Orissa High Court
Biswaranjan Biswal And Others vs State Of Odisha And Others on 29 November, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.A.No.102 of 2016
Biswaranjan Biswal and others .... Appellants
Mr. J. Biswal, Advocate
-versus-
State of Odisha and others .... Respondents
Mr. D.R. Mohapatra, Senior Standing Counsel
CORAM:
THE CHIEF JUSTICE
JUSTICE M.S. RAMAN
ORDER
Order No. 29.11.2022
Dr. S. Muralidhar, CJ.
05. 1. The challenge in the present writ appeal is to an order dated 24th
February 2016 passed by the learned Single Judge dismissing
W.P.(C) No.3138 of 2016 filed by the present three Appellants
praying for a direction to Opposite Parties i.e., Odisha Primary
Education Programme Authority and the School and Mass
Education Department (S & ME Department), Government of
Odisha, to permit the Appellants to participate in the selection
process for the post of Sikshya Sahayak (SS) pursuant to an
advertisement dated 12th September 2014, and the subsequent
corrigendum dated 9th February 2016, and if selected, to engage
them as such.
2. The background facts are that each of the Appellants acquired
the B.Ed. degree and thereafter, appeared in the Odisha Teachers'
Eligibility Test (OTET) Paper-II conducted by the Board of
Secondary Education, Odisha in December 2014. The results were
published in the month of March, 2015.
3. There were two guidelines issued by the S & ME Department
regarding engagement of SSs. The first guideline was dated 6th
August 2013, where inter alia Clause-6 Category-2 prescribed that
the candidate should have passed in OTET Category-II among
other qualifications. As far as the age was concerned, the
candidates had to be not below 18 years and above 35 years and in
case of SC/ST, Women, Ex-Serviceman and SEBC, the upper age
limit could be relaxed for 5 years and in case of PH candidates, by
10 years.
4. On 11th September 2014, a revised guideline was issued
regarding engagement of SSs during 2014-15. This inter alia
stipulated that "passing of required training and the score in OTET
is mandatory for all the candidates". As regards the age limit, it
was to be determined as on 12th September 2014 "i.e., the date of
publication of the advertisement".
5. It transpires that as regards the non-relaxation of the age limit for
specified categories of persons, W.P.(C) No.6670 of 2015 was
filed in this Court. In pursuance of the order of this Court passed
therein, "the last date for submission of on-line application for the
post of SS" was extended "for the candidates within the age group
of 35-42 as on 30th September 2014 with relaxation of 5 years for
SC/ST/SEBC/Women and 10 years for PH candidates". It is only
by virtue of this corrigendum which provided for the relaxation of
the upper age limit that the three writ Petitioners (the Appellant
herein) became eligible to apply for the post of SS. Under the
earlier advertisement dated 12th September 2014, they would not be
eligible. In terms of the corrigendum dated 9th February 2016, the
last date for submission of application was 28th February, 2016.
6. The Appellants contended that they had possessed the requisite
qualification of OTET-II in March 2015, which was before the last
date for submission of applications in terms of the corrigendum,
and, therefore, their candidature could not have been rejected on
the ground of lack of requisite qualification. The stand of the S &
ME Department on the other hand was that since for the purposes
of determination of age, as per the enhanced age criterion, the
relevant date was fixed as 30th September, 2014 the qualification
also had to be obtained as of that date.
7. The learned Single Judge accepted the plea of the Department
that the corrigendum related back to the original advertisement
itself and therefore, the cutoff date for determining whether the
candidate has possessed the necessary qualification had to be the
same date fixed for determining the age which was 11th September,
2014.
8. Learned counsel for the Appellants has drawn the attention of
the Court to the judgment of the Supreme Court in Rekha
Chaturvedi v. University of Rajasthan 1993 Supp (3) SCC 168
where, inter alia, in para 10, it was observed as under:
"10.The contention that the required qualifications of the
candidates should be examined with reference to the
date of selection and not with reference to the last date
for making applications has only to be stated to be
rejected. The date of selection is invariably uncertain. In
the absence of knowledge of such date the candidates
who apply for the posts would be unable to state
whether they are qualified for the posts in question or
not, if they are yet to acquire the qualifications. Unless
the advertisement mentions a fixed date with reference
to which the qualifications are to be judged, whether the
said date is of selection or otherwise, it would not be
possible for the candidates who do not possess the
requisite qualifications in praesenti even to make
applications for the posts. The uncertainty of the date
may also lead to a contrary consequence, viz., even
those candidates who do not have the qualifications in
praesenti and are likely to acquire them at an uncertain
future date, may apply for the posts thus swelling the
number of applications. But a still worse consequence
may follow, in that it may leave open a scope for
malpractices. The date of selection may be so fixed or
manipulated as to entertain some applicants and reject
others, arbitrarily. Hence, in the absence of a fixed date
indicated in the advertisement/notification inviting
applications with reference to which the requisite
qualifications should be judged, the only certain date for
the scrutiny of the qualifications will be the last date for
making the applications."
9. In the present case too, there is no specific rule which governs
the situation where by virtue of a corrigendum, the upper age limit
for applying for a post may have been enhanced. Indeed, the
revised guideline issued by the S & ME Department was also silent
on this aspect.
10. The above dictum of the Supreme Court was reiterated by the
Supreme Court subsequently in Rajasthan Public Service
Commission v. Kaila Kumar Paliwal AIR 2007 SC 1746 where it
was observed as under:
"21. Recruitment to a post must be made strictly in
terms of the Rules operating in the field. Essential
qualification must be possessed by a person as on the
date of issuance of the notification or as specified in the
rules and only in absence thereof, the qualification
acquired till the last date of filing of the application
would be the relevant date. See Ashok Kumar Sharma
and Others v Chander Shekhar and Another [(1997) 4
SCC 18], U.P. Public Service Commission U.P.,
Allahabad and Another v Alpana [(1994) 2 SCC 723]
and Harpal Kaur Chahal (Smt.) v Director, Punjab
Instructions, Punjab and Another [1995 Supp (4) SCC
706]."
11. The situation in the present case is that there are no specified
rules as regards the relevant date for considering whether the
candidate has the requisite qualification. Admittedly, by the last
date of filing of the applications in terms of the corrigendum i.e.,
28th February 2016, all the three Appellant here had already
acquired the OTET-II qualification and were therefore eligible to
be considered for engagement as SSs.
12. It must be mentioned here that on 8th April 2016, in the present
writ appeal, the following interim order was passed:
"Issue notice as above.
The submission of the learned counsel for the appellants
is that since there was no cut off date specified either in
the advertisement or in the Rules or any office
memorandum, the cut off date for acquiring the essential
qualification would be the date of application, as has
been held by the Apex Court in case of Rajasthan Public
Service Commission vs. Kaila Kumar Paliwal and Anr.,
AIR 2007 SC 1746. It is contended that as on the date of
application filed by the appellants which was in terms of
the corrigendum no.1297/Estt/16 dated 9.2.2016, the
appellants had already acquired the essential
qualification and as such, non- acceptance of the
application of the appellants on such ground is wholly
unjustified.
Considering the aforesaid facts, we are of the opinion
that appellants have made out a prima facie case for
grant of interim protection. Accordingly, it is directed
that respondents shall accept the hard copies of the
application of the appellants for the post of Sikhya
Sahayaks with reference to Corrigendum no.
1297/Estt/16 dated 9.2.2016 issued under Annexure-5
and to allow them to participate in the selection process.
However, their result should be kept in sealed cover and
should not be declared without the leave of this Court.
A free copy of this order be given to the learned
Standing Counsel, School and Mass Education
Department.
Urgent certified copy of this order be granted in course
of the day.
13. Subsequently, on 29th September 2022, the following order was
passed:
"1. Learned counsel appearing for the School and Mass
Education Department shall produce on the next date the
sealed cover containing the results in respect of the
present Appellants in terms of the order passed by this
Court on 8th April 2016,.
2. List on 29th November, 2022."
14. Pursuant to the above order, today in Court, Mr. Mohapatra,
learned Senior Standing Counsel appearing for the S & ME
Department tendered a sealed cover containing the results of the
participation of the three Appellants in the selection process. Those
results were perused by the Court and also shared with the learned
counsel for the Appellants as well as the learned Senior Standing
Counsel for the S & ME Department. The results show that all
three Appellants have qualified in the selection test, but have not
been offered employment since according to the S& ME
Department, they should have obtained the requisite OTET-II
qualification as of the original date in the advertisement i.e., 30th
September 2014, and not subsequent thereto.
15. In view of the settled legal position explained in the above
decisions of the Supreme Court, this Court is not able to accept the
plea of the S & ME Department that the requisite qualification of
OTET-II was not possessed by these Appellants as of the last date
for filing of the applications in terms of the advertisement read
with corrigendum.
16. Even the plea that the corrigendum relates back to the original
advertisement overlooks the fact that as far as the present
Appellants are concerned, they became qualified to apply only
because of the relaxation of the upper age limit pursuant to the
orders of this Court as explained hereinbefore. In other words, it is
only by virtue of corrigendum that the Appellants came to apply
for the post. If the corrigendum were to relate back to the original
date, they would not even be qualified to apply. Therefore, as far as
the three Appellants are concerned, it cannot be said that the
relevant date for determining whether the Appellants possess the
requisite qualification has to be the original date of 30th September
2014. It has to be the revised date in terms of the corrigendum.
17. The settled legal position being that in the absence of Rules, the
last date of submission of the application would be the relevant
date as far as obtaining the qualification concerned, in the present
case, that date would be 28th February, 2016. Clearly, by that date,
each of the three Appellants had acquired the requisite OTET-II
qualification.
18. For all of the aforementioned reasons, this Court is unable to
agree with the conclusion reached by the learned Single Judge in
the impugned order. The impugned order is accordingly hereby set
aside. The writ appeal is disposed of with a direction to the S &
ME Department to issue appointment letters to the three Appellants
as Junior Teacher (Contractual) [which is what the post of SS has
been renamed as], within a period of eight weeks. It is made clear
that the Appellants would not be entitled to any arrears of pay.
19. Issue urgent certified copy of this order as per rules.
(Dr. S. Muralidhar)
Chief Justice
(M.S. Raman)
Judge
S.K. Guin
