Orissa High Court
Samir Kumar Senapati vs State Of Odisha And Others .... Opp. ... on 23 December, 2024
Author: Sashikanta Mishra
Bench: Sashikanta Mishra
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No. 17747 OF 2017
Application under Articles 226 & 227 of Constitution of India.
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Samir Kumar Senapati .... Petitioner
-versus-
State of Odisha and others .... Opp. Parties
Advocate(s) appeared in this case:-
_______________________________________________________
For Petitioner : M/s. S. Jena, S. Sahu
N. Biswal and B. Mishra, Advocates
For Opp. Parties : Mr. S.N. Patnaik,
Addl. Government Advocate.
__________________________________________________________
CORAM:
JUSTICE SASHIKANTA MISHRA
JUDGMENT
23rd December, 2024 SASHIKANTA MISHRA, J. The petitioner has filed this writ petition claiming the following relief:-
"It is therefore, most humbly prayed that this Hon'ble Court be graciously pleased to:
i) Admit the writ application.
ii) Call for the record.
iii) Issue Rule Nisi calling upon the opposite parties to show cause as to why the impugned rejection order dated 16.05.2015 under Annexure-6 passed by opposite party No.3 shall not be quashed.Page 1 of 13
iv) If the opposite parties fail to show cause or show insufficient cause make the rule absolute and issue a writ in the nature of certiorari or any other writ/writs direction/directions quashing impugned rejection order dated 16.05.2015 under Annexure-6 passed by opposite party No.3.
v) Issue a writ in the nature of mandamus or any other writ/writs direction/directions directing the opposite parties, particularly opposite party Nos. 3 and 4 to reconsider the case of the petitioner as Shikhya Sahayak and he may be allowed to continue against the said post as before taking into consideration the grievance made under Annexure-7 within a reasonable time to be stipulated by this Hon'ble Court and the petitioner be entitled to receive all consequential and financial benefit and his case may be considered for the post of Junior Teacher and Regular Primary School Teacher as has been done in case of other similarly placed employees within a stipulated period.
And/or pass any other order/orders, direction/directions as this Hon'ble Court deems fit and proper for the ends of justice. And for the said act of kindness, the petitioner as in duty bound shall ever pray"
2. The case of the petitioner is that he was appointed as Education Volunteer as per order dated
02.08.2002 of the District Project Coordinator, DPEP, Bargarh and was posted at Ainlapali EGS Center since 07.08.2002. While working as such, an advertisement was Page 2 of 13 issued on 14.10.2006 by the State Project Director, OPEPA for engagement as Shikshya Sahayak. The petitioner, having requisite qualification, submitted his application.On being selected, he tendered his resignation as Education Volunteer, which was duly accepted and he joined on 18.12.2006 being posted as Shikshya Sahayak in Kudapali Primary School under Sohella Block in the district of Bargarh. On 07.12.2009, a show cause notice was issued by the Collector, Bargarh asking him to explain as to why he shall not be disengaged on the ground that he was wrongly awarded 16% grace marks during selection as Shikshya Sahayak, which he was not entitled to. The petitioner submitted his reply stating that he was appointed bonafide being selected by the authorities, without any fault of his own, as a result of which he had resigned from his previous post and joined as Shikshya Sahayak. Had he continued as Education Volunteer, he could have been engaged as Gana Sikshyak, as per the scheme of the Government, and thereafter as Shikshya Sahayak. Further, the advertisement itself prescribed that 5% grace marks will be awarded to the candidates working Page 3 of 13 under DPEP scheme. The petitioner, after submitting his reply also challenged the show cause notice before this Court in W.P.(C) No. 19882 of 2009. He also filed writ petition being W.P.(C) No. 8138 of 2011 praying for a direction to include his name in the select list of Shikshya Sahayaks as Junior Teachers, since he had completed three years. This Court, by order dated 31.03.2011, disposed of the writ petition directing the Collector to consider the representation submitted by the petitioner. However, by order dated 25.07.2011, the Collector rejected the claim of the petitioner on the ground that he had wrongly been given 16% grace marks, which he was not entitled to. Further, by order dated 23.03.2015, this Court disposed of the earlier writ petition being W.P.(C) No. 19882 of 2009 granting liberty to the petitioner to submit a fresh representation before the Collector with further direction to the Collector to consider and dispose of the representation within a stipulated period. The petitioner, accordingly, submitted a representation explaining in detail his stand. He was called upon by the Collector for personal hearing, pursuant to which he appeared and placed all relevant Page 4 of 13 facts and documents, but, by order dated 16.05.2015, his representation was rejected again on the same ground. The petitioner contends that being an Education Volunteer, he is entitled to grace marks as per the advertisement. Even assuming that he is not entitled to any grace mark, he cannot be faulted with for being selected. Further, he submitted his resignation as Education Volunteer and therefore, the impugned order has the effect of adversely affecting his right to livelihood. He also contends that having selected the petitioner, the authorities are estopped from holding that he is not entitled to the post.
3. The stand of the State, as reflected in the counter affidavit and reply to rejoinder, is that the petitioner was eligible to apply for the post of Shikshya Sahayak during the year 2006, but he was not entitled to 16% grace marks, which were granted to him. Such grace mark, as per paragraph-8(c) of the advertisement, is meant for persons working under DPEP scheme as Para Teachers, EFA, NFE/NFI and Swechhasevi Sikshya Sahayak affected by the order of this Court in W.P.(C) No.11748 of 2003, but the petitioner was wrongly awarded such grace marks. He Page 5 of 13 secured 41.00% in Graduation and 46.40% in B.Ed. As such, he had secured 86.4%, which is way below the marks secured by the last selected candidate that is, 101.800%. It is only by adding 16% marks that his score became 103.400%.
4. Heard Mr. S. Jena, learned counsel for the petitioner and Mr. S.N. Patnaik, learned Addl. Government Advocate for the State.
5. Mr. Jena submits that the petitioner was admittedly appointed by the District Project Coordinator of DPEP, Bargarh. Therefore, as per the advertisement, he is entitled to grace marks. Even assuming that he is not entitled to, fact remains that he had submitted his application bona fide and the authorities, on their own, gave him grace marks. Having done so, they cannot now turn around and hold their own decision as incorrect. In this context, Mr. Jena has relied upon a judgment of this Court in the case of Pratima Sahu v. State of Odisha1 and Srikanta Dash v. State of Orissa and Others2. Mr. Jena further submits that but for his selection as Shikshya 1 2021 (I) OLR 174 2 2019 (III) ILR- CUT-682 Page 6 of 13 Sahayak, pursuant to the advertisement, the petitioner would have continued to work as Education Volunteer and in view of the subsequent decision taken by the Government, he would have been rehabilitated as Gana Sikshyak upon closure of the Education Guarantee Scheme. If he could have been selected, subsequently, he could also have been absorbed as Shikshya Sahayak. But, in view of the decision taken by the Collector in disengaging him at this stage, he has lost his livelihood.
6. Mr. S.N. Patnaik, learned State Counsel would argue that there can be no estoppel against law. The petitioner was wrongly awarded grace marks, which he was not entitled to at the relevant time. Admittedly, without the grace marks, he secured much less than the last selected candidate and therefore, ordinarily, he should not have been selected. The mistake came to light during consideration of his case for absorption as Junior Teacher and therefore, the same was sought to be rectified. He was granted opportunity to show cause and also personal hearing, during which he admitted that he did not have NFE/NFS with CT/B.Ed. qualification.
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7. Perusal of the advertisement dated 14.10.2006 reveals that that persons engaged under different schemes in the field of primary education in the State like DPEP/EFA/NFE would be given preference and those engaged under DPEP scheme with CT, B.Ed. qualification would be given five marks for each year of service subject to maximum of 15 marks. Similar provisions have been made in respect of NFE/NFS and Shikshya Sahayak affected by the order of this Court in W.P.(C) No.11748 of 2003. There is no specific mention of the EGS scheme. In the clarification dated 22.11.2006, copy of which is enclosed as Annexure-B/4 to the reply filed by the State to the rejoinder of the petitioner, reference has been made to Paragraph-4.2 of the School and Mass Education Department Resolution No.11676/SME/31.05.2006 regarding allotment of grace marks. It is stated as follows:-
"In this context, it is clarified that Para 4.2 of the School and Mass Education Department Resolution No. 11676/SME dated 31.05.06 shall be strictly followed and the "Grace Marks" as advertised for various category of applicants (such as Ex-Sikshya Sahayaks whose engagement have been declared irregular by Hon'ble High Court, Para teachers of DPEP & EFA and NFI & NFS etc.) shall be Page 8 of 13 added over and above the total percentage of marks computed in the above procedure."
The use of the word "etc" suggests that the list of different types of persons mentioned, such as, Para Teachers/DPEP etc. is not exhaustive but appears to be indicative. In the Resolution No.11676/SME dated 31.05.2006, it is stated under paragraph-18 as follows:-
"For the purpose of Universalization of Elementary education, persons engaged by the Government in different schemes such as DPEP, EFA, NFE having requisite qualifications may be considered for engagement as SS by relaxing their upper age limit wherever necessary and their past experience will be taken into consideration for the purpose."
8. As can be seen, the reference is to different schemes. The words DPEP & EFA and NFE & NFS have been qualified by the words "such as". This, coupled with the clarification containing the word etc. suggests that the benefit of paragraph-18 is not necessarily confined to those persons as specifically mentioned therein. Had it been so, then the question of extending such benefit to NFA and NFS would not arise, since they have not been mentioned in the paragraph also.
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9. It is needless to mention that the advertisement must be deemed to be in consonance with the above Resolution. This Court is therefore, unable to accept that the benefit contemplated under paragraph-18, i.e., consideration of the past experience for the purpose of selection of Shiksha Sahayaks would not be applicable to Education Volunteers working under EGS scheme. In fact, the EGS scheme also appears to be administered by DPEP, as would be evident from the fact that the appointment letter of the petitioner as Education Volunteer was issued by the District Project Coordinator, DPEP, Bargarh. Of course, in the advertisement, unlike the other categories, such as, Para Teachers, NFE etc., no specific method of calculation of grace marks has been indicated. But then, there is no reason as to why the methodology adopted for persons working under other DPEP schemes shall not be applied in case of Education Volunteer.
10. Even assuming for the sake of argument that the benefit of the grace marks for each completed year of service is not available in case of Education Volunteer, then also the action of the authorities in disengaging the Page 10 of 13 petitioner on the ground that grace marks had been wrongly awarded to him, appears to be wholly iniquitous for the reason that such action was taken three years after the selection and it is not the case of the authorities that the petitioner had misrepresented facts to obtain the benefit granted to him. The fault, if any, lies entirely with the concerned authorities at the relevant time. It is not disputed that the petitioner resigned as Education Volunteer as he was selected as Shikshya Sahayak. This is thus, a case where the petitioner altered his position in view of his selection as Shikshya Sahayak. In the case of Pratima Sahu (supra), this Court, after examining the law of estoppel extensively, held that once the Government allowed the petitioner to believe that she had qualified in the selection process in pursuance of which she resigned from the post she was then holding, it is no longer open to the State to hold that she did not qualify for the post. The facts of the said case are quite similar to the present case. In fact, in the said case, the petitioner therein was terminated after working for six to eight months, but in the present case, the petitioner was terminated after working Page 11 of 13 for nearly 9 years. Had he continued, he would have had a fair chance of being absorbed as a regular teacher, as per the scheme of the Government. Even otherwise, had he continued as an Education Volunteer, he could have been rehabilitated as Gana Sikshyak, as per the Government scheme and subsequently, also regularized as Shikshya Sahayak. It is nobody's case that the petitioner is not eligible for the post. As already stated, there is nothing to suggest that the petitioner was himself guilty of any kind of misrepresentation at the relevant time.
11. Thus, taking into consideration all the above facts, this Court holds that the impugned order of disengagement of the petitioner as Shikshya Sahayak cannot be sustained in the eye of law.
12. For the foregoing reasons therefore, the writ petition is allowed. The impugned order dated 16.05.2015 is hereby quashed. The opposite party-authorities are directed to re-instate the petitioner in service as Shikshya Sahayak forthwith and to grant him all service benefits, as admissible under law. He shall, however, not be entitled to any financial benefits for the period of disengagement till Page 12 of 13 his reinstatement on the principle of 'No Work No Pay'. Necessary order in terms of this judgment shall be passed by the opposite party-authorities within two months from the date of production of certified copy of this order by the petitioner.
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Sashikanta Mishra, Judge Orissa High Court, Cuttack, The 23rd December, 2024/`B.C. Tudu, Sr. Steno Signature Not Verified Digitally Signed Signed by: BHIGAL CHANDRA TUDU Designation: Sr. Stenographer Reason: Authentication Location: Orissa High Court, Cuttack Date: 24-Dec-2024 17:27:16 Page 13 of 13