Orissa High Court
State Of Odisha And Others vs Debaraj Sahu And Others on 21 March, 2025
Bench: K.R. Mohapatra, R.K. Pattanaik
Signature Not Verified
Digitally Signed
Signed by: MADHUSMITA SAHOO
Designation: Senior Stenographer
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 25-Mar-2025 12:02:13
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No. 5813 OF 2018
(An application under Articles 226 & 227 of the Constitution of India)
*****
State of Odisha and others
...... Petitioners
-Versus-
Debaraj Sahu and others
....... Opp. Parties
Advocates appeared:
For Petitioners : Mr. Swayambhu Mishra
Additional Standing Counsel
For Opp. Parties : Mr. Sameer Kumar Das,
Advocate
(For Opp. Party No.1)
CORAM :
MR. JUSTICE K.R. MOHAPATRA
MR. JUSTICE R.K. PATTANAIK
------------------------------------------------
Heard and disposed of on 21.03.2025
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JUDGMENT
By the Bench;
1. This matter is taken up through hybrid mode.
2. Perused the kind minutes of Hon'ble the Chief Justice
at Flag-20 assigning the matter to be heard by this Bench.
Hence, the matter is listed before this Bench.
3. State of Odisha and functionaries under School and
Mass Education Department, Government of Odisha being the
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Location: High Court of Orissa, Cuttack // 2 //
Date: 25-Mar-2025 12:02:13
Petitioners have filed this writ petition challenging the order
dated 9th November, 2015 (Annexure-3) passed by learned
Odisha Administrative Tribunal, Bhubaneswar (for brevity
'the Tribunal') in O.A. No.3464 of 1996 filed by Opposite
Party Nos.1 and 2.
3.1 The Opposite Party Nos. 1 and 2 filed O.A. No. 3464
of 1996 before the Tribunal to set aside the Government letters
dated 28th September, 1996 and 24th October, 1996 (paragraph-
4) issued by the School and Mass Education Department,
Government of Odisha, whereby instructions were issued to
conduct recruitment of primary school teachers in the
concerned education circle as whole by the committee headed
by the Circle Inspector of Schools and to complete the process
of recruitment of Government Primary School Teachers in the
Bonaigarh Education District in terms of Government
Resolution dated 12th March, 1996. Learned Tribunal allowed
the O.A. filed by Opposite Party Nos.1 and 2 holding that
resolution of the Government dated 12th March, 1996 would
govern the process of recruitment of Government Primary
School Teachers in Bonaigarh Education District, in which the
Opposite Party Nos.1 and 2 participated. Accordingly, the
Petitioners herein (Respondents in the O.A) were directed to
proceed with said selection process in accordance with the
resolution dated 12th March, 1996 and complete the selection
process within a period of four months from the date of receipt
of the order. It was also directed that in the event the Opposite
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Location: High Court of Orissa, Cuttack // 3 //
Date: 25-Mar-2025 12:02:13
Party Nos.1 and 2 are selected, then necessary appointment
orders would be issued with effect from the date circle-wise
appointment order was issued and their seniority will be
counted from that date only. The impugned order under
Annexure-3 further clarified that Opposite Party Nos.1 and 2
will be entitled to the financial benefit notionally till they
actually join the post and would be entitled to actual financial
benefits from the date of their joining.
3.2 Assailing the same, State of Odisha and its
instrumentalities filed the present writ petition. The said writ
petition was dismissed by this Court vide order dated 7th
November, 2019. Assailing the same, Petitioners herein moved
the Hon'ble Supreme Court in Civil Appeal No.7394 of 2021
[arising out of SLP (C) No.20038 of 2021) (D No.23743 of
2020)], which was allowed vide order dated 3rd December,
2021 with the following order:-
"5. For the above reasons, we allow the appeal and
set aside the impugned judgment and order of the
High Court dated 7 November 2019. Writ Petition
(C) No.5813 of 2018 is accordingly restored to the
file of the High Court of Orissa for disposal
afresh.
6. It has been stated that the first and second
respondents are 57 and 55 years old, respectively,
and the dispute relates to 1996.
7. In view of the above statement, which has been
made on behalf of the respondents, we request the
High Court to take up the petition for expeditious
disposal, preferably within a period of three
months from the date of receipt of a certified copy
of this order.
8. In view of the ad interim order dated 18 December
2020, which was passed in these proceedings, we
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Location: High Court of Orissa, Cuttack // 4 //
Date: 25-Mar-2025 12:02:13
direct that until the High Court disposes of the
proceedings, no coercive steps shall be taken
against the petitioners on the basis of the judgment
of the Orissa Administrative Tribunal in OA 3464
of 1996.
9. Pending application, if any, stands disposed of."
Accordingly, the matter is taken up by this Bench assigned by
the Hon'ble Chief Justice (Flag-20).
4. Mr. Mishra, learned Additional Standing Counsel
submits that the selection process for appointment of
Government Primary School Teachers was initiated in
Bonaigarh Education District by the District Inspector of
Bonai in terms of the Government Resolution dated 12th
March, 1996 issued by the Department of School and Mass
Education specifying that the selection process would be
conducted education district-wise. Since the selection process
in question was not completed by the time letters dated 28th
September, 1996 and 24th October, 1996 were issued, it was
completed in terms of the instruction issued in said letters, i.e.,
circle-wise. However, Opposite Party Nos.1 and 2 were
unsuccessful in the said selection process and got appointment
in a subsequent selection process.
4.1 Thus, it is submitted by Mr. Mishra, learned Additional
Standing Counsel that the selection process being conducted
following the procedure, there is no illegality in the selection
process.
4.2. It is further submitted that in terms of the
letters/resolutions dated 28th September, 1996 and 24th
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Location: High Court of Orissa, Cuttack // 5 //
Date: 25-Mar-2025 12:02:13
October, 1996, the selection process continued. The Opposite
Party Nos.1 and 2 were also intimated to appear for interview
held on 15th November, 1996. But, they came out
unsuccessful. The Opposite Party Nos.1 and 2 were recruited
as Sikhya Shahayak in the year 2001 and 2005 respectively
and were subsequently regularized as Zilla Parishad Teachers.
Circle-wise selection of teachers in respect of Sundergarh
Education Circle consisting of three Education Districts,
namely, Sundergarh, Rourkela and Bonai has been completed
since 1997 and in the meantime 27 years have already elapsed.
The selected candidates joined in service pursuant to the said
selection process and are performing their duties. No interim
order was passed by the Tribunal during pendency of O.A. No.
3464 of 1996. Hence, he prays for setting aside the impugned
order under Annexure-3 and to hold the selection process
conducted in terms of the letters dated 28th September, 1996
and 24th October, 1996 to be legal and proper.
5. Mr. Das, learned counsel for Opposite Party No.1
stoutly refutes the same and submits that law is no more res-
integra on the issue involved. In the case of Basudev Mohanta
and others -v- State of Orissa and others; (2002) 2 ATT
(HC) 36, it is held as under:-
"7. Law is no more res-integra that once the
process of selection had already commenced,
the subsequent change of rules could not affect
the selection process which has already
commenced or was completed before the
charges rules came into force."
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Location: High Court of Orissa, Cuttack // 6 //
Date: 25-Mar-2025 12:02:13
It is submitted that the case of Basudev Mohanta and others
(supra) squarely governs the field, as the issue involved in the
said case was identical to the present one. In that case,
selection process was initiated pursuant to the resolution dated
12th March, 1996 and was concluded in terms of the
instructions issued vide letters dated 28th September, 1996 and
24th October, 1996. Discussing the facts and law involved, this
Court came to the aforesaid conclusion. He, therefore, submits
that since the selection in which the Opposite Party No.1 had
participated was initiated pursuant to the resolution dated 12th
March, 1996, it should have been completed in terms of the
said resolution and not in terms of instructions issued vide
letters dated 28th September, 1996 and 24th October, 1996. He
also drew attention to Paragraph-20 of the writ petition,
wherein it is pleaded as under:
"20. That, it is fairly submitted that on behalf of the
State petitioners/respondents, the then D.I. of
Schools, Bonai has filed counter stating therein that
the process of recruitment was initiated as per
Resolution dated 12.03.1996 and while the matter
was in process two other resolution dated
28.09.1996 and 24.10.1996 were issued which
governed the process of recruitment of Government
Primary School Teachers. Since the process of
recruitment of government primary school teachers
in Bonai education district had not been completed
pursuant to the resolution dated 12.03.1996 issued
by the Government, accordingly no illegality has
been committed by the respondent authorities in
selecting candidates circle wise following the
resolution dated 28.09.1996 and 24.10.1996."
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Location: High Court of Orissa, Cuttack // 7 //
Date: 25-Mar-2025 12:02:13
6. Thus, there is no iota of doubt that after
commencement of selection process pursuant to the
resolutions dated 12th March, 1996 and 24th October, 1996
came into force and the selection was concluded in terms of
the subsequent resolutions, which is not permissible in law.
He also drew attention of this Court to the ratio in the case of
Tej Prakash Pathak -v- High Court of Rajasthan; (2025) 2
SCC 1, wherein it is held as under:-
"65. We, therefore, answer the reference in the
following terms:
,
65.1. Recruitment process commences from the
issuance of the advertisement calling for
applications and ends with filling up of
vacancies;
65.2. Eligibility criteria for being placed in the
select list, notified at the commencement of the
recruitment process, cannot be changed midway
through the recruitment process unless the
extant Rules so permit, or the advertisement,
which is not contrary to the extant Rules, so
permit. Even if such change is permissible under
the extant Rules or the advertisement, the
change would have to meet the requirement of
Article 14 of the Constitution and satisfy the test
of non-arbitrariness;............"
He, therefore, submits that the submission made by Mr.
Mishra, learned Additional Standing Counsel has no leg to
stand on. As such, the writ petition being devoid of any merit
should be dismissed.
Designation: Senior Stenographer
Location: High Court of Orissa, Cuttack // 8 //
Date: 25-Mar-2025 12:02:13
7. Heard learned counsel for the parties. Perused the case
record as well as case laws cited.
8. Upon hearing learned counsel for the parties and on
perusal of the case record, there remains no doubt that the
selection process for recruitment of Government Primary
School Teachers in the Bonaigarh Education District
commenced in terms of the Resolution dated 12th March, 1996
issued by the Government of Odisha in the Department of
School and Mass Education. In the said resolution, it is
clarified that the selection of Government Primary School
Teachers should be conducted education district-wise.
Accordingly, recruitment process in question was initiated by
the District Inspector of Schools, Bonaigarh Education District
in terms of Government resolution dated 12th March, 1996 in
which Opposite Party Nos.1 and 2 participated. During the
process of selection, resolutions dated 28th September, 1996
and 24th October, 1996 were issued by the Government of
Odisha in the Department of School and Mass Education
instructing the Collectors of all the districts to conduct the
recruitment of Government Primary School Teachers by
Committees headed by the Circle Inspector of Schools. Since
the selection process of Government Primary School Teachers
in Bonaigarh Education District was not completed by then,
the Authority continued the selection process in terms of the
subsequent resolutions dated 28th September, 1996 and 24th
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Location: High Court of Orissa, Cuttack // 9 //
Date: 25-Mar-2025 12:02:13
October, 1996. However, the Opposite Party No.1 could not
come out successful in the said selection process.
9. From the above, it is clear that although the selection
process commenced in terms of the resolution dated 12th
March, 1996, but it was finalized in terms of the resolutions
dated 28th September, 1996 and 24th October, 1996. In view of
the case of Basudev Mohanta and others (supra) and Tej
Prakash Pathak and others (supra), law is no more res-
integra that the selection process should be conducted in terms
of the rules prevalent at the time of publication of the
advertisement. Subsequent amendment to the Rules/ procedure
of recruitment, which came into operation during selection
process, cannot influence the selection process already
commenced. Law is well-settled that the rule of the game
cannot be changed after the game has commenced.
10. In view of the law laid down in the case of Tej Prakash
Pathak and others (supra) and more particularly, in the case
of Basudev Mahanta and others (supra), we have no
hesitation to hold that the selection process, in which the
Opposite Party Nos.1 and 2 participated, could not have
adopted the procedure as per the resolutions dated 28th
September, 1996 and 24th October, 1996, which were issued
after commencement of the process of recruitment of
Government Primary School Teachers in question. It should
have been finalized in terms of resolution dated 12th March,
1996. Thus, there is no force in the submission of Mr. Mishra,
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Location: High Court of Orissa, Cuttack // 10 //
Date: 25-Mar-2025 12:02:13
learned Additional Standing Counsel. Thus, we find no
infirmity in the order dated 9th November, 2015 (Annexure-3)
passed by learned Tribunal in O.A. No. 3464 of 1996.
11. Accordingly, the writ petition being devoid of any
merit stands dismissed. In the facts and circumstances, there
shall be no order as to costs.
12. It is made clear that this order shall not affect in any
manner the service conditions or continuance of the
candidates, who were selected pursuant to the selection in
question.
Urgent certified copy of this judgment be granted on
proper application.
(K.R. Mohapatra)
Judge
(R.K. Pattanaik)
Judge
Orissa High Court, Cuttack,
Dated 21st March, 2025/Madhusmita
