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2009 DIGILAW 150 (ORI)

JAGDISH KUMAR TRIPATHY v. STATE OF ORISSA

2009-02-19

B.S.CHAUHAN, I.MAHANTY

body2009
JUDGMENT : Indrajit Mahanty, J. - The Appellant-Sri Jagdish Kumar Tripathy in this appeal has sought to challenge the Judgment and Order Dated 10.1.2008 passed by the Learned Single Judge of this Court in W.P.(C) 15742 of 2006, whereby, the writ application filed by the present Respondent No. 6 came to be allowed with the direction to consider the candidature of Respondent No. S for appointment as Multi Purpose Assistant (Gram Rojagar Sevak) in Baharpur Gram Panchayat under Dharakot Block. 2. Mr. Mohapatra, Learned Counsel appearing for the Appellant submitted that an advertisement was published by the Collector, Ganjam calling for applications from eligible candidates for appointment as Multi Purpose Assistant (Gram Rojagar Sevak) and it was stipulated therein that a candidate must have passed the 10+2 examination and preference would be given to Commerce stream having computer proficiency of 'O' Level with use of Oriya language in computer. Learned Counsel for the Petitioner submitted that pursuant to the said advertisement, an interview was hold for assessment of all the applications. The Appellant came to be selected in the said post under Annexure-2 dated 15.12.2006. The application of the Respondent No. 6 came to be rejected by the State Government on the ground that Respondent No. 6 did not possess the requisite qualification as stipulated in the advertisement. 3. Respondent No. 6 filed. W.P. (C) No. 15742 of 2006 before the High Court and claimed that he had passed "Upasashtri" examination conducted by Shri Jagannath Sanskrit Vishvavidyalaya and the certificate to that effect has annexed as Annexure-B/6 to the present appeal issued by the said University, indicating that the Respondent No. 6 (Writ Petitioner) had been awarded "Upashastri" and in the English version of the said certificate, the said diploma is described as "Higher Secondary Examination Certificate (+2 Arts)". The Writ Petitioner, therefore, being aggrieved by the rejection of his application form, challenged the selection process on the ground that he had been ousted from consideration, even though, he possessed the necessary educational qualification. Apart from passing 'Upashastri', the Petitioner had also graduated from Shri Jagannath Sanskrit Vishvavidyalaya and had been awarded Sashtri/Bachelor of Arts degree and had thereafter passed the LL.B. examination conducted by the Berhampur University. Apart from it, the Petitioner also satisfies the requirements of the knowledge of computer, i.e. Post Graduate Diploma in Computer Science (PGDCS). 4. Apart from passing 'Upashastri', the Petitioner had also graduated from Shri Jagannath Sanskrit Vishvavidyalaya and had been awarded Sashtri/Bachelor of Arts degree and had thereafter passed the LL.B. examination conducted by the Berhampur University. Apart from it, the Petitioner also satisfies the requirements of the knowledge of computer, i.e. Post Graduate Diploma in Computer Science (PGDCS). 4. It appears that a counter affidavit was filed to the writ application by the State and in the said counter affidavit, the stand of the Collector was that although the Petitioner has passed 'Upashastri', the advertisement had invited applications only from intending candidates having 10+2 qualification and the said advertisement did not contemplate/permit consideration of equivalent qualification. The Collector took the stand that the Petitioner's contention that he had passed +2 examination from Shri Jagannath Sanskrit Vishvavidyalaya could not be accepted since, the said Institution does not offer any such examination and further, since the advertisement and terms contained therein, did not make it possible to entertain applications of the candidates having equivalent qualification. Therefore, the application of the Petitioner had been rejected due to want of requisite qualification. Apart from the above, in the writ application, the present Appellant who is Opposite Party No. 5 in the writ application had raised a contention that the Upashastri examination conducted by Shri Jagannath Sanskrit Vishvavidyalaya, was not equivalent to +2 examination of the Council of Higher Secondary Education, Orissa. In so far as the notification issued by the Council of Higher Secondary Education Orissa dated 18th February, 1986 is concerned (Annexure-9 to the writ application and Annexure-4 to the present appeal), the Opposite Party No. 5 in the writ application (present Appellant) submitted that even though the Equivalence Committee of the said Council had recognized the Upashastri examination of Shri Jagannath Sanskrit Vishvavidyalaya as equivalent to +2 Humanity Stream of Higher Secondary Education, this recommendation "was subject to the approval of the Council" and it was further submitted that no such approval had been taken by the Council even till date. In essence, Sri. Mohapatra, Learned Counsel for the Appellant submitted that since the Council has not yet approved the decision of the Equivalence Committee referred to in Annexure-4, the said order is non est in the eye of law and until and unless the approval is accorded, no reliance could be placed upon the aforesaid notification. In essence, Sri. Mohapatra, Learned Counsel for the Appellant submitted that since the Council has not yet approved the decision of the Equivalence Committee referred to in Annexure-4, the said order is non est in the eye of law and until and unless the approval is accorded, no reliance could be placed upon the aforesaid notification. Sri Mohapatra further submitted that the Appellant having been duly selected for appointment as Multi Purpose Assistant, the finding of the Learned Single Judge that no right to the post had accrued in favour of the Appellant is wholly erroneous, inasmuch, as even though the interim order has been passed on 12.12.2006 permitting the selection for the post in question to continue no appointment thereto shall be made without leave of this Court. Learned Counsel submitted that since the process of selection was permitted to be proceeded with under Annexure-2, as the culmination of such process, the Petitioner (Respondent No. 6) had been issued the letter of selection, he had a legitimate expectation for being offered an appointment, pursuant to the process of selection and, therefore, the Learned Single Judge erred in law by coming to hold that "no right to the post had accrued in favour of the Appellant". 5. Sri S.K. Mishra, Learned Counsel appearing for Respondent No. 6, on the other hand, supported the order of the Learned Single Judge and stated that even though no reliance could be placed on the notification of the Council of Higher Secondary Education Orissa dated 18th February 1986 (Annexure-4 in the appeal and Annexure-9 to the application) even then, on a perusal of the advertisement, the advertisement did not indicate that the candidate must have passed 10+2 examination conducted by the Council of Higher Secondary Education Orissa. It merely mentioned that the candidate must have passed 10+2 examination. Therefore, the conduct of 'Upashastri examination by Shri Jagannath Sanskrit Vishvavidyalaya which is the examination certificate (+2 Arts) granted by the University, is adequate evidence that the Respondent No. 6 possesses the necessary educational qualification required for being considered for the post. Apart from this, Learned Counsel for the Respondent 6 submitted that no prejudice has been caused to the Appellant, inasmuch as, what has been directed by the Learned Single Judge is for consideration of the application of Respondent No. 6 and, therefore, the Writ Appeal ought to be dismissed. 6. Apart from this, Learned Counsel for the Respondent 6 submitted that no prejudice has been caused to the Appellant, inasmuch as, what has been directed by the Learned Single Judge is for consideration of the application of Respondent No. 6 and, therefore, the Writ Appeal ought to be dismissed. 6. On a consideration of the submissions advanced by the Learned Counsel for the respective parties and on perusal of the impugned Judgment before us, we find that in Paragraph-4 of the Judgment, although the Learned Single Judge has taken note of the contention advanced by the Appellant that the Council of Higher Secondary Education had not approved the decision taken by the Equivalence Committee till date under Annexure-4 (Annexure-9 to the writ-application). On perusal of the impugned Judgment, we find that no finding on the Learned Single Judge has been recorded on the aforesaid contention advanced by the Appellant. Therefore, in the absence of any evidence to the contrary, it cannot be held that necessary approval of the Council of Higher Secondary Education to the equivalence of +2 Humanity Stream of Shri Jagannath Sanskrit Vishvavidyalaya with that of Higher Secondary Education (+2 Arts) has been duly accorded. 7. The Learned Single Judge has also came to a finding that since the Respondent No. 6 had passed +3 degree examination in Arts from the self same Shri Jagannath Sanskrit Vishvavidyalaya and had in the meantime also obtained LL.B. degree from the Berhampur University, it should be presumed that Respondent No. 6 had necessary requisite qualification for being considered. Based on such conclusion, Learned Single Judge came to hold that "Opposite Party authorities were "estopped" from saying that the integrated 10+2 Arts of Council of Higher Secondary Education Orissa from Shri Jagannath Sanskrit Vishvavidyalaya is not equivalent to 10 + 2 Arts of Council of Higher Secondary Education Orissa." For this conclusion, reliance was placed by the Learned Single Judge on the notification under Annexure-4 (Annexure 9 to the writ appeal) on the basis of which, it was held that Equivalence Committee had recognized 10+2 qualification obtained from Shri Jagannath Sanskrit Vishvavidyalaya, we are of the view that such reliance is unfortunately misplaced since the assertion by the Appellant that the Council of Higher Secondary has not yet approved the resolution passed by the Equivalence Committee dated 18.2,1986, has not been controverted. Apart from the above, we also find that since the Appellant had been duly selected under Annexure 2, it cannot be said that the Petitioner had no legitimate expectation for being afforded him pursuant to such selection. 8. For the reasons noted hereinabove, we set aside the Judgment passed by the Learned Single Judge and allow the Writ Appeal and consequently, further direct the dismissal of the writ application. The Respondent No. 2 is directed to act forthwith in terms of the selection of the Petitioner under Annexure-2 to the writ appeal. No costs. B.S. Chauhan, C.J. I agree.