Orissa High Court
Choudhury Saubhagya vs State Of Odisha And Others on 11 March, 2025
Author: Arindam Sinha
Bench: Arindam Sinha, M.S.Sahoo
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.A. No.62 of 2025
Choudhury Saubhagya ..... Appellant
Mohan Dash
versus-
State of Odisha and others ..... Respondents
Advocates appeared in this case:
For Appellant : Mr. P.K. Rath, Sr. Advocate
For Respondents : Mr. Pitambar Acharya,
Advocate General with Mr. Saswat Das,
Addl. Govt. Advocate
Mr. Sanjib Swain, Standing Counsel for
OSSC
Mr. Gautam Misra. Sr. Advocate
(for Caveator)
Miss Pami Rath, Sr. Advocate
(for Caveator)
W.A. 3433 of 2024
Punyasha Seeyaram and ..... Appellants
others
versus-
State of Odisha and others ..... Respondents
Advocates appeared in this case:
For Appellants : Ms. Kaveeta Wadia, Sr. Advocate
Mr. Shashank Tripathy, Advocate
For Respondents : Mr. Pitambar Acharya,
W.A. no.62 of 2025 and batch
Page 1 of 19
Advocate General with Mr. Saswat Das,
Addl. Govt. Advocate
Mr. Sanjib Swain, Standing Counsel for
OSSC
Mr. Manoj Mishra, Sr. Advocate for
Caveator
W.A. No.3459 of 2024
Swagat Swain and others ..... Appellants
versus-
State of Odisha and others ..... Respondents
Advocates appeared in this case:
For Appellants : Mr. Budhadev Routray, Sr. Advocate
For Respondents : Mr. Pitambar Acharya,
Advocate General with Mr. Saswat Das,
Addl. Govt. Advocate
Mr. Sanjib Swain, Standing Counsel for
OSSC
Mr. G. Misra, Sr. Advocate (for Caveator)
Ms. Pami Rath, Sr. Advocate
(for Caveator)
W.A. No.91 of 2025
Alka Mahima Surin ..... Appellant
versus-
State of Odisha and others ..... Respondents
Advocates appeared in this case:
For Appellant : None
For Respondents : Mr. Mr. Pitambar Acharya,
W.A. no.62 of 2025 and batch
Page 2 of 19
Advocate General with Mr. Saswat Das,
Addl. Govt. Advocate
Mr. Sanjib Swain, Standing Counsel for
OSSC
Mr. Gautam Misra. Sr. Advocate
(for Caveator)
Ms. Pami Rath, Sr. Advocate
(for Caveator)
W.A. No.92 of 2025
Albert Surin ..... Appellant
versus-
State of Odisha and others ..... Respondents
Advocates appeared in this case:
For Appellant : None
For Respondents : Mr. Mr. Pitambar Acharya,
Advocate General with Mr. Saswat Das,
Addl. Govt. Advocate
Mr. Sanjib Swain, Standing Counsel for
OSSC
Mr. Gautam Misra. Sr. Advocate for
Caveator
W.A. No.94 of 2025
Alina Ankita Surin ..... Appellant
versus-
State of Odisha and others ..... Respondents
Advocates appeared in this case:
For Appellant : None
For Respondents : Mr. Pitambar Acharya,
Advocate General with Mr. Saswat Das,
Addl. Govt. Advocate
W.A. no.62 of 2025 and batch
Page 3 of 19
Mr. Sanjib Swain, Standing Counsel for
OSSC
Mr. Gautam Misra. Sr. Advocate for
Caveator
CORAM:
THE HON'BLE MR. JUSTICE ARINDAM SINHA,
ACTING CHIEF JUSTICE
AND
THE HON'BLE MR. JUSTICE M.S.SAHOO
JUDGMENT
-------------------------------------------------------------------------------------------------------
Date of hearing and judgment: 11th March, 2025
-------------------------------------------------------------------------------------------------------
ARINDAM SINHA, ACJ.
1. Six writ appeals have been listed and have been called on for
hearing. Mr. Routray, learned senior advocate appears on behalf of
appellants in W.A. no.3459 of 2024. Miss Wadia, learned senior
advocate appears on behalf of appellants in W.A. no.3433 of 2024.
Mr. Rath, learned senior advocate appears on behalf of appellants in
W.A. no.62 of 2025. None appears on behalf of appellants in W.A.
nos.91, 92 and 94, all of 2025.
2. Impugned in the appeals is judgment dated 3rd December,
2024 of the learned single Judge. Mr. Routray submits, his clients'
contention stands recorded in paragraph-8. Rule 4(b) of Combined
Technical Services Recruitment Examination Rules, 2022 does not
provide restrictions on allowing candidates with higher
W.A. no.62 of 2025 and batch
qualification. The qualification required, though diploma for
recruitment to post of Junior Engineer, candidates having higher
qualification by degree cannot thus be excluded. He points out from
the paragraph, case of degree engineers was, they are not aggrieved
by the advertisement nor the rules but they claim eligibility to apply
for the post. In allowing them to also apply it would not cause
prejudice to diploma holders. Two years of the degree course is
equivalent to the required diploma.
3. He draws attention to the 2022 rules. He submits, eligibility
criteria for direct recruitment, in supersession of all earlier rules or
resolutions or executive instructions or orders have been provided
for by overriding effect given on rule 8. Rule 4 provides for
eligibility conditions. The post of Junior Engineer has been said to
have, inter alia, minimum educational qualification as noted in
column-3 of schedule-I. Said column gives the requirement as by
Odisha Diploma Engineering Service (Method of Recruitment and
Condition of Services) Rules, 2012. Drawing attention to the 2012
rules he submits, eligibility has been prescribed under rule 6, by
clause (b). The clause provides for possession of a diploma in
engineering or an equivalent qualification from an institution
recognized by Odisha Council of Technical Education and
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Vocational Training. He submits, going by subsequent mandate in
the 2022 rules, prescribed qualification is but the minimum. His
clients have degree in engineering. It cannot be disputed that a
degree holder possesses higher qualification than a diploma holder.
He reiterates, two years of the course is equivalent to the diploma.
4. Mr. Routray draws attention to counters filed by State
through Under Secretary to Government, Department of Water
Resources. He submits, same counter has been filed in some writ
petitions that have given rise to the appeals. With reference to
paragraph-9 in the counter he submits, the Under Secretary has said
that there is no restriction for candidates who possess higher
qualification. Relied upon sentence in the paragraph is reproduced
below.
"9. ... ... It is reiterated that there is no restriction for the
candidates who possess higher qualification such as B.Tech.
in Civil Engineering through Diploma in Civil Engineering
to participate in the recruitment process of Junior Engineer.
... ..."
(emphasis supplied)
5. He relies on view taken by a Division Bench of the Bombay
High Court by interim order dated 11th December, 2024 in Writ
Petition no.18052 of 2024 (Akash Santosh Deshmukh and others
v. Brihanmumbai Municipal Corporation and another),
W.A. no.62 of 2025 and batch
paragraphs-20 to 24. He submits, there is no intelligible differentia
for the classification contended by State, to exclude degree holders
from applying for post of Junior Engineer. By the view taken the
Bombay High Court, after having given option to the Municipality,
directed relief to petitioners, similarly placed as his clients.
6. Mr. Routray submits, his clients' contentions urged before
the learned single Judge were not dealt with. He draws attention to
paragraph-26 in it to submit, it is the reasoning paragraph for
denying his clients the relief. Impugned judgment be reversed in
appeal and there be appropriate direction for steps being taken to
allow his clients to participate in the recruitment of Junior
Engineers.
7. Miss Wadia, learned senior advocate submits on the
hierarchy of posts making up the cadres. Under the rules of 2012
there are two posts. The feeder post is the post of Junior Engineers,
to be filled up by direct recruitment. There is 100% promotion to
the other post of Assistant Engineer, as mentioned in said rules.
There is further promotional avenue open to Assistant Engineers, by
lateral entry into the post of Assistant Executive Engineer. Post of
Assistant Executive Engineer is a post that has essential eligibility
requirement of engineering degree. Hence, there is no logic or
W.A. no.62 of 2025 and batch
rationale in excluding degree holders from applying to the lowest
feeder post of Junior Engineer, which post has promotional avenue
up to and beyond post of Assistant Executive Engineer because,
posts above the latter are to be filled up only on promotion. She lays
emphasis, the advertised post for recruitment being Junior Engineer
by direct entry, is the feeder post.
8. She relies on judgments of the Supreme Court.
(i) Puneet Sharma v. Himachal Pradesh State Electricity Board
Limited and another reported in (2021) 16 SCC 340, paragraphs-
31 and 37. Paragraph-31 is reproduced below.
"31. In the present case, what is evident from the rules is
that direct recruitment to the post of JEs in HPSEB is to
the extent of 72%. Undoubtedly, eligibility is amongst
those who passed in matriculation or 10+2 or its
equivalent qualification. However, this Court is of the
opinion that the diploma holders' contention that the
minimum qualification is matriculation and that the
technical qualification is diploma is incorrect. The
minimum qualification for the post cannot be deemed to
be only matriculation but rather that only such of those
matriculates, or 10+2 pass students, who are diploma-
holders would eligible. The term "with" in this category
has to be read as conjunctive."
(ii) State of Uttarakhand v. Deep Chandra Tewari reported in
(2013) 15 SCC 557, paragraph-11.
W.A. no.62 of 2025 and batch
(iii) State of Haryana v. Abdul Gaffar Khan reported in (2006)
11 SCC 153, paragraph-7.
(iv) Uma Shankar Sharma v. Union of India reported in (1980) 3
SCC 202, paragraph-5. She submits, the Supreme Court said that
terms and conditions of service are intended to be construed
reasonably and too technical a view can defeat the essential spirit
and intent embodied in them. She relies on this decision and Deep
Chandra Tewari (supra) to submit, there cannot be an embargo on
candidates having higher qualification from participating in the
recruitment for the post.
9. Mr. Acharya, learned advocate, Advocate General appears on
behalf of State. At the outset we drew his attention to paragraph-9
in the counter, to the passage relied upon. He submits, the 2022
rules provide for procedure on eligibility. The 2012 rules provide
for procedure of recruitment and conditions of service. Drawing
attention to the 2012 rules he demonstrates, said rules prescribe
procedure in the cadre, Odisha Diploma Engineers' Service. Clause
(k) under definitions rule 2 gives meaning of diploma to be 3 years
diploma course in mentioned disciplines. Rule-3 constitutes the
service to be of Junior Engineer and Assistant Engineer. He
submits, rule 4 clearly prescribes procedure of direct recruitment for
W.A. no.62 of 2025 and batch
post of Junior Engineer and promotion to the next post of Assistant
Engineer. These two posts he reiterates, constitute the cadre as
providing a feeder and promotional posts to fulfill all requirements
including career progression. He then draws attention to rule-7 in
the 2012 rules, clause (v). The clause is reproduced below.
"7. xxx xxx xxx
(v) Selection shall be based on career evaluation and
objective type written test.
(a) Weightage on career evaluation shall be 50%
(fifty per cent) and objective type written test
50% (fifty per cent)
(b) The career evaluation shall be made in the
following manner,
(i) High School Certificate: 20% (Twenty
per cent)
(ii) Certificate or Diploma in Engineering :
30% (Thirty per cent). ... ..."
(emphasis supplied)
He submits, unless a candidate possesses a diploma, he cannot be
considered for selection. Contentions of equivalence and
submissions made in regard thereto before the learned single Judge
are of no relevance because even if two years in a degree course is
assumed, though not admitted to be equivalent to a diploma, there is
no mechanism for assessing the 30% as is required by clause (v)
under rule-7.
W.A. no.62 of 2025 and batch
10. Having submitted as above he answers our question
regarding passage in paragraph-9 of the counter on submission that
a diploma holder, after obtaining appointment as a Junior Engineer
and carrying on to be promoted as Assistant Engineer can, in the
meantime, obtain degree for being considered for entry to the post
of Assistant Executive Engineer.
11. Mr. Acharya relies on judgments of the Supreme Court.
(i) Chief Manager, Punjab National Bank v. Anit Kumar
Das reported in (2021) 12 SCC 80, paragraph-17.3. He
submits, the Supreme Court declared that it is for the
employer to determine and decide relevancy and suitability of
the qualifications for any post and it is not for the Court to
consider and assess.
(ii) Maharashtra Public Service Commission v. Sandeep
Shriram Warade reported in (2019) 6 SCC 362, paragraph-
9. In this case the Supreme Court said, it is for the employer
who is best suited to decide the requirements a candidate
must possess according to needs of the employer and nature
of work. He submits, a need of State is to fulfill the societal
obligation to allow employment opportunity to diploma
holders.
W.A. no.62 of 2025 and batch
(iii) Zahoor Ahmad Rather v. Sheikh Imtiyaz Ahmad reported
in (2019) 2 SCC 404, paragraph-26. He submits, the
Supreme Court agreed with its earlier decisions on presence
of rule, absence of which would make it impermissible to
draw an inference that a higher qualification necessarily pre-
supposes the acquisition of another, albeit lower
qualification. The rule considered in the earlier decisions was
rule-10 (a) (ii) in Kerala State and Subordinate Services
Rules, 1958.
(iv) Unnikrishnan CV and others v. Union of India and others
available at 2023 SCC OnLine SC 343, paragraph-13. Mr.
Acharya relies on a sentence in the paragraph, where the
Supreme Court said that before the High Court appellants
therein had attempted to justify their claim contending
diploma is equivalent to a degree and as such being entitled
for promotion, which has been negatived by the High Court
and rightly so.
12. Mr. Acharya submits further, State has devised employment
opportunity for diploma holders by the 2012 rules. Similar rules
have also been formulated to provide employment for degree
W.A. no.62 of 2025 and batch
holders. Impugned judgment is a good one. There is no error either
in fact or in law. The appeals be dismissed.
13. Mr. Swain, learned advocate appears as Standing Counsel for
respondent no.2. He submits, the Commission in publishing the
notice for recruitment, required the candidates to have essential
qualification of diploma.
14. Mr. M. Mishra, learned senior advocate appears on behalf of
applicant, a diploma holder who lodged caveat in W.A. no.3433 of
2024. He adopts submissions already made on behalf of those
opposing the appeals. Mr. G. Misra, learned senior advocate
appears on behalf of applicant, a diploma holder who lodged caveat
in W.A. no.62 of 2025. He distinguishes Puneet Sharma (supra) by
reliance on paragraph-40, reproduced below.
"40. As noticed previously, in addition to the above
considerations, an amendment to the rules was made on
3-6-2020 declaring that those with higher qualifications
are also entitled to apply or be considered for
appointment. This amendment was brought in to clear all
doubts and controversies and, in that sense, the amending
provisions should be deemed to have been inserted from
inception."
(emphasis supplied)
W.A. no.62 of 2025 and batch
He submits further, submissions made by Miss Wadia stand
recorded in paragraphs-9 and 11 of the judgment in Zahoor
Ahmad Rather (supra). They were dealt with by paragraph-27 in
the decision, reproduced below.
"27. While prescribing the qualifications for a post, the
State, as employer, may legitimately bear in mind several
features including the nature of the job, the aptitudes
requisite for the efficient discharge of duties, the
functionality of a qualification and the content of the
course of studies which leads up to the acquisition of a
qualification. The State is entrusted with the authority to
assess the needs of its public services. Exigencies of
administration, it is trite law, fall within the domain of
administrative decision-making. The State as a public
employer may well take into account social perspectives
that require the creation of job opportunities across the
societal structure. All these are essentially matters of
policy. Judicial review must tread warily. That is why the
decision in Jyoti K.K. must be understood in the context
of a specific statutory rule under which the holding of a
higher qualification which presupposes the acquisition of
a lower qualification was considered to be sufficient for
the post. It was in the context of specific rule that the
decision in Jyoti K.K. turned."
Miss Rath, learned senior advocate appears for a diploma holder,
who filed caveat. She submits, the recruitment was by an online
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process. On a candidate seeking to apply, only way he or she can
would be by proceeding with the online application having only
option on educational qualification to be diploma. She submits
further, the 2012 rules for degree engineers do not require
engineering degree for those entering by lateral entry from the
diploma cadre.
15. We understand that the 2022 rules prescribe the recruitment
procedure. In making the prescription there is provision for
minimum eligibility criteria, for recruitments to the several cadres.
Therefore the prescription by said rules cannot be relied upon,
either as expansion on minimum or otherwise, as the minimum
being essential. The prescription is by way of regulating procedure
as per referred rules in column 3 of schedule-I. As such the
eligibility criteria provided for by the referred rules in column 3,
must have primacy.
16. There are separate rules promulgated in year 2012 to provide
for two separate cadres. One is Odisha Diploma Engineering
Service (Method of Recruitment and Conditions of Services) Rules,
2012 and the other, Odisha Engineering Service (Methods of
Recruitment and Conditions of Services) Rules, 2012. Only
difference between them is, the former having word 'Diploma'
W.A. no.62 of 2025 and batch
between words 'Odisha' and 'Engineering' as the rules are called.
Intention of State by the subordinate legislation is thus clear on
providing for two separate cadres. One for diploma engineers and
the other for degree engineers. It is State's policy to appoint
diploma engineers in a separate cadre. We accept contention of
State that selection provided for in rule 7 of the diploma rules of
2012 will become difficult to work out in event degree holders
apply on strength of their degrees. It may be that a degree holder
has higher qualification than a diploma holder but to find the point
and score in the degree course as would be equivalent to the score
in the diploma is something nobody has attempted nor even tried to
demonstrate to us. They are distinguishing facts. Here we add, the
statement in the counter means, a diploma engineer also having
degree, can apply for the post of Junior Engineer.
17. Declarations of law made by the Supreme Court in Anit
Kumar Das (supra), Sandeep Shriram Warade (supra) and
Zahoor Ahmad Rather (supra) all support contentions of State.
Reliance on Unnikrishnan CV (supra), however, is of no aid to
State because converse contention was negatived by the High Court
and the Supreme Court said it was rightly so. The contention was
that diploma is equivalent to degree. It follows that, judgments
W.A. no.62 of 2025 and batch
of the Supreme Court in Puneet Sharma (supra), Uma Shankar
Sharma (supra), Deep Chandra Tewari (supra) and Abdul
Gaffar Khan (supra) do not come to aid of appellants.
18. In Puneet Sharma (supra) relied upon paragraphs- 31 and 37
must be understood in context of paragraph-40. Reproduced below
is paragraph-11 from Deep Chandra Tewari (supra).
"11. We are conscious of the principle that when
particular qualifications are prescribed for a post, the
candidature of a candidate possessing higher
qualification cannot be rejected on that basis. No doubt,
normal rule would be that candidate with higher
qualification is deemed to fulfill the lower qualification
prescribed for a post. But that higher qualification has to
be in the same channel. Further, this rule will be subject
to an exception. Where the prescription of a particular
qualification is found to be relevant for discharging the
functions of that post and at the same time, the
Government is able to demonstrate that for want of the
said qualification a candidate may not be suitable for
the post, even if he possesses a "better" qualification but
that "better" qualification has no relevance with the
functions attached with the post."
(emphasis supplied)
The Supreme Court was conscious of the principle that when
particular qualifications are prescribed for a post, candidature of a
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candidate possessing higher qualification cannot be rejected on that
basis. However, the Court also pointed out the principle being
subject to an exception. In this case we are satisfied that the
Government has been able to demonstrate separation of cadre,
which implies that work of Junior Engineer can be done by a
diploma holder, while work of an Assistant Executive Engineer can
only be executed by those having higher qualification of degree in
engineering. Moreover, declaration of the principle and the
exception was in context of facts of that case, where requirement
was of B.Ed. degree and there were persons holding B.Ed. with
specialization in vocational education asking to be considered for
appointment as assistant teacher at primary level. There was also
reliance on paragraph-7 in Abdul Gaffar Khan (supra). Facts in
that case can be distinguished as the Supreme Court upon close
scrutiny of the advertisement issued found, it did not anywhere
stipulate diploma is the required qualification.
19. Proceeding to assume that a diploma engineer appointed in
the post of Junior Engineer finds promotion to become Assistant
Engineer, he in the meantime, if improved himself to obtain the
degree, can then apply for 'lateral entry' to post of Assistant
Executive Engineer on strength of subsequently acquired degree.
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There is no promotional avenue from post Junior Engineer to post
Assistant Executive Engineer. Entry into the latter is direct, on
having eligibility of possessing engineering degree followed by
selection on merit. There is no scope of otherwise 'lateral entry' for
diploma engineers to the cadre of degree engineers provided for by
their rules of 2012. It follows that said rules for degree engineers
does not mention eligibility in respect of diploma engineers.
20. Impugned judgment needs no interference. The appeals are
thus dismissed.
( Arindam Sinha )
Acting Chief Justice
( M.S. Sahoo )
Judge
Gs/Radha
asant
W.A. no.62 of 2025 and batch
