Afr Bikash Mahalik vs State Of Odisha & Ors
2021 Latest Caselaw 12390 Ori

                       ORISSA HIGH COURT: CUTTACK


                          WPC (OA) NO. 923 OF 2015

           In the matter of an application under Articles 226 &
           227 of the Constitution of India.
                                 ---------------

AFR Bikash Mahalik ..... Petitioner

-Versus-

State of Odisha & Ors. ..... Opp. Parties

For Petitioner : M/s. P.K. Mishra, K.L. Kar & A Ganejdra, Advocates

For Opp. Parties : Mr. M. K. Balabantaray, Standing Counsel

P R E S E N T:

THE HONOURABLE DR. JUSTICE B.R.SARANGI

Date of hearing 25.11.2021 :: Date of Judgment : 03.12.2021

DR. B.R. SARANGI, J. The petitioner, who belongs to

Scheduled Caste category and is serving as Junior

Clerk in the establishment of Collectorate, Boudh, has

filed this writ petition to quash the show-cause notice

dated 31.03.2015 under Annexure-13 issued by // 2 //

opposite party no.3 directing him to give reply within 30

days from the date of its receipt as to why his services

shall not be terminated; as well as letter dated

09.02.2015 under Annexure-13/1 issued by opposite

party no.2 to opposite party no.1 intimating for deletion

of the name of the petitioner from the final list and his

removal from service on the ground of violation of G.A.

Department Notification; and the letter dated

26.03.2015 under Annexure-13/2 issued by the Joint

Secretary to Govt. of Odisha, Revenue & Disaster

Management Department to opposite party no.2

recommending for issuance of show-cause notice prior

to termination of the petitioner from service. He further

seeks direction to the opposite parties to allow him to

continue as Junior Clerk as usual with all service and

financial benefits, as stipulated in the appointment

order under Annexure-7 dated 26.11.2013, as he was

validly recruited as per the statute.

2. The facts of the case, in brief, are that

opposite party no.3-Collector & District Magistrate, // 3 //

Boudh issued an advertisement dated 8.07.2013,

captioned as "Special Recruitment Drive for ST/SC" to

fill up the vacant posts of Jr. Stenographer/Jr. Clerk/

Revenue Inspector/Assistant Revenue Inspector/Amin.

So far as the vacancy position of Jr. Clerk is concerned,

total vacancies were 16 and the posts were distributed

as per post based roster i.e. 8 posts meant for ST, 4

posts meant for ST (W), 3 posts meant for SC and 1 post

meant for SC (W). For recruitment to the posts of Jr.

Clerk, the candidate shall have to appear written test

and practical computer skill test as provided in

appendix to Rule-10 of Odisha Ministerial Service

Rules, 1985, as amended vide notification dated

12.04.2010. As per appendix, opposite party no.3 had

specified in the advertisement, that the competitive

examination shall consist of written test and practical

skill test. The written test shall consist of paper-1 for 3

hours and paper-II for 3 hours. Each paper consists of

two parts. Paper-1 consists of Part-1, Language Test

(English and Oriya) and Part-II, Objective General

Knowledge, carrying each 100 marks and the duration // 4 //

of examination was three hours. Similarly Paper-II

consists of Part-1, Objective Mathematics and Part-II,

Basic Computer Skill carrying each 100 marks. Total

mark of written test (Paper-1 & Paper-II) was 400. The

maximum mark of practical skill test i.e. Basic

Computer Skill (Objective) was 50. Therefore, total

maximum mark was 450 as provided under the statute.

In similar manner, another advertisement dated

08.07.2013 was issued in order to fill up the posts of

Junior Clerks and other posts from among the UR and

SEBC category.

2.1. When the advertisement was published, the

petitioner was serving as Jogan Sahayak on

consolidated pay of Rs.3,500/- per month in Mathura

G.P. under Panchayat Samiti Charichhak in the district

of Boudh. While serving as such, he having requisite

qualification, applied for the post of Jr. Clerk with

required documents within the prescribed period of

time. As his application was in order, opposite party

no.3 issued admit card bearing his Roll No.JC-0071 // 5 //

instructing him to attend the written test, which was to

be held on 06.10.2013 (Sunday) in Jogindra Dev High

School, Boudh. Pursuant thereto, he appeared in the

written test on the scheduled date and time and

secured 234 marks (113 in Paper-I + 121 in Paper-II),

out of total 400 marks. Taking into account the marks

secured in the written test, opposite party no.3 vide

letter dated 19.11.2013 asked the petitioner to appear

in the computer skill test on 16.11.2013 at 10.00 AM in

the Collectorate, Boudh. Accordingly, the petitioner

appeared computer skill test and secured 31 marks out

of total marks 50.

2.2. On the basis of marks secured both in

written test and computer skill test, opposite party no.3

prepared a merit list on 26.11.2013. The petitioner

having placed at Sl. No.2 securing 265 marks, opposite

party no.3 issued appointment letter on 26.11.2013 in

his favour appointing him as Jr. Clerk. As a

consequence thereof, he was appointed as Jr. Clerk on

regular basis being selected through recruitment test.

// 6 //

As a result, he resigned from his previous post, i.e.

Jogan Sahayak of Mathura G.P. under Panchayat

Samiti, Charichhak on 27.11.2013, which was duly

allowed by the Sarapanch of Mathura G.P. vide letter

dated 27.11.2013 and he joined in his new post on the

very same day under opposite party no.3 as Jr. Clerk

and discharged his duty assigned to him.

2.3. After joining of the petitioner, opposite party

no.3 sanctioned Rs.7,500/- towards one time

refundable G.I.S. advance in favour of the petitioner to

enable him to make one time deposit under GIS,

pursuant to which said amount was recovered from his

salary in 10 equal instalments, and he was also enrolled

under defined Contributory Pension Scheme as per

Finance Department notification dated 17.07.2009 and

24.10.2005 and accordingly, PRAN kits (Permanent

Retirement Account Number) was issued in his favour.

After completion of one year service, opposite party no.3

opened the Service Book and his name was placed at Sl.

No.38 in the gradation list of Jr. Clerk. He also // 7 //

completed departmental examination to be eligible for

consideration of promotion to the next higher rank as

per the statute.

2.4. The petitioner, while continuing as Jr. Clerk,

having completed about one year and four months of

service under opposite party no.3, all on a sudden,

pursuant to direction of opposite parties no.1 and 2,

opposite party no.3 issued impugned show-cause notice

dated 31.03.2015 and vide memo dated 31.03.2015

communicated to the petitioner, along with impugned

enclosures such as letter dated 09.02.2015 of RDC,

(SD), Berhampur, Ganjam, letter dated 26.03.2015 of

Government and letter dated 29.03.2015 of RDC (SD),

Berhampur, Ganjam, calling upon him to explain as to

why he shall not be terminated from Government

Service, for having been appointed vide order dated

26.11.2013 by violating the G.A. Department

Notification dated 12.04.2010. Hence this application.

3. Mr. P.K. Mishra, learned counsel for the

petitioner contended that in view of provisions // 8 //

contained in appendix to Rule-10 of the Orissa

Ministerial Services (Method of Recruitment to the Posts

of Junior Clerks in District Offices) Rules, 1985, a

candidate has to appear in the written test for

maximum marks of 400 and practical skill test of

maximum marks of 50 and on the basis of aggregate

marks secured in both tests, the merit list/select list

has to be prepared for appointment as Junior Clerk.

Accordingly, opposite party no.3 conducted the written

test and practical skill test for total maximum marks of

450 and on the basis of total marks secured in both the

tests, opposite party no.3 rightly prepared the merit list.

The petitioner was selected and his name found place at

Sl. No.2, pursuant to which he joined as Junior Clerk.

Subsequently, the G.A. Department, vide notification

dated 12.04.2010, notified that the practical skill test

shall be qualifying in nature and the marks awarded in

practical skill test should not be added to the marks

secured by the candidates in the written test

examination. But such notification of the G.A.

Department cannot have any justification, as it cannot // 9 //

supersede the statutory provisions contained in Rules,

1985. It is further contended that opposite party no.2,

has arbitrarily directed opposite party no.3 to redraw

the merit list by excluding the marks of practical skill

test, which is absolutely an outcome of non-application

of mind. It is further contended that opposite party

no.2, vide letter dated 09.02.2015 at Annexure-13/1

issued with regard to the special recruitment drive for

the post of Jr. Clerk, directed that the petitioner need to

be deleted from the final merit list and removed from

the service, because of the reason that he had been

awarded 31 marks in practical skill test and thus 31

marks when added to written test marks 234, he

secured 2nd position and as per law, the practical test

mark is not to be added with aggregate marks of Paper-I

and Paper-II and as a consequence his position does not

remain in the final merit list. Such a direction contained

in Annexure-13/1, being in violation of G.A.

Department notification, cannot sustain in the eye of

law, as the same is hit by principle of estoppel.

Therefore, the petitioner seeks for quashing of the same.

// 10 //

To substantiate his contentions, he has relied

upon the judgment of this Court in Pratima Sahoo v.

State of Orissa, 2021 (I) OLR 174.

4. Mr. N.K. Praharaj, learned Standing Counsel

for the State argued with vehemence that opposite party

no.3 published the common merit list, vide office order

dated 26.11.2013, by adding the marks secured in the

skill test to the marks secured in the written test. In the

said merit list, the petitioner stood second, got

appointed and continued in service. Such select list

prepared by opposite party no.3 was declared wrong by

opposite party no.2, vide letter dated 09.02.2015 stating

that the computer skill test is qualifying in nature and

the marks awarded therefor should not be added with

the marks secured in the written test, otherwise it

would be in deviation of the Government guidelines. It

is further contended that the petitioner has secured 31

marks in computer skill test and got qualified as the

qualifying mark was 15 and his merit list should be

placed taking into account 234 marks (Paper-I=113, // 11 //

Paper-II=121) secured in written test only. It is further

contended that opposite party no.3 has conducted the

written test and the practical skill test for total

maximum mark of 400 and 50 respectively. There is

stipulation in the G.A. Department notification dated

12.04.2010 in paragraph-3 at foot note that the

practical skill test shall be qualifying in nature and the

marks awarded for practical skill test should not be

added with the mark secured by the candidates in the

written test examination, as observed by opposite party

no.2. Therefore, inclusion of the name of the petitioner

in the final merit list, by adding his marks secured in

the computer skill test and placing him at serial no.2

cannot sustain. As a consequence thereof, he should be

removed from service.

5. This Court heard Mr. P.K. Mishra, learned

counsel for the petitioner and Mr. N. K. Praharaj,

learned Standing Counsel for the State by hybrid mode.

Pleadings have been exchanged between the parties and

with the consent of learned counsel for the parties, the // 12 //

writ petition is being disposed of finally at the stage of

admission.

6. In exercise of powers conferred by the proviso

to Article 309 of the Constitution of India, the Governor

of Orissa framed the rules to regulate the method of

recruitment to the posts of Junior Clerks in the District

Offices and the offices subordinate thereto called the

"Orissa Ministerial Services (Method of Recruitment to

the Posts of Junior Clerks in the District Offices) Rules,

1985 (hereinafter referred to as "Rules, 1985").

7. For just and proper adjudication of the case,

Rule 10 of the Rules, 1985 is extracted below:

"10. Standard and syllabus of the Examination-The Scheme and subjects for the examination and the Syllabus shall be as specified in the APPENDIX.

The said appendix to Rule 10 was amended consequent

upon amendment of Rules, 1985 as Orissa Ministerial

Services (Method of Recruitment to the post of Junior

Clerks in District Offices) Amendment Rules, 2009.

Appendix-III of the amended Rule 10 states about // 13 //

scheme and subjects for examination. The extract of the

same reads as follows:

"Appendix - III (See Rule 10) Scheme and Subjects for Examination

Papers Subjects Maximum Time Marks Paper- I Part- I - Language 100 3 Hours Test

Part -II - Objective General Knowledge

Paper - II Part - I Objective 100 3 Hours Mathematics Part - II Basic

Skills TOTAL 400 6 Hours Practice Skill Test 1 Hour

BasicComputer Skills

Subs vide O.G.E NO. 2161, Dt. 05.11.2013

Note : - (i) The Standard of examination shall be equivalent to that of Secondary School,

(ii) Those who will qualify written test shall be called for the practical Skill test.

(iii) The practical test shall be of qualifying nature."

8. There is no dispute with regard to the fact

that the petitioner appeared in the written test and

secured 234 marks out of 400 marks and also secured // 14 //

31 marks in practical skill test out of 50. Opposite party

no.3 prepared a select list taking into account marks

secured in the written test as well as practical skill test

and placed the petitioner at Sl. No.2 of the merit list.

Subsequently, opposite party no.2 found out that marks

secured in the practical skill test, being qualifying in

nature, should not be added to the marks secured in

the written test. Consequentially, he directed opposite

party no.3 to redraw the final merit list on the basis of

marks secured by the petitioner in the written test i.e.

234 marks excluding the marks secured in the practical

skill test, in which the petitioner had qualified by

securing 31 marks, which is above the qualifying mark

of 15, out of 50 marks. But fact remains pursuant to

merit list prepared by opposite party no.3, the petitioner

has already joined and his service book has been

opened. The amount towards GIS has been deducted

from his salary and he has also been enrolled in the

contributory pension scheme of the Government. As a

result, a right has been accrued in his favour to

continue in his post. Now, after lapse of one year 4 // 15 //

months, as per direction given by opposite party no.2,

opposite party no.3 has redrawn the merit list and

called upon the petitioner to show-cause why he shall

not be removed from service. Whether such action of

opposite party no.3 is hit by principle of estoppel, is the

short question to be decided in the facts and

circumstances of this case.

9. Section-115 of the Indian Evidence Act, 1872

deals with Estoppel, which reads as follows:-

"115. Estoppel:- When one person has, by this declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed, in any suit or proceeding between himself and such person or his representative, to deny the truth of that thing."

To bring the case within the scope of estoppel as defined in Section 115 of the Evidence Act;

1. There must be a representation by a person or his authorized agent to another in any form, a declaration, act or omission;

2. The representation must have been of the existence of a fact and not of promises be future or intention which might or might not be enforceable in contract;

3. The representation must have been meant to be relied upon;

4. There must have been belief on the part of the other party in its truth;

5. There must have been action on the faith of that declaration, act or omission that is to say, the declaration, act or omission must have actually caused another to act on the faith of it, and to // 16 //

alter his former position to this prejudice or detriment;

6. The misrepresentation or conduct or omission must have been the proximate cause of leading the other party to act to his prejudice;

7. The person claiming the benefit of an estoppel must show that he was not aware of the true state of things. If he was aware of the real state of affairs or had means of knowledge, there can be no estoppel;

8. Only the person to whom representation was made or for whom it was designed can avail himself of it."

10. In Black's Law Dictionary, 7th Edn. At page

570 'estoppel' has been defined to mean a bar that

prevents one from asserting a claim or right that

contradicts what one has said or done before or what

has been legally established as true.

11. The Law Dictionary expresses promissory

estoppel to the following effect:-

"A promise by which the promisor should reasonably expect to induce action or forebearance of a definite and substantial character on the part of the promise, and which does induct such action or forebearance. Such a promise is binding if injustice can be avoided only by enforcement of the promise."

12. In Halsbury's Laws of England, Fourth

Edition, Vol.16 in Para-1514 at page 1017, the // 17 //

"promissory estoppel" has been defined to the following

effect:-

"Promissory estoppel: When one party has, by his words or conduct made to the other a clear and unequivocal promise or assurance which was intended to affect the legal relations between them and to be acted on accordingly, then, once the other party has taken him at his word and acted on it, the one who gave the promise or assurance cannot afterwards be allowed to revert to their previous legal relations as if no such promise or assurance had been made by him, but he must accept their legal relations subject to the qualification which he himself has so introduced."

13. In Central London Property Trust Ltd. v.

High Treas House Ltd., (1956) 1 All ER 256, it has

been held that a promise is intended to be binding,

intended to be acted upon, and in fact acted upon is

binding.

14. In Century Spg. And Mfg. Co. Ltd v.

Ulhasnagar Municipal Council, (1970) 1 SCC 582, it

has been held that there is no distinction between a

private individual and a public body so far as the

doctrine of promissory estoppel is concerned.

// 18 //

15. In Gujurat State Financial Corporation v.

Lotus Hotels, (1983) 3 SCC 379, it has been held that

the principle of "promissory estoppel" would estop a

person from backing out of its obligation arising from a

solemn promise made by it to the respondent.

16. In Ashok Kumar Maheswari v. State of

U.P., 1988 SCC LSS 592, it has been held that doctrine

of "promissory estoppel" has been evolved by the Courts

on the principle of equity to avoid injustice.

17. In Sharma Transport v. Govt. of A.P., AIR

2002 SC 322: 2002) 2 SCC 188, it has been held that

the Government is equally bound by its promise like a

private individual, save where the promise is prohibited

by law, or devoid of authority or power of the officer

making the promise. The equitable doctrine of

promissory estoppel must yield where the equity so

requires in the larger public interest.

18. In State of Rajasthan v. J.K. Udaipur

Udyog Ltd., (2004) 7 SCC 673, it has been held that // 19 //

the "promissory estoppel" operates on equity and public

interest.

19. In A.P. Steel Re-rolling Mill Ltd. v. State of

Kerala, (2007) 2 SCC 725, it has been held that where

a beneficent scheme is made by the State, the doctrine

of "promissory estoppel" would apply.

20. In State of Orissa v. Manglam Timber

Products Ltd., (2003) 9 Scale 578, it has been held

that to attract applicability of promissory estoppel a

contract in writing is not a necessary requirement. This

principle is based on premise that no one can take

advantage of its own omission or fault.

21. In B.L. Sreedhar v. K.M. Munireddy, (2003)

2 SCC 355 (365) it has been held by the apex Court that

'estoppel' is based on the maxim "allegans contrarir non

est audiendus" (a party is not to be heard contrary) and

is the spicy of presumption "juries et de jure" (absolute,

or conclusive or irrebuttable presumption).

// 20 //

22. In H.R. Basavaraj v. Canara Bank, (2010)

12 SCC 458, it has been clarified that in general words,

'estopeel' is a principle applicable when one person

induces another or intentionally causes the other

person to believe something to be true and to act upon

such belief as to change his/her position. In such a

case, the former shall be stopped from going back on

the word given. The principle of estoppels is only

applicable in cases where the other party has changed

his positions relying upon the representation thereby

made.

23. The principle of promissory estoppels has

been considered by the apex Court in Union of India v.

M/s Anglo, Afghan Agencies etc., AIR1968 SC 718;

Chowgule & Company (Hind) Pvt. Ltd. v. Union of

India, AIR 1971 SC 2021; M/s Motilal Padampat

Sugar Mills Co. Ltd. v. The State of Uttar Pradesh,

AIR 1979 SC 621; Union of India v. Godfrey Philips

India Ltd., AIR 1986 SC 806; Delhi Cloth & General

Mills Ltd. v. Union of India, AIR 1987SC 2414; and // 21 //

Bharat Singh v. State of Haryana, AIR 1988 SC 2181

and many other subsequent decisions also.

24. In Ambika Prasad Mohanty v. Orissa

Engineering College, 1989(1) OLR 440, the Division

Bench of this Court has already held that a student

admitted after satisfying all qualifications, subsequently

his admission is cancelled and he cannot prosecute his

studies elsewhere, rule of estoppel is applicable.

25. This Court in Dr. (Smt.) Pranaya Ballari

Mohanty v. Utkal University, 2014 (I) OLR 226 has

come to a finding that the action taken at belated stage

by the University after lapse of 20 years of publication

of the result is hit by the principle of estoppel.

26. Similar view has also been taken by this

Court in Rajanikanta Priyadarshy v. Utkal

University, represented through its Registrar, 2015

(I) OLR 212, wherein this Court held that the result of

+3 Final Degree (Regular) Examination, 2010 of the

petitioner therein having been published and on that

basis he has already undergone higher studies and // 22 //

passed in different courses, subsequently his initial

result cannot be cancelled on the ground that he has

failed in the said examination.

27. In Pratima Sahoo (supra), this Court held

that the order of disengagement of the petitioner from

the post of Sikhya Sahayak, pursuant to decision of the

district administration, having found qualified in the

selection process and appointed after resigning from

her erstwhile post of Anganwadi Worker and having

worked for six to eight months, amounts to putting the

petitioner in prejudical and disadvantageous position

and the reason assigned for later finding the petitioner

not suitable for securing less marks than other

meritorious candidates do holds good, the petitioner

cannot be found faulted by the mistake committed by

the appointing authority in calculating the percentage.

Consequentially, direction was given to absorb the

petitioner forthwith applying the doctrine of promissory

estoppel in the said case.

// 23 //

28. In view of the law and fact, as discussed

above, the irresistible conclusion is that the show-cause

notice dated 31.03.2015 under Annexure-13 issued by

opposite party no.3, the letter dated 09.02.2015 under

Annexure-13/1 issued by opposite party no.2 to

opposite party no.1 and letter dated 26.03.2015 under

Annexure-13/2 issued by the Government of Odisha,

Revenue and Disaster Management Department to

opposite party no.2 cannot sustain. Therefore, the same

are liable to be quashed and hereby quashed. Pursuant

to interim order passed on 07.04.2019 by the Odisha

Administrative Tribunal since the petitioner is still

continuing, he shall be allowed to continue with all

service and financial benefits as due and admissible to

him in accordance with law.

29. Accordingly, the writ petition is allowed.

However, there shall be no order as to costs.

.............................

DR. B.R. SARANGI, JUDGE Orissa High Court, Cuttack The 3rd December, 2021, Alok