Orissa High Court
Deepak Ray vs State Of Odisha & Ors. ....... Opposite ... on 5 November, 2024
Author: B.P. Routray
Bench: B.P. Routray
Signature Not Verified
Digitally Signed
Signed by: SANGRAM DAS
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 20-Nov-2024 14:38:41
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) Nos. 11811 of 2021
(An application under Articles 226 & 227 of the Constitution of India)
Deepak Ray ....... Petitioner
-Versus-
State of Odisha & Ors. ....... Opposite Parties
Advocate(s) appeared in this case:-
For Petitioner : Mr. Budhadev Routray, Sr.Advocate
For Opposite Parties : Mr. Pronoy Mohanty, Sr.Advocate
Mr. Debraj Mohanty, AGA
CORAM : JUSTICE B.P. ROUTRAY
JUDGMENT
th
5 November 2024
B.P. Routray,J.
1. Heard Mr. B.Routray, learned Senior Counsel for the
Petitioner, Mr. P.Mohanty learned Senior Counsel for Opposite
Parties 2 & 3 and Mr. D.Mohanty, learned AGA for Opposite Party
No.1.
2. The Petitioner who is serving as Assistant Director
(Planning) in the office of State Project Director, Odisha School
Education Programme Authority (OSEPA) has challenged the order
of his termination dated 22nd March 2021 under Annexure-14.
Location: High Court of Orissa, Cuttack
3. The case of the Petitioner is that he was initially appointed
as Co-ordinator, Planning and posted in the District Project Office
SSA, Koraput on 24th November 2003.
4. At that time he was having qualification of Post Graduation
in Economics. Subsequently, the post of Assistant Director (Planning)
was created and as per the decision taken by the State Project Director
the Petitioner along with other Coordinators (Planning) working in
different districts under the authority of OSEPA and the letter issued
under Annexure-3 addressed to all Planning Coordinators, dated 8th
October 2004, the Petitioner was invited as chosen to be called for an
interview for the post of Assistant Director (Planning) along with
others. The selection committee comprising of the State Project
Director, Additional Director (Planning) and Joint Director EGS
conducted the interview of all the participants, wherein the Petitioner
stood first securing highest mark. Consequently, the Petitioner was
appointed as Additional Director (Planning) in the appointment order
dated 1st November 2004 issued by the State Project Director,
OPEPA. The Petitioner continued as such i.e. in the post of Assistant
Director (Planning) till the date of his termination. In the year 2021 an
explanation was sought for from the Petitioner asking him to show-
cause that he did not have the requisite qualification of MA in
Economics with MPhil/Phd qualification to hold the post of Assistant
Director (Planning) and accordingly by the impugned order dated 22nd
March 2021 under Annexure-14 his service as Assistant Director has
been terminated reverting him to his initial post of Coordinator,
Planning. This is the subject matter of challenge before this Court in
the present writ petition.
Location: High Court of Orissa, Cuttack
5. Mr. Routray, learned Senior Counsel submits that the initial
appointment of the Petitioner as Coordinator, Planning with
qualification of MA in Economics and his subsequent appointment to
the post of Assistant Director (Planning) pursuant to the selection test
conducted by the duly constituted selection committee was never
questioned at any point of time. The only reason shown for his
termination that he did not have the requisite qualification of
MPhil/Phd for the post of Assistant Director (Planning) was not at all
intimated to him nor did a subject of consideration by the authority
including the selection committee. As per the invitation letter under
Annexxure-3, he was allowed to participate in the interview and being
stood first securing highest mark amongst all the candidates was
given appointment to the post of Assistant Director (Planning).
Therefore, raising the question of requisite qualification after
continuance of the Petitioner in the post for last 17 years is not only
unjust but also against the principles of fair justice.
6. A Counter affidavit has been filed on behalf of Opposite
Parties stating that, as per the decision taken by the 15th Executive
committee of OSEPA, the post of Assistant Director (Planning) was
created with required qualification of Post Graduation in Economics
along with MPhil/Phd. But the Petitioner was given appointment
without having any qualification of Mphil. or Phd. and therefore, his
service was terminated after asking to him for a show-cause.
7. Mr. Mohanty, learned Senior Counsel submits for Opposite
Parties 2 & 3 that the Petitioner was having qualification of Post
Graduation in Economics only without any MPhil/Phd qualification.
Location: High Court of Orissa, Cuttack
When the post was requiring qualification of Post Graduation along
with MPhil/Phd, the Petitioner admittedly without having MPhil/Phd
is held ineligible to hold the post of Assistant Director (Planning). In
addition to the same, the selection and appointment of the Petitioner
was not in accordance with the prescribed rule of employees of
OSEPA. The Service Rules and Regulations, 1996 has been framed
for governing the service conditions of the employees of OSEPA
including its officers and staffs. Rule 5(a) specifies that the given post
is to be filled up by way of direct recruitment through advertisement,
and in the present case it was simply a test conducted among the
employees of the OSEPA holding a post of Coordinator, Planning.
Therefore, it is not only the case of not having requisite qualification
but also without having due process of recruitment. As such, the
termination of the Petitioner from the post of Assistant Director is
justified and needs no interference.
8. Having heard both parties, it is found admitted that the
selection of the Petitioner to the post of Assistant Director (Planning),
while he was continuing as Coordinator, Planning, was made as per
the process of selection adopted at the time of filling up of the post
which was never questioned as illegal by anyone till 2021. It is also
an admitted fact that the Petitioner was invited to participate in the
interview for the post of Assistant Director (Planning) by Opposite
Parties 2 & 3, and not only the Petitioner but all such Coordinator,
Planning serving under Opposite Parties 2 & 3 at that time have been
invited along with the Petitioner who participated in the interview.
The further admitted fact is that the selection committee was duly
constituted by the Opposite Parties and in a due process of selection
Location: High Court of Orissa, Cuttack
the Petitioner secured highest mark to be selected for the post of
Assistant Director (Planning). Pursuant to the selection of the
Petitioner he was given appointment on 1st November 2004 and had
been continuing in the post till date of termination i.e. on 22nd March
2021, without any interruption and without any objection.
9. The reason of termination of the Petitioner is that he did not
have the requisite qualification of MPhil/Phd as per the decision taken
in the 15th Executive Committee Meeting. But it is true that the
decision of 15th Executive Committee Meeting was never within the
knowledge of the Petitioner nor the same was intimated to him or any
other candidate who were invited to participate in the interview. As
per the decision taken under Annexure-2 by the State Project
Director, applications were invited first from the existing
Coordinators (Planning) to fill up the post of Assistant Director
(Planning) and then to move for open advertisement if not suitable
candidate is found. This decision has been taken by Opposite Parties
2 & 3 and the Petitioner had no role in it. He was simply invited by
the authority to participate in the interview and he accordingly
participated securing first position in the interview. Thereafter he was
given appointment as Assistant Director (Planning) and continued as
such for more than 16 years. It is now submitted by Mr. Mohanty that
the initial appointment of the Petitioner by inviting applications from
the existing Coordinators (Planning) is itself violating Rule-5
prescribing procedure for direct recruitment. Rule-5 of the Service
Rules and Regulations, 1996 (Annexure-13) for the employees of
OSEPA prescribes method of engagement of staffs. Sub-rule (a)
speaks that the posts to be filled up by direct recruitment may be done
Location: High Court of Orissa, Cuttack
through advertisement in newspaper or by calling limited list from the
employment exchange. A through perusal said sub-rule (a) of Rule-5
does not reveal the procedure of limited competition as illegal and as
has been done in the present case, all such Coordinators, Planning
serving at that point of time were invited in a fair way to participate in
the interview. It is not the case of the Opposite Parties that the
Petitioner has been selected in an unfair way by ignoring the case of
other eligible candidates. The Petitioner has competed with other
participants who are also similarly situated like the Petitioner, to be
selected in the post of Assistant Director (Planning). Therefore, the
contentions advanced now to say that the appointment of the
Petitioner is not in accordance with the rules being not advertised
openly is not a convincing submission. Since the selection procedure
shows a fair way of selection amongst all such candidates who have
been invited to participate in the interview, the selection of the
Petitioner on merit for the post of Assistant Director (Planning) is
held as valid and without any violation of the rules prescribed thereof.
It is further seen that the post of Assistant Director
(Planning) was never included in the staffing pattern prescribed in the
service regulation of the employees of OSEPA and as per the
submissions of Mr. Mohanty, learned Senior Counsel appearing for
OSEPA, said post was created validly by the decision of 15th
Executive Committee Meeting and thus deem to have included in the
rule in the staffing pattern. But this Court fails to agree with the
submission of Mr. Mohanty for the reason that, whatever decision is
taken by the Executive Committee meeting to create the post and to
fill up the same cannot attract all such procedures prescribed in the
Location: High Court of Orissa, Cuttack
rule automatically unless the post is included in the list of staffs in the
rule.
10. Coming to the next point that, the Petitioner did not have
the requisite qualification to hold the post of Assistant Director
(Planning), it is seen that the same was never subject matter of dispute
for last 17 years till the authorities have decided to terminate him. As
stated earlier, the Petitioner was admittedly invited by the authority to
participate in the interview without being questioned his qualification.
As seen from the selection list appended at Annexure- H/3 & J/3,
there are other candidates also, who participated in the interview
without having MPhil/Phd qualification. Therefore, it is not the case
that the Petitioner alone without having the qualification participated
in the interview but other candidates also were invited and
participated in the interview without having the requisite
qualification. Nonetheless, it is not the fault of the Petitioner that he
has been appointed as Assistant Director (Planning) without having
MPhil/Phd qualification, but it was the Opposite Parties who gave
him appointment as such with their full knowledge that the Petitioner
did not have such qualification with him. The question of lack of
qualification raised after 17 years of continuance of the Petitioner in
service was raised without any reason. Here it is important to mention
that the selection procedure and list prepared by the Selection
Committee under Annexure- H/3 & J/3 to select the Petitioner for
Assistant Director (Planning) has not only been approved by the
Government in School and Mass Education Department but also got
approval by the Chief Secretary to the Government of Odisha, who is
the Chairman of OSEPA. Therefore, the Petitioner cannot be held
Location: High Court of Orissa, Cuttack
with fault for his appointment as such nor he could be held
responsible for any suppression to the selected for the post of
Assistant Director (Planning). The Supreme Court in Dr.M.S.
Mudhol & Anr. v. S.D. Halegkar & Ors., (1993) 3 SCC 591, have
observed that:-
"6. Since we find that it was the default on the part of the 2nd
respondent, Director of Education in illegally approving the
appointment of the first respondent in 1981 although he did not
have the requisite academic qualifications as a result of which the
1st respondent has continued to hold the said post for the last 12
years now, it would be inadvisable to disturb him from the said
post at this late stage particularly when he was not at fault when his
selection was made. There is nothing on record to show that he had
at that time projected his qualifications other than what he
possessed. If, therefore, in spite of placing all his cards before the
selection committee, the selection committee for some reason or
the other had thought it fit to choose him for the post and the 2nd
respondent had chosen to acquiesce in the appointment, it would be
inequitous to make him suffer for the same now. Illegality, if any,
was committed by the selection committee and the 2nd respondent.
They are alone to be blamed for the same.
7. Whatever may be the reasons which were responsible for the
non-discovery of the want of qualifications of the 1st respondent
for a long time, the fact remains that the court was moved in the
matter after a long lapse of about 9 years.
11. In Tridip Kumar Dingal & Ors.v. State of West Bengal &
Ors., (2009) 1 SCC 768, Hon'ble Supreme Court have observed that,
Location: High Court of Orissa, Cuttack
47. In Munindra Kumar and Ors. v. Rajiv Govil and Ors.
MANU/SC/0372/1991: (1991)IILLJ103SC, the selection comprised
of written test, group discussion and oral interview. The relevant
rule fixed 40% of total marks for group discussion and oral
interview (20% each). Though this Court held fixation of marks as
arbitrary, being on higher side, it refused to set aside selection
made on that basis since selection had already been made, persons
were selected, appointed and were in service.
Xxx xxxx xxx
49. In Buddhi Nath Chaudhary and Ors. v. Akhil Kumar and
Ors.MANU/SC/0119/2001: [2001]2SCR18, appointments were
held to be improper. But this Court did not disturb the
appointments on the ground that the incumbents had worked for
several years and had gained good experience. "We have extended
equitable considerations to such selected candidates who have
worked on the post for a long period".
Xxxxxx xxxx xxxx
51. In our considered opinion, the law laid down by this Court in
aforesaid and other cases applies to the present situation also. We
are of the considered view that it would be inequitable if we set
aside appointments of candidates selected, appointed and are
working since 1998-1999. We, therefore, hold that the Tribunal and
the High Court were right in not setting aside their appointments.
12. In Anmol Kumar Tiwari & Ors. v. State of Jharkhand &
Ors., (2021) 5 SCC 424, it is held by the Hon'ble Supreme Court
that:-
11. Two issues arise for our consideration. The first relates to the
correctness of the direction given by the High Court to reinstate the
writ petitioners. The High Court directed reinstatement of the writ
petitioners after taking into account the fact that they were
beneficiaries of the select list that was prepared in an irregular
manner. However, the High Court found that the writ petitioners
were not responsible for the irregularities committed by the
authorities in preparation of the select list. Moreover, the writ
Location: High Court of Orissa, Cuttack
petitioners were appointed after completion of training and worked
for some time. The High Court was of the opinion that the writ
petitioners ought to be considered for reinstatement without
affecting the rights of other candidates who were already selected.
A similar situation arose in Vikas Pratap Singh case3, 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
case3, 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.
13. In Vikas Pratap Singh v. State of Chhattisgarh., (2013) 14
SCC 494, it is observed that,
27. 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.
28. 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
Location: High Court of Orissa, Cuttack
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.
14. In a recent decision of this Court dated 29th September
2023 in Anita Mohapatra & Ors.v. State of Odisha & Ors.,
MANU/OR/1244/2023 the Division Bench of this Court taking
note of different decisions of the Hon'ble Supreme Court have
observed as follows:-
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
Location: High Court of Orissa, Cuttack
(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.
15. In the instant case, when admittedly the Petitioner was
continuing in the post of Assistant Director (Planning) for last 17
years without having any fault on his part or blemish from the
authority, directing for his termination holding him disqualified for
the post is completely unjust and unfair. It is the Opposite Party who
invited the Petitioner and selected him for the post on merit in a due
process of selection. The same authority directing his termination for
not having the requisite qualification after his uninterrupted
continuance of 17 years is thus found illegal. Accordingly, the
Location: High Court of Orissa, Cuttack
impugned order of termination of the Petitioner from the post of
Assistant Director (Planning) is set aside and the Opposite Parties are
directed to allow the Petitioner to continue in the post of Assistant
Director (Planning) in terms of his earlier appointment order dated 1st
November 2004 under Annexure-4.
16. Accordingly, the writ petition is disposed of as allowed.
(B.P. Routray)
Judge
Sangram,Sr.Steno
Sarbani,Jr.Steno
