Unknown vs Chintamani Bhuian on 18 June, 2024

[Cites 27, Cited by 0]

Orissa High Court

Unknown vs Chintamani Bhuian on 18 June, 2024

1. Since in all these four intra-Court appeals, the same judgment and order dated 12.03.2024 passed by a learned Single Judge of this Court in W.P.(C) No.978 of 2024 and analogous matters is under challenge, they have been heard together with the consent of the parties and are being disposed of by the present common judgment and order.

W.A. Nos. 580, 727, 740 and 712 of 2024 Page 6 of 55

2. We have heard Mr. Ashok Kumar Parija, learned Advocate General assisted by Mr. Saswat Das, Additional Government Advocate & Mr. Arnav Behera, learned Additional Standing Counsel representing the State of Odisha & for the appellants in W.A. No.712 of 2024. We have also heard Mr. Budhadev Routray, learned Senior Counsel assisted by Mr. J. Biswal, learned counsel; Ms. Pami Rath, learned Senior Counsel assisted by Ms. S. Mohanty, learned counsel; Mr. Prafulla Kumar Rath, learned Senior Counsel assisted by Ms. Sagarika Sahoo, learned counsel for the appellants in W.A. No.580 of 2024, W.A. No.727 of 2024 and W.A. No.740 of 2024 respectively and Mr. Sameer Kumar Das, learned counsel for respondents No.1 to 4 and Mr. Satyabrata Mohanty, learned counsel for the intervenors in W.A. No.712 of 2024.

3. To comprehend the core issue involved in the present batch of cases, it would be beneficial to take note of the relevant foundational facts first, which are common in all the cases. The learned Single Judge, while deciding the dispute in the writ petitions involving common facts and issues has referred to the pleadings brought on records by the parties in W.P.(C) No.978 of 2024. Accordingly, with the consent of the parties it has considered suitable to notice the facts from the said writ proceeding, for the present common judgment and order.

4. Notably, there were 4 petitioners in W.P.(C) No.978 of 2024; 33, 9,5 & 3 respectively in W.P.(C) Nos.1385, 1560, 1712 & 1599 of 2024 and one each in W.P.(C) Nos.1496, 1499, 1945, 1591 of 2024.

5. Thus, altogether 58 petitioners questioned the process of recruitment to the posts of Junior Teacher (Schematic), initiated with the W.A. Nos. 580, 727, 740 and 712 of 2024 Page 7 of 55 issuance of an advertisement/notice on 10.09.2023 by the Odisha School Education Programme Authority („OSEPA‟, in short). The said advertisement was issued in pursuance of a Resolution No.20336/SME dated 22.08.2023 and Letter No.21742/SME dated 08.09.2023 of the School and Mass Education Department („S & ME Department‟, in short), Government of Odisha. The said notice is at Annexure-3 to the W.A. No.712 of 2024, which reads as under:

"NOTICE It is for information of all concerned that, in pursuance of School & Mass Education Department, Odisha Resolution No.20336 / SME Dt.22.08.2023 and Letter No.21742 / SME Dt. 08.09.2023. 20.000 (Twenty Thousand) Junior Teacher (Schematic) posts will be filled up in the Primary & Upper Primary Schools under different Revenue Districts of Odisha.

The information on District wise & category wise posts will be available in OSEPA website i.e. osepa.odisha.gov.in w.e.f. 11.09. 2023.Applications are invited from the intending candidates to apply for the post of Junior Teacher (Schematic) through online mode only from 13.09.2023. The last date of submission of online application form is 10.10.2023. No other mode of application will be accepted. There will be no examination fees.

The candidates will be selected on the basis of marks secured on CBT (Computer Based Test) examination. The syllabus of the CBT examination is available in the OSEPA website. The date, time & examination centre of CBT examination will be mentioned in the admit card of the concerned candidates.

The detail information on engagement of Junior Teacher (Schematic) will be available in OSEPA website. The candidates are advised to visit the OSEPA website on regular basis." (underlined for emphasis) W.A. Nos. 580, 727, 740 and 712 of 2024 Page 8 of 55

6. It is manifest from the said notice dated 10.09.2023 that the comparative merit of the candidates was to determined based on the marks secured in a Computer Based Test („CBT‟, in short). The advertisement disclosed Category wise / District wise vacancies for different category of posts, viz. Category-I (For Class I to V) Arts-2023, Category-I (For Class I to V) Science-2023, Category-II (For Class VI to VIII) Arts-2023, Category-II (For Class VI to VIII) Science-2023, Category-1 (For Class I to V) Urdu-2023, Category-II (For Class VI to VIII) Urdu-2023, Category-1 (For Class I to V) Telugu-2023, Category- II (For Class VI to VIII) Telugu-2023, Category-1 (For Class I to V) Bengali-2023 and Category-II (For Class VI to VIII) Bengali-2023.

7. It also manifest from the notice dated 10.09.2023, it was issued in pursuance of the Government Resolution dated 22.08.2023 and Letter dated 08.09.2023 of the S & ME Department, Government of Odisha. The said Resolution dated 22.08.2023 lays down the guidelines for engagement of Junior Teacher (Schematic), in conformity with the policy to provide free and compulsory education to every child in the age group of 6 to 14 years, taking note of Section 23 of the Right of Children to Free and Compulsory Education Act, 2009 or Right to Education Act („RTE Act‟, in short) and taking into account the minimum qualification as laid down by the National Council of Teacher Education („NCTE‟, in short), being the Academic Authority. The eligibility of candidates for Junior Teacher (Schematic) has been determined based on the Notification issued by the NCTE and Supreme Court‟s decision dated 11.08.2023 in Civil Appeal No.5068/2023 arising out of SLP (C) No.20743 of 2021 and batch of cases. Copies of the Government W.A. Nos. 580, 727, 740 and 712 of 2024 Page 9 of 55 Resolution dated 22.08.2023 and the letter dated 08.09.2023 are available on record by way of Annexure-1 to W.P.(C) No.978 of 2024. The State Government of Odisha, in supersession of the previous resolution decided to conduct recruitment for engagement of Junior Teacher (Schematic) through an online CBT.

8. The said Resolution dated 22.08.2023 laid emphasis on Section 8(g) of the RTE Act, which stipulates that the State Government shall ensure good quality elementary education conforming to the standards and norms specified in the schedule.

9. For the benefit of quick reference the opening paragraphs of the said Resolution dated 22.08.2023 are being reproduced hereinbelow:

"xxx xxx xxx The Right of Children to free and Compulsory Education Act, 2009 came into force w.e.f. 01.04.2010 (here in after called the said Act).

In accordance with the provisions under section 38 of the said Act., the Odisha Right of the Children to Free and Compulsory Education Rules, 2010 (here in after called the said Rules) have been notified by the State Government vide Notification N0.17291/SME, dated 27.09.2010 and it came into force w.e.f. 18th October.2010. The said Act proposes to provide free and compulsory education to every child in the age group of 6 to 14 years. Section 8 (g) of the said Act stipulates that the State Government shall ensure good quality elementary education conforming to the standards and norms specified in the schedule.

In pursuance of section 23 of the said Act., the National Council of Teacher Education (NCTE), being W.A. Nos. 580, 727, 740 and 712 of 2024 Page 10 of 55 the Academic Authority, has laid down the minimum qualifications for a person to be eligible for appointment as a Teacher in classes I to VIII, vide Notifications published in Gazette No.215, dated 25.08.2010. Keeping in view the provisions of the said Act and Rules and the guidelines issued by the National Council of Teachers Education (NCTE), Government have issued the Resolution bearing No. 444/SME, dated 05.01.2019 in supersession of this Department Resolution bearing No.25605/SME, dated 26.12.2016 and Corrigendum No.23322/SME., Dated 30.11.2017, Resolution No.587/SME, Dated 10.01.2011, No.18536/SME, Dated 19.11.2009, No.673/SME, dated 10.01.2008, No.11676/SME, dated 31.05.2006 and Corrigendum No. 20000/SME, dated 12.10.2006 and Resolution N0.22438/SME, dated 14.11.2007 & Addendum No.3817/SME, Dated 26.02.2009 prescribing the guidelines for engagement of Sikshya Sahayak subsequently designated as Junior Teacher (Schematic). As prescribed in the Odisha Elementary Education (Method of Recruitment and Conditions of Service of Teachers and Officers) Amendment Rules, 2014, Elementary Teachers are appointed in the State through absorption of Junior Teachers after three years of continuous and satisfactory service considered through a committee at the district level. A Junior Teacher (Schematic) becomes eligible to be a Junior Teacher after three years of continuous and satisfactory service. Their six years of engagement as mentioned above will be co-terminus with that of Samagra Sikshya scheme till their absorption in the regular Elementary cadre.

The NCTE have revised the minimum qualifications for a person to be eligible for appointment as a teacher in classes I to V and classes VI to VIII and issued Notifications by way of amendment to the Notification issued earlier vide Gazette No.215, dated 25.08.2010. Accordingly, the eligibility of candidates for engagement of Junior Teacher (Schematic) has been determined based on the notifications issued by NCTE W.A. Nos. 580, 727, 740 and 712 of 2024 Page 11 of 55 and the Judgement dated 11.08.2023 of Hon„ble Supreme Court in Civil Appeal No.5068/2023 arising out of SLP (C) No.20743 of 2021 and batch of cases.

Guideline for conducting Teacher Eligibility Test (TET) has been prescribed by NCTE vide letter dated 11.02.2011, since passing TET is one of the essential conditions for a person to be eligible for appointment as a teacher in any of the schools referred to in Clause (n) of seclion-2 of the said Act. Accordingly, guidelines for conducting Odisha Teacher Eligibility Test (OTET) have been formulated vide Resolution No.14302/SME, dated 04.06.2012 and Corrigendum No.23082/SME, dated 22.10.2018, Resolution No.11787/SME, dated 15.05.2023 and subsequent amendment vide Resolution No.14339/SME, dated 09.06.2023.

Now, the Government have been pleased to supersede the previous resolutions and have decided to conduct the recruitment for engagement of Junior Teacher (Schematic) through an online computer-based test as per the details given below.

              xxx                         xxx                   xxx"
                                            (Underlined for emphasis)

10. The interpretation of Clause-8 of the said Resolution, which lays down the selection procedure, being at the core of the controversy, is being reproduced herein below:

"8. SELECTION PROCEDURE 8.1 Publication of Master List After expiry of last date of submission of online application form, list of the candidates for each category with respect to their first preference district as submitted by them at the time of submission of application form will be published in OSEPA website. Information on subsequent preference districts of each candidate will also be available in OSEPA website on search.

W.A. Nos. 580, 727, 740 and 712 of 2024 Page 12 of 55

8.2 Online Computer-Based Test An online computer-based test will be conducted by OSEPA/an Authorised Agency as per the syllabus contained in the advertisement to be published before the recruitment.

8.3 District wise and Category wise draft merit list District wise and category wise draft merit list will be published in OSEPA website. Draft merit list will be prepared taking into consideration all district preference submitted by individual candidates in order of preference followed by merit rank i.e. for a particular district, after exhausting all candidates having 1st preference, subsequent preferences will be considered. In case of a tie i.e. when two or more candidates obtain equal score, inter-se merit of such candidates shall be decided in the order as mentioned below:

i. Date of birth (Older candidate will be above other candidates) ii. Percentage of marks in qualifying examination i.e. in Higher Secondary (or its equivalent) will be considered. In case of further tie, marks secured in Graduation will be taken into consideration followed by post-Graduation marks.

If a tie still persists, Government will issue suitable instructions for breaking the tie.

For a particular post, in a category within district, district preference will be preferred over merit. 8.4 Document verification After publication of the draft merit list, all candidates in the said list will be called for verification of original documents at their respective district headquarters. All documents required for verification will be notified by OSEPA in the detailed advertisement in OSEPA website.

During document verification, if any candidate is not able to produce the essential document(s) in support of his/her claim of the Social/Special category/Age proof/Academic & Training qualification/RCI W.A. Nos. 580, 727, 740 and 712 of 2024 Page 13 of 55 registration certificate as per information provided in the application form, the candidature will be rejected and his/her name will be marked as deleted in the draft merit list. The candidates have to produce the Academic and Training qualification/RCI registration certificate (in case of Special Education Candidates) acquired/issued on or before the last date of submission of online application.

8.5 Preparation of District wise Provisional Merit List and Approval Provisional merit list will be prepared after document verification of the candidates placed in the draft merit list. Then objections will be invited from the candidates who are placed in the provisional merit list and rejection list. The provisional merit list will be approved by the Competent Authorities at respective districts after verification of the original documents and inviting objections from candidates within specific time period as mentioned in the calendar of activities issued by the School & Mass Education Department.

8.6 Publication of District wise Final Merit List District wise final merit list will be published at concerned District websites as well as OSEPA website after approval by the Competent Authority.

8.7 Counselling The candidates will be called for allocation of schools through counselling by respective districts. Separate notifications will be issued and displayed by respective districts in their District websites as well as OSEPA website. Vacancies remain due to unavailability of eligible candidates, rejection and non-joining will be carried forward and recruitment will be done subsequently as per requirement. There will be no waiting list." (underlined for emphasis)

11. The writ petitioners, who are the respondents herein, claimed to be eligible for different categories of posts, had submitted their online W.A. Nos. 580, 727, 740 and 712 of 2024 Page 14 of 55 applications pursuant to the advertisement. The application form had a column for the candidates to fill up their order of district preference for joining, in the event of selection as Junior Teacher (Schematic). All the writ petitioners/respondents had given their preference for all the 30 districts of the State in order of their choice starting with Sl. No.1 to 30.

12. Common CBTs were conducted on different dates (not based on the district-preference) from 03.11.2023 to 17.11.2023. It is the case of writ petitioners/respondents that based on the said CBTs, a master select list was required to be published, category wise, in respect of the first preference districts given by candidates on the OSEPA website. A draft result sheet was, however, published on 15.1.2024 for different categories on the OSEPA website, which was not the district-wise, in violation of the selection procedure prescribed in Clause-8 of the Government Resolution dated 22.08.2023.

13. With a plea that there being clear stipulation for publication of District-wise merit list based on first preference of the candidates, publication of one State merit list was contrary to the guidelines prescribed under the Resolution dated 22.08.2023, the writ petitioners approached this Court challenging the draft result sheet and seeking a direction to the OSEPA to proceed with the selection, strictly in accordance with the guidelines as laid down in the Resolution dated 22.08.2023 and to engage the petitioners in their preferred districts. The writ petitioners contended that master select list should be published only on the basis of marks secured by the candidates by taking first preference of such candidates for selection and that it was contrary to the selection W.A. Nos. 580, 727, 740 and 712 of 2024 Page 15 of 55 procedure to select the candidates based on their higher marks, ignoring the first preference district.

14. In the counter affidavit filed on behalf of the OSEPA in W.P.(C) No.978 of 2024, a specific averment was made that the petitioners were unsuccessful in the recruitment examination i.e. CBT. Paragraph-7 of the counter affidavit, which refers to the score of the petitioners of W.P.(C) No.978 of 2024 reads thus:

"xxx xxx xxx

7. That it is humbly submitted that, so far as the present petitioners are concerned, they offered their candidature through online application form with choice preference of 30 districts. A comparative analysis of their merit vis-a-vis the last candidate of their 1st preference choice districts is briefly discussed herein below in the following manner: -

a) "Chintamani Bhuian for Category -1 (Science) has given first preference to Nabarangpur and there are also 29 other district preferences available for him.

His social category is SEBC and gender -- Male. His total score is 147.482. The last candidate of SEBC (Open) category in Nabarangpur district has secured score of 167.315 which is more than the petitioner.

The score of the last candidate of SEBC (Open) category in Category-I Science in the State is 166.453 which is higher than the score of the petitioner, for which his name could not be placed in the district wise and category wise draft merit list.

b) Chintamani Bhuian for Category - II (Science) has given first preference to Malkangiri and there are also 29 other district preferences available for him. His social category is SEBC and gender -- Male. His total W.A. Nos. 580, 727, 740 and 712 of 2024 Page 16 of 55 score is 150.5. The last candidate of SEBC (Open) category in Malkangiri district has secured score of 171.500 which is more than the petitioner.

The score of the last candidate of SEBC (Open) category in Category-II Science in the State is 171.500, which is higher than the score of the petitioner, for which his name could not be placed in the district wise and category wise draft merit list.

c) Jitu Naik for Category - I (Arts) has given first preference to Malkangiri and there are also 29 other district preferences available for him. His social category is SC and gender -- Male. His total score is 117.751. The last candidate of SC (Open) category in Malkangiri district has secured score of 149.500 which is more than the petitioner.

The score of the last candidate of SC (Open) category in Category-I Arts in the State is 147.500 which is higher than the score of the petitioner, for which his name could not be placed in the district wise and category wise draft merit list.

d) Jyotiranjan Moharana for Category -1 (Arts) has given first preference to Rayagada and there are also 29 other district preferences available for him. His social category is SEBC and gender -- Male. His total score is 148.363. The last candidate of SEBC (Open) category in Rayagada district has secured score of 162.164 which is more than the petitioner.

The score of the last candidate of SEBC (Open) category in Category-I Arts in the State is 162.164 which is higher than the score of the petitioner, for which his name could not be placed in the district wise and category wise draft merit list.

e) Swagat Das for Category - II (Science) has given first preference to Koraput and there are also 29 other district preferences available for him. His social W.A. Nos. 580, 727, 740 and 712 of 2024 Page 17 of 55 category is SEBC and gender - Male. His total score is 146.798. The last candidate of SEBC (Open) category in Koraput district has secured score of 171.932 which is more than the petitioner.

The score of the last candidate of SEBC (Open) category in Category-II Science in the State is 171.500 which is higher than the score of the petitioner, for which his name could not be placed in the district wise and category wise draft merit list."

xxx xxx xxx"

15. It was accordingly the stand of OSEPA that as the writ petitioners had secured less marks than the candidates of their choice preference district as well as the last candidate across the State, they had not been shortlisted for document verification and they being unsuccessful candidates, at their instance, the writ petition should not be entertained.

16. A rejoinder was filed by the writ petitioners to the counter affidavit filed on behalf of OSEPA wherein it was reiterated that preparation of said list in place of District-wise list was in clear violation of Clause-8.3 of the Government Resolution dated 22.08.2023.

17. When W.P.(C) No.978 of 2024 was taken up by the learned Single Judge on 19.01.2024, following interim order was passed on an application filed on behalf of the writ petitioners:

"Since basing on the impugned draft result sheet published under Annexure-6 series, verification of documents has been fixed to 20th & 21st of this month, let the process with regard to verification of the documents may continue on the date fixed, but no final decision be taken with regard to final selection and appointment till 24th January, 2024.

W.A. Nos. 580, 727, 740 and 712 of 2024 Page 18 of 55

As requested, list this matter on 24.01.2024."

18. It was brought to the notice of the learned Single Judge that after passing of the said interim order dated 19.01.2024, the OSEPA prepared a District-wise merit list of the candidates for each of the 30 Districts of the State. The OSEPA took following stand in the affidavit delineating step by step, the procedure adopted for preparation of the district-wise and category-wise list, with reference to various clauses of the resolution dated 22.08.2023:

"5. That with regard to the statements made in Paragraph -5 of the affidavit of the Opp. Party No.2, it is humbly submitted that Clause-8 of the Government resolution dtd:22.08.2023 given a detail procedure and stages for selection, which are summaries as follows:

➤Clause-8.1- On expiry of last date of submission of application form, a master list of candidates of each category with respect to their 1" preference districts is to be published in the OSEPA website.

➤ Clause-8.2- Online computer-based test is to be conducted.

➤ Clause-8.3- Draft merit list is to be prepared taking into consideration the district preference of the individual candidates for a particular district. After exhausting of candidates having 1"

preference, subsequent preference will be considered.

It means the merit list is to be prepared and published with the candidates from their 1"

W.A. Nos. 580, 727, 740 and 712 of 2024 Page 19 of 55

preference districts in the descending order of their mark in the CBT.

Nowhere in Clause-8.3, it has been authorized to the OSEPA to prepare a state wise combined merit list and then allot the candidates to their 1 preference districts. On the list is to be prepared on the basis of the candidates of the 1" preference districts. Therefore, the cutoff mark may vary from one district to another. That means there will be 30 cutoff marks for 30 districts of the State. But as it understood from the affidavit filed by the Opp. Party No.2, it has prepared and state wise combined list and then allot them to the district. This is quite illegal and wrong.

➤ Clause-8.4- From these draft merit list candidates are to be directed to cause their original documents verified in the respective districts headquarters.

➤Clause-8.5- After verification of documents a provisional merit list is to be prepared, district wise and the merit list will be put to objection if any by any candidates and then it has to get its approval from the competent authority of respective districts.

➤Clause-8.6- On completing all the above procedure the district wise final merit list to be published in the OSEPA website after approval of the competent authority.

➤Clause-8.7- All these candidates named in the final merit list of particular districts are called W.A. Nos. 580, 727, 740 and 712 of 2024 Page 20 of 55 upon for counseling for their choice of posting of school.

In the aforesaid premises the procedure prescribed under the Government resolution dtd:22.08.2023 has to be followed scrupulously. But in the case in hand the Government guideline has been violated by the Opp. Party No.2 at the stage of Clause-8.3 i.e. preparation of district wise and category wise fresh merit list. Instead of preparing the district wise merit list the Opp. Party No.2 has prepared a state wise list under Annexure-6 series and basing on such a list under Annexure-6 series, directed for document verification, which was conducted on 20th and 21 January, 2024. Therefore there is clear violation of the Clause-8.3 of the Government resolution dtd:22.08.2023.

6. That with regard to the statements made in paragraph-6 of the affidavit filed by the Opp. Party No.2 it is humbly submitted that it is quite incorrect and misleading on the part of the Opp. Party No.2 to say that he has prepared the district wise and category wise draft merit list subsequently across the 30 districts and kept in a sealed covered. The aforesaid statement made in Paragraph-6 well justify that the Opp. Party No.2 violated the guideline. Furthermore such a procedure adopted by the Opp. Party No.2 is unacceptable and illegal for the following reasons:

➤ If the district wise and category wise list was prepared and kept in a sealed covered after the order of the Hon'ble Court, it is not understood W.A. Nos. 580, 727, 740 and 712 of 2024 Page 21 of 55 how could the Opp. Party No.2 in Paragraph-5 of the affidavit stated that the documents verification of 8829 candidates of Category-I was completed on 20.01.2014 and 7989 candidates from Category-II have been completed on 21.02.2024. From which list he has done it. When the list is in a sealed covered and not made public, how the verification could be possible. Hence it is a complete misleading statement.

➤ The petitioners have already filed an affidavit with documents on 24.01.2024 clarifying the position with evidence that the +so-called district wise and category wise list is being prepared by the state authorities as alleged and kept in sealed cover is candidates from Annexure-6 series i.e. state wise list cannot be said to be in consonance with Clause-8.3 of the Government guideline, hence the statements made in Paragraph-6 of the affidavit are absolutely baseless and misleading.

➤When the draft list is in a sealed covered, it is not understood how could the Opp. Party No.2 called the candidates for verification of documents and from which list. This proves Annexure-6 series is a state wise list."

19. The writ petitioners, however, questioned the correctness of the district-wise list on the ground that the same was not in accordance with the requirement under paragraph-8.3 of the resolution dated 22.08.2023. Following submissions on behalf of the writ petitioners was made before W.A. Nos. 580, 727, 740 and 712 of 2024 Page 22 of 55 the learned Single Judge criticizing the district-wise list published by OSEPA:

"4.2. To be specific and giving an example to the district wise list published by OSEPA in its website and so produced before this Court in sealed cover, learned counsel appearing for the Petitioners contended that in the district wise list published for the district of Balasore & Sambalpur, which was downloaded by the Petitioners on 18.01.2024, it is found that candidates giving 1st preference to other districts have been enlisted in the district list of Sambalpur. Not only that in the district list published for Kalahandi district as well as Gajapati, candidates who have never preferred Gajapati as their 1st preference district found place in the district list for Gajapati.

4.3. Taking a cue from the district wise list published by OSEPA after passing of the interim order by this Court, learned counsel appearing for the Petitioners brought to the notice of this Court the district wise list published in Category 1 for the district of Sambalpur and contended that candidates placed at Sl. No. 76 had given his 1st preference for Jharsuguda. But his name was reflected in the district wise list published for the district of Sambalpur. Similarly, in respect of the district wise list published for the district of Kalahandi vide AnnexureG, candidate placed at Sl. No. 10 has given his 1st preference as Balasore and candidate placed at Sl. No. 11 has given his 1st preference as Keonjhar as per the W.A. Nos. 580, 727, 740 and 712 of 2024 Page 23 of 55 verification conducted by the Petitioners and so enclosed vide Annexure-H to the rejoinder.

4.4. Placing reliance on the discrepancies in the district wise list for Sambalpur as submitted under Annexure-F and in respect of Kalahandi district under Annexure-H and so also in respect of Gajapati district as submitted under Annexure- J to the rejoinder, learned counsel appearing for the Petitioners contended that even though district wise list was published after segregating the names from the impugned list published under Annexure-6, candidates who have given their 1st preference in respect of other districts since have been included in a particular district, it is to be held that district wise and category wise list so published after publication of the impugned result sheet under Annexure-6 series is also not in terms of the provisions contained under Para 8.3 of the resolution.

4.5. Making all these submissions, learned counsel appearing for the Petitioners contended that since in terms of the provisions contained under Para 8.3 of the resolution district wise and category wise list has not been published by allotting candidates to a particular district who have given their 1st preference, not only the impugned draft result sheet published under Annexure-6 series is illegal but also the district wise list published by Opp. Party No. 2 subsequent to the interim order passed by this Court and so contended in the affidavit filed by Opp. Party No. 2 on dtd.24.01.2024.

W.A. Nos. 580, 727, 740 and 712 of 2024 Page 24 of 55

4.6. It is accordingly contended that since the selection has not been conducted with publication of the merit list in terms of the provisions contained under Para 8.3 of the advertisement, such process of selection conducted by Opp. Party No. 2 is vitiated and liable for interference of this Court."

20. It was the case of the writ petitioners before the learned Single Judge, with reference to Clause-8.3 of the resolution dated 22.08.2023 that if a thing was required to be done in a certain way, the same must be done in that way or not at all as other methods of performance were necessarily forbidden. The challenge was also on the principle that the method adopted by the OSEPA for short-listing the candidates district- wise amounted to changing the rules of the game after the game was played.

21. Heavy reliance was placed on the Supreme Court‟s decision in case of Union of India v. V. Mahendra Singh, disposed of on 25.07.2022 (Civil Appeal No.4807 of 2022) with reference to paragraph- 14 thereof. Reliance was also placed on the Supreme Court‟s decisions in the cases of K. Manjushree v. State of Andhra Pradesh (2008) 3 SCC 512; Bedanga Talukdar v. Saifudaullah Khan (2011) 12 SCC 85 and Pavnesh Kumar v. Union of India (2023) SCC OnLine SC 1583.

22. Per contra it was argued on behalf of the State before the learned Single Judge that upon conducting the recruitment process, a district- wise and category-wise, a draft merit list in OSEPA website was published on 15.01.2024. It was argued on behalf of the State before the learned Single Judge as under:

W.A. Nos. 580, 727, 740 and 712 of 2024 Page 25 of 55

"5.1. It is also contended that details of the candidates, their application numbers, roll numbers, category of posts, streams and allocation of district published vide Notification No. 899 dtd.15.01.2024 in OSEPA website remains unchanged in the preset district wise and category wise draft merit list so published for each of the 30 districts and produced in sealed cover before this Court for better appreciation.

5.2. It is also contended that for each of the 30 districts while publishing the district wise and category wise draft merit list, cut off mark was fixed for each of the district and none of the Petitioners who have given their 1st preference as Nabarangpur, Malkanagir and Rayagada as well as Koraput have secured the cut-off mark so fixed by Opp. Party No. 2 in each of the district in question. It is contended that since none of the Petitioners who have given their 1st preference to various district, have secured the cut-off mark so fixed by Opp. Party No. 2 while publishing the district wise and category wise draft merit list for each of the 30 district including Nabarangpur, Malkanagiri, Rayagada and Koraput, Petitioners have no locus standi to challenge the process of selection as they have become unsuccessful having not secured the cut off mark so fixed. It is also contended that seeking permission to proceed with the selection process in terms of the advertisement issued on 10.09.2023 under Annexure-2 pursuant to resolution dtd.22.08.2023 under Annexure-1, an I.A. has been filed in I.A. No. 1536 of 2024."

W.A. Nos. 580, 727, 740 and 712 of 2024 Page 26 of 55

23. A plea was also taken on behalf of the State that in the absence of any successful candidate whose name appeared in the draft selection list, no adverse order could be passed, without they being brought on record. Reliance was placed on Supreme Court‟s decision in case of Vishal Ashok Thorat v. Rajesh Shrirambapu Fate (2020) 18 SCC 673 and the decision of this Court in Kabita Jena v. Rajat Kumar Mishra dated 22.12.2023 (in W.A. No.1822 of 2023 & batch).

24. It was also argued that the merit list which was to be prepared district-wise and category-wise in accordance with paragraph-8.3 could not be dehors the merit rank of a candidate in the process of selection. Reliance was also placed by the State on the Supreme Court‟s decisions in case of Devesh Sharma v. Union of India, (2023) SCC OnLine SC 985; Satyajit Kumar v. State of Jharkhand, (2022) SCC OnLine SC 954 and Anmol Kumar Tiwari v. State of Jharkhand, (2021) 5 SCC 424 to make out a case that the merit of a person to be selected as teacher is of paramount importance.

25. From the impugned judgment, it further transpires that it was also submitted on behalf of the State that out of 20,000 vacancies so notified, 18,788 of candidates in Category-1 and Category-2 were shortlisted while publishing the draft result sheet. Out of those 18,788 candidates so enlisted, after verification of documents on 20th and 21st January, 16,217 candidates had attended the documents verification in different district headquarters. After filling of those 16,217 posts, as against remaining vacant posts, cases of the petitioners therein in the batch of writ petitions can be considered subject to their eligibility.

W.A. Nos. 580, 727, 740 and 712 of 2024 Page 27 of 55

26. Learned Single Judge has rejected the submission on the point of non-impleadment of necessary party on the ground that the writ petitions were filed challenging the publication of draft result sheet and therefore, no selected candidates whose names appeared in the draft result list was a necessary party. On the question of non-compliance of the requirement in paragraph 8.3 of the resolution, referring to the decisions in case of K. Manjushree (supra), V. Mahendra Singh (supra), Bedanga Talukdar (supra) and Pavnesh Kumar (supra), learned Single Judge interfered with the draft result sheet as well as the district-wise list published for each of the districts by segregating the names which was produced before the Court in a sealed cover. After having said so, learned Single Judge has held in paragraph 8.9 as under:

"8.9. The stand taken by the learned Advocate General that Merit is the sole criterion for selection of teachers and that has been followed is not acceptable as it runs contrary to the provisions contained under Para 8.3 of the Resolution. Taking into account the submission of the learned Advocate General that the list of successful candidates have been prepared taking into account their performance and merit, it can be inferred that the stipulation contained in Para 8.3 of the Resolution has not been followed. Since the provisions contained under Para 8.3 is very specific, selection of candidates only basing on their merit irrespective of their preference given for a particular district is not sustainable in the eye of law. This Court accordingly is inclined to quash the draft result sheet published under Annexure-6 and so also the district and category wise list published for each of the 30 districts, the W.A. Nos. 580, 727, 740 and 712 of 2024 Page 28 of 55 list of which was produced before this Court in a sealed cover."

27. After having held as above, the learned Single Judge has directed opposite party no.2 to prepare District-wise and category-wise draft merit list strictly in terms of the provision contained in paragraph-8.3 of the resolution and after publication of District-wise and category-wise list, it shall proceed with the selection in terms of the provisions contained under paragraphs-8.4 and 8.5, before publishing the district- wise final result as provided under parqagraph-8.6 of the said resolution.

28. This the background in which such candidates who were found successful in the CBT and their names figured as successful candidates in the draft result sheet published on 15.01.2024. have put to challenge the judgment of the learned Single Judge. It is their case, inter alia, that they are directly adversely affected by the decision of the learned Single Judge but were not impleaded as parties in the writ proceeding nor any other person of their category, similarly circumstanced was impleaded as party in representative capacity.

29. Accordingly, I.A. No.1650 of 2024 (in W.A. No.580 of 2024), I.A. No.1993 of 2024 (in W.A. No.727 of 2024) and I.A. No.1926 of 2024 (in W.A. No.740 of 2024) have been filed seeking leave to prefer the intra- court appeals against the impugned judgment of the learned Single Judge. These applications are allowed, in the given facts and circumstances of the case. Leave is thus granted to the appellants of W.A. No.580 of 2024, W.A. No.727 of 2024 and W.A. No.740 of 2024 to assail the impugned judgment of the learned single judge, though they were not the parties in the writ proceeding.

W.A. Nos. 580, 727, 740 and 712 of 2024 Page 29 of 55

30. Mr. Ashok Kumar Parija, learned Advocate General has submitted that the learned Single Judge has erred in interpreting paragraph 8.3 of the Resolution dated 22.08.2023 while holding that the basis of selection cannot be on merit rather on the district preferences given by the candidates in their applications. He has argued that it is manifest from paragraphs 8.2 and 8.3 of the said resolution that merit is an integral part of the method of selection. The draft result sheet dated 15.01.2024 was the result of the CBT that had been published under paragraph 8.2 of the Resolution whereafter, a district wise draft merit list was filed before the learned Single Judge in a sealed cover. He contends that whereas paragraph 8.2 deals as to how the selection is to be made paragraph 8.3 provides the method of allotment of the districts. He has argued that making district preference as the sole criterion for selection of candidates renders paragraph 8.2 of the Resolution otiose. Such interpretation leads to a situation where meritorious candidates do not get selected in their first preference districts due to high cut-off marks and less meritorious candidates would get selected in certain districts due to low cut-off marks in their corresponding first preference districts, if the interpretation given by the learned Single Judge is accepted. The direction issued by the learned Single Judge in the impugned judgment will result into substantial deep in the cut-off marks for some of the districts/ categories. He has relied on the following Supreme Court‟s decisions in support of his submission that the impugned decision rendered by the learned Single Judge would result into violation of Articles 14 and 16 of the Constitution of India:

W.A. Nos. 580, 727, 740 and 712 of 2024 Page 30 of 55

(1) Minor P. Rajendran v. State of Madras (1968) 2 SCR 786;

(2) Radhey Shyam Singh v. Union of India (1997) 1 SCC 60;

(3) Saurav Yadav v. State of Uttar Pradesh (2021) 4 SCC 542; and (4) Anmol Kumar Tiwari v. State of Jharkhand (2021) 5 SCC 424.

31. He has also argued that the aspirants were required to fill up their preferences for all thirty districts in the State of Odisha and, therefore, the writ petitioners were well aware that they were competing for all thirty districts and not merely their first preference districts. For the said reason also, the interpretation of paragraph 8.3 of the Resolution to select candidates based on their first preference only is unsustainable.

32. Without prejudice to the aforesaid submission, an alternative submission has been advanced by Mr. Parija, learned Advocate General that if this Court comes to a conclusion that literal interpretation of paragraph 8.3, in isolation, requires selection of candidates to be made on the basis of district preference, such interpretation will not only render paragraph 8.3 violative of Articles 14 and 16 of the Constitution of India but would lead to an absurd situation where less meritorious candidates may get selected despite more meritorious candidates available. He has argued that Articles 14 and 16 of the Constitution read conjointly with the RTE Act require the State to select the best teachers to educate the children of the country. Such is also the purpose of Resolution dated 22.08.2023. He submits that this Court may correct the absurdity in paragraph 8.3 of the Resolution dated 22.08.2023 to advance public interest. He has referred to the dictum enunciated in case of Tirath Singh v. Bachittar Singh (AIR) 1955 SC 830 to submit that W.A. Nos. 580, 727, 740 and 712 of 2024 Page 31 of 55 where the language of a statute, in its ordinary meaning and grammatical construction, leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity, hardship or injustice, presumably not intended, a construction may be put upon which modifies the meaning of the words, and even the structure of the sentence.

33. Relying on the Supreme Court‟s decision in case of Bhudan Singh v. Nabi Bux (1969) 2 SCC 481, he has argued that the Courts must interpret the law in order to advance public welfare and further the legislative intent. Placing reliance on the Supreme Court‟s decision in case of Modern School v. Union of India (2004) 5 SCC 583, he has argued that while interpreting a provision hardship, inconvenience, injustice, absurdity and anomaly must be avoided. He contends, referring to the said decision that in selecting out of different interpretations, the Court will adopt that which is just, reasonable and sensible rather than that which is none of those things.

34. Reliance has also been placed by him on the Supreme Court‟s decision in case of RBI v. Peerless General Finance & Investment Co. Ltd., (1987) 1 SCC 424. Concluding his argument, he has accordingly submitted that this Court should give a purposive interpretation of both paragraphs 8.2 and 8.3 of the resolution dated 22.08.2023 by holding the former as the method of selection and the later as the method of district allotment. Such an interpretation, making merit the criterion for selection would further the cause of Articles 14 and 16.

W.A. Nos. 580, 727, 740 and 712 of 2024 Page 32 of 55

35. Mr. Budhadev Routray, learned Senior Counsel appearing on behalf of the private appellants has submitted that the writ petitions filed by the writ petitioners suffered from the vice of non-joinder of necessary parties inasmuch as not even a single successful candidate was arraigned as a party, even in their representative capacity.

36. He has placed reliance on the decisions of the Supreme Court in the cases of All India SC & ST Employees' Association. v. A. Arthur Jeen; (2001) 6 SCC 380 and K.H. Siraj v. High Court of Kerala (2006) 6 SCC 395. Reliance has also been placed by him on the following decisions of this Court:

(1) Odisha Public Service Commission v. Priyambada Das;

2015(I) OLR 510; and (2) Kabita Jena v. Rajat Kumar Mishra rendered on 22.12.2023 (in W.A. No.1822 of 2023 & batch).

37. Mr. P.K. Rath, learned Senior Counsel appearing on behalf of the appellants in (W.A. No.740 of 2024) has relied on the Supreme Court‟s decision in case of Jasbhai Motibhai Desai v. Roshan Kumar (1976) 1 SCC 671 to contend that the writ petition filed by the respondents ought not to have been entertained as they did not have the locus standi to question the correctness of a draft result sheet. No right, personal or individual had accrued to them when the said draft result sheet was made public. He accordingly submits that the writ petition was erroneously entertained at a pre-mature stage at the instance of the aspirants questioning the correctness of preparation of draft result sheet, which had not become final.

W.A. Nos. 580, 727, 740 and 712 of 2024 Page 33 of 55

38. Ms. Pami Rath, learned Senior Counsel has broadly adopted the submissions advanced by Mr. Ashok Kumar Parija, learned Advocate General and Mr. Budhadev Routray, learned Senior Counsel.

39. Mr. Sameer Kumar Das, learned counsel has appeared on behalf of the private respondents/ writ petitioners. Responding to the submission on the point of non-impleadment of the persons who were shown to have been selected in the draft result sheet based on CBT, he has submitted that such candidates were neither necessary nor proper parties since no right had accrued to them with the publication of the result. He submits that the learned Single Judge in the impugned judgment has rightly rejected such contention raised on behalf of the State. He has submitted that unambiguous language used in paragraph 8.3 of the Resolution dated 22.08.2023 does not leave any scope for taking a different view than that has been taken by the learned Single Judge in the impugned judgment. The submissions advanced on behalf of the appellants are manifestly contrary to the mandatory procedure as laid down in paragraph 8 of the Resolution which shall amount to changing the process of selection as laid down, during the process of selection. Such course has been held to be impermissible in the cases of K. Manjushree (supra), V. Mahendra Singh (supra), Bedanga Talukdar (supra) and Pavnesh Kumar (supra). He has argued that the learned Single Judge, basing on the language used in paragraphs 8.2 and 8.3 of the Resolution has rightly interfered with the draft result sheet and has issued necessary directions to be complied with, to complete the process of selection, strictly in accordance with the procedure prescribed.

W.A. Nos. 580, 727, 740 and 712 of 2024 Page 34 of 55

DISCUSSION

40. Based on the pleadings and other materials on record as noted above and in the background of the submissions advanced on behalf of the parties, following questions emerge for this Court to answer, while testing the correctness of the impugned decision rendered by the learned Single Judge: -

I. Whether the literal interpretation given by the learned Single Judge to paragraph 8.3 of the Resolution dated 22.08.2023 can be upheld as the said Resolution is based also on the guidelines issued by the Supreme Court in Civil Appeal No.5068 of 2023 arising out of SLP(C) No.20743 of 2021 and batch of cases [mentioned in the opening paragraphs of the said Resolution, in case of Devesh Sharma (supra)]?

II. Whether literal interpretation of paragraph 8.3 will result into breach of Articles 14 and 16 of the Constitution of India which the Court should avoid? And, III. Whether the writ petitioners, who are respondents in these appeals could have maintained the writ petition at the stage of draft result sheet without impleading some of the successful candidates in their representative capacity as opposite parties?

41. To deal with the first question first, we need to advert to the background in which the said Resolution dated 22.08.2023 was notified. It can be easily seen from the said Resolution that decision to conduct the recruitment for engagement of Junior Teacher (Schematic) through online Computer Based Test (CBT) was taken, taking into account the W.A. Nos. 580, 727, 740 and 712 of 2024 Page 35 of 55 revised guidelines of the National Council for Teacher Education laying down the minimum qualification for a person to be eligible for appointment as a teacher and the Supreme Court‟s decision in case of Devesh Sharma (supra). Though the Supreme Court, in case of Devesh Sharma (supra), was considering the validity of a notification dated 28.06.2018 issued by the NCTE making B.Ed. Degree holders eligible for appointment to the post of primary teachers, the Supreme Court in the said case, dealing with object of Article 21-A of the Constitution of India and the provisions of the RTE Act has made significant observations in paragraphs 12, 16, 17, 18, 22, 30 and 50 which are germane for addressing this question which are relevant are being reproduced herein below:

12. Elementary education for children is today a Fundamental Right enshrined under Article 21A of Part III of the Constitution of India. Every child (upto 14 years of age), has a fundamental Right to have „free‟ and „compulsory‟ elementary education. But then „free‟ and „compulsory‟ elementary education is of no use unless it is also a „meaningful‟ education. In other words, elementary education has to be of good „quality‟, and not just a ritual or formality!

16. In the year 1997, in order to make free and compulsory education a fundamental right the 83rd Constitutional Amendment Bill was introduced in Parliament, to insert a new Article in Part III of the Constitution of India, which was to be Article 21A. The Bill was sent for the scrutiny of the Parliamentary Standing Committee on Human Resources Development. The Standing Committee not only welcomed the amendment but in addition W.A. Nos. 580, 727, 740 and 712 of 2024 Page 36 of 55 emphasizes on the „quality of elementary education‟.

This is what it said.

"The eminent educationists felt that the Bill is silent on the „Quality‟ of Education. They suggested that there should be a reference to „quality‟ of education in the Bill. The Secretary, Education agreed that the „quality‟ aspect also has to be seen. Education definitely must mean „quality‟ education and anything less than that should not be called education. Therefore, the emphasis would be through strengthening the teacher education content, the Secretary stated.

17. Finally, by way of the Constitution (86th Amendment) Act of 2002, Article 21A, was inserted as a Fundamental Right in Part III of the Constitution, and made effective from 01.04.2010. Article 21A of the Constitution reads as under:

"Article 21A: The State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine."

18. In order to fulfil the above mandate Right to Education Act, 2009, was passed by the Parliament on August 20, 2009, which became effective from 01.04.2010. The object and reasons of the Act declared loud and clear that what the Act seeks to achieve is not merely „free‟ and „compulsory‟ elementary education, but equally important would be the „Quality‟ of this education! The Preamble to the Act states "that every child has a right to be provided full time elementary education of satisfactory and equitable „quality‟ in a formal school which satisfies certain essential norms and standards".

22. Free and compulsory education for children becomes meaningless if we make compromise on its „quality‟. We must recruit the best qualified teachers. A good teacher is the first assurance of „quality‟ education in a school. Any compromise on the W.A. Nos. 580, 727, 740 and 712 of 2024 Page 37 of 55 qualification of teachers would necessarily mean a compromise on the „quality‟ of education. Jacques Barzun, the American educationalist and historian, in his seminal work „Teacher in America‟, says "teaching is not a lost art, but the regard for it is a lost tradition"11. Though this comment was for the state of higher education in America, it is equally relevant here on the treatment of Primary education in our country, as it emerges from the facts before us.

30. The academic authority, which is NCTE considered the appointment of trained and qualified teachers as an absolute necessity in primary schools. It is for this reason that the qualification which was prescribed for a teacher in primary school was a diploma in elementary education (D.El.Ed.), and not any other educational qualification, including B.Ed. Apart from this the teachers eligibility test or TET would further test the skills of a candidate to handle students at primary level.

50. We have seen so far that the need for „quality‟ and meaningful primary education was emphasized by the legislature as well as by the academic authority all throughout. In primary education, any compromise on „quality‟ of education would mean going against the very mandate of Article 21A and the Act. The value of Primary education can never be overstated.

42. The Supreme Court thus laid great emphasis, with reference to Article 21-A of the Constitution and the provisions of the RTE Act declaring that the objects and reasons of the RTE Act are not merely free and compulsory elementary education but equally important would be the quality of education. The Supreme Court further observed that free and compulsory education for children would become meaningless if compromises were made on its quality. The Supreme Court remarked that the institutions must recruit the best qualified teachers since a good W.A. Nos. 580, 727, 740 and 712 of 2024 Page 38 of 55 teacher is the first assurance of quality education in a school It further laid down that in primary education, any compromise on quality of education would mean going against the very mandate of Article 21-A of the Constitution.

43. In the background of what has been laid down by the Supreme Court in case of Devesh Sharma (supra) as noted above, we shall deal with the consequences of literal application of paragraph 8.3 of the Resolution dated 22.08.2023 later, after dealing with the importance of merit as the foremost consideration in a process of recruitment to a public post.

44. Paragraph 8.3 of the Resolution dated 22.08.2023 prescribes that draft merit list is to be prepared taking into consideration the district preference of individual candidates for a particular district and after exhausting the candidates having the first preference, subsequent preferences will be considered. It has been specifically mentioned in paragraph 8.3 of the Resolution that "for a particular post, in a category within district, district preference will be preferred over merit". If this provision in the Resolution is allowed to be followed, district-preference shall have primacy over comparative merit of the aspirants in the matter of selection to the posts of Teachers.

45. It is noteworthy that in the case of Radhey Shyam Singh (supra), by a Resolution dated 04.11.1975, the Government of India (DP & AR) had constituted a Sub-ordinate Services Commission for the purposes of recruitment to Non-Technical Class III posts in the departments of the Government of India and in the subordinate offices. The said resolution, W.A. Nos. 580, 727, 740 and 712 of 2024 Page 39 of 55 inter alia, provided for holding of examination but as far possible, making actual recruitment on zonal basis. The objective sought to be achieved by this process or method of selection was to enable the candidates from different regions to be absorbed in the vacancies arising within respective regions. The Commission had declared that after the examination, it would draw up a separate list in respect of each zone in the order of merit. Answering the question as to whether such a selection based on zonal basis violated Articles 14 and 16 of the Constitution of India, the Supreme Court ruled that zone wise selection would result in the devaluation of merit at the selection examination by selecting a candidate having lesser marks over the meritorious candidate who had secured more marks and consequently, the rule of equal chance for equal marks would be violated. The Court held that such process would not only be against the principles enunciated in Articles 14 and 16 of the Constitution but would also result in heartburning and frustration amongst the young men of the country. Paragraph 8 of the said decision is being reproduced herein below for quick reference:

"8. It is needless to emphasise that the purpose and object behind holding a recruitment examination is to select suitable and best candidates out of the lot and such an object can only be achieved by making a common select list of the successful candidates belonging to all the zones. On the other hand if zonewise selection is made then various candidates who appeared in some of the zones and secured more marks than those who are selected from other zones would be deprived of their selection resulting into great injustice and consequent discrimination. Thus there can be said to exist no nexus between the aforesaid process of zonewise selection and the object to be achieved, that is, the selection of the best W.A. Nos. 580, 727, 740 and 712 of 2024 Page 40 of 55 candidates. That being so the process of selection as envisaged in para 16 of the advertisement in question and reproduced in the earlier part of this judgment would lead to discriminatory results because adopting the said process of zonewise selection would result in the devaluation of merit at the selection examination by selecting a candidate having lesser marks over the meritorious candidate who has secured more marks and consequently the rule of equal chance for equal marks would be violated. Such a process would not only be against the principles enunciated in Articles 14 and 16 of the Constitution but it would also result in heartburning and frustration amongst the young men of the country. The rule of equality of opportunity for every individual in the country is an inalienable part of our constitutional guarantee and that being so a candidate who secures more marks than another is definitely entitled to get preference for the job as the merit must be the test when selecting a candidate for recruitment for the posts which are advertised. In the present case admittedly the process of selection as envisaged in para 16 of the advertisement in question is violative of Articles 14 and 16 of the Constitution of India as it has been demonstrated from the marks list of the appellants placed before us at the Bar during the course of arguments that they had secured more marks than those secured by some of the selected candidates.

46. While propounding the law as noted above in case of Radhey Shyam Singh (supra), the Supreme Court relied upon a 5-Judge Bench decision of the Supreme Court in case of Minor P. Rajendran (supra) wherein the district wise distribution of seats for the medical admission as provided for unit wise allocation was held to be violative of Articles 14 and 16 of the Constitution on the ground that that might result in W.A. Nos. 580, 727, 740 and 712 of 2024 Page 41 of 55 candidates of inferior calibre being selected in one district while candidates of superior calibre not being selected in another district.

47. In case of Minor P. Rajendran (supra), a Rule promulgated by the State of Madras for selection of candidates for admission to the first year integrated MBBD course was under challenge, Rule 8 of which provided that the seats reserved in general pool and the seats reserved for the socially and educationally backward classes will be allocated among the various districts on the basis of the ratio of the population of each district to the total population of the State. The Rule also prescribed the form of application and as the selection was on district wise basis, the form had a column "NATIVITY CLAIMED". The Supreme Court noticed, based on the application form, that the nativity depended on the SSLC register, i.e. the district from which the candidate passed the SSLC examination or on the nativity certificate of parents. Further, for the purpose of nativity, the place where candidate‟s parents were born or the place where they possessed immovable property had to be considered. The candidate might chose the district from which he had passed the SSLC examination or in alternative, choose some other district on the ground of nativity, which choice left it open to him to choose the district of permanent residence of father or mother. The State of Madras, justifying its rule of district wise allocation had pleaded that there were better education facilities in Madras State as compared to other districts of the State and therefore, if district wise selection was not made, candidates from Madras city would have an advantage and would secure many more seats. The State of Madras accordingly justified the basis of proportion of the population of Madras city as compared to the W.A. Nos. 580, 727, 740 and 712 of 2024 Page 42 of 55 population of the State as a whole. Another justification put forth by the State of Madras to defend the rule of the district wise allocation before the Supreme Court was that candidates coming from various districts would settle down in those districts and thus medical help would be available in sufficient measure in all the districts. The Supreme Court in Minor P. Rajendran (supra) turned down the first justification in following terms:

"This in our opinion is no justification for district wise allocation, which results in discrimination, even assuming that candidates from Madras city will get a larger number of seats in proportion to the population of the State. That would happen because a candidate from Madras city is better. If the object is to attract the best talent, from the two sources, districtwise allocation in the circumstances would destroy that object. Further even if we were to accept this contention that would only justify allocation of seats between the city of Madras on one side and the rest of the State on the other and not a districtwise allocation throughout. But apart from this, we are of opinion that the object being what we have indicated, there is no reason why there should be discrimination which would go against the candidates from Madras city. We may add that candidates who pass from Madras city need not all be residents of the city for it is common knowledge that schools and colleges in the capital city attract students from all over the State because of better educational facilities."

48. Dealing with the second justification, the Supreme Court made an observation which assumes much significance for the present controversy too, which reads thus:

W.A. Nos. 580, 727, 740 and 712 of 2024 Page 43 of 55

"Further the various options in the matter of nativity certificate to which we have referred. show that candidates will have a number of districts to choose from depending upon where they think that their chances are best and therefore the argument that districtwise allocation is justifiable on this ground is in our opinion of no merit."

49. After having made the aforesaid observations, the Supreme Court struck down the concerned Rule 8 being violative of Article 14 of the Constitution of India with the following observation:

"We are satisfied therefore that the State of Madras has made out no case for districtwise allocation of seats in medical colleges. We are also satisfied that such allocation results in discrimination and there is no nexus between this territorial distribution and the object to be achieved, namely, admission of the best talent from the two sources already indicated. We are therefore of opinion that allocation of seats on districtwise basis is violative of Article 14. We may add that we do not mean to say that territorial classification is always bad under all circumstances. But there is no doubt that districtwise classification which is being justified on a territorial basis in these cases is violative of Article 14, for no justification worth the name in support of the classification has been made out.

50. Reference has also been made by Mr. Parija, learned Advocate General to the Supreme Court‟s decision in case of Saurav Yadav (supra) to argue that selection of candidates must be based solely on merits. In our view, the said decision does not directly apply in the facts of the present case. For the same reason, we are not referring to the decision in case of Anmol Kumar Tiwari (supra), wherein the Supreme W.A. Nos. 580, 727, 740 and 712 of 2024 Page 44 of 55 Court considering a different circumstance has observed that selection to public employment should be on the basis of merit. The said decision, however, does not apply in the facts of the present case since the said observation was made in a different context, dealing with the claim of relief on the ground of parity by intervenors.

51. The ratio laid down by constitution Bench of the Supreme Court (5-Judge Bench) in case of Minor P. Rajendran (supra) and Radhey Shyam Singh (supra), leaves no scope of any doubt that paragraph 8.3 of the Resolution dated 22.08.2023, which contemplates district wise draft merit list violates Articles 14 and 16 of the Constitution of India. In the Court‟s opinion, it will be unjust and improper to allow the authorities to follow the selection procedure prescribed in paragraph 8.3 of the Resolution. The learned Single Judge has issued directions to the OSEPA to prepare merit list strictly in accordance with paragraph 8 of the Resolution dated 22.08.2023. The said direction, in our opinion, a priori, shall result into breach of Articles 14 and 16 of the Constitution of India.

52. There is no gainsaying it is settled law that a recruiting agency for recruitment to a public post is under obligation to strictly follow the terms of advertisement if it lays down a procedure for selection as well as a statutory rules, if any, governing such recruitment/selection process. The reasoning assigned by the learned Single Judge in the impugned judgment relying on the Supreme Court‟s decisions in the cases of V. Mahendra Singh (supra), K. Manjushree (supra), Bedanga Talukdar (supra) and Pavnesh Kumar (supra) is unexceptionable.

W.A. Nos. 580, 727, 740 and 712 of 2024 Page 45 of 55

53. In K. Manjushree (supra), the Supreme Court did not approve the introduction of minimum marks for interview after the entire selection process (consists of written examination and interview) was completed on the principle that that would amounts to changing the rule of the game after the game was played, which was impermissible. In the case of Bedanga Talukdar (supra), the Supreme Court held in paragraphs 29-32 as under:

"29. We have considered the entire matter in detail. In our opinion, it is too well settled to need any further reiteration that all appointments to public office have to be made in conformity with Article 14 of the Constitution of India. In other words, there must be no arbitrariness resulting from any undue favour being shown to any candidate. Therefore, the selection process has to be conducted strictly in accordance with the stipulated selection procedure. Consequently, when a particular schedule is mentioned in an advertisement, the same has to be scrupulously maintained. There cannot be any relaxation in the terms and conditions of the advertisement unless such a power is specifically reserved. Such a power could be reserved in the relevant statutory rules. Even if power of relaxation is provided in the rules, it must still be mentioned in the advertisement. In the absence of such power in the rules, it could still be provided in the advertisement. However, the power of relaxation, if exercised, has to be given due publicity. This would be necessary to ensure that those candidates who become eligible due to the relaxation, are afforded an equal opportunity to apply and compete. Relaxation of any condition in advertisement without due publication would be contrary to the mandate of equality contained in Articles 14 and 16 of the Constitution of India.

30. A perusal of the advertisement in this case will clearly show that there was no power of relaxation. In W.A. Nos. 580, 727, 740 and 712 of 2024 Page 46 of 55 our opinion, the High Court committed an error in directing that the condition with regard to the submission of the disability certificate either along with the application form or before appearing in the preliminary examination could be relaxed in the case of Respondent 1. Such a course would not be permissible as it would violate the mandate of Articles 14 and 16 of the Constitution of India.

31. In our opinion, the High Court was in error in concluding that Respondent 3 had not treated the condition with regard to the submission of the certificate along with the application or before appearing in the preliminary examination, as mandatory. The aforesaid finding, in our opinion, is contrary to the record. In its resolution dated 21-5- 2010, the Commission has recorded the following conclusions:

"Though Shri S. Khan had mentioned in his letter dated 10-12-2009 that he was resubmitting the identity card with regard to locomotor disability he, in fact, had submitted the documentary proof of his locomotor disability for the first time to the office of the APSC through his above letter dated 10-12-2009. However, after receiving the identity card the matter was placed before the full Commission to decide whether the Commission can act on an essential document not submitted earlier as per terms of advertisement but submitted after completion of entire process of selection.

The Commission while examining the matter in details observed that Shri S. Khan was treated as general candidate all along in the examination process and was not treated as physically handicapped with locomotor disability. Prior to taking decision on Shri S. Khan it was also looked into by the Commission, whether any other candidate's any essential document relating to right/benefits, etc. not furnished with the application or at the time of interview but submitted after interview W.A. Nos. 580, 727, 740 and 712 of 2024 Page 47 of 55 was accepted or not. From the record, it was found that prior to Shri S. Khan's case, one Smt Anima Baishya had submitted an application before the Chairperson on 26-2-2009 claiming herself to be an SC candidate for the first time. But her claim for treating herself as an SC candidate was not entertained on the grounds that she applied as a general candidate and the caste certificate in support of her claim as SC candidate was furnished long after completion of examination process."

32. In the face of such conclusions, we have little hesitation in concluding that the conclusion recorded by the High Court is contrary to the facts and materials on the record. It is settled law that there can be no relaxation in the terms and conditions contained in the advertisement unless the power of relaxation is duly reserved in the relevant rules and/or in the advertisement. Even if there is a power of relaxation in the rules, the same would still have to be specifically indicated in the advertisement. In the present case, no such rule has been brought to our notice. In such circumstances, the High Court could not have issued the impugned direction to consider the claim of Respondent 1 on the basis of identity card submitted after the selection process was over, with the publication of the select list."

54. The law laid down by the Supreme Court in the above noted paragraphs of Bedanga Talukdar (supra), has been taken note of by the learned Single Judge wherein the Supreme Court held that the selection process has to be conducted strictly in accordance with the stipulated selection procedure. When a particular schedule is mentioned in the advertisement, the same has to be scrupulously maintained and there cannot be any relaxation in the terms and conditions of the advertisement unless such power is specifically reserved. Laying emphasis on the W.A. Nos. 580, 727, 740 and 712 of 2024 Page 48 of 55 requirement of such stipulation in the advertisement for selection, the Supreme Court held that even if power of relaxation is provided in the rules that must still be mentioned in the advertisement. Even in the absence of such power in the Rules, relaxation could still be provided in the advertisement. However, the power of relaxation, if exercised, has to be given due publicity, the Supreme Court laid down. The Supreme Court concluded that the relaxation of any condition in the advertisement without due publication would be contrary to the mandate of equality contained in Articles 14 and 16 of the Constitution of India. After having held so, the Supreme Court did not approve the High Court‟s decision in directing the authorities to relax one of the requirements in the advertisement in the case of one of one of the aspirants that required submission of disability certificate either along with the application form on or before appearing in the preliminary examination. Such course would violate the mandate of Articles 14 and 16 of the Constitution of India. The Supreme Court has, however, in Bedanga Talukdar (supra), observed "it is too well settled to need any further reiteration that all appointments to public office have to be made in conformity with Article 14 of the Constitution of India."

55. In the case of Pavnesh Kumar (supra), also the Supreme Court has held that a selection was to be conducted in terms of the advertisement.

56. The moot question which the Court is required to deal with and answer as to whether exercising power of judicial review under Article 226 of the Constitution of India, it should direct the State to adhere to such terms of the advertisement which are patently unconstitutional W.A. Nos. 580, 727, 740 and 712 of 2024 Page 49 of 55 being violative of Articles 14 and 16 of the Constitution of India. It may be noted and we are conscious of the fact that the procedure prescribed for selection in paragraph 8 of the resolution dated 22.08.2023 has not been challenged by anyone on the ground of the same being ultra vires Articles 14 and 16 of the Constitution of India. Whether, in the absence of any challenge, despite reaching a conclusion that the relevant requirements are ultra vires Articles 14 and 16 of the Constitution, it would be just and proper to require the State to adhere to such procedure?

57. It is noted here at the cost of repetition that Mr. Ashok Kumar Parija, learned Advocate General appearing on behalf of the State has made an alternative submission, as has been noted above, that if this Court reaches a conclusion that literal interpretation of paragraph 8.3, in isolation, requires selection of candidates should be made on the basis of preferences, such interpretation would not only render paragraph 8.3 violative of Articles 14 and 16 of the Constitution of India but also lead to an absurd situation where less meritorious candidates may get selected instead of more meritorious candidates. His submission is akin to an acceptance that paragraph 8.3 of the resolution dated 22.08.2023, if read as it is, would be violative of Articles14 and 16 of the Constitution of India. He has, however, submitted that this Court may correct the absurdity arising out of the consequences of the absurdity in paragraph 8.3 of the said resolution. He has also submitted that in order to save constitutionality of paragraph 8.3 of the resolution dated 22.08.2023, purposive construction may be given to the said provision in a manner that modifies the meaning of the words, to advance public welfare.

W.A. Nos. 580, 727, 740 and 712 of 2024 Page 50 of 55

58. We are afraid, we cannot interpret paragraph 8 of the resolution by applying the rule of purposive construction since, in the present case, it will amount to rewriting the entire paragraph by way of substitution.. Such approach by this Court, in our opinion, will be impermissible. Given the clear language in paragraph 8 of the resolution, the rule of purposive construction cannot be stretched to give the said provision altogether a different shape.

59. At this juncture, in all fairness to learned Senior Counsel representing the appellants in the cases i.e., WA Nos. 580, 727, 740 of 2024 must address though briefly, their contentions on the point of maintainability of the writ petitions on the ground of non-joinder of necessary parties inasmuch as none of the candidates declared successful in the State result sheet, were impleaded as party.

60. Mr. Sameer Kumar Das, learned counsel appearing for the writ petitioners/private respondents in W.A. No.712 of 2024 has argued, in response to the said submission that the persons whose names figured in the draft result sheet published by OSEPA were neither necessary nor proper parties because no right had accrued to them merely because their names figured in the draft result sheet. He has submitted that the learned Single Judge has rightly rejected the preliminary objection which were taken in the writ proceeding. He has further submitted that such selected persons were not required to be impleaded also because the writ petitioners were questioning the process of selection itself adopted by the State in which the selected candidates had no role to play.

W.A. Nos. 580, 727, 740 and 712 of 2024 Page 51 of 55

61. In view of the nature of the order which we intend to pass in the present appeals, we need not go into the issue of non-joinder of necessary/proper parties in the writ proceedings.

62. Based on the above noted discussions, we record conclusions with reference to the questions I and II as set out in paragraph 40 as under: -

(i) Sub-paragraph 8.3 of the resolution dated 22.08.2023, to the extent it contemplates preparation of district wise draft merit list and further stipulates that the district-preference will be preferred over merit, is ultra vires Articles 14 and 16 of the Constitution of India. The said prescriptions do not have any legal justification rather it defeats the basic object to attract the best talent from amongst the successful candidates. Such provision results in discrimination without any nexus between the requirement of preparation of district wise merit list on the basis of first preference and the object to be achieved i.e., selection of meritorious candidates for the post of teachers, which is one of the avowed objects of Section 8(g) of the RTE Act i.e., to ensure good quality elementary education conforming to the standards and norms. The importance of good quality elementary education has been noted in the case of Devesh Sharma (supra) as discussed hereinabove.

(ii) Paragraph 8 of the resolution dated 22.08.2023 to the extent it provides for giving first preference to the candidates district-wise over merit cannot be saved by applying the rule W.A. Nos. 580, 727, 740 and 712 of 2024 Page 52 of 55 of purposive construction; the language used therein being unambiguous.

(iii) This Court cannot permit Clause 8.3 of the resolution dated 22.08.2023 and other follow up provisions under the resolution to operate, which is patently discriminatory and violative of Articles 14 and 16 of the Constitution of India, though the said provisions have not been challenged by the parties. It will otherwise amount to requiring the appellant State of Odisha to follow a procedure in the matter of public employment, despite the said procedure having been found to be unconstitutional, in the light of a constitution Bench decision of this court in the case of Minor P. Rajendran (supra).

63. After having concluded as above, we are of the considered opinion that the entire selection process undertaken by the appellants for recruitment to the post of Junior Teacher (Schematic) should not be declared illegal as that will hinder completion of the process of selection and seriously affect the teaching/education at the school level because of dearth of teachers.

64. We deem it expedient in the interest of justice, in the given facts and circumstances of the case, to resolve the absurd situation arising out of the stipulation in paragraph 8.3 of the resolution dated 22.08.2023, in a manner that is just, equitable, fulfills the mandate of Articles 14 and 16 of the Constitution of India and at the same time furthers the objective of Article 21A of the Constitution read with the provisions under the RTE W.A. Nos. 580, 727, 740 and 712 of 2024 Page 53 of 55 Act. For the said purpose, we consider it just and proper to issue the following directions for the selection process in question: -

(i) No illegality has been noticed in the conduct of the CBT.

Therefore, the marks scored by the aspirants in the CBT shall be basis for determination of the merit of the aspirants.

(ii) Based on the CBT held by the OSEPA, the State-appellant shall fix the first set of minimum cut-off marks, category wise/subject wise, taking into account the total number of posts advertised, considering the marks secured by the respective candidates in the said test. Select list(s) shall be prepared of such candidates having secured the cut-off marks or above. The preference given by the candidates at the time of application shall be considered for allocation of districts, based on merit-cum-preference. The minimum marks scored by candidates declared successful by the OSEPA, subject -wise/category-wise may be fixed as the first set of the minimum cut-off marks.

(iii) It will be open for the State-appellants to refix the set of cut-

off marks later, from time to time, in the event, the posts remain unfilled because of non-joining of candidates or other similar reasons, which shall be confined to the number of posts advertised.

65. In view of the admitted fact that score of the writ petitioners in the online CBT is less than the minimum marks scored by candidates declared successful by the OSEPA, subject -wise/category-wise, we W.A. Nos. 580, 727, 740 and 712 of 2024 Page 54 of 55 allow the State-Appellants to appoint such candidates taking into account their merit based on the score in CBT, and district-preference for the purpose of allocation a district. It goes without saying that the cases of the writ petitioners shall be considered against the left-over vacancies in terms of the direction as above.

66. The directions issued by the learned Single Judge stands modified accordingly.

67. The writ appeals stand disposed of. All the I.As are, accordingly, disposed of.




                                                       (Chakradhari Sharan Singh)
                                                             Chief Justice

Mr. M.S. Raman, J.                     I agree.

                                                              (M.S. Raman)
                                                                 Judge




M. Panda




             Signature Not Verified
             Digitally Signed
             Signed by: MRUTYUNJAYA PANDA
             Designation: Secretary
             Reason: Authentication
             Location: High Court of Orissa, Cuttack
             Date: 18-Jun-2024 18:13:41


           W.A. Nos. 580, 727, 740 and 712 of 2024                        Page 55 of 55

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