Afr Manoj Kumar Jena vs State Of Odisha & Others
2022 Latest Caselaw 4660 Ori

            IN THE HIGH COURT OF ORISSA AT CUTTACK

                         W.P.(C) No. 7944 of 2018

       An application under Articles 226 & 227 of Constitution of
       India.
                                  ---------------
AFR    Manoj Kumar Jena                             ......       Petitioner

                             -Versus-

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

       Advocate(s) appeared in this case:-
       _______________________________________________________

         For Petitioner      :    M/s. S.B. Mohanty, S. Mohapatra,
                                  B.B. Mohapatra, Advocates

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

       _______________________________________________________
       CORAM:
            JUSTICE SASHIKANTA MISHRA

                              JUDGMENT

th 13 September, 2022

SASHIKANTA MISHRA, J.

The petitioner was initially appointed as

Education Volunteer and posted in Sanabrahmapur EGS

Centre duly approved by OPEPA and selected by the District

Selection Committee through the District Project

Coordinator (DPC), Balasore by order dated 12.04.2007.

The petitioner claims to be a graduate with extra

qualification of Ratna in Hindi. He discharged duties in

Sanabrahmapur EGS Centre duly signing in the attendance

registers which were countersigned by the EGS committee.

While he was continuing as such, the government of Odisha

took a policy decision to abolish the EGS scheme under

Sarva Shikhya Abhiyan and accordingly a letter of

disengagement was issued to each Education Volunteer on

28.03.2008. After such abolition of the scheme, the

Government issued a resolution on 16.02.2008 for

engagement of the retrenched Education Volunteers as

Gana Shikhyaks. The Block Resource Centre Coordinator,

(BRCC), Balasore by letter dated 04.04.2008 instructed all

District Inspectors of Schools and Block Development

Officers to publish a draft merit list of Education Volunteers

for their rehabilitation as Gana Shikhyaks. Pursuant to

such letter a gradation merit list was prepared in which the

petitioner's name found place at serial number 69. The

Sanabrahmapur EGS Centre was being managed by an

NGO named SPEED. By letter dated 23.04.2008 the

Managing Director of SPEED requested the BRCC to enlist

the name of the petitioner and accordingly by letter dated

06.05.2008, BRCC recommended the name of the petitioner

for enlistment to the DPC Balasore for inclusion in the list

of Gana Shikhyak. Since such recommendation was not

acted upon, the petitioner approached this Court in W.P.(C)

No. 14791 of 2012 which was disposed of on 01.10.2012

with a direction to the Collector to look into the grievance of

the petitioner as per resolution dated 16.02.2008. However,

the Collector, Balasore, by order dated 22.12.2012 rejected

the case of the petitioner on the ground that he was not

engaged as Education Volunteer in Sanabrahmapur EGS.

Challenging the order of the Collector, the petitioner again

approached this Court in W.P.(C) No. 22964 of 2013 which

was disposed of on 31.07.2017 directing the Collector to

take into account the incumbency of the petitioner as an

Education Volunteer and original scheme as per the report

of BRCC dated 22.01.2009. The Collector, without

considering the facts on record and the report of BRCC

rejected the claim of the petitioner again by order dated

20.09.2017, which is impugned in the present writ

application. It is stated that despite clear evidence that the

roll strength of the EGS Centre in question was more than

40 which justified engagement of the second volunteer, the

Collector mechanically rejected the claim of the petitioner

without considering the said evidence. Being thus

aggrieved, the petitioner has approached this court again in

the present writ application seeking the following relief:

"It is therefore prayed that the Hon'ble Court may graciously be pleased :-

           (i)     To admit the writ petition;
           (ii)    To quash the order of Collector, Balasore
           dtd.20.09.2017 (Annexure-15).

(iii) To direct the opposite parties to give engagement to the petitioner as Gana Sikshayak in view of the resolution of the Govt. dtd.16.2.2008 and further resolution dtd.26.2.2009 read with clarificatory instruction of the Govt. dtd.28.4.2008 and taking into account the gradation list of the B.R.C.C., Soro vide Annexure-7 and recommendation of B.R.C.C. vide Annexure-11 of the Writ petition.

And may pass any other appropriate order/orders as deemed fit and proper.

And for this act of kindness the petitioner shall as in duty bound ever pray."

2. A counter affidavit has been filed by the District

Project Coordinator (DPC), SSA, Balasore (opposite party

No. 3). It is stated that the EGS Centre at Sanabrahmapur

was managed by the NGO SPEED in which one Krushna

Chandra Behera was working as Education Volunteer with

effect from 16.6.2003 against the role strength of 33. The

engagement of the petitioner in the said centre against the

said forces was not admissible as per the prevailing rules

and such appointment was also not approved by the

competent authority. Therefore, he is not eligible to be

rehabilitated as Gana Shikhyak on the strength of the

government resolution dated 16.2.2008. Since the EGS

Centre had roll strength below 40, the engagement of

second Education Volunteer is not justified and the

petitioner has made a claim only to derive the benefit of

engagement as Gana Shikhyak. The Collector, Balasore

after verifying the relevant records and after giving

opportunity of hearing to the petitioner rightly rejected his

claim for engagement as Gana Shikyak.

3. The petitioner filed an additional affidavit

disputing the averments of the counter filed by opposite

party No.3. It is specifically stated that on enquiry by the

DPC Balasore on 01.12.2008, the BRCC, Soro vide report

dated 22.01.2009 intimated that the petitioner was engaged

as second Education Volunteer due to increase of roll

strength by Government Resolution dated 10.04.2003 and

approved by letter dated 20.5.2003 in which he joined on

12.4.2007 and continued up to 31.3.2008. It is therefore

clear that the petitioner was engaged as Education

Volunteer and hence deserves to be rehabilitated as Gana

Shikhyak as per government resolution.

4. Pursuant to direction issued by this court in

course of hearing, the Block Education Officer, Soro has

filed an affidavit specifically stating that from the students'

attendance register for the period from 1.4.2007 to

31.3.2008 of classes I to V maintained in two registers, it is

asserted that there were 42 students in the said classes

during the period and that two teachers namely, Krushna

Chandra Behera and Manoj Kumar Jena (petitioner) were

working. The BRCC also appeared in person and produced

the copies of the relevant attendance registers for perusal of

the court.

5. Heard Mr. S.B. Mohanty, learned counsel for the

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

appearing for the School and Mass Education Department.

6. Mr. Mohanty has argued that the impugned order

was passed by the Collector without application of mind

and consideration of the materials available on record. The

subsequent letter of the M.D. of the NGO SPEED and

enquiry report of the BRCC submitted to the DPC though

available on record were not considered by the collector. On

the contrary, the Collector took a rigid stand that the roll

strength of the EGS Centre was less than 40 and therefore

the engagement of the petitioner was not justified. This,

according to Mr. Mohanty is entirely contrary to the

materials on record for which the impugned order warrants

interference.

7. Mr. R.N. Acharya on the other hand, argues that

the roll strength at the relevant time has to be considered.

During the so-called engagement of the petitioner the roll

strength was less than 40 for which his engagement, if at

all, as Education Volunteer was not permissible in law.

Such engagement was also not approved by the

Government. Therefore the Collector committed no error in

rejecting his claim for rehabilitation as Gana Shikhyak.

8. It appears that originally, for the purpose of

universalization of elementary education, Education

Guarantee Scheme or EGS was made an integral part of

Sarva Shikshya Abhiyan and operationalized in Odisha

from the year 2001-02. The centers were run by NGOs. The

NGO, namely, Society for People's Integration Economics

and Environment Development (SPEED) managed the EGS

Centre at Sanabrahmapur. The petitioner was engaged as

Education Volunteer in Sanabrahmapur EGS Centre as per

appointment letter issued on 12.04.2007 by the President of

the said centre. Of course, said appointment letter does not

mention whether the engagement was as first or second

Education Volunteer. Be that as it may, the petitioner was

engaged and duly performed his duties as evident from his

signatures endorsed in the attendance register. One

Krushna Chandra Behera was engaged as the first

Education Volunteer. It appears that EGS centers were

upgraded to regular schools in course of time. This

necessitated disengagement of the Education Volunteers

engaged in the various EGS Centres across the state. This

also necessitated rehabilitation of the Education Volunteers

who were disengaged consequent upon abolition of the EGS

scheme. The Government therefore came up with the

resolution dated 16.2.2008 to rehabilitate such disengaged

Education Volunteers in EGS Centres. It was provided that

such disengaged Education Volunteers will be rehabilitated

as Gana Shikhyaks under Sarva Shikhya Abhiyan. They will

be engaged against the existing created vacancies of

Shikhya Sahayaks and the consolidated remuneration etc

will be borne out of SSA budget and that they will be

engaged in the government primary schools. A gradation

merit list of such Education Volunteers of Soro Block was

published by the District Project Coordinator, SSA as per

letter dated 04.04.2008 in which the name of the petitioner

finds place at serial number 69. The secretary of the NGO

SPEED submitted the required information to the BRCC,

Soro Block regarding the petitioner and other Education

Volunteers by his letter dated 23.4.2008 in which it was

clearly mentioned that the petitioner was engaged as second

Education Volunteer of Sanabrahmapur centre because the

roll strength was increased to 43.

9. Originally by order dated 22.12.2012, the

Collector rejected the claim for rehabilitation of the

petitioner as Gana Shikhyak mainly on the ground that

there was no material to show that the EGS Centre in

question deserved second/more education volunteer. Since

the said order has already been set aside by this court in

WP (c) No. 22964 of 2013, it is no longer necessary to make

any comment thereon. It would suffice to note that this

court while quashing the said order of the Collector remitted

the matter to him to rehear the representation of the

petitioner taking into consideration the enquiry report

submitted by the BRCC, Soro dated 22.01.2009 by affording

opportunity of hearing to all the parties. Pursuant to such

order the impugned order dated 20.9.2017 has been passed

in rejecting the claim of the petitioner again.

10. Perusal of the order reveals that as directed by

this Court, the Collector has indeed perused the report of

BRCC, Soro dated 22.1.2009 to observe that the petitioner

was engaged as Education Volunteer in the second post of

the said centre after the increase in roll strength. However

the Collector preferred to rely upon the report dated

3.3.2008 of the Secretary of NGO SPEED wherein it was

reported that one Education Volunteer was working in

Sanabrahmapur EGS Centre against the children strength

of 33. Accordingly the report of the BRCC was not

considered to be true on the face of the report submitted by

the organization running the centre. The correctness of the

order passed by the Collector is the issue for consideration

in the present application.

11. As already stated, in view of direction issued by

this Court during hearing of the present application, the

Block Education Officer, Soro, Balasore has filed an

affidavit enclosing copies of the attendance register of the

students of Class I to V for the period from 1.4.2007 to

31.3.2008. As per the said attendance registers the number

of students reading in classes I to V during the relevant

period was 42 and two teachers, including the petitioner

were also working. The Block Resource Centre Coordinator

also appeared personally before this court and produced the

relevant attendance registers for perusal of this court. It is

seen that the student strength was 42 during the relevant

period. In the enquiry report dated 22.01.2009, submitted

by the Block Resource Centre Coordinator (Annexure-17), it

is mentioned as under:

" That I visited to Sanabrahmapur EGS Centre in Sajanpur G.P. under this Bock and collected the report regarding the engagement of Manoj Kumar Jena, 2nd Ev. of the said centre from Krushna Prasad Behera 1st Ev., Mr. Behera has report in written statement (see Annexure-1) that after

increased the student strength for 2007-08, the committee was engaged Manoj Ku. Jena as per EGS guideline vide Resolution No.-24 dt.10.04.2008 (See Annexure-2) and approved vide letter no.-748 (50)/3 dt.20.5.03 of J.D. EGS/AIE Bhubaneswar and order No.- 46(50)/03 dt.26.03.03 of the Secretary SPEED, Soro and he has joined on 12.04.2007 as 2nd EV. and continued up to 31.3.2008. The resolution register, attendance of EVS & students are verified. He was not paid his honorarium till date. Also I verified the records available at SPPED and found that the Govt. was not released the funds for EVS for the period of 2007-08."

12. Therefore if the report of the BRCC is considered

along with the copies of the attendance registers of the

students during the relevant period and the affidavit sworn

by the Block Education Officer before this Court, it would

be clear that the number of students was more than 40 at

the relevant time, which justified the engagement of a

second Education Volunteer as per the scheme. As

contrasted against the above tell-tale evidence, the

Secretary of NGO SPEED in his letter dated 03.03.2008 has

forwarded a proposal for release of Grant for the period

2007-08 wherein the number of children enrolled in respect

of Sanabrahmapur is mentioned as 33. Surprisingly, again

in his letter dated 23.04.2008, the very same Secretary of

NGO SPEED has inter alia informed the BRCC, Soro Block

as follows:

"Report as follows:-

1. Manoj Kumar Jena. That Manoj Kumar Jena was the 2nd E.V. of Sanabrahmapur E.G.S. Centre under Sajanpur G.P. was engaged by the V.E.C. of concerned centre vide resolution 24 sitting dated on 12-04-2007 within the frame work of E.G.S. Guideline. As because the Roll strength was increased to 43.

Regarding the engagement of Manoj Kumar Jena as the 2nd EV. of above E.G.S. Centre was communicate to SPEED after the submission of E.V.S. status report which was submitted in the month of January. So we are unable to communicate his name as 2nd E.V. in the status report to S.S.A. Dist office Balasore, for enlistment as the continuing 2nd E.V. of the above E.G.S. Centre But latter on we have communicate his name to Dist office SSA for approval vide letter No.SPD/37a/08 Date 09-02-2008.

Therefore I am submitting herewith the following attachments for your kind perusal & appropriate necessary action. By which you may please be consider his name as 2nd E.V. of Sanabrahmapur E.G.S. Centre to become the Ganasikhyaka."

13. From the above narration, it is more than evident

that the letter dated 03.03.2008 of the Secretary of NGO

SPEED relied upon entirely by the collector by rejecting the

report submitted by the BRCC was not proper at all. In view

of the discrepancy pointed out above, the report of the

Secretary of NGO SPEED dtd. 03.03.2008 could not have

been taken into consideration at all, more so when the very

same Secretary in a subsequent letter clearly mentions that

the roll strength had increased to 43. Evidently, the

Collector has lost sight of the above discrepancy. Even

otherwise, the report of the BRCC and copies of the

attendance registers of the students for the relevant period

clearly reveal that the roll strength was more than 40. It

must be kept in mind that the copies of the attendance

registers have been enclosed to the affidavit sworn by the

District Education Officer and this court finds no reason to

doubt the authenticity thereof.

14. For the following reasons therefore, it is apparent

that the collector has not considered the report of the BRCC

in the proper perspective. If he had any reason to entertain

doubt as regards the correctness of such report then he

should have sought for other evidence such as the

attendance registers etc to ascertain the roll strength of

students during the relevant period. Instead of doing so the

Collector has relied upon a communication made by the

secretary of the NGO in which, for some strange reason, the

number of children enrolled has been mentioned as 33.

However in view of the subsequent communication made by

the NGO clarifying the position in detail, the earlier

communication dated 3.3.2008 loses its significance. In

such view of the matter, this Court is of the considered view

that the impugned order cannot be sustained in the eye of

law and therefore, deserves to be interfered with.

15. In the result, the writ petition succeeds and is

therefore, allowed. The impugned order dated 20.9.2017

passed by the Collector, Balasore is hereby quashed. The

Collector is directed to verify the original attendance

registers of the copies produced by the Block Education

Officer, Soro, the report of the BRCC, Soro and the letter

dated 23.04.2008 of the Secretary of NGO SPEED referred

above, to determine the correctness of the claim that the roll

strength was more than 40 at the relevant time and to

decide the matter afresh by granting opportunity of hearing

to the petitioner and by passing a reasoned order in

accordance with law. It goes without saying that if the

Collector is satisfied with regard to roll strength of the

centre at the relevant time being more than 40, he shall

pass necessary order allowing the claim of the petitioner for

being rehabilitated as Gana Shikhyak without any further

delay.

16. The whole exercise should be concluded within a

period of two months from the date of communication of

this order or on production of certified copy thereof by the

petitioner.

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

Sashikanta Mishra, Judge

Orissa High Court, Cuttack, The 13th September, 2022/ A.K. Rana, P.A.