Orissa High Court
Somanath Behera vs State Of Odisha & Ors. .... Opposite ... on 15 January, 2025
Author: Biraja Prasanna Satapathy
Bench: Biraja Prasanna Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) Nos. 13055, 12754, 13233, 13236, 13239,
13277, 13278, 13279, 13281, 13282, 13284, 13285, 13338,
13339, 13340, 13341, 13563, 13566 & 13651 of 2024
W.P.(C) No. 13055 of 2024
In the matter of an application under Articles 226 & 227 of the
Constitution of India.
..................
Somanath Behera .... Petitioner
-versus-
State of Odisha & Ors. .... Opposite Parties
For Petitioners : Mr. B. Routray, Sr. Advocate
along with
Mr. S.D. Routray, Advocate
For Opp. Parties : Mr. C.K. Pradhan,
Addl. Govt. Advocate
PRESENT:
THE HON'BLE JUSTICE BIRAJA PRASANNA SATAPATHY
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Date of Hearing: 15.01.2025 & Date of Judgment: 15.01.2025
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Biraja Prasanna Satapathy, J.
1. This matter is taken up through hybrid mode.
2. Since the issue involved in all these cases are identical, all the writ
petitions were heard analogously and disposed of by the present
common order.
// 2 //
3. Heard learned counsel appearing for the Parties.
4. It is contended that all the Petitioners were appointed as Primary
School Teachers basing on the resolution issued by the Govt. in the
Department of School & Mass Education on 12.03.1996.
4.1. It is contended that in terms of the said resolution and the select
list published circle wise, all the Petitioners in the present batch of
writ petitions were appointed in the year 1996-1997. It is also
contended that not only Petitioners were appointed in the year 1996-
97 but also they were extended with the benefit of promotion to the
next higher rank while continuing in service.
4.2. It is however contended that challenging the preparation of select
list circle wise and the benefit of appointment issued in favour of the
Petitioners, some of the unsuccessful candidates approached the
Tribunal by filing O.A. No. 3388(C) of 1996 & batch. The Tribunal
vide order dtd.21.01.2003 while disposing O.A. No. 3388(C) of 1996
& batch directed for preparation of the select list district wise. It is
however contended that none of the Petitioners were impleaded as
Party to the Original Applications so disposed of vide order
dtd.21.01.2003.
// 3 //
4.3. It is contended that the order passed by the Tribunal when was not
complied with, writ petitions were filed before this Court in
W.P.C.(OAC) No. 4449 of 2014 and batch. This Court vide order
dtd.03.03.2023 when directed Opp. Party No. 3 to implement the
order passed by the Tribunal on 21.01.2003, proceedings were
initiated against each of the Petitioners on 09.05.2024 under Rule 15
of OCS (CCA) Rules, 1962 (in short Rules). It is contended that
without providing the documents so relied on and without disposing
the proceeding in accordance with Rule 15 of the Rules, all the
Petitioners were terminated from their services vide similar orders
issued on 16.05.2024. Such orders of termination issued on
16.05.2024 in each of the present batch of cases are under challenge.
4.4. It is contended that since Petitioners in the present batch of writ
petitions were not Party before the Tribunal and while implementing
the order passed by the Tribunal in O.A. No. 3388(C) of 1996 & batch
dtd.21.01.2003, further directed by this Court in its order
dtd.03.03.2023 in W.P.C.(OAC) No. 4449 of 2014, in the proceeding
initiated under Rule 15 of the Rules and prior to disposal of the said
proceeding in accordance with law, order of termination could not
have been issued on 16.05.2024 in each of the cases.
// 4 //
4.5. It is further contended that by virtue of the interim order passed in
each of the cases, all the Petitioners are continuing in their respective
posts as on date. It is also contended that since Petitioners without any
fault of their own were appointed way back in the year 1996-97 and
are in the service roll as on date, in view of the decision in the case of
Bikash Mahalik Vs. State of Odisha & Ors. reported in 2022 (I) ILR-
CUT-108, so followed by this Court in so many cases, the impugned
order of termination issued in each of the cases on 16.05.2024 is not
sustainable in the eye of law.
4.6. This Court in Para 27 & 28 of the Judgment in the case of Bikash
Mahalik has held as follows:-
"27. In Pratima Sahoo (supra), this Court held that the
order of disengagement of the petitioner from the post of Sikshya
Sahayak, pursuant to decision of the district administration,
having found qualified in the selection process and appointed
after resigning from her erstwhile post of Anganwadi Worker and
having worked for six to eight months, amounts to putting the
petitioner in prejudicial and disadvantageous position and the
reason assigned for later finding the petitioner not suitable for
securing less marks than other meritorious candidates do holds
good, the petitioner cannot be found faulted by the mistake
committed by the appointing authority in calculating the
percentage. Consequentially, direction was given to absorb the
petitioner forthwith applying the doctrine of promissory estoppel
in the said case.
// 5 //
28. In view of the law and fact, as discussed above, the
irresistible conclusion is that the show-cause notice dated
31.03.2015 under Annexure-13 issued by opposite party no.3, the
letter dated 09.02.2015 under Annexure-13/1 issued by opposite
party no.2 to opposite party no.1 and letter dated 26.03.2015
under Annexure-13/2 issued by the Government of Odisha,
Revenue and Disaster Management Department to opposite party
no.2 cannot sustain. Therefore, the same are liable to be quashed
and hereby quashed. Pursuant to interim order passed on
07.04.2019 by the Odisha Administrative Tribunal since the
petitioner is still continuing, he shall be allowed to continue with
all service and financial benefits as due and admissible to him in
accordance with law."
4.7. In support of his submission learned Sr. Counsel appearing for the
Petitioners also relied on the decisions of the Hon'ble Apex Court in
the case of Vikas Pratap Singh & Ors. Vs. State of Chhattisgarh &
Ors. reported in (2013) 14 SCC 494, Anmol Kumar Tiwari & Ors.
Vs. The State of Jharkhand & Ors. reported in (2021) 5 SCC 424.
4.8. Hon'ble Apex Court in Para 27 & 28 of the Judgment in the case
of Vikash Pratap Singh has held as follows:-
"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
// 6 //
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
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.
4.9. Similarly, Hon'ble Apex Court in Para 10 & 11 of the Judgment
in the case of Anmol Kumar Tiwari has held as follows:-
"10. On behalf of the writ petitioners, it was argued that though
the selections initially were made on the basis of preference to the
3 categories of posts that were advertised. It was later found that
the select list should have been prepared on the basis of merit and
thereafter, preference has to be taken into account. Having realised
the mistake that was committed, the authorities revised the select
list pursuant to which the appointment of the writ petitioners was
cancelled. By the time a decision was taken to revise the select list
and cancel their appointments the writ petitioners had completed
their training and had worked for a considerable period of time.
According to them, the High Court correctly granted relief to the
writ petitioners by taking into account the fact that they were not
responsible for the irregularities committed in the preparation of
the initial select list.
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
// 7 //
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
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 case [Vikas Pratap
Singh v. State of Chhattisgarh, (2013) 14 SCC 494 : (2013) 3 SCC
(L&S) 100] , 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 case [Vikas Pratap Singh v. State of Chhattisgarh,
(2013) 14 SCC 494 : (2013) 3 SCC (L&S) 100] , 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."
4.10. Learned Sr. Counsel also relied on various decisions of this
Court in the case of Dhruba Charan Naik Vs. State of Odisha & Ors.
(W.P.(C) No. 11614 of 2023), Abhilash Nanda & Ors. Vs. D.G. &
I.G. of Plice, Odisha & Ors. (W.P.C.(OAC) No. 2066 of 2016 &
batch) and Dillip Kumar Mohapatra vs. State of Odisha & Ors.
(W.P.(C) No. 19298 of 2010).
// 8 //
4.11. This Court in Para 6, 6.1 & 6.2 of the order in the case of
Dhruba Charan Naik has held as follows:-
"6. Having heard learned counsel appearing for the Parties and
after going through the materials available on record, this Court
finds that Petitioner in terms of the resolution issued on 19.08.1996
under Annexure-2 was regularized as a primary school teacher
vide order dtd.24.12.1997 under Annexure-3. The show-cause
dtd.27.12.2018 under Annexure-5 was issued after more than 21
years of his regularization inter alia on the ground that the
Petitioner has been illegally regularized though his claim is not
covered under resolution dtd.19.08.1996. Petitioner while
submitting his reply to the show-cause under Annexure-8 though
took a specific stand that since the Petitioner is a regular primary
school teacher in terms of the order issued under Annexure-3 and
no order of termination can be passed without initiating a
proceeding with passing of the order in terms of the provisions
contained under OCS (CCA) Rules, 1962. But it is found that Opp.
Party No. 3 without considering such stand in its proper
prospective and without taking into account the long continuance
of the Petitioner as a regular primary school teacher since
24.12.1997 passed the impugned order on 03.04.2023 under
Annexure-9 by terminating the Petitioner from his services with
immediate effect.
6.1. Since the Petitioner is a regular primary school teacher having
been regularized since 1997, placing reliance on the decisions as
cited (supra), it is the view of this Court that the Petitioner cannot
be terminated with issuance of a mere show-cause so issued under
Annexure-5. This Court also placing reliance on the decision in the
case of Bikash Mahalik (supra) is also of the view that since the
Petitioner has been regularized without any fault of his own since
24.12.1997 and he has continued as such for more than 21 years by
// 9 //
the time the show-cause was issued to him on 27.12.1998, no order
of termination can be passed against the Petitioner on the ground
indicated in the impugned order.
6.2. Therefore, in view of such material irregularity, which is
apparent on the face of the impugned order, this Court is inclined
to quash the impugned order dtd.03.04.2023 so issued by the Opp.
Party No. 3 under Annexure-9. While quashing the same, this
Court directs the Opp. Parties to allow the Petitioner to continue in
his post of regular primary school teacher."
4.12. This Court in Para 30, 31 & 32 of the order in the case of
Abhilash Nanda has held as follows:-
"30. It is also the view of this Court that since the Petitioners in the
writ petitions filed in the year 2016 and 2017 were provided with
the appointment in the year 2013 basing on the 1st select Page 26
of 29 list published by the Department on 28.8.2013, in view of the
decision of the Hon'ble Apex Court rendered in the case of J.S.
Yadav (supra), no fault can be found with them. It is also the view
of this Court that in view of the appointment and continuance of the
Petitioners of the writ petitions filed in the year 2016 and 2017
without having any fault on their part, applying the principle of
doctrine of promissory estopel and the decision of this Court in the
case of Bikas Mahalik (supra), the Petitioners are not liable for
their retrenchment basing on the impugned notice issued on
3.6.2016.
31. Lastly, this Court relying on the decision of the Hon'ble Apex
Court in the case of Vikas Pratap Singh (supra) and of this Court
in the case of Bikash Mahalik (supra), also is of the view that since
the Petitioners are continuing for the last 9 years, on being duly
appointed by the Department, the Petitioners be allowed to
// 10 //
continue as against the posts and if no post is available, then the
State-Opposite Parties may adjust all those Petitioners as against
the vacancies which might have arisen after publication of the 3rd
select list on 8.4.2016 or as against future vacancies.
32. It is, however, the view of this Court that the prayer made by
the Petitioners in the writ petitions filed in the year 2014 and 2015
have become infructuous due to publication of the 2nd select list on
7.11.2014 and 3rd select list on 8.4.2016. Not only that the
decisions relied on by Mr. Mohanty, learned counsel appearing for
some of the Interveners in the writ petitions filed in the year 2016,
is not applicable to the facts of the said batch of cases, in view of
the subsequent decision of the Hon'ble Apex Court in the cases of
Gaurav Pradhan and Niravkumar Dilip Bhai Makwana, as cited
supra. This Court is unable to accept the submission of Mr.
Mohanty that since the select list published on 8.4.2016 is based on
the decision rendered by the Hon'ble Apex Court in the cases of
Jitender Kumar Singh (supra) and R.K. Sabharwal (supra), the
action taken by the Department issuing the impugned notice on
3.6.2016 is legal and justified."
4.13. Similarly, this Court in Para 7, 8 & 9 of the judgment in the case
of Dillip Kumar Mohapatra has held as follows:-
"7. This Court after going through the materials available on
record finds that the Petitioner was appointed as a Computer
Technician vide Office order dated 23.04.2001 under Annexure-1.
The said order was issued with a condition that the Petitioner will
continue for a period of one year or till the post is filled up on
regular basis. But prior to completion of the said period of one
year and prior to taking any step to fill up the post on regular
basis, the Petitioner was abruptly terminated from his service vide
order under Annexure-3. From the pleadings available on the
// 11 //
record, it is quite evident that prior to issuing such order of
termination under Annexure-3 on 22.01.2002 the Petitioner was
neither show caused nor any opportunity of hearing was given to
him. The impugned order of termination was also passed without
assigning any reason whatsoever. It is also not the case of the
Opposite Parties that the Petitioner prior to being terminated was
ever show caused and given an opportunity of hearing. It is also
not the case of the Opposite Parties is that the order of termination
was issued because of the fact that the post will be filled up on
regular basis. This Court however finds that persons similarly
situated and disengaged along with the Petitioner were reengaged
and subsequently regularized in their service in terms of the order
passed by the Tribunal in O.A No.2242 of 2002 and O.A No.481 of
2008.
Since the Tribunal while entertaining similar applications allowed
the claim by interfering with the order of termination and pursuant
to the order so passed, the applicants in O.A No.481 of 2008 and
O.A No.2242 of 2002 were not only reengaged in their services, but
also have been regularized in the meantime, as per the considered
view of this Court, the Petitioner is entitled to get similar benefit.
The Tribunal as per the considered view of this Court never take
into account the benefit extended in favour of the applicants in O.A
No.2242 of 2002 and O.A No.481 of 2008 in its proper perspective
though the said fact was brought to the notice of the Tribunal and
discussed under Para-8 of the order.
8. In view of such admitted position and placing reliance on the
decisions as cited (supra), this Court finds that the impugned order
of termination has been issued in violation of the principle of
natural justice as well as without assigning any reason. The
Tribunal also failed to extend similar relief as has been extended in
O.A NO.2242 of 2002 and O.A No.481 of 2008. Therefore, this
Court is inclined to quash the order dated 23.09.2010 passed by
// 12 //
the Tribunal in O.A No.828 (C) of 2002 under Annexure-5 as well
as the order dated 22.01.2002 passed by the Opposite Party No.2
under Annexure-3. While quashing both the orders, this Court held
that the Petitioner is also entitled for his reengagement with all
service and financial benefits as due and admissible.
9. Accordingly, this Court directs the Opposite Party No.2 to
reinstate the Petitioner in his service and extend all the benefit as
has been extended in favour of the applicants in O.A No.2242 of
2002 and O.A No.482 of 2008. The entire exercise shall be
completed within a period of three months from the date of receipt
of this order. However, there shall be no order as to costs."
4.14. It is also contended that while allowing the Petitioners to
continue on the face of the impugned order, applicants in O.A.
3388(C) of 1996 and batch and in terms of order dtd.21.01.2003 of the
Tribunal have got the benefit of appointment in the meantime and the
said fact is also admitted by Opp. Party No. 3 while providing the
information under the RTI. It is accordingly contended that while
allowing the Petitioners to continue, the aggrieved Parties in terms of
the order passed by the Tribunal since have got the benefit of
appointment, Petitioners be allowed to continue in their respective
posts with quashing of the impugned order dt.16.05.2024.
5. Mr. C.K. Pradhan, learned Addl. Govt. Advocate on the other hand
placing reliance on the stand taken in the counter affidavit contended
that in terms of the resolution issued by the Govt. on 12.03.1996 and
// 13 //
the select list published circle wise though the Petitioners got the
benefit of appointment in the year 1996-97, but the preparation of
select list circle wise was assailed before the Tribunal in O.A. No.
3388(C) of 1996 & batch. The Tribunal vide order dtd.21.01.2023
when directed for publication of reselect list district wise and this
Court in W.P.C.(OAC) No. 4449 of 2014 & batch vide order
dtd.03.03.2023 directed for implementation of order dtd.21.01.2003,
while preparing the select list district wise, Petitioners since were not
found eligible to get the benefit of appointment so made in the year
1996-97, proceedings were initiated vide office order dtd.09.05.2024
of the respective Block Education Officers.
5.1. It is contended that even though a proceeding was initiated under
Rule 15 of OCS (CCA) Rules, 1962, but since in terms of the order
passed by the Tribunal on 21.01.2003 and further order passed by this
Court on 03.03.2023 while preparing the reselect list, names of the
present Petitioners were not reflected, they were terminated from their
services vide order dtd.16.05.2024 in each of the cases.
5.2. It is also contended that since Petitioners have got the benefit of
appointment because of wrong preparation of select list, which was
interfered with by the Tribunal, no illegality or irregularity can be
found with the impugned orders of termination.
// 14 //
6. Having heard learned counsel appearing for the Parties and
considering the submission made, it is found that Petitioners got the
benefit of appointment way back in the year 1996-97, basing on the
selection process conducted in terms of resolution issued by the Govt.-
Opp. Party No. 1 on 12.03.1996. Though it is not disputed that all the
Petitioners got the benefit of appointment basing on the select list
published circle wise, which was interfered with by the Tribunal in its
order dtd.21.01.2003 in O.A. No. 3388(C) of 1996 & batch and
further order passed by this Court to comply that order on 03.03.2023
in W.P.C.(OAC) No. 4449 of 2014, but placing reliance on the
decision in the case of Bikash Mahalik and other decisions as cited
supra, it is the view of this Court that since the Petitioners are
continuing since 1996-97 and they were appointed as such without
any fault of their own, Petitioners are otherwise eligible to continue.
6.1. It is also found that even though proceeding was initiated against
each of the Petitioners vide Memorandum dtd.09.05.2024 under Rule
15 of the Rules, but the order of termination was passed just 7 days
after such initiation of the proceeding and without following the
provisions contained under Rule 15. It is also found that applicants in
O.A. No. 3388(C) of 1996 and batch in the meantime have got the
// 15 //
benefit of appointment without disturbing the continuance of the
Petitioners.
6.2. In view of the aforesaid analysis, this Court is inclined to quash
order dtd.16.05.2024 so passed by the respective BEOs in each of the
cases. While quashing order dtd.09.05.2024, this Court in each of the
cases directs the Opp. Parties to allow the Petitioners to continue in
their respective posts as before. Consequentially proceedings initiated
against all the Petitioners on 09.05.2024 also stands quashed.
7. All the writ petitions are accordingly disposed of with the aforesaid
observation and direction.
Photocopy of the order be placed in the connected case
records.
(BIRAJA PRASANNA SATAPATHY)
Judge
Orissa High Court, Cuttack
Dated the 15th January, 2025/Sneha
Location: High Court of Orissa, Cuttack
