, that only few days have remained. He will be reaching at the age of superannuation by the end of this month i.e. December 31, 2007. In our view, therefore, it would not be appropriate now to revert the respondent to the post of Accountant for very short period. We, therefore, direct the appellants to continue the respondent as Senior Accountant (Functional) till he reaches the age of superannuation i.e. upto December 31, 2007. At the same time, we hold that since the action of the Authorities was in accordance with Statutory Rules, an order passed by the Deputy Accountant-General canceling promotion of the respondent and reverting him to his substantive post of Accountant was legal and valid and the respondent could not have been promoted as Senior Accountant, he would be deemed to have retired as Accountant and not as Senior Accountant (Functional) and his pensionary and retiral benefits would be fixed accordingly by treating him as Accountant all through out.
32. For the foregoing reasons, the appeal is partly allowed. Though the respondent is allowed to continue on the post of Senior Accountant (Functional) till he reaches the age of retirement i.e. December 31, 2007 and salary paid to him in that capacity will not be recovered, his retiral benefits will be fixed not as Senior Accountant (Functional) but as Accountant. In the facts and circumstances of case, there shall be no order as to costs."Page 34 of 46 35
23. This Court in Gujarat State Deputy Executive Engineers' Association v. State of Gujarat and Ors., 1994 Supp (2) SCC 591 although recorded a finding that appointments given under the `wait list' were not in accordance with law but refused to set aside such appointments in view of length of service (five years and more).
24. In Buddhi Nath Chaudhary and Ors. v. Akhil Kumar and Ors., (2001) 2 SCR 18, even though the appointments were held to be improper, this Court did not disturb the appointments on the ground that the incumbents had worked for several years and had gained experience and observed:
"We have extended equitable considerations to such selected candidates who have worked on the posts for a long period."
(See: M.S. Mudhol (Dr.) and Anr. v. S.D. Halegkar and Ors., (1993) II LLJ 1159 SC and Tridip Kumar Dingal and Ors. v. State of West Bengal and Ors.: (2009) 1 SCC 768)
25. Admittedly, in the instant case the error committed by the respondent-Board in the matter of evaluation of the answer scripts could not be attributed to the appellants as they have neither been found to have committed any fraud or misrepresentation in being appointed qua the first merit list nor has the preparation of the erroneous model answer key or the specious result contributed to them. Had the contrary been the case, it would have justified their ouster upon re-evaluation and deprived them of any sympathy from this Court irrespective of their length of service.
26. In our considered view, the appellants have successfully undergone training and are efficiently serving the respondent- State for more than three years and undoubtedly their termination would not only impinge upon the economic security of the appellants and their dependants but also adversely affect their careers. This would be highly unjust and grossly unfair to the appellants who are innocent appointees of an erroneous evaluation of the answer scripts. However, their continuation in service should neither give any unfair advantage to the appellants nor cause undue prejudice to the candidates selected qua the revised merit list.
Page 35 of 46 36
27. Accordingly, we direct the respondent-State to appoint the appellants in the revised merit list placing them at the bottom of the said list. The candidates who have crossed the minimum statutory age for appointment shall be accommodated with suitable age relaxation.
[Emphasis added]
21. In another decision in Anmol Kumar Tiwari and others vs. The State of Jharkhand and others: (2021) 5 SCC 424, the apex Court having referred to Vikas Pratap Singh (supra) had occasion to observe asunder:
"A similar situation arose in Vikas Pratap Singh's case (supra), where this Court considered that the Appellants-therein were appointed due to an error committed by the Respondents in the matter of valuation of answer scripts. As there was no allegation of fraud or misrepresentation committed by the Appellants therein, the termination of their services was set aside as it would adversely affect their careers. That the Appellants-therein had successfully undergone training and were serving the State for more than 3 years was another reason that was given by this Court for setting aside the orders passed by the High Court. As the Writ Petitioners are similarly situated to the Appellants in Vikas Pratap Singh's case (supra), we are in agreement with the High Court that the Writ Petitioners are entitled to the relief granted. Moreover, though on pain of Contempt, the Writ Petitioners have been reinstated and are working at present.
[Emphasis added] But it has been also clearly held that those persons for their retention in the service cannot claim parity with the persons who are supposed to be selected on merit. In Richal and others vs Rajasthan Page 36 of 46 37 Public Service Commission and others: (2018) 8 SCC 81 again Rajesh Kumar (supra) was revisited and it was held as follows:
"26. In the affidavit filed by the Commission it is mentioned that the result has been revised of only 311 appellants who are before this Court. We are of the view that key answers having been corrected, merit of all the candidates except those who have already been selected needs to be redetermined. In our order dated 16.01.2018 it is mentioned that this exercise shall not affect those who have already been selected. We, thus, are of the view that the Commission should revise the entire result of all the candidates except those who have been selected on the basis of the report of Expert Committee and publish revise result of all the candidates. When the key answers are correct of the candidates who appeared in the examination, they are entitled for revision of their result, since, fault does not lie with the candidates but lies with the examination body. It shall not be equitable to not extend the benefit to those candidates who have not come to the Court being satisfied with the steps taken by the Commission and its earlier Expert Committee which was given the task of revising the key answers.
[Emphasis added]
27. In view of the foregoing discussions, we dispose of these appeals with the following directions:
(1) The Rajasthan Public Service Commission is directed to revise the result of all the candidates including all the appellants on the basis of Report of the Expert Committee constituted in pursuance of our order dated 16.01.2018 and publish the revised result.
(2) While carrying the above exercise the Commission need not revise the result of all those candidates whose names were included in the Select List earlier published. We having already pointed out that the appointments shall not be affected by this exercise, there is no necessity to revise their result.Thus, this exercise shall be undertaken excluding Page 37 of 46 38 all the candidates who are included in the Select List."
[Emphasis added] It has been restated that when fault does not lie with the candidates but lies with the examination body, it shall not be equitable to not extend the benefit to those candidates who have not come to the Court being satisfied with the steps taken by the Commission and its earlier Expert Committee with which the task of revising the answers key was entrusted. It has been clearly observed that while carrying out the exercise of revising the select list which has been earlier published, the appointment as made thereon shall not be affected.
22. Mr. Routray, learned Senior Counsel has referred another decision of the apex Court in Gaurav Pradhan and Ors. vs. State of Rajasthan and Ors.: (2018) 11 SCC 352. It is relevant in respect of vacancies which can be utilized for purpose of granting equitable relief in such circumstances. In Richal (supra) the candidates, belonging to unreserved category, was not appointed even though they were clearly entitled to appointment. But those candidates who were by mistake migrated to unreserved category were working for more than five years. It has been observed in Richal (supra) that the competing equities are to Page 38 of 46 39 be adjusted by the Court for doing the substantive justice. The State- Opposite Parties were directed to work out for appointment of those who were supposed to be appointed against the candidates, who were as per their merit general category vacancies. The State-Opposite Parties were further directed to make appointments against the existing vacancies, if available and in the event there are no vacancies available for the above candidates, the supernumerary post were directed to be created for adjusting the Appellants. Those supernumerary posts shall be abolished as and when the regular vacancies are available in future. That arrangement was made not to oust the candidates who were illegally migrated to the unreserved vacancies.
23. Ms. Pami Rath, learned Senior Counsel and Mr. D.P. Nanda, learned Senior Counsel have made similar submission that the decision of the learned Single Judge has failed to take the consequence of making appointment on the revised merit list in consideration. If it is found that the said revised merit list, does not contain the names of the 07 candidates, who continued for more than eight years, they will face ouster from the service with adverse effect on their financial security for no fault of theirs. As such, the observation of the learned Single Judge based on the Ranjit Singh Kardam v. Sanjib Kumar: AIR 2020 SC 2020 Page 39 of 46 40 has been made without balancing the equities. In Ranjit Singh Kardam (supra), the apex court had occasion to observe as follows:
"When the continuance of a person on a post is by virtue of an interim order, the continuance is always subject to outcome of the litigation. The displacement of appellants from their posts is inevitable consequence of upholding of the judgment of the High Court."
24. Having discussed Rajesh Kumar (supra), the learned Single Judge has directed that the freshly appointed candidates shall be allowed to count their seniority from the date of appointment of the original appointees if any of them are found eligible as per the revised select list in the respective categories in accordance with their position in the merit list, but financial benefits will be notional. Both the counsel for the Appellants have submitted that the present Appellants are not averse to the observation made by the learned Single Judge, but their service should be protected. We need to observe that the seniority position will be determined on the basis of merit position, unless it is directed differently.
25. Mr. Muduli, learned Additional Government Advocate has submitted that when the advertisement was issued, only 10 vacancies for appointment to the post of Junior Clerk were available, and as such, even Page 40 of 46 41 if there are more vacancies, those cannot be utilized for accommodation of the appellants except the appellant Anita Mohapatra who cannot otherwise also claim any appointment. Mr. Muduli, learned Additional Government Advocate has fairly submitted that the answer-keys of the candidates were not properly evaluated as per the answer-keys. As a result thereof, serious anomalies surfaced in the result. In order to remove the anomalies, it was decided at the appropriate level to revise the merit list. Three original applications were filed in the State Administrative Tribunal seeking the relief of revising merit list and for giving appointment to the original applicants. Finally, by the impugned judgment, learned Single Judge has directed to prepare the fresh list in terms of the revised result forwarded by the Board and that shall be published for general information. That list has been submitted before us under sealed cover, in terms of the order dated 28.09.2022 passed in this batch of writ appeals. Mr. Muduli, learned Additional Government Advocate has further submitted that the candidates whose names do not find place in the revised select list, cannot be allowed to claim any right to appointment. In this regard, he has referred to State of Odisha v. Mamata Mohanty: 2011 (3) SCC 436 where the apex Court has observed inter alia as under:
Page 41 of 4642
"It is a settled legal proposition that if an order is bad in its inception, it does not get sanctified at a later stage. A subsequent action/development cannot validate an action which was not lawful at its inception, for the reason that the illegality strikes at the root of the order. It would be beyond the competence of any authority to validate such an order. It would be ironic to permit a person to rely upon a law, in violation of which he has obtained the benefits. If an order at the initial stage is bad in law, then all further proceedings consequent thereto will be nonest and have to be necessarily set aside. A right in law exists only and only when it has a lawful origin."
26. Having appreciated the competing arguments, this Court at the outset observed that there is no reason to interfere with the final inference drawn by the learned Single Judge at Para-29 the judgment setting aside order dated 07.09.2022 and the order dated 20.06.2015 directing termination and fresh recruitment process and the consequential notice dated 29.06.2014. In that perspective, it has been directed by the learned Single Judge that the revised list, as submitted by the Board of Secondary Education Odisha shall be considered by the selection committee and the fresh select list shall be published and those who will be found eligible as per the revised list shall be offered appointment. If the original appointees are found to have qualified in the fresh select list, they would naturally be allowed to continue. Inter se seniority positions of all the candidates, including the original appointee, Page 42 of 46 43 if any, shall be determined on the basis of their position in the order of merit.
27. We do not find any illegality in such directions. But, on one point, we need to differ. Learned Single Judge, by discarding Rajesh Kumar (supra), has held that the petitioners have continued in the post for long time but they so continued by virtue of interim order and hence, the ratio of Rajesh Kumar (supra), cannot be of any help to them if their places are taken by the eligible candidates. No further vacancies will be available for their adjustment at the bottom of the list in the manner as done in Rajesh Kumar (supra). In Vikas Pratap Singh (supra), it has been laid down that the principle of equity shall be applied to protect the candidates who will be the casualty for implementation of the revised merit list. It has emerged that the Appellants, except the Appellant in W.A. No.1437 of 2022 have put in unblemished service for eight years, even though by virtue of the interim order. But, if they are terminated, they will be terminated for no fault of theirs. Error committed by the respondent-Board in the matter of evaluation of the answers cannot be attributed to the Appellants, as they have not committed any fraud, nor they made any misrepresentation for being appointed. It has been observed in Vikas Pratap Singh (supra) that termination would not only Page 43 of 46 44 impinge upon the economic security of the Appellants and their dependants, but will also adversely affect their careers and they might lose the chance of further employment. That will be highly unjust and grossly unfair. Such devastation has to be adjusted under the principle of equity, as the erroneous evaluation of the answers cannot be attributed, by any means, to the Appellants. Except the Appellant in W.A. No.1437 of 2022, all the Appellants have successfully qualified in the Computer Practical Skill Test. In Richal (supra), a different approach has been taken by the apex Court. According to them, the revised merit list shall not be effected, so far as the incumbents who got appointment on the basis of the first merit list are concerned, rather the revised merit list shall be utilized for appointing the candidates, who were not selected for erroneous answer keys. In Gaurav Pradhan (supra), the apex Court had directed the State of Rajasthan to create supernumerary posts for adjustment. In Para-11 of the additional affidavit, it has been stated that at present there are 29 posts of Junior Clerks lying vacant in the district of Jagatsinghpur. To avert unwarranted human consequences, the equitable adjustment is warranted.
28. We direct that the revised merit list as prepared in the selection committee meeting held on 16.11.2022 and 12.12.2022 be Page 44 of 46 45 opened by the Collector and District Magistrate, Jagatsinghpur against 10 vacancies following the reservation rules. Those whose names are in the revised merit list, shall be appointed in accordance with their merit position vis-à-vis vacancies. If the names of any of the Appellants except the Appellant in W.A. No.1437 of 2022 find place in the revised merit list, his/her seniority will be determined in terms of the direction given by the learned Single Judge. But if it is found that the Appellants [except the Appellant in W.A. No.1437 of 2022] are not within the merit list, we direct the State to allow them to continue in the post of Junior Clerk by saving their appointments in the post of Junior Clerk or in the promotion post by creating supernumerary post or against the vacancies at present available. Those appellants will be at the bottom of the seniority list vis-à-vis the persons appointed on the basis of the revised merit list. Whether the appellants, whose name are not found in the revised merit list will be given further promotion or not, will be decided by the appropriate authority, otherwise, they will retire from the post of Junior Clerk. Those who are already promoted, their promotion shall be protected.
29. In terms of the above, the writ appeals being W.A. No.1255 of 2022, W.A. No.1256 of 2022, W.A. No.1257 of 2022, W.A. No.1258 Page 45 of 46 46 of 2022, W.A. No.1259 of 2022 and W.A. No.1260 of 2022 are partly allowed.
The writ appeal being W.A. No.1437 of 2022 is dismissed for the reasons recorded above.
30. Before parting with the records, we would like to note that till the said adjustment is made, the Appellants in W.A. No.1255 of 2022, W.A. No.1256 of 2022, W.A. No.1257 of 2022, W.A. No.1258 of 2022, W.A. No.1259 of 2022 and W.A. No.1260 of 2022 shall be allowed to continue in the present position. The revised merit list as submitted in the sealed cover be returned to the Collector and District Magistrate, Jagatsinghpur through Mr. Muduli, learned Additional Government Advocate. We have not broken the sealed cover and it is being returned infact.
31. No orders as to costs.
.................................
S. Talapatra
Chief Justice
Savitri Ratho, J. I agree.
.................................
Savitri Ratho, J.
Signature Not Verified
Orissa High Court, Cuttack.
Digitally Signed
Signed by: LITARAM MURMU The 29th day of September, 2023. Reason: Authentication L. Murmu, Senior Stenographer Location: High Court of Orissa Cuttack Date: 03-Oct-2023 15:05:47 Page 46 of 46