Orissa High Court
Dillip Kumar Parida vs State Of Odisha & Others ... Opposite ... on 22 November, 2024
Author: Sashikanta Mishra
Bench: Sashikanta Mishra
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) Nos.7190 of 2018
(Application under Articles 226 and 227 of the Constitution of
India)
A.F.R.
Dillip Kumar Parida ... Petitioner
-versus-
State of Odisha & others ... Opposite Parties
Advocates appeared in the case through hybrid mode:
For Petitioner : Mr.D.R.Mahapatra,
Advocate,
Mr. Bharat Jalli, Advocate
-versus-
For Opposite Parties
: Mr. S.N.Patnaik, A.G.A.
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CORAM:
JUSTICE SASHIKANTA MISHRA
JUDGMENT
22.11.2024.
Sashikanta Mishra,J. The Petitioner has filed this Writ Petition with the following prayer;
W.P.(C) No.7190 of 2018 Page 1 of 19
"It is therefore, prayed that let this Hon'ble Court may graciously be pleased to allow the Writ Petition, issue a writ in the nature of certiorari or any other appropriate writ quashing the order dt.9.4.2018 in rejecting the application of the Petitioner under Annexure-5 by directing the Opp.Parties more particularly to Opp.Party No.3 to engage/appoint the Petitioner as Sikshya Sahayak in the District of Koraput."
2. The facts of the case, briefly stated, are that pursuant to advertisement dated 26.12.2016 issued for engagement of Sikshya Sahayaks, the Petitioner submitted his candidature with all required documents/certificates citing Koraput District as his first preference. After verification of documents made on 25.1.2018, his name was found in the provisional merit list published for Koraput District, but subsequently his application was rejected on the ground that the Rehabilitation Council of India (RCI) Registration was after 09.2.2017, the last date for submission of application. The Petitioner challenged such rejection in a Writ Petition filed before this Court being W.P.(C) No.4164/2018. By order dated 26.3.2018, this Court disposed of the Writ Petition W.P.(C) No.7190 of 2018 Page 2 of 19 granting liberty to the Petitioner to approach the competent authority. Accordingly, the Petitioner submitted a representation on 09.4.2018 before the State Project Director, OPEPA (Opp.Party No.2), but by order dated 9.4.2018 the same was rejected on the ground that the Petitioner did not have RCI registration prior to the last date of submission of application i.e. on 9.2.2017. According to the Petitioner, neither in the application form nor in the verification of documents, it was provided that the RCI registration certificate of candidature is mandatory. The Petitioner produced the diploma certificate in Special Education in mental retardation issued by the National Board of Examination in Rehabilitation, which is a adjunct body of Rehabilitation Council of India. Moreover, he has passed the Diploma Special Education from an Institution recognized by the RCI and therefore, registration certificate is not at all mandatory. That apart, by a subsequent advertisement dtd.1.12.2017, candidates were allowed to make online application by 13.12.2017 and were allowed to participate in the W.P.(C) No.7190 of 2018 Page 3 of 19 selection process, if they have RCI registration on or before 13.12.2017. On such facts, the petitioner challenges the order of rejection of representation and candidature in the present Writ Petition seeking the relief as already quoted herein before.
3. Counter affidavit has been filed on behalf of the Opp. Parties refuting the averments made in the Writ Petition. It is stated that as per clarification issued by the Government in S & M.E. Department on 20.2.2018, submission of registration certificate of RCI is mandatory in case of candidates having qualification with special education. It is further stated that as per Section 13(2)(a) of the RCI Act, 1992, an applicant possessing qualification in special education must have a valid registration certificate. In the instant case, the last date of submission of application was 09.2.2017 and admittedly, the Petitioner had not produced any such advertisement. As regards the subsequent advertisement, it is stated that the same was issued pursuant to judgment of this Court passed W.P.(C) No.7190 of 2018 Page 4 of 19 in W.P.(C) No.525/2017 and batch, but no application was invited from any candidate possessing special education as per the earlier advertisement. Since the Petitioner did not have the RCI registration certificate prior to the cut-off date i.e. 09.2.2017, his candidature was rightly rejected.
4. Heard Mr. D.R.Mahapatra along with Mr. B. Jalli, learned counsel for the Petitioner and Mr. S.N.Patnaik learned Addl. Government Advocate for the State.
5. Referring to the different clauses of the advertisement dated 26.12.2016, Mr. Mohapatra would argue that there is absolutely no mention therein of the requirement of submission of RCI registration certificate. He further argues that undisputedly, the Petitioner has a two years Diploma in special education and is thus eligible to be engaged as Sikshya Sahayak as per the guidelines issued by the Government on 26.12.2016. Mr. Mahapatra further argues that even at the time of verification of documents vide Notification W.P.(C) No.7190 of 2018 Page 5 of 19 dtd.16.1.2018, there is no mention of the registration certificate though as many as 15 documents were mentioned for being submitted by the candidates. Therefore, according to Mr. Mahapatra rejection of the candidature of the Petitioner despite his name being on the merit list is entirely unjustified and illegal.
6. Mr. S.N.Patnaik, learned State counsel, on the other hand, invites attention of this Court to the provisions of the RCI Act, 1992, particularly to Section 13 thereof to argue that the statutes mandates that a rehabilitation professional can work as a rehabilitation professional only if he possesses the recognized rehabilitation qualification and is enrolled on the register. The Government in S and M.E. department has also issued clarification to the effect that submission of registration certificate of RCI is mandatory. According to Mr. Patnaik therefore, even if the advertisement or the guidelines do not mention anything about submission of registration certificate, the statute will prevail and since the Petitioner W.P.(C) No.7190 of 2018 Page 6 of 19 admittedly did not have the RCI registration before the cut-off date, his candidature was rightly rejected.
7. The facts of the case being as narrated above and being largely undisputed, the question that falls for consideration is whether the Petitioner was obliged in law to submit certificate showing registration under the RCI. In the guidelines issued by the Government on 26.12.2016, clause 6.1(a) provides that Higher Secondary (+2 or its equivalent) with at least 50% marks and two years Diploma in Education (Special Education) is one of the eligibility conditions. Explanation (iii) to sub-clause (a) of Clause 4.3 provides that for the purpose of 2 years Diploma in Education (Special Education), a course recognized by Rehabilitation Council of India (RCI) shall be considered. There is no mention in the guidelines that such a candidate shall have to produce the registration certificate under RCI. The advertisement issued on 26.12.2016 also does not contain any such requirement. The Petitioner undertook a Diploma W.P.(C) No.7190 of 2018 Page 7 of 19 course in Special Education (Mental Retardation) in the National Institute for Mentally Handicapped, Secunderabad. He appears to have passed in the examination conducted during July, 2016 and was issued with Provisional Diploma Certificate on 22.6.2017. A copy of the Provisional Registration Certificate issued by the RCI is available on record, which shows grant of Provisional Certificate for one year w.e.f. 17.1.2018. It is not disputed that there was no such certificate as on 9.2.2017, the last date of submission of application. A Stand has been taken by the State as reflected in the impugned order that the Petitioner not having valid R.C.I. registration certificate at the relevant time is not eligible for appointment as Sikshya Sahayak. In this context, Section 13 of the Rehabilitation Council of India Act, 1992 has been referred to. It would be apt to refer to few relevant provisions of the Act. The Preamble to the Rehabilitation Council of India Act, 1992, reads as follows;
W.P.(C) No.7190 of 2018 Page 8 of 19
"An Act to provide for the Constitution of Rehabilitation Council of India for regulating [and monitoring the training of rehabilitation professionals and personnel, promoting research in rehabilitation and special education] the maintenance of a Central Rehabilitation Register and for matters connected therewith or incidental thereto."
Section 13 is quoted herein below;
"13. Rights of persons possessing qualifications included in the Schedule to be enrolled.- (1) Subject to the other provisions contained in this Act, any qualification included in the Schedule shall be sufficient qualification for enrolment on the Register. (2) No person, other than the rehabilitation professional who possesses a recognised rehabilitation qualification and is enrolled on the Register,-
(a) shall hold office as rehabilitation professional or any such office (by whatever designation called) in Government or in any institution maintained by a local or other authority,
(b) shall practice as rehabilitation professional anywhere in India;
(c) shall be entitled to sign or authenticate any certificate required by any law to be signed or authenticated by a rehabilitation professional;
(d) shall be entitled to give any evidence in any court as an expert under section 45 of the Indian W.P.(C) No.7190 of 2018 Page 9 of 19 Evidence Act, 1872 (1 of 1872) on any matter relating to the handicapped:
Provided that if a person possesses the recognised rehabilitation professional qualifications on the date of commencement of this Act, he shall be deemed to be an enrolled rehabilitation professional for a period of six months from such commencement, and if he has made an application for enrolment on the Register within said period of six months, till such application is disposed of.
((2A) Notwithstanding anything contained in sub-section (2), any person being a doctor or a paramedic in the field of physical medicine and rehabilitation, orthopaedics, eat, nose or throat (ENT), ophthalmology or psychiatry, employed or working in any hospital or establishment owned or controlled by the Central Government or a State Government or any other body funded by the Central or a State Government and notified by the Central Government, may discharge the functions referred to in clauses
(a) to (d) of that sub-section.) (3) Any person who acts in contravention of any provision of sub-section (2) shall be punished with imprisonment for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both."W.P.(C) No.7190 of 2018 Page 10 of 19
8. Bare reading of Section 13 makes it clear that the bar under sub-section (2) thereof pertains to rehabilitation professionals. Now, rehabilitation professional has been defined under Section 2(n), inter alia, to mean under Clause (v), Special teachers for educating and training the handicapped. The question is, whether Sikshya Sahayaks can be treated as rehabilitation professionals within the meaning of the R.C.I. Act. In this context, it would be apposite to refer to the Notification dtd.26.12.2016 issued by the Government in SME Department laying down guidelines for engagement of Sikshya Sahayaks. Though the requisite educational qualification includes two years Diploma in education (Special Education), a course recognized by the R.C.I., but there is absolutely nothing in the said guidelines to suggest that the Sikshya Sahayaks are to function as rehabilitation professionals. In other words, the appointment of the Sikshya Sahayak is intended for normal Schools and not special Schools for the physically/mentally handicapped children. The W.P.(C) No.7190 of 2018 Page 11 of 19 further clarification issued by the Government on 26.12.2016 also does not provide any such stipulation. It is only for the purpose of considering the candidature that 2 years Diploma in special education in a course recognized by RCI has been referred to. If the provision of Section 13(2) is read along with the definition of rehabilitation professional under Section 2(v) of the RCI Act vis-à-vis the guidelines and clarification of the Government dtd.26.12.2016, it would suggest that the embargo under Section 13(2) would apply only under circumstances enumerated under Clause (a) to (d) of sub-section (2). To amplify, a rehabilitation professional who possesses a recognized rehabilitation qualification and is enrolled on the register can only be competent to act in the capacities referred to in Clauses (a) to (d). As already seen, the duties of a Sikshya Sahayak would not come within the purview of Clauses (a) to (d). There is no embargo either in Section 13 or in any other provision of the R.T.I. Act that a person holding a W.P.(C) No.7190 of 2018 Page 12 of 19 diploma in a course recognized by the RCI cannot function as a teacher in a normal school or be employed in any capacity other than those mentioned in Clauses (a) to (d). The guidelines laying down the eligibility of Sikshya Sahayaks provided under Clause 6 is as follows;
"6. ELIGIBILITY 6.1 Category-1
(a) Higher Secondary (+2 or its equivalent) with at least 50% marks and 2 year Diploma in Elementary Education (CT).
OR Higher Secondary (+2 or its equivalent) with at least 50% marks and 2 year Diploma in Education (Special Education) OR Graduation and 2 year Diploma in Elementary Education/ 2 year Diploma in Special Education.
And
(b) Pass in the Odisha Teacher Eligibility Test (OTET-Category -1)
(c) Candidates must have Odia as MIL up to Class-X or pass in Odia language test equivalent to Matric standards conducted or declared equivalent by Board of Secondary Education, Odisha except the candidates as mentioned under Para 6.2. Category-2
(a) Graduation with at least 50% marks and 1-year Bachelor in Education (B. Ed.) OR Graduation with 50% marks and 1-year B.Ed. (Special Education) OR Higher Secondary (+2 or its equivalent) with at least 50% marks and 4- year B.A. B.Ed./B.Sc. B.Ed.
And
(b) Pass in the Odisha Teacher Eligibility Test (OTET-Category -II)
(c) Candidates must have Odia as MIL up to Class-X or pass in Odia language test equivalent to Matric standards conducted or declared equivalent by W.P.(C) No.7190 of 2018 Page 13 of 19 Board of Secondary Education, Odisha except the candidates as mentioned under Para-6.2.
Provided that relaxation of 5% in minimum qualifying marks in Higher Secondary (+2) or in graduation level, as the case may be, shall be allowed to the candidates belonging to SC, ST, SEBC & PWDS."
So, in case of Category-I a person having higher secondary education with at least 50% marks and 2 years diploma in education (Special Education) or a graduate and 2 years diploma in elementary education/2 years diploma in special education would be eligible. Similar eligibility criteria have been provided for Category-2. A person possessing a 2 years diploma in special education in a course recognized by R.C.I. with higher secondary or graduation qualification, as the case may be, is eligible for appointment as Sikshya Sahayak. If such a person however, intends to function as a rehabilitation professional then the provision under Section 13 referred above would apply in full force. Only because diploma in special education has been included in the requisite educational qualification of a candidate for Sikshya Sahayak does not mean that he W.P.(C) No.7190 of 2018 Page 14 of 19 has to be registered under the RCI. Such a contingency would arise only if he intends to act as a rehabilitation professional. The State Project Director in the impugned order after referring to Section 13(2) has held as follows;
"The above point clearly stipulates that an applicant possessing qualification in Special Education must have a valid RCI registration certificate. That, hence it was mentioned in the advertisement dt 26.12.2016 that a candidate applying for the post of Sikshya Sahayak-2016 must submit the online applications by 09.02.17 i.e the last date for submitting application forms. Accordingly, case of any candidate having RCI certificate registered after 09.02.17 could not be considered as per aforementioned Act of Rehabilitation Council of India as RCI registration certificate is one of the eligibility criteria for the candidates having Special Education to be engaged as a teacher (Sikshya Sahayak)."
9. This Court fails to understand as to on what basis it was held that RCI registration certificate is one of the eligibility criteria for the candidates having special education to be engaged as a teacher (Sikshya Sahayak). The petitioner's candidature was rejected only on the ground that he did not possess the registration certificate as on the cut-off date i.e. 09.2.2017 and further that as per the provisions of R.C.I. Act unless the candidate gets enrolled on the W.P.(C) No.7190 of 2018 Page 15 of 19 register of the R.C.I., the qualification acquired under RCI cannot be taken into consideration. It is stated at the cost of repetition that the RCI Act itself does not contain any such provision. Sub-section (1) of Section 13 quoted above makes it clear that any qualification included in the schedule shall be sufficient qualification for enrolment on the register. Sub- section (2) merely places embargo for rehabilitation professionals to act as such unless they possess the recognized rehabilitation qualification and are enrolled on the register. The State Project Director has read something into the provisions that do not exist. Reference has been made to the Government clarification to the effect that submission of registration certificate of RCI is mandatory, but then in view of the clear provisions of the statute referred to above, the same can have no legal sanctity.
10. Even otherwise, as already stated, the advertisement did not contain any such stipulation. Furthermore, even in the Notification dated 16.1.2018 W.P.(C) No.7190 of 2018 Page 16 of 19 for verification of the documents there is no mention of the Registration in the list of documents required to be produced. There is therefore, considerable force in the submission of learned counsel for the Petitioner that submission of registration certificate of RCI could not have been insisted upon subsequently as it would amount to changing the rules of the selection after commencement of the process. It is also settled position of law that the selection criterion has to be prescribed in advance and that rules of game cannot be changed after words. The following observations of the Supreme Court in the case of K. Manjusree vs. State of Andhra Pradesh and another1; are noteworthy in this regard;
"But what could not have been done was the second change, by introduction of the criterion of minimum marks for the interview. The minimum marks for interview had never been adopted by the Andhra Pradesh High Court earlier for selection of District & Sessions Judges, (Grade II). In regard to the present selection, the Administrative Committee merely adopted the previous procedure in vogue. The previous procedure as stated above was to apply minimum marks only for written examination and not for the oral examination. We have referred to the proper interpretation of the earlier Resolutions dated 24-7-2001 and 21-2-2002 and held that what was adopted c on 30-11-2004 was only minimum 1 (2008) 3 SCC 512 W.P.(C) No.7190 of 2018 Page 17 of 19 marks for written examination and not for the interviews. Therefore, introduction of the requirement of minimum marks for interview, after the entire selection process (consisting of written examination and interview) was completed, would amount to changing the rules of the game after the game was played which is clearly impermissible.
We are fortified in this view by several decisions of this Court. It is sufficient d to refer to three of them P.K. Ramachandra lyer v. Union of India, Umesh Chandra Shukla v. Union of India and Durgacharan Misra v. State of Orissa."
11. Thus, viewed in the light of the above position of law also the candidature of the Petitioner could not have been rejected on the ground cited.
12. For the foregoing reasons therefore, this Court is of the view that the candidature of the Petitioner for the post of Sikshya Sahayak, for which he was otherwise qualified could not have been rejected by the authorities. Consequently, the impugned order passed by the State Project Director under Annexure-5 cannot be sustained in the eye or law and therefore, warrants interference.
13. In the result, the Writ Petition is allowed. The impugned order under Annexure-5 is quashed. The Opp.Party-authorities are directed to consider the W.P.(C) No.7190 of 2018 Page 18 of 19 candidature of the Petitioner for the post of Sikshya Sahayak or any other equivalent/redesignated post in the District of Koraput and if found to be suitable on merit, to issue order of appointment as early as possible preferably, within two months from the date of production of certified copy of this order.
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Sashikanta Mishra, Judge Ashok Kumar Behera Signature Not Verified Digitally Signed Signed by: ASHOK KUMAR BEHERA Designation: A.D.R.-cum-Addl. Principal Secretary Reason: Authentication Location: High Court of Orissa, Cuttack Date: 25-Nov-2024 11:20:15 W.P.(C) No.7190 of 2018 Page 19 of 19