Orissa High Court
Harapriya Mohapatra And Others vs State Of Odisha And Others on 31 March, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.A. No. 265, 266, 276, 277, 278, 279, 280, 281,
282, 283, 284, 286, 287, 288 and 458 of 2015
W.A. No.265 of 2015
Harapriya Mohapatra and Others .... Appellants
-versus-
State of Odisha and Others .... Respondents
W.A. No.266 of 2015
Gopal Krushna Choudhury .... Appellant
-versus-
State of Odisha and Others .... Respondents
W.A. No.276 of 2015
Namita Samantaray .... Appellant
-versus-
State of Odisha and Others .... Respondents
W.A. No.277 of 2015
Sanjulata Patra .... Appellant
-versus-
State of Odisha and Others .... Respondents
W.A. No.278 of 2015
Krushna Priya Dash .... Appellant
-versus-
State of Odisha and Others .... Respondents
Page 1 of 13
W.A. No. 265, 266, 276, 277, 278, 279, 280, 281,
282, 283, 284, 286, 287, 288 and 458 of 2015
W.A. No.279 of 2015
Narendra Kumar Martha .... Appellant
-versus-
State of Odisha and Others .... Respondents
W.A. No.280 of 2015
Bibekananda Swain .... Appellant
-versus-
State of Odisha and Others .... Respondents
W.A. No.281 of 2015
Bhagirathi Behera .... Appellant
-versus-
State of Odisha and Others .... Respondents
W.A. No.282 of 2015
Manoj Kumar Narendra .... Appellant
-versus-
State of Odisha and Others .... Respondents
W.A. No.283 of 2015
Upendra Kumar Nayak .... Appellant
-versus-
State of Odisha and Others .... Respondents
W.A. No.284 of 2015
Prasanta Kumar Baral .... Appellant
-versus-
State of Odisha and Others .... Respondents
Page 2 of 13
W.A. No. 265, 266, 276, 277, 278, 279, 280, 281,
282, 283, 284, 286, 287, 288 and 458 of 2015
W.A. No.286 of 2015
Akshaya Kumar Sahoo .... Appellant
-versus-
State of Odisha and Others .... Respondents
W.A. No.287 of 2015
Sunita Dash .... Appellant
None
-versus-
State of Odisha and Others .... Respondents
W.A. No.288 of 2015
Sagarika Raipitam .... Appellant
None
-versus-
State of Odisha and Others .... Respondents
AND
W.A. No.458 of 2015
Anjana Dei .... Appellant
-versus-
State of Odisha and Others .... Respondents
Advocates appeared in the cases:
For Appellants : Mr. B.D. Satpathy, Advocate
(In W.A. No.265 of 2015)
For Respondents : Mr. M.K. Khuntia
Additional Government Advocate
Page 3 of 13
W.A. No. 265, 266, 276, 277, 278, 279, 280, 281,
282, 283, 284, 286, 287, 288 and 458 of 2015
CORAM:
THE CHIEF JUSTICE
JUSTICE G. SATAPATHY
JUDGMENT
31.03.2023
Dr. S. Muralidhar, CJ.
1. These appeals are directed against the common judgment dated 8th
January, 2015 passed by the learned Single Judge dismissing the writ
petitions filed by the Appellants.
2. These appeals were filed on 12th May, 2015 and by an order dated
22nd September, 2016 the delay in filing the appeal was condoned.
Notice was accepted in the appeals on 20th September, 2017.
3. It must be noted at the outset that in the lead case, i.e., W.A.
No.265 of 2015, a counter affidavit dated 15th February, 2018 has
been filed by the District Project Coordinator, Sarba Sikshya
Abhiyan (SSA), Khurdha but, no rejoinder has been filed to the said
affidavit.
4. While all the appeals involve more or less similar facts, for the
sake of convenience, the facts in the lead matter, i.e., W.A. No.265 of
2015 are hereafter discussed.
5. An advertisement was issued on 14th October, 2006 by the
Director, Elementary Education inviting applications for the
recruitment of the Sikshya Sahayak (SS) in Upper and Primary
Schools of the different Blocks in the district of Khurda. The Block
wise vacancy position was indicated in the advertisement. Among the
W.A. No. 265, 266, 276, 277, 278, 279, 280, 281,
282, 283, 284, 286, 287, 288 and 458 of 2015
stipulations was that "only a permanent resident of a Block can apply
to the said Block". Among the clauses in the advertisement, relevant
to the present case was Clause 13 which reads as under:
"13. Application shall be made as per format given below.
Certificate of Educational qualification and Mark sheet
(attested copy), Employment Registration Certificate,
Caste and Resident certificate shall be enclosed with the
application failing which the application shall be rejected.
Applications shall be submitted in the office of concerned
Zilla Parishad by 01.11.2006. In case of submission of
forged certificate, necessary action be taken as per law and
engagement be cancelled. Selection of Sikhya Sahayak for
29 districts Block unit wise be finalized in one day. The
Collector-Chief Executives shall make special preparation
and engaged senior officers for verification work."
6. The Appellants applied pursuant to the above advertisement
enclosing residential certificates. As far as the Appellant in W.A.
No.265 of 2015 is concerned, the residential certificate showed her to
be a resident of Tangi Block under the Khurda District. Similar
certificates were enclosed by other Applicants/Appellants.
7. The stipulation that only a permanent resident of a Block can
apply to the said Block was questioned in this Court by two of the
Applicants (not the present Appellants) in W.P.(C) No.14133 and
14981 of 2006. The said writ petitions were disposed of by a
common judgment dated 23rd August, 2007 in Chandramani Jena v.
State of Orissa, 2007 (II) OLR-577 holding the said condition to be
unconstitutional. In other words, it was held that a candidate who was
otherwise eligible cannot be debarred from being appointed as an SS
on the sole ground of residence.
W.A. No. 265, 266, 276, 277, 278, 279, 280, 281,
282, 283, 284, 286, 287, 288 and 458 of 2015
8. Thereafter a similar W.P.(C) No.11799 of 2007 was disposed of by
this Court an order dated 20th November, 2007 directing the
Petitioners therein to file representations to the Director, Elementary
Education-cum-OPEPA requiring him to dispose them of keeping in
view the judgment of this Court in Chandramani Jena v. State of
Orissa (supra). After their representations were rejected by the
Director by an order dated 2nd September 2008, a second batch of
writ petitions being W.P.(C) No.1472 of 2009 and batch (Prasan
Kumar Rana v. State of Orissa) was filed. The said Petitioners
contended that despite the judgment in Chandramani Jena v. State
of Orissa (supra), and despite their names being shown in the merit
list, they were not given appointment only on the ground that they
did not satisfy the residence requirement.
9. The explanation offered by the State in response to the above writ
petitions was that at the time of original selection, the earlier
Resolution dated 31st May, 2006 stipulating the residential
requirement was in force and since the residential certificates in
respect of the Tangi Block had been cancelled by the competent
authority, the concerned candidates were not selected.
10. Interestingly, in the judgment dated 31st March, 2011 disposing
of the above batch of writ petitions in Prasan Kumar Rana v. State
of Orissa (supra), the learned Single Judge noted as under:
"It is not the case of the opp. Parties that the petitioners
incur any other ineligibility to be considered for
engagement as Sikhya Sahayak in the State. Therefore,
opp. Parties have failed to assign any reason for which the
petitioners should be deprived of their engagement in spite
of selection under Annexure-2. Order passed under
W.A. No. 265, 266, 276, 277, 278, 279, 280, 281,
282, 283, 284, 286, 287, 288 and 458 of 2015
Annexure-5 is contrary to specific direction of this Court
to consider petitioners' applications and is illegal. Orders
passed by the opposite party no.2 rejecting the
representations are liable to be quashed."
11. The Appellant in W.A. No.265 of 2015 has averred that she
approached this Court with W.P.(C) No.343 of 2008 directing her to
file a representation which was rejected by the Director, Elementary
Education on 2nd September, 2008 distinguishing her case from those
in Chandramani Jena v. State of Orissa (supra). That order was not
challenged immediately. After the orders passed by the learned
Single Judge in Prasan Kumar Rana v. State of Orissa (supra), 264
of the candidates, who were not earlier selected only because their
residential certificates were cancelled, were after the order dated 11th
July, 2011 in W.P.(C) No.12228, 12229, 12231 and 12292 of 2011
and the order in Prasan Kumar Rana v. State of Orissa (supra) re-
engaged. It is only, thereafter, the present Appellants filed W.P.(C)
No.31033 of 2011 which was disposed of on 26th July, 2012 by the
following order:
"04. 26.07.2012 Heard Mr. S.K. Das, learned
counsel for the petitioners and learned Standing Counsel
for the School and Mass Education Department.
2. Petitioners' case is that pursuant to the advertisement for
engagement as Sikhya Sahayak, they have applied. Though
they have been selected to be engaged as Sikhya Sahayak,
they are not getting appointment because they do not
belong to the Block area or they have applied to a Block
other than the Home Block.
3. Mr. Das, learned counsel for the petitioners states that
this issue is no more res integra. Similarly situated persons
have challenged the notification confining the petitioners'
right to apply to their Home Block only and this Court vide
judgment dated 23.8.2007 in the case of Sri Chandramani
Jena and others v. State of Orissa and others, reported in
W.A. No. 265, 266, 276, 277, 278, 279, 280, 281,
282, 283, 284, 286, 287, 288 and 458 of 2015
2007 (II) OLR-577 held that any person who satisfies the
criteria of educational qualification and other eligibility
condition, shall be entitled to apply for appointment to the
post of Swechhasevi Sikhya Sahayak despite the fact that
he or she does not stay within any Block where such
appointment will be made. In other words, there can be no
disqualification on the ground of residence. It is further
submitted that pursuant to the order of this Court dated
31.3.2011 passed in W.P.(C) No.6242 of 2010 under
Annexure-6 and the judgment dated 11.7.2011 passed in
W.P.(C) Nos.12228, 12229, 12231 & 12292 of 2011 some
of the selected candidates, who were not given
appointment on the ground that they do not belong to the
Home Block, are engaged. He also submits that the
petitioners mentioned herein above were similarly situated
persons. Therefore, the benefit granted in the above
order/judgment should be extended to the petitioners.
4. Learned Standing Counsel for the School and Mass
Education Department submits that the cases upon which
learned counsel for the petitioners have not challenged the
order of rejection under Annexure-5 passed by the
Director, OPEPA, Bhubaneswar.
5. Mr. Das, learned counsel for the petitioners submits that
the order passed by the Director, OPEPA under Annexure-
5 which has been quashed by this Court, the name of the
above petitioners are included. Therefore, the judgment is
squarely applicable to the petitioners. It is further
submitted that since Annexure-5 passed by the Director,
OPEPA, Bhubaneswar has been quashed, there is no need
to further challenge the same Annexure-5.
6. In view of the same, the writ petitions mentioned above
are disposed of with a direction to the opposite parties to
consider the petitioners case in terms of the above
order/judgment and engagement should be given to them
within a period of eight weeks from the date of receipt of
certified copy of this order, if their cases are covered by
the above order and judgment.
Urgent certified copy of this order be granted on proper
application."
W.A. No. 265, 266, 276, 277, 278, 279, 280, 281,
282, 283, 284, 286, 287, 288 and 458 of 2015
12. In all there were 36 such cases before the learned Single Judge
and, therefore, all of them were taken up together for consideration.
Inter alia it was pointed out by the State that in a letter dated 1st
March, 2013 addressed to the Collector-cum-CEO, Zilla Parishad,
Khurda, it was stated that after perusal of the counter affidavits filed
in the writ petitions, it was noticed that "the Residence Certificates of
the Petitioners were not found to be genuine, for which, the
candidatures of the Petitioners were rejected by the Authority. As
such, the cases of the Petitioners are not covered by the
order/judgment dt.23.08.2007 in case of Sri Chandramani Jena and
others."
13. The cases of the said Petitioners were, therefore, asked to be
considered individually in order to determine whether in fact they
were covered by the judgment in Chandramani Jena v. State of
Orissa (supra).
14. Thereafter, the Collector, Khurda on 16th August, 2013 passed a
common order in all the 36 cases noting inter alia as under:
"In WP(C) No.23124/11, 31754/11 & 33338/11 the
petitioners had produced forged residence certificates with
their Application Forms for which their candidature were
rejected vide Notification No.118 Dtd.21.12.06 of DPO,
SSA, Khordha.
In WP(C) No.16773/11, 33329/11, 33331/11, 33336/11 &
19757/11, the concerned Tahasildar in their 1st letter had
given report as "No such person/ Not available".
Subsequently, in the 2nd letter the Tahasildar, Tangi had
cancelled the residence certificates in three cases under
Rule-07 of Orissa Misc. Certificates Rule, 1984. On the
report of Tahasildar, Tangi & Banpur, the candidatures of
W.A. No. 265, 266, 276, 277, 278, 279, 280, 281,
282, 283, 284, 286, 287, 288 and 458 of 2015
these five candidates were also cancelled vide Notification
No.1553 Dt.16.04.07 of DPO, SSA, Khordha.
Out of the rest 28 cases {36-(3+5)}, the Tahasildar, Tangi
in 24 cases had cancelled the residence certificates by
exercising his power under Rule-07 of Orissa Misc.
Certificate Rules, 1984. As such, their application forms
became incomplete and these candidates rendered
themselves ineligible to apply for the post of SS as per
specification made in the advertisement dated 13.10.2006.
In other four cases (28-24), the Tahasildar, Banpur had
given adverse report for which their candidatures were also
cancelled vide Notification No.1553 Dt.16.04.07 of DPO,
SSA, Khordha.
As it would be evident from the above observations, it is
clear that the candidature of all the 36 petitioners were
cancelled due to submission of forged certificates or due to
cancellation of their residence certificates by the
Tahasildar or due to adverse report by the concerned
Tahasildar on genuineness of the certificate. As such these
36 cases are not identical with the case of Sri Chandramani
Jena. This observation was also communicated by the
Govt. vide letter dated 01.03.13."
15. Thereafter, the present round of writ petitions, i.e., W.P.(C)
No.18346 of 2013 and batch were filed by the present Appellants
which have been dismissed by the learned Single Judge by the
impugned judgment dated 8th January, 2015.
16. Inter alia, it has been noted in the impugned order by the learned
Single Judge as under:
"(i) Although the action of the present Opp. Parties in
cancelling the candidature of the present petitioners on the
ground of residence is bad in view of the judgment
rendered in the case of Chandramani Jena and others
(supra), the present petitioners having participated in the
above said selection process and approached this Court
after being unsuccessful and particularly after delivery of
judgment in the case of Chandramani Jena and others
W.A. No. 265, 266, 276, 277, 278, 279, 280, 281,
282, 283, 284, 286, 287, 288 and 458 of 2015
(supra) are fence sitters. They cannot claim engagement
without arraying the persons who are likely to be affected
in case they succeed in the writ petitions."
"(ii) The present petitioners cannot on the one hand
question the cancellation of their candidature on the
ground of residence in view of the judgment passed in the
case of Chandramani Jena and others (supra) and at the
same time seek engagement out of the panel list made
pursuant to advertisement legality of which is challenged
by them."
"(iii) Further it is revealed from Annexure-A/4 to the
counter affidavit filed by the District Project Coordinator,
SSA, Khurda that the residential certificates of the present
petitioners had already been cancelled from 6.2.2007 and
the present petitioners approached this Court for the first
time long thereafter. They never challenged the terms of
the advertisement at the threshold. Rather they participated
in the selection process by obtaining certificates in support
of their residence which were subsequently cancelled. By
the time interim order dtd.4.4.2007 was passed in the case
of Chandramani Jena and others (supra), the selection
was already over in respect of Khurda district by way of
publication of select list and giving engagement in
different phases."
17. This Court has heard the submissions of Mr. B.D. Satpathy,
learned counsel appearing for the Appellant (in W.A. No.265 of
2015) and Mr. M.K. Khuntia, learned Additional Government
Advocate appearing for the Respondents/State.
18. At the outset, it must be noticed that both in the counter affidavit
filed in writ petition as well as in the lead matter being W.A. No.265
of 2015, the stand of the State has been explicitly stated as under:
"That, it is humbly submitted that the Residence
Certificates of all the applicants along with the petitioner
have been reviewed under Rule-7 of Orissa Misc.
Certificate Rules 1984 and cancelled by the Tahasildar,
W.A. No. 265, 266, 276, 277, 278, 279, 280, 281,
282, 283, 284, 286, 287, 288 and 458 of 2015
Tangi where found not to be genuine. This fact of
cancellation was reported vide Letter No.289 Dt.06.02.07.
This decision of the Tahasildar, Tangi was duly admitted
by the petitioner in earlier writ application mentioning
therein that she was wrongly issued residential certificate.
Copy of letter No.289 dt.06.02.2007 is enclosed as
Annexure-A/4.
6. That, it is humbly submitted that, on cancellation of
Residence Certificate of the petitioner by the Tahasildar,
Tangi by exercising his power under rule-07 of Odisha
Misc. Certificate Rule 1984, the application form became
in-complete and the candidate rendered herself ineligible
for the post of SS as per stipulation made by the Director,
Elementary Education, Odisha in Point-13 of the
advertisement dtd.14.10.2006 and thus her candidature was
cancelled vide Notification No.1553 Dt.16.04.2007. Copy
of Notification dtd.16.04.07 is enclosed herewith as
Annexure-B/4.
7. That, it is humbly submitted that, the petitioners
candidature was cancelled not because of the fact that, she
belongs to other block than the block she applied for, but
because of the fact upon cancellation of her residence
certificate by the concerned Tahasildar, her application
was incomplete in absence of residence certificate."
19. The stand of the State in each of the connected matters is
identical. Despite the above stand being made explicit in the counter
affidavits filed not only in the writ petitions but in the lead writ
appeal being W.A. No.265 of 2015, the Appellants have chosen not
to file any rejoinder either in the writ petitions or in the present writ
appeals to contradict the above averments. In other words, it is plain
that the present Appellants cannot claim parity with the Appellants in
Chandramani Jena v. State of Orissa (supra) or Prasan Kumar
Rana v. State of Orissa (supra). They stand on a different footing as
has been noted by the learned Single Judge in the impugned
judgment.
W.A. No. 265, 266, 276, 277, 278, 279, 280, 281,
282, 283, 284, 286, 287, 288 and 458 of 2015
20. Consequently, the Court is not persuaded that the present
Appellants have made out a case to being treated on par with the
aforementioned Appellants in Chandramani Jena v. State of Orissa
(supra). It is accordingly concluded that they were not entitled to the
relief as prayed for in the writ petitions. The writ petitions were
rightly rejected by the learned Single Judge.
21. No grounds have been made out for interference in these writ
appeals and they are accordingly dismissed but in the circumstances
with no order as to costs.
(Dr. S. Muralidhar)
Chief Justice
(G. Satapathy)
Judge
S.Behera/ Jr. Steno
W.A. No. 265, 266, 276, 277, 278, 279, 280, 281,
282, 283, 284, 286, 287, 288 and 458 of 2015
