Orissa High Court
Debasmita Panda And Others vs State Of Odisha & Others ... Opposite ... on 5 April, 2025
Author: Sashikanta Mishra
Bench: Sashikanta Mishra
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) Nos.15465/2020, 16237/2019, 16408/2019,
16762/2019, 16765/2019, 16766/2019, 16768/2019,
16770/2019, 16771/2019, 16773/2019, 16774/2019
16776/2019, 16778/2019, 16779/2019,
17346/2019/17500/2019,18019/2019 and
18020/2019
(Applications under Articles 226 and 227 of the Constitution of
India)
A.F.R. In W.P.(C) No.15465/2020
Debasmita Panda and others
... Petitioners
-versus-
State of Odisha & others ... Opposite Parties
Advocates appeared in the case through hybrid mode:
For Petitioners : Mr.B. Routray,
Sr. Advocate,
Mr. J. Biswal, Advocate
Mr. S.D. Routray, Advocate
Mr. B. Singh, Advocate
-versus-
For Opposite Parties
: Mr. S.N.Patnaik, A.G.A
In W.P.(C) No.16237/2019
Kruttibash Jena ... Petitioner
-versus-
W.P.(C) No.15465 of 2020 and batch Page 1 of 24
State of Odisha & others ... Opposite Parties
Advocates appeared in the case through hybrid mode:
For Petitioner : Mr. M.R. Padhi, Advocate
Mr. R.C. Jena, Advocate
-versus-
For Opposite Parties : Mr. S.N. Patnaik, A.G.A.
In W.P.(C) No.16408/2019
Himansu Mandal ... Petitioner
-versus-
State of Odisha & others ... Opposite Parties
Advocates appeared in the case through hybrid mode:
For Petitioner : Mr. N. Lenka, Advocate,
Mr. L. Sahu, Advocate
-versus-
For Opposite Parties : Mr. S.N. Patnaik, A.G.A.
In W.P.(C) No.16762/2019
Kamini Prava Jena ... Petitioner
-versus-
State of Odisha & others ... Opposite Parties
Advocates appeared in the case through hybrid mode:
W.P.(C) No.15465 of 2020 and batch Page 2 of 24
For Petitioner : Mr. M.K Mohanty, Advocate
Mr. R.C. Jena, Advocate
Mr. M.R Padhi, Advocate
-versus-
For Opposite Parties : Mr. S.N. Patnaik, A.G.A
In W.P.(C) No.16765/2019
Sandhyarani Sahu ... Petitioner
-versus-
State of Odisha & others ... Opposite Parties
Advocates appeared in the case through hybrid mode:
For Petitioner : Mr. R.C. Jena, Advocate
Mr. M.R. Padhi,Advocate
-versus-
For Opposite Parties : Mr. S.N. Patnaik, A.G.A
In W.P.(C) No.16766/2019
Rajashree Das ... Petitioner
-versus-
State of Odisha & others ... Opposite Parties
Advocates appeared in the case through hybrid mode:
For Petitioner : Mr. R.C. Jena, Advocate
Mr. M.K Mohanty, Advocate
W.P.(C) No.15465 of 2020 and batch Page 3 of 24
-versus-
For Opposite Parties : Mr. S.N. Patnaik, A.G.A
In W.P.(C) No.16768/2019
Santilata Samal ... Petitioner
-versus-
State of Odisha & others ... Opposite Parties
Advocates appeared in the case through hybrid mode:
For Petitioner : Mr. R.C. Jena, Advocate
Mr. M.K Mohanty, Advocate
-versus-
For Opposite Parties : Mr. S.N. Patnaik, A.G.A
In W.P.(C) No.16770/2019
Bidyut Kumar Ghosh ... Petitioner
-versus-
State of Odisha & others ... Opposite Parties
Advocates appeared in the case through hybrid mode:
For Petitioner : Mr. R.C. Jena, Advocate
Mr. M.K Mohanty, Advocate
-versus-
For Opposite Parties : Mr. S.N. Patnaik, A.G.A
In W.P.(C) No.16771/2019
W.P.(C) No.15465 of 2020 and batch Page 4 of 24
Jyotshnarani Behera ... Petitioner
-versus-
State of Odisha & others ... Opposite Parties
Advocates appeared in the case through hybrid mode:
For Petitioner : Mr. R.C. Jena, Advocate
Mr. M.K Mohanty, Advocate
-versus-
For Opposite Parties : Mr. S.N. Patnaik, A.G.A
In W.P.(C) No.16773/2019
Gouri Senapati ... Petitioner
-versus-
State of Odisha & others ... Opposite Parties
Advocates appeared in the case through hybrid mode:
For Petitioner : Mr. R.C. Jena, Advocate
Mr. M.K. Mohanty, Advocate
Mr. M.R. Padhi, Advocate
-versus-
For Opposite Parties : Mr. S.N. Patnaik, A.G.A
In W.P.(C) No.16774/2019
Sandhyarani Pradhan ... Petitioner
W.P.(C) No.15465 of 2020 and batch Page 5 of 24
-versus-
State of Odisha & others ... Opposite Parties
Advocates appeared in the case through hybrid mode:
For Petitioner : Mr. R.C. Jena, Advocate
Mr. M.R. Padhi, Advocate
-versus-
For Opposite Parties : Mr. S.N. Patnaik, A.G.A
In W.P.(C) No.16776/2019
Jitendra Kumar Barik ... Petitioner
-versus-
State of Odisha & others ... Opposite Parties
Advocates appeared in the case through hybrid mode:
For Petitioner : Mr. R.C. Jena, Advocate
Mr. M.K. Mohanty, Advocate
Mr. M.R. Padhi, Advocate
-versus-
For Opposite Parties : Mr. S.N. Patnaik, A.G.A
In W.P.(C) No.16778/2019
Gouranga Charan Dutta ... Petitioner
-versus-
State of Odisha & others ... Opposite Parties
W.P.(C) No.15465 of 2020 and batch Page 6 of 24
Advocates appeared in the case through hybrid mode:
For Petitioner : Mr. R.C. Jena, Advocate
Mr. M.K. Mohanty, Advocate
Mr. M.R. Padhi, Advocate
-versus-
For Opposite Parties : Mr. S.N. Patnaik, A.G.A
In W.P.(C) No.16779/2019
Tanuja Patra ... Petitioner
-versus-
State of Odisha & others ... Opposite Parties
Advocates appeared in the case through hybrid mode:
For Petitioner : Mr. R.C. Jena, Advocate
Mr. M.K. Mohanty, Advocate
Mr. M.R. Padhi, Advocate
-versus-
For Opposite Parties : Mr. S.N. Patnaik, A.G.A
In W.P.(C) No.17346/2019
Jayanta Kumar Mohanta ... Petitioner
-versus-
State of Odisha & others ... Opposite Parties
Advocates appeared in the case through hybrid mode:
For Petitioner : Mr. R.C. Jena, Advocate
W.P.(C) No.15465 of 2020 and batch Page 7 of 24
Mr. P.K Mohapatra, Advocate
-versus-
For Opposite Parties : Mr. S.N. Patnaik, A.G.A
In W.P.(C) No.17500/2019
Bharat Kumar Sahoo ... Petitioner
-versus-
State of Odisha & others ... Opposite Parties
Advocates appeared in the case through hybrid mode:
For Petitioner : Mr. R.C. Jena, Advocate
Mr. M.K. Mohanty, Advocate
Mr. M.R. Padhi, Advocate
-versus-
For Opposite Parties : Mr. S.N. Patnaik, A.G.A
In W.P.(C) No.18019/2019
Durgabati Senapati ... Petitioner
-versus-
State of Odisha & others ... Opposite Parties
Advocates appeared in the case through hybrid mode:
For Petitioner : Mr. R.C. Jena, Advocate
Mr. M.R. Padhi, Advocate
-versus-
W.P.(C) No.15465 of 2020 and batch Page 8 of 24
For Opposite Parties : Mr. S.N. Patnaik, A.G.A
In W.P.(C) No.18020/2019
Jyotsna Mayee Barik ... Petitioner
-versus-
State of Odisha & others ... Opposite Parties
Advocates appeared in the case through hybrid mode:
For Petitioner : Mr. R.C. Jena, Advocate
Mr. M.R. Padhi, Advocate
-versus-
For Opposite Parties : Mr. S.N. Patnaik, A.G.A
---------------------------------------------------------------------------
CORAM:
JUSTICE SASHIKANTA MISHRA
JUDGMENT
05.04.2025.
Sashikanta Mishra,J. All these Writ Petitions involve common facts and law and being heard together, are being disposed of by this common judgment.
2. Be it noted at the outset that these Writ Petitions can be categorized into two groups. The first group, comprising of one Writ Petition being W.P.(C) W.P.(C) No.15465 of 2020 and batch Page 9 of 24 No.15465/2020 has been filed by persons belonging to unreserved category who were selected as Sikshya Sahayaks pursuant to advertisement dtd.09.12.2011 against posts in the +2 C.T. category in Betonoti Education District, but have not been able to join because of interim orders passed in other batch of Writ Petitions.
The Second group is a batch of Writ Petitions being WP(C) Nos.16408/2019, 16762/2019, 16765/2019, 16766/2019, 16768/2019, 16770/2019, 16771/2019, 16773/ 2019, 16774/2019 16776/2019, 16778/2019, 16779/2019, 17346/2019, 17500 /2019, 18019/2019 and 18020/ 2019, except WP(C) No.16237/2019 filed by persons already engaged as Sikshya Sahayaks (against SEBC vacancies) since 2012. The Petitioner in W.P.(C) No.16237/2019 was engaged against SC vacancy, whose engagement was sought to be terminated in view of the judgment passed by this Court on 09.1.2018 in W.P.(C) No.22234/2012. All these W.P.(C) No.15465 of 2020 and batch Page 10 of 24 persons have been continuing on the strength of interim orders passed by this Court.
3. The facts of the case lie in a narrow compass. An advertisement was issued on 09.12.2011 by the Collector-cum-Chief Executive, Zilla Parishad, Mayurbhanj inviting applications for engagement as Sikshya Sahayaks in different education districts of Mayurbhanj. 145 posts were notified for +2 C.T. category in Betnoti education district. The Petitioners of both groups of Writ Petitions were applicants. On conclusion of the selection process, the Petitioners of the second batch were found suitable for engagement and accordingly were engaged as per order issued by the Collector, Mayurbhanj on 21.12.2012. As per the resolution of the Government, these persons, upon completion of 3 three years of service have been engaged as Jr. Teacher. The Petitioners of the first Writ Petition were not successful and their names found place in the waiting list. The final merit list so published was challenged by several persons before W.P.(C) No.15465 of 2020 and batch Page 11 of 24 this Court in W.P.(C) No.22234/2012 on the ground that the same was in violation of the reservation policy and the ratio decided by the Supreme Court in the case of M.Nagaraj and others vs. Union of India and others; AIR 2007 SC 71. By order darted 9.1.2018, a division bench of this Court, basing on the judgment rendered in an earlier batch of cases namely, State of Odisha and others, Shradhanjali Jena, Subhashree Jena vs. Amar Chhatoi, State of Odisha and others being W.P.(C) Nos.7504, 1593 and 3453 of 2014, held that reservation beyond 50% of the posts is not valid. In the instant case, since the advertisement provided for reservation up to 27% for SEBC candidates thereby taking the total percentage of reservation beyond 50%, the engagement of the candidates in excess of the 50% limit was held to be illegal. Accordingly, by order dtd.6.2.2019, the District Project Coordinator, S.S. Mayurbhanj prepared a fresh merit list on the premise that 15 candidates (Petitioners of the second batch) were required to be disengaged. Accordingly, order of disengagement was W.P.(C) No.15465 of 2020 and batch Page 12 of 24 also issued on 29.8.2019 in respect of the said 15 persons along with three other persons whose names were not reflected in office order dated 29.8.2019. Said orders are impugned in the second batch of Writ Petitions and as already stated, on the strength of interim orders passed therein, 14 candidates along with three others who have approached this Court are still continuing.
4. The first Writ Petition has been filed by persons, who were called upon for verification of documents for their engagement as Sikshya Sahayaks in view of the recasting of the select list by order dated 29.8.2019 of the D.P.C. These persons have prayed to direct the Opp. Parties to issue order of engagement in their favour in view of recasting of the select list.
5. Heard Mr. Budhadev Routray, learned Senior counsel with Mr. J. Biswal, Mr. S.D.Routray and B. Singh for the petitioners of the first Writ Petition, and Mr. Manoj Kumar Mohanty, Mr. R.C.Jena and Mr. Niranjan Lenka learned counsel for the Petitioners in W.P.(C) No.15465 of 2020 and batch Page 13 of 24 the second batch of Writ Petitions. Also heard Mr. S.N.Patnaik, learned Addl. Government Advocate for the State.
6. Mr. B. Routray, learned Senior Advocate would argue that once the Division Bench of this Court held the engagement of the persons in excess of 50% limit as bad in law, said persons have no legal right to continue in employment. On the contrary, the persons who were wrongly deprived of selection and engagement have now become eligible for engagement consequent upon recasting of the select list. But, because of interim orders of protection passed by this Court in favour of the petitioners of the second batch of Writ Petitions, they are deprived of their legitimate right of being engaged. Mr. Routray further submits that because of the mistake committed by the authorities, the Petitioners have been deprived of their rightful due since 2011.
7. Mr. M.K.Mohanty, learned counsel appearing for the Petitioners in the second batch of Writ Petitions W.P.(C) No.15465 of 2020 and batch Page 14 of 24 would argue that said Petitioners cannot be disengaged as they were engaged after a due selection process. Mistake if any in applying the principles of reservation lies entirely with the authorities concerned and cannot be attributed to the Petitioners. Mr. Mohanty alternatively argues that even otherwise considering the fact that the Petitioners have continued to discharge duties since 2012 and have also become over-aged for public employment cannot simply be thrown out as it would seriously affect their right to livelihood. He therefore, submits that there being adequate vacancies available, the Petitioners of the first Writ Petition can be adjusted against the same without disturbing these Petitioners, some of whom are presently nearing retirement.
8. Mr.S.N.Patnaik, learned Addl. Government Advocate would submit that the judgment passed by the Division Bench having become final there is no option left with the authorities but to implement the same. As such, engagements are required to be made W.P.(C) No.15465 of 2020 and batch Page 15 of 24 strictly as per the recast select list. The Petitioners of the first Writ Petition deserve to be engaged but for the interim orders passed in the second batch of Writ Petitions. As regards the availability of vacancies to adjust the Petitioners of the first Writ Petition, Mr. Patnaik submits that the vacancies that have not been advertised cannot be filled up with other candidates or candidates already engaged on the basis of the previous select list.
9. This Court finds that there is no dispute as regards the facts of the cases. Admittedly, the Petitioners of the second batch of Writ Petitions were engaged pursuant to the advertisement dtd.09.12.2011. Such engagement being beyond the limit of 50% reservation was held to be illegal basing on the judgment passed by the Division Bench of this Court in the previously referred Writ Petitions. Said Petitioners have not questioned the correctness of the judgment of the Division Bench before the higher forum. Even otherwise, as per the ratio decided in the W.P.(C) No.15465 of 2020 and batch Page 16 of 24 case of M. Nagraj (supra), the limit of reservation is 50% and any engagement in excess of such limit is bad in law. To such extent therefore, the order dtd.6.2.2019 passed by the D.P.C. in recasting the select list to exclude the candidates engaged in excess of the 50% limit as also the order of disengagement dtd.29.8.2019 cannot be faulted with in any manner whatsoever. On the other hand, the recasting of the select list by order dtd.6.2.2019 has resulted in inclusion of the Petitioners of the first Writ Petition for engagement which is in line with the ratio decided in M.Nagraj (supra), as followed by the judgment of the Divison Bench. The recasting of the select list and the letter dt.29.8.2019 calling upon the candidates for document verification for their engagement cannot also be faulted with. Therefore, the first Writ Petition can only be allowed by directing the authorities to issue orders of engagement in favour of the Petitioners without any further delay.
W.P.(C) No.15465 of 2020 and batch Page 17 of 24
10. This takes the Court to the question as to what would happen to the Petitioners of the second batch of Writ Petitions. Ordinarily, this Court having found no illegality in the impugned order of disengagement would not be persuaded to interfere therewith. However, this Court cannot also lose sight of the fact that the Petitioners of the second batch of Writ Petitions have been continuing as Sikshya Sahayaks/Jr. Teachers for nearly 13 years by now. As argued by Mr.Mohanty, the mistake in preparing the selection list contrary to law cannot be attributed to them by any means and yet, they are faced with imminent termination of their services. As stated at the bar, all of them have become age-barred for any future public employment and some of them are also nearing the age of superannuation. This is an unusual situation that needs to be addressed with utmost sensitivity, as giving effect to the impugned order would entail throwing out these 17 Petitioners to fend for themselves.
W.P.(C) No.15465 of 2020 and batch Page 18 of 24
11. It is the long settled position of law that right to livelihood is included in the right to life guaranteed under Article 21 of the Constitution of India. In the case of Olga Tellis vs. Bombay Municipal Corporation and others,1986 AIR 180, the Supreme Court had the following words to say in this context;
"As we have stated while summing up the petitioners' case, the main plank of their argument is that the right to life which is guaranteed by Article 21 includes the right to livelihood and since, they will be deprived of their livelihood if they are evicted from their slum and pavement dwellings, their eviction is tantamount to deprivation of their life and is hence unconstitutional. For purposes of argument, we will assume the factual correctness of the premise that if the petitioners are evicted from their dwellings, they will be deprived of their livelihood. Upon that assumption, the question which we have to consider is whether the right to life includes the right to livelihood. We see only one answer to that question, namely, that it does. The sweep of the right to life conferred by Article 21 is wide and far-reaching. It does not mean merely that life cannot be extinguished or taken away as, for example, by the imposition and execution of the death sentence, except according to procedure established by law. That is but one aspect of the right to life. An equally important facet of that right is the right to livelihood because, no person can live without the means of living, that is, the means of livelihood. If the right to livelihood is not treated as a part of the constitutional right to life, the easiest way of depriving a person of his right to life would be to deprive him of his means of livelihood to the point of abrogation. Such deprivation would not only denude the life of its effective W.P.(C) No.15465 of 2020 and batch Page 19 of 24 content and meaningfulness but it would make life impossible to live. And yet, such deprivation would not have to be in accordance with the procedure established by law, if the right to livelihood is not regarded as a part of the right to life. That, which alone makes it possible to live, leave aside what makes life livable, must be deemed to be an integral component of the right to life. Deprive a person of his right to livelihood and you shall have deprived him of his life. Indeed, that explains the massive migration of the rural population to big cities. They migrate because they have no means of livelihood in the villages. The motive force which propels their desertion of their hearths and homes in the village is the struggle for survival, that is, the struggle for life. So unimpeachable is the evidence of the nexus between life and the means of livelihood. They have to eat to live : only a handful can afford the luxury of living to eat. That they can do, namely, eat, only if they have the means of livelihood. That is the context in which it was said by Douglas, J. in Baksey [347 US 442, 472 : 98 L Ed 829 (1954)] that the right to work is the most precious liberty that man possesses. It is the most precious liberty because, it sustains and enables a man to live and the right to life is a precious freedom. "Life", as observed by Field, J. in Munn v. Illinois [(1877) 94 US 113] means something more than mere animal existence and the inhibition against the deprivation of life extends to all those limits and faculties by which life is enjoyed. This observation was quoted with approval by this Court in Kharak Singh v. State of U.P. [AIR 1963 SC 1295 :
(1964) 1 SCR 332 : (1963) 2 Cri LJ 329] ."
12. This Court also takes note of the fact that the engagement of the Petitioners (of the second batch) was the result of mistake committed by the authorities and not a case where they obtained engagement by W.P.(C) No.15465 of 2020 and batch Page 20 of 24 adopting any unfair means or misrepresentation of facts etc. It would be entirely iniquitous to simply thrown them out at this distance of time. Mr.Mohanty has suggested that there being availability of large number of vacancies, the petitioners of the first Writ Petition can be easily adjusted against the same. But as contended by learned State counsel, which this Court concurs with, it would amount to appointment against vacancies that have not been notified nor any selection process initiated. It would be contrary to the fundamental principles of service jurisprudence.
13. What relief then can be granted to the Petitioners of the second batch of Writ Petitions? This Court takes note of the fact that the said Petitioners are only 17 in number and belong to Betnoti education district. Faced with an almost similar situation, a division Bench of this Court in W.P.(C) No.5050/2012 held as follows;
"For giving effect to our order dated 15.12.2011 passed in WP(C) No.20249 of 2009 and the batch of connected writ petitions, in our considered opinion, it W.P.(C) No.15465 of 2020 and batch Page 21 of 24 would be proper for the State Government not to dispense with the services of the petitioners who have admittedly worked for 5-6 years on their appointment for no fault of theirs. Termination of their services at this stage would result in great hardship to them and their families. Therefore, it would be appropriate for the State Government to create a separate cadre for them for their continuance on adhoc basis, as a one-time measure and to adjust them against future vacancies of their respective categories. Recruitment to the future vacancies by way of new/fresh advertisement should take care of the adjustment of the petitioners and similarly situated persons and the vacancies so advertised shall be reduced to the extent of such adjustments/regularization of the petitioners category-wise."
14. Adopting the principle and pious intent underlined in the aforementioned order, this Court is of the considered view that the services of the Petitioners, who are only 17 in number, can be protected by creating same number of supernumerary posts to be abolished upon their superannuation. It is needless to mention that this exercise would not entail a heavy burden on the State exchequer. Besides it would conform to the underlying principle of a welfare State like India where the Government is treated as W.P.(C) No.15465 of 2020 and batch Page 22 of 24 model employer. Moreover, this would not cause prejudice to any person.
15. It is to be noted that it is not entirely unprecedented for making such arrangement, namely creating supernumerary posts to prevent loss of livelihood of persons while giving effect to judicial pronouncement in favour of others. The Supreme Court has recognized this principle in various cases. In Union of India and Ors. v. Parul Debnath and Ors. (2009) 14 SCC 173, it was held as follows;
"On the question of creation of supernumerary posts, it may be indicated that while it is no doubt true that creation of posts is the prerogative of the executive, in order to meet certain special exigencies such a course of action has been resorted to by this Court and in our view this is one such case where such a direction does not need any intervention."
16. For the foregoing reasons therefore, the first Writ Petition is allowed. The Opp. Parties are directed to issue orders of engagement in favour of said Petitioners without any further delay. It is made clear that their engagement shall relate back to the date on which the W.P.(C) No.15465 of 2020 and batch Page 23 of 24 Petitioners of the second batch of the Writ Petitions were first engaged, though the same shall be without any financial benefits, but the period shall count towards notional continuity of service for all other service benefits.
17. The second batch of Writ Petitions are disposed of by directing the Opp. Party-authorities to create supernumerary posts equal to the number of Petitioners of the second batch of writ petitions and to adjust them against such posts. It is made clear that this order shall not act as a precedent for other candidates and the supernumerary posts shall stand abolished from the date the incumbents retire on superannuation or otherwise vacate the post.
18. With these observations, the Writ Petitions are disposed of.
.................................. Sashikanta Mishra, Signature Not Verified Judge Digitally Signed Signed by: ASHOK KUMAR BEHERA Designation: A.D.R.-cum-Addl. Principal Secretary Reason: Authentication Ashok Kumar Behera Location: High Court of Orissa, Cuttack Date: 08-Apr-2025 14:32:28 W.P.(C) No.15465 of 2020 and batch Page 24 of 24