Orissa High Court
Bijoylaxmi Behera vs State Of Odisha And Others on 4 January, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P. (C) No. 36559 of 2022
Bijoylaxmi Behera ..... Petitioner
Mr. S.K. Das, Advocate
Vs.
State of Odisha and others ..... Opposite Parties
Mr. S. Jena, SC, S&ME Deptt
CORAM:
DR. JUSTICE B.R. SARANGI
ORDER
04.01.2023
Order No. W.P.(C) No. 36559 of 2022 & I.A. No. 17946 of 2022
01.
This matter is taken up through hybrid mode.
2. Heard Mr. S.K. Das, learned counsel for the petitioner and Mr. S.
Jena, learned Standing Counsel for School & Mass Education
Department.
3. The petitioner has filed this writ petition seeking direction to
opposite party no.3 either to accept the online application form of the
petitioner or the hardcopy of her application form for the post of TGT
(Arts) pursuant to the advertisement dated 23.11.2022 under Annexure-3
and to allow her to participate in the process of selection as she is
otherwise eligible for the post of TGT (Arts) as her case is squarely
covered by the ratio decided in the case of Kabita Dhal v. State of
Odisha and others, 2014 (II) OLR-290.
4. Mr. S.K.Das, learned counsel for the petitioner vehemently
contended that pursuant to the advertisement issued by the opposite
parties on 23.11.2022, the minimum educational qualification for
submission of the application in graduation has been prescribed as 45%.
Since the petitioner has secured 44.5% thereby the same should have
been rounded up to 45% to enable the petitioner to make the application
for the post. It is further contended that in Kabita Dhal (supra) since
54.6 % has been rounded to 55%, applying the same ratio to the present
case, the benefit should have been extended to the petitioner.
5. Mr. Jena, learned Standing Counsel for School & Mass Education
Department contended that the petitioner is not entitled to get the relief,
which has been asked in the present writ petition and, as such the
judgment of Kabita Dhal (supra) is distinguishable from the present
case. According to him while passing the order in Kabita Dhal (supra),
this Court has distinguished the judgment of the apex court in the case of
Orissa Public Service Commission and another v. Rupashree
Choudhury and another, (2011) 8 SCC 108 and taken into
consideration the circular issued by the Government of Orissa in
Education and Youth Services Department vide letter No. 32578 (2)-III
E/-55/89-EYS dated 25.07.1989. Therefore, this Court came to hold that
54.6% mark secured by the petitioner therein be rounded to 55% as per
the said circular. But in the present case, it is contended that since the
minimum eligibility criteria has been fixed as 45%, and, as such, since
the petitioner admittedly has secured 44.5% of mark, the petitioner
cannot claim that it should be rounded to 45%. Rather similar question
was there before the High Court of Himachal Pradesh at Shimla in Civil
Writ Petition No. 578 of 2021 decided on 31.05.2022, where the Court
has directed to consider the case rounding the percentage of mark, but
the same has been stayed by the apex Court in Special Leave to Appeal
(C) No. 17914 of 2022 vide order dated 31.10.2022 relying on the
decision rendered in the case of Rupashree Chowdhary (supra) and the
matter is still pending before the apex Court. He further contended that
the petitioner before the High Court of Himachal Pradesh in Civil Writ
Petition No. 578 of 2021 had secured 44.8% of marks and claimed to
round up the same to 45%. Therefore, according to him in that view of
the matter and in the changed scenario the ratio of Kabita Dhal (supra)
may not apply to the present case. Relying on the aforesaid order passed
by the apex Court, he contended that since with the self same relief, the
matter is pending before the apex Court, if any order is passed in the
present writ petition, the opposite parties will be prejudiced.
6. Issue notice to the opposite parties both in the writ petition as well
as in the I.A.
7. Two extra copies of the brief be served on learned Standing
Counsel for School & Mass Education Department appearing for
opposite parties 1 and 2 within three days for enabling him to obtain
instruction and file counter affidavit.
8. Requisites for issuance of notice to opposite party no.3 by speed
post be filed within three days. The notice be issued fixing short
returnable date.
9. Accept one set of process fee.
Arun (DR. B.R. SARANGI)
JUDGE
