Orissa High Court
Sabyasachi Mohanty vs State Of Orissa And Anr. . Opp. Parties on 7 March, 2025
Author: A.K. Mohapatra
Bench: A.K. Mohapatra
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.16314 of 2022
An application under Articles 226 & 227 of the
Constitution of India.
Sabyasachi Mohanty . Petitioner
Mr. Subhadutta Routray, Advocate
-versus-
State of Orissa and Anr. . Opp. Parties
Mr.M. R. Mohanty, A.G.A.
Mr. S.N. Pattnaik, Adv. For O.P. No. 2.
CORAM:
JUSTICE A.K. MOHAPATRA
_____________________________________________________
Date of hearing :12.11.2024 | Date of Judgment : 07.03.2025
______________________________________________________
A.K. Mohapatra, J. :
1. The petitioner has filed this writ application challenging
the action of Opp. Party No. 2 in not awarding marks in lieu of
the continuous service rendered by the petitioner as contractual
employee under the District Project Coordinator, Sarva Sikshya
Abhiyan, Khurda as MIS- cum- Planning Coordinator in terms of
the Rule 8 of Odisha Group C & Group D Posts (contractual
appointment) Rules, 2013 (hereinafter referred to as „the 2013
Rules‟), and not awarding marks to the petitioner in respect of
Question No. 2(e) of the Practical Test conducted by the Opp.
Party No. 2.
FACTS PLEADED BY THE PETITIONER
2. The factual background leading up to filing of present
writ application as pleaded by the petitioner, in nutshell is that,
the petitioner was working as contractual employee under the
District Project Coordinator, Sarva Sikshya Abhiyan, Khurda as
MIS- cum- Planning Coordinator. Pursuant to an Advertisement
No. 2650, dated 20.05.2015 published by Opp. Party no. 2-
Odisha Staff Selection Commission, (hereinafter referred to as
„the Commission‟), regarding selection of the candidate for
recruitment to the post of Junior Data Entry Operator on
contractual basis of the State Secretariat under Home Department,
Government of Odisha. Under the Clause 11(a) & (b) of the
advertisement, it is stated that the contractual employees
belonging to category I & category II who have completed atleast
one year of continuous service will be awarded 1% extra marks
on the total marks of the examination for each completed years of
continuous service subject to a maximum of 15% which shall be
added to the marks secured by the candidate while deciding the
merit position. As the petitioner has rendered two years and eight
months under the District Project Coordinator, Sarva Sikshya
Abhiyan, Khurda as MIS- cum- Planning Coordinator, which is
admittedly a Group- C post on contractual basis, from 01.09.2012
to 01.05.2015, he is entitled for additional 2.8% marks in terms of
the Clause 11(a) & (b) of the said advertisement However, while
publishing the merit list, the experience acquired by the petitioner
as a contractual employee has been ignored by the Opp Party
No.2 in violation of the conditions laid down in the
advertisement.
3. The Opp. Party No.2- Commission vide its Corrigendum
Notice No.636, dated 03.02.2017 has deleted viva voce test under
Clause 10 of the advertisement which was 20 marks and the same
was substituted with Test on Computer Fundamental (Theory)- 40
marks and Test on Computer (Practical)- 40 marks i.e. total 80
marks. Furthermore, Clause 14 provides that the merit list will be
prepared taking into account the sum total of marks secured by
the candidate in computer fundamental theory and practical and
bonus mark (in case of in- service contractual employees as per
Clause- 11(b) of the advertisement) taken together in order of
merit.
4. Pursuant to the said corrigendum dated 03.02.2017, the
written test was held on 17.04.2016 and after such written test,
computer examination- both theory and practical, was held on
28.12.2019. After such test, the petitioner was called upon for
document verification on 06.03.2020. Eventually, on 01.07.2021,
the Opp. Party No. 1 published the final merit list of the selected
candidates for the post of Junior Data Entry Operators wherein
the name of the petitioner did not find place and moreover, out of
232 advertised vacancy, total 185 candidates were selected.
5. The petitioner made a RTI application on 21.02.2022
before the PIO of the Opp. Party No.2 Commission and on
08.04.2022 PIO of the Opp. Party No. 2 furnished the requisite
information to the petitioner wherein under Point No. 2 the marks
secured in the written examination of the petitioner is indicated as
25 and the marks secured in the computer skill is 35 marks i.e.
total 60 marks has been secured by the petitioner in the
recruitment test. From the perusal of the information sheet
provided by the PIO, the mark secured by the last selected
candidate under the UR (male) category is 62.
6. The petitioner again made a RTI application on
08.04.2022 asking the entire Question paper of the Computer
Practical Test and the answer sheet of the petitioner for the said
test. The PIO of the Commission on 28.06.2022 supplied the
information. On perusal of the information supplied by the
PIO in the question paper, Question no. 2(e) was- "Insert header
„Exam 2019‟ and footer „OSSC‟ in the above MS- Word File"
and the said question was for 2 marks. On perusal of the answer
sheet of the petitioner, it appears that the Opp No. 2 has not
awarded 2 marks as the petitioner has answered Question- 2(e)
correctly and the same has remained unevaluated by the Opp.
Party No. 2.
7. It is the case of the petitioner that, he was an in- service
candidate and continuing as MIS cum Planning Coordinator under
the School and Mass Education for a period of 2.8 years. In terms
of the „2013 Rules‟ along with Clause 11 of the advertisement,
the petitioner should have been awarded additional 2.8 marks and
in case, the said marks for being an in- service candidate will be
added to the total marks secured by the petitioner, the total will
come to 62.8 marks which is more than the last selected candidate
who has secured 62 marks.
8. It was further pleaded on behalf of the petitioner that,
Rule- 3 of the 2013 Rules states about the applicability of the
Rules upon the employees appointed on contractual basis. Under
the Rule- 4 of the 2013 Rules, two categories of the contractual
employees has been described- one being the Category-I i.e.
contractual appointments made with prior concurrence of the
Finance Department and Category- II, i.e., contractual
engagement made through the manpower service provider.
According to the petitioner, he falls under the category- I which
can be verified from the certificate issued from the former
employer of the petitioner. Therefore, it is pleaded by the
petitioner that non- consideration of his case for grace marks in
lieu of his previous tenure as contractual government employee
under Rule- 8(b) of the 2013 Rules, which states for additional
grace marks for each completed years of continuous service
subject to a maximum of fifteen percent read along with Clause-
11 of the advertisement, is not only illegal but also is
discriminative and not permissible in the eye of law.
Reply BY OPP. PARTY 1 & 2
9. In the counter affidavit filed by Opp Party No. 1 &2 on
25.08.2022, it has been pleaded that the petitioner has prayed for
awarding grace marks on the total marks secured by him for each
completed years of continuous service in terms of the Rules- 8(b)
of the 2013 Rules. Learned counsel for the opposite parties
referred to Rule-3(4) of the 2013 Rules, which reads as follows;
"These rules shall not apply to contractual appointment made
under
(a) Temporary plan scheme (including those under centrally
sponsored plan scheme, externally aided projects)
(b) Temporary Establishments
(c) Tenure based posts
Provided that person appointed on contractual basis under
these schemes prior to the commencement of these rules,
who are below 45 years shall be allowed to participate in
the recruitment process under rule 5 for any Group- C or
Group- D posts, if they satisfy all other eligibility criteria
for such post as laid down in the relevant recruitment rules
and shall be allowed relaxation of upper age limit for entry
into Government Service."
10. The counter affidavit further reveals that, the persons appointed
under sub- rule- 2 and proviso to sub- rule-4 shall get the benefit of
these rules only after they were recruited and appointed to any post
under rule-5. The petitioner has been appointed as MIS- cum- Planning
Coordinator under District Project Coordinator, Sarva Sikshya
Abhijan, Khorda, which is a centrally sponsored plan scheme. As the
petitioner has been appointed under SSA scheme, which is a centrally
sponsored scheme, no weightage mark has been awarded as per
Clause- 11 of the advertisement. The petitioner has not been selected
for the post as he has secured 60 marks and the last candidate selected
of his category has secured 62 marks.
11. Furthermore, it has also been pleaded in the counter affidavit
that, the petitioner has raised objection on the ground that Opp. Party
no. 3 has not awarded marks in respect of question no. 2(e) of the
Computer Skill Test. But on verification of his Computer Skill Test
answer paper it was found that the petitioner has not answered question
no. 2(e) of the Computer Skill Test. Hence, no mark has been awarded.
REJOINDER AFFIDAVIT FILED BY THE PETITIONER
12. The petitioner has filed a rejoinder affidavit on 15.01.2023, in
reply to the counter affidavit filed by Opp. Party no. 1 and 2 wherein it
has been stated that the Opp. Party no. 1 and 2 are trying to justify their
arbitrary action in not awarding 1% extra mark on the total marks of
the examination for each completed year of service as has been
contained in Rule 8(b) of the 2013 Rules. It was reiterated by the
petitioner that Rule-3 of the 2013 Rules states about applicability of
the Rules upon the employees appointed on contractual basis and in
Rule- 4 two categories of the contractual employees have been
described, one being the Category- I i.e., contractual appointments
made with the prior concurrence of the Finance Department, and
Category- II i.e., contractual engagement made through the manpower
service provider. It was submitted on behalf of the petitioner that he
falls under Category- I, which can be verified from the certificate
issued by the former employer of the petitioner and therefore, non-
consideration of the case of the petitioner for awarding grace marks in
lieu of his past experience as contractual government employee is
illegal and arbitrary.
13. Learned counsel for the State on the other hand contended that
the petitioner has been appointed as MIS- cum- Planning Coordinator
under District Project Coordinator, Sarva Sikshya Abhijan, Khorda,
which is a centrally sponsored plan scheme. As the petitioner has been
appointed under SSA scheme, which is a centrally sponsored scheme,
no weightage mark could be awarded as per Clause- 11 of the
advertisement. In this regard, it was submitted by the petitioner in the
rejoinder reply that, School and Mass Education Department in the
year 2011 issued an advertisement for different posts wherein the
petitioner applied for the post of MIS cum Planning Coordinator
against the substantive posts which has also got concurrence from the
Finance Department and wherein the recruitment procedure under The
Orissa Reservation of Vacancies in Posts and Services (For Schedule
Caste and Schedule Tribe) Act, 1975 has also been followed. Keeping
in view the aforesaid facts, the appointing authority of the petitioner
i.e., District Project Coordinator issued him certificate for claiming
benefits under the 2013 Rules.
14. Learned counsel for the petitioner further submitted that the
Opp. Party no. 1 & 2 are trying to justify their action by restricting the
benefit of the 2013 Rules only for the candidates who are the Data
Entry Operators/ Computer Personnels engaged in the departments of
the Secretariat either on contractual basis or on outsourcing basis
(without following due procedure), which is clearly impermissible. In
order to give weightage for the past services rendered by a person
working on contractual basis and to fructify such years, the
government/executive decided to promulgated the 2013 Rules and by
no means any functionary of the government can curtail the ambit and
scope of the 2013 Rules. Further, it was pleaded that the Opp. parties
cannot create a class among class by restricting the benefit of the 2013
Rules only to the Data Entry Operator or Computer Personnel engaged
in the departments of the Secretariat. Such action of the Opp. Parties is
violative of Article-14 of the Constitution of India, 1950.
15. Mr. Routray, learned senior counsel for the Petitioner
emphatically submitted that the petitioner has answered Question No.
2(e) which was for 2 marks, but the answer was never evaluated by the
Opp. Party No. 1 & 2. He further submitted that if Opp. Party No. 1&
2 would have corrected the answer script of the petitioner with due
diligence, the petitioner would not have been deprived of getting
appointment as the petitioner would have easily secured more marks
than the marks secured by the last candidate selected for appointment.
REPLY OF THE OPP PARTY NO.2
16. The Opp. Party no. 2 subsequently filed their reply on
5.12.2023, to the rejoinder filed by the petitioner. It was clarified in
such reply that, the question no. 2 consists of five bit questions- a,b,c,d
and e, which needs to be individually answered. But the petitioner has
answered the questions as a whole in one place. In question no. 2(b),
the petitioner sets the whole date in the font size 22 which does not
fulfill the requirement of the question. In question no. 2(c), a new row
in between Row 1 and Row 2 is to be inserted, but this part has not
been reflected in the answer. The petitioner has sorted the table date in
descending order instead of ascending order with reference to age
which is a clear mistake while answering the question 2(d). Lastly, the
petitioner had answered the question 2(e) and has been awarded with
the deserving full marks. It was further clarified in such reply that a
mistake has been committed while filing the previous counter affidavit
about the marks awarded in respect of question 2(e), but such mistake
was committed being confused with the single answer of different sub-
question under the heading 2(a). After a query was made, an evaluator
from the panel of evaluator was consulted along with a scheme of
evaluation. From which it was clear that the petitioner has been
correctly awarded with the marks as against question no. 2 and has
been awarded with 2 marks against question no. 2(e). The Opp. parties
in such reply affidavit begged unconditional apology while filing such
counter affidavit and stated that it was purely unintentional. It was
further submitted that, the petitioner has been awarded 6 marks out of
full marks of 10 marks in question no.2.
REJOINDER OF THE PETITIONER TO THE REPLY BY THE
OP NO.2
17. Thereafter, the petitioner filed his reply on 14.01.2024, to the
reply filed by Opp. Party no. 2. It was pleaded by the petitioner that,
Opp. Party no. 2 has filed such reply affidavit on 05.12.2023 deviation
from the earlier stand taken by them in the previous counter affidavit
filed by them on 25.08.2022. In the previous affidavit it was submitted
by the opposite parties that the petitioner has not answered question
no. 2(e), where as in the subsequent reply it was submitted that the
petitioner has in fact answered question no. 2(e) and he has been
awarded 2 marks for the same. In the subsequent reply, Opp. Party
no.2 has taken a new stand that the petitioner has been awarded 6
marks out of 10 in respect of question no. 2 as he has answered the
entire question in one table.
18. The stand of the petitioner in this regard is that the question
paper of Computer Practical Test, in the note to paragraph- 3 granted
liberty to the candidates for making suitable assumption wherever
required. Accordingly, in reply to question no. 2(a), the petitioner
created the table in M.S. Word by inserting the required rows and
columns by incorporating the given name and data and thereafter, in
respect of question no. 2(b) the petitioner even though was required to
set the font size 22 and font style italic and accordingly, the petitioner
has made the font size as per the question and font style italic of the
entire table as in the question no minimum font size or style was
indicated so far as other rows are concerned.
19. Thereafter, under question no. 2(c) it was asked to insert a new
row in between row- 1 and row- 2 by inserting the credentials given in
the question paper which the petitioner has done so. In question no.
2(d), the candidates were asked to modify the tables in ascending order
with respect to their age in which the present petitioner committed the
mistake by sorting the table in descending order. But nowhere in the
given question no. 2 it was mentioned that in order to insert a new row
or to sort the table in ascending order you have to create a new table as
the entire question set under question no. 2 has been following a flow,
starting from creating the table, thereafter setting the font size and
style, thereafter inserting a new row and finally setting the table data in
ascending order. It was further stated by the petitioner that the Opp.
Party no.2 in order to justify their illegal action are saddling the entire
responsibility on the petitioner stating that he has not created a new
table in respect of question no. (c) and (d) which the question no. 2
never asked for.
20. In the course of hearing, it was contended by the learned counsel
representing the petitioner that, he has not been awarded proper marks
against his answer to question no.1. It was further contended, referring
to the question paper submitted, that the petitioner has not been
awarded marks in respect of question no. 2(c). It was also contended
that in view of question no. 2(b), the answer to question no. 2(c) is to
be given in a modified format. It was submitted by him that the
petitioner has not been given correct marks and the petitioner is
entitled to get eight marks as he has answered four questions correctly
out of five questions in question no.2.
21. Mr. S.N. Pattnaik, learned counsel appearing on behalf of Opp.
Party no.2, on the other hand contended that the petitioner has been
awarded the marks correctly in question no.2 and he is entitled to 6
marks out of 10 marks.
ISSUES FOR CONSIDERATION
22. In the given factual background and upon consideration of the
pleadings made in the writ petition, counter affidavits and subsequent
reply affidavits made by both the parties and after hearing submissions
made by the learned counsels on behalf of the respective sides; the
court finds that the issue for consideration in the present case is two-
fold-
1. Whether the petitioner is entitled to the extra weightage marks
in lieu of the continuous service rendered by him as contractual
employee under the District Project Coordinator, Sarva Sikshya
Abhiyan, Khurda as MIS- cum- Planning Coordinator in terms
of the Rule 8 of Odisha Group C & Group D Posts (Contractual
Appointment) Rules, 2013 r/w Clause 11 of the advertisement?
2. Whether the Opp. Parties have failed to correctly evaluate the
answer of the petitioner to the question No.2 of the Computer
practical test?
POINTS FOR CONSIDERATION IN EACH ISSUE
21. The first issue is to be adjudicated keeping in view-
a) The pleading made by the opposite party that the petitioner cannot avail
the benefit of extra marks as provided under Clause 11 of the
advertisement and rule 8 of the 2013 rules, as he was appointed as a
contractual employee in the centrally sponsored scheme as per Rule-3(4)
of the 2013 Rules.
22. The second issue is to be adjudicated by going through-
a) the answer script of Computer Skill Test submitted by the opp. Party no. 2,
complying with the order of this court vide order no.10 dated 29.01.2024.
COURT'S ANALYSIS
23. Keeping in view the pleadings of the respective parties and the
issue with regard to evaluation of the answer script, that has been
specifically raised and emphatically argued, this Court, at this stage
would like to attempt to answer the second issue first. In order to
consider the second issue, this Court is required to first examine the
answer script which has been filed along with the writ application
under Annexure-7. A scrutiny of aforesaid document reveals that the
Petitioner has attempted Question No.2 and he has been awarded 6
marks out of the total 10 marks that is assigned to Question No.2. On a
close scrutiny of the answer script of the Petitioner, this Court observes
that the Petitioner‟s answer to the Question No.2 has not been properly
evaluated. Further, in order to compare the marks awarded to other
candidates who have answered Question No.2, this Court vide order
dated 29.01.2024 had asked the Opposite Party-Odisha Staff Selection
Commission to produce some of the answer scripts of some of the
candidates who had appeared along with the present Petitioner.
Pursuant to the aforesaid direction, answer scripts were produced
before this Court in a sealed cover. After opening the sealed cover, this
Court verified the answer scripts of some of the candidates, who had
appeared in the said examination and who have attempted Question
No.2 and have been awarded marks therein. On perusal of such answer
scripts, it is observed that in respect of Question No.2 some of the
candidates, whose code numbers have been given below, have secured
the following marks indicated against their respective code number:-
Marks
Sl. No. Code No.
Awarded
On verification of the answer scripts of such candidates whose
marks have been indicted hereinabove, this Court observes that the
Petitioner has also given a similar answer in a tabular form. Although
such candidates have been awarded full marks, however, the Petitioner
has been awarded a total of 6 marks, so far the Question No.2 is
concerned. In such view of the matter, this Court has no hesitation in
coming to a conclusion that the petitioner‟s answer to the Question
No.2 has not been properly evaluated and that the Petitioner is entitled
to more marks in respect of his answer to Question No.2 keeping in
view the marks awarded to similarly placed candidates who had
appeared along with the Petitioner in the very same recruitment test.
Therefore, the answer to the second issue.2 is bound to be decided in
favour of the present Petitioner.
24. The next question that falls for consideration is issue No.1 as has
been indicated hereinabove. The Petitioner is claiming an extra 2.8
marks in lieu of his continuous service as a contractual employee under
the District Project Co-ordinator, Sarva Sikshya Abhiyan, Khurda as
MIS-cum-Planning Co-ordinator in terms of Rule-8 of Odisha Group-
C & Group-D posts (Contractual Appointment) Rules, 2013 coupled
with Clause-11 of the advertisement. The advertisement dated
20.05.2015, pursuant to which the recruitment process was conducted,
has been filed along with the writ application as Annexure-1. Clause-
11 of the said advertisement lays down a special provision. Since the
said provision is a relevant for a just adjudication of the issue involved
in the present writ application, the same is extracted herein below:-
"11. Special Provision:
The Data Entry Operator/Computer personnel
engaged in the Departments of Secretariat either
on contractual basis without adopting the due
procedure or on outsourcing basis shall be
extended relaxation in upper age limit and allowed
extra mark, if they appear at the recruitment on
production of certificate of engagement from the
respective Administrative Department as per the
provision contained in G.A. Department
notification No.32010/Gen dtd. 12.11.2013.
(a) The contractual employees belonging to
Category-I and the persons provided by the
manpower service provider agencies under
Category-II, who shall be less than 45 years of age
and shall have completed at least one year of
continuous service, in case they apply for
Recruitment under sub-rule (1) of rule 5 for any
Group -C and Group-D posts, shall be allowed
relaxation of upper age limit for entry into
Government service; provided they satisfy all other
eligibility criteria for the post as laid down in the
relevant recruitment rules.
(b) They shall be allowed one percent extra marks
on the total marks of the examination for each
completed year of continuous service subject to a
maximum of fifteen percent, which shall be added
to the marks secured by them for deciding the
merit position. Such marks will be awarded on the
total marks after the viva-voce Test."
25. In view of Clause-11 of the advertisement under Annexure-1,
the Data Entry Operator/Computer personnel engaged in the
Departments of Secretariat, either on contractual basis without
adopting due procedure or on outsourcing basis, shall be extended
relaxation in upper age limit and they shall also be allowed extra marks
in the event they appear in the recruitment exam, on production of
certificate of engagement from the respective Administrative
Department, in view of GA Department notification dated 12.11.2013.
Furthermore, Clause-11(b) provides that they shall be allowed 1%
extra marks on the total marks of the examination for each completed
year of continuous service subject to a maximum of 15%. Such
additional weightage mark shall be added to the total mark secured by
them for deciding the merit position. It has also been clarified that such
marks shall be awarded on total marks after the viva-voce Test.
26. Mr. Routray, learned senior counsel appearing for the Petitioner
strenuously argued that although the Petitioner is entitled to the
additional weightage mark as per the Clause-11 of the advertisement
under Annexure-1. However, the authorities have illegally not awarded
such mark to the Petitioner. Learned senior counsel appearing for the
Petitioner further contended that had the extra weightage mark been
awarded to the Petitioner in terms of Clause-11 of the advertisement,
the Petitioner would have qualified in the recruitment exam. While
substantiating the aforesaid ground, learned senior counsel for the
Petitioner referred to Office Order dated 01.09.2012 under Annexure-
3. Vide Office Order dated 01.09.2012, the Petitioner was appointed
by the District Project Co-ordinator, SSA, Khurda on contractual basis.
Therefore, by the time the advertisement under Annexure-1 was
published, the Petitioner had already acquired two years and eight
months of experience. This fact has also been categorically mentioned
in Petitioner‟s application form under Annexure-2, at Sl. No.12, under
the heading "Work experience details". Further, such appointment was
made by following the due procedure of law by the Collector-cum-
Chairman, SSA, Khurda. He also referred to the certificate under
Annexure-7 to the writ petition issued under the signature of the
District Project Co-ordinator, SSA, Khurda, which was submitted
before the OSSC by the Petitioner. The certificate so submitted by the
Petitioner in the prescribed format for claiming benefits under the
Contractual Appointment Rules, 2013 reveals that the Petitioner has
been engaged in the office as MIS-cum-Planning Co-ordinator on
contractual basis w.e.f. 01.09.2012. Such certificate further reveals that
the Petitioner has been engaged against a contractual post which has
been created with the concurrence of the Finance Department vide
their order UOR No.133-SS-1, dated 20.09.2011 without following the
recruitment procedure including the ORV Act, 1975.
27. Since the facts reflected in the certificate issued by the District
Project Co-ordinator, SSA, Khurda, which have been discussed in the
previous paragraph, cannot be disputed by either side to the present
writ application, this Court shall now proceed with the examination of
the issue as to whether in view of the aforesaid factual position, the
Petitioner is entitled to the additional weightage mark as has been
provided under Annexure-11 of the advertisement under Annexure-1
to the writ petition. Clause-11(b) of the advertisement clearly stipulates
that the employees mentioned in Clause-11 of the advertisement shall
be entitled to 1% extra mark on the total marks of the examination for
each completed year of continuous service subject to a maximum of
15%. Therefore, if the provision of Clause-11(b) is applied to the facts
of the present case, the Petitioner would get 2% extra marks on the
total marks of the examination, i.e. 2% of 100 marks, which equals to 2
marks, and as such the total marks of the Petitioner would be 62 marks.
In such eventuality, the Petitioner would be eligible to get the
appointment considering the fact that the last candidate in the UR
Category who has been appointed had secured 62 marks which is equal
to the marks that the Petitioner would hypothetically secure if the
additional weightage marks (2 marks) are awarded to the Petitioner as
discussed hereinabove, especially considering the fact that there are
vacant posts available against which the Petitioner can be given
appointment.
28. So far, the eligibility of the Petitioner to get such additional
marks is concerned, this Court is required to examine the eligibility
criteria as prescribed in Clause-11 of the advertisement. In the first
portion of Clause-11, it has been prescribed that Data Entry
Operator/Computer personnel engaged in the Department of the
Secretariat either on contractual basis without adopting due procedure
or on outsource basis shall be extended with the benefit of extra marks
as provided in Clause-11(b), provided, they appear in the recruitment
test and produce a certificate of engagement from the respective
administrative department. Similarly, Clause-11(a) includes
contractual employees falling under Category-I & II, who are less than
45 years of age and have completed at least one year of continuous
service, in case they apply for recruitment under Sub-Rule-1 of Rule-5
for any Group-C and Group-D posts, they shall be allowed relaxation
of upper age limit. Therefore, both the categories of employees, i.e.
those who have been engaged on contractual basis by different
departments of the Secretariat as well as contractual employees under
the 2013, Rules are eligible to get age relaxation as well as the
additional weightage mark.
29. Moreover, this Court observes that there is no distinction
between contractual employees who have been engaged by different
departments of the Secretariat and the contractual employees who have
been engaged by the District Administration, particularly by the
Collector and District Project Co-ordinator, SSA of different districts.
In either case, the employees have been engaged on contractual basis
by the employer which is the Government of Odisha. May be they are
required to perform different nature of work, however, on the basis of
such work assigned to them, they cannot be treated differently. Further,
the argument advanced by the learned counsel appearing for the
Opposite Parties that the Petitioners are not eligible to get such
relaxation under Clause-11 of the advertisement on the ground that
they were engaged on contractual basis in project mode appears to not
be based on any sound logic. Two different sets of contractual
employees engaged by the government at two different places cannot
be treated differently, otherwise such conduct would amount to
discrimination. Moreover, such conduct of creating a group within the
government employees on the basis of the nature of work that they are
performing, without any justification or sound reason, would be termed
as discriminatory and arbitrary and as such, the same would be hit by
the principle enshrined in Article-14 of the Constitution of India. Thus,
this Court is of the considered view that the Opposite Parties have
indeed committed an illegality by treating the present Petitioner
differently to those employees who were engaged on contractual basis
by the various departments of the Secretariat and such conduct of the
Opposite Parties would definitely cause discrimination to the
Petitioner, and as such, the same would be unsustainable in view of
Article-14 of the Constitution of India.
30. The avowed objective behind Article-14 of the Constitution of
India is to ensure that all persons are treated equally. Similarly,
Article-16 of the Constitution of India lays down the fundamental
principle of equality of opportunity in matters of public employment.
Testing the conduct of the Opposite Parties against the touchstone of
Articles-14 & 16 of the Constitution of India, this Court observes that
such conduct of the Opposite Parties would not pass the test of equal
treatment of the citizens in the matter of public employment. In the
present case, the principles laid down in Articles-14 & 16 would
squarely apply, inasmuch as the Petitioner, who was engaged on
contractual basis by the government at the district level, has been
discriminated against while extending such benefits to other employees
who were engaged on contractual basis by the government in different
departments of the Secretariat. Moreover, such discrimination by the
government has no discernable nexus with any particular object to be
achieved, so that the same can be saved from being hit by the
provisions of Articles-14 & 16 of the Constitution of India.
31. In view of the aforesaid analysis of the factual background of
the present writ application as well as the legal position, this Court is
of the considered view that the Opposite Parties have committed an
illegality by not awarding the extra marks to the Petitioner as has been
provided under Clause-11(b) of the advertisement under Annexure-1.
Resultantly, while allowing the writ application, this Court directs the
Opposite Party No.2, by issuing a writ of mandamus, to reassess the
case of the Petitioner and to award the extra marks to which the
Petitioner is entitled to on the basis of his experience certificates and
on such basis the total marks obtained by the Petitioner be recalculated
and accordingly the case of the Petitioner be considered for
appointment to the post pursuant to the advertisement under Annexure-
1. Since, one post has been kept reserved by virtue of an interim order
passed earlier in the present writ application, it is needless to direct that
the case of the Petitioner shall be considered for appointment against
the said post, in the event the Petitioner is found eligible, after
awarding the extra marks to the Petitioner as has been directed
hereinabove.
32. Accordingly, the writ petition stands allowed. However, there
shall be no order as to cost.
(Aditya Kumar Mohapatra)
Judge
Orissa High Court, Cuttack
The 7th March, 2025/ S.K. Rout, Jr. Stenographer
Location: High Court of Orissa, Cuttack
