Afr Arati Mallik vs State Of Odisha & Another
2022 Latest Caselaw 2369 Ori

                      ORISSA HIGH COURT: CUTTACK

                        WPC (OA) No. 684 of 2019

       (An application under Article 226 and 227 of the
       Constitution of India)
                              ---------------

AFR    Arati Mallik                           .....    Petitioner


                                   -Versus-

       State of Odisha & another              .....   Opp. Parties


       Advocate(s) appeared in this case:-
       _________________________________________________________
       For Petitioner       :    M/s. S.N. Patnaik, U. Patnaik,
                                 K.C. Panigrahi & S. Mohapatra,
                                 Advocate

       For Opp. Parties     :    Mr. R.N. Acharya,
                                 Standing Counsel for S & ME
                                 Department.
       _______________________________________________________

            CORAM
               JUSTICE SASHIKANTA MISHRA

                              JUDGMENT

26th April, 2022

SASHIKANTA MISHRA, J. The petitioner in the present writ

petition seeks to challenge the letter dated 25.07.2016

issued by opposite party no.1, whereby her representation

for being considered for appointment as Teacher Educator

was rejected.

2. The facts of the case are that the petitioner is

an Asst. Teacher working at Padampur Nodal U.P. School

under BEO, Balasore. On 08.05.2011, an advertisement

was published by opposite party no.2 inviting applications

for in service candidates for filling up 116 posts of Teacher

Educators in the State. The petitioner applied for such

post. A total number of 172 candidates were selected and

merit list was prepared in which the petitioner being

successful, her name found place at serial no. 151 of the

said list. The said select list was published on 22.02.2013.

However, no appointment was made till 13.05.2014. When

the opposite party no.1 directed the opposite party no.2 to

go ahead with the appointment subject to certain

stipulations relating to keeping certain posts vacant

pursuant to orders passed by this Court and the erstwhile

Odisha Administrative Tribunal, 96 in-service candidates

joined, while 11 posts were kept vacant being involved in

litigation and 5 posts were kept vacant for non-availability

of candidates of S.T. category and thus, 112 posts were

filled up in all. The remaining 4 posts were to be filled up

from the merit list. Since the petitioner reasonably

expected of being absorbed against the vacancies, she

submitted a representation on 18.05.2015 to the opposite

party no.1, who in turn sought clarification from the

opposite party no.2 as to if the 4 posts were included in

the fresh advertisement issued in the year 2015.

Accordingly, the opposite party no.2 clarified that from the

merit list, 4 candidates including the present petitioner

being selected to be appointed, their cases were

recommended to the Government for allowing them to

attend counselling and accordingly sought for instructions

of the Government. In response, the opposite party no.1

clarified that no panel or select list is applicable after lapse

of one year and that the 4 candidates have neither any

claim nor are they part of selection anymore and hence

the question of sponsoring them for counselling does not

arise. Further the opposite party no.2 was asked to clarify

as to how the candidature of the 4 candidates was kept

alive for four years and why were these vacancies not

included in the advertisement issued in the year 2015.

The opposite party no.2 vide letter dated 20.08.2015

explained the circumstances in which the four posts had

been kept vacant and not included in the advertisement

made during the year 2015 to the effect that two

candidates were appointed but they did not report for duty

and two candidates were called for counselling but did not

turn up and accordingly necessary permission was sought

for from the Government for other four candidates in order

of merit to attend counselling and since there was

correspondence in this regard with the Government from

time to time, the four posts were not included in the

advertisement made during the year 2015. The petitioner

approached the erstwhile Odisha Administrative Tribunal

in O.A. No. 656 of 2016 and by order dated 08.04.2016,

the learned Tribunal directed the opposite party no.1 to

consider and dispose of the grievance of the petitioner

within a period of one month. Pursuant to such order, the

opposite party no.1 vide order dated 25.07.2016 enclosed

as Annexure-8 to the writ petition, held that as the

candidature of the candidates was recommended after

lapse of nine months from the date when the selection

process started when steps had already been taken to

make appointment against the advertisement made in the

year 2015, the proposal for calling the 4 candidates for

counselling against the advertisement made in the year

2015 would have created further complicacies in the

appointment process and therefore, their candidature was

not considered for counselling. It is stated that the

opposite party no.2 issued appointment letter to the

candidates from 16.06.2014 onwards which continued up

to 12.08.2014 and therefore, the select list of 172

candidates ought to have been valid up to 15.06.2015. So,

while the ground of lapse of one year was not made

applicable in respect of 96 candidates, the same was made

applicable in respect of 4 candidates even though their

names were recommended within nine months from the

date of selection process. Accordingly, the petitioner again

approached the erstwhile Tribunal in O.A. No. 684 of 2019

with prayer to quash the order under Annexure-8 and to

direct the authorities to appoint the petitioner as Teacher

Educator with seniority and other benefits. The said O.A.

has since been transferred to this Court and registered as

the present writ petition.

3. A counter has been filed by opposite party

no.2 stating the relevant facts which are basically matters

of record, but it has been clearly stated that due to non-

joining of some appointees and non-participation in

counselling by some selected candidates, 4 posts were not

filled up in 2014. It is also admitted that the names of 4

candidates including the petitioner was recommended for

counselling to be appointed as in-service Teacher

Educator but as the Government clarified that no panel or

select list is applicable after lapse of one year, the 4

candidates including the petitioner have neither any claim

nor are they part of selection process anymore and hence,

the question of sponsoring them for counselling does not

arise. The opposite party no.2 has also filed an affidavit on

21.04.2022 specifically stating that at present four

numbers of Teacher Educator posts are lying vacant in

DIET, Odisha and there is a chance to increase the

number of vacancy subject to approval of the Government.

4. Heard Mr. S.K. Pattnaik, learned counsel for

the petitioner and Mr. R.N. Acharya, learned Standing

Counsel for the School and Mass Education Department.

5. It is contended by Mr. Pattnaik that

admittedly the petitioner's name was placed at serial no.

151 out of 172 candidates in the select list. Since the

process of selection commenced only after receipt of

approval by the Government on 13.05.2014, the said date

has to be treated as the commencement of the operation of

the selection list. That apart, the select list was actually

acted upon on 16.06.2014 when 75 candidates were

appointed in the first phase which continued up to

12.08.2014. Therefore, according to Mr. Pattnaik the

select list ought to have been treated as valid for one year

either from the date of approval of the select list, i.e.,

13.05.2014 or at least from the date of commencement of

appointment, i.e., 16.06.2014 and hence, till 12.05.2015

or 15.06.2015 as the case may be. He further argues that

the advertisement was issued in the year 2011 but the

selection process was undertaken in the year 2013 and

actual appointments were given only in the year 2014.

Further, there was repeated communications between the

opposite party no.2 and the Government from 09.03.2015

till 29.07.2015 during which the validity of the select list

reckoned from 13.05.2014 or 16.06.2014, as the case may

be expired. Therefore, the petitioner could not have been

blamed for delay in considering her case. In fact,

considering the same, the authorities had not included the

four vacancies in the advertisement issued for 51 posts in

the year 2015. Since this amounts to discrimination on

the part of the Government, the rejection of the claim of

the petitioner vide Annexure-8 cannot be sustained in the

eye of law. It is further contended that as 4 posts are still

lying vacant as admitted by opposite party no.2 in his

affidavit filed on 21.04.2022, direction may be issued to

appoint the petitioner against one of such posts with

retrospective effect.

6. Per contra, Mr. R.N. Acharya contends that

the Government issued clear instructions to the effect that

no panel or select list is applicable after lapse of one year.

That apart, the candidates had though been placed in the

select list and sponsored for counselling, did not acquire

any vested right for appointment. Since the next selection

process had already been initiated, the previous select list,

if any, automatically lapsed. Therefore, according to Sri

R.N. Acharya, there is no merit in the claim of the

petitioner.

7. Before adverting to the merits of the rival

contentions advanced by learned counsel for the parties, it

would be proper to examine the position of law as regards

the scope of inference of the writ Court in the present lis.

The Petitioner, as already stated has come up with the

present Writ Petition with prayer to quash the letter of

rejection of her claim by Opposite Party No.1 under

Annexure-8 as also for direction to the Opposite Parties to

appoint her as Teacher Educator with seniority and other

benefits. The basis of the claim of the Petitioner is

inclusion of her name in the select list. Law is well settled

that a person whose name is included in the select list,

does not per se acquire any right to be appointed. The

Government may decide not to fill up all the vacancies for

valid reasons. However, such decision on the part of the

Government not to fill up the required/advertised

vacancies should not be arbitrary or unreasonable but

must be based on sound, rational and conscious

application of mind. Once it is found that the decision of

the Government is based on some valid reason, the Court

would not issue any mandamus to the Government to fill

up the vacancies. The above view was taken by the

Hon'ble Supreme Court in the case of Manoj Manu and

another v. Union of India and others; reported in (2013)

12 SCC 171. In the instant case, the Petitioner's claim for

appointment was rejected solely on the ground that the

select list in question was no longer valid after expiry of

one year and that steps had already been taken to make

appointments against the advertisement made for the next

recruitment year i.e., 2015. According to the petitioner the

above reasoning is factually incorrect since the date of

commencement of the operation of the select list was

wrongly reckoned. To appreciate the above contention, this

Court has taken note of the fact that while the

advertisement was published in the year 2011 and the

Petitioner's name was included in the select list of 172

candidates and her testimonials were verified on 22nd

February, 2013, yet the said select list was not acted

upon. It was only when the Director, T.E. and S.C.E.R.T.,

Odisha, Bhubaneswar (Opposite Party No.2) sought for

instruction from the Government for selection and

appointment to the posts that things started moving. A

perusal of the letter dated 21st April, 2014 of Opposite

Party No.2 reveals that the clarification was sought for

because of increase in the number of cases filed by some

in-service Teachers before the erstwhile Odisha

Administrative Tribunal and this Court. So, basically

instruction was sought for keeping in view the pending

litigations. The Government issued the go-ahead by letter

dated 13th May, 2014, which is enclosed as Annexure-2,

specifically indicating the number of posts to be kept

vacant as per order passed by the Tribunal and this Court

and the case of one candidate to be kept in sealed cover

and finally that all appointments shall be subject to final

result of different cases filed before the learned Tribunal.

Thus, it can be reasonably held that the select list that

had been kept in a case of suspended animation as it

were, received due to approval of the Government and

thus became operational. The actual appointments begun

on 16th June, 2014 when 75 candidates were issued with

appointment orders followed by 22 candidates on 15th

July, 2014 and finally on 12th August, 2014, 20

candidates were issued appointment orders. Thus, out of

172 candidates in the select list, only 117 candidates were

issued with appointment orders. However, out of the said

117 candidates, only 96 in-service candidates joined

leaving 11 posts vacant due to pendency of litigation and

non-availability of S.T. candidates. Four posts remained to

be filled up. At this stage, the Opposite Party No.2 again

sought for approval from the Government by letter dated

9th March, 2015 regarding allowing four candidates

including the Petitioner to attend the counselling to be

appointed as in-service Teacher Educator, which is

enclosed as Annexure-C/2 to the counter filed by Opposite

Party No.2. In response, the Opposite Party No.1 sought

for certain clarification from Opposite Party No.2 vide

letter dated 1st June, 2015, enclosed as Annexure-4. In

the letter dated 1st June, 2015, the Government informed

that advertisement for filling up of 51 posts had been

made during the month of January, 2015 and, therefore,

Opposite Party No.2 was asked to clarify whether the

advertised vacancies are inclusive of these four posts.

Pursuant to such letter, Opposite Party No.2 furnished

necessary clarification to the Government by letter dated

14th July, 2015. In the said letter it was indicated that

four candidates including the present Petitioner were

selected and recommended for allowing them to attend

counseling and again sought for instruction whether to fill

up the four posts as per advertisement made in the year

2011. In response, the Government by letter dated 29th

July, 2015, enclosed as Annexure-6, held that no panel or

select list is applicable after lapse of one year and these

four candidates have neither any claim nor are they part

of selection process any more.

8. From the above narration, it is evident that if

the date of issuance of the first appointment letter is taken

as the date of commencement of the validity of the select

list, i.e., 16th June, 2014 the same was due to expire on

15th June, 2015 but as it appears, the select list was again

kept under suspension as it were, due to the

aforementioned back-and-forth correspondence between

the Directorate and the Government in between 9th March,

2015 to 29th July, 2015. In the meantime, the one year

period expired on 15th June, 2015. Obviously, the period

between 9th March, 2015 to 29th July, 2015 cannot be

attributed to any fault of the Petitioner. The Hon'ble

Supreme Court in the case of Purushottam v. Chairman,

M.S.E.B and others; reported in (1999) 6 SCC 49 held

that the right of a person to be appointed against the post

to which he has been selected cannot be taken away on

the pretext that the said panel has in the meantime

expired and the post has already been filled up by

somebody else. The Petitioner in the instant case stands

on even a better footing inasmuch as it is clearly borne out

from the counter and affidavit filed by the Opposite Party

No.3 that firstly, the four posts of the recruitment held in

2011 were not included in the advertisement issued in the

year 2015 and, secondly, the said posts are still lying

vacant under administrative control of the Opposite Party

No.2. This is, therefore, a case where despite being placed

in the select list and recommended for counseling for

appointment, the Petitioner was not issued with the

appointment order on the ground that the select list is no

longer valid after one year. As already stated, the

Petitioner can hardly be blamed for being inaction of the

authorities in taking appropriate action when the select

list was valid. To reiterate, but for the period elapsed in

continued correspondence between Opposite Party Nos.1

and 2 the Petitioner could have been given appointment

before expiry of the select list.

9. As regards the stand taken by the Opposite

Parties particularly, Opposite Party No.1 in the order

dated 25th July, 2016 (Annexure-8) that the candidature of

the candidate was recommended after a lapse of 9 months

from the date when the selection process started and

when steps had already been taken to make appointment

against the advertisement made in the year 2015, the

proposal for calling the four candidates for counseling

against the advertisement made in the year 2011 would

have created further complicacies in the appointment

process and, therefore, the candidature of these four

candidates were not considered for counseling, cannot be

sustained in the eye of law. When it has been clarified

adequately that the advertisement issued in the year 2015

did not include these four posts against which the

Petitioner would have been appointed and in fact was

recommended for counseling as also the fact that all the

four posts are still lying vacant, the aforesaid order passed

by Opposite Party No.1 cannot be said to be based on

sound, rational and conscious application of mind. In the

case of Manoj Manu (supra), the Apex Court has held that

the decision on the part of the Government not to fill up

the required/advertised vacancies should not be arbitrary

or unreasonable, but must be based on sound, rational

and conscious application of mind. Obviously, Opposite

party No.1 lost sight of the fact that because of

correspondence between the Directorate and the

Government, the validity of the select list had expired.

10. From the foregoing narration, therefore, this

Court finds that there is considerable force in the

contentions advanced by the Petitioner. This Court is also

of the view that despite being duly selected and

recommended for counseling for appointment the

Petitioner was deprived of being appointed only because of

the inaction and erroneous decision of the Opposite Party-

authorities. Resultantly, this Court directs that the

concerned authorities shall act upon the recommendation

of the Opposite Party No.2 vide letter dated 14th July, 2015

and issue necessary order of appointment in favour of the

petitioner from the date of last appointment made against

the select list, i.e., 12th August, 2014 with her seniority

being placed just below her immediate senior in the said

select list. Further, the pay of the Petitioner should be

fixed notionally without any arrears of pay and other

allowances.

11. The writ petition is disposed of accordingly.

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

Sashikanta Mishra, Judge

Orissa High Court, Cuttack The 26th April, 2021/A.K. Rana/A.K. Behera