Afr Sk. Hidayetulla Mahamad vs State Of Odisha & Others
2022 Latest Caselaw 2487 Ori

                  ORISSA HIGH COURT: CUTTACK

                     WPC (OAC) No.1203 of 2016

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

AFR    Sk. Hidayetulla Mahamad         ......         Petitioner


                                   -Versus-

       State of Odisha & others        .....       Opp. Parties


       Advocate(s) appeared in this case:-
       _________________________________________________________
       For Petitioner       :    M/s. Biraja Prasanna Das,
                                 Mr. J.S. Maharana
                                 & D.K. Panda, Advocates

       For Opp. Parties    :     Mr. R.N. Acharya,
                                 Standing Counsel for School
                                 and Mass Education Dept.
       _______________________________________________________

            CORAM
               JUSTICE SASHIKANTA MISHRA

                               JUDGMENT

9th May, 2022

SASHIKANTA MISHRA, J. In the present application, the

petitioner prays for quashment of the Reject List under

Annexure-5 on the ground that the same is contrary to the

guidelines of National Council for Teacher Education

(NCTE) dated 12.11.2014 and whereby, his candidature

for the post of Hindi Teacher (Contractual) was rejected.

2. The facts of the case lie in a narrow compass.

Pursuant to an advertisement published by the

Director Secondary Education, Odisha (opposite party

no.2) on 23.10.2014 and 13.01.2015 inviting applications

for the posts of Teachers in several disciplines as per

district-wise vacancies, the petitioner submitted his

candidature in respect of Cuttack district enclosing all the

required documents. It is stated that 29 posts meant for

Hindi Teachers were to be filled up for Cuttack district. As

per the draft list of applicants for engagement of Contract

Teacher in Government High Schools published by the

opposite party no.2 (Annexure-4), the petitioner's name

was placed at serial no. 37. He was asked to appear in

between 06.02.2016 and 10.02.2016 for verification of his

testimonials. Accordingly, the petitioner appeared,

whereby his documents pertaining to educational

qualification were verified. However, his candidature was

rejected subsequently as per Reject List published under

Annexure-5 on the ground that he had not secured 50%

marks in +3 examination. It is the petitioner's case that he

had submitted an objection indicating that since he has

57% marks in M.A. (Hindi) and 37% marks in graduation,

his M.A. marks may be considered instead of graduation

marks as per NCTE Rules and Regulations. According to

the petitioner, as per the guidelines fixed by the NCTE in

its notification dated 12.11.2014, the minimum

qualification of a person is either graduate or post-

graduate from a recognized university with at least 50%

marks in either graduation or post-graduation. The said

resolution is enclosed as Annexure-7. According to the

petitioner, the guidelines fixed by the State Government in

its resolution dated 27.10.2014 (Annexure-8) being

contrary to the guidelines fixed by the NCTE, is not

sustainable in the eye of law. Since the petitioner has

secured more than 50% of marks in the post-graduation

level, rejection of his candidature by considering his

marks at graduation level is contrary to the guidelines of

NCTE.

3. A counter affidavit has been filed by the

District Education Officer, Cuttack (opposite party no.4)

mainly referring to the resolution dated 27.10.2014 as per

which, the qualification for the post of Hindi Teacher is

Bachelor's degree with Hindi as one of the elective subjects

with minimum 50 % marks in aggregate. It is stated that

the petitioner did not possess the requisite percentage of

marks and hence, his candidature was rightly not

accepted. Referring to the guidelines issued by the NCTE,

it is stated that even as per the same, the minimum

qualification is 50% marks in graduate/post-graduate and

Bachelor of Education. It is also submitted that the

advertisement being for the year 2014-15, the eligible

candidates have been selected and have also been engaged

and as such, there is no vacancy available at present.

4. The petitioner has filed a rejoinder to the

counter again harping upon the guidelines of the NCTE to

state that the requirement of 50% marks applies either to

graduate or post graduate level. Moreover, the petitioner

also has Sastri qualification securing 54% marks from

Orissa Rastrabhasa Parishad, which is equivalent to

graduation (+3) as per order dated 31.07.2012 of Utkal

University (Annexure-11). The petitioner has also relied

upon a decision of a Coordinate Bench of this Court in the

case of Nihar Ranjan Sarangi vs. State of Odisha

(WPC(OAC) No. 922 of 2016) to contend that the ratio of

the same squarely applies to him.

5. The opposite party no.4 again filed a reply to

the rejoinder stating that as per the qualification

prescribed in the advertisement vide Clause-3(f), it is

specifically provided that a candidate must have secured

Bachelor's degree with Hindi as one of the

optional/honours subject with minimum 50% of marks in

aggregate and M.A. in Hindi with minimum 50% marks in

aggregate. But in the instant case though the petitioner

secured more than 50% mark in Hindi in M.A. but had

secured only 37% marks at the Graduation Level and

therefore, he does not have the requisite qualification as

prescribed, for which his candidature has been rightly

rejected. As regards the guidelines of the NCTE dated

12.11.2014 it is stated that it does not apply to the instant

case because the advertisement was issued prior to

issuance of the said guidelines. Since the petitioner had

never challenged the advertisement at any point of time,

he cannot now be permitted to question his rejection on

the basis of norms laid down in the said advertisement

only because he was unsuccessful.

6. Heard Mr. B.P. Das, learned counsel for the

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

Counsel for School and Mass Education Department.

7. Mr. Das has made a two-fold argument: firstly,

since the petitioner is a graduate with Sastri qualification

and further with post-graduate qualification securing

more than 50 % marks in each of them, he is eligible as

per the advertisement. Since the Utkal University has

issued an order treating Sastri qualification from Odisha

Rastrabhasa Parishad as being equivalent to +3 pass, it

must be held that the petitioner is duly qualified for the

post. Secondly, it is contended by Mr. Das that even

otherwise, the advertisement being contrary to the NCTE

guidelines, the latter must take precedence over the

former. Mr. Das has also relied upon the judgment of this

Court in Nihar Ranjan Sarangi (supra) in support of his

case.

8. Mr. R.N. Acharya, on the other hand, has

based his arguments entirely on Clause-3(f) of the

advertisement, which according to him clearly lays down

that the candidates must have a Bachelor's degree with

Hindi as one of the elective subjects with minimum 50 %

marks in aggregate with either Rastrabhasa Ratna or

Sastri or Snataka qualification or an equivalent decree

with at least 50% marks and Hindi Sikhyan Parangat. Mr.

Acharya argues that the advertisement also provides that

a candidate must possess the aforementioned

qualifications or a Bachelor's degree with Hindi as one of

the optional/ honours subjects with minimum 50% in

aggregate and M.A. in Hindi with minimum 50% marks in

aggregate. Either way, the petitioner is not qualified since

he did not secure 50% marks in his B.A. examination but

only 37%. As regards the NCTE guidelines, it is submitted

that the advertisement being issued prior to issuance of

the said guidelines, cannot be governed by the same.

9. As it appears, the petitioner had passed B.A.

examination with Hindi as one of the subjects securing

37% marks. The petitioner also passed the M.A. (Hindi)

examination from the Indira Gandhi National Open

University securing 50% marks as per provisional

certificate and mark sheet annexed as Annexure-1 series.

It also appears that the petitioner passed the Sastri

Examination from Odisha Rastrabhasa Parishad securing

54% of marks, as per the copies of the certificate and

mark sheet enclosed as Annexure-10.

It is now required to be seen whether the

petitioner with the above qualification is eligible for being

considered for appointment as Hindi Teacher (Contractual)

as per the norms laid down in the Resolution dated

27.10.2014 (Annexure-8). Clause-3 relates to Educational

Qualification. Sub-Clause (f) relates to Hindi Teacher, the

qualification for which is as extracted hereinbelow:

(f) Hindi Teacher: Bachelor's degree from a recognized University with Hindi as one of the elective subject with minimum 50% marks in aggregate (45% for SC/ST/PH/OBC/SEBC candidates) or with Rastrabhasa Ratna from Rastrabhasa Prachar Samiti, Wardha or with Sastri from Orissa Rastrabhasa Parisada, Puri or with Snataka (Acquired by June-2005, the date up to which the temporary recognition has been granted) from Hindi Sikshaya Samiti, Orissa, Cuttack or an equivalent degree from a recognized Institution with at least 50% marks in aggregate (45% for SC/ST/PH/OBC/SEBC candidates) and Hindi Sikshyan Parangat from Kendriya Hindi Sansthan, Agra/B.H.Ed. (a course prescribed by NCTE ) from a Institution recognized by NCTE and affiliated to a recognized University /B.Ed. in Hindi (a course prescribed by NCTE) from Dakhin Bharat Hindi Prachar Sabha, Madras, a institution recognized by NCTE and affiliated to a recognized University.

OR Bachelor's degree with Hindi as one of the optional / Hons 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. (The untrained candidates shall have to undergo required training within the timeline as prescribed by Govt.)"

A reading of the prescribed qualification would make it

abundantly clear that there are two sets of qualifications

prescribed as alternatives, which a candidate must

possess in order to be eligible. The first part speaks of

Bachelor's decree from a recognized University with Hindi

as one of the elective subjects with minimum 50% marks

in aggregate or with Rastrabhasa Ratna from Rastrabhasa

Prachar Samiti Wardha or with Sastri from Odisha

Rastrabhasa Parishad, Puri or with Snataka from Hindi

Sikshaya Samiti, Orissa, Cuttack or an equivalent degree

from a recognized Institution with at least 50% marks in

aggregate and Hindi Sikshyan Parangat from Kendriya

Hindi Sansthan, Agra/B.H.Ed. from a Institution

recognized by NCTE and affiliated to a recognized

University /B.Ed. in Hindi from Dakhin Bharat Hindi

Prachar Sabha, Madras. This is one part. Alternatively, it

is prescribed that the candidate must possess a Bachelor's

degree with Hindi as one of the optional /Hons. subject

with minimum 50% of marks in aggregate and M.A. in

Hindi with minimum 50% marks in aggregate.

10. As it appears, both conjunctive and

disjunctive words, i.e., 'or', 'with' and 'and' have been

used in the above referred qualifications. It is needless to

mention that the use of a disjunctive word, such as 'or'

between two parts of a sentence ordinarily refers to

separation of the two sentences and therefore, both are to

be treated as alternatives. On the other hand, conjunctive

words, such as 'with' and 'and' are ordinarily used to join

two parts of sentences so as to make both applicable.

Peculiarly, in the advertisement in question, clause-3(f)

employs both disjunctive and conjunctive words together

in the form of 'or with'. It would appear that the use of the

disjunctive 'or' at the first instance appears to be

somewhat confusing and even misleading but then if the

entire clause is to be read as a whole, it would be clear

that the requirement is of Bachelor's degree from a

recognized university with Hindi as one of the elective

subjects with minimum 50% marks in aggregate with

either Rastrabhasa Ratna or Sastri or Snataka or an

equivalent degree (equivalent to the aforesaid three

qualifications) and Hindi Sikshyan Parangat/

B.H.Ed/B.Ed. A reading of the whole of Clause-3 would

strongly suggest that the requirement of a Bachelor's

degree with 50% marks in aggregate is the basic

requirement and along with it, further qualifications are

also necessary. The fact that the words 'Rastrabhasa

Ratna' 'Sastri' and 'Snataka' as employed in different

sentences have been prefixed with 'with' means they are

additional qualifications which a candidate must possess

apart from the basic requirement of securing 50% marks

in graduation. Similarly, the use of 'or' prefixing 'with' in

these sentences obviously indicates that the said three

qualifications are alternatives. Therefore, while the

requirement of having 50% marks in graduation level

cannot in any manner be done away with in order to be

eligible one must also possess either of the three

additional qualifications.

11. The petitioner claims that having possessed

the Sastri qualification securing 54% of marks he must be

treated as having fulfilled the requirement of Bachelor's

degree, cannot be accepted because as already discussed,

in so far as the advertisement is concerned, the

requirement of possessing Sastri or Rastrabhasa Ratna or

Snataka etc. is in addition to the requirement of

Bachelor's degree with Hindi as one of the elective subjects

with minimum 50% marks in aggregate and not as an

alternative qualification. Admittedly, the petitioner secured

only 37% marks in the B.A. Examination and therefore,

notwithstanding the fact that he had secured 54% marks

in Sastri, by no stretch of imagination can he be treated as

qualified as per the advertisement.

12. As regards the argument that the

advertisement dated 27.10.2014 runs contrary to the

NCTE guidelines issued on 12.11.2014, this Court is

unable to accept the same for two reasons, firstly, law is

well settled that a person who has submitted his

candidature on the basis of an advertisement cannot

subsequently turn around and raise objection to the same

only after being unsuccessful. It is needless to mention

that the petitioner had never challenged the advertisement

at any point of time but has questioned the qualification

prescribed therein only after being declared unsuccessful.

In this regard, reference may be had to the ratio of the

following decisions of the Apex Court, viz, Om Prakash

Sukla vs. Akhilesh Kumar Sukla, reported in AIR 1986

SC 1043 and Madan Lal and others vs. State of

Jammu and Kashmir and others, reported in AIR 1995

SC 1088.

Secondly, the NCTE guidelines were admittedly

issued after issuance of the advertisement issued by the

State Government and there is no material to show that

there was any order passed to the effect that the said

guidelines shall supersede the norms laid down in the

advertisement of the State Government either by issuing a

corrigendum or by a specific order. Therefore, the said

guidelines can only be treated as prospective and not

retrospective in operation.

13. As already stated, Mr. Das has relied upon the

decision of a coordinate Bench of this Court in the case of

Nihar Ranjan Sarangi (supra). A reading of the same

reveals that in the said case the candidature of the

petitioner was not accepted on the ground that he did not

have the Hindi training qualification such as Hindi

Sikshyan Parangat or B.H.Ed. or B.Ed in Hindi. As such,

this Court held that "xxxxxxx on entire reading of clause-

3(f) this Court nowhere finds the requirement of Hindi

Training qualification for Hindi Teacher.". Obviously, the

facts of the said case are entirely different from the facts of

the case at hand, inasmuch as the petitioner's

candidature was not rejected for want of Hindi Teacher's

Training qualification but for not possessing the minimum

eligibility requirement of securing 50% marks at the

graduation level.

14. In course of argument Mr. Das also referred to

another decision of a coordinate Bench of this Court

rendered on 15.09.2021 in the case of Satyabrata Nayak

and others vs. State of Odisha and others and batch.

A reading of the judgment reveals that in the said case

also the candidature of the petitioners was rejected on the

ground that they had acquired training qualification after

the advertisement was issued. Again, the facts of the said

cases cannot be compared to the case at hand.

15. For the forgoing reasons, therefore, this Court

holds that the petitioner did not possess the required

qualification as laid in Clause- 3(f) of the Regulation dated

27.10.2014 for being considered for appointment to the

post of Hindi Teacher (Contractual) and therefore, his

candidature must be held to have been rightly rejected.

16. Resultantly, this Court finds no merit in the

writ petition for which the same is dismissed.

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

Sashikanta Mishra, Judge

Orissa High Court, Cuttack The 9th May, 2022/ A.K. Rana