State Of Odisha & Others vs Saraoj Kumar Tripathy
2021 Latest Caselaw 9013 Ori

              IN THE HIGH COURT OF ORISSA AT CUTTACK
                            RVWPET (RPC) No.51 of 2019
            State of Odisha & Others           ....                       Applicants
                                                          Mr.Sonak Mishra, Standing
                                                            Counsel, S & ME Deptt.


                                             -versus-

            Saraoj Kumar Tripathy              ....                      Respondent
                                                            Mr.K.K.Swain, Advocate


                     CORAM:
                     JUSTICE BISWANATH RATH
                                        ORDER

27.08.2021 Order No.

03. 1. Heard the submissions of Mr.Mishra, learned Standing Counsel for the School & Mass Education Department and Mr.Swain, learned counsel appearing for the opposite party.

2. Mr.Mishra, learned Standing Counsel for the School & Mass Education Department taking to the disclosure to the qualification criteria of the petitioner particularly involving WPC (OAC).No.1674 of 2015 through paragraph-3 of the judgment vide Annexure- A/2 reading together with first part Clause-F of the resolution seeking application for consideration, attempted to make out a case that the Department is justified in rejecting the case of the petitioner herein, the applicant in the Original Application, for his not meeting the required criterions in first part of the Clause-F of the resolution dated 27.10.2014. It is thus, taking to the direction part of the Tribunal, an attempt is made by Mr.Mishra to establish the Department case that the direction of the Tribunal runs contrary to the document available on record, particularly the resolution dated 27.10.2014. Taking to the ground taken in review

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application, Mr.Mishra also attempted to make out a case for entertaining the review application.

3. Mr.Swain, learned counsel appearing for the opposite party on the other hand took this Court to the qualification retained by the petitioners taken note in paragraph-3 of the judgment involved. Reading from the resolution of the Government dated 27.10.2014, Mr.Swain. contended that first part of Paragraph-F is not applicable to the case at hand, it is on the other hand, the entire case of the petitioner is considered taking into consideration the qualification prescribed in 2nd part of Clause-F and thus submitted that the review petition is not entertainable for having no ground to entertain a review application for having limited scope with the Court.

4. Considering the rival submissions of the parties, this Court from Paragraph-3 of the Tribunal judgment in O.A.No.1674(C) of 2015 finds as follows:

"The case of the applicant, in brief, is that pursuant to the advertisement dtd.28.10.2014, for the post of contract teacher in Hindi, the applicant submitted his application and participated in the process of selection. However, his candidature was rejected on the ground that he is an untrained candidate and B.A. without Hindi. It is averred that as per the qualification prescribed in the resolution dtd. 27.10.2014, the applicant possesses the required qualification, such as Rastrabhasa Ratna from Rastrabhasa Prachar Samiti, Wardha and M.A. in Hindi, yet his candidature has been rejected, which is illegal. Since Rastrabhasa Ratna from Rastrabhasa Prachar Samiti, Wardha is equivalent with B.A. in Hindi, there is no reason to reject his candidature. Being aggrieved by the said order of rejection, the applicant has approached the Tribunal to quash the reject list, so far as it relates to the applicant and to include his name in the merit list and to issue order of appointment."

5. Reading paragraph-3 of the judgment, there remains no doubt that the applicant therein, the opposite party here was a candidate for

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the post of contract teacher in Hindi for his possessing required qualification, such as, Rastrabhasa Ratna from Rastrabhasa Prachar Samiti, Wardha and M.A. in Hindi and his case squarely comes under 2nd part of the Clause-F. It is in this background, this Court here finds the Tribunal considering the case of rival parties with the above factual background gave the direction as follows:

"In view of the above discussion, as Rastrabhasa Ratna from Rastrabhasa Prachar Samiti, Wardha is one of the prescribed qualifications, which according to the respondents is an alternative qualification and comes in the second category of preference, the candidature of the applicants possessing the above qualification cannot be rejected on that ground. Accordingly, the order of rejection of the candidature of the applicants, who possesses Rastrabhasa Ratna from Rastrabhasa Prachar Samiti, Wardha is not maintainable, and are quashed and the respondent authorities are directed to consider the candidature of the applicants for the post of contract teacher in Hindi. Further, if the applicants are otherwise eligible and suitable, consequential action for their appointment be taken.

The O.As and pending M.Ps. are accordingly disposed of subject to observation made in Para 2 above. The entire exercise be completed within a period of three months from the date of receipt of a copy of this order."

6. Considering the claim of the petitioner and there being no denial that Rastrabhasa Ratna from Rastrabhasa Prachar Samiti, Wardha is equivalent to a Bachelor Degree in Hindi and the petitioner also having M.A. in Hindi, for the opinion of this Court, there is no perversity in the ultimate direction of the Tribunal.

7. This Court reading the contentions of review petitioner in their objection in Tribunal finds the Tribunal in paragraph-4, page-17 herein, taken note of case of review petitioner as herein below:

"The respondent no.2 filed counter stating that in para 3(f) of the resolution dtde.27.10.2014, qualification for the post of Hindi teacher has been

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prescribed as Bachelor degree with Hindi as one of the optional/Honors subject with minimum 50% of marks in aggregate (45% for SC/ST/PH/OBC/SEBC candidates) and M.A. in Hindi with minimum 50% marks in aggregate from a recognized university. It is further stated that three alternative qualifications which have been prescribed for the post of Hindi teacher are in order of preference and are independent of each others. A candidate must have anyone alternative qualification in whole. Since B.A. is common in all the three alternative qualification, there is no scope to accept any other qualification as equivalent to B.A., to hold a candidate eligible for the post of Hindi teacher. In view of the above eligibility criteria as the applicant do not possess the requisite qualification, he was found not eligible and his candidature was rightly rejected. Hence, his grievance is not entertainable."

Reading above, this Court finds review petition is filed on a ground which is not only taken in the Tribunal but the review petitioner even contested the case on such plea and such plea being taken care of, the Tribunal did not agree with the submission of the Department and allowed the Original Application alternately. This Court thus here observes for involving of self same ground, the review petition remains unentertainable. Through the case of Smt. Meera Bhanja vs Smt. Nirmala Kumari Choudhury, (1995) 1 SCC 170, Hon'ble Apex Court has come to hold that an erroneous decision since been challenged by way of Review, consideration must fall within the scope of Order 47 Rule 1 of C.P.C. Similarly, in the case of Thungabhadra Industries Ltd Vrs. The Government Of Andhra Pradesh, AIR 1964 SC 1372 and in the case of Parsion Devi And Ors. Vrs. Sumitri Devi And Ors., (1997) 8 SCC 715, Hon'ble Apex Court held even mistake apparent on face of record cannot be gone into in review, as review Court cannot sit as Appellate Court. The case of petitioner also suffers on account of principle decided by Hon'ble Apex Court in the case of Sow Chandra Kanta And Another Vrs. Sheik Habib, AIR 1975 SC 1500.

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8. For the observation of this Court made herein above and also for the settled position of law, this Court finds no scope for entertaining the review application, which is hereby rejected.

(Biswanath Rath) Judge

Sks