Orissa High Court
(An Application Under Section-114 Read ... vs State Of Odisha And Another .... Opp. ... on 28 March, 2025
Bench: K.R. Mohapatra, M.S. Raman
Signature Not Verified
Digitally Signed
Signed by: ROJALIN NAYAK
Designation: JUNIOR STENOGRAPHER
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 03-Apr-2025 13:25:31
IN THE HIGH COURT OF ORISSA AT CUTTACK
RVWPET NO.55 OF 2025
(An application under Section-114 read with
Order-XLVII of Code of Civil Procedure, 1908)
*******
Rajalaxmi Balabantaray and others .... Petitioners
-versus-
State of Odisha and another .... Opp. Parties
Advocate for the parties:
For Petitioners : Mr. Shashi Bhusan Jena, Advocate
For Opposite Parties : Mr. Debasis Tripathy,
Additional Government Advocate
CORAM:
JUSTICE K.R. MOHAPATRA
JUSTICE M.S. RAMAN
Heard and Disposed of on : 28.03.2025
JUDGMENT
By the Bench
1. This matter is taken up through hybrid mode.
2. Perused the kind minutes of Hon'ble the Acting Chief
Justice at Flag 'A' assigning the RVWPET to be heard by a
Division Bench, where Shri Justice M.S. Raman is a member.
Accordingly, this RVWPET is listed before this Bench.
3. Petitioners in this RVWPET seek review of the order dated
23rd December, 2024 (Annexure-2) by which I.A. Nos.7964,
8547, 8555, 8561, 8568, 8567 of 2024 were disposed of by issue
of certain clarifications in connection with Judgment dated
18.06.2024 whereby WA No.712 of 2024 along with W.A. Nos.
580,727 and 740 stood disposed of.
Designation: JUNIOR STENOGRAPHER
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 03-Apr-2025 13:25:31
3. Mr. Jena, learned counsel for the Review-Petitioners
submits that in terms of the Government Resolution dated 10th
September, 2023 issued by the Odisha School Education
Programme Authority (for brevity 'OSEPA') the Petitioners
submitted their applications for appointment to the post of Junior
Teacher (Schematic) in their respective districts. Although the
Resolution dated 10th September, 2023 provided for district-wise
selection, the draft merit list was prepared for the entire State of
Odisha. Thus, different Writ Petitions were filed assailing the said
selection.
4. Clause-8 of the Resolution provided Selection Procedure,
which reads as under:
"8. SELECTION PROCEDURE
8.1 Publication of Master List
After expiry of last date of submission of online application
form, list of the candidates for each category with respect to
their first preference district as submitted by them at the time of
submission of application form will be published in OSEPA
website. Information on subsequent preference districts of each
candidate will also be available in OSEPA website on search.
8.2 Online Computer-Based Test
An online computer-based test will be conducted by OSEPA /an
Authorized Agency as per the syllabus contained in the
advertisement to be published before the recruitment.
8.3 District wise and Category wise draft merit list
District wise and category wise draft merit list will be published
in OSEPA website. Draft merit list will be prepared taking into
consideration all district preference submitted by individual
candidates in order of preference followed by merit rank i.e., for
a particular district, after exhausting all candidates having 1st
preference, subsequent preferences will be considered. In case
of a tie, when two or more candidates obtain equal score, inter-
se merit of such candidates shall be decided in the order as
mentioned below:
Designation: JUNIOR STENOGRAPHER
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 03-Apr-2025 13:25:31
1. Date of birth (Older candidate will be above other
candidates)
II. Percentage of marks in qualifying examination le in
Higher Secondary (or its equivalent) will be considered.
In case of further tie, marks secured in Graduation will
be taken into consideration followed by post-Graduation
marks.
If a tie still persists, Government will issue suitable
instructions for breaking the tie.
For a particular post, in a category within district,
district preference will be preferred over merit.
8.4. Document verification
After publication of the draft merit list, all candidates in the said
list will be called for verification of original documents at their
respective district headquarters. All documents required for
verification will be notified by OSEPA in the detailed
advertisement in OSEPA website.
During document verification, if any candidate is not able to
produce the essential document(s) in support of his/her claim of
the Social/Special category/Age proof/Academic & Training
qualification/RCI registration certificate as per information
provided in the application form, the candidature will be
rejected and his/her name will be marked as deleted in the draft
merit list. The candidates have to produce the Academic and
Training qualification/RCI registration certificate (in case of
Special Education Candidates) acquired/issued on or before the
last date of submission of online application.
8.5 Preparation of District wise Provisional Merit List and
Approval
Provisional merit list will be prepared after document
verification of the candidates placed in the draft merit list. Then
objections will be invited from the candidates who are placed in
the provisional merit list and rejection list. The provisional
merit list will be approved by the Competent Authorities al
respective districts after verification of the original documents
and inviting objections from candidates within specific time
period as mentioned in the calendar of activities issued by the
School & Mass Education Department.
8.6 Publication of District wise Final Merit List
District wise final merit list will be published at concerned
District websites as well as OSEPA website after approval by
the Competent Authority.
8.7 Counseling
Designation: JUNIOR STENOGRAPHER
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 03-Apr-2025 13:25:31
The candidates will be called for allocation of schools through
counseling by respective districts. Separate notifications will be
issued and displayed by respective districts in their District
websites as well as OSEPA website. Vacancies remain due to
unavailability of eligible candidates, rejection and non-joining
will be carried forward and recruitment will be done
subsequently as per requirement. There will be no waiting list."
5. The writ petitions were disposed of with a direction to
prepare district-wise Draft Merit List and category wise in terms
of Clause 8.3. The State Government assailed the orders passed in
the Writ Petitions in WA No.712 of 2024 along with a batch of
Writ Appeals, which was disposed of on 18th June, 2024 along
with other batch of Writ Appeals with the following directions:
"62. Based on the above noted discussions, we record
conclusions with reference to the questions I and II as set out in
paragraph 40 as under: -
(i) Sub-paragraph 8.3 of the resolution dated 22.08.2023, to the
extent it contemplates preparation of district wise draft merit list
and further stipulates that the district-preference will be
preferred over merit, is ultra vires Articles 14 and 16 of the
Constitution of India. The said prescriptions do not have any
legal justification rather it defeats the basic object to attract the
best talent from amongst the successful candidates. Such
provision results "in discrimination "without any nexus between
the requirement of preparation of district wise merit list on the
basis of first preference and the object to be achieved i.e.,
selection of meritorious candidates for the post of teachers, which
is one of the avowed objects of Section 8(g) of the RTE Act i.e., to
ensure good quality elementary education conforming to the
standards and norms. The importance of good quality elementary
education has been noted in the case of Devesh Sharma (supra)
as discussed hereinabove.
(ii) Paragraph 8 of the resolution dated 22.08.2023 to the extent
it provides for giving first preference to the candidates district-
wise over merit cannot be saved by applying the rule of purposive
construction: the language used therein being unambiguous.
(iii) This Court cannot permit Clause 8.3 of the resolution dated
22.08.2023 and other follow up provisions under the resolution to
operate, which is patently discriminatory and violative of Articles
14 and 16 of the Constitution of India, though the said provisions
Designation: JUNIOR STENOGRAPHER
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 03-Apr-2025 13:25:31
have not been challenged by the parties. It will otherwise amount
to requiring the appellant State of Odisha to follow a procedure
in the matter of public employment, despite the said procedure
having been found to be unconstitutional, in the light of a
constitution Bench decision of this court in the case of Minor P.
Rajendran (supra).
63. After having concluded as above, we are of the considered
opinion that the entire selection process undertaken by the
appellants for recruitment to the post of Junior Teacher
(Schematic) should not be declared illegal as that will hinder
completion of the process of selection and seriously affect the
teaching/education at the school level because of dearth of
teachers.
64. We deem it expedient in the interest of justice, in the given
facts and circumstances of the case, to resolve the absurd
situation arising out of the stipulation in paragraph 8.3 of the
resolution dated 22.08.2023, in a manner that is just, equitable,
fulfills the mandate of Articles 14 and 16 of the Constitution of
India and at the same time furthers the objective of Article 21A of
the Constitution read with the provisions under the RTE Act. For
the said purpose, we consider it just and proper to issue the
following directions for the selection process in question: -
(i) No illegality has been noticed in the conduct of the CBT.
Therefore, the marks scored by the aspirants in the CBT shall be
basis for determination of the merit of the aspirants.
(ii) Based on the CBT held by the OSEPA, the State-appellant
shall fix the first set of minimum cut-off marks, category
wise/subject wise, taking into account the total number of posts
advertised considering the marks secured by the respective
candidates in the said test. Select list(s) shall be prepared of such
candidates having secured the cut-off marks or above. The
preference given by the candidates at the time of application shall
be considered for allocation of districts, based on merit-cum-
preference. The minimum marks scored by candidates declared
successful by the OSEPA. subject-wise/category-wise may be
fixed as the first set of the minimum cut-off marks.
(iii) It will be open for the State-appellants to re-fix the set of cut-
off marks later, from time to time, in the event, the posts remain
unfilled because of non-joining of candidates or other similar
reasons, which shall be confined to the number of posts
advertised.
65. In view of the admitted fact that score of the writ petitioners
in the online CBT is less than the minimum marks scored by
candidates declared successful by the OSEPA, subject-
wise/category-wise, we allow the State-Appellants to appoint
such candidates taking into account their merit based on the
score in CBT, and district-preference for the purpose of
Designation: JUNIOR STENOGRAPHER
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 03-Apr-2025 13:25:31
allocation a district. It goes without saying that the cases of the
writ petitioners shall be considered against the left-over
vacancies in terms of the direction as above."
6. It is submitted by Mr. Jena, learned counsel for the Review-
Petitioners that they had also filed W.P.(C). No.1712 of 2024,
which was disposed of vide order dated 12th March, 2024 with a
direction to prepare the select list in terms of Clause-8.3 of the
aforesaid Resolution as in the similar Writ Petitions. Assailing the
order passed in W.P.(C). No.1712 of 2024, State of Odisha
preferred WA No.927 of 2024, which was disposed of on 30th
October, 2024 in terms of the judgment passed in WA No.712 of
2024 and batch of Writ Appeals. Subsequently, several interim
applications were filed in IA Nos.7964, 8547, 8555, 8561, 8568,
8567 of 2024 seeking clarification of the order passed in WA
No.712 of 2024. The said interim applications were disposed of
vide order dated 23rd December, 2024 with the following order:
"This matter is taken up through Hybrid mode.
2. In relation to the process of selection for appointment to the
post of Junior Teacher (Schematic) initiated with the issuance of
the Government Resolution dated 10.09.2023 by the Odisha
School Education Programme Authority (OSEPA), we had
delivered a judgment on 18.06.2024, the operative portion of
which reads thus:
"65. In view of the admitted fact that score of the writ
petitioners in the online CBT is less than the
minimum marks scored by candidates declared
successful by the OSEPA, subject-wise/category-
wise, we allow the State-Appellants to appoint such
candidates taking into account their merit based on
the score in CBT, and district-preference for the
purpose of allocation a district. It goes without
saying that the cases of the writ petitioners shall be
considered against the left-over vacancies in terms of
the direction as above."
Designation: JUNIOR STENOGRAPHER
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 03-Apr-2025 13:25:31
3. The present interlocutory applications have been filed seeking
clarification to the said order/judgment on behalf of some of the
parties to the said proceeding who are not being considered for
appointment against the left-over vacancies despite the
observation made in paragraph-65 of the said judgment dated
18.06.2024.
4. It appears that the cases of such candidates are not being
considered by the State-appellants on the ground that there was
no provision for waiting list in the concerned Government
Resolution as mentioned in Clause- 8.7 thereof.
5. It is an admitted position that thousands posts of Junior
Teacher (Schematic), which were advertised, pursuant to which
the respondents had applied, are still vacant.
6. In such view of the matter, we clarify that the said provision
in Clause- 8.7 of the Resolution shall not come in the way of the
OSEPA in making recommendations and the concerned
department making appointments against unfilled vacancies
based on the respective merit of the candidates, against the
posts which were advertised.
7. We further clarify that the State of Odisha/ OSEPA shall
consider the merit of the aspirants, irrespective of the fact
whether they had approached this Court or not.
8. The interlocutory applications stand disposed of."
7. Mr. Jena, learned counsel for the Petitioners submits that if
after preparation of the merit list, the selected candidates would be
allotted district-wise as per the preference given by them at the
time of submission of application, then the Review-Petitioners
may be deprived of being selected and appointed. He submits that
as per the order passed by Hon'ble Single Judge in batch of Writ
Petitions like the Petitioners, the Draft Merit List should be
prepared district-wise.
8. He, therefore, submits that the Draft Merit List should be
prepared in terms of Clause- 8.3 of the Resolution dated 22nd
August, 2023 and the Petitioners may be given appointment
accordingly. He also made an alternative submission that if the
Designation: JUNIOR STENOGRAPHER
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 03-Apr-2025 13:25:31
merit list is prepared in terms of the order sought to be reviewed,
then the case of the Petitioners may be considered if any vacancies
are left over.
9. Mr. Tripathy, learned AGA submits that the order dated
23rd December, 2024 need not be interfered with as this Court has
clarified that provisions in Clause-8.7 of the Resolution should not
come on the way of OSEPA in making recommendation by the
concerned Department making appointment against unfilled
vacancies based on the respective merit of the candidates against
the posts which were advertised. It was also further clarified that
the State of Odisha/OSEPA should consider the merit of the
aspirants irrespective of the fact that whether they had approached
this Court or not. Thus, there is no illegality in the said
clarification. Further, the Review-Petitioners would be benefitted,
if they satisfy the conditions at paragraphs- 64 and 65 of the
judgment passed in W.A. No 712 of 2024 and clarification made
in the order sought to be reviewed.
10. We have heard learned counsel for the parties at length.
11. We find that this Court, in the judgment passed in W.A.
No. 712 of 2024 has declared that Clause-8.3 of the Resolution
dated 22nd August, 2023 and other follow up provisions are
violative of Articles 14 and 16 of the Constitution and set out
procedures for filling up vacancies of Junior Teachers (Schematic)
at paragraphs-64 and 65 of the judgment. The said judgment is not
challenged. While passing the order sought to be reviewed, this
Court reiterating the direction in W.A. No. 712 of 2024 has only
clarified that Clause- 8.7 of the Resolution shall not come on the
Designation: JUNIOR STENOGRAPHER
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 03-Apr-2025 13:25:31
way of OSEPA in making recommendations for appointment to
the unfilled vacancies. It is also clarified that the State
Government/ODRPA shall consider the merit of the aspirants,
irrespective of the fact whether they had approached this Court or
not. Although the Petitioners are not parties to W.A. No. 712 of
2024 and subsequent I.As, order of which sought to be reviewed,
there appears no apparent error on the face of the record or
material irregularity in it. Hence, we are not inclined to entertain
the RVWPET.
12. Accordingly, the RVWPET is disposed of with an
observation that the case of the Petitioners may be considered, if
they satisfy the direction made in the judgment passed in WA
No.712 of 2024 and batch of appeals and order dated 23rd
December, 2024 passed in consideration of the Interlocutory
Applications thereto, which is sought to be reviewed.
Urgent certified copy of this judgment be granted on proper
application.
(K.R. Mohapatra)
Judge
(M.S. Raman)
Judge
Rojalin
