Orissa High Court

Ramesh Chandra Dhal vs State Of Odisha And Ors on 11 August, 2022

          IN THE HIGH COURT OF ORISSA AT CUTTACK
                       W.P.(C) No.16376 of 2022

        Ramesh Chandra Dhal                     ....            Petitioner
                                               Mr. Pitambar Panda, Adv.
                                    -versus-
        State of Odisha and Ors.                 ....       Opposite Parties
                                                Mr. Biswajit Mohanty, SC
                                                      (for S & ME Deptt.)



                 CORAM:
                 DR. JUSTICE S.K. PANIGRAHI
Order                               ORDER
No.                                11.08.2022

  03.
        1.

This matter is taken up through hybrid mode.

2. Heard Learned Counsel for the Petitioner and learned

Counsel for the Opposite Parties.

3. In this Writ Petition, the petitioner challenges the

action of Opposite Parties in not regularising his

service as an Assistant Teacher, who is continuing as

Junior Teacher (Contractual) since 03.11.2014 in

Batagaon Upper Primary School, Batagaon under

Block Education Officer, Naktideul in the district of

Sambalpur pursuant to Engagement order No.1169

dated 31.10.2014 issued by the Collector-Cum-Chief

Executive Officer Zillaparishad, Sambalpur.

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4. Learned counsel for the petitioner submitted that the

petitioner was appointed as a Sikshya Sahayak on

31.10.2014 and joined on 03.11.2014 under the opposite

party No.6- Block Education Officer, Naktideul having

duly selected by the District Selection Committee. The

petitioner being a Physically disabled candidate was

initially appointed as a Sikshya Sahayak under the PH

Category although he was an untrained candidate at

the time of recruitment. Thereafter, the District

Education Officer, Sambalpur vide letter No.7353

dated 08.09.2017 instructed the present petitioner to

take admission online and acquire training

qualification through National Institute of Open

Schooling (NIOS). Accordingly, the present petitioner

admitted in to the training course as per instruction of

District Education Officer, Sambalpur and was issued

Identity Card by the NIOS vide Enrolment

No.21030703151001 for 2017. The petitioner after

admission into the course appeared in the examination

during 2019 but the result published was withheld by

the NIOS authority on the ground that the petitioner

did not possess 45 % marks in +2 Examination.

National Council For Teacher Education (NCTE) vide

Notification dated 23.08.2010 prescribed the norms for

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minimum qualification required for teachers

appointed in Class-VI to Viii in paragraph-1(ii)(a) i.e.

B.A./ B.Sc and 2 years Diploma in Elementary

Education (by whatever name known). Subsequently,

the NCTE vide Notification No.012/16/2018 dated

28.06.2018 clarified that Graduation and two years

diploma in Elementary Education (by whatever name

known) the following shall be inserted namely:

"(Graduation with at least 50% marks and Bachelor of

Education (B.Ed))".

5. Learned counsel for the petitioner further submitted

that the present petitioner was initially applied for

engagement as Sikshya Sahayak under the category of

B.A B.Ed (untrained) and subsequently selected and

engaged under the category of Untrained Physically

disabled by the authority in consonance with the

provision contained in the advertisement made.

Moreover, the present petitioner was appointed in

Upper Primary school and completed the OTET

examination conducted by the BSE, Odisha specially

for recruitment of teachers in the State in Paper II in

the year 2013 prior to his appointment.

6. It was further submitted that the petitioner was duly

selected and was appointed and joined as Sikshya

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Sahayak on 03.11.2014 through a properly constituted

Circle Selection Committee in the year 2014.

Thereafter, the petitioner admitted into training course

through NIOS as directed by the District Education

Officer, Sambalpur and appeared the examination and

declared successful in the training course in the year

2019. NIOS declared the petitioner in the examination

as pass candidate, but subsequently withheld the

result, as a result of which the petitioner is suffering a

lot for regularization of his service as an Assistant

teacher in Elementary cadre due to lack of training

qualification.

7. He further submitted that the petitioner is entitled to

be regularised as an Assistant Teacher with effect

from 03.11.2020 on completion of 6 years of

continuous service as Sikshya Sahayaka as well as

junior teacher in accordance with the rules prescribed

and benefit extended to many similarly placed

persons taking into consideration the result published

in the website by the NIOS in the year 2019, i.e. much

prior to the date of entitlement of the petitioner for

regularization. In that view of the matter, the

petitioner has made prayer in this Writ Petition

seeking direction to the opposite parties to publish

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the result and issue final result of training certificate

and regularize his service from the date of entitlement

for regularization i.e. on 03.11.2020 and allow

appropriate scale of pay with all consequential service

benefits.

8. Learned counsel for the Department of School and

Mass Education submitted that the prayer made in the

Writ Petition is misconceived and not at all

sustainable in law. In the instant case, the prayer of

the petitioner is two folds such as (i) for publication of

result and issuance of training certificate by the

opposite party No.2 (ii) for regularization of service of

the petitioner as regular primary school teacher w.e.f.

03.11.2020 along with all consequential service

benefits.

9. He further argued that unless the petitioner acquires

the training qualification as per his first prayer, the

2nd prayer made against the State- opposite parties

cannot be entertained. As per the Rules and

Regulations governing the field in respect of

regularization of primary school teacher, the training

qualification of C.T/ B.Ed is necessary. But, in the

instant case, till date the petitioner has not acquired

such training qualification, for which his further claim

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for regularisation as regular primary school teacher

on completion of six years as Sikshaya Sahayak is

totally misconceived. Hence, the Writ Petition is liable

to be dismissed being devoid of merit.

10. Heard the learned counsel for the parties. The very

engagement order issued in favour of the petitioner

clearly reveals at clause-18 that in case of untrained

candidates, whose engagement will be renewed

beyond 31.01.2015, shall have to acquire C.T/B.Ed

training qualification within March, 2015 as per the

stipulation made in the Right to Education Act, 2009

(RTE Act, 2009), failing which she/he will be

disengaged automatically. By accepting such terms

and conditions made in the very engagement order,

the petitioner joined as Sikshya Sahayak without

having training qualification, but as per the D.O Letter

dated 03.08.2017 issued by the Government of India,

Ministry of Human Resources Development,

Department of School Education and Literacy,

whereby it has been decided that untrained

Elementary Teacher who do not have minimum

qualification as mandated under the RTE Act, 2009,

will not be allowed to continue in service beyond

01.04.2019 and procedure for dismissal shall be

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initiated against such teachers. It was submitted that

referring such letter of Government of India dated

03.08.2017, the District Education Officer, Sambalpur

in his letter dated 08.09.2017 though allowed the

petitioner to undergo training qualification through

NIOS during the Session 2017-18. But till date the

petitioner has not acquired such training qualification.

Rather, the opposite party No.2 issued Annexure-3 by

cancelling the training qualification on the ground

that the petitioner does not fulfill the eligibility criteria

of securing 45% of mark in Class-XII examination,

which is clearly evident from Annexure-3 to the Writ

Petition. Therefore, unless and until the petitioner

secures the training qualification, his service cannot be

regularized. Rather, in view of the Government of

India D.O letter dated 03.08.2017, so also the condition

mentioned in the engagement order under Annexure-

1, the petitioner may not be allowed to continue any

further as junior teacher.

11. A key principle of service jurisprudence is that a

candidate must possess the requisite qualification for

a post on the date of issue of employment notification.

Additionally, it has also been well established by law

that the court should not interfere with the process of

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appointment unless it involves a substance of

arbitrariness or the process is violative of rule of law.

The Apex Court in the case of Maharashtra Public

Service Commission vs Sandeep Shriram Warade1

held that:

"10. The essential qualifications for appointment to a post are for the employer to decide. The employer may prescribe additional or desirable qualifications, including any grant of preference. It is the employer who is best suited to decide the requirements a candidate must possess according to the needs of the employer and the nature of work.

The court cannot lay down the conditions of eligibility, much less can it delve into the issue with regard to desirable qualifications being at par with the essential eligibility by an interpretive re-writing of the advertisement. Questions of equivalence will also fall outside the domain of judicial review. If the language of the advertisement and the rules are clear, the Court cannot sit in judgment over the same. If there is an ambiguity in the advertisement or it is contrary to any rules or law the matter has to go back to the appointing authority after appropriate orders, to proceed in accordance with law. In no case can the Court, in the garb of judicial review, sit in the chair of the appointing authority to decide what is best for the employer and interpret the conditions of the

(2019) 6 SCC 362

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advertisement contrary to the plain language of the same."

12. Reliance can also be placed on the judgment of the

Apex Court in Pramod Kumar vs. U.P. Secondary

Education Services Commission & others2 wherein

the employee was appointed as Assistant Teacher and

was found not having the minimum qualifications

from a recognized University. It was held that

irregularity cannot be regularized and the

appointment contrary to the statutory rules are void

in law as the essential qualifications are not satisfied.