Orissa High Court
Anita Mohapatra vs State Of Odisha And Others on 29 September, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK.
WA No.1437 of 2022
WA No.1255 of 2022
WA No.1256 of 2022
WA No.1257 of 2022
WA No.1258 of 2022
WA No.1259 of 2022
WA No.1260 of 2022
From the common judgment dated 07.09.2022 passed by the Hon'ble Single Judge in
WPC (OAC) No.3375(C) of 2015, WPC (OAC) No.2373 of 2014, WPC(OAC) No.
2222 of 2015, WPC(OAC) No. 2219 of 2015, WPC(OAC) No. 2221 of 2015,
WPC(OAC) No. 2223 of 2015 and WPC(OAC) No. 2220 of 2015
WA No.1437 of 2022
Anita Mohapatra ...... Appellant
-Versus-
State of Odisha and others ...... Respondents
----------------------------------------------------------------------------------------
For Appellant :Dr. J.K. Lenka, Advocate
For Respondents :Mr. P.K. Muduli, AGA
-----------------------------------------------------------------------------------------
WA No.1255 of 2022
Purna Chandra Nayak & Another ...... Appellants
-Versus-
State of Odisha and others ...... Respondents
----------------------------------------------------------------------------------------
For Petitioner :Ms. Pami Rath, Senior Advocate
Ms. G. Gumansingh, Advocate
State of Odisha and others: Mr. P.K. Muduli, AGA
-----------------------------------------------------------------------------------------
2
WA No.1256 of 2022
Suchismita Mohapatra ...... Appellant
-Versus-
State of Odisha & others ...... Respondents
----------------------------------------------------------------------------------------
For Appellant : Ms. Pami Rath, Senior Advocate
Ms. G. Gumansingh, Advocate
For Respondents : Mr. P.K. Muduli, AGA
For Respondent No.5 : Dr. J.K. Lenka, Advocate
-----------------------------------------------------------------------------------------------------------------------------
WA No.1257 of 2022
Laxmi Prasad Mohapatra ...... Appellant
-Versus-
State of Odisha & others ...... Respondents
----------------------------------------------------------------------------------------
For Appellant : Mr. D.P. Nanda, Senior Counsel
Ms. S. Moharana, Advocate
For Respondents : Mr. P.K. Muduli, AGA
For Respondent No.5 : Mr. S.K. Das, Advocate
-----------------------------------------------------------------------------------------------------------------------------
Page 2 of 46
3
WA No.1258 of 2022
Chitta Ranjan Sethi ...... Appellant
-Versus-
State of Odisha & others ...... Respondents
----------------------------------------------------------------------------------------
For Appellant : Mr. B. Routray, Senior Advocate
Mr. Manoj Kumar Pati, Advocate
Mr. Jagdish Biswal, Advocate
For Respondents : Mr. P.K. Muduli, AGA
For Respondent No.5 : Mr. S.K. Das, Advocate
-----------------------------------------------------------------------------------------------------------------------------
WA No.1259 of 2022
Smt. Sasmita Nayak ...... Appellant
-Versus-
State of Odisha & others ...... Respondents
----------------------------------------------------------------------------------------
For Appellant : Mr. B. Routray, Senior Advocate
Mr. Manoj Kumar Pati, Advocate
Mr. Jagdish Biswal, Advocate
For Respondents : Mr. P.K. Muduli, AGA
For Respondent No.5 to 7: Mr. S.K. Das, Advocate
-----------------------------------------------------------------------------------------------------------------------------
Page 3 of 46
4
WA No.1260 of 2022
Smt. Jyotnamayee Behera ...... Appellant
-Versus-
State of Odisha & others ...... Respondents
----------------------------------------------------------------------------------------
For Appellant : Mr. B. Routray, Senior Advocate
Mr. Manoj Kumar Pati, Advocate
Mr. Jagdish Biswal, Advocate
For Respondents : Mr. P.K. Muduli, AGA
For Respondent No.5 to 7: Mr. S.K. Das, Advocate
-----------------------------------------------------------------------------------------------------------------------------
CORAM :
HONOURABLE THE CHIEF JUSTICE
HONOURABLE MISS. JUSTICE SAVITRI RATHO
JUDGMENT
th
29 September, 2023
S.Talapatra, C.J. All these intra-court appeals being W.A. No.1437 of 2022
(Anita Mohapatra Vs. State of Odisha and others), W.A. No.1255 of
2022 (Purna Chandra Nayak & Another Vs. State of Odisha and others),
WA No.1256 of 2022 (Suchismita Mohapatra Vs. State of Odisha &
others), WA No.1257 of 2022 (Laxmi Prasad Mohapatra Vs. State of
Odisha & others, WA No.1258 of 2022 (Chitta Ranjan Sethi Vs. State of
Odisha & others, WA No.1259 of 2022 (Smt. Sasmita Nayak Vs. State
of Odisha & others) and WA No.1260 of 2022 (Smt. Jyotnamayee
Behera Vs. State of Odisha & others) are combined for disposal by a
common judgment in as much as these appeals emerge from the
common judgment and order dated 07.09.2022 delivered in WPC (OAC)
No. 3375 of 2015, WPC(OAC) No. 2373 of 2014, WPC(OAC) No. 2887
of 2015, WPC(OAC) No. 2219 of 2015, WPC(OAC) No. 2220 of 2015,
WPC(OAC) No. 2221 of 2015, WPC(OAC) No. 2222 of 2015,
WPC(OAC) No. 2223 of 2015 and WPC(OAC) No. 2225 of 2015. By
the said judgment the learned Single Judge has observed and issued
directions as under:
"(i) The impugned order dated 20th June, 2015 and the
notice dated 29th June, 2015 are hereby quashed.
(ii) The selection committee headed by the Collector,
Jagatsinghpur shall convene a meeting of the committee within
two months to consider the revised list submitted by the Board.
(iii) A fresh list in terms of the revised results forwarded
by the Board shall be published.
(iv) All persons, who are found eligible as per the revised
list shall be offered appointment.
(v) In case any of the original appointees is also found to
have qualified in the fresh select list he shall be allowed to
continue.
(vi) The inter se position of all the candidates including
the original appointees, if any, shall be determined on the basis of
their relative position in the order of merit.
(vii) The freshly appointed candidates shall be allowed to
count their seniority from the date of appointment of the original
appointees if any of them are found eligible as per the revised
select list, in the respective categories in accordance with their
position in the merit list, but only notionally."
2. It is evident from our order dated 28.09.2022 passed in WA
No.1258 of 2022 (Chitta Ranjan Sethi Vs. State of Odisha and others)
that this Court directed that the revised select list be prepared in terms of
the impugned judgment of the learned Single Judge and the said revised
list shall be kept in a sealed cover and produced before the Court.
Accordingly, the State counsel has produced the revised select panel list
in a sealed cover. The basic facts and the issues involved in all the writ
appeals are identical and for that reason, learned Single Judge clubbed
all the petitions together for disposal by a common judgment.
3. On 19.07.2012, the Collector, Jagatsinghpur invited an
application from the eligible candidates for recruitment to the post of
Junior Clerk for the Registration Offices of Jagatsinghpur District. Ten
vacancies were shown in the said advertisement, out of which three were
meant for unreserved (UR) category while seven posts were reserved for
different reserved categories. The written test was taken on 05.01.2014
and result was published on 18.06.2014. Thereafter, the candidates who
cleared the written test were asked to appear in the Computer Practical
and Viva Voce test on 30.06.2014. The result was published on the same
day. Nine candidates were recommended by the Collector, Jagatsinghpur
for issuing appointment order by the District Sub-Registrar,
Jagatsinghpur (the Appointing Authority). Even though appointment
order was issued to nine candidates, but eight candidates joined and one
candidate after joining had resigned. On 24.03.2015 some unsuccessful
candidates submitted a written complaint to the Collector, Jagatsinghpur
alleging that the OMR valuation was not done as per the answer keys
provided by the Board of Secondary Education (BSE). The result sheets
were obtained by the petitioners by the/through RTI Act. Subsequently,
by a letter dated 04.05.2015, the Secretary BSE, Odisha Cuttack wrote to
the Collector informing that due to inadvertent mistakes, three sets of
question papers i.e. B, C and D were not jumbled in respect of paper-1
for which result was revised and handed over to the authorized officer.
The Collector convened an urgent meeting of the selection committee on
the same day and it was found that out of four sets of question papers in
respect of General Knowledge and English viz, Set-A, Set-B, Set-C and
Set-D, the answer in respect of Set-A question paper was correctly
depicted, whereas the answers for Set-B, Set-C and Set-D were found to
be defective, though the questions and sequence were the same in all the
four sets. As the question sets were identical, the answers should have
been identical. But it has been found that there was a serious lapse in
preparation of question papers as well as the answer keys by the BSE.
The Collector in the emergent circumstances sought for clarification
from the Government in Revenue and DM Department on the following
questions:
(i) if the previous result list communicated by the Board of
Secondary Education will be declared void and the candidates
already appointed will be removed from service as their
appointment becomes illegal and fresh appointment order to be
issued as per fresh result list communicated by Board of
Secondary Education;
(ii) whether we may go for fresh recruitment process after
cancellation of the previous recruitment process;
(iii) what steps will be taken in respect of those employees
regarding receipt of their salary.
In response to the following questions of the Collector
Jagatsighpur, the Government in Revenue and DM Department by their
letter dated 20.06.2015 communicated that the views from the Law
Department were sought and the views are as follows:
"(i) The selection process is completely illegal and the list
of successful candidates prepared by the Board of Secondary
Education should not be given effect.
(ii) the candidates who have already joined in the post of a
junior clerk are to be terminated as the basis of their appointment
is completely wrong.
(iii) the recruitment process is to be cancelled and fresh
recruitment may be conducted.
(iv) the damages claimed by any candidate should be
realized from the Board of Secondary Education, Odisha as the
process of recruitment has been dealt in a most irrational
manner."
However, it has been also noted that the said view is subject
to outcome of the original application being O.A. No.2373(C) of 2014
transferred and renumbered as WPC(OAC) No. 2373 of 2014. In terms
of the said letter dated 20.06.2015, the Collector requested the District
Sub-Registrar to terminate the Junior Clerks who were selected and
sponsored by his office and had joined in the office as Junior Clerks
subject to outcome of the aforementioned case. By the notice dated
29.06.2015, the Collector had cancelled the recruitment process. But for
the prohibitory order passed by the Odisha Administrative Tribunal in
the said original application, the said order could not be given effect to
and as a result, seven candidates are still continuing in service.
4. The grievance as enumerated in the transferred writ
petitions needs to be noted. The petitioners in WPC (OAC) No.3375 of
2015 (Anita Mohapatra vs. State of Orissa and others), the Appellant in
W.A. No.1437 of 2022 and the petitioner in WPC (OAC) No.2373 of
2014 were not selected in the questioned selection procedure. The
petitioner in WPC (OAC) No.2224 of 2015 ( Purna Chandra Nayak vs.
State of Odisha and others), the Appellant in WA No.1255 of 2022, the
petitioner in WPC (OAC) No.2222 of 2015 (Suchismita Mohapatra vs.
State of Odisha and others), the Appellant in WA No.1256 of 2022, the
petitioner in WPC (OAC) No.2219 of 2015 (Laxmi Prasad Mohapatra
vs. State of Odisha and others), the Appellant in W.A. No.1257 of 2022,
the Petitioner in WPC (OAC) No.2221 of 2015 (Chitta Ranjan Sethi vs.
State of Odisha and others), the Appellant in WA No.1258 of 2022, the
petitioner in WPC (OAC) No.2223 of 2015 (Sasmita Nayak vs. State of
Odisha and others), the Appellant in W.A. No.1259 of 2022 and the
petitioner in WPC (OAC) No.2220 of 2015 (Jyotsnamayee Behera vs.
State of Odisha and others) are out of the seven selected candidates who
were appointed as Junior Clerks and by virtue of the interim order as
noted above, they are still continuing in their service. Those writ
petitioners except the writ petitioner of WPC (OAC) No.3375 of 2015
have challenged the order dated 20.06.2015 as passed by the
Government in directing the Collector, Jagatsinghpur to cancel the
recruitment process and to conduct fresh recruitment. The said selected
writ petitioners have also challenged the consequential order dated
29.06.2015 issued by the Collector, Jagatsinghpur directing the District
Registrar, Jagatsinghpur to terminate the services of those appellants. It
may be mentioned that only the Appellants have challenged the validity
of the common judgment and order dated 07.09.2022. A few writ
petitioners, as it appears from the records have preferred not to file any
appeal.
5. Learned Single Judge had formulated following two
questions, considered to be relevant for deciding the batch of writ
petitions:
(i) Whether the seven (7) selected/appointed
candidates have made out any case for interference with the
impugned order dated 20.06.2015 of the Government in
Revenue and DM Department and notice dated 29.06.2015
issued by the Collector, Jagatsinghpur. If so, to what relief
they are entitled?
(ii) Whether the three (3) non-selected candidates are
entitled to the relief claimed by them. If so, to what extent?
6. One Priyabrata Ray the writ petitioner in WPC(OAC)
No.2225 of 2015 has filed the W.A. No.1255 of 2022 with Purna
Chandra Nayak who was the petitioner in WPC(OAC) No.2224 of 2015.
As Priyabrata Ray has filed the combined appeal with Purna Chandra
Nayak, the one appeal can be treated as regular, even though two
separate appeals were to be filed by the writ petitioners.
7. Learned Single Judge has observed that the evaluation by
the answers key by the Board of Secondary Education (the BSE in
short) was seriously flawed to the effect that the question sets being
identical, the answer keys should have been identical for all the four sets
of questions. Having complaints from a few candidates, the Collector,
Jagatsinghpur, requested the BSE to verify and re-examine the valuation
of papers and to furnish report. The BSE has admitted the flaws resulting
in the anomalous results. Those are unsustainable. In the counter
affidavit, filed by the BSE in WPC(OAC) No.3375 of 2015, it has been
stated that the result was revised and handed over to the authorized
officer. Having received that report, the selection committee under the
chairmanship of the Collector, Jagatsinghpur sat to take their decision on
the complaint. They came to a conclusion that the evaluation of the
answers had been anomalous for using inappropriate keys. The said
illegality had been committed at the level of BSE. By the letter dated
06.05.2015, the Collector sought the instruction of the Government in
Revenue and DM Department. On 01.07.2014 the appointment letters
were issued to the selected candidates and majority of them joined the
post. The original select list prepared by the BSE was based on wrong
answer keys. On instruction, the revised select list was prepared and
communicated by the BSE to the Collector by their letter dated
04.05.2015. That was not acted upon. The Collector instead sought
instructions from the Government as stated earlier. It has been inferred
that the flaw has not flown from any malafide intention. That was an
error which crept in to the process for not utilizing correct answer keys.
Subsequently, on the basis of the correct answer keys, the select list was
revised.
8. It has been observed by the learned Single Judge that on
perusal of the concerned files of the Revenue and DM Department, as
produced by the State counsel, it transpired that the BSE had sent the
revised list to the Collector, but the Collector had not intimated the said
revised list to the Law Department. Learned Single Judge extracted the
opinion of the Law Department tendered on 23.02.2021-which reads
inter alia as follows:
".......after calculation of marks in the answer sheets if there
is any error, a fresh merit list may be prepared. If the petitioner
(Bijay Kumar Parida) is in the revised merit list, then he may be given
appointment and the representation of the petitioner may be disposed
of accordingly."
The opinion of the Law Department on whether the seven
Junior Clerks who were continuing as Senior Clerk by virtue of the
interim order passed by the Tribunal would be allowed to continue after
recasting of the merit list irrespective of their position in the revised
merit list or it will be decided as per the merit list etc. The other issues as
referred to the Law Department not having any bearing in the present
controversy, we are not making any reference to those issues. The Law
Department's opinion has been reproduced by the learned Single Judge
in the impugned judgment, which reads as follows:
"The revision of the merit list will depend on the final order of
these OAs by the Hon'ble High Court. The A/D is also required to file
an application for revision of the order of the Hon'ble High Court
dtd.18.12.2020 in WP(C) No. 35311/2020 with prayer for hearing of
the revision petition as well as the above OAs analogously to avoid
any conflict of orders. After final disposal of these OAs, revision of
the merit list may be taken up as per order of the Hon'ble High Court
and there would be no apprehension of Contempt of Court. If the A/D
propose to take action as per the above views of this Department, they
may resubmit the file for orders of the Government."
9. According to the learned Single Judge, the Law
Department's opinion was not clear enough to set the matter at rest.
They had advised to wait for the result of the pending litigation. Learned
Single Judge has also discarded the objection raised on the basis of the
principle of laches. Non-impleadment of the District Sub-Registrar in the
array of the parties has been criticized by the learned Single Judge. So
far as the question of impleadment of the successful candidates is
concerned, learned Single Judge has observed that the writ
petitioners/original applicants have impleaded only the selected
candidates from their category. For example, in the case of in WPC
(OAC) No.2887 of 2015 (Suvashish Mohanty vs. State of Odisha and
others) the impleaded selected candidates were Laxmi Prasad Mohapatra
and Jagannath Patra respectively the Opposite Parties No.3 and 4 (in the
renumbered writ petition), as they all belong to UR category and the
petitioners also do belong to UR category. The learned Single Judge
while considering the objection based on estoppel by conduct has
observed that in view of the admitted fact of serious irregularity, the said
doctrine cannot be pressed in service against the writ petitioners. So far
as the writ petition of the unselected candidate i.e. WPC (OAC) No.3375
of 2015 is concerned, it has been observed by the learned Single Judge
that since the said writ petitioners (Anita Mohapatra) had participated in
the process knowing the process of selection as laid down in the
advertisement viz the cut-off marks prescribed for the Computer Skill
test, she cannot turn around and question the process of recruitment. It
has been also observed that at no point of time the said writ petitioner
has raised any objection or protest as regard the said process adopted by
the selection committee, even though that was known to her before she
participated in the selection process.
10. According to the learned Single Judge, the BSE is only
responsible for the entire mess. That apart, he has observed that after the
selection process is over, selection committee cannot continue without
the permission from the competent authorities. But for intervention of
the Chairman, Selection Committee (the Collector), the rot has come out
and consequently, the revised select list has been prepared by the BSE,
and that was forwarded to the authority (the Collector). Learned Single
Judge has observed that there is no allegation of fraud. It was a human
error. For that reason, who have been selected erroneously, cannot be
allowed to continue. Error and its effects are to be done away with, who
might have found place in the revised select list, cannot claim their
appointment as a matter of right. Having referred to State of Odisha v.
Mamata Mohanty: 2011 (3) SCC 436, learned Single Judge has
observed that if a candidate not securing the required marks has been
appointed leaving out eligible candidates, the very appointment is to be
treated as a nullity. Such view has also been restated by the apex Court
in a subsequent decision in State of Bihar and others v. Devendra
Sarma: 2020 (15) SCC 466. In M.S. Patil v. Gulbarga University: 2010
(1) SCC 63, the apex Court had occasion to enunciate the law as follows:
"15. Once the facts of the case are narrated, there
remains hardly anything to adjudicate upon. The facts of the case
lead to only one conclusion that the appellant was wrongly
appointed to a post that was reserved for 'Group B' category. The
High Court has also found that the appellant's selection for
appointment to the post was tainted by the participation of the
Head of the Department of Kannada, who was related to him, in
the selection process. In those facts and circumstances, all that is
needed is to dismiss the appeal without further ado.
16. But at this stage once again a strong appeal is made to
let the appellant continue on the post where he has already
worked for over 17 years. Mr. Patil, learned Senior counsel,
appearing for the appellant, submitted that throwing him out after
more than 17 years would be very hard and unfair to him since
now he cannot even go back to the college where he worked as
lecturer and from where he had resigned to join to this post.
17. We are unimpressed. In service law there is no place
for the concepts of adverse possession or holding over. Helped by
some University authorities and the gratuitous circumstances of
the interim orders passed by the Court and the delay in final
disposal of the matter, the appellant has been occupying the post,
for all these years that lawfully belonged to someone else. The
equitable considerations are, thus, actually against him rather
than in his favour.
18. The matter can also be looked at from a slightly
different angle. It is noted above how the appellant was able to
secure the appointment and how he managed to continue on the
post. By notification dated August 13, 2004, the appellant was
discharged from the service of the University on the post of
Reader in Kannada but was asked to continue on ad hoc basis
until the appointment of the new incumbent to the post. His
position is, thus, only ad hoc till the appointment of the new
incumbent and in that position he is continuing on the basis of the
direction of this Court to maintain status quo. We see no reason
to continue this ad hoc arrangement any further and we do not
wish to stand any longer in the way of the post being filled up on
a regular basis".
Almost in similar circumstances the apex Court in
Channabasavaih v. State of Maysore and others: AIR 1965 SC 1223
has stated that when it is found that the selection was not proper, such
selection must be set aside. It has been also observed in
Channabasavaih (supra) that the persons who have wrongly selected,
cannot claim the protection under the law as our public institution are to
inspire that confidence which is expected of them. Thereafter, it has been
observed as follows:
".......we would be failing in duty if we did not, even at the
cost of considerable inconvenience to Govt. and the selected
candidates do the right thing. If any blame for the inconvenience
is to be placed it certainly cannot be placed upon the petitioners
candidates, the candidates whom this order displaced......"
Learned Single Judge has observed, and correctly so that
continuance of a person in a post by virtue of an interim order is always
subject to outcome of the litigation and no vested right can be claimed to
have accrued in his favour, merely because of the length of the service
rendered by him.
11. In Ranjit Singh Kardam v. Sanjib Kumar: AIR 2020 SC
2020, the law has been unequivocally laid down by the apex Court in the
following words:
".......when the continuance of a person on a post is by
virtue of an interim order, the continuance is always subject to
outcome of the litigation. The displacement of appellants from
their posts is inevitable consequence of upholding of the judgment
of the High Court."
12. Learned Single Judge has also taken note of the contrary
view as expressed by the apex court in Rajesh Kumar and others v.
State of Bihar and others: (2013) 4 SCC 690 where it has been held that
while allowing a fresh merit list to be drawn up, the candidates already
appointed need not be ousted. According to the learned Single Judge, in
Rajesh Kumar and others (supra) the apex Court did not lay down any
principle, the said decision is based on equity as there were 2268 posts
available for appointments and only 210 candidates were selected. But in
the present case, this is not the position. Only 10 vacancies were
available to be filled up. Out of 26 persons who had been recommended,
only 09 were offered the appointment and finally 07 had joined and
continued. The decision of Rajesh Kumar and others (supra), according
to the learned Single Judge is unworkable in the present context.
Thereafter, learned Single Judge has recorded his observation and issued
the direction as reproduced before.
13. As the reliefs sought in the writ petition has not been fully
granted or it may be stated that the substantive relief as sought has been
denied, the writ petitioners aggrieved by the said judgment dated
07.09.2022 have filed these intra-court appeals. It is apparent from Para-
29 of the judgment that the order dated 20th June, 2015 and the notice
dated 29th June, 2015 have been quashed with further direction on the
Collector, Jagatsinghpur to convene the meeting of the selection
committee and to consider the revised list as received by the BSE. It has
been directed to publish the revised list after due consideration and all
the eligible candidates in terms of the said revised list shall be given
appointment. If the original appointees are found to have qualified in the
fresh and revised select list, they shall also be allowed to continue. But
interse select position will be determined on the basis of their relative
position in the select panel, meaning, seniority position of the fresh
candidates appointed on the basis of the revised select list shall be
counted from the date of the appointment of the candidates who have
been selected and appointed on the basis of the earlier select list and
confirmed by the revised select list, but, there shall be no financial
benefit. The benefit of pay and allowance will be treated notional.
14. For sake of convenience, we will record the submission of
the learned counsel appearing for the Appellants in W.A. No.1255 of
2022, W.A. No.1256 of 2022, W.A. No.1258 of 2022, W.A. No.1259 of
2022 and W.A. No.1260 of 2022 separately. The intra-court appeal
being W.A. No.1437 of 2022 emerges from the said common judgment
of the learned Single Judge, but the factual matrix and the nature of
challenge are different. In W.A. No.1255 of 2022 and W.A. No.1256 of
2022, Ms. Pami Rath, learned Senior Counsel has appeared for the
Appellant along with Ms. G. Gumansingh, learned counsel whereas in
W.A. No.1257 of 2022 Mr. D.P. Nanda, learned Senior Counsel has
appeared for the Appellant with Ms. S. Maharana, learned counsel. In
W.A. No.1258 of 2022, W.A. No.1259 of 2022 and W.A. No.1260 of
2022 Mr. B. Routray, learned Senior Counsel has appeared for the
Appellants along with Mr. M.K. Pati and Mr. J. Biswal, learned counsel.
In all these appeals Mr. P.K. Muduli, learned Additional Government
Advocate has appeared for the Respondents-State. In W.A. No.1256 of
2022 Dr. J.K. Lenka, learned counsel has appeared for the Respondent
No.5. In W.A. No.1257 of 2022 Mr. S.K. Das, learned counsel has
appeared for the Respondent No.5. In W.A. No.1258 of 2022, W.A.
No.1259 of 2022 and W.A. No.1260 of 2022 Mr. S.K. Das, learned
counsel has appeared for the Respondents No. 5 to 7.
15. In W.A. No.1437 of 2022, Dr. J.K. Lenka has appeared for
the Appellant and Mr. P.K. Muduli, learned Additional Government
Advocate has appeared for the Respondents-State.
16. In all these writ appeals including W.A. No.1437 of 2022,
we have passed the common order in the proceeding. By the order dated
10th July, 2023 this court has made the observation and direction:
"xxx xxx xxx
2. Heard the appellants at length but at the request of Mr. P.K.
Muduli, learned Addl. Government Advocate who is appearing
for the respondent-State, let the matters be listed on 18.07.2023 at
02.00 PM.
3. In the meanwhile, the respondent-State shall file an affidavit
clearly stating that out of the declared 10 vacancies, how many
persons have joined and presently, how many vacancies are
available against the post of Junior Clerk against the said 10
posts.
4. In this regard, we would like to clarify that the vacancy
position be stated as on 19.07.2012. It has been stated by learned
counsel for the appellants that one of the selected candidates had
resigned. It may also further pointed out that against the 10
vacancies 9 candidates were selected and out of them 8
candidates joined and as stated, one candidate had resigned. As a
result, 7 candidates joined and occupied the post.
5. The Respondent-State shall clearly state that whether the two
candidates as mentioned above have left the post permanently or
not? Whether have they kept any lien on the post?
6. That apart, the revised merit list as has been prepared in terms
of the order dated 02.11.2022 passed in W.A. No.1255 of 2022
shall be placed before this court, under the sealed cover, for
perusal."
17. In compliance of the said order dated 10.07.2023, the
Respondents-State by filing an affidavit, through the Respondent No.2 in
W.A. No.1437 of 2022 and W.A. No.1258 of 2022 have stated that for
filing up of 10 vacant posts of Junior Clerks in the Registration Office
under Jagatsinghpur district the notification vide Advertisement
No.112/Estt. dtd.19.07.2012 was issued. The details of the vacant posts
have been shown in a table in Para-05 of the said affidavit. For our
reference, we extract the table below:
Sl.No. Category Male Female Total
3. SC 1 1 2
4 ST 1 1 2
It has been further stated that as per the proceeding the
selection committee meeting held on 25.06.2014, out of 485 candidates
26 candidates on one: three' ratio were allowed to appear in the
Computer Practical Skill Test for 50 marks and such test was held on
30.06.2014. The selection committee had decided to fix 10 marks out of
total 50 marks, for SC and ST candidates and 15 marks, out of the total
50 marks for other candidates to qualify in the said Computer Practical
Skill Test. 26 candidates were called for the Computer Practical Skill
Test. The table below represents those figures:
Category No. of vacancy No. of Remarks
advertised candidates
allowed to appear
the Computer
Practical Skill
Test
ST(M) 1 1 Only one
candidate was
attended in
written test
ST(W) 1 1 Only one
candidate was
attended in
written test
The candidates belonging to ST(W) category had not
appeared in the Computer Practical Skill Test. On the basis of the result
of the Computer Practical Skill Test, 09 candidates out of the 10
vacancies advertisement were recommended for appointment. Out of the
09 candidates, 08 candidates joined and one candidate belonging to
ST(M) namely, Deepak Kumar Pradhan did not join. Further out of the
08 candidates, one candidate belonging to UR(M) category namely, Sri
Jagannath Patra who was placed in the Serial No.2 of the appointment
order dated 01.07.2014, resigned from his post with effect from
16.03.2015. It has been submitted that as on 19.07.2012, 10 vacancies
were available, against those vacancies finally only 07 candidates have
joined. The posts are permanent. It has been also stated in the said
compliance affidavit that the revised merit list has been prepared and
kept in a sealed cover.
18. In W.A. No.1257 of 2022, the petitioner represented by Ms.
S. Maharana, learned counsel, has filed an additional affidavit in
response to the said order dated 10.07.2023. Based on RTI disclosure,
the said petitioner has averred that as per the information disclosed under
RTI Act at present, there are 29 posts of Junior Clerk in the district of
Jagatsinghpur lying vacant [see Anexure-A/1 of the said affidavit]. Most
importantly, what has been stated in Para-05 of the said affidavit (filed
on 07.07.2023), is that the Appellant in W.A. No.1258 of 2022 namely,
Chitta Ranjan Sethi has been selected and promoted to the Odisha
Revenue Service Group-B [Level-1 of Pay Matrix of ORSP Rules,
2017]. The appellant joined on 10.02.2023, pursuant to the notification
dated 01.02.2023 as the Assistant Collector at the Office of the Collector
and District Magistrate, Bhadrak. The copy of the notification dated
14.02.2023 in support of the said averments, has placed under Annexure
A/3 to the affidavit. It has been further averred that one Sarada Prasad
Mohanty has been appointed as Junior Clerk, Group-C on contractual
basis vide Order No.1546 dated 19.06.2017 having been recommended
by Odisha Staff Selection Commission. Sarada Prasad Mohanty was at
Serial No.2 in the initial select list, on the basis of which the Appellant
except the Appellants in W.A. No.1437 of 2022, were recruited. Thus,
another vacancy arose. At this stage, we should record that the
appointment of Chitta Ranjan Sethi to the Odisha Revenue Service,
Group-B has its root in the said recruitment of Junior Clerks. It is true
that, for his appointment to the Odisha Revenue Service Group-B,
another vacancy arose at the level of Junior Clerks or It is evident that
for appointment of Sarada Prasad Mohanty, one vacancy in the level of
Junior Clerks arose. That apart, the Appellant in W.A. No.1258 of 2022
has filed one interlocutory application being I.A. No.372 of 2022 urging
this Court to modify/clarify the order dated 02.11.2022 by allowing only
the parties in the present appeals to undergo the Computer Practical Skill
Test. The said I.A. has become inessential as the matter has been heard
finally and the order dated 02.11.2022 will be subject to the said
outcome.
19. Dr. Lenka, learned counsel has appeared for the Appellant,
in W.A. No.1437 of 2022 who had applied for the post of Junior Clerk
like other Appellants and after the written test, she was also called to
appear in the Computer Practical Skill Test on 30.06.2012. She has
admitted that in the written instruction under the note 2 of the
advertisement, it was stipulated that Practical Skill Test in Computer is
qualifying in nature and the mark secured shall not be added to the total
marks secured in the written examination. In case the candidate does not
appear, the test his/her candidature is liable for rejection. When the
appointment letter was issued on 01.07.2014, the said Appellant was not
offered the appointment and later on, on the basis of the complaint the
entire process was re-verified. At this point, we are to note that the
complaints were made in respect the written examination, not about the
Computer Practical Skill Test. There is no allegation about the said test.
The appellant in W.A. No.1437 of 2022 has urged to continue the
exercise only amongst the parties in the litigation. In respect of this
Appellant, the learned Single Judge has clearly observed that since she
was called for the Computer Practical Skill Test and she was not
selected, she can neither challenge the process nor can she take any
advantage under the revised selection panel. It has been contended by
Dr. Lenka, learned counsel that when the selection process is found to be
vitiated, the Appellant has right to question the process and the selection
of candidates like the Respondent No.4. The Respondent No.4 has been
subsequently promoted to the post of Senior Clerk and according to the
Appellant, on extraneous consideration. But there is no such averment
which can persuade this court to believe the said allegation. True, it is
that when it was found that gross mistake had taken place during OMR
evaluation for using the wrong answer-key, the authority has recalled the
selection process and asked for a revised selection list. One additional
point has been raised by the Appellant that the statement of reservation
cannot be more than 50% in a year in view of the ceiling, as laid down
by the apex Court in Indra Sawhaney v. Union of India: 1992 Supp. (3)
SCC 217. In this regard, learned Single Judge has noted that objection,
but finally did not give his opinion on that point, but it has been held that
the writ petition filed by this Appellant is hit by estoppel by conduct.
What is surprising is that while making the submission on the 50% limit,
no reference has been made to a subsequent decision of the Supreme
Court in R.K. Sabharwal v. State of Punjab: (1995) 2 SCC 745 where
the apex Court has innovated the rule of substitution and the carry
forward rule. As such, we are not impressed that we need to interfere
with the impugned judgment on the ground of ceiling in the reservation.
In respect of the opinion of the learned Single Judge that the said
appellant's case is hit by estoppels by conduct, we have no different
opinion. As such, this appeal being W.A. No.1437 of 2022 is liable to be
dismissed. Moreover, we would like to observe that in the writ appeal
the said Appellant has supported the cancellation of the process and
preparation of the revised merit list. It is conceived that if the Appellant
has found a place in the said revised list, she should get another
opportunity of appearing before the Computer Practical Skill Test. In
view of the said position taken by the Appellant, the writ petition ought
to have been dismissed on its face, as no action can be maintained under
Article 226, only to support a State action.
20. Mr. Routray, learned Senior Counsel appearing for the
Appellants in W.A. No.1258 of 2022, W.A. No.1259 of 2022 and W.A.
No.1260 of 2022 has submitted that out of the total advertised posts,
initially 08 candidates joined. Subsequently, one candidate resigned
from the post. Thereafter, 07 candidates have been continuing including
the Appellants he represents. He has also pointed out that 03 candidates,
the private Respondent No.5, 6 and 7 had filed three original
applications and out of those 03 applicants, one Anita Mohapatra, the
Respondent No.6 (the Appellant in W.A. No.1437 of 2022) could not
qualify in the computer based test as she secured 2.5 out of 50 marks.
Out of two remaining applicants, the Respondent No.7, after filing of the
writ petition by the Appellants, got the better job as he was appointed the
Co-operative Inspector under the Registrar, Co-operative Societies at
Keonjhar district. That apart, the Respondent No.7 has qualified for
appointment in the post of Assistant Section Officer (Group-B post) on
07.06.2019. Thus, the Respondent No.6 did not show any interest in
respect of the litigation. The remaining one, the Respondent No.5,
Bijaya Ku. Parida, if at all selected in terms of the revised merit list, he
can be appointed against one vacant post of UR category, which is still
available. Mr. Routray, learned Senior Counsel has emphatically argued
that there cannot be any amount of debate that the error was committed
by the Board of Secondary Education (BSE) in the matter of evaluation
of the answers. For that, the entire consequence cannot be transferred to
the Appellants, as they are neither found to have committed any fraud or
misrepresentation for securing the appointment. Mr. Routray, learned
Senior Counsel has pointed out that the Appellants have not only
completed 08 years of continuous service, but a few of them have been
promoted to the higher post as per the recommendation of the DPC. The
termination of the Appellants at this stage will not only impinge upon
their economic security but also adversely affect their career. Mr.
Routray, learned Senior Counsel has referred a few decision of the apex
Court including Vikas Pratap Singh & Ors vs State Of Chhatisgarh &
Ors: (2013) 14 SCC 494, where 26 candidates were supposed to be
ousted from their service on the basis of the cancellation of their
appointment qua the revised merit list after they had served for more
than three years by virtue of the interim order passed by the High Court.
Meanwhile, they had undergone the training and put on blemished
service. Having referred to Rajesh Kumar and others Vs. State of Bihar
and others: 2013 (3) SCALE 393, it has been contended that the
direction of the Court to the respondent-State to re-evaluate the answer
scripts on the basis of correct model answers key and consider
sympathetically the case of such candidates who, after having being
appointed in terms of erroneous evaluation and having served the State
for a considerable length of time and having not found place in the fresh
merit list drawn after re-evaluation, cannot be faulted with on equity.
The Respondent-State did not want to oust such candidates. They
suggested to place them at the bottom of the fresh merit list. In that
context, it has been observed in Rajesh Kumar (supra) as follows:
"20. The pristine maxim of fraus et jus nunquam cohabitant
(fraud and justice never dwell together) has never lost its temper
over the centuries and it continues to dwell in spirit and body of
service law jurisprudence. It is settled law that no legal right in
respect of appointment to a said post vests in a candidate who has
obtained the employment by fraud, mischief, misrepresentation or
malafide. (See: District Collector & Chairman, Vizianagaram
Social Welfare Residential School Society, Vizianagaram and
another v. M. Tripura Sundari Devi, (1990) 3 SCC 655, P.
Chengalvaraya Naidu v. Jagannath and others, (1994) 1 SCC 1
and Union of India and others v. M. Bhaskaran, 1995 Suppl. (4)
SCC 100). It is also settled law that a person appointed
erroneously on a post must not reap the benefits of wrongful
appointment jeopardizing the interests of the meritorious and
worthy candidates. However, in cases where a wrongful or
irregular appointment is made without any mistake on the part of
the appointee and upon discovery of such error or irregularity the
appointee is terminated, this Court has taken a sympathetic view
in the light of various factors including bonafide of the candidate
in such appointment and length of service of the candidate after
such appointment (See: Vinodan T. and Ors. v. University of
Calicut and Ors.,(2002) 4 SCC 726; State of U.P. v. Neeraj
Awasthi and Ors. (2006) 1 SCC 667).
21. In Girjesh Shrivastava and Ors. v. State of M.P. and Ors.,
(2010) 10 SCC 707, the High Court had invalidated the rule
prescribing selection procedure which awarded grace marks of
25 per cent and age relaxation to the candidates with three years'
long non-formal teaching experiences as a consequence of which
several candidates appointed as teachers at the formal education
institutions under the said rule stood ousted. This Court while
concurring with the observations made by the High Court kept in
view that upon rectification of irregularities in appointment after
a considerable length of time an order for cancellation of
appointment would severely affect economic security of a number
of candidates and observed as follows:
"28. ...Most of them were earlier teaching in Non-
formal education centers, from where they had resigned to
apply in response to the advertisement. They had left their
previous employment in view of the fact that for their three
year long teaching experiences, the interview process in
the present selection was awarding them grace marks of
25 per cent. It had also given them a relaxation of 8 years
with respect to their age. Now, if they lose their jobs as a
result of High Court's order, they would be effectively
unemployed as they cannot even revert to their earlier
jobs in the Non-formal education centers, which have been
abolished since then. This would severely affect the
economic security of many families. Most of them are
between the age group of 35-45 years, and the prospects
for them of finding another job are rather dim. Some of
them were in fact awaiting their salary rise at the time of
quashing of their appointment by the High Court."
Therefore, mindful of the aforesaid circumstances this
Court directed non-ouster of the candidates appointed
under the invalidated rule.
22. In Union of India (UOI) and Anr. v. Narendra Singh, (2008) 2
SCC 750 this Court considered the age of the employee who was
erroneously promoted and the duration of his service on the
promoted post and the factor of retiring from service on attaining
the age of superannuation and observed as follows:
"31. The last prayer on behalf of respondent, however,
needs to be sympathetically considered. The respondent is
holding the post of Senior Accountant (Functional) since
last seventeen years. He is on the verge of retirement, so
much so, that only few days have remained. He will be
reaching at the age of superannuation by the end of this
month i.e. December 31, 2007. In our view, therefore, it
would not be appropriate now to revert the respondent to
the post of Accountant for very short period. We,
therefore, direct the appellants to continue the respondent
as Senior Accountant (Functional) till he reaches the age
of superannuation i.e. upto December 31, 2007. At the
same time, we hold that since the action of the Authorities
was in accordance with Statutory Rules, an order passed
by the Deputy Accountant-General canceling promotion of
the respondent and reverting him to his substantive post of
Accountant was legal and valid and the respondent could
not have been promoted as Senior Accountant, he would
be deemed to have retired as Accountant and not as Senior
Accountant (Functional) and his pensionary and retiral
benefits would be fixed accordingly by treating him as
Accountant all through out.
32. For the foregoing reasons, the appeal is partly
allowed. Though the respondent is allowed to continue on
the post of Senior Accountant (Functional) till he reaches
the age of retirement i.e. December 31, 2007 and salary
paid to him in that capacity will not be recovered, his
retiral benefits will be fixed not as Senior Accountant
(Functional) but as Accountant. In the facts and
circumstances of case, there shall be no order as to
costs."
23. This Court in Gujarat State Deputy Executive Engineers'
Association v. State of Gujarat and Ors., 1994 Supp (2) SCC 591
although recorded a finding that appointments given under the
`wait list' were not in accordance with law but refused to set aside
such appointments in view of length of service (five years and
more).
24. In Buddhi Nath Chaudhary and Ors. v. Akhil Kumar and Ors.,
(2001) 2 SCR 18, even though the appointments were held to be
improper, this Court did not disturb the appointments on the
ground that the incumbents had worked for several years and had
gained experience and observed:
"We have extended equitable considerations to such
selected candidates who have worked on the posts for a
long period."
(See: M.S. Mudhol (Dr.) and Anr. v. S.D. Halegkar and Ors.,
(1993) II LLJ 1159 SC and Tridip Kumar Dingal and Ors. v. State
of West Bengal and Ors.: (2009) 1 SCC 768)
25. Admittedly, in the instant case the error committed by the
respondent-Board in the matter of evaluation of the answer
scripts could not be attributed to the appellants as they have
neither been found to have committed any fraud or
misrepresentation in being appointed qua the first merit list nor
has the preparation of the erroneous model answer key or the
specious result contributed to them. Had the contrary been the
case, it would have justified their ouster upon re-evaluation and
deprived them of any sympathy from this Court irrespective of
their length of service.
26. In our considered view, the appellants have successfully
undergone training and are efficiently serving the respondent-
State for more than three years and undoubtedly their termination
would not only impinge upon the economic security of the
appellants and their dependants but also adversely affect their
careers. This would be highly unjust and grossly unfair to the
appellants who are innocent appointees of an erroneous
evaluation of the answer scripts. However, their continuation in
service should neither give any unfair advantage to the appellants
nor cause undue prejudice to the candidates selected qua the
revised merit list.
27. Accordingly, we direct the respondent-State to appoint the
appellants in the revised merit list placing them at the bottom of
the said list. The candidates who have crossed the minimum
statutory age for appointment shall be accommodated with
suitable age relaxation.
[Emphasis added]
21. In another decision in Anmol Kumar Tiwari and others vs.
The State of Jharkhand and others: (2021) 5 SCC 424, the apex Court
having referred to Vikas Pratap Singh (supra) had occasion to observe
asunder:
"A similar situation arose in Vikas Pratap Singh's case (supra),
where this Court considered that the Appellants-therein were
appointed due to an error committed by the Respondents in the
matter of valuation of answer scripts. As there was no allegation
of fraud or misrepresentation committed by the Appellants
therein, the termination of their services was set aside as it would
adversely affect their careers. That the Appellants-therein had
successfully undergone training and were serving the State for
more than 3 years was another reason that was given by this
Court for setting aside the orders passed by the High Court. As
the Writ Petitioners are similarly situated to the Appellants in
Vikas Pratap Singh's case (supra), we are in agreement with the
High Court that the Writ Petitioners are entitled to the relief
granted. Moreover, though on pain of Contempt, the Writ
Petitioners have been reinstated and are working at present.
[Emphasis added]
But it has been also clearly held that those persons for their
retention in the service cannot claim parity with the persons who are
supposed to be selected on merit. In Richal and others vs Rajasthan
Public Service Commission and others: (2018) 8 SCC 81 again Rajesh
Kumar (supra) was revisited and it was held as follows:
"26. In the affidavit filed by the Commission it is mentioned
that the result has been revised of only 311 appellants who are
before this Court. We are of the view that key answers having
been corrected, merit of all the candidates except those who have
already been selected needs to be redetermined. In our order
dated 16.01.2018 it is mentioned that this exercise shall not
affect those who have already been selected. We, thus, are of the
view that the Commission should revise the entire result of all the
candidates except those who have been selected on the basis of
the report of Expert Committee and publish revise result of all
the candidates. When the key answers are correct of the
candidates who appeared in the examination, they are entitled
for revision of their result, since, fault does not lie with the
candidates but lies with the examination body. It shall not be
equitable to not extend the benefit to those candidates who have
not come to the Court being satisfied with the steps taken by the
Commission and its earlier Expert Committee which was given
the task of revising the key answers.
[Emphasis added]
27. In view of the foregoing discussions, we dispose of these
appeals with the following directions:
(1) The Rajasthan Public Service Commission is directed to
revise the result of all the candidates including all the
appellants on the basis of Report of the Expert Committee
constituted in pursuance of our order dated 16.01.2018 and
publish the revised result.
(2) While carrying the above exercise the Commission need
not revise the result of all those candidates whose names
were included in the Select List earlier published. We
having already pointed out that the appointments shall not
be affected by this exercise, there is no necessity to revise
their result.Thus, this exercise shall be undertaken excluding
all the candidates who are included in the Select List."
[Emphasis added]
It has been restated that when fault does not lie with the
candidates but lies with the examination body, it shall not be equitable to
not extend the benefit to those candidates who have not come to the
Court being satisfied with the steps taken by the Commission and its
earlier Expert Committee with which the task of revising the answers
key was entrusted. It has been clearly observed that while carrying out
the exercise of revising the select list which has been earlier published,
the appointment as made thereon shall not be affected.
22. Mr. Routray, learned Senior Counsel has referred another
decision of the apex Court in Gaurav Pradhan and Ors. vs. State of
Rajasthan and Ors.: (2018) 11 SCC 352. It is relevant in respect of
vacancies which can be utilized for purpose of granting equitable relief
in such circumstances. In Richal (supra) the candidates, belonging to
unreserved category, was not appointed even though they were clearly
entitled to appointment. But those candidates who were by mistake
migrated to unreserved category were working for more than five years.
It has been observed in Richal (supra) that the competing equities are to
be adjusted by the Court for doing the substantive justice. The State-
Opposite Parties were directed to work out for appointment of those who
were supposed to be appointed against the candidates, who were as per
their merit general category vacancies. The State-Opposite Parties were
further directed to make appointments against the existing vacancies, if
available and in the event there are no vacancies available for the above
candidates, the supernumerary post were directed to be created for
adjusting the Appellants. Those supernumerary posts shall be abolished
as and when the regular vacancies are available in future. That
arrangement was made not to oust the candidates who were illegally
migrated to the unreserved vacancies.
23. Ms. Pami Rath, learned Senior Counsel and Mr. D.P.
Nanda, learned Senior Counsel have made similar submission that the
decision of the learned Single Judge has failed to take the consequence
of making appointment on the revised merit list in consideration. If it is
found that the said revised merit list, does not contain the names of the
07 candidates, who continued for more than eight years, they will face
ouster from the service with adverse effect on their financial security for
no fault of theirs. As such, the observation of the learned Single Judge
based on the Ranjit Singh Kardam v. Sanjib Kumar: AIR 2020 SC 2020
has been made without balancing the equities. In Ranjit Singh Kardam
(supra), the apex court had occasion to observe as follows:
"When the continuance of a person on a post is by virtue
of an interim order, the continuance is always subject to outcome
of the litigation. The displacement of appellants from their posts
is inevitable consequence of upholding of the judgment of the
High Court."
24. Having discussed Rajesh Kumar (supra), the learned Single
Judge has directed that the freshly appointed candidates shall be allowed
to count their seniority from the date of appointment of the original
appointees if any of them are found eligible as per the revised select list
in the respective categories in accordance with their position in the merit
list, but financial benefits will be notional. Both the counsel for the
Appellants have submitted that the present Appellants are not averse to
the observation made by the learned Single Judge, but their service
should be protected. We need to observe that the seniority position will
be determined on the basis of merit position, unless it is directed
differently.
25. Mr. Muduli, learned Additional Government Advocate has
submitted that when the advertisement was issued, only 10 vacancies for
appointment to the post of Junior Clerk were available, and as such, even
if there are more vacancies, those cannot be utilized for accommodation
of the appellants except the appellant Anita Mohapatra who cannot
otherwise also claim any appointment. Mr. Muduli, learned Additional
Government Advocate has fairly submitted that the answer-keys of the
candidates were not properly evaluated as per the answer-keys. As a
result thereof, serious anomalies surfaced in the result. In order to
remove the anomalies, it was decided at the appropriate level to revise
the merit list. Three original applications were filed in the State
Administrative Tribunal seeking the relief of revising merit list and for
giving appointment to the original applicants. Finally, by the impugned
judgment, learned Single Judge has directed to prepare the fresh list in
terms of the revised result forwarded by the Board and that shall be
published for general information. That list has been submitted before us
under sealed cover, in terms of the order dated 28.09.2022 passed in this
batch of writ appeals. Mr. Muduli, learned Additional Government
Advocate has further submitted that the candidates whose names do not
find place in the revised select list, cannot be allowed to claim any right
to appointment. In this regard, he has referred to State of Odisha v.
Mamata Mohanty: 2011 (3) SCC 436 where the apex Court has
observed inter alia as under:
"It is a settled legal proposition that if an order is bad in
its inception, it does not get sanctified at a later stage. A
subsequent action/development cannot validate an action which
was not lawful at its inception, for the reason that the illegality
strikes at the root of the order. It would be beyond the competence
of any authority to validate such an order. It would be ironic to
permit a person to rely upon a law, in violation of which he has
obtained the benefits. If an order at the initial stage is bad in law,
then all further proceedings consequent thereto will be nonest and
have to be necessarily set aside. A right in law exists only and only
when it has a lawful origin."
26. Having appreciated the competing arguments, this Court at
the outset observed that there is no reason to interfere with the final
inference drawn by the learned Single Judge at Para-29 the judgment
setting aside order dated 07.09.2022 and the order dated 20.06.2015
directing termination and fresh recruitment process and the
consequential notice dated 29.06.2014. In that perspective, it has been
directed by the learned Single Judge that the revised list, as submitted by
the Board of Secondary Education Odisha shall be considered by the
selection committee and the fresh select list shall be published and those
who will be found eligible as per the revised list shall be offered
appointment. If the original appointees are found to have qualified in the
fresh select list, they would naturally be allowed to continue. Inter se
seniority positions of all the candidates, including the original appointee,
if any, shall be determined on the basis of their position in the order of
merit.
27. We do not find any illegality in such directions. But, on one
point, we need to differ. Learned Single Judge, by discarding Rajesh
Kumar (supra), has held that the petitioners have continued in the post
for long time but they so continued by virtue of interim order and hence,
the ratio of Rajesh Kumar (supra), cannot be of any help to them if their
places are taken by the eligible candidates. No further vacancies will be
available for their adjustment at the bottom of the list in the manner as
done in Rajesh Kumar (supra). In Vikas Pratap Singh (supra), it has
been laid down that the principle of equity shall be applied to protect the
candidates who will be the casualty for implementation of the revised
merit list. It has emerged that the Appellants, except the Appellant in
W.A. No.1437 of 2022 have put in unblemished service for eight years,
even though by virtue of the interim order. But, if they are terminated,
they will be terminated for no fault of theirs. Error committed by the
respondent-Board in the matter of evaluation of the answers cannot be
attributed to the Appellants, as they have not committed any fraud, nor
they made any misrepresentation for being appointed. It has been
observed in Vikas Pratap Singh (supra) that termination would not only
impinge upon the economic security of the Appellants and their
dependants, but will also adversely affect their careers and they might
lose the chance of further employment. That will be highly unjust and
grossly unfair. Such devastation has to be adjusted under the principle of
equity, as the erroneous evaluation of the answers cannot be attributed,
by any means, to the Appellants. Except the Appellant in W.A. No.1437
of 2022, all the Appellants have successfully qualified in the Computer
Practical Skill Test. In Richal (supra), a different approach has been
taken by the apex Court. According to them, the revised merit list shall
not be effected, so far as the incumbents who got appointment on the
basis of the first merit list are concerned, rather the revised merit list
shall be utilized for appointing the candidates, who were not selected for
erroneous answer keys. In Gaurav Pradhan (supra), the apex Court had
directed the State of Rajasthan to create supernumerary posts for
adjustment. In Para-11 of the additional affidavit, it has been stated that
at present there are 29 posts of Junior Clerks lying vacant in the district
of Jagatsinghpur. To avert unwarranted human consequences, the
equitable adjustment is warranted.
28. We direct that the revised merit list as prepared in the
selection committee meeting held on 16.11.2022 and 12.12.2022 be
opened by the Collector and District Magistrate, Jagatsinghpur against
10 vacancies following the reservation rules. Those whose names are in
the revised merit list, shall be appointed in accordance with their merit
position vis-à-vis vacancies. If the names of any of the Appellants except
the Appellant in W.A. No.1437 of 2022 find place in the revised merit
list, his/her seniority will be determined in terms of the direction given
by the learned Single Judge. But if it is found that the Appellants [except
the Appellant in W.A. No.1437 of 2022] are not within the merit list, we
direct the State to allow them to continue in the post of Junior Clerk by
saving their appointments in the post of Junior Clerk or in the promotion
post by creating supernumerary post or against the vacancies at present
available. Those appellants will be at the bottom of the seniority list
vis-à-vis the persons appointed on the basis of the revised merit list.
Whether the appellants, whose name are not found in the revised merit
list will be given further promotion or not, will be decided by the
appropriate authority, otherwise, they will retire from the post of Junior
Clerk. Those who are already promoted, their promotion shall be
protected.
29. In terms of the above, the writ appeals being W.A. No.1255
of 2022, W.A. No.1256 of 2022, W.A. No.1257 of 2022, W.A. No.1258
of 2022, W.A. No.1259 of 2022 and W.A. No.1260 of 2022 are partly
allowed.
The writ appeal being W.A. No.1437 of 2022 is dismissed
for the reasons recorded above.
30. Before parting with the records, we would like to note that
till the said adjustment is made, the Appellants in W.A. No.1255 of
2022, W.A. No.1256 of 2022, W.A. No.1257 of 2022, W.A. No.1258 of
2022, W.A. No.1259 of 2022 and W.A. No.1260 of 2022 shall be
allowed to continue in the present position. The revised merit list as
submitted in the sealed cover be returned to the Collector and District
Magistrate, Jagatsinghpur through Mr. Muduli, learned Additional
Government Advocate. We have not broken the sealed cover and it is
being returned infact.
31. No orders as to costs.
.................................
S. Talapatra
Chief Justice
Savitri Ratho, J. I agree.
.................................
Savitri Ratho, J.
Signature Not Verified
Orissa High Court, Cuttack.
Digitally Signed
Signed by: LITARAM MURMU The 29th day of September, 2023.
Reason: Authentication L. Murmu, Senior Stenographer
Location: High Court of Orissa Cuttack
Date: 03-Oct-2023 15:05:47
