Orissa High Court
Debasmita Panda And Others vs State Of Odisha & Others ... Opposite ... on 5 April, 2025
Author: Sashikanta Mishra
Bench: Sashikanta Mishra
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) Nos.15465/2020, 16237/2019, 16408/2019,
16762/2019, 16765/2019, 16766/2019, 16768/2019,
16770/2019, 16771/2019, 16773/2019, 16774/2019
16776/2019, 16778/2019, 16779/2019,
17346/2019/17500/2019,18019/2019 and
18020/2019
(Applications under Articles 226 and 227 of the Constitution of
India)
A.F.R. In W.P.(C) No.15465/2020
Debasmita Panda and others
... Petitioners
-versus-
State of Odisha & others ... Opposite Parties
Advocates appeared in the case through hybrid mode:
For Petitioners : Mr.B. Routray,
Sr. Advocate,
Mr. J. Biswal, Advocate
Mr. S.D. Routray, Advocate
Mr. B. Singh, Advocate
-versus-
For Opposite Parties
: Mr. S.N.Patnaik, A.G.A
In W.P.(C) No.16237/2019
Kruttibash Jena ... Petitioner
-versus-
W.P.(C) No.15465 of 2020 and batch Page 1 of 24
State of Odisha & others ... Opposite Parties
Advocates appeared in the case through hybrid mode:
For Petitioner : Mr. M.R. Padhi, Advocate
Mr. R.C. Jena, Advocate
-versus-
For Opposite Parties : Mr. S.N. Patnaik, A.G.A.
In W.P.(C) No.16408/2019
Himansu Mandal ... Petitioner
-versus-
State of Odisha & others ... Opposite Parties
Advocates appeared in the case through hybrid mode:
For Petitioner : Mr. N. Lenka, Advocate,
Mr. L. Sahu, Advocate
-versus-
For Opposite Parties : Mr. S.N. Patnaik, A.G.A.
In W.P.(C) No.16762/2019
Kamini Prava Jena ... Petitioner
-versus-
State of Odisha & others ... Opposite Parties
Advocates appeared in the case through hybrid mode:
W.P.(C) No.15465 of 2020 and batch Page 2 of 24
For Petitioner : Mr. M.K Mohanty, Advocate
Mr. R.C. Jena, Advocate
Mr. M.R Padhi, Advocate
-versus-
For Opposite Parties : Mr. S.N. Patnaik, A.G.A
In W.P.(C) No.16765/2019
Sandhyarani Sahu ... Petitioner
-versus-
State of Odisha & others ... Opposite Parties
Advocates appeared in the case through hybrid mode:
For Petitioner : Mr. R.C. Jena, Advocate
Mr. M.R. Padhi,Advocate
-versus-
For Opposite Parties : Mr. S.N. Patnaik, A.G.A
In W.P.(C) No.16766/2019
Rajashree Das ... Petitioner
-versus-
State of Odisha & others ... Opposite Parties
Advocates appeared in the case through hybrid mode:
For Petitioner : Mr. R.C. Jena, Advocate
Mr. M.K Mohanty, Advocate
W.P.(C) No.15465 of 2020 and batch Page 3 of 24
-versus-
For Opposite Parties : Mr. S.N. Patnaik, A.G.A
In W.P.(C) No.16768/2019
Santilata Samal ... Petitioner
-versus-
State of Odisha & others ... Opposite Parties
Advocates appeared in the case through hybrid mode:
For Petitioner : Mr. R.C. Jena, Advocate
Mr. M.K Mohanty, Advocate
-versus-
For Opposite Parties : Mr. S.N. Patnaik, A.G.A
In W.P.(C) No.16770/2019
Bidyut Kumar Ghosh ... Petitioner
-versus-
State of Odisha & others ... Opposite Parties
Advocates appeared in the case through hybrid mode:
For Petitioner : Mr. R.C. Jena, Advocate
Mr. M.K Mohanty, Advocate
-versus-
For Opposite Parties : Mr. S.N. Patnaik, A.G.A
In W.P.(C) No.16771/2019
W.P.(C) No.15465 of 2020 and batch Page 4 of 24
Jyotshnarani Behera ... Petitioner
-versus-
State of Odisha & others ... Opposite Parties
Advocates appeared in the case through hybrid mode:
For Petitioner : Mr. R.C. Jena, Advocate
Mr. M.K Mohanty, Advocate
-versus-
For Opposite Parties : Mr. S.N. Patnaik, A.G.A
In W.P.(C) No.16773/2019
Gouri Senapati ... Petitioner
-versus-
State of Odisha & others ... Opposite Parties
Advocates appeared in the case through hybrid mode:
For Petitioner : Mr. R.C. Jena, Advocate
Mr. M.K. Mohanty, Advocate
Mr. M.R. Padhi, Advocate
-versus-
For Opposite Parties : Mr. S.N. Patnaik, A.G.A
In W.P.(C) No.16774/2019
Sandhyarani Pradhan ... Petitioner
W.P.(C) No.15465 of 2020 and batch Page 5 of 24
-versus-
State of Odisha & others ... Opposite Parties
Advocates appeared in the case through hybrid mode:
For Petitioner : Mr. R.C. Jena, Advocate
Mr. M.R. Padhi, Advocate
-versus-
For Opposite Parties : Mr. S.N. Patnaik, A.G.A
In W.P.(C) No.16776/2019
Jitendra Kumar Barik ... Petitioner
-versus-
State of Odisha & others ... Opposite Parties
Advocates appeared in the case through hybrid mode:
For Petitioner : Mr. R.C. Jena, Advocate
Mr. M.K. Mohanty, Advocate
Mr. M.R. Padhi, Advocate
-versus-
For Opposite Parties : Mr. S.N. Patnaik, A.G.A
In W.P.(C) No.16778/2019
Gouranga Charan Dutta ... Petitioner
-versus-
State of Odisha & others ... Opposite Parties
W.P.(C) No.15465 of 2020 and batch Page 6 of 24
Advocates appeared in the case through hybrid mode:
For Petitioner : Mr. R.C. Jena, Advocate
Mr. M.K. Mohanty, Advocate
Mr. M.R. Padhi, Advocate
-versus-
For Opposite Parties : Mr. S.N. Patnaik, A.G.A
In W.P.(C) No.16779/2019
Tanuja Patra ... Petitioner
-versus-
State of Odisha & others ... Opposite Parties
Advocates appeared in the case through hybrid mode:
For Petitioner : Mr. R.C. Jena, Advocate
Mr. M.K. Mohanty, Advocate
Mr. M.R. Padhi, Advocate
-versus-
For Opposite Parties : Mr. S.N. Patnaik, A.G.A
In W.P.(C) No.17346/2019
Jayanta Kumar Mohanta ... Petitioner
-versus-
State of Odisha & others ... Opposite Parties
Advocates appeared in the case through hybrid mode:
For Petitioner : Mr. R.C. Jena, Advocate
W.P.(C) No.15465 of 2020 and batch Page 7 of 24
Mr. P.K Mohapatra, Advocate
-versus-
For Opposite Parties : Mr. S.N. Patnaik, A.G.A
In W.P.(C) No.17500/2019
Bharat Kumar Sahoo ... Petitioner
-versus-
State of Odisha & others ... Opposite Parties
Advocates appeared in the case through hybrid mode:
For Petitioner : Mr. R.C. Jena, Advocate
Mr. M.K. Mohanty, Advocate
Mr. M.R. Padhi, Advocate
-versus-
For Opposite Parties : Mr. S.N. Patnaik, A.G.A
In W.P.(C) No.18019/2019
Durgabati Senapati ... Petitioner
-versus-
State of Odisha & others ... Opposite Parties
Advocates appeared in the case through hybrid mode:
For Petitioner : Mr. R.C. Jena, Advocate
Mr. M.R. Padhi, Advocate
-versus-
W.P.(C) No.15465 of 2020 and batch Page 8 of 24
For Opposite Parties : Mr. S.N. Patnaik, A.G.A
In W.P.(C) No.18020/2019
Jyotsna Mayee Barik ... Petitioner
-versus-
State of Odisha & others ... Opposite Parties
Advocates appeared in the case through hybrid mode:
For Petitioner : Mr. R.C. Jena, Advocate
Mr. M.R. Padhi, Advocate
-versus-
For Opposite Parties : Mr. S.N. Patnaik, A.G.A
---------------------------------------------------------------------------
CORAM:
JUSTICE SASHIKANTA MISHRA
JUDGMENT
05.04.2025.
Sashikanta Mishra,J. All these Writ Petitions involve common
facts and law and being heard together, are being
disposed of by this common judgment.
2. Be it noted at the outset that these Writ Petitions
can be categorized into two groups. The first group,
comprising of one Writ Petition being W.P.(C)
No.15465/2020 has been filed by persons belonging to
unreserved category who were selected as Sikshya
Sahayaks pursuant to advertisement dtd.09.12.2011
against posts in the +2 C.T. category in Betonoti
Education District, but have not been able to join
because of interim orders passed in other batch of Writ
Petitions.
The Second group is a batch of Writ Petitions
being WP(C) Nos.16408/2019, 16762/2019,
16765/2019, 16766/2019, 16768/2019, 16770/2019,
16771/2019, 16773/ 2019, 16774/2019
16776/2019, 16778/2019, 16779/2019, 17346/2019,
17500 /2019, 18019/2019 and 18020/ 2019, except
WP(C) No.16237/2019 filed by persons already
engaged as Sikshya Sahayaks (against SEBC
vacancies) since 2012. The Petitioner in W.P.(C)
No.16237/2019 was engaged against SC vacancy,
whose engagement was sought to be terminated in
view of the judgment passed by this Court on
09.1.2018 in W.P.(C) No.22234/2012. All these
persons have been continuing on the strength of
interim orders passed by this Court.
3. The facts of the case lie in a narrow compass. An
advertisement was issued on 09.12.2011 by the
Collector-cum-Chief Executive, Zilla Parishad,
Mayurbhanj inviting applications for engagement as
Sikshya Sahayaks in different education districts of
Mayurbhanj. 145 posts were notified for +2 C.T.
category in Betnoti education district. The Petitioners
of both groups of Writ Petitions were applicants. On
conclusion of the selection process, the Petitioners of
the second batch were found suitable for engagement
and accordingly were engaged as per order issued by
the Collector, Mayurbhanj on 21.12.2012. As per the
resolution of the Government, these persons, upon
completion of 3 three years of service have been
engaged as Jr. Teacher. The Petitioners of the first Writ
Petition were not successful and their names found
place in the waiting list. The final merit list so
published was challenged by several persons before
this Court in W.P.(C) No.22234/2012 on the ground
that the same was in violation of the reservation policy
and the ratio decided by the Supreme Court in the
case of M.Nagaraj and others vs. Union of India
and others; AIR 2007 SC 71. By order darted
9.1.2018, a division bench of this Court, basing on the
judgment rendered in an earlier batch of cases namely,
State of Odisha and others, Shradhanjali Jena,
Subhashree Jena vs. Amar Chhatoi, State of
Odisha and others being W.P.(C) Nos.7504, 1593
and 3453 of 2014, held that reservation beyond 50%
of the posts is not valid. In the instant case, since the
advertisement provided for reservation up to 27% for
SEBC candidates thereby taking the total percentage of
reservation beyond 50%, the engagement of the
candidates in excess of the 50% limit was held to be
illegal. Accordingly, by order dtd.6.2.2019, the District
Project Coordinator, S.S. Mayurbhanj prepared a fresh
merit list on the premise that 15 candidates
(Petitioners of the second batch) were required to be
disengaged. Accordingly, order of disengagement was
also issued on 29.8.2019 in respect of the said 15
persons along with three other persons whose names
were not reflected in office order dated 29.8.2019. Said
orders are impugned in the second batch of Writ
Petitions and as already stated, on the strength of
interim orders passed therein, 14 candidates along
with three others who have approached this Court are
still continuing.
4. The first Writ Petition has been filed by persons,
who were called upon for verification of documents for
their engagement as Sikshya Sahayaks in view of the
recasting of the select list by order dated 29.8.2019 of
the D.P.C. These persons have prayed to direct the
Opp. Parties to issue order of engagement in their
favour in view of recasting of the select list.
5. Heard Mr. Budhadev Routray, learned Senior
counsel with Mr. J. Biswal, Mr. S.D.Routray and B.
Singh for the petitioners of the first Writ Petition, and
Mr. Manoj Kumar Mohanty, Mr. R.C.Jena and Mr.
Niranjan Lenka learned counsel for the Petitioners in
the second batch of Writ Petitions. Also heard Mr.
S.N.Patnaik, learned Addl. Government Advocate for
the State.
6. Mr. B. Routray, learned Senior Advocate would
argue that once the Division Bench of this Court held
the engagement of the persons in excess of 50% limit
as bad in law, said persons have no legal right to
continue in employment. On the contrary, the persons
who were wrongly deprived of selection and
engagement have now become eligible for engagement
consequent upon recasting of the select list. But,
because of interim orders of protection passed by this
Court in favour of the petitioners of the second batch
of Writ Petitions, they are deprived of their legitimate
right of being engaged. Mr. Routray further submits
that because of the mistake committed by the
authorities, the Petitioners have been deprived of their
rightful due since 2011.
7. Mr. M.K.Mohanty, learned counsel appearing for
the Petitioners in the second batch of Writ Petitions
would argue that said Petitioners cannot be
disengaged as they were engaged after a due selection
process. Mistake if any in applying the principles of
reservation lies entirely with the authorities concerned
and cannot be attributed to the Petitioners. Mr.
Mohanty alternatively argues that even otherwise
considering the fact that the Petitioners have
continued to discharge duties since 2012 and have
also become over-aged for public employment cannot
simply be thrown out as it would seriously affect their
right to livelihood. He therefore, submits that there
being adequate vacancies available, the Petitioners of
the first Writ Petition can be adjusted against the same
without disturbing these Petitioners, some of whom are
presently nearing retirement.
8. Mr.S.N.Patnaik, learned Addl. Government
Advocate would submit that the judgment passed by
the Division Bench having become final there is no
option left with the authorities but to implement the
same. As such, engagements are required to be made
strictly as per the recast select list. The Petitioners of
the first Writ Petition deserve to be engaged but for the
interim orders passed in the second batch of Writ
Petitions. As regards the availability of vacancies to
adjust the Petitioners of the first Writ Petition, Mr.
Patnaik submits that the vacancies that have not been
advertised cannot be filled up with other candidates or
candidates already engaged on the basis of the
previous select list.
9. This Court finds that there is no dispute as
regards the facts of the cases. Admittedly, the
Petitioners of the second batch of Writ Petitions were
engaged pursuant to the advertisement
dtd.09.12.2011. Such engagement being beyond the
limit of 50% reservation was held to be illegal basing
on the judgment passed by the Division Bench of this
Court in the previously referred Writ Petitions. Said
Petitioners have not questioned the correctness of the
judgment of the Division Bench before the higher
forum. Even otherwise, as per the ratio decided in the
case of M. Nagraj (supra), the limit of reservation is
50% and any engagement in excess of such limit is
bad in law. To such extent therefore, the order
dtd.6.2.2019 passed by the D.P.C. in recasting the
select list to exclude the candidates engaged in excess
of the 50% limit as also the order of disengagement
dtd.29.8.2019 cannot be faulted with in any manner
whatsoever. On the other hand, the recasting of the
select list by order dtd.6.2.2019 has resulted in
inclusion of the Petitioners of the first Writ Petition for
engagement which is in line with the ratio decided in
M.Nagraj (supra), as followed by the judgment of the
Divison Bench. The recasting of the select list and the
letter dt.29.8.2019 calling upon the candidates for
document verification for their engagement cannot also
be faulted with. Therefore, the first Writ Petition can
only be allowed by directing the authorities to issue
orders of engagement in favour of the Petitioners
without any further delay.
10. This takes the Court to the question as to what
would happen to the Petitioners of the second batch of
Writ Petitions. Ordinarily, this Court having found no
illegality in the impugned order of disengagement
would not be persuaded to interfere therewith.
However, this Court cannot also lose sight of the fact
that the Petitioners of the second batch of Writ
Petitions have been continuing as Sikshya
Sahayaks/Jr. Teachers for nearly 13 years by now. As
argued by Mr.Mohanty, the mistake in preparing the
selection list contrary to law cannot be attributed to
them by any means and yet, they are faced with
imminent termination of their services. As stated at the
bar, all of them have become age-barred for any future
public employment and some of them are also nearing
the age of superannuation. This is an unusual
situation that needs to be addressed with utmost
sensitivity, as giving effect to the impugned order
would entail throwing out these 17 Petitioners to fend
for themselves.
11. It is the long settled position of law that right to
livelihood is included in the right to life guaranteed
under Article 21 of the Constitution of India. In the
case of Olga Tellis vs. Bombay Municipal
Corporation and others,1986 AIR 180, the Supreme
Court had the following words to say in this context;
"As we have stated while summing up the
petitioners' case, the main plank of their
argument is that the right to life which is
guaranteed by Article 21 includes the right to
livelihood and since, they will be deprived of
their livelihood if they are evicted from their
slum and pavement dwellings, their eviction
is tantamount to deprivation of their life and
is hence unconstitutional. For purposes of
argument, we will assume the factual
correctness of the premise that if the
petitioners are evicted from their dwellings,
they will be deprived of their livelihood. Upon
that assumption, the question which we have
to consider is whether the right to life
includes the right to livelihood. We see only
one answer to that question, namely, that it
does. The sweep of the right to life conferred
by Article 21 is wide and far-reaching. It does
not mean merely that life cannot be
extinguished or taken away as, for example,
by the imposition and execution of the death
sentence, except according to procedure
established by law. That is but one aspect of
the right to life. An equally important facet of
that right is the right to livelihood because,
no person can live without the means of
living, that is, the means of livelihood. If the
right to livelihood is not treated as a part of
the constitutional right to life, the easiest way
of depriving a person of his right to life would
be to deprive him of his means of livelihood to
the point of abrogation. Such deprivation
would not only denude the life of its effective
content and meaningfulness but it would
make life impossible to live. And yet, such
deprivation would not have to be in
accordance with the procedure established by
law, if the right to livelihood is not regarded
as a part of the right to life. That, which
alone makes it possible to live, leave aside
what makes life livable, must be deemed to
be an integral component of the right to life.
Deprive a person of his right to livelihood and
you shall have deprived him of his life.
Indeed, that explains the massive migration
of the rural population to big cities. They
migrate because they have no means of
livelihood in the villages. The motive force
which propels their desertion of their hearths
and homes in the village is the struggle for
survival, that is, the struggle for life. So
unimpeachable is the evidence of the nexus
between life and the means of livelihood.
They have to eat to live : only a handful can
afford the luxury of living to eat. That they
can do, namely, eat, only if they have the
means of livelihood. That is the context in
which it was said by Douglas, J. in Baksey
[347 US 442, 472 : 98 L Ed 829 (1954)] that
the right to work is the most precious liberty
that man possesses. It is the most precious
liberty because, it sustains and enables a
man to live and the right to life is a precious
freedom. "Life", as observed by Field, J. in
Munn v. Illinois [(1877) 94 US 113] means
something more than mere animal existence
and the inhibition against the deprivation of
life extends to all those limits and faculties by
which life is enjoyed. This observation was
quoted with approval by this Court in Kharak
Singh v. State of U.P. [AIR 1963 SC 1295 :
(1964) 1 SCR 332 : (1963) 2 Cri LJ 329] ."
12. This Court also takes note of the fact that the
engagement of the Petitioners (of the second batch) was
the result of mistake committed by the authorities and
not a case where they obtained engagement by
adopting any unfair means or misrepresentation of
facts etc. It would be entirely iniquitous to simply
thrown them out at this distance of time. Mr.Mohanty
has suggested that there being availability of large
number of vacancies, the petitioners of the first Writ
Petition can be easily adjusted against the same. But
as contended by learned State counsel, which this
Court concurs with, it would amount to appointment
against vacancies that have not been notified nor any
selection process initiated. It would be contrary to the
fundamental principles of service jurisprudence.
13. What relief then can be granted to the Petitioners
of the second batch of Writ Petitions? This Court takes
note of the fact that the said Petitioners are only 17 in
number and belong to Betnoti education district.
Faced with an almost similar situation, a division
Bench of this Court in W.P.(C) No.5050/2012 held as
follows;
"For giving effect to our order dated
15.12.2011 passed in WP(C) No.20249 of
2009 and the batch of connected writ
petitions, in our considered opinion, it
would be proper for the State Government
not to dispense with the services of the
petitioners who have admittedly worked
for 5-6 years on their appointment for no
fault of theirs. Termination of their services
at this stage would result in great
hardship to them and their families.
Therefore, it would be appropriate for the
State Government to create a separate
cadre for them for their continuance on
adhoc basis, as a one-time measure and to
adjust them against future vacancies of
their respective categories. Recruitment to
the future vacancies by way of new/fresh
advertisement should take care of the
adjustment of the petitioners and similarly
situated persons and the vacancies so
advertised shall be reduced to the extent of
such adjustments/regularization of the
petitioners category-wise."
14. Adopting the principle and pious intent
underlined in the aforementioned order, this Court is
of the considered view that the services of the
Petitioners, who are only 17 in number, can be
protected by creating same number of supernumerary
posts to be abolished upon their superannuation. It is
needless to mention that this exercise would not entail
a heavy burden on the State exchequer. Besides it
would conform to the underlying principle of a welfare
State like India where the Government is treated as
model employer. Moreover, this would not cause
prejudice to any person.
15. It is to be noted that it is not entirely
unprecedented for making such arrangement, namely
creating supernumerary posts to prevent loss of
livelihood of persons while giving effect to judicial
pronouncement in favour of others. The Supreme
Court has recognized this principle in various cases. In
Union of India and Ors. v. Parul Debnath and Ors.
(2009) 14 SCC 173, it was held as follows;
"On the question of creation of supernumerary
posts, it may be indicated that while it is no
doubt true that creation of posts is the
prerogative of the executive, in order to meet
certain special exigencies such a course of
action has been resorted to by this Court and
in our view this is one such case where such a
direction does not need any intervention."
16. For the foregoing reasons therefore, the first Writ
Petition is allowed. The Opp. Parties are directed to
issue orders of engagement in favour of said Petitioners
without any further delay. It is made clear that their
engagement shall relate back to the date on which the
Petitioners of the second batch of the Writ Petitions
were first engaged, though the same shall be without
any financial benefits, but the period shall count
towards notional continuity of service for all other
service benefits.
17. The second batch of Writ Petitions are disposed
of by directing the Opp. Party-authorities to create
supernumerary posts equal to the number of
Petitioners of the second batch of writ petitions and to
adjust them against such posts. It is made clear that
this order shall not act as a precedent for other
candidates and the supernumerary posts shall stand
abolished from the date the incumbents retire on
superannuation or otherwise vacate the post.
18. With these observations, the Writ Petitions are
disposed of.
..................................
Sashikanta Mishra,
Designation: A.D.R.-cum-Addl. Principal Secretary
Ashok Kumar Behera
Location: High Court of Orissa, Cuttack
Date: 08-Apr-2025 14:32:28
