Sonia Priyadarsani Panda vs State Of Odisha And Others
2023 Latest Caselaw 950 Ori

                      ORISSA HIGH COURT: CUTTACK
AFR
                           W.P(C) NO. 162 OF 2023

         In the matter of an application under Articles 226 and 227
         of the Constitution of India.
                                  ---------------

Sonia Priyadarsani Panda ..... Petitioner

-Versus-

         State of Odisha and others         .....           Opp. Parties


              For Petitioner      :   M/s. Kunal Kumar Swain,
                                      K. Swain and J.R. Khuntia,
                                      Advocates

              For Opp. Parties    :   Mr. S. Jena, Standing Counsel
                                      for S&ME Department.


         P R E S E N T:

               THE HONOURABLE DR. JUSTICE B.R.SARANGI

                      Date of Judgment : 30.01.2023


 DR. B.R. SARANGI, J.     The petitioner, by way of this writ petition,

seeks to quash Clause-3(b)(5) of the advertisement dated

23.11.2022 issued by the Odisha Staff Selection

Commission, Bhubaneswar under Annexure-2, so far as

the qualification prescribed for the post of Classical Teacher

(Sanskrit) is concerned or in the alternative to include M.A. in Sanskrit with 50% marks as one of the essential

qualification for the post of Classical Teacher (Sanskrit),

and to issue direction to the opposite parties to accept the

online/offline application of the petitioner for the post of

Classical Teacher (Sanskrit) and permit her to appear in the

examination to be held for recruitment to the said post,

within a time stipulated.

2. The factual matrix of the case, in brief, is that an

advertisement was floated by the Odisha Staff Selection

Commission, Bhubaneswar on 23.11.2022 vide Annexure-2

to fill up 7540 posts of Regular Teachers for Government

Secondary Schools under the School and Mass Education

Department, Odisha, Bhubaneswar. As per the said

advertisement dated 23.11.2022, online registration of

application was to start from 11.12.2022 and last date for

submission of application was fixed to 09.01.2023.

Subsequently, vide notice dated 09.12.2022, the date of

online registration of application was changed from

11.12.2022 to 12.12.2022 and the last date for submission

of application was also changed from 09.01.2023 to

10.01.2023 due to some technical issues.

2.1 In the advertisement dated 23.11.2022, for the

post of Classical Teacher (Sanskrit), the following

qualification was prescribed under Clause-3(b)(5), which is

extracted hereunder:-

"1. Bachelors Degree with Sanskrit as one of the elective / optional / Hons. / pass subject from a recognized university with minimum 50% marks in aggregate (45% for SC/ST/PWD/SEBC Candidates) And

Shiksha Shashtri (Sanskrit) a course prescribed by NCTE, from a recognized University / Institution / B.Ed from any NCTE recognized institution.

Or

2. Shashtri in Sanskrit with minimum 50% of marks in aggregate (45% for SC/ST/PWD/SEBC Candidates) from a recognized University / Institution with 50% marks in aggregate (45% for SC/ST/PWID/SEBC Candidates) And

Shiksha Shastri (Sanskrit) a course prescribed by NCTE, from a recognized University / Institution / B.Ed. from any NCTE recognized Institution."

2.2 According to the petitioner, the aforesaid

qualification prescribed for the post of Classical Teacher

(Sanskrit) is contrary to National Council for Teacher

Education (Determination of Minimum Qualifications for

Persons to be recruited as Education Teachers and Physical

Education Teachers in Pre-primary, Primary, Upper

Primary, Secondary, Senior Secondary or Intermediate

Schools or Colleges) Regulations, 2014, which provides the

minimum academic and professional qualification for the

post of teachers for all categories of schools starting from

Private/Recognized/Government Schools. The said

Regulations, being framed under the National Council for

Teacher Education Act, 1993, will prevail over any other

State laws.

2.3 So far as the qualification of the petitioner is

concerned, she has passed B.A. with Sanskrit Honours

with 50% marks from Utkal University, B.Ed. in Sanskrit

from Rastriya Sanskrit Vidyapeetha, Tirupati, M.A. in

Sanskrit and M.Phil. in Sanskrit from Sri

Chandrasekharendra Saraswathi Viswa Mahavidyalaya,

Enathur, Kanchipuram and has also passed Odisha

Secondary School Teacher Eligibility Test, 2021 from the

Board of Secondary Education, Odisha, Cuttack. However,

in the advertisement dated 23.11.2022, since M.A. with

Sanskrit with 50% marks, which is one of the prescribed

qualifications as per NCTE Regulations, 2014, has not been

included, the petitioner has challenged such advertisement

in the present writ petition.

4. Mr. K.K. Swain, learned counsel appearing for

the petitioner contended that Clause-2 of the NCTE

Notification, which has been filed as Annexure-4 to this

writ petition, deals with applicability and Clause-4 thereof

prescribes the qualification for recruitment. Further, First

Schedule to Clasue-6 prescribes that for Secondary/High

School the minimum academic and professional

qualification would be graduate/ post graduate from

recognized University with at least 50% marks in either

Graduation or Post Graduation (or its equivalent) and

Bachelor of Education (B.Ed) from National Council for

Teacher Education recognized institution. Therefore, the

qualification prescribed in the advertisement for the post of

Classical Teacher (Sanskrit) is contrary to the National

Council for Teacher Education (Determination of Minimum

Qualification for Persons to be recruited as Education

Teachers and Physical Education Teachers in Pre-primary,

Primary, Upper Primary, Secondary, Senior Secondary or

Intermediate Schools or Colleges) Regulation, 2014. By

producing the resolution passed on 05.09.2011, it is

contended by learned counsel for the petitioner that under

Clause-8(iii) of the resolution, with regard to up-gradation

of the existing posts of Classical (Sanskrit) Teachers, it has

been provided that consequent upon fixation of revised

common qualification, as mentioned in Para (i), the post of

Classical (Sanskrit) Teachers in Government, Fully Aided

and Block Grant High Schools is upgraded to the status

with scale of pay at par with Trained Graduate Teachers

vis-a-vis Hindi Teachers of High Schools and, therefore,

fixation of qualification made in the advertisement itself

cannot be sustained in the eye of law and, consequentially,

the petitioner seeks for inclusion of the qualification M.A. in

Sanskrit with 50% marks as one of the essential

qualifications for the post of Classical Teacher (Sanskrit).

4.1 May it be noted that the matter was placed

before this Court on 05.01.2023, on which date, this Court

made a query to Mr. K.K. Swain, learned counsel appearing

for the petitioner to satisfy the Court as to if the N.C.T.E.

guidelines, which have been relied upon by the petitioner in

Annexure-4, are applicable to the case of Classical

Teachers or not. But learned counsel for the petitioner has

not been able to satisfy the applicability of Annexure-4 so

far as Classical Teachers are concerned.

5. Mr. S. Jena, learned Standing Counsel for School

& Mass Education Department contended that NCTE

guideline is only applicable to the trained graduate

teachers, as is evident from the first schedule of the

regulations, and that the expression does not contain

classical teacher. Therefore, no inference can be drawn by

taking into consideration the Graduate or Post Graduate

qualification from a recognized university having a similar

qualification applicable to the classical teachers. It is

further contended that the resolution dated 05.09.11, which

has been filed in Court today, has already been superseded

by virtue of the subsequent resolution dated 18.11.2020

passed by the Government of Odisha in School & Mass

Education Department. Therefore, the petitioner cannot

resort to the superseded resolution to enure benefit to him.

It is further contended that so far as recruitment of teachers

in Government Secondary Schools is concerned, the

resolution dated 11.11.2022 prescribes that the

advertisement is to be published by the Odisha Staff

Selection Commission in adherence to the said resolution.

Thereby, no illegality or irregularity has been committed by

the authority in issuing the advertisement so as to call for

interference by this Court at this stage.

6. This Court heard Mr. K.K. Swain, learned counsel

appearing for the petitioner and Mr. S. Jena, learned

Standing Counsel for School & Mass Education Department

in hybrid mode and perused the records. On the consent of

learned counsel for the parties, this writ petition is being

disposed of finally at the stage of admission.

7. It is of relevance to note that the National Council

for Teacher Education, in exercise of the powers conferred

under Clause (dd) of Sub-section (2) of Section 32 read with

Section 12A of the National Council for Teacher Education

Act, 1993 (73 of 1993) and in supersession of the National

Council for Teacher Education (Determination of Minimum

Qualifications for Recruitment of Teachers in Schools)

Regulations, 2001, issued a notification on 12.11.2014. In

the said notification it has been provided that except as

respects things done or omitted to be done before such

supersession, the said regulations shall be applicable for

recruitment of teachers and Physical Education Teachers in

any recognized school imparting Pre-primary, Primary,

Upper Primary, Secondary or Senior Secondary or

Intermediate Schools or Colleges imparting senior

secondary education. The qualifications for recruitment and

promotion of teachers are prescribed under Rule-4. The first

schedule, which has been published under Sub-regulation

(2) of Regulation (4), prescribes minimum academic and

professional qualifications for recruitment to the

Secondary/ High School (For Classes IX-X) under Sl. No.4.

The said rule does not contain any qualification for the post

of Classical Teacher. Therefore, the petitioner's contention

and the pleadings made in paragraph-7 of the writ petition

that the qualification prescribed by the Odisha Staff

Selection Commission, while issuing advertisement for the

post of Classical Teacher (Sanskrit), is contrary to the

National Council for Teacher Education (Determination of

Minimum Qualification for Persons to be recruited as

Education Teachers and Physical Education Teachers in

Pre-primary, Primary, Upper Primary, Secondary, Senior

Secondary or Intermediate Schools or Colleges) Regulation,

2014, cannot be sustained in the eye of law, since the said

Regulation 2014 does not contain any qualification

prescribed for the Classical Teacher (Sanskrit). Thereby, the

petitioner has not approached this Court with clean hands

rather tried to place something on record to get an undue

benefit. Consequentially, the relief sought cannot be

granted.

8. The further question raised before this Court is

with regard to applicability of the resolution dated

05.09.2011. But the said resolution having been

superseded by the subsequent resolution dated 18.11.2020,

as has been contended by the learned Standing Counsel for

School & Mass Education Department, the qualification

prescribed in the resolution dated 05.09.2011 cannot also

be sustained.

9. Apart from the above, now the resolution dated

11.11.2022 for Recruitment of Teachers in Government

Secondary Schools has come into force. In the said

resolution, the minimum academic and professional

qualifications for the Classical Teachers have been

prescribed. Therefore, referring to such qualifications, if the

advertisement dated 23.11.2022 under Annexure-2 has

been issued for recruitment of teachers, including classical

teachers, this Court is not inclined to substitute any

qualification or issue any direction to provide the benefit as

claimed by the petitioner in the present writ petition.

10. Moreover, on assessment of the comparative

merit of the case, this Court finds that by suppressing the

resolutions dated 11.11.2022 and 18.11.2020, the

petitioner wants to take advantage of the resolution dated

05.09.2011. Such action of the petitioner amounts to

suppression of material facts, which this Court does not

appreciate.

11. In S.J.S. Business Enterprises (P) Ltd v. State

of Bihar, (2004) 7 SCC 166, the apex Court at paragraph-

13 of the judgment observed that as a general rule,

suppression of a material fact by a litigant disqualifies such

litigant from obtaining any relief. The suppressed fact must

be a material one in the sense that had it not been

suppressed it would have had an effect on the merits of the

case. It must be a matter which was material for the

consideration of the Court, whatever view the Court may

have taken.

12. In Pushpam Pharmaceutials Co. v. Collector

of Central Excise, 1995 Supp(3) SCC 462, while

considering the provision of Section 11-A of Central Excise

& Salt Act, the apex Court held that the expression

'suppression of fact' is to be construed strictly because it

has been used in company of such strong words as fraud,

collusion or willful default. It does not mean omission. The

act may be deliberate.

13. In Collector of Custorms v. Tin Plate Co. of

India Ltd., (1997) 10 SCC 538, while considering Section

28 (1) of Customs Act, the apex Court held that the

expression 'suppression of facts' would mean a deliberate or

conscious omission to state a fact with the intention of

deriving wrongful gain.

14. In view of such position, this Court is not

inclined to entertain this writ petition. Thus, the writ

petition merits no consideration and the same stands

dismissed. However, there shall be no order as to costs.

(DR. B.R. SARANGI) JUDGE

Orissa High Court, Cuttack The 30th January, 2023, Arun/GDS