Orissa High Court
In Both Cases vs State Of Odisha & Others ... Opposite ... on 22 August, 2025
Author: Sashikanta Mishra
Bench: Sashikanta Mishra
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.C(OAC) Nos.3895 of 2014 and 794 of 2017
(Applications under Articles 226 and 227 of the Constitution of
India)
In both cases
Suresh Charan Mishra ... Petitioner
-versus-
State of Odisha & others ... Opposite Parties
Advocates appeared in the case through hybrid mode:
For Petitioner : Mr.Kousik Swain,
Advocate.
-versus-
For Opposite Parties
: Mr. S.N.Patnaik, A.G.A
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CORAM:
JUSTICE SASHIKANTA MISHRA
JUDGMENT
22.8.2025.
Sashikanta Mishra,J. Both these Writ Petitions involve common
facts and being heard together, are being disposed of
by this common judgment.
2. Bereft of unnecessary details, the facts of the
case are that on 12.3.1996, the Government in
Department of School and Mass Education issued a
resolution for appointment of Primary School Teachers
with the stipulation that the select list shall be
prepared on education-district wise basis.
Accordingly, an advertisement was issued on the same
day for selection of Primary School Teachers in respect
of Ganjam District. In so far as Bhanjanagar Education
District is concerned, 302 posts were advertised. The
petitioner belongs to Bhanjanagar Education District
with his name being sponsored by the Employment
Exchange. On 04.6.1996, the erstwhile District
Inspector of Schools, Bhanjanagar directed the
Petitioner to submit his application, which the
Petitioner submitted. While the selection process was
underway, the Government issued another resolution
on 28.9.1996 stating that the selection shall be made
circle-wise. Being aggrieved, some candidates
approached the erstwhile Odisha Administrative
Tribunal in its Cuttack and Bhubaneswar benches by
filing O.A. No.3753(C) of 1996 and batch. On
21.1.2003, the Petitioner was permitted to intervene in
O.A.No.3388/1996 filed by one Someswari Devi. The
Tribunal on that very day directed that the selection
process having already commenced, the authorities
shall complete the selection process district-wise. A re-
select list was prepared by the District Selection
Committee on 9.6.2008 wherein the name of the
Petitioner found place at Sl. No.33 in the District-wise
selection list and 64 in the circle-wise select list.
Despite publication of such list, no appointment order
was issued for which the Petitioner filed contempt
application being C.P.No.127(C)/2004 before the
Tribunal. The Tribunal having directed personal
appearance of the Opp. Party contemnors, the District
Inspector of Schools, Bhanjanagar vide order
dtd.18.1.2014 issued appointment order in favour of
the Petitioner and posted him as trained Primary
School Teacher (Level-V) at Balarampalli Primary
School of Jagannathprasad Block. Prior to that, the
Petitioner having been engaged as Sikshya Sahayak
since 2005 had been regularized as regular Primary
School Teacher in 2011 and was posted in the same
School. The B.D.O., Jagannathprasad, by letter
dtd.27.1.2014 intimated the Petitioner that since he is
continuing as Zilla Parishad Teacher, he cannot join in
another similar post and therefore, asked him to get
himself relieved by order of appropriate authority
before joining the new assignment. Accordingly, the
Petitioner was relived from the post of Zilla Parishad
Teacher on 10.3.2014 and on 11.3.2014, joined as
regular Primary School Teacher in Level-V in the same
School. After joining as such, the Petitioner submitted
a representation on 3.6.2014 to the Director of
Elementary Education claiming service and financial
benefits as admissible to a regular Primary School
Teacher as made available to similarly situated
candidates recruited and joined in the year 1996. The
matter remained pending till 20.3.2017 when the Addl.
Secretary to Government directed the Director of
Elementary Education to cancel the appointment order
issued in favour of the Petitioner as there was no
vacancy to work out the reselect list. Being aggrieved,
the Petitioner filed O.A. No.794(C)/2017 before the
erstwhile Odisha Administrative Tribunal which has
since been transferred to this Court and registered as
W.P.C(OAC) No.794/2017.
3. In so far as the other Writ Petition is concerned, the
Petitioner claims that he was entitled to be appointed
as a regular Primary School Teacher w.e.f. 1996 but
was given appointment only in the year 2014. The
vacancy against which the Petitioner was appointed
relates to the year 1996, but the authorities appointed
him in 2014 without antedating his appointment
against such vacancy. Challenging the same the
Petitioner approached the Tribunal originally in O.A.
No.3895/2015 (C) which has since been transferred to
this Court and registered as W.P.C. (OAC)
No.3895/2014.
4. The case of the Opp. Party-authorities in a
nutshell, is that as per direction of the Tribunal and
instruction of Director of Elementary Education,
appointment orders were to be issued in favour of
eligible candidates from the reselect list prepared
strictly in consonance with the judgment
dtd.21.1.2003 against the notified vacancies pursuant
to the resolution dtd.12.3.1996. However, the District
Inspector of Schools, Bhanjanagar, instead of
implementing the judgment in its letter and spirit,
issued appointment order illegally only in favour of the
Petitioner and posted him as trained Primary School
Teacher (Level-V) at Balarampalli Primary School of
Jagannathprasad Block against a non-existing post.
Such order was issued without knowledge of the
District Education Officer, who is the Chairman of the
District Level Selection Committee and whose approval
is mandatory for appointment of Level-V teachers. After
receipt of the order of appointment, the Petitioner
submitted his joining report on 24.1.2014, which was
not accepted by the BDO as he was continuing as Zilla
Parishad Teacher in the same School w.e.f. 01.5.2011.
Since the Petitioner is continuing as Zilla
Parishad Teacher, he cannot join in another similar
post. The B.D.O. therefore, asked him to be relieved by
order of appropriate authority before joining in his new
assignment. The Headmaster-in-charge of the School,
in his letter dtd.21.8.2014 to the BEO, informed that
the Petitioner had compelled him to sign on the so-
called relieve and joining letter dtd.11.3.2014 and he
had signed on the said letters anticipating non-
cooperation of the Petitioner in the management of
day-to-day school work. The said letter does not
contain any official letter number of the school. On the
other hand, the petitioner has been putting his
signature as Zilla Parishad Teacher and also receiving
salary as such. There is neither any entry in the
service book regarding joining on 11.3.2014 nor any
mention in the teachers' attendance register of the
school for the months of 2014. In fact, the petitioner is
still continuing as Zilla Parishad Teacher, as his
joining report was not accepted by the B.D.O. Since
the so-called appointment order was issued without
prior knowledge of the D.E.O., the matter was brought
to the notice of the Director, Elementary Education as
well as the Government. The Government had not
issued any direction to issue appointment order in
favour of any individual, for which, the same is illegal
and void and the D.E.O. was therefore, directed to
cancel the appointment order by letter dtd.20.3.2017.
5. Heard Mr. Kousik Swain, learned counsel for the
Petitioner and Mr. S.N.Patnaik, learned Addl.
Government Advocate for the State.
6. Mr. Swain would argue that the concerned
authorities committed gross illegality in preparing the
select list circle-wise even through the original
resolution dtd.12.3.1996 mentioned that the same was
to be done district-wise. The matter being challenged
before the Tribunal and this Court, it was specifically
directed that wherever selection process had begun,
the same was to be done district-wise. In so far as the
Bhanjanagar Education District is concerned, selection
process had already begun. As such, the Petitioner was
placed at Sl. No.33 of the district-wise select list and
64 in the circle-wise select it. Either way, he was
entitled to be appointed as regular trained Primary
School Teacher. The authorities however sat over the
matter and only after coercive orders were passed by
the Tribunal in the contempt application filed by the
Petitioner that they took action by issuing order of
appointment in favour of the petitioner on 18.1.2014.
Referring to the appointment order enclosed as
Annexure-10 to the rejoinder affidavit in W.P.C.(OAC)
No.794/2017, Mr. Swain would submit that the
Petitioner was posted as trained regular Primary
School Teacher in Balarampalli Primary School, where
he was already posted as regular Primary School
Teacher under the Zilla Parishad since 2011. Thus, for
no fault of the Petitioner, he was kept out of
employment from 1996 till 2014. His services as
trained regular Primary School Teacher, therefore,
ought to be antedated to the year 1996 as the same
was against the vacancies notified in that year. Instead
of doing so, the authorities illegally cancelled his
appointment by order dated 20.3.2017. Mr. Swain
further argues that the plea taken by the authorities
that he is still working as Zilla Parishad Teacher is
completely baseless.
7. Per contra, Mr. Patnaik, learned Addl.
Government Advocate, would argue that the question
as to whether the select list is to be prepared district-
wise or circle wise was the subject matter of several
litigations before the erstwhile Odisha Administrative
Tribunal as well as this Court. Ultimately, this Court
directed that wherever the selection process had
begun, the select list shall be prepared district-wise.
While the matter was being examined with reference to
the available vacancies, the Petitioner approached the
Tribunal in a contempt application. In view of the order
passed in the contempt application, the erstwhile
District Inspector of Schools, without obtaining
approval of the competent authority unilaterally issued
the order of appointment only in favour of the
Petitioner even though there was no such direction by
the Tribunal in its judgment. Moreover, it was found
that the Petitioner was already working against a
regular post being regular Primary School Teacher
since 2011. The BDO therefore did not accept his
joining report. The Petitioner made a false claim of
joining but his joining report having never been
accepted, he cannot be said to have been relieved from
the post against which he was working. In fact, the
petitioner is still working as a Zilla Parishad Teacher
on regular basis. The order of appointment having
been passed without reference to the select list and
without any vacancies, was rightly cancelled. Under
such circumstances, the Petitioner having never been
actually appointed, cannot in any manner be said to be
affected by the order of cancellation of the
appointment. On the same analogy, having never been
appointed as trained Primary School Teacher, the
question of antedating his service to 1996 does not
arise.
8. The facts of the case as narrated are not disputed.
In view of the judgment passed by this Court in OJC
No.9384/1997 on 1.12.2000 and in view of the fact
that the resolution of March, 1996 stipulates that
there would be District-wise selection, it was directed
that the same process should be adhered to in respect
of the educational district where the selection process
has already commenced in accordance with the
resolution dtd.12.3.1996. This Court, therefore, finds it
unnecessary to delve into the question as to if it was
proper on the part of the authorities to prepare select
list circle-wise for Bhanjanagar Education District. It
has not been disputed that the selection process, in so
far as Bhanjanagar Education District is concerned
had already commenced and therefore, it would be
reasonable to hold that the select list ought to have
been prepared district-wise. It is also not disputed that
the Petitioner was placed at Sl.No.33 of the re-select
list prepared district-wise. But the same, per se, is not
enough to conclusively hold that the Petitioner was
eligible for appointment. In other words, there being no
clear-cut material placed before this Court as to the
exact number of vacancies available for the category to
which the Petitioner belongs, it would not be possible
for this Court to give any finding thereon. It is borne
out from the materials on record that while the
selection of Primary School Teachers pursuant to the
resolution dtd.12.3.1996 was locked up in litigations,
the Petitioner was engaged as Sikshya Sahayak in the
year 2005. Having completed six years of continuous
service, he was regularized as Primary School Teacher
w.e.f. 01.5.2011. The Petitioner having accepted such
regularization was posted as regular Primary School
Teacher in Balarampalli Primary School in
Jagannathprasad Block. Nothing has been placed
before this Court to show that acceptance of such
regularization of his services by the Petitioner was
without prejudice to his claim for engagement as
Trained Primary School Teacher pursuant to the
resolution dtd.12.3.1996. As such, having accepted
regularization of his services w.e.f. 01.5.2011, the
Petitioner must be deemed to have foregone his claim
in respect of the post of Trained Primary School
Teacher pursuant to the resolution dtd.12.3.1996.
Even accepting for a moment that the Petitioner could
lay a valid claim on the post of trained Primary School
Techer on being offered with appointment on
18.1.2014, he was obviously required to be relieved
from the post he was then holding so as to be able to
join in the new post. It is to be kept in mind that both
the posts are regular posts under the Government. The
Petitioner claims to have been relieved by the
Headmaster in-charge on 11.3.2014 and also
submitted his joining report, but then, fact remains
that his joining report was never accepted by the
B.D.O. The Petitioner has relied upon the relieve order
dtd.11.3.2014, which according to the State was
obtained forcibly by the Petitioner. This Court is not
willing to enter into the factual controversy in such
regard. Fact remains that the Petitioner has not been
able to conclusively demonstrate that he had joined in
the new post. The so-called joining report
dtd.11.3.2014 is unable to be accepted on the face of
evidence adduced by the State in its counter and
additional affidavits showing that the Petitioner is still
continuing and drawing salary as Zilla Parishad
Teacher. This automatically demolishes his claim of
being relieved as Zilla Parishad Teacher and joining as
Primary School Teacher. In the peculiar facts and
circumstances, this Court refrains from going into the
question of justifiability of issuance of the order of
cancellation of the Petitioner's so-called appointment
on 20.3.2017. In fact, it is a redundant question now.
9. Having held that the Petitioner was never
actually appointed as a regular Primary School Teacher
w.e.f. 18.1.2014 as claimed, the question of antedating
his service to the year 1996 automatically becomes
redundant also. The Petitioner claims that the persons
similarly placed as him were appointed on 02.12.1996,
but no proof thereof has been furnished by him for
consideration of this Court.
10. Thus, from a conspectus of the analysis of facts,
contentions raised and the discussion made, this
Court finds that the Petitioner has not made out any
case for interference by this Court. This Court holds
that the Petitioner is not entitled to the relief claimed
in the Writ Petitions.
11. Resultantly, the Writ Petitions being devoid of
merit are therefore, dismissed. There shall be no order
as to costs.
................................
Sashikanta Mishra,
Judge
Ashok Kumar Behera
Location: High Court of Orissa, Cuttack
